i 

June 2016 

TABLE OF CONTENTS 

COMMISSION DECISIONS 

06-03-16 OAK GROVE RESOURCES, LLC and 

DONNY BIENIA, employed by OAK 

GROVE RESOURCES, LLC 

SE 2010-1236 Page 1273 

06-07-16 OAK GROVE RESOURCES, LLC SE 2009-261-R Page 1286

06-08-16 KNIFE RIVER CONSTRUCTION WEST 2013-1009-M Page 1289

06-16-16 BLACK BEAUTY COAL COMPANY LAKE 2009-410 Page 1307

06-24-16 HOPKINS COUNTY COAL, LLC KENT 2009-1441 Page 1317

06-30-16 BIG RIDGE, INC. LAKE 2012-896 Page 1348

COMMISSION ORDERS 

06-07-16 TUNNEL RIDGE, LLC WEVA 2014-962 Page 1351 

06-27-16 RIVER VIEW COAL, LLC KENT 2016-26 Page 1354

06-27-16 ESSROC SAN JUAN SE 2016-23-M Page 1357

06-27-16 BAILLIO SAND COMPANY, INC. VA 2015-300-M Page 1360

06-27-16 GATEWAY EAGLE COAL 

COMPANY, LLC 

WEVA 2016-1 Page 1363

06-27-16 GIBRALTAR ROCK, INC. YORK 2015-154-M Page 1366
ii 

06-28-16 SHANE HORTON v. COAL RIVER 

MINING, LLC 

WEVA 2013-1183-D Page 1369

06-30-16 APOGEE COAL COMPANY, LLC WEVA 2016-324 Page 1372

ADMINISTRATIVE LAW JUDGE DECISIONS 

06-06-16 MACH MINING, INC. LAKE 2014-0077 Page 1379

06-06-16 SEC. OF LABOR O/B/O MINDY S. 

PEPIN v. EMPIRE IRON MINING 

PARTNERSHIP 

LAKE 2015-386-DM Page 1435

06-09-16 SUTTER GOLD MINING 

COMPANY 

WEST 2015-856 Page 1461

06-10-16 ORIGINAL SIXTEEN TO ONE 

MINE, INCORPORATED 

WEST 2012-1022-M Page 1472

06-16-16 KENTUCKY FUEL CORPORATION KENT 2015-528 Page 1510

06-24-16 NEWMONT USA LIMITED WEST 2015-819 Page 1528

06-28-16 WEST ALABAMA SAND & 

GRAVEL, INC. 

SE 2009-870-M Page 1532

06-30-16 CONVEYOR BELT SERVICES, INC. LAKE 2014-0255 Page 1542

ADMINISTRATIVE LAW JUDGE ORDERS 

06-01-16 SEC. OF LABOR O/B/O JENNIFER 

MORREALE v. VERIS GOLD USA, 

INC., JERRITT CANYON GOLD, 

LLC, WHITEBOX MANAGEMENT, 

& ERIC SPROTT 

WEST 2014-793-DM Page 1557

06-02-16 DANIEL B. LOWE v. VERIS GOLD 

USA, INC., and JERRITT CANYON 

GOLD, LLC 

WEST 2014-614-DM Page 1559
iii 

06-02-16 SEC. OF LABOR O/B/O JACOB 

HAMILTON v. AMERICAN MINING 

AND TUNNELING, LLC 

WEST 2016-326-DM Page 1566

06-09-16 UNITED STATES STEEL 

CORPORATION – MINNESOTA 

ORE OPERATIONS 

LAKE 2016-193-RM Page 1568

06-14-16 CONSOLIDATION COAL 

COMPANY 

WEVA 2015-74 Page 1573

06-24-16 TETRA TECH CONSTRUCTION 

SERVICES 

WEST 2013-587-M Page 1579
iv 

Review was granted in the following cases during the month of June 2016: 

Secretary of Labor v. Sims Crane, Docket No. SE 2015-315 (Judge McCarthy, May 3, 2016) 

Secretary of Labor obo Eric Greathouse, et al. v. Mongolia County Coal Co., et al., Docket Nos. 

WEVA 2015-904, et al. (Judge Miller, May 2, 2016) 

Review was denied in the following cases during the month of June 2016: 

Secretary of Labor v. Original Sixteen to One Mine, Inc., Docket Nos. WEST 2014-527 M, et al. 

(Judge Moran, May 3, 2016) 

Michael Wilson v. Jim Browning, Docket No. KENT 2016-95 D (Judge Miller, May 18, 2016) 
COMMISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

June 3, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 Docket Nos. SE 2010-1236 

v. SE 2011-782 

OAK GROVE RESOURCES, LLC and 

 DONNY BIENIA, employed by OAK 

 GROVE RESOURCES, LLC 

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

DECISION 

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

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

U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). These matters involve an order issued by the 

Department of Labor’s Mine Safety and Health Administration (“MSHA”) to Oak Grove 

Resources alleging a failure to comply with a safeguard notice, and a related individual penalty 

issued to Oak Grove foreman Donny Bienia pursuant to section 110(c) of the Act.1 

The safeguard notice in question requires that only approved equipment such as track 

motors be used to move supply cars on a track. The order alleges that Bienia was using a winch 

and cable on a scoop to move supply cars, in violation of the safeguard, when the cars broke 

1

 Safeguard notices effectively function as mine-specific mandatory standards. Wolf Run 

Mining Co., 659 F.3d 1197, 1201-02 (D.C. Cir. 2011), aff’g, 32 FMSHRC 1228 (Oct. 2010). 

They are issued pursuant to section 314(b) of the Act, which states that “[o]ther safeguards 

adequate, in the judgment of an authorized representative of the Secretary, to minimize hazards 

with respect to transportation of men and materials shall be provided.” 30 U.S.C. § 874(b). 

Section 110(c) of the Act states in relevant part that “[w]henever a corporate operator 

violates a mandatory health or safety standard . . . any director, officer, or agent of such 

corporation who knowingly authorized, ordered, or carried out such violation, failure, or refusal 

shall be subject to the same civil penalties, fines, and imprisonment that may be imposed upon 

[the operator].” 30 U.S.C. § 820(c). 

38 FMSHRC Page 1273
loose and rolled approximately 3,900 feet.2

 The cited condition was designated as “significant 

and substantial” (“S&S”) and the result of an unwarrantable failure.3

 The Judge found the 

safeguard to be valid, affirmed the order in its entirety, found Bienia personally liable, assessed 

the $50,700 penalty proposed by the Secretary against Oak Grove, and assessed a reduced 

penalty of $500 against Bienia. 35 FMSHRC 842 (Apr. 2013) (ALJ). 

Oak Grove and Bienia challenge the validity and applicability of the safeguard notice, 

and the Judge’s unwarrantable failure and personal liability determinations. For the reasons 

below, the Judge’s decision is affirmed. 

I.

Factual and Procedural Background 

A. Factual Background

The relevant events occurred on May 12, 2010, at an Oak Grove underground coal mine

in Jefferson County, Alabama. A miner, Andrew Teel, asked foreman Bienia for assistance 

moving some supply cars a short distance down the track to the crosscut for unloading. Oak 

Grove refers to this as “spotting.” The six cars were coupled together on a track which sloped 

outby the mine.4 The fourth car was resting against a car stop, and another car stop was located 

approximately 30 feet down the slope. Bienia and Teel decided to use the winch, cable and hook 

on a nearby scoop that Bienia had been operating. They planned to winch the cars a few feet 

uphill to take the weight off the car stop, remove the stop, then lower the cars down the track to 

the crosscut. Bienia testified that this method was used at a mine where he was previously 

employed. Id. at 844, 851. 

Teel attached the winch hook to a side rail, which was normally used to tie down and 

secure loads, on the third car. Bienia began winching the cars uphill, and Teel removed the car 

stop which the fourth car had been resting against. At that point the weld attaching the third car’s 

2

 A scoop is a piece of “[d]iesel- or battery-powered equipment with a scoop attachment 

for cleaning up loose material, for loading mine cars or trucks, and hauling supplies.” Am. 

Geological Institute, Dictionary of Mining, Mineral and Related Terms 484 (2d ed. 1997). The 

winch, which was “like the winch on a pickup truck,” was mounted behind the bucket of the 

scoop. Tr. 50. Counsel for the operator noted that not all scoops have winches. Tr. 17. 

3

 The “significant and substantial” and “unwarrantable failure” terminology is taken from 

section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1), which distinguished as more serious in 

nature any violation that “could significant and substantially contribute to the cause and effect of 

a . . . mine safety and 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.” Oak Grove does not contest the Judge’s finding of a significant and substantial 

violation. 

4

 “Outby” refers to areas “away from the face . . . toward the mine entrance.” Dictionary 

of Mining, 383. 

38 FMSHRC Page 1274
side rail to the car broke, the hook and cable came loose, and all the cars started to roll. Bienia 

attempted to halt their movement by turning the bucket of the scoop into the fourth car, but doing 

so caused the third and fourth cars to become uncoupled. The scoop held the last three cars, 

while the first three kept moving. Bienia left the scoop and ran alongside the cars, hoping to find 

some way to derail them, but was not able to keep up as the cars gained speed. The cars ran over 

the outby car stop without halting or derailing, and ultimately travelled approximately 3,900 feet 

before coming to a stop. No miners were injured, although one miner had to run to take refuge in 

a spur track to avoid being hit as the cars went by. Oak Grove investigated the incident during 

the following two days. Id. at 845, 852-53. 

On May 24, 2010, an MSHA inspector received an anonymous handwritten complaint 

regarding the incident and conducted an investigation. The inspector concluded that the method 

used to move the supply cars violated previously issued Safeguard No. 3013658, which states: 

The two longwall utility men were observed moving 3 flat cars of 

supplys [sic] on the longwall section track with a diesel powered 

scoop. (Note) They were pulling the cars with a 5/8” dia. wire 

rope. 

This notice to provide safe guard [sic] requires only equipment

such as track motors or other approved equipment be used in 

moving supply cars on the track in the mine. 

Gov. Ex. 4. Accordingly, the inspector issued the following order pursuant to section 104(d)(2) 

of the Act: 

On 5-12-2010 at approximately 11:30pm an incident occurred at 

this mine that endangered the lives of miners working 

underground. A Section Foreman was using the winch of a scoop 

to move 3 supply cars; with 1 of the cars being loaded with 20 foot 

sections of 2 inch metal water pipe. The supply cars were located 

at the end of the Main North 3 track. The 3rd car inby was attached 

to the winch cable. The hook on the end of the cable became 

disconnected from the supply car causing the 3 most outby supply 

cars (coupled together) to roll outby. There was a positive stop 

located approximately 30 feet from the cars, that when contacted 

by the cars, fell over allowing the supply cars to continue to gain 

momentum and travel outby with no one in control of the cars. The 

cars came to rest at crosscut 20 on 11 West track. The distance

traveled by the supply cars was 3,900 feet. 

Gov. Ex. 2. In explaining why he determined Bienia had not been using “approved equipment,” 

the inspector testified that supply cars are typically moved along a track using rail-mounted 

equipment (locomotives or mantrips) equipped with couplers, and that such a method (rather 

than a winch and scoop) is widely considered to be the only safe way to move supply cars on a 

track. Tr. 73-74. The inspector stated that he designated the alleged violation as an unwarrantable 

failure because a miner in a management position (Bienia) was directly involved. Tr. 119. 

38 FMSHRC Page 1275
Bienia testified that at the time of the incident he believed his method of “spotting” 

supply cars to be a safe procedure, and was unaware of the concept of safeguards or of any 

“rule” prohibiting the use of a rope and winch to move supply cars. Tr. 145, 154-55, 163. Oak 

Grove’s safety manager at the time, John Henry Hedrick III, testified that he believed the 

safeguard did not prohibit using a winch to spot supply cars (where the winch is powering the 

move), but rather prohibited using a scoop and rope to pull cars move cars (where the scoop is 

powering the move). Tr. 172-75, 190-91. 

B. The Judge’s Decision

In finding Safeguard No. 3013658 to be valid, the Judge relied on American Coal, 34

FMSHRC 1963 (Aug. 2012). In that case, the Commission held that a safeguard notice is valid if 

it describes a hazardous condition and specifies a remedy; it need not articulate a specific risk or 

harm to miners. Id. at 1969-70. The Judge determined that the safeguard at issue here “implicitly 

specifies the hazardous condition and explicitly provides the remedy for it.” 35 FMSHRC at 861. 

The Judge then found that the safeguard notice applied to the cited condition. He noted that both 

involve the use of a scoop and wire rope to move supply cars, and found no meaningful 

distinction between pushing or pulling the cars, or between powering the move with a winch or 

the scoop itself. Id. at 861, 861 n.39. 

The Judge concluded that the violation was the result of an unwarrantable failure, based 

on the direct involvement of supervisory personnel and the gravity of the cited condition. Id. at 

863. He rejected Oak Grove’s claim of an objectively reasonable and good faith belief that the

cited conduct was not violative. In rejecting the claim, he stated that Bienia’s lack of awareness

of the safeguard’s requirements was “inexcusable,” and emphasized the inspector’s testimony

that the method employed by Bienia was well-understood to be unsafe. Id. The Judge was also

unpersuaded by allegedly mitigating factors such as Bienia’s experience moving cars with a

winch and rope at another mine, the presence of the outby car stop, and Oak Grove’s subsequent

investigation. He found these factors to be irrelevant or non-determinative. Id. at 851, 854 n.27,

862 n.41, n.43.

Finally, the Judge found Bienia personally liable under section 110(c) of the Act. He 

noted that Bienia had a duty to know of the mine’s safeguard notices, and thus had reason to 

know that his actions ran contrary to the requirements of the safeguard and were unsafe. 

However, the Judge assessed a penalty of $500 rather than the proposed penalty of $6,500. Id. at 

865. In finding personal liability, the Judge rejected Oak Grove’s argument that section 110(c)

does not apply to agents of LLCs. Id. at 867.

III. 

Disposition

A. Validity of the Safeguard

We conclude that the Judge properly held Safeguard No. 3013658 to be valid. The

safeguard notice describes flatcars being pulled by a scoop and wire cable (the hazardous 

condition) and directs that only approved equipment such as track motors be used to move 

38 FMSHRC Page 1276
supply cars on a track (the remedy). As discussed further below, we reject Oak Grove’s claim 

that the safeguard is invalid because it fails to identify a hazard. 

Oak Grove argues that the Commission’s holding in American Coal is in error, but fails 

to offer any new reasons that would justify reconsidering the principle adopted therein.5 We 

reaffirm our holding in American Coal that a notice of safeguard identifies a hazard for purposes 

of section 314(b) by identifying a hazardous condition, and need not specify a particular harm or 

risk to miners. 34 FMSHRC at 1969-70. 

Oak Grove additionally contends that the safeguard notice fails to identify a hazardous 

condition because the nature of the hazard is not evident from the condition described (moving 

supply cars with a scoop and rope). The Commission, however, has looked to both common 

sense and industry standards to determine whether a condition described in a safeguard notice is 

hazardous. See, e.g., American Coal, 34 FMSHRC at 1976 (“it requires only common sense to 

know that it is unsafe to travel in a hoist with an open gate”); Oak Grove Resources, LLC, 35 

FMSHRC 2009, 2012-13 (July 2013) (“it has long been commonly recognized that pushing cars 

on the main haulage roads of an underground mine is a hazardous practice”). 

Here, the inspector testified that using track-mounted equipment and couplers provides a 

“sure way of holding the cars,” and that conversely, Bienia’s method is considered unsafe and is 

“not a common practice . . . because of exactly what happened,” i.e., runaway cars. Tr. 73-74. As 

the inspector reasonably explained, a scoop and rope does not provide the same level of control 

as track-mounted equipment which is “in line with . . . [and] rigidly coupled to the cars.” Tr. 84. 

Even Oak Grove safety manager Hedrick conceded that “cars could run over you” when using a 

scoop and rope to move cars. Tr. 174-75. Common sense and industry practice demonstrate that 

the condition described in the safeguard raises concerns regarding stability and control. 

Accordingly, we find that the condition described in the safeguard – use of a scoop to pull cars – 

is hazardous. 

Oak Grove claims that it is unclear whether the safeguard notice is directed toward 

preventing runaway cars, a car riding into the scoop, or some other danger. However, as we 

noted in American Coal, “many potential risks” can flow from a single condition, and “it would 

be unreasonable to require the inspector to identify each and every one.” 34 FMSHRC at 1970; 

see also Oak Grove, 35 FMSHRC at 2014 (a valid safeguard notice “need not foreshadow the 

events that may occur if the safeguard is not implemented”). A safeguard notice is not invalid 

because it describes a hazardous condition that could result in multiple specific harms; indeed, a 

5

 Oak Grove relies on earlier Commission caselaw and the use of the term “hazard” in 

MSHA’s Program Policy Manual (“PPM”). These were already considered by the Commission 

in American Coal. The caselaw was found to be consistent with our holding, and the discussion 

of hazards in the PPM was found not to be persuasive. 34 FMSHRC at 1967-71. Oak Grove also 

claims that the Commission in American Coal did not consider testimony from a former MSHA 

district manager that inspectors were told to include hazards when issuing safeguards. Resp. Ex. 

4 at Tr. 127-28. However, the testimony indicates that MSHA was simply attempting to comply 

with Commission caselaw, and the Commission has since held that safeguard notices need not 

identify a specific harm. 

38 FMSHRC Page 1277
multiplicity of potential specific harms arising from the identified hazardous condition 

emphasizes that the safeguard notice does identify a hazardous condition.6

 Here, Safeguard No. 

3013658 describes a hazardous condition and specifies a remedy. Within the framework of 

American Coal, the safeguard is valid. 

B. Applicability of the Safeguard 

The Judge found that the cited condition “clearly falls within [the safeguard notice’s] 

purview.” 35 FMSHRC at 861. We agree. The purpose of the safeguard notice is to ensure that 

only approved equipment is used to move supply cars on a track. Oak Grove moved supply cars 

on a track using a scoop and wire rope rather than approved equipment, and was cited for doing 

so. 

Oak Grove claims that the safeguard notice is not applicable to the cited condition.7 Oak 

Grove would distinguish pulling cars using a scoop and rope, as described in the safeguard 

notice, from using a winch to spot cars a short distance, as described in the order. We have 

recognized that a citation should be vacated if the conditions “differ fundamentally in nature, 

cause and remedy” from those in the underlying safeguard, such that the operator lacked notice 

that the cited conduct was prohibited. Bethenergy Mines, Inc., 15 FMSHRC 981, 986 (June 

1993); see also Southern Ohio Coal Co., 7 FMSHRC 509, 512-13 (Apr. 1985) (“SOCCO I”). 

However, we see no such fundamental dissimilarity here. 

The only potentially relevant difference here is the use of the winch.8 We do not find this 

to be a meaningful distinction. While the use of a winch may change the mechanics of the 

process to some degree, it does not alter the nature of the hazardous condition. As the inspector 

testified, approved equipment (track-mounted equipment with couplers) provides control because 

it is in-line with and rigidly attached to the supply cars. Tr. 84. Using non-approved equipment 

that is not track-mounted – whether a rope attached to a scoop, or a winch and rope attached to a 

scoop – creates a danger of loss of control and runaway cars, which is avoided by using only 

approved equipment. The safeguard put Oak Grove on notice that using non-approved equipment 

to move supply cars on a track is prohibited. Limiting prohibited conduct to the exact scenario in 

the safeguard notice, i.e., the use of a scoop and rope but no winch, would unduly narrow the 

scope of the hazardous condition identified in the safeguard notice, and allow the use of 

equipment which is clearly non-approved. 

                                                             6

 Conceivably, an operator could be cited for conduct which is hazardous in a way truly 

not contemplated by the underlying safeguard notice. However, that would affect the validity of 

the citation rather than the validity of the safeguard notice, and regardless, is not the situation 

here. 

7

 Oak Grove also contends that the violation cannot be sustained because the safeguard 

notice does not clearly identify the condition to which it is directed. This involves the validity, 

rather than the applicability of the safeguard notice, and has already been addressed. 

8

 Oak Grove also suggests a substantive distinction between pulling cars and spotting 

them a short distance. Tr. 173, 190-91. However, the safeguard notice addresses moving cars 

generally.

38 FMSHRC Page 1278
C. Unwarrantable failure

Unwarrantable failure is aggravated conduct constituting more than ordinary negligence.

Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is 

characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” 

or a “serious lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 

FMSHRC 189, 194 (Feb. 1991). Because supervisors are held to a higher standard of care, the 

involvement of supervisory personnel in violative conduct may support an unwarrantability 

determination. See Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001) (citing REB Enters., 

Inc., 20 FMSHRC 203, 225 (Mar. 1998)). Conversely, if an operator has acted on an objectively 

reasonable and good faith belief that the cited conduct was in compliance with applicable law, 

such conduct will not be considered to be the result of an unwarrantable failure when it is later 

determined that the operator’s belief was in error. IO Coal Co., 31 FMSHRC 1346, 1357-58 

(Dec. 2009) (citing Kelly's Creek Res., Inc., 19 FMSHRC 457, 463 (Mar. 1997). 

The Judge found that the violation was the result of an unwarrantable failure, based 

primarily on the direct involvement of Bienia, a supervisor. The Judge rejected Oak Grove’s 

claim of an objectively reasonable and good faith belief that the cited conduct was not violative. 

He acknowledged Bienia’s apparent good faith belief that his method of moving cars was not 

prohibited, but considered such ignorance of the mine’s safeguard notices inexcusable, stating 

that “[a]s supervisors are held to a heightened standard of care regarding safety matters, and as 

there was an intentional, though inexcusably unwitting, violation of the safeguard involved here, 

the conclusion that the violation was unwarrantable is inescapable.” 35 FMSHRC at 863. Oak 

Grove claims the Judge erred in finding that Bienia’s belief in compliance was not objectively 

reasonable, and in rejecting certain other mitigating factors.9

 For the reasons below, we find that 

the Judge properly rejected such arguments. 

In claiming an objectively reasonable and good faith belief in compliance, Oak Grove 

relies on Bienia’s testimony that the same method of moving cars was used at the mine where he 

was previously employed. While this may support Bienia’s good faith belief that the method was 

compliant, it does not make the belief objectively reasonable. The inspector testified that the 

method used by Bienia is commonly understood to be unsafe. Tr. 73-74. Furthermore, safeguard 

notices are mine-specific. A belief that a method of moving supply cars is compliant is not 

objectively reasonable simply because a miner used it in an undescribed instance(s) at some 

unidentified time(s) and, most importantly, without testimony that MSHA was aware of such 

9

 In determining whether aggravated conduct has occurred, a Judge must consider all 

relevant factors, including the extent of the violative condition, the length of time the condition 

has existed, whether the violation posed a high risk of danger, whether the violation was obvious, 

the operator's knowledge of the existence of the violation, the operator's efforts in abating the 

violative condition, and whether the operator has been placed on notice that greater efforts are 

necessary for compliance. See Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO 

Coal, 31 FMSHRC at 1350-57. Although the Judge did not address all the relevant factors here, 

Oak Grove does not challenge the unwarrantable failure determination on those grounds. 

38 FMSHRC Page 1279
purported use.10 The record does not detail the extent of this experience. It may have been a 

single instance as far back as 1975 and there was no evidence that MSHA ever knew of Bienia’s 

use of this method. Tr. 135-36. 

Oak Grove has a duty to ensure that its supervisors are aware of the proper way to move 

supply cars at Oak Grove Mine. Here, it apparently failed to do so; Bienia could not recall any 

training as to this particular safeguard notice. Tr. 154, 162-64. However, the “general principle 

that ignorance of the law is no defense” applies in the negligence context. Douglas R. Rushford 

Trucking, 23 FMSHRC 790, 793 (Aug. 2001) (citing McKinnon v. Kwong Wah Restaurant, 83 

F.3d 498, 509 (1st Cir. 1996)). Neither Bienia’s experience at another mine, nor his unfamiliarity 

with the requirements of the safeguard notice, is a valid ground for finding his belief objectively 

reasonable. 

Oak Grove also argues more generally that the text of the safeguard notice can reasonably 

be interpreted as applying only to pulling cars along the track with a scoop and rope, rather than 

spotting them with a winch.11 As discussed above, such an interpretation focuses on a distinction 

without a difference, and is not objectively reasonable. 

 As for other allegedly mitigating factors, we do not find the presence of the outby 

(downslope) car stop to be relevant. Bienia stated that he only became aware of the car stop after 

he began winching the cars. Tr. 140. Therefore, the car stop is irrelevant to his state of mind 

when deciding to engage in the cited conduct. Moreover, car stops are intended to prevent cars 

from beginning to move, rather than safely stopping cars that are already moving. Tr. 44, 76-77. 

Awareness of a car stop 30 feet away that would not be expected to (and in fact did not) stop the 

runaway cars, does not affect the relevant standard of care. 

We are also unpersuaded by Oak Grove’s contention that its investigation and remedial 

actions taken after the incident are mitigating factors. The record does not indicate that any 

relevant remedial actions were taken, as nothing in the investigation summary or the safety 

manager’s testimony indicates that Oak Grove implemented any changes to ensure the use of 

                                                             10 The Commission has recognized that prior inconsistent enforcement by MSHA can be 

relevant with regard to negligence and reasonableness of belief. See IO Coal, 31 FMSHRC at 

1358; see also King Knob Coal Co., 3 FMSHRC 1417, 1422 (June 1981). However, safeguard 

notices are mine-specific, and there is no indication that MSHA has inconsistently enforced this 

safeguard notice at this mine. 

11 Oak Grove notes the safety manager’s testimony that this is what he believed. Aside 

from the fact that a mere statement of belief does not make that belief reasonable, he was not the 

agent acting on the operator’s behalf in this instance, so his beliefs are not relevant to the 

determination of reasonable and good faith belief. See Excel Mining, LLC, 37 FMSHRC 459, 

468 (Mar. 2015) (the negligence of an agent is imputed to the operator for the purpose of making 

an unwarrantable failure determination). 

38 FMSHRC Page 1280
approved equipment such as track motors when moving supply cars.

12 See Resp. Ex. 8; Tr. 178-

80. In sum, we are not persuaded by the mitigating factors offered by Oak Grove. The Judge’s

unwarrantable failure finding is affirmed.

D. Personal Liability of Donny Bienia

Section 110(c) provides that whenever a corporate operator violates a mandatory standard

or any order under the Act, “any director, officer, or agent of such corporation who knowingly 

authorized, ordered, or carried out such violation . . . shall be subject to . . . civil penalties.” 30 

U.S.C. § 820(c). The proper legal inquiry for determining liability under section 110(c) is 

whether the agent knew or had reason to know of a violative condition. Kenny Richardson, 3 

FMSHRC 8, 16 (Jan. 1981), aff’d on other grounds, 689 F.2d 632 (6th Cir. 1982), cert. 

denied, 461 U.S. 928 (1983); accord Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 

358, 362-64 (D.C. Cir. 1997). Liability under section 110(c) only requires that an agent 

knowingly acted, not that the individual knowingly violated the law. See, e.g., McCoy Elkhorn 

Coal Corp. and Robinson, 36 FMSHRC 1987, 1996 (Aug. 2014), citing Warren Steen Constr., 

Inc., 14 FMSHRC 1125, 1131 (July 1992). A knowing violation thus occurs when an individual 

“in a position to protect employee safety and health fails to act on the basis of information that 

gives him knowledge or reason to know of the existence of a violative condition.” 3 FMSHRC at 

16. 

As an initial matter, we reaffirm our holding in Simola that section 110(c) applies to 

agents of LLCs. Simola, employed by United Taconite, LLC, 34 FMSHRC 539, 548-49 (Mar. 

2012), followed in Sumpter, employed by Oak Grove Resources LLC, 763 F.3d 1292, 1298-99 

(11th Cir. Aug. 2014). Oak Grove contends that the plain language of section 110(c) explicitly 

and exclusively refers to agents of corporate operators, and therefore cannot be applied to Bienia, 

an agent of an LLC. However, as we explained in Simola, LLCs did not exist when section 

110(c) was drafted. 34 FMSHRC at 542. Because the intent of the provision is to pierce 

corporate liability, and the limited liability shield is a key characteristic of LLCs, section 110(c) 

12 The parties disagree as to whether remedial actions taken after the cited event, but prior 

to the issuance of a citation, can be considered mitigating factors with respect to an 

unwarrantable failure determination. As we find no such relevant actions occurred, we need not 

address this issue. We note that Oak Grove had 13 days from the incident until MSHA issued the 

order within which to investigate the incident and make meaningful changes in its practices. It 

had this much time because MSHA did not learn of the incident until the inspector received an 

anonymous handwritten note from a miner in his lunch box, which the inspector properly 

regarded as a complaint under section 103(g) of the Mine Act. 35 FMSHRC at 843. 

38 FMSHRC Page 1281
applies to agents of LLCs. Oak Grove fails to offer any new theories that would justify 

reconsidering this principle.13

Turning to Bienia’s liability, he not only knew that supply cars were being moved using a 

scoop, winch, and cable, but actually directed such activity. Furthermore, as foreman, he had a 

duty to be aware of the requirements of the mine’s safeguard notices.14 For the reasons discussed 

above, slip op. at 7-8 supra, we find that Bienia did not have an objectively reasonable belief that

his conduct was in compliance. Bienia had direct knowledge of the condition (moving supply 

cars with unapproved equipment). As an agent of Oak Grove, he authorized and carried out 

13 Oak Grove relies on caselaw stating that section 110(c) does not apply to partnerships 

and distinguishing LLCs from corporations for jurisdictional purposes, and notes the relatively 

recent creation and hybrid nature of LLCs. The Commission in Simola considered the caselaw, 

and found it distinguishable. 34 FMSHRC at 544-45, 548 n.13. Noting that LLCs have the 

corporate characteristic of limited liability and that Congress had a clear intent to pierce the 

corporate veil, the Commission concluded that “Congress, if given the opportunity, would have 

explicitly included LLCs, within the scope of section 110(c).” Id. at 549, 550-51. 

14 If the record established that Bienia had not received any training regarding the 

safeguard requiring the use of approved equipment, it could be argued that he did not have 

reason to know that his conduct was violative. While a foreman has a duty to know what is 

required by the mine’s safeguard notices, an operator has as great a duty to ensure that 

knowledge by proper training. However, the record only reflects that Bienia was unfamiliar with 

the term “safeguard” and did not recall whether he was trained as to this particular requirement. 

He did admit knowledge of other requirements and “rules” addressed in safeguard notices in 

place at the mine. Tr. 154, 162-64. 

Commissioner Cohen adds that Bienia’s defense was conducted jointly with Oak Grove’s 

defense. The defense for the section 110(c) citation against Bienia personally was identical to 

Oak Grove’s defense against the allegation of unwarrantable failure – that Bienia had a good 

faith belief that what he did was proper. No evidence was offered by the defense as to the 

training Bienia received from Oak Grove regarding the safeguards applicable at the mine. If, in 

fact, Bienia had not been trained regarding Safeguard No. 3013658, his defense would have been 

stronger. However, such evidence would also have weakened Oak Grove’s defense against the 

unwarrantable failure designation. Thus, Bienia may have been ill-served by linking his defense 

with Oak Grove’s defense. 

38 FMSHRC Page 1282
III. 

Conclusion 

For the foregoing reasons, the Judge’s Decision is affirmed. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

conduct which he knew or should have known created a violative condition. Accordingly, 

we affirm the finding of liability under section 110(c) of the Act. 

38 FMSHRC Page 1283
Commissioner Young, concurring: 

I continue to believe that the Commission’s expansive view of American Coal Company, 

34 FMSHRC 1963 (Aug. 2012), in some previous decisions is contrary to our precedents and the 

safety purposes of the Act. However, I join the majority’s opinion in this case in its entirety, 

writing separately only to ensure my position on safeguards generally is not misinterpreted. 

I joined the opinion in American Coal because common sense supported the conclusion 

that there is no need to state the obvious in authoring a safeguard notice to specify the harm that 

would foreseeably result from a prohibited, patently hazardous practice. The case before us 

clearly falls within the parameters of our decision in American Coal.

Powered haulage is a significant cause of miner deaths and injuries.1

 It is thus an area 

where improvisational misjudgments are especially likely to have fatal consequences. Simple 

matters of physics and engineering should make obvious the need to avoid using equipment other 

than track motors or other approved means to move equipment. 

This case presents a perfect example. Not only was the motivating force applied through 

an untested wire rope and side rail that was never designed to bear it, the force moved in more 

than one direction by pulling the load laterally, and not straight down the tracks as a properlycoupled connection would have allowed. There was no track motor in place to provide controlled 

power through an approved connection, and the result was a foreseeable loss of control over the 

cars. 

This, then, is unlike the circumstances in Oak Grove Resources, LLC, 37 FMSHRC 2687 

(Dec. 2015) and Black Beauty Coal Company, 38 FMSHRC 1 (Jan. 2016). In the former case, 

there was no description of the hazard, and despite there being a fatal accident at issue, the 

Secretary was unable even to make a case that the violation was S&S. Oak Grove, 37 FMSHRC 

at 2692-94. In the latter case, a safeguard modification requiring travelways to be “free of mud 

and water” failed to specify a hazard or the degree or type of accumulations so that the hazard 

would be clearly discerned, and failed to relate the modification to the conditions which 

prompted the original safeguard. Black Beauty, 38 FMSHRC at 10-15 (Young and Althen, 

dissenting). Again, the cited breach was found not to be S&S. 

I have some misgivings about finding Mr. Bienia liable under section 110(c) of the Act. 

That discomfort arises from the fact that neither MSHA nor this operator has taken steps to 

incorporate safeguards into the mine’s hazard training. While I suspect this is a general problem, 

and should be considered along with other compelling reasons why safeguards should not be 

used to address hazards common to all mines, in our opinion today, Commissioner Cohen 

1 See MSHA – Coal End of Year 2015 Fatality Report and Metal/Nonmetal End of Year 

2015 Fatality Report, http://arlweb.msha.gov/stats/charts/chartshome.htm (from the years 2011-

2015, 21 of 87 total fatalities in coal mines, and 29 of 100 total fatalities in metal/nonmetal 

mines, involved powered haulage); MSHA Summary Fatal Accidents with Preventative 

Recommendations, http://arlweb.msha.gov/fatals/summaries/previoussummaries.asp (“The 

leading cause of fatalities in the U.S. mining industry during 2012 was powered haulage . . . .”). 

38 FMSHRC Page 1284
correctly notes that Bienia provided no argument or evidence concerning a lack of training. Slip 

op. at 10, n.14. 

 The patchwork nature of regulation-by-safeguard may explain why Mr. Bienia believed it 

might be permissible to move cars with a scoop, as was done in this case. Nevertheless, he was 

in a supervisory position with the mine and had a duty to know all governing standards, 

including the applicable safeguards. It would not be logical to hold both that the practice was 

patently dangerous – as I believe it to be – and that a foreman, removed from the operational 

pressures inherent in the situation that confronted Mr. Bienia in this case, would not have known 

this. 

 /s/ Michael G. Young 

 Michael G. Young, Commissioner 

38 FMSHRC Page 1285
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710

June 7, 2016 

OAK GROVE RESOURCES, LLC 

Docket Nos. SE 2009-261-R 

v. SE 2009-487 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

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

DECISION APPROVING SETTLEMENT 

BY THE COMMISSION: 

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

30 U.S.C. § 801 et seq. (2012) (“Mine Act”), involve a citation issued by the Department of 

Labor’s Mine Safety and Health Administration to Oak Grove Resources, LLC following a fatal 

accident at its mine. The Secretary of Labor issued the citation for a violation of a notice of 

safeguard which had been previously issued to the mine pursuant to section 314(b) of the Mine 

Act, 30 U.S.C. § 874(b). 

Oak Grove contested the citation and the associated civil penalty before a Commission 

Administrative Law Judge. The Judge vacated the citation; he concluded that the underlying 

safeguard had not been validly issued. 33 FMSHRC 846, 852-54 (Mar. 2011) (ALJ). 

The Secretary filed a petition for discretionary review, which we granted. The 

Commission reversed the Judge, concluded that the safeguard notice was valid, and remanded 

the cases to the Judge for further proceedings. 35 FMSHRC 2009, 2015 (July 2013). 

On remand, the Judge concluded that Oak Grove violated the safeguard, the violation was 

significant and substantial (“S&S”), and the violation was the result of a moderate degree of 

negligence on the part of Oak Grove. 35 FMSHRC 3422, 3431 (Nov. 2013) (ALJ). 

Oak Grove then filed a petition for discretionary review, which we granted. On review, 

the Commission affirmed the Judge’s decision that Oak Grove violated the safeguard, but 

concluded that the Judge’s determination that the violation was S&S was not supported by 

substantial evidence in the record. 37 FMSHRC 2687, 2695 (Dec. 2015). The Commission 

remanded the proceedings to the Judge for an assessment of an appropriate penalty.

38 FMSHRC Page 1286
On remand, the Judge applied the statutory penalty criteria in section 110(i) of the Mine 

Act, 30 U.S.C. § 820(i), and assessed a $50,000 penalty. In determining “whether the operator 

was negligent,” as required by the penalty criteria, the Judge revised his finding that Oak Grove 

was moderately negligent, and determined that the violation was the result of Oak Grove’s high 

negligence. 38 FMSHRC __, slip op. at 17-19 (April 6, 2016). 

The parties subsequently filed a joint petition for discretionary review. Included in the 

joint petition for discretionary review is a motion requesting that the Commission approve a 

settlement agreement between the parties. The Commission has granted the petition for 

discretionary review in a separate order, and now disposes of these cases. 

The parties’ joint request for approval of settlement was filed in accordance with section 

110(k) of the Mine Act, 30 U.S.C. § 820(k), which provides, in relevant part, that “[n]o proposed 

penalty which has been contested before the Commission under section 105(a) shall be 

compromised, mitigated, or settled except with the approval of the Commission.” Commission 

Procedural Rule 31 provides that a “proposed penalty that has been contested before the 

Commission may be settled only with the approval of the Commission upon motion.” 29 C.F.R. 

§ 2700.31(a). The movant is required to provide “facts in support of the penalty agreed to by the

parties.” 29 C.F.R. §§ 2700.31(b)(1), (c)(1).

In their joint filing, the parties contend that the Judge exceeded his authority when he 

revised his negligence finding from moderate negligence to high negligence, given that the 

original determination of moderate negligence had not been appealed, and had become law of the 

case. PDR at 3 (citing Manalapan Mining Co., 36 FMSHRC 849, 852-54 (Apr. 2014)). The 

parties represent that a total penalty of $35,000, rather than the $50,000 ordered by the Judge, is 

appropriate based upon the Judge’s original conclusion that Oak Grove was moderately 

negligent. 

38 FMSHRC Page 1287
The parties’ joint request for approval of settlement is granted. We determine that the 

parties have justified that a reduction of the penalty is appropriate considering the Judge’s 

original finding that Oak Grove was moderately negligent. See 30 U.S.C. § 820(i) (“In 

assessing civil monetary penalties, the Commission shall consider . . . whether the operator was 

negligent . . .”). Oak Grove is ordered to pay the civil penalty of $35,000 within 30 days of the 

issuance of this order. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 1288
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

June 8, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) Docket Nos. WEST 2013-827-RM 

 WEST 2013-828-RM 

v. WEST 2013-829-RM 

WEST 2013-1009-M 

KNIFE RIVER CONSTRUCTION 

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

DECISION

BY: Jordan, Chairman; Cohen and Nakamura, Commissioners 

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

30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), involve an imminent danger order issued 

pursuant to section 107(a) of the Act1 by the Secretary of Labor’s Mine Safety and Health 

Administration (“MSHA”) to Knife River Construction. The order required a scraper that was in 

operation to be immediately removed from service. 

Knife River contested the order before a Commission Administrative Law Judge. The 

Judge affirmed the order. Knife River then filed a petition for discretionary review with the 

Commission, which we granted. 

For the reasons that follow, we conclude that substantial evidence supports the Judge’s 

decision to affirm the order because the inspector reasonably believed that the continued 

operation of the scraper represented an imminent danger to miner safety. Accordingly, we affirm 

the decision of the Judge. 

I. 

Factual and Procedural Background 

In May 2013, MSHA inspector Bryan Chaix arrived at Knife River Construction’s 

Vernalis Plant to begin a regular inspection. The Vernalis Plant is a sand and gravel mine located 

in California. 

1

 Section 107(a) of the Mine Act, 30 U.S.C. § 817(a), provides an MSHA inspector with 

the authority to order the withdrawal of miners if he observes a condition or practice that he 

reasonably believes represents an imminent danger to miner safety or health. 

38 FMSHRC Page 1289
Chaix was accompanied on his inspection by two representatives of Knife River: the 

foreman, George Muraoka, and the safety manager, Kevin Smudrick. Chaix observed a scraper 

that was in the process of moving clay material to the waste dump.1

 He stopped the vehicle for 

an inspection. Inspector Chaix asked the operator to demonstrate that the vehicle was capable of 

stopping and holding on a grade while it was carrying a load. The operator gathered a full load of 

material (approximately 70,000 pounds) and began to descend a steeply graded access road at a 

slow speed.Inspector Chaix and Smudrick followed on foot. 

The scraper failed to come to a stop on the graded portion of the road. It stopped briefly 

after it reached the bottom, however, and then continued to travel toward the waste dump. 

As the scraper drove away, Chaix issued an oral order pursuant to section 107(a) of the 

Mine Act that the vehicle be immediately stopped and removed from service. The written order 

was issued shortly thereafter and stated in relevant part: 

[A scraper] did not stop on a grade when tested. The equipment 

was in service at the time of inspection, handling both raw feed 

and waste. The grade on which it was tested measured 

approximately 12-14%. 

Gov. Ex. 1. 

The inspector also issued a citation pursuant to section 104(a) of the Mine Act, 30 U.S.C. 

§ 814(a), for a violation of the mandatory safety standard at 30 C.F.R. § 56.14101(a)(1), which

provides that “[s]elf-propelled mobile equipment shall be equipped with a service brake system

capable of stopping and holding the equipment with its typical load on the maximum grade it

travels.” The citation stated that the violation was “significant and substantial” (“S&S”).2 After

the issuance of the citation, a mechanic traveled out to the scraper and fixed the brakes on site.

Knife River contested the citation and the order before a Commission Administrative 

Law Judge. The Judge affirmed the section 107(a) order, concluding that the Secretary 

demonstrated that the inspector reasonably believed that the continued operation of the scraper 

represented an imminent danger to miner safety. 36 FMSHRC 2176, 2178-79 (Aug. 2014) 

(ALJ). The Judge concluded that the inspector acted within his discretion to issue the order based 

on the facts known and available to him at the time. Id. The Judge also affirmed the associated 

citation that alleged a violation of the mandatory safety standard at 30 C.F.R. § 56.14101(a)(1), 

but deleted the citation’s S&S designation. Id. at 2180. 

1

 A “scraper” is a “digging, hauling, and grading machine having a cutting edge, a 

carrying bowl, a movable front wall (apron), and dumping or ejecting mechanism.” Am. 

Geological Institute, Dictionary of Mining, Mineral, and Related Terms 485 (2d ed. 1997). 

2

 The S&S terminology is taken from section 104(d)(1) of the Act, which distinguishes as 

more serious any violation that “could significantly and substantially contribute to the cause and 

effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d)(1). 

38 FMSHRC Page 1290
Knife River petitioned for review of the Judge’s decision to affirm the section 107(a) 

order, but did not seek review of the section 104(a) citation. The Commission granted the 

petition. 

On review, Knife River argues that the Judge erred in finding that the Secretary 

demonstrated that the inspector reasonably believed that the defective brakes on the scraper 

constituted an imminent danger. Knife River also argues that the Judge’s decision to affirm the 

section 107(a) order contradicts, and is otherwise incompatible with, his conclusion that the 

violation of the mandatory standard was not S&S. 

II. 

Disposition 

Section 107(a) of the Mine Act provides that if an MSHA inspector “finds that an 

imminent danger exists, [the inspector] shall . . . issue an order requiring the operator of such 

mine to cause all persons . . . to be withdrawn from” the relevant area until the danger no longer 

exists. 30 U.S.C. § 817(a). Section 3(j) of the Act defines an “imminent danger” as a condition 

“which could reasonably be expected to cause death or serious physical harm before such 

condition or practice can be abated.” 30 U.S.C. § 802(j). 

An inspector’s issuance of a section 107(a) order is reviewed under an “abuse of 

discretion” standard. Island Creek Coal Co., 15 FMSHRC 339, 345-46 (Mar. 1993). The order 

will be upheld if the Secretary proves by a preponderance of the evidence that the inspector 

reasonably concluded, based on information that was known or reasonably available to him at 

the time the order was issued, that an imminent danger existed. Id. at 346. The Commission has 

explained that a Judge is not required to accept an inspector’s subjective perception that an 

imminent danger existed but, rather, must evaluate whether it was objectively reasonable for the 

inspector to conclude that an imminent danger existed. Id. We review the Judge’s determination 

of whether the inspector abused his discretion under a substantial evidence standard. See, e.g., 

Connolly-Pacific Co., 36 FMSHRC 1549, 1555 (June 2014). 

While the danger justifying an imminent danger order need not be immediate, the danger 

must be such as to require the immediate withdrawal of miners because it could reasonably be 

expected to cause death or serious harm before the danger can be abated. Freeman Coal Mining 

Co. v. Interior Bd. of Mine Operations Appeals, 504 F.2d 741, 743-45 (7th Cir. 1974); see also 

Connolly- Pacific, 36 FMSHRC at 1555 (citing Cumberland Coal Res., LP, 28 FMSHRC 545, 

555 (Aug. 2006), aff’d, 515 F.3d 247 (3d Cir. 2008)); Blue Bayou Sand and Gravel, Inc., 18 

FMSHRC 853, 858 (June 1996). In addition to the withdrawal of miners, an issuing inspector 

may also require that dangerous equipment be immediately removed from service. See Utah 

Power and Light Co., 13 FMSHRC 1617, 1619 (Oct. 1991). 

The Mine Act’s legislative history reflects Congress’s view that “the authority under 

[section 107(a)] is essential to the protection of miners and should be construed expansively by 

inspectors and the Commission.” S. Rep. No. 95-181, at 38 (1977), reprinted in Senate 

Subcomm. On Labor, On Human Res., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 626 (1978). 

38 FMSHRC Page 1291
A. Substantial evidence supports the Judge’s decision that the inspector acted

within his discretion when he issued the order pursuant to section 107(a).

The Judge affirmed the section 107(a) order, specifically noting that it was issued 

immediately after the inspector observed the scraper fail to stop on a steep grade while carrying a 

heavy load. 36 FMSHRC at 2178. Accordingly, the Judge concluded that the inspector did not 

abuse his discretion. Id. The Judge correctly limited his analysis to whether the inspector’s belief 

was reasonable at the precise time he issued the order. See Jim Walter Res., Inc., 37 FMSHRC 

1968, 1971-72 (Sept. 2015); see also Wyoming Fuel Co., 14 FMSHRC 1282, 1292 (Aug. 1992) 

(“the appropriate focus is on whether the inspector abused his discretion when he issued the 

imminent danger order.”). 

We conclude that the Judge’s decision – that the inspector reasonably believed that the 

scraper operator risked serious physical harm by continuing to drive to the waste dump – is 

supported by substantial evidence in the record.3 

At the time he issued the oral order, the inspector was aware that the scraper was carrying 

a full 70,000 pound load. Tr. 146, 155. The inspector had just witnessed that the scraper was not 

able to stop on a grade. Tr. 41. Despite the defective brakes, the scraper continued to travel 

toward the waste dump4, an area of the mine with multiple grades.5 Tr. 43-45. In addition, the 

inspector was aware that an embankment was under construction at the waste dump. Tr. 34, 40. 

The inspector testified that his primary concern was that the scraper would depart that 

embankment because it was traveling to the dump site without fully functioning brakes. Tr. 39, 

41 (“Primarily my concern [was] about departing the embankment.”).6 The operator’s 

3

 “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as 

adequate to support [the judge’s] conclusion.’” Rochester & Pittsburgh Coal Co., 11 FMSHRC 

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

4

 Knife River’s safety manager Kevin Smudrick, testified that the scraper exited the 

graded road, stopped on level ground, and then “took off again.” Tr. 175-76. Smudrick also 

stated that the inspector asked him where the scraper was going and that Smudrick responded: 

“[w]ell, evidently, you know, he doesn’t see us walking down. He’s probably going to go dump 

his load and come back up to the top.” Id. 

5

 The dissent suggests that the inspector’s testimony that the area contained “multiple 

grades” is insufficient. See slip op. at 16. Notably however, Knife River did not challenge the 

inspector’s characterization of the area surrounding the dumpsite in its Post-Hearing Brief, nor 

did any of its three witnesses provide alternative evidence. Accordingly, the inspector’s 

testimony was not contradicted. 

6

 Our dissenting colleagues ignore the issuing inspector’s testimony. Instead, without 

citing any evidence, they independently conclude that there was no possibility that a scraper with 

inadequate brakes could depart the embankment. 

38 FMSHRC Page 1292
representatives were not able to stop the driver nor communicate the order to him as they did not 

have their radios at that moment. 7 Tr. 42, 84-86, 177. 

Inspector Chaix understood that although there were alternative methods available to 

abruptly stop the vehicle, such as the emergency brake or lowering the cutting tool, using either 

method would put the driver at risk for injury. Tr. 49-50. The inspector succinctly explained why 

he believed this was an imminent danger, stating “[t]hat’s a big piece of equipment and . . . some 

pretty big distances and some steep grades involved. It’s the kind of thing that gets people 

killed.” Tr. 44. When asked who he expected to be injured by this condition, he responded, 

“[p]rimarily the equipment operator themselves, but anybody else nearby in the traffic pattern of 

the scraper.” Tr. 44. 

We conclude that the testimony above supports the Judge’s conclusion that the inspector 

reasonably believed that an imminent danger existed.8 Accordingly, we affirm the Judge’s 

conclusion that the inspector did not abuse his discretion in issuing the section 107(a) order.9 

7

 Our dissenting colleagues conclude that because the scraper’s brakes were tested at a 

low speed and because the scraper eventually came to a stop on level ground, the inspector could 

not have reasonably believed that its driver was in any serious danger during the test. See slip op. 

at 9-10. Their analysis is flawed as it entirely ignores context; the order was issued as the scraper 

drove away from the inspector toward the dumpsite after demonstrating that its brakes were 

defective. Hence, the inspector’s inquiry as to whether an imminent danger existed was not 

confined to the testing conditions (involving a slow-moving truck on a grade with barricades), 

but also properly took into account the fact that after leaving the grade, the truck would travel at 

a faster speed in locations where it would not be protected from overtravel by barriers. Tr. 39-41. 

Our colleagues also ask (somewhat ironically): “why did the inspector not ensure that the 

scraper remained at the bottom of the grade once it stopped, instead of allowing [it] to continue 

traveling through the mine with defective brakes?” Slip op. at 11. Of course, the answer is that he 

did do something; the inspector ordered the representatives of the operator to stop the driver 

immediately, pursuant to the authority provided by section 107(a) of the Mine Act. The 

representatives of the operator simply failed to halt the driver as they did not have their radios 

available at the time the order was issued. 

8

 We note that no one disputes the outcome of the imminent danger order (that the scraper 

be removed from service) and that the scraper operator, unaware of the imminent danger order, 

parked the scraper and removed it from service for repairs. KR Reply Br. at 9. 

9

 We are troubled by the dissent’s contention that “[h]ere, there is also a real question of 

whether an abuse of discretion may be found where an inspector issues an imminent danger 

order but does nothing to prevent the continued operation of the subject machinery.” Slip op. at 

8. This statement appears to suggest that no inspector should issue an imminent danger order

without first trying to singlehandedly abate the potential danger, and that the Secretary must put

on evidence of such efforts in order to sustain an imminent danger order, a contention we

categorically reject. The issuance of an imminent danger order is the tool a mine inspector uses

to withdraw miners from danger.

38 FMSHRC Page 1293
B. The Judge’s conclusions with respect to the section 107(a) order and his 

conclusions with respect to the S&S designation on the section 104(a) citation are 

not irreconcilable. 

Knife River also argues that the Judge’s ruling on the imminent danger order should be 

overturned because it is allegedly inconsistent with his ruling that the related citation was not 

S&S. We disagree. 

The Secretary did not petition for review of the deletion of the S&S designation from the 

citation issued pursuant to section 104(a), and accordingly the Judge’s conclusions regarding the 

citation are not before the Commission. Therefore, we take no position on the legality of his 

findings regarding the S&S designation.10 However, we observe that the Judge’s ruling on the 

imminent danger order and his ruling on the S&S designation in the citation involve different 

evidentiary considerations. 

It is well-established that an inspector has the discretion to issue a section 107(a) order if 

he reasonably believes there is an imminent danger, even if the imminent danger at issue does 

not violate a mandatory safety standard. See Utah Power & Light, 13 FMSHRC at 1622. In 

evaluating the issuance of the order, a Judge necessarily considers the evidence from an 

objectively reasonable inspector’s perspective at the time of issuance. The key question is 

whether the inspector abused his discretion. 

In contrast, violations of mandatory safety standards must be proven by the Secretary by 

a preponderance of the evidence at a hearing before a Commission Judge. See Garden Creek 

Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989). The Judge considers the evidence of the 

violation de novo; he does not view the evidence from the inspector’s perspective. The key 

question is whether the Secretary satisfied his burden of proof. 

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

exists a reasonable likelihood that the hazard contributed to by the violation will result in an 

injury or illness of a reasonably serious nature. See Cement Div., Nat'l Gypsum Co., 3 FMSHRC 

822, 825 (Apr. 1981). In Mathies Coal Co., the Commission further explained: 

In order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the 

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

mandatory 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) (footnote omitted); 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) (approving Mathies criteria). 

38 FMSHRC Page 1294
With respect to the citation issued to Knife River for inadequate brakes, the Judge 

credited the testimony of Kevin Farewell, the scraper operator, who stated that even if the brake 

did not bring the scraper to a stop on the grade, he was able to rely on the engine retarder to 

remain in control of the vehicle. See 36 FMSHRC at 2180; Tr. 148, 161. After considering 

Farewell’s testimony, the Judge deleted the S&S designation. Even assuming arguendo that the 

Judge’s action was appropriate, it would not preclude a finding that the inspector, upon 

observing the driver’s inability to bring the scraper to a stop on grade, could reasonably believe 

such failure amounted to an imminent danger. 

Because the Judge’s conclusions were made after appropriately using different standards 

of review, we hold that his conclusions are not irreconcilable. 

III. 

Conclusion 

For the foregoing reasons, we conclude that the Judge’s decision is supported by 

substantial evidence in the record, and, therefore, we affirm it. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

38 FMSHRC Page 1295
Commissioners Young and Althen, dissenting: 

The majority summarily affirms the decision below sustaining an imminent danger order. 

However, a full and fair exposition of the record demonstrates that substantial evidence does not 

support an objectively reasonable basis for the inspector to have reasonably expected a death or 

serious injury before abatement. Inspectors must act quickly when they see an imminent danger, 

but the evidence in this case does not come close to providing an objectively reasonable basis for 

issuance of an imminent danger order. For that reason, we respectfully dissent. 

DISCUSSION 

An imminent danger is “the existence of any condition or practice in a coal or other mine 

which could reasonably be expected to cause death or serious physical harm before such 

condition or practice can be abated.” 30 U.S.C. § 802(j). Unquestionably, inspectors must have a 

substantial amount of authority to issue imminent danger orders and we must uphold orders 

unless we conclude that inspector abused his discretion. Old Ben Coal Corp. v. Interior Bd. of 

Mine Operations Appeals, 523 F.2d 25, 31 (7th Cir. 1975); Rochester & Pittsburgh Coal Co., 11 

FMSHRC 2159, 2164 (Nov. 1989). Here, there is also a real question of whether an abuse of 

discretion may be found where an inspector issues an imminent danger order but does nothing to 

prevent the continued operation of the subject machinery. This inaction is untenable where an 

inspector holds a reasonable belief that death or serious injury would reasonably result if the 

activity at issue did not immediately cease. 

Four factors comprise the existence of an imminent danger. These are, (1) a condition or 

practice in a mine (2) that could reasonably be expected to cause (3) death or serious physical 

harm (4) before such condition or practice can be abated. The Commission has rejected any 

notion that a judge or the Commission must accept the subjective perception of an inspector. 

Instead, we are to review the facts determining instead “whether it was objectively reasonable for 

the inspector to conclude that an imminent danger existed.” Mill Branch Coal Corp., 37

FMSHRC 1383, 1389 (July 2015) (citing Island Creek Coal Co., 15 FMSHRC 339, 346 (Mar. 

1993)). The inspector here did not even evince a subjective belief in an imminent danger. 

Therefore, it is impossible for the inspector’s belief to be found objectively reasonable if we 

review the Judge’s determination looking at the objective facts presented at the hearing. See, 

e.g., Connolly-Pacific Co., 36 FMSHRC 1549, 1555 (June 2014).1

1

 The Commission requires that an inspector make a reasonable investigation that permits 

the Judge and Commission to determine whether the facts known to him, or reasonably available 

to him, support the issuance of the imminent danger. Island Creek, 15 FMSHRC at 346 (citing 

Wyoming Fuel Co., 14 FMSHRC 1282, 1292 (Aug. 1992)). That element does not particularly 

come into play in this case. This case boils down to whether the inspector acted in an objectively 

reasonable manner by issuing and maintaining an imminent danger order when he observed a 

scraper creep down a grade at two miles-per-hour and come to a complete stop at the bottom of 

the grade. 

38 FMSHRC Page 1296
 In Utah Power & Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991), the Commission 

observed that, if any hazard that has the potential to cause a serious injury qualifies as an 

imminent danger, the distinction between an imminent danger and a significant and substantial 

violation is lost. The outcome-determinative difference is that, for an imminent danger, the 

expectation must be for serious injury or death “before the condition or practice can be abated.” 

The objective facts presented at the hearing must provide substantial evidence in support of the

inspector’s determination.2

 

 The majority correctly but only partially defines substantial evidence in its opinion. See

slip op. at 4 n.4. Importantly, in assessing whether a finding is supported by substantial evidence, 

the record as a whole must be considered including evidence in the record that “fairly detracts” 

from the finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). The record in this 

case, when fully reviewed, contains overwhelming evidence detracting from the imminent 

danger finding. In particular, the Judge failed to take into account his own findings that establish 

a slow (two mph) rate of speed, the ability of its operator to use other means besides the brakes 

to stop the scraper at any time, the absence of any other persons who might have been injured 

during the event, the impossibility of overtravel on the enclosed grade, the protective measures 

shielding the operator from hazards arising from a low-speed collision, and the inspector’s own 

inconsistent testimony in the face of all of these facts. 

 Among the detracting evidence, the inspector eventually concedes that, with the scraper 

moving at two mph, he knew, or should have known, that the scraper operator could have 

stopped almost immediately at any time and at the operator’s discretion, including during the 

descent down the grade. Tr. 49. Having made that telling admission, the inspector does not 

provide any evidence to support a finding that such stopping would be expected to cause serious 

injury or death. Indeed, the evidence confirms that the section 104(a) citation issued for the 

defective brakes would have resulted in abatement just as quickly and as efficiently as the 

section 107(a) order. Moreover, these errors are only a portion of the detracting evidence that we 

now review. 

 It is uncontested that the maximum speed of the scraper throughout its descent was 

approximately two miles per hour. Tr. 155, 167. As explained by the scraper operator, Mr. 

Farwell, the scraper was equipped with a “retarder” that slows the transmission and engine 

thereby slowing the rate of descent, to guard against a runaway. Tr. 148, 156. The retarder 

automatically engages at speeds greater than two to three miles per hour. In this case, the scraper 

was moving so slowly that the retarder did not even engage. Tr. 156. The scraper operator 

explained that he never was in any danger, (Tr. 155), and, had he felt any danger, he with 

certainty could have stopped the scraper virtually immediately (from its two mph speed) by 

lowering the cutting tool. Tr. 148. More importantly for our review of the inspector’s order, the 

inspector’s testimony, though inconsistent, shows that the inspector himself realized that the 

scraper was not out of control and had come to a complete stop at the bottom of the grade. 

 Prior to the inspection on the date of the imminent danger order, the scraper operator had 

been working in a relatively flat area of the mine, Tr. 153, and the scraper’s brakes were fully 

 2

 Here, the Judge determined the violation was not significant and substantial. 

38 FMSHRC Page 1297
operational. Tr. 154. The inspector asked the scraper operator how the operator wanted to 

demonstrate the brakes were working. The operator himself responded that he was heading to a 

new work area and the inspector could watch his performance in that new area. The inspector 

agreed. Tr. 34.3

 The inspector testified that no equipment or people were down the grade from where the 

brake test occurred. Tr. 74. Thus, at the suggestion of the scraper operator, the inspection 

occurred on the first run by the scraper, fully loaded, down a new and steep grade. Tr. 154-55. 

From this point, the record demonstrates conclusively that an imminent danger did not exist as 

the scraper crawled down the slope at two mph with the operator able to stop it at any moment.4

 First, the inspector’s testimony was inconsistent in critical areas related to his actions. On 

direct examination, the inspector testified he could not recall whether he saw the scraper stop at 

the bottom of the grade. He testified that it continued its loop back to the work place from which 

it started downhill. Tr. 38. The inspector testified that the reason he could not recall if the scraper 

stopped was because he “was engaged in a discussion with agents of the operator at that time.” 

Tr. 38. If this testimony were correct, then the inspector did not watch the scraper complete its 

descent down the grade. 

 This questionable and unreliable testimony contrasts sharply with Knife River’s case, 

wherein all of its witnesses, including the scraper operator, testified that the scraper completely 

stopped at the bottom of the grade when it reached the flat area. After that testimony, the 

Secretary recalled the inspector. The inspector then testified that he had started walking toward 

the bottom of the grade but turned around because the scraper was “way out ahead of me, and [it] 

kept going after reaching the bottom of the grade.” Tr. 205. This testimony varies from his 

earlier testimony that he was talking to Knife River’s employees so he did not see what 

 3

 During his testimony, the inspector seemed to emphasize that the scraper operator had 

not tested the brakes on that specific grade before the inspector observed him. However, the 

inspector acknowledged that the scraper operator had told him that the operator had tested the 

brakes at the start of his shift and they were working fine where he was then operating the 

scraper. Tr. 48, 154. The inspector also testified that: (1) the scraper operator told him that he 

was going to start working a new area; (2) the scraper operator himself suggested that grade as 

the appropriate place for a test; and (3) the appropriate method of testing is for a fully loaded 

scraper to travel the grade and attempt to stop. Tr. 33-34. Because this was the first run of the 

day on that area, the absence of a prior “test” of the brakes in that area with a full load before the 

inspector watched is a meaningless distraction. 

4

 The inspector’s testimony demonstrates that he had little understanding of how a 

scraper operates. The inspector did not know about, or at least did not identify, the important 

safety assistance provided by the equipment’s “retarder.” The retarder slows the transmission 

and engine. Tr. 148. The retarder works automatically if the scraper exceeds three mph. In this 

case, the retarder did not come into play because the scraper never reached a speed at which it 

would automatically operate. The inspector either did not know or, at least, did not testify that he 

was aware that the retarder works as an auxiliary braking system on the scraper. 

38 FMSHRC Page 1298
happened, but it is generally consistent with his earlier testimony that he did not see the scraper 

stop. 

After the Secretary completed his case, however, the Judge asked the inspector whether 

the scraper stopped at the bottom of the grade and the inspector had a change of heart, mind, or 

memory and equivocally testified, “[y]ou know, I think it might have stopped briefly.” Then, the 

Judge honed in and directly asked, “[b]ut he did stop? He was able to stop on flat ground?” The 

inspector finally remembered clearly and responded with a simple “yes.” Tr. 208. The inspector 

actually knew the scraper had stopped completely when it reached the bottom of the grade. This 

fact raises an obvious question not accounted for by the Judge or the majority: why did the 

inspector not ensure that the scraper remained at the bottom of the grade once it stopped, instead 

of allowing the purported menace to continue traveling through the mine with defective brakes? 

From this testimony, inconsistent and changing as it was, we see that the inspector, 

though at first denying the knowledge, actually knew that the scraper stopped promptly and 

properly while still carrying the 70,000 pound load that it would soon drop as it took the 2 to 3 

minute trip back to the starting point.5

 It is uncontested that the scraper returned to the top of the 

grade in a matter of 2 to 3 minutes, and the inspector knew it was completing a loop and 

returning to the top of the ramp. This means that the scraper could have continued carrying the 

70,000 pounds for only a very brief period in the open drop area depicted in photographs entered 

into the record by MSHA before dropping the load and returning to the top of the ramp. The 

majority makes no effort to explain why, during the very brief period, the operator could not 

have used the same techniques that the majority does not contest could have been used to quickly 

stop the scraper on the 14% grade. 

The majority does not deal with the inspector’s inconsistent testimony and, therefore, 

does not account for the fact that the inspector grudgingly and only with a judicial push admitted 

he had seen the scraper come to a complete stop at the bottom of the steep grade. Further, the 

evidence is clear that the scraper’s job was to move material from the top of the grade to the flat 

area at the bottom and then return to the top of the grade. The inspector himself testified that the 

scraper would continue its loop upward to the top of the grade, (Tr. 38, 54), — a process that 

took only a couple of minutes. Tr. 116. 

Second, uncontested facts contradict the inspector’s assertion of danger. The inspector 

stated his primary concern was the safety of the scraper operator and when the Secretary’s 

counsel asked the inspector about any danger to the scraper operator, the inspector responded 

that he was concerned that he might “over-travel the roadway.” Tr. 38-39. That testimony is 

obviously incorrect; indeed, it is incredible. Operator witnesses and photographs of the site 

5

 The majority asserts the ground was level when the scraper stopped; no testimony 

supports that assertion. However, if the ground was level, or if the grade had diminished only 

minimally but the scraper was able to stop, as the record establishes it did, there is no reasonable 

explanation for the inspector’s failure to have the scraper remain at its stopping point in the face 

of what he asserts was an imminent danger arising from its continued operation. 

38 FMSHRC Page 1299
demonstrate that there were significant barriers on each side of the roadway. Mr. Farwell, the 

scraper operator, testified that overtraveling the roadway was not possible: 

I had a 30-foot wall on one side and about 100-foot wall on the

other side. At the very bottom, I've still got the 100-foot wall, and 

I've got a berm that is mid-axel height on the -- on the scraper. So I 

-- I had no problems. 

Tr. 157. 

 The inspector’s testimony that the scraper could have dangerously left the roadway is 

objectively and tellingly wrong. Either the inspector did not recognize the physical conditions at 

the site or, despite his testimony, he could not actually have had concerns of overtraveling the 

roadway. Indeed, Mr. Farwell graphically explained the virtual walls on the sides of the roadway, 

the area to which he was heading, the speed of the scraper, and the braking mechanisms. All this 

led to Mr. Farwell’s testimony that he never was in any danger and never considered stopping 

the scraper although he could have at any moment. Tr. 155-60.6 

 Further, the inspector did not testify from the photographs or otherwise how the scraper 

operator could have overtraveled the dumpsite.7 He did not point to any dangerous 

“embankment” that the operator could overtravel. Further, as noted above, the inspector 

eventually acknowledged that the scraper came to a complete stop at the bottom of the grade. 

 Third, when the Secretary’s counsel asked if there was a way of stopping the scraper 

other than the brake system, the inspector first testified, “I guess you could run into something 

. . . .” Tr. 49. We must attribute this remarkable statement to the inspector’s lack of any objective 

knowledge regarding the operation of a scraper. Mr. Farwell, the scraper operator, testified quite 

clearly that you can slow and stop a scraper without “running into something,” (Tr. 148), and 

eventually the inspector agreed he also knew that the scraper could have stopped immediately. 

Tr. 49-50. 

 This acknowledgment alone should have been fatal to any pretense of appropriate 

concern and discretion, especially after the inspector’s ludicrous testimony about “running into 

something.” The inspector, in fact, testified that he knew that, relying upon the parking brake or 

emergency brake, the scraper operator actually could stop the scraper immediately through 

means other than the brakes if danger arose. Tr. 50. Regardless of the inspector’s overall 

 6

 Of course, a miner may not perceive the danger. In this case, however, the inspector 

testified that the scraper operator was his primary concern. Tr. 44-45. Therefore, the scraper 

operator’s testimony is important because he identifies many objective reasons that were, or 

should have been, known by the inspector, thus showing any alleged concern for the operator 

was wholly and objectively misplaced. 

7

 A scraper drops its load by opening doors underneath the scraper so the loaded material 

falls directly below it. Tr. 146. The equipment does not lift a bed to dump material. 

 

38 FMSHRC Page 1300
unfamiliarity with a scraper, he knew the operator could stop the scraper immediately. That 

recognition demolishes the need for an imminent danger order. 

The inspector’s recognition that the scraper operator could easily have stopped the 

scraper in case of any perceived danger creates an insoluble and undiscussed conundrum for the 

majority. If the inspector knew, or should have known, that the scraper operator could stop the 

scraper virtually immediately to avoid any danger from continuing movement, then there can be 

no reasonable expectation of serious injury or death. 

Despite this, the majority endorses the inspector’s literally incredible, unreasonable 

belief, without any assertion of expertise or reasoning, that stopping from two mph could 

reasonably be expected to seriously injure or kill the scraper operator, who was wearing a 

seatbelt inside the cab.8 Tr. 50. Aside from the inspector’s testimony that is unsupported, nonexpert, and clearly runs counter to the human experience of equipment drivers, the Secretary 

presented absolutely no evidence of how a stop from a speed of two mph could reasonably be 

expected to seriously injure a driver wearing a seatbelt.9 Without any evidence, it is impossible 

for the Secretary to overcome the obvious and commonsense understanding that seat-belted 

drivers are completely uninjured, let alone not seriously or fatally injured, when stopping their 

vehicles traveling at two mph. 

Fourth, under the facts of this case, the inspector’s issuance of the section 104(a) order 

clearly precludes any reasonable basis for issuance of an imminent danger order. Upon observing 

defective brakes in operation, it was entirely proper for the inspector to issue a section 104(a) 

citation and to order immediate abatement. He took that action. Having received such a citation, 

it was incumbent upon Respondent to cause the scraper to stop and to remove it from service 

until completion of brake repair. In this case, it had a duty to take that action as quickly under the 

104(a) citation as under the imminent danger order. Knife River took that action. That being so, 

there is no basis to find that the brakes that slowed the scraper to two mph under extremely high 

stress would be reasonably expected to cause a fatality or serious injury before the citation could 

be abated. In other words, with the issuance of the 104(a) citation, there was no basis to find an 

objectively reasonable expectation of death or injury before abatement. 

Fifth, we must again note — and in fact cannot stress enough — that the inspector’s 

actions belie any notion of an imminent danger. Having seen the scraper completely stop at the 

bottom of the hill and then continue, there is no evidence that the inspector took or ordered 

emergency action to try to get in touch with the driver. There would be no excuse for such 

inaction if the inspector actually thought the driver was in imminent danger of death or serious 

injury. The inspector himself testified that the operator’s representatives were only a few yards 

away from the truck where they had left their radios. Tr. at 85. While the majority suggests we 

8

 The inspector testified that he knew the driver was wearing a seatbelt. Tr. 76. 

9

 It should be noted that the scraper, a fairly-long piece of equipment, was in an enclosed 

roadbed and thus could not logically have even encountered the walls containing its travel headon. It seems even less likely that any serious consequences could fall upon the driver from an 

oblique low-speed collision. 

38 FMSHRC Page 1301
believe the inspector should have “[tried] first to singlehandedly abate the potential danger,” slip 

op. at 6 n.10, nothing in the record explains why he did not order the operator’s representatives 

to run to retrieve their radios and order the scraper to stop immediately, if he believed an 

imminent danger existed. 

The imminent danger provision in section 107(a) exists for one purpose: to prevent 

serious injuries or loss of life by empowering an inspector to order immediate withdrawal and 

cessation of mining activity until the danger no longer exists. An inspector who fails to follow 

through under such circumstances is either derelict or does not believe that an imminent danger 

truly exists, because a reasonable person would never permit the continuation of the activity 

giving rise to the danger. Whether the inspector should have single-handedly sought to abate the 

violation is immaterial: it is beyond argument that the Act conferred on him the power — and the 

duty — to take the steps necessary to protect miners from the immediate risk of serious injury or 

death, if such danger reasonably appeared to exist. It is also beyond argument that the inspector 

not only failed to take any immediate action, he let the scraper continue its loop through the 

mine. 

Here again the majority stumbles over inconvenient facts. If the inspector was truly 

concerned about the scraper imperiling its operator at the site of the embankment, there can 

certainly be no argument whatsoever that the inspector should have used whatever time was 

available — as the machinery ponderously made its way to the dump site — to ensure the 

equipment was stopped and removed from service at once so that the danger could be abated. 

Thus, the majority entirely ignores the immediacy component essential to the issuance and 

enforcement of imminent danger orders. 

Of course, as noted above, the inspector actually knew the driver was returning upgrade 

to the top of the slope and so waited at the top of the grade for the driver to return, i.e., he took 

no action at all despite his purported belief that the scraper operator was in mortal peril. Such 

action, or rather inaction, is wholly inconsistent with a finding of an imminent danger of death or 

serious injury to the driver. 

38 FMSHRC Page 1302
Finally, in an effort to support an unsustainable decision, the majority turns to incorrectly 

characterizing the testimony and imagining areas and events not supported by any evidence. The 

testimony could not be clearer that the inspector decided to issue the imminent danger order 

when and because he observed the scraper crawling down the ramp at two mph.10 

As the testimony turned out, it became clear that movement down the 14% grade at two 

mph did not present an imminent danger. By focusing on the two or three minute trip after the 

scraper stopped, the majority effectively concedes that the condition for which the inspector 

issued the order, the scraper crawling down the grade at two mph and capable of stopping at any 

moment, did not constitute an imminent danger. 

Rather than vacating the unwarranted order, the majority attempts to shift the focus away 

from the reason for which the inspector issued the order — the controlled descent down the 

ramp. To do so, they create a rationale for which there is no evidence. Not only does the 

evidence show the order was issued for the passage down the ramp, but also there is no 

meaningful testimony or other evidence to support an imminent danger when the scraper 

resumed travel after stopping at the bottom of the ramp. 

Every witness testified that the scraper came to a complete stop at the bottom of the 

ramp. Indeed, the inspector, albeit after initially refusing to admit it, saw this complete stop. 

Further, the inspector also testified that he knew the scraper would then complete an upgrade 

“loop” to the top of the grade from where he departed — a loop that took all of 1.5 to 3 minutes. 

Tr. 39, 42, 159. Thus, the inspector knew from his personal observation both that the scraper 

stopped even when it was transporting a 70,000 pound load at the bottom of the grade. He further 

knew the operator would drop the load and return to the top of the grade within a couple of 

minutes. 

10 Q. Inspector, I'd like to start with the order numbered 8699159

behind GX1 [imminent danger order]. Why did you issue this

order?

A. I issued this order when I observed a scraper unable to stop on a

grade.

Tr. 30. 

Q. When the service brakes didn't stop the scraper on the ramp,

what did you do?

A. I turned to the agents of the operator and explained that if I was

seeing what I thought I was seeing -- in other words, a scraper not

stopping on a grade -- that was clearly an eminent [sic] dangertype situation and that they needed to get that piece of equipment

stopped immediately and remove it from service so that the

condition could be corrected to protect people.

Tr. 41. 

38 FMSHRC Page 1303
 To build its theory for an imminent danger order, the majority cites a passage in the 

transcript where the inspector testified that an embankment was under construction. Slip op. at 4 

(citing Tr. 34). The majority does not take into account the fact that the embankment was under 

construction.11 Embankments are not built from the top to the bottom. The scraper was 

transporting material to build the embankment or to provide a base for its construction. There is 

no possibility that the scraper could overtravel an embankment when it was transporting material 

to build the embankment, and the inspector did not offer any such testimony. The majority notes 

the inspector testified that the scraper could “depart” the embankment. It is impossible to fathom 

the meaning of that statement. If the inspector simply means the scraper would leave the area to 

which it was bringing material for construction then it is nothing more than saying he knew the 

scraper would continue its two-minute loop to the starting point. If it is expressing some sort of 

concern about overtraveling an embankment, then it is simply a demonstration that the inspector 

failed to grasp that the material was being used to build the embankment so the scraper was not 

in any danger of falling from an embankment. This error, however, is only the beginning of the 

fatal flaws in the majority’s effort to save the order.12

 In one passage the inspector, while focusing on the ramp, mentions “multiple grades.” He 

said, “[t]he equipment’s in operation in that condition; the equipment’s on a grade not stopping -- 

not able to stop in an area with multiple grades.” Tr. 43-44. The majority attempts to use this 

passing reference for which no evidence was presented to sustain its theory. Nowhere in the 

inspector’s testimony or the exhibits is there evidence of multiple grades. Other than this passing 

reference there is no testimony by any witness about multiple grades in the area. Were any such 

grades actually present? The inspector focused only on the ramp for which he did a test to 

 11 An embankment is 

A linear structure, usually of earth or gravel, constructed so as to 

extend above the natural ground surface and designed to hold back 

water from overflowing a level tract of land, to retain water in a 

reservoir, tailings in a pond, or a stream in its channel, or to carry a 

roadway or railroad; e.g. a dike, seawall, or fill. 

Am. Geological Institute, Dictionary of Mining, Mineral, and Related Terms 186 (2d ed. 1997). 

The drop area is the place where the scraper deposits material for the floor of the impoundment 

or for use in constructing the embankment 

12 The inspector did testify to a fear that the scraper might depart the drop site. However, 

he did not provide any testimony about what that meant. Obviously, the scraper had to leave the 

drop site to return to the top of the ramp. That does not support an imminent danger. The 

inspector does not say how a scraper can overtravel a wide open area from which an 

embankment is being constructed. The majority uses scraps of testimony to support an 

unsustainable conclusion. Even assuming for argument’s sake that this was the inspector’s 

primary concern, he obviously had more time available for intervention between the issuance of 

the order and the scraper’s arrival at the embankment site. While the inspector’s testimony about 

what happened in that time is somewhat cloudy, it is clear that he did not use the time to order 

the operator to intercept the scraper on its way to the embankment site. 

38 FMSHRC Page 1304
measure the percent slope. There is no evidence of grades in the drop area or any imminent 

danger from any grades after the scraper left the 14% ramp because there is no evidence about 

any such grades. 

There are photographs in the record that show the area below the ramp and the area 

where the embankment was going to be constructed. Those photographs do not depict any 

discernable grades and, again, the inspector did not offer any testimony about the drop area such 

as the existence, size, spacing, slope, etc. of any grades. The inspector did not testify that he saw 

the drop area, knew what it looked like, or of what it consisted. His testimony was that he 

stopped watching after the scraper reached the bottom of the ramp. In any event, neither the 

inspector nor anyone else suggests that there was anything even minimally approaching the 14% 

grade of the ramp.13

There is no testimony about the speed of the scraper after it reached the bottom of the

ramp.14 There is no testimony asserting that the scraper could not have easily stopped at any 

place on its return to the start area. The majority has accepted that the scraper operator could stop 

the scraper immediately after descending a 14% ramp carrying 70,000 pounds, but then 

fabricated a proposition that it presented an imminent danger on the return to the top of the 

grade. If, as the majority essentially admits, the failure to stop when traveling with 70,000 

pounds down a 14% grade is not an imminent danger, it defies logic to suggest that an imminent 

danger existed on its return trip with the scraper empty and traveling upgrade. However, even if 

such a theory might be plausible, there is not substantial evidence in the record to support it. 

In short, there is no evidence about grades in the drop area or on the return trip, there is 

no evidence about speed, there is no evidence contending that the scraper could not stop, there is 

much evidence that it could quickly stop, and there is no evidence about the effect of such a stop. 

Indeed, the testimony shows that the scraper stopped by using brakes alone while still carrying 

the 70,000 pound load and had stopped effectively all morning in areas off the 14% ramp. 

Further, as noted, there is no testimony about any grade including the length or steepness of a 

13 The majority complains that operator witnesses did not testify about the drop area. That 

is unsurprising. As noted at the outset of our dissent, the testimony demonstrates that the 

inspector based his order on the transit down the ramp. The majority’s reliance upon a passing 

and unsupported reference to unknown “grades” in the drop area is simply part of its effort to 

reassign the issuance of the order to an area of land that clearly played no role in the inspector’s 

decision to issue the order while the scraper was on the ramp. 

14 The majority asserts the scraper would travel at faster speeds. Slip op. at 5 n.8. 

Although it is logical to think the speed would increase, the Secretary presented no evidence of 

the speed at which the scraper drops its load or that the brakes would not work at such unknown 

speed for the brief period until it dropped its load. Nor does it explain why the same measures 

that could have slowed or stopped the scraper on the ramp would not work in the drop area. They 

also assert the scraper would not be protected by overtravel barriers. Perhaps, this comes from 

their misperception of how an embankment is constructed. In fact, there is no evidence about the 

drop area (its dimensions, topography, total size, perimeter, etc.) or how it could be 

“overtraveled.” As elsewhere in its opinion, the majority does its own construction — it 

constructs theories for which there is no evidence. 

38 FMSHRC Page 1305
grade. Finally, there is no evidence that if a grade actually existed, why the same techniques 

useable on the 14% ramp would not have worked as effectively. 

Here, the majority rejects the real reason the inspector issued the imminent danger order 

but creates out of whole cloth an alternate theory for which the Secretary did not present any 

evidence. The majority is simply unwilling to overturn a clearly meritless order. 

CONCLUSION 

In closing, we affirm that an inspector should not hesitate in issuing an imminent danger 

order when he perceives a reasonable expectation of death or serious injury before a dangerous 

condition can be abated. However, in this case, the imminent danger order, without doubt, is not 

objectively reasonable. The Commission should not summarily affirm such clearly erroneous 

orders based upon inconsistent testimony and obvious post-hoc rationalizations. Here, a review 

of the record as a whole demonstrates there was no objectively reasonable basis for the issuance 

of an imminent danger order. We respectfully dissent. 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 1306
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

June 16, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) Docket Nos. LAKE 2009-410 

 LAKE 2009-412 

 v. LAKE 2009-413 

 LAKE 2009-414 

BLACK BEAUTY COAL COMPANY LAKE 2009-415 

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

DECISION

BY THE COMMISSION: 

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

U.S.C. § 801 et seq. (2012) (“Mine Act”). They involve three citations and two orders which 

were issued to Black Beauty Coal Company (“Black Beauty”) by the Department of Labor’s 

Mine Safety and Health Administration (“MSHA”). Citation No. 8414923, in relevant part, 

alleges a violation of a safeguard notice and its subsequent modification. Citation No. 8414910 

alleges a “significant and substantial” (“S&S”)1 violation of the safety standard in 30 C.F.R.§ 

75.370(a)(1), which concerns ventilation in mines. Citation No. 6680994 and Order Nos. 

8414938 and 8414939 allege three S&S violations of the safety standard in 30 C.F.R. § 75.400, 

which concerns accumulations of combustible materials in mines. The two orders also alleged 

that the violations were a result of the operator’s unwarrantable failure to comply.2

The Administrative Law Judge affirmed the citation issued for a violation of the 

safeguard notice. The Judge also affirmed the violations alleged in the other two citations and the 

two orders. However, he did not find the other citations or either order to be S&S and did not

1

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

814(d)(1), which distinguishes as more serious any violation that “could significantly and 

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

2

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

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

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

standards.” 

38 FMSHRC Page 1307
find that the orders constituted unwarrantable failures to comply. 36 FMSHRC 1821-59 (Mar. 

2014) (ALJ).3

The parties filed cross petitions for discretionary review, which we granted. 

For the reasons that follow, we affirm the Judge’s decision that Black Beauty violated 

the safeguard notice. However, we vacate and remand the Judge’s decision that the ventilation 

and accumulations violations were not S&S. We also remand the Judge’s decision that the 

violations subject to the two orders were not the result of the operator’s unwarrantable failure to 

comply with a mandatory safety standard. 

I.

Factual and Procedural Background 

A. Citation No. 8414923 - Violation of a Safeguard Notice

In May 2003, an MSHA inspector issued Black Beauty a notice to provide safeguard at

its Air Quality No. 1 Mine which stated, in relevant part: 

This is a Notice to Provide Safeguard(s) requiring a clear 

travelway at least 24 inches wide [to] be provided on both sides of 

all belt conveyors. Where roof supports are installed within 24

inches of a belt conveyor, a clear travelway of at least 24 inches is 

required on the side of such support farthest from the conveyor.

 4

Safeguard No. 7591942; Ex. G-87. 

In August 2007, an MSHA inspector issued the following modification: “[t]his is to 

modify the safeguard requiring a clear travel way of at least 24 inches along both side[s] of all 

conveyor belts. The above referenced safeguard is hereby modified to require [ ] that the 24 inch 

travel way shall be clear of mud and water.” Ex. G-87 at 3. 

In January 2009, MSHA Inspector Franklin issued Citation No. 8414923 at the Air 

Quality #1 Mine for an alleged violation of 30 C.F.R. § 75.1403-5(g). Ex. G-86. The citation 

alleged that a clear 24-inch walkway was not provided on either side of the 2-B belt line at 

crosscut numbers 22 to 23 as water accumulated to a depth of 2 to 14 inches in the entry for a 

distance of 55 feet. The citation was based on Safeguard No. 7591942, as modified in 2007. Ex. 

G-87.

3

 The Judge’s decision was issued in March 2014, but is set forth in the Commission 

Bluebook for July 2014. 

4

 Section 314(b) of the Act states that “[o]ther safeguards adequate, in the judgment of an 

authorized representative of the Secretary, to minimize hazards with respect to transportation of 

men and materials shall be provided.” 30 U.S.C. § 874(b). 

38 FMSHRC Page 1308
 The Judge found that Safeguard No. 7591942 as modified by No. 7591942-03 was valid 

on its face and that the Secretary had established a violation of this safeguard notice. 36 

FMSHRC at 1842-44. 

B. Citation No. 8414910 - Ventilation Violation 

In January 2009, Inspector Franklin issued Citation No. 8414910 to Black Beauty for an 

alleged violation of 30 C.F.R. § 75.370(a)(1).5

 The citation alleged that the operator was not 

complying with the approved ventilation plan in the number 1 active section. Specifically, the 

citation claims that a continuous miner being operated in the number 7 entry did not have 

adequate ventilation to dilute, render harmless and carry away flammable explosive gasses, dust, 

and fumes while mining. In this regard, the inspector noted that the air velocity at the inby end of 

the wing curtain was approximately 4,982 cubic feet per minute (“CFM”) and that the plan 

requires a minimum of 7,000 CFM.6 The inspector determined that the violation was S&S. Ex. 

G-59. Equipment on the section included a number of safety features intended to minimize the 

hazards from dust and explosive gasses, including a methane monitor on the continuous miner 

(which was set at 2%), a scrubber on the continuous miner (which included water sprays to keep 

the dust down), and a fan that would pull air across the duct work, faces and the miner itself. Tr. 

III 8; 36 FMSHRC at 1851. 

 The Judge found that the Secretary had established a violation but that the violation was 

not S&S. The Judge based his non-S&S finding partly on the presence of a safety measure, the 

methane monitor on the continuous miner, which would “have shut the operation down if 

methane reached 2%.” 36 FMSHRC at 1851. 

C. Citation No. 6680994 - Accumulations Violation 

In February 2009, MSHA issued Citation No. 6680994 at Black Beauty’s Riola Mine 

Complex for an alleged violation of 30 C.F.R. § 75.400.7 The citation alleged that oil, oilsaturated coal fines, and brake fluid were present on a mantrip located in Unit #1. Specifically, 

the accumulations were in the transmission, brake caliper and muffler compartments, and ranged 

from a film of oil to a quarter of an inch in depth. The inspector determined that the violation 

was S&S. Ex. G-9. The mantrip was equipped with safety measures, including a heat-activated 

fire suppression system and a “murphy switch” that automatically shuts down the mantrip if 

engine temperatures exceed 230 degrees. Tr. I 129-31. 

 5 30 C.F.R. § 75.370(a)(1) states that “[t]he 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.” 

6 The approved ventilation plan, in a supplement filed June 17, 2008, provides that the 

mine “will maintain 7000 cfm of air at the end of the line curtain without the scrubber running.” 

Ex. G-63. 

7 30 C.F.R. § 75.400 requires, in part, that “[c]oal . . . 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.” 

38 FMSHRC Page 1309
The Judge found that the Secretary had established a violation but that the violation was 

not S&S. The Judge based his non-S&S finding partly on the presence of a safety measure, the 

fire suppression system, which he believed reduced the likelihood of a fire. 36 FMSHRC at 

1827-28. 

D. Order No. 8414938 – Accumulations Violation

In February 2009, Inspector Franklin issued Order No. 8414938 at the Air Quality #1

Mine for an alleged violation of 30 C.F.R. § 75.400. The order stated that there was float coal 

dust deposited on rock dusted surfaces from the belt tail going outby for three crosscuts. The 

inspector alleged that the violation was S&S and a result of the operator’s unwarrantable failure 

to comply with the standard. Ex. G-24. The inspector testified that a “traveling roller was rubbing 

very hard against the frame, causing an ignition source.” Tr. I 207. Witnesses testified about 

safety measures present in the area, including fire suppression devices and carbon monoxide 

(“CO”) monitors, which would notify the firefighting brigades of the presence of a fire. Tr. I 

208-09, 221. Each member of the firefighting brigades at the mine was equipped with a

breathing device, foam generator and a foam cannon. Tr. I 221, 256-57.

The Judge found that the Secretary had established a violation but that the violation was 

not S&S. The Judge examined whether a confluence of factors existed to create the likelihood of 

a fire, citing in part Texasgulf, Inc., 10 FMSHRC 498, 500-03 (Apr. 1988). During his S&S 

analysis, the Judge considered the presence of safety measures such as water sprays, CO 

monitors, fire suppression devices, a fire brigade, breathing devices and turnout gear for 

firefighters. The Judge stated that “while [he] considered the presence of water sprays, CO 

monitors and other protections, [his] non-S&S holding [was] not based solely on these 

protections. The risk of fire was quite low taking into consideration continued mining operations, 

including the operator’s practice of frequent examinations and cleaning.” 36 FMSHRC at 1834-

35. 

The Judge also ruled that the violation was not a result of the operator’s unwarrantable 

failure to comply with the standard. While the Judge found that the violation was obvious and 

the operator had been put on notice that greater efforts were necessary for compliance, he found 

that the violation did not exist over several shifts, was not extensive, did not present a high 

degree of danger and that the operator did not have knowledge of the existence of the violation. 

Id. at 1835. 

E. Order No. 8414939 – Accumulations Violation

In February 2009, MSHA issued Order No. 8414939 charging a violation of 30 C.F.R. §

75.400. The order alleged that a thin coating of float coal dust on rock dusted surfaces, was 

allowed to accumulate upon the energized main south belt from head to tail. Float coal dust and 

fine coal had also been allowed to accumulate in crosscuts 8 and 9. The inspector determined 

that the violation was S&S because there were many rollers in the area and testified that “[a]ll it 

takes is one of the rollers malfunctioning, going out, dropping down in this material, and the hot 

bearings igniting the fuel source.” Tr. I 212. The inspector also alleged that the violation was a 

result of the operator’s unwarrantable failure to comply with the standard. Ex. G-25. 

38 FMSHRC Page 1310
 The Judge found that the Secretary had established a violation but that the violation was 

not S&S. The Judge did not explicitly base his non-S&S finding on the presence of safety 

measures, but did conclude that, “as stated above with respect to [Order No. 8414938] an injury 

would be unlikely if fire would start.” 36 FMSHRC at 1837-38. Given the Judge’s discussion of 

safety measures during his S&S analysis for Order No. 8414938, it is unclear as to whether the 

Judge implicitly considered safety measures during his S&S analysis for Order No. 8414939. 

The Judge also found that the violation was not a result of the operator’s unwarrantable 

failure to comply with the standard. The Judge found that the violation was extensive and 

obvious and that greater efforts were necessary for compliance. However, he also held that the 

violation did not present a high degree of danger, that there was no evidence that the violative 

condition had existed for a long period of time, and that the operator had no knowledge of the 

existence of the violation. 36 FMSHRC at 1837-38. 

II.

Disposition 

Black Beauty contends that the Judge erred in affirming a violation of the modified 

safeguard. In particular, the operator argues that the modified safeguard is invalid because it fails 

to identify a hazard with specificity. Black Beauty recognizes, however, that the validity of the 

safeguard and the modification at issue here were the subject of another docket pending on 

appeal before the Commission when the petitions for review were filed in the instant case. 

In his petition, the Secretary maintains that the Judge erred by considering the presence 

of safety measures when ruling that the ventilation and accumulations violations were not S&S. 

The Secretary also argues that the Judge’s unwarrantable failure rulings related to the two orders 

may have been affected by his erroneous S&S analyses. The Secretary requests that the 

Commission remand the S&S and unwarrantable failure issues to the Judge. 

A. Validity of Safeguard No. 7591942, as Modified

On January 28, 2016, after the parties had filed their petitions, we issued a decision 

affirming modified Safeguard No. 7591942. Black Beauty Coal Co., 38 FMSHRC 1 (Jan. 2016). 

Our decision in that case specifically addressed the same issue before us in this case , i.e.

whether the safeguard, as subsequently modified, identified a hazard with specificity. We 

rejected the operator’s challenge and affirmed the safeguard: 

Because the validity of . . . safeguard notice and modification is a 

purely legal issue, we review the judge's decision de novo . . . We 

conclude that when the original issuance and its modification are 

read in conjunction, the modified safeguard notice identifies a 

hazardous condition and modified remedy with sufficient 

specificity to provide the operator with notice as to the conduct 

38 FMSHRC Page 1311
that is prohibited or required. Accordingly, we find that the 

original safeguard notice and its modification are valid. 

Id. at 4. 

The operator did not seek judicial review of that decision. Therefore, the validity of the 

modified safeguard has been established as a matter of law by Commission precedent.8

 

B. S&S Issues 

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

and refers to more serious violations. We have held that a violation is S&S if, based on the 

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

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

Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 

1984), the Commission further explained: 

In order to establish that a violation of a mandatory safety standard 

is significant and substantial under National Gypsum, the Secretary 

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

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 

1995); Austin Power, Inc. v. Sec. of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies

criteria). 

The Commission evaluates the reasonable likelihood of injury assuming that normal 

mining operations will continue. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 

1985). When examining whether an explosion or ignition is reasonably likely to occur, it is 

appropriate to consider whether a “confluence of factors” exists to create such a likelihood. 

Texasgulf, 10 FMSHRC at 501; see Eastern Assoc. Coal Corp., 13 FMSHRC 178, 184 (Feb. 

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

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

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

It is well settled that safety measures are not to be considered in determining whether a 

violation is S&S. Cumberland Coal Res., LP, 717 F.3d 1020, 1029 (D.C. Cir. 2013); Knox Creek 

Coal Corp., 811 F.3d 148, 162 (4th Cir. 2016); Buck Creek, 52 F.3d at 135; Brody Mining, LLC, 

 8

 Commissioners Althen and Young dissented from the Commission’s decision in the 

Black Beauty case referenced above. They recognize the decision in that case represents the law 

of the case here and governs the finding on the same safeguard in this case but continue to 

believe the safeguard should be found invalid for the reasons set forth in their earlier dissent. 

38 FMSHRC Page 1312
37 FMSHRC 1687, 1691 (Aug. 2015); Cumberland Coal Res., LP, 33 FMSHRC 2357, 2369 

(Oct. 2011). 

In Cumberland, the D.C. Circuit confirmed that safety measures are irrelevant to the S&S 

analysis. 717 F.3d at 1028-29. The operator argued that the Commission erred in finding that 

certain violations were S&S by failing to consider evidence of preventative measures that would 

have rendered both the occurrence of an emergency and the resulting injuries less likely. The 

D.C. Circuit concluded that consideration of redundant safety measures is inconsistent with the 

language of section 104(d)(1) of the Mine Act and broadly held that “[b]ecause redundant safety 

measures have nothing to do with the violation, they are irrelevant to the significant and 

substantial inquiry.” Id. at 1029. By using the phrase “significant and substantial inquiry” rather 

than referring to a specific step in the S&S analysis, the court made clear that safety measures are 

irrelevant to all elements of the S&S analysis. 

The Court also indicated that all types of safety measures are “irrelevant to the significant 

and substantial inquiry” because the focus of the significant and substantial inquiry is the nature 

of the violation. “By focusing the decisionmaker's attention on ‘such violation’ and its ‘nature,’ 

Congress has plainly excluded consideration of surrounding conditions that do not violate health 

and safety standards.” Id. at 1029, citing Sec'y of Labor v. FMSHRC, 111 F.3d 913, 917 (D.C. 

Cir. 1997). 

Similarly, the Fourth Circuit recently held in Knox Creek that safety measures, at least 

those that are required by mandatory standards, are irrelevant to the S&S analysis. 811 F.3d at 

162. ‘“If mine operators could avoid S&S liability—which is the primary sanction they fear 

under the Mine Act—by complying with redundant safety standards, operators could pick and 

choose the standards with which they wished to comply.’ Such a policy would make such 

standards ‘mandatory’ in name only.” Id. The Fourth Circuit also approvingly cited the D.C. 

Circuit ruling in Cumberland that safety measures, without any qualification, are irrelevant to the 

S&S analysis. 

In Brody Mining, we held that “[w]hen deciding whether a violation is S&S, courts and 

the Commission have consistently rejected as irrelevant evidence regarding the presence of 

safety measures designed to mitigate the likelihood of injury resulting from the danger posed by 

the violation.” 37 FMSHRC at 1691 (citing Cumberland, 33 FMSHRC at 2369). Therefore, in 

Brody we interpreted the decision of the D.C. Circuit in Cumberland as applying to all safety 

measures without qualification or exception. 

Black Beauty nevertheless argues that safety measures must be considered as part of the 

S&S analysis. The operator claims that two court of appeals decisions stating that safety 

measures are irrelevant to the S&S analysis are very limited in scope and thus not applicable to 

this case. 

 

First, Black Beauty contends that the D.C. Circuit’s decision in Cumberland, holding that 

safety measures are irrelevant to the S&S analysis, was limited to the specific facts at issue in 

that case, i.e., violations involving emergency safety standards. However, nothing in the D.C. 

Circuit’s decision limits the ruling to the circumstances of that case. Although the court 

38 FMSHRC Page 1313
recognized that emergency standards under the Mine Act are different from other Mine Act 

standards for purposes of S&S determinations, that part of the decision had nothing to do with 

whether safety measures must be considered in the S&S analysis. 

The court later rejected, on two separate grounds, the operator’s argument that safety 

measures must be considered. The court pointed out that for an emergency to occur, one must 

assume that all the redundant safety measures have failed. Id. at 1028-29. Importantly, the court 

also concluded that “consideration of redundant safety measures is inconsistent with the 

language of [section 104(d)(1)].” Id. at 1028-29. It explained that Congress intended that the 

focus of the S&S inquiry be “the nature of the violation,” not the surrounding conditions. Id. at 

1029. The D.C. Circuit also cited with approval the Seventh Circuit’s decision in Buck Creek, 52 

F.3d at 136, for the proposition that safety measures “are irrelevant to the significant and

substantial inquiry.” Id. Accordingly, we reject the operator’s argument.

Second, Black Beauty argues that the Seventh Circuit’s decision in Buck Creek – that the 

presence of safety measures “to deal with a fire does not mean that fires do not pose a serious 

safety risk to miners” – did not explicitly hold that safety measures are irrelevant to all elements 

of the S&S analysis. 52 F.3d at 136. We note that the Seventh Circuit’s decision is consistent 

with our practice of finding that safety measures are irrelevant to all elements of the S&S 

analysis, including the likelihood that a fire would occur. For example, prior to Buck Creek, we 

had clarified that the exercise of caution by miners is irrelevant to the S&S analysis, including 

the portion of the S&S inquiry that seeks to determine the likelihood of injury from a hazard. See 

Eagle Nest, Inc., 14 FMSHRC 1119, 1123 (July 1992). This principle applies equally to the 

relationship between safety measures and the S&S analysis. 

Thus, the Judge erred in considering safety measures when determining that the 

ventilation and accumulation violations were not S&S. Specifically, the methane monitor, fire 

suppression system and devices, water sprays, CO monitors, fire brigade, breathing devices and 

turnout gear for firefighters are the sort of safety measures that we, and the appellate courts, have 

held to be irrelevant to the S&S analysis under the Act. We remand to the Judge to reconsider his 

S&S findings for these violations in light of our ruling in this decision. 

C. Unwarrantable Failure Issues

The Judge held that the accumulations violations underlying the two orders before us 

were not a result of the operator’s unwarrantable failure to comply with a standard, partly 

because the violations did not pose a high degree of danger.9

 36 FMSHRC at 1835, 1838. The 

Secretary claims that the Judge’s erroneous non-S&S findings for these orders led him to view 

9

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

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

at 2001. Unwarrantable failure is characterized by such conduct as “reckless disregard,” 

“intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04; 

Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek, 52 

F.3d at 136 (approving Commission’s unwarrantable failure test).

38 FMSHRC Page 1314
the available safety measures as a mitigating factor and influenced his findings as to the degree 

of danger, and consequently, his determinations as to unwarrantable failure. 

The Commission has recognized that whether conduct is “aggravated” in the context of 

unwarrantable failure is determined by considering the facts and circumstances of each case to 

determine if any aggravating or mitigating circumstances exist. Whether the conduct is 

“aggravated” in the context of unwarrantable failure is determined by looking at (1) the extent of 

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

high risk of danger, (4) whether the violation was obvious, (5) the operator’s knowledge of the 

existence of the violation, (6) the operator’s efforts in abating the violative condition, and 

(7) whether the operator had been placed on notice that greater efforts were necessary for

compliance. Brody Mining, 37 FMSHRC at 1691; Consolidation Coal Co., 35 FMSHRC 2326,

2330 (Aug. 2013); Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal Co., 31

FMSHRC 1346, 1351-57 (Dec. 2009).10

In particular, the Commission has relied upon the high degree of danger posed by a 

violation to support an unwarrantable failure finding. See BethEnergy Mines, Inc., 14 FMSHRC 

1232, 1243-44 (Aug. 1992) (finding unwarrantable failure where unsaddled beams “presented a 

danger” to miners entering the area); Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129 (July 

1992) (finding violation to be aggravated and unwarrantable based upon “common knowledge 

that power lines are hazardous, and . . . that precautions are required when working near power 

lines with heavy equipment”); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988) (finding 

unwarrantable failure where roof conditions were “highly dangerous”). The Commission has 

specifically noted that the factor of dangerousness, by itself, may warrant a finding of 

unwarrantable failure, though the absence of significant danger does not necessarily preclude a 

finding of unwarrantable failure. Manalapan Mining, 35 FMSHRC at 294. 

As discussed above, the Judge’s determinations that the violations in these orders were 

not S&S may have been flawed due to consideration of redundant safety measures. We further 

conclude that the Judge’s non-S&S findings might have influenced his view of the degree of 

danger, and consequently his unwarrantable failure determinations for these orders. 11 

10 A judge may determine, in his or her discretion, that some factors are not relevant or 

may determine that some factors are much less important than other factors under the 

circumstances. Brody Mining, 37 FMSHRC at 1692. 

11 Of course, S&S violations are not synonymous with unwarrantable failures. An S&S 

inquiry centers on whether a “violation is of such nature as could significantly and substantially 

contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 

814(d)(1). An unwarrantability determination, on the other hand, involves an analysis similar to 

gross negligence or reckless disregard. Sec’y of Labor v. FMSHRC, 111 F.3d at 919 (“the 

Secretary and the Commission interpret the words ‘unwarrantable failure’ to require a culpability 

determination similar to gross negligence or recklessness”). The Judge must analyze the relevant 

factors to determine whether the operator engaged in aggravated conduct constituting an 

unwarrantable failure. Emery Mining, 9 FMSHRC at 2001, 2003-04. On remand, therefore, the 

Judge’s consideration of the S&S issue and unwarrantability issue will require separate analyses. 

38 FMSHRC Page 1315
Accordingly, we remand this case to the Judge to reconsider his unwarrantable failure 

findings for these violations in light of our ruling in this matter. 

III.

Conclusion 

We affirm the Judge’s determination that the modified safeguard is valid and that the 

operator failed to comply with it. 

We remand the Judge’s S&S and unwarrantable failure findings at issue for 

reconsideration in light of our decision. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 1316
 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710

June 24, 2016 

SECRETARY OF LABOR, Docket No. KENT 2009-820-R 

 MINE SAFETY AND HEALTH KENT 2009-821-R 

 ADMINISTRATION (MSHA) KENT 2009-822-R 

KENT 2009-1441 

v. 

HOPKINS COUNTY COAL, LLC 

Before: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners 

DECISION

BY: Jordan, Chairman; Cohen and Nakamura, Commissioners 

These contest and civil penalty proceedings arise under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). Hopkins County 

Coal, LLC (“HCC”) appeals an Administrative Law Judge’s decision upholding the validity of 

two citations and one failure to abate order issued by the Department of Labor’s Mine Safety and 

Health Administration (“MSHA”). The violations were issued in response to HCC’s refusal to 

release personnel records to inspectors as part of a MSHA discrimination investigation. The 

Secretary of Labor requires the records to determine whether there was a violation of the antidiscrimination provisions of the Act. 

The issues before us are: (1) whether section 105(c) of the Mine Act authorizes the 

Secretary to investigate a miner’s complaint of discrimination filed with MSHA if the complaint 

does not state a specific protected activity; (2) whether the Secretary has the authority under 

sections 103(a) and (h) of the Mine Act to demand access to personnel records in furtherance of 

a discrimination investigation; (3) whether the personnel records sought in the subject 

proceedings were “reasonably required” under section 103(h); (4) whether the “reasonable” 

standard of section 103(h) mandates notice of the protected activity as a prerequisite to the 

Secretary’s power to demand records; (5) whether the Secretary’s demand for personnel records 

violates the operator’s Fourth Amendment rights; and (6) whether the section 104(b) order issued 

to HCC was valid. 

For the reasons discussed below, we affirm the Judge. We hold that pursuant to the plain 

language of section 105(c) of the Mine Act, the Secretary did not exceed his authority by 

investigating allegations of discrimination and that HCC’s compliance with the investigation was 

required in spite of the unidentified protected activity. We hold that section 103(h) of the Mine 

Act permits the Secretary to demand access to the disputed personnel records and conclude that 

the records were reasonably required to enable the Secretary to perform his function of 

determining HCC’s compliance with the anti-discrimination provisions of the Act. We also find 

that section 103(h)’s “reasonabl[e]” standard does not require notice of the protected activity to 

the operator as a prerequisite to the Secretary’s investigation or an operator’s compliance.

38 FMSHRC Page 1317
Finally, we conclude that the Secretary’s demand for records does not violate the Fourth 

Amendment rights of HCC and that the section 104(b) order was properly issued. 

I. 

Factual and Procedural Background

A. The Factual Background

Robert Gatlin was employed as a belt examiner at HCC’s Elk Creek Mine in 

Madisonville, Kentucky. On January 8, 2009, Gatlin was fired by HCC after he refused to 

perform a pre-shift examination. With the assistance of a complaint processor,1

 Gatlin filed a 

discrimination complaint form with MSHA on January 20, 2009, and alleged that he was 

discharged in violation of section 105(c) of the Mine Act, 30 U.S.C. § 815(c). 2 Specifically, the 

complaint stated: 

I feel that I was unfairly terminated due to being directed to do 

more than my regular job duties on a daily basis, which I would do 

on weekends for extra pay. I also feel that the comment about the 

union played a part in my being discharged. I would like my job

back, any negative comments deleted from my personnel file and 

backpay for the time I’ve been off. I feel that my name has been 

black balled in the mining industry around here and they will not 

hire me. 

Gov. Ex. 1 at 1-2. The complaint did not set forth a protected activity as outlined in section 

105(c)(2). Gatlin also requested temporary reinstatement. MSHA Supervisory Special 

Investigator Kirby Smith interviewed Gatlin the next day and determined that Gatlin may have 

engaged in protected activity and may have suffered adverse action.3

 34 FMSHRC 789, 790 

(Apr. 2012) (ALJ). 

1

 A complaint processor is an MSHA employee who assists miners with filling out the 

MSHA complaint form. 

2

 30 U.S.C. § 815(c)(1) states, in pertinent part: 

No person shall discharge or in any manner discriminate against . . 

. or otherwise interfere with the exercise of the statutory rights of 

any miner . . . because such miner . . . has filed or made a 

complaint under or related to this Act, including a complaint 

notifying the operator or the operator’s agent, or the representative 

of the miners . . . of an alleged danger or safety or health violation 

 . . . . 

3

 At the time of the trial, Smith had been a special investigator for approximately five 

years, routinely investigating section 105(c) discrimination complaints. He had investigated 

approximately 75 discrimination complaints while serving in this position. Tr. 32-33. 

38 FMSHRC Page 1318
On January 26, 2009, the MSHA District Manager, Carl E. Boone, II, advised HCC by 

letter that MSHA wanted to interview five named miners in response to Gatlin’s discrimination 

complaint “during the fact-finding segment of this investigation.” Gov. Ex. 2. Boone requested 

that HCC contact MSHA Special Investigators Smith or Rodney Adamson by February 6 “with a 

convenient date and time to conduct these interviews.” Id. In a letter dated February 6, counsel 

for HCC refused to arrange the requested interviews unless MSHA identified the protected 

activity alleged in the complainant’s discrimination claim. Gov. Ex. 3. 

On February 23, 2009, Boone sent HCC’s counsel a letter requesting a number of 

documents, including Gatlin’s personnel file and the “personnel files of all employees at the Elk 

Creek Mine who were disciplined, reprimanded or terminated during the period of January 1, 

2004 – January 20, 2009 for engaging in the conduct which led to the termination of Robert 

Gatlin.” Gov. Ex. 4. This request would later be clarified. MSHA requested that the documents 

be provided to Smith by the close of business on March 2, 2009. After the exchange of several 

letters, HCC eventually agreed to provide the requested documents, except for the personnel 

files. 

In letters discussing MSHA’s document request, HCC made repeated requests for 

clarification of the protected activity alleged by Gatlin, and declared in its March 23 letter that if 

MSHA could not provide the protected activity, which HCC was entitled to know, “then the 

agency has no case to investigate, no jurisdiction, no entitlement and no basis upon which to 

make any request.” Gov. Ex. 9. MSHA never responded. 

On March 23, Investigators Smith and Adamson arrived at the mine. After reviewing the 

examination books, the investigators requested the personnel files, which the mine’s general 

manager, William Adelman, refused to provide on the grounds that the request was vague and 

that privacy concerns prevented release of the files. Tr. 119-20. Smith then issued section 

104(a) Citation No. 6694904 alleging that HCC violated sections 103(a) and (h) of the Act by 

failing to produce the requested records.4

 

Smith gave HCC until 9:00 a.m. (45 minutes) to abate the violation, but at 8:50 a.m. 

Adelman informed Smith that he had spoken to counsel and he did not intend to comply. Smith 

waited until 9:00 a.m. and then issued section 104(b) withdrawal Order No. 6694905, stating 

that: “The [operator‘s] agent . . . refused to comply with Citation No. 6694904 requiring the 

operator to produce/provide records requested by MSHA Special Investigators during the 

performance of their official duties in the investigation activities under [section] 105(c) of the 

Mine Act.” Gov. Ex. 11. The order was designated “No area affected,” and no miners were 

withdrawn. 

After another five minutes, the requested documents still were not produced and at 9:05 

a.m., Smith issued another section 104(a) citation, No. 6694906, to HCC for continuing to work 

in the face of a section 104(b) withdrawal order. He set an abatement time of 10:00 a.m. When 

                                                             4

 Sections 103(a) and (h) of the Mine Act provide the Secretary with broad authority to 

inspect and investigate mines and to request records of mine operators. 30 U.S.C. § 813(a) and 

(h). 

38 FMSHRC Page 1319
the citation was not abated, HCC became subject to the provisions of section 110(b)(1) of the 

Act, which imposes daily civil penalties of up to $5,000 a day. 30 U.S.C. § 820(b)(1). 

Later that day, HCC filed notices of contest with the Commission and shortly thereafter, a 

motion requesting an expedited hearing, which the Secretary opposed. The following day, in a 

conference call with a Commission ALJ, HCC received clarification that MSHA sought the 

personnel records of similarly situated miners who had been disciplined for insubordination. 

Tr. 56, 91, 156-58, 161-62. On March 26, HCC produced Gatlin’s personnel file and the 

redacted files of four other employees. In a March 27 conference call, the parties informed the 

Judge that abatement of the citations and order had occurred one day prior, thereby ending 

HCC’s continuing liability under section 110(b)(1) and obviating the need for an expedited 

hearing. The Judge then issued an order denying HCC’s motion to expedite. The parties then 

filed cross-motions for summary decision. 

B. The Judge’s Decision

In his April 2, 2012 decision, the Judge upheld the citations and order. 34 FMSHRC at 

789. He rejected HCC’s argument that section 103 of the Act does not authorize the Secretary to

request personnel files during a discrimination investigation. He determined that because

investigating discrimination claims is a function of the Secretary, information relevant to

assessing the merits of those claims is “reasonably required.” The Judge found the Secretary’s

interpretation of sections 103(a) and (h) reasonable and entitled to deference. 34 FMSHRC at

803. He determined that the requirement in section 103(h) that the information sought be

“reasonably required” obligates the Secretary to have a reasonable understanding of the

complainant’s claim prior to making a document request. He found that Smith had credibly

testified that he had a reasonable understanding of Gatlin’s claim before making the request, and

rejected HCC’s claim that the request was a fishing expedition. Id. at n.15. 5

The Judge rejected HCC’s Fourth Amendment challenge on the grounds that under 

Donovan v. Dewey, 452 U.S. 594, 604 (1981), warrantless inspections under the Mine Act are 

permissible because the mining industry is pervasively regulated, and the certainty and regularity 

of the Act’s inspection scheme provide an adequate substitute for a warrant. He further stated 

that the Secretary’s interest in promoting miner safety outweighs HCC’s general interest in its 

personnel records. 34 FMSHRC at 798-99. 

5

 Investigator Smith testified that by February 6, he had not yet established a protected 

activity, but based on allegations made by Gatlin in the interview, Smith began looking into the 

possibility of a protected activity related to determining and reporting safety hazards. Tr. 46-48. 

Specifically, Gatlin alleged that as a belt examiner he had been required to perform work beyond 

his regular job duties, which made his job so burdensome that he did not have enough time to 

correct the safety hazards he found. He alleged that as a result, he began citing more hazardous 

conditions in the pre-shift and on-shift exam books. Gatlin stated that he had been told that he 

did not necessarily have to record a hazard if it was corrected. Tr. 47-48. 

38 FMSHRC Page 1320
The Judge disagreed with HCC’s contention that section 104(b) orders cannot be issued 

for violations where there is no “area affected.” He concluded that the provision’s language as to 

whether an affected area must be identified and whether miners must be withdrawn is unclear. 

He accorded deference to the Secretary’s interpretation that he may exercise his discretion in 

deciding to designate an order as “no area affected” and in declining to withdraw miners. Id. at 

804-05.

II. 

Disposition

A. Whether the Secretary had authority to investigate Gatlin’s complaint of discrimination

although it failed to identify a protected activity.

HCC argues that because Gatlin’s MSHA complaint failed to allege a specific protected 

activity, the Secretary had no basis, and therefore no authority, to carry out an investigation on 

the miner’s behalf. 6 The Secretary counters that the Mine Act authorizes MSHA to investigate 

every discrimination complaint filed by a miner, regardless of whether it alleges every element 

of a prima facie case of discrimination.7 

We first turn our attention to the language of the statute. In considering the question of 

statutory construction, our first inquiry is “whether Congress has directly spoken to the precise 

question at issue.” Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 

(1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). If a statute is clear and 

unambiguous, effect must be given to its language. See Chevron, 467 U.S. at 842-43; accord 

Local Union 1261, UMWA, 917 F.2d 42, 44 (D.C. Cir. 1990). In ascertaining the meaning of the 

statute, courts utilize traditional tools of construction, including an examination of the “particular 

statutory language at issue, as well as the language and design of the statute as a whole,” to 

determine whether Congress had an intention on the specific question at issue (“Chevron I” 

analysis). Id.; Local Union 1261, UMWA v. FMSHRC, 917 F.2d at 44; Coal Employment 

Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989). If a statute is ambiguous or silent on a 

point in question, deference is accorded to the interpretation of the agency charged with 

administering the provision in question, provided that the interpretation is reasonable (Chevron 

II” analysis). See Chevron, 467 U.S. at 843-44; Energy West Mining Co. v. FMSHRC, 40 F.3d 

457, 460 (D.C. Cir. 1994). 

6

 The Secretary argued in his response brief that the Commission should decline to 

consider this argument because HCC raised it for the first time on appeal. However, based on 

our review of the record, we conclude that the argument was adequately raised below and that 

the Judge had an opportunity to pass on the question. Accordingly, we will consider the issue. 

7

 In order to establish a prima facie case of discrimination under section 105(c), a 

complainant must present evidence demonstrating that (1) the individual engaged in protected 

activity, (2) that there was an adverse action, and (3) that the adverse action complained of was 

motivated in any part by that activity. See Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 

(Oct. 1980); UMWA o/b/o Franks & Hoy v. Emerald Coal Res., LP, 36 FMSHRC 2088, 2093 

(Aug. 2014). 

38 FMSHRC Page 1321
Section 105(c)(2) of the Mine Act authorizes the Secretary to investigate a complaint of 

discrimination upon the filing of a complaint. Specifically, the Act states that: 

Any miner or applicant for employment or representative of miners who 

believes that he has been discharged, interfered with, or otherwise 

discriminated against . . . may . . . file a complaint with the Secretary 

alleging such discrimination. Upon receipt of such complaint, the 

Secretary shall forward a copy of the complaint to the respondent and 

shall cause such investigation to be made as he deems appropriate. . . . If 

upon such investigation, the Secretary determines that the provisions of 

this subsection have been violated, he shall immediately file a complaint 

with the Commission . . . . 

30 U.S.C. § 815(c)(2) (emphasis added). 

According to the statutory language, a miner’s mere belief that he or she has been 

discriminated against and the filing of the MSHA complaint form expressing that belief are 

sufficient grounds to trigger an investigation of discrimination by the Secretary. The statute does 

not include a requirement that the miner state the protected activity that allegedly motivated the 

adverse action, nor that he proclaim any other element of a prima facie case of discrimination. In 

fact, beyond the miner alleging his belief of discrimination, the provision says nothing of form or 

content of the miner’s charging complaint. Compare Title VII of the Civil Rights Act of 1964, 

42 U.S.C.A. § 2000e-5(b) (requiring through regulation that a charge contain “[a] clear and 

concise statement of the facts, including pertinent dates, constituting the alleged unlawful 

employment practices.” 29 C.F.R. § 1601.12(a)(3)).8

 The statutory provision here is silent on 

whether the miner’s charging complaint must specifically identify a protected activity. 

Although the legislative history is equally silent in this regard, it does provide a useful 

context for the proper consideration of protected activity, as well as how section 105(c) should 

be administered. Specifically, Congress was clear that “[t]he listing of protected rights contained 

in section 10[5](c) is intended to be illustrative and not exclusive, and that “the scope of the 

protected activities be broadly interpreted by the Secretary.” S. Rep. No. 181, 95th Cong., 1st 

Sess. 35-36 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human 

Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act 

of 1977, at 623-24 (1978). It further stated that section 105(c) was to be construed “expansively 

to assure that miners will not be inhibited in any way in exercising any rights afforded by the 

legislation.” Id. at 36. It went on to say that “[i]t is the Committee’s intention to protect miners 

                                                             8

 EEOC v. United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002), relied upon by our 

dissenting colleagues for the proposition that the Seventh Circuit will not enforce administrative 

subpoenas absent a cognizable claim of discrimination, is inapposite. Slip op. at 8. In that Title 

VII case, alleging discrimination on the basis of national origin and sex because of the airline’s 

failure to make contributions to the French social security system, the threshold sufficiency of 

the charge was not at issue. 287 F.3d at 651 (“UAL does not point to any infirmities in the 

charge.”). Rather, the Court rejected a records request that extended far beyond the inquiry into 

the airline’s social security payments and that would have taken five full-time employees more 

than a year to satisfy. Id. at 648, 655. That is not the situation here. See Tr. 130. 

38 FMSHRC Page 1322
against not only the common forms of discrimination, such as discharge, suspension, demotion . . 

. but also against the more subtle forms of interference . . . . The bill requires the Secretary to 

rigorously enforce these rights with discrimination complaints receiving high priority.” Id.; 

Pasula, 2 FMSHRC at 2789 (“[T]he 1977 Mine Act is remedial legislation, and is therefore to be 

liberally construed.”). Therefore, even if the complainant does not assert a protected activity 

expressly protected under the Act, the activity may still be protected if it furthers the purpose of 

the legislation. Pasula, 2 FMSHRC at 2789. 

The Act does not prohibit the commencement of the Secretary’s investigation until a 

protected activity or actionable cause can be articulated. Instead, the Act requires that the 

Secretary investigate “upon receipt” of the complaint, “as he deems appropriate.” 30 U.S.C. 

§ 815(c)(2); see also S. Rep. No. 95-181 at 36-37 (1977) (“The Secretary’s investigation of

matters alleged in the complaint must commence within fifteen days of receipt of the

complaint.”).9

 The statutory language and the legislative history together make clear that an

investigation deemed appropriate by the Secretary should be afforded to every “miner . . . who

9

 Our dissenting colleagues’ reliance on Wilson v. Farris, 38 FMSHRC 341 (Feb. 

2016)(ALJ), is misplaced. Slip op. at 4-5. Wilson was a discrimination case, in which MSHA 

had determined, after investigation, that a violation of section 105(c) had not occurred. The 

complainant then filed an action under section 105(c)(3), and subsequently requested discovery 

from the respondents. As the dissent notes, the administrative law judge denied the discovery 

request and granted summary decision to the respondents because the complainant had not 

alleged a cognizable claim of discrimination. The clear difference between Wilson and the 

present case is that here the document request is being made by MSHA in carrying out its 

statutorily-mandated duty to investigate the complaint. 

Likewise, our dissenting colleagues’ reliance on Hatfield v. Colquest Energy, Inc., 13 

FMSHRC 544 (Apr. 1991) is misplaced. In Hatfield, the Commission reviewed a judge’s order 

denying a motion to strike a miner’s amended 105(c)(3) complaint. The dissent cites Hatfield for 

the proposition that a miner’s private complaint filed with the Commission pursuant to section 

105(c)(3) is limited by the terms of the miner’s initial complaint filed with MSHA. Slip op. at 4. 

We read Hatfield somewhat differently. The Commission remanded the case to the Judge to 

determine if the protected activities cited in the miner’s amended section 105(c)(3) complaint 

“[were] investigated by the Secretary in connection with Hatfield’s initial discrimination 

complaint to MSHA.” 13 FMSHRC at 546. Although Hatfield’s initial complaint was “general 

in nature” and “allege[d] no specific protected activities” the Commission reasoned that the 

statutory scheme of the Mine Act “provides to miners a full administrative investigation and 

evaluation of an allegation of discrimination” prior to the miner’s private right of action. Id. 

Thus, the Commission held that it was not the terms of the initial complaint to MSHA that 

controlled whether the amended complaint could go forward, but the Secretary’s investigation of 

the initial complaint. This holding acknowledges that the Secretary has the authority to 

investigate possible discriminatory acts, even if the miner’s initial complaint is deficient. 

38 FMSHRC Page 1323
believes that he has been discriminated against” and has “file[d] a complaint with the Secretary 

alleging such discrimination.” 30 U.S.C. § 815(c)(2).10

There may be instances where a protected activity cannot be set forth because the miner 

does not actually engage in protected activity, but may nonetheless experience adverse action as 

a result of the operator’s erroneous suspicion that the miner has engaged in such activity. See 

Moses v. Whitley Dev. Corp., 4 FMSHRC 1475 (Aug. 1982), aff’d, 770 F.2d 168 (6th Cir. 1985). 

In such situations, the miner is hardly the best person to draw the necessary legal distinction 

between a claim where he has exercised his rights and one in which he has not exercised them, 

but where his employer has sought to interfere with his ability to do so. He may not understand 

that such interference is still prohibited under the Mine Act. 

Indeed, Supervisory Special Investigator Smith testified that “[a] lot of times in the fact 

finding segment [of the investigation], miners don’t even know their miner’s rights. They don’t 

know what to tell you. They don’t know the key phrases, and when we go and investigate and 

talk with them, we try to pull that.” Tr. 52-53. He further testified that the majority of 

discrimination claims that cross his desk do not clearly set forth a protected activity. Tr. 37. 

Thus, in cases where a miner is uninformed or unclear about what constitutes a protected activity 

but believes that he or she has been wronged by an employer, the Secretary’s investigation into 

this “belief” serves as a necessary safety mechanism that ensures the miner has the opportunity 

to fully develop his possible claim of discrimination.11 

The dissent expresses concern that MSHA “was seeking to find a basis for a claim that 

had not been made by the miner.” Slip op. at 2. However, Investigator Smith testified that based 

on allegations made by Gatlin in the interview, he began looking into the possibility of a 

protected activity related to determining and reporting safety hazards. Tr. 46-48. Specifically, 

Gatlin alleged that as a belt examiner he had been required to perform work beyond his regular 

job duties, which made his job so burdensome that he did not have enough time to correct the 

safety hazards he found. Gatlin alleged that as a result, he began citing more hazardous 

conditions in the pre-shift and on-shift exam books. Gatlin stated that he had been told that he 

did not necessarily have to record a hazard if it was corrected. Tr. 47-48. Thus, based on the 

                                                             10 Investigator Smith testified that MSHA formerly had a practice of assessing whether 

protected activity had occurred in section 105(c) complaints based solely on what the 

complainants initially reported. This resulted in some complainants being turned away without 

an investigation if protected activity was not apparent. After miners complained to Congress that 

they were being turned away without an investigation on the merits, MSHA changed the 

practice, and discovered that complainants did not know their rights as miners (for example, to 

complain to management about hazardous conditions), and thus sometimes did not articulate 

protected activity in their complaints although it had occurred. Tr. 110-11. 

11 MSHA’s initial interview with the miner can provide the investigator with much 

needed clarity regarding the allegations, and can possibly lead to the discovery of other violative 

conduct the miner did not know to allege or had trouble articulating in his charging complaint. 

See Tr. 53, 80. 

38 FMSHRC Page 1324
interview, MSHA determined that it had a basis to investigate Gatlin’s allegations as a possible 

violation of section 105(c), even though protected activity was not specifically alleged in 

Gatlin’s written complaint. This is precisely what the Mine Act contemplates in section 

105(c)(2) by creating a provision for MSHA to investigate a complaint made upon a miner’s 

“belie[f].” The judge credited the investigator’s testimony, finding that he had an understanding 

of the miner’s claim and “did not . . . embark on a ‘fishing expedition.’” 34 FMSHRC at 803 

n.15. The dissent’s contention that the inspector failed to describe Gatlin’s possible protected

activity or how it could have related to adverse action, slip op. at 6, n. 7, is incorrect.12

The Act requires that the Secretary’s investigation “commence within 15 days of the 

Secretary’s receipt of the complaint, and if the Secretary finds that such complaint was not 

frivolously brought, the Commission, on an expedited basis upon application of the Secretary, 

shall order the immediate reinstatement of the miner pending final order on the complaint.” 

30 U.S.C.A. § 815(c)(2). In its discussion of the provision, Congress explained that “[u]pon 

determining that the complaint appears to have merit, the Secretary shall seek an order of the 

Commission temporarily reinstating the complaining miner pending final outcome of the 

investigation.” S. Rep. No. 95-181 at 36-37 (1977) (emphasis added). Thus, it is during this 

preliminary investigation that the Secretary must determine only whether there may be validity to 

the miner’s claim, or in other words, that the claim was “not frivolously brought.” See Jim 

Walter Res., Inc. v. FMSHRC, 920 F.2d 738, 747 (11th Cir. 1990), citing S. Rep. No. 95–181.13 

It appears that HCC confuses the minimal requirements that must be satisfied to trigger 

the Secretary’s section 105(c) investigative power with the threshold requirements that must be 

met before the Commission in order to establish that a miner’s case is not being frivolously 

12 Commissioner Cohen notes that our dissenting colleagues also state: “It is difficult to 

believe that the majority actually thinks MSHA has authority to investigate every adverse 

employment action in the mining industries through sweeping document demands about 

uninvolved employees without any alleged basis in section 105(c). Yet that is the inevitable 

outcome of its decision.” Slip op. at 3-4. The short answer is that we don’t believe that MSHA 

has authority to investigate “every adverse employment action in the mining industries through 

sweeping document demands,” nor does MSHA. The document demands were made in this case 

only after Inspector Smith determined, based on his interview with Gatlin, that discrimination 

under the Act may have occurred. As noted above, the Judge found that MSHA’s document 

request was not a “fishing expedition.” 

13 In Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 214-16 (1946), the Supreme 

Court upheld an administrative subpoena issued by the Secretary of Labor seeking records 

during investigation to determine whether a company was violating the Fair Labor Standards 

Act. In relying on the statute which conferred subpoena power to aid the Department of Labor in 

enforcement and in investigations to determine compliance, the Court rejected the company’s 

argument that without charge or complaint, Labor’s subpoena amounted to a fishing expedition 

to secure information on which to base a charge. It stated that “[t]he very purpose of the 

subpoena and of the order, as of the authorized investigation, is to discover and procure 

evidence, not to prove a pending charge or complaint, but upon which to make one if, in the 

Administrator’s judgment, the facts thus discovered should justify doing so.” Id. at 201. 

38 FMSHRC Page 1325
brought. The “not frivolously brought standard” has been deemed the functional equivalent to 

the “reasonable cause to believe” standard. Id. at 748, n.10. As one Commission Judge has 

noted, in practice, in order to prevail on this very low burden of proof, the Secretary need only 

establish protected activity and one of the circumstantial indicatives of motive. Comunidad 

Agricola Bianchi, Inc., 32 FMSHRC 206, 211 n.9 (Feb. 2010) (ALJ). However, the threshold 

for initiating the Secretary’s investigative power is even lower. It only requires the filing of a 

complaint with MSHA. It does not require that the Secretary establish protected activity before 

it may investigate, because whether or not a protected activity exists is determined during the 

preliminary investigation, not before.14

HCC’s theory that the Secretary’s investigative authority rests solely on the initial 

statements of the complaining miner is contrary to the statute’s language, Congressional intent, 

and the purpose of the provision.15 

B. Whether the Secretary’s records demand was authorized under section 103 of the Act. 

1. The Secretary has the right to obtain records an operator is not legally required to 

maintain. 

HCC maintains that section 103(a) does not grant the Secretary the right to compel the 

production of documents, and that his authority under section 103(h) is limited to records that an 

operator must keep to allow the Secretary to conduct his functions under the Mine Act. We 

disagree. 

In Big Ridge, Inc., 34 FMSHRC 1003, 1012-13 (May 2012), aff’d,715 F.3d 631, 638 (7th 

Cir. 2013), we upheld the Secretary’s right to inspect and copy records, (including personal 

medical information) not required by law to be maintained, in order for the Secretary to 

determine compliance with Part 50 accident reporting requirements. We emphasized that the 

Secretary has broad authority to conduct inspections and investigations under section 103(a). 

See Big Ridge, 34 FMSHRC at 1012; Tracey & Partners, 11 FMSHRC 1457, 1464 (1989). That 

                                                             14 See United States v. Powell, 379 U.S. 48, 58 (1964) (holding that agency need not 

meet any standard of probable cause to obtain enforcement of administrative summons); In re 

Subpoena Duces Tecum, 228 F.3d at 348, citing Oklahoma Press, 327 U.S. at 213 (finding that if 

the issuance of investigative subpoenas were based upon showings of probable cause, “the result 

would be the virtual end to any investigatory efforts by governmental agencies . . . .”). 

15 The Commission has previously held that “the Secretary’s decision to proceed with a 

complaint to the Commission, as well as the content of that complaint, is based on the 

Secretary’s investigation of the initiating complaint to [him], and not merely on the initiating 

complaint itself.” Sec’y o/b/o Callahan v. Hubb Corp., 20 FMSHRC 832, 837 (Aug. 1998); see 

Sec’y o/b/o Dixon v. Pontiki Coal Corp., 19 FMSHRC 1009, 1017 (June 1997); Hatfield, 13 

FMSHRC at 546. If the content of a discrimination complaint filed with the Commission is 

based on that which is uncovered during the Secretary’s investigation, then it follows that the 

Secretary’s authority to investigate in the first instance cannot be circumscribed by the early and 

often uninformed statements made by a miner in his charging complaint. 

38 FMSHRC Page 1326
provision states in relevant part that “the Secretary . . . shall make . . . investigations in . . . mines 

. . . for the purpose of . . . determining whether there is compliance with the mandatory health or 

safety standards . . . or other requirements of this chapter.” 30 U.S.C. § 813(a). Thus, the 

language of section 103(a) generally authorizes the Secretary to verify, through investigation, 

operator compliance with the anti-discrimination requirements of section 105(c) of the Act. 

Section 103(h) states that: 

In addition to such records as are specifically required by this 

chapter, every operator of a . . . mine shall establish and maintain 

such records . . . and provide such information, as the Secretary 

. . . may reasonably require from time to time to enable him to 

perform his functions under this chapter. 

30 U.S.C. § 813(h) (emphasis added). We held in Big Ridge that the plain language of section 

103(h) provides a broad Congressional grant of authority to the Secretary to carry out his 

functions under the Act. 34 FMSHRC at 1012, aff’d,715 F.3d at 638; see also Energy West 

Mining Co. v. FMSHRC, 40 F.3d 457 (D.C. Cir. 1994) (recognizing broad scope of section 

103(h)). 

Section 103(h) does not restrict the Secretary’s access to records that are specifically 

required to be maintained by the Act and regulations. Big Ridge, 34 FMSHRC at 1012, aff’d 715 

F.3d at 641-42; see also BHP Copper, Inc., 21 FMSHRC 758, 766 (July 1999). In fact,

“Congress rejected earlier proposed versions of this section, which had limited the Secretary’s

access to operators’ records to those specific records which the Secretary had ‘prescribe[d] by

regulation.’ S. 717, 95th Cong., at 20, reprinted in Leg. Hist. at 129; H.R. 4287, 95th Cong., at

20, reprinted in Leg. Hist. at 207.” Big Ridge, 34 FMSHRC at 1013.

In its decision in Big Ridge, the Seventh Circuit stated that section 103(h) provides that 

“MSHA may ‘reasonably require’ mines to produce non-required records when the additional 

information would enable MSHA ‘to perform [its] functions’ under the Act. This text permits 

MSHA to make information demands for a wide range of purposes—any reasonable requirement 

that would help MSHA fulfill the purposes of the Mine Safety Act.” Big Ridge, 715 F.3d at 641; 

see also S. Rep. No. 95-461, at 47 (1977), reprinted in Senate Subcomm. on Labor, Comm. on 

Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 1325 

(1978) (“the House amendment . . . authorized the Secretary to require records, reports, and other 

information not otherwise specified by the Act.”). 

Accordingly, we conclude that section 103(h) broadly authorizes the Secretary to request 

access to records not required to be kept by operators, as long as the records are “reasonably 

require[d]” to enable him to perform his function under the Mine Act. 

2. The personnel records were “reasonably required.”

We now consider whether the Secretary’s demand satisfies the requirements of section

103(h). We conclude that the personnel records requested by the Secretary are “reasonably 

38 FMSHRC Page 1327
require[d] . . . to enable him” to carry out his investigative “functions” under sections 105(c) and 

103 of the Act. 30 U.S.C. § 813(h).16

The request for personnel records by the Secretary was reasonable because it met the 

standard set forth by the Seventh Circuit in Big Ridge, as it was “sufficiently limited in scope, 

relevant in purpose, and specific in directive so that compliance will not be unreasonably 

burdensome.” 715 F.3d at 646 (quoting See v. City of Seattle, 387 U.S. 541, 544 (1967)). 17 

First, the records demand was sufficiently limited in scope, as it was tailored to capture 

only records of employees who had been disciplined, reprimanded, or terminated for engaging in 

the same or similar conduct as Mr. Gatlin. The scope was further limited by the time frame 

covered and the manner of inspection. Specifically, the time period was limited to records from 

the last five years. This is a reasonable window of time for capturing any relevant information 

given that the records sought would contain a discrete type of employee conduct. The manner 

was limited to MSHA’s request to inspect and copy the records and did not include the agency 

rummaging through the files of HCC. 

16 Contrary to the operator’s assertion at oral argument (Oral Arg. Tr. 12-19), the 

“relevant and necessary” standard applied in Big Ridge is not applicable here. That standard was 

imposed by regulation and applies to the Secretary’s power to demand records in the context of 

Part 50 audits. There is no applicable regulation here; thus, there are no regulatory requirements 

the Secretary’s record demand must satisfy. 

17 The Seventh Circuit used this well-established standard for purposes of determining if 

the Secretary of Labor’s demand for information from a mine operator was in accordance with 

the Fourth Amendment. Big Ridge, Inc., 715 F.3d at 646 (citing See v. City of Seattle, 387 U.S. 

541, 544 (1967). The Circuit adopted this standard because it recognized that the Secretary’s 

request for information and records from an operator pursuant to section 103(h), for Fourth 

Amendment purposes, “amounts to an administrative subpoena in substance.” Id. In order to 

create a test for determining whether a request by the Secretary under section 103(h) is 

“reasonably required . . . to enable him to carry out his investigative functions,” it is appropriate 

for the Commission to apply the standard used to evaluate subpoenas under the Fourth 

Amendment. 

In Warrior Coal, LLC, the Commission therefore applied this standard when determining 

that the Secretary’s request was “reasonable” as required by section 103(h). Warrior Coal, LLC, 

38 FMSHRC ___, slip op. at 5-8, KENT 2011-1259-R et al. (May 17, 2016), appeal docketed, 

No. 16-3646 (6th Cir. June 15, 2016). The limitations placed on the Secretary’s information 

requests by the application of this standard appropriately balances the Secretary’s authority 

against the burden of compliance placed on the mine operator and the possibility of government 

overreach. 

38 FMSHRC Page 1328
Second, these specific directives also made compliance with the request manageable and 

not unreasonably burdensome, which is evidenced by Adelman’s statement that it only took them 

“a few hours” to gather the requested files. Tr. 130; see also infra at 15. 

Third, the personnel records were relevant to the purpose of a discrimination 

investigation. 34 FMSHRC at 803. They were critical aids in the Secretary’s determination of 

disparate treatment, which is relevant to a finding of discrimination. Investigator Smith testified 

that Gatlin’s personnel file would show his work history, including any disciplinary action taken 

against him, to find any information corroborating Gatlin’s allegations and to determine his 

general credibility. Tr. 56, 68. The personnel files of other similarly situated employees were 

requested in order to determine whether there was evidence of disparate treatment. Tr. 56, 91; 

34 FMSHRC at 792. 

Further, the request enables the Secretary to carry out his investigative functions under 

sections 105(c) and 103(a). See Big Ridge, 34 FMSHRC at 1017. Verifying operator 

compliance with the Mine Act is one of the express purposes for which section 103(a) authorizes 

MSHA to inspect and investigate mines, see Big Ridge, 715 F.3d at 642, and verifying HCC’s 

compliance with section 105(c) falls squarely within this function. This type of inquiry is 

particularly important because the Act protects miners against discrimination in order to 

encourage their active role in improving mine safety. Swift v. Consolidation Coal Co., 16 

FMSHRC 201, 205 (Feb. 1994). 

Congress specifically stated that: “If our national mine safety and health program is to be 

truly effective, miners will have to play an active part in the enforcement of the Act. . . . [I]f 

miners are to be encouraged to be active in matters of safety and health, they must be protected 

against any possible discrimination which they might suffer as a result of their participation.” S. 

Rep. No. 95-181 at 35, Leg. Hist. at 623. “The [discrimination] complaint procedure, therefore, 

serves an important function in accomplishing the legislation’s broader goals of improving mine 

safety and protecting miners.” Vulcan Const. Materials, LP v. FMSHRC, 700 F.3d 297, 302 (7th 

Cir. 2012). As the Judge stated, “[w]here the Secretary’s function is the evaluation of a 

discrimination claim, information that is relevant to assessing the merits of that claim, including 

evidence of protected activity, adverse action or discriminatory intent may be ‘reasonably 

required.’” 34 FMSHRC at 803. 

Accordingly, we hold that records that tend to establish or disprove an element of a prima 

facie case of discrimination generally are, in our view, reasonably required to enable the 

Secretary to perform his investigative function under section 105(c) of the Mine Act. 

3. HCC is not entitled to “notice” prior to MSHA commencing an investigation. 

HCC also asserts that MSHA was required to provide it with a threshold level of “notice” 

of the protected activity so that HCC could determine whether a colorable claim was being 

alleged and whether its compliance was required. We disagree. The statute does not entitle 

HCC to “notice” of the protected activity, and therefore, “notice” is not a prerequisite to the 

Secretary’s investigation or to an operator’s compliance with the investigation. 

38 FMSHRC Page 1329
We first begin by noting that HCC misconstrues its authority. The Mine Act does not 

permit the operator to determine the scope or dictate the direction of an MSHA compliance 

investigation. According to section 105(c), the Secretary “shall cause such investigation to be 

made as he deems appropriate.” 30 U.S.C. § 815(c) (emphasis added). Thus, this duty is 

committed to the sole discretion of the Secretary. The Mine Act also does not allow the operator 

to determine if a colorable claim has been alleged. That initial determination is also made by the 

Secretary and only reached after he has investigated to an extent that he has deemed appropriate. 

Section 105(c)(2) requires that once a miner who believes that he has suffered 

discrimination files a complaint with MSHA, “[u]pon receipt of such complaint, the Secretary 

shall forward a copy of the complaint to the respondent and shall cause such investigation to be 

made as he deems appropriate.” 30 U.S.C. § 815(c)(2) (emphasis added). The language says 

nothing about providing “notice.” Under a plain reading, the Secretary is only required to 

forward a copy of the complaint, as filed by the miner, to the operator. As previously noted, the 

provision contains no guidance on what a charging complaint must include. There is also no 

language that suggests the Secretary must provide to the operator anything more than a “copy” of 

what the miner has filed before he may commence his investigation into the complaint.18 

Congress did, however, intend for section 105(c) to be construed broadly to ensure that miners 

would not be hindered in any way in exercising their rights. Consequently, we have no basis to 

read conditions into the Act that might further complicate a miner’s process for exercising his 

rights under this section. 

18 In similar instances, Congress has chosen not to impose specific content requirements 

on a charging complaint or a service of notice requirement on the agency involved. See, e.g., 

United States v. Woerth, 130 F. Supp. 930, 943 (N.D. Iowa 1955), aff’d, 231 F.2d 822 (8th Cir. 

1956) (“There is no provision in the [Packers and Stockyards] Act or in any of the regulations 

promulgated thereunder that the contents of a complaint against a registrant be made known to 

him before an investigation may be made of his records in connection therewith.”); Solis v. 

Laborer’s Int’l Union of N. Am., 775 F. Supp. 2d 1191, 1212 (D. Haw. 2010) (rejecting 

respondent’s argument that prior to release of any records the Secretary of Labor must provide 

the nature of and identify specific allegations of the election challenge, and concluding that “[i]t 

is evident from reading the LMRDA that Congress intended that the Secretary exercise broad 

authority in investigating labor unions, such that ‘[t]he Secretary is not required to demonstrate 

probable cause exists to launch a LMRDA investigation.’ McLaughlin, 880 F.2d at 174.”); 

EEOC v. Merrill Lynch, Pierce, Fenner & Smith, 677 F. Supp. 918, 926 (N.D. Ill. 1987) (holding 

that the EEOC was not required to give employer Title VII notice of sex discrimination charge 

before commencing investigation or requesting disputed report from employer under Equal Pay 

Act and Fair Labor Standards Act). 

In contrast, certain other statutes specifically impose a notice requirement. For instance, 

Title VII originally required that the EEOC simply provide a copy of a charge to the employer 

accused of discrimination. Pub.L. 88-352, § 706(a), 78 Stat. 259. However, in 1972, the 

provision was amended to require that the Commission “serve a notice of the charge (including 

the date, place and circumstances of the alleged unlawful employment practice) on [the] 

employer . . . within ten days” of the charge being filed. 42 U.S.C. § 2000e-5(b); see also EEOC 

v. Shell Oil Co., 466 U.S. 54, 63 (1984).

38 FMSHRC Page 1330
HCC additionally asserts that notice is required here because it is analogous to the notice 

to service of process in a civil suit, which is to give the party notice of a claim or charge being 

filed against it. Oral Arg. Tr. 9. However, this is not the proper context in which to view the 

miner’s complaint to MSHA or the Secretary’s investigatory power. HCC erroneously seeks to 

apply the procedures associated with formal court proceedings to the Secretary’s pre-proceeding 

investigation. 

The miner’s charging complaint here is not a pleading and does not initiate a formal 

section 105(c)(2) proceeding before the Commission. The miner’s complaint only serves as the 

mechanism by which the Secretary’s investigative function is activated. It is the predicate to, 

and not the result of, the Secretary’s determination that the Mine Act has been violated. See U.S. 

v. Morton Salt Co., 338 U.S. 632, 641-43 (1950) (drawing distinction between the judicial

process and the administrator’s function of investigating). In this regard, we find NLRB

precedent helpful:

A charge does not initiate a formal . . . proceeding against a party. 

[It] is filed by a private party and “serves merely to set in motion 

the investigatory machinery of the Board.” Texas Indus., Inc. v. 

NLRB, 336 F.2d 128, 132 (5th Cir. 1964). . . . The charge “is not 

designed to give notice to the person complained of . . . Once . . . 

filed, the Board decides whether to issue a complaint, terminate the 

investigation as unfounded, or dispose of the matter through 

informal methods. Before [filing] a complaint, the action remains 

purely investigatory; no parties or judicial hearings exist. 

NLRB v. H.P. Townsend Mfg. Co., 101 F.3d 292, 294-95 (2d Cir. 1996) (internal citations 

omitted); see also Russell-Newman Mfg. Co. v. NLRB, 407 F.2d 247, 249 (5th Cir. 1969). 

Consistent with our holding in Big Ridge, we conclude that section 103(h) broadly 

authorizes the Secretary to request access to personnel records not specifically required to be 

kept by operators, as long as the records are “reasonably require[d]” to allow the Secretary to 

perform his function of investigating complaints of discrimination made pursuant to section 

105(c) of the Mine Act.

C. Whether the Secretary’s demand violates HCC’s Fourth Amendment rights.

HCC argues that MSHA infringed upon its constitutional rights by seeking to conduct a 

warrantless search of operator records that are not required to be kept under the Mine Act and 

that are not reasonably required by MSHA to perform its functions under the Act. It also asserts 

that MSHA’s demand was unreasonable because the records were not necessary to determine 

compliance, the records were irrelevant to the statutory scheme, and the request was overbroad 

and burdensome. 

38 FMSHRC Page 1331
1. The inspection was reasonable under Donovan v. Dewey. 

Recognizing that mining is a pervasively regulated industry, the Supreme Court has 

upheld warrantless inspections under the Mine Act using a three-part test. Donovan v. Dewey, 

452 U.S. 594, 599, 601-05 (1981). The Court held that an inspection is reasonable if it is: (1) 

authorized by law; (2) necessary for the furtherance of federal interests; and (3) the occurrence is 

not “so random, infrequent, or unpredictable that the owner, for all practical purposes, has no 

real expectation that his property will from time to time be inspected by government officials.” 

Id. at 599; see also Colonnade Catering Corp. v. United States, 397 U.S. 72, 77 (1970); Marshall 

v. Barlow’s, Inc., 436 U.S. 307, 323 (1978). 

The instant case satisfies the Donovan test. First, the document request was authorized 

by sections 105(c) and 103 of the Mine Act. Second, as stated above, the document request 

furthered the anti-discrimination provisions of the Act, which serve as an integral component in 

the enforcement of the Act’s health and safety regulations. Specifically, the Secretary has a 

substantial interest in protecting miners against discrimination and deterring operators from 

engaging in discriminatory conduct so that miners remain actively engaged in improving health 

and safety conditions at mines. Finally, the Act charges the Secretary with the function of 

investigating complaints of discrimination made against mine operators. These investigations 

are not uncommon, and presumably anticipated by operators upon being notified that a 

discrimination claim has been filed. 

2. The request satisfied the Fourth Amendment requirements for an administrative 

subpoena. 

Recently, in reviewing the Commission’s decision in Big Ridge, the Seventh Circuit 

decided that, although “highly instructive,” the Donovan analysis “does not fully answer the 

Fourth Amendment question,” for Donovan concerned physical safety inspections of mines, not 

demands for production of medical and personnel files in mine custody. 715 F.3d at 645. The 

court further observed that the investigation at issue did not involve an intrusion in which 

government inspectors personally opened file cabinets and examined computer hard drives, but 

rather required mine operators to allow MSHA to review and keep copies of records. Id; see also 

Donovan v. Lone Steer, Inc., 464 U.S. 408, 415 (1984). 

Focusing its Fourth Amendment analysis on the substance of MSHA’s inspection request, 

the Seventh Circuit determined that MSHA’s document review authority under section 103(a) 

and (h) amounts to an “administrative subpoena” in substance rather than a search or seizure. 

Big Ridge, 715 F.3d at 646. Such a subpoena implicates the Fourth Amendment to the extent 

that it requires the demand for information be “sufficiently limited in scope, relevant in purpose, 

and specific in directive so that compliance will not be unreasonably burdensome.” Id., citing 

See v. City of Seattle, 387 U.S. at 544. Once an agency has satisfied the requirements for an 

administrative subpoena, the respondent carries the burden of showing that the request is 

overbroad, unduly burdensome, irrelevant, or otherwise an abuse of the court’s process. See

United States v. Whispering Oaks Resid. Care Facility, LLC, 673 F.3d 813, 817-19 (8th Cir. 

2012) (citing United States v. Powell, 379 U.S. 48, 58 (1964)); NLRB v. N. Bay Plumbing, Inc.,

102 F.3d 1005, 1008-09 (9th Cir. 1996); F.T.C. v. Invention Subm. Corp., 965 F.2d 1086, 1090 

(D.C. Cir. 1992); F.T.C. v. Texaco, Inc., 555 F.2d 862, 882 (D.C. Cir. 1977). 

38 FMSHRC Page 1332
We conclude that the Secretary’s request satisfies the “administrative subpoena” 

requirements of the Fourth Amendment. First, the parameters of the request are sufficiently 

limited in scope because its reach is restricted to the personnel records of employees who were 

“disciplined, reprimanded or terminated” within the last five years for engaging in the same 

conduct that led to Mr. Gatlin’s termination. 

Second, these records would corroborate or undermine Gatlin’s allegations of disparate 

treatment. These records are relevant to the Secretary’s overall purpose of identifying and 

abolishing the culture of intimidation and retaliation aimed at miners who may want to report 

safety hazards. Protecting miners from reprisals for their participation in the safety process plays 

a vital role in the improvement of safety conditions in mines. 

Finally, the request was specific and clear enough that it was not unreasonably 

burdensome for HCC to produce the targeted records. Once HCC received clarification from 

MSHA on the exact reach of the records demand, the request, as already noted, was specific in 

scope in that it involved employee disciplinary records that were restricted to a particular type of 

employee conduct, time frame, and manner of inspection. Searching within such well-defined 

confines would not be burdensome. In fact, General Manager Adelman testified that after the 

clarification, HCC only needed to search through “just those terminated employees,” and that it 

took him only five hours to locate the five relevant records that were ultimately produced. 

Tr. 130, 159. 

Nonetheless, we recognize that MSHA’s original request was hardly a model of clarity. 

We also acknowledge that given the irrelevant and private information contained therein, in the 

interest of time and fairness, the agency should have informed the operator at the outset that it 

would accept redacted copies of the files. However, as this is not HCC’s first exposure to an 

MSHA discrimination investigation, there is no reason to believe that HCC was not already 

aware that redaction was an option. 

Although the Secretary’s request would have captured private information that was not 

relevant to the discrimination claim, we nonetheless conclude that this is not a legitimate basis 

upon which an operator can rest its refusal to cooperate with an authorized demand for records. 

See Woerth v. United States, 231 F.2d at 824 (“It may be that the records requested pertain to 

transactions not within the scope of the Act and which are irrelevant to the investigation in 

question. However, the fact that the respondent may have intermingled irrelevant information in 

the records in question cannot serve to defeat the right of the Secretary of Agriculture to examine 

those records as to transactions which had their origin in the activities of the respondent as a 

registered dealer.”). At the very least, HCC could have released the relevant portions of the 

records. 

38 FMSHRC Page 1333
We also hold that the burden was on HCC to raise its concerns regarding the 

reasonableness of the section 103(h) records request prior to issuance of any citation.19 Had 

HCC properly raised these concerns regarding the terms of the request, MSHA would have had a 

duty to discuss the concerns with HCC in good faith. Courts have held that before they will 

conclude that a subpoena is “arbitrarily excessive,” they expect the person served “to have made 

reasonable efforts . . . to obtain reasonable conditions” from the government. United States v.

Morton Salt, 338 U.S. 632, 653 (1950); In re Subpoena Duces Tecum, 228 F.3d 341, 349, 351 

(4th Cir. 2000) (“as a condition to maintaining the argument that an investigative subpoena is 

overly broad and oppressive, [the subpoenaed party] would have to be able to point to reasonable 

efforts on his behalf to reach accommodation with the government”). 

Had HCC taken minimal steps early on to negotiate with MSHA, the imposition of daily 

penalties might have been avoided. After providing HCC with clarification, the Secretary 

accepted the records in redacted form with no objections and terminated the violations on March 

26, 2009. 

D. Whether the section 104(b) order was valid. 

Finally, HCC argues that the section 104(b) order issued to it is invalid on its face 

because the Secretary failed to follow the statutory requirements that he determine an affected 

area and withdraw miners. We disagree. 

1. The Secretary’s interpretation of section 104(b) was reasonable. 

Section 104(b) of the Act provides that, if on an inspection following the issuance of a 

section 104(a) citation, the Secretary finds: 

(1) that a violation described in a citation issued pursuant to subsection (a) 

has not been totally abated within the period of time as originally fixed 

therein or as subsequently extended, and (2) that the period of time for the 

abatement should not be further extended, he shall determine the extent of 

the area affected by the violation and shall promptly issue an order 

requiring the operator . . . to immediately cause all persons . . . to be 

 

                                                             19 Beyond demanding identification of the protected activity, HCC did nothing to remedy 

the deficiencies it would later identify in MSHA’s demand. It failed to raise concerns about the 

vagueness or broadness of the language or seek a revision of the request until the March 24 

conference call with the assigned Judge. This was one month after MSHA first requested the 

documents, a week after being notified by MSHA that Investigator Smith would visit on March 

23, and one day after the citations and order had been issued and the daily penalties began to 

accrue. See Gov. Exs. 4, 6. Mine Manager Adelman testified that he did not seek clarification of 

the request because he felt that the personnel files were “off limits anyway,” but indicated that if 

it had been clarified he “may have been able to determine what part of a [] file might be needed” 

and they “could have worked that out.” Tr. 119-20; see also ALJ Dec at 17-18. 

38 FMSHRC Page 1334
withdrawn . . . until . . . the Secretary determines that such violation has 

been abated. 

30 U.S.C. § 814(b) (emphasis added). 

The first clause of the provision plainly sets out two enumerated conditions the Secretary 

must establish before he can issue a withdrawal order: (1) that the underlying violation has not 

been totally abated within the set abatement time, and (2) the abatement time should not be 

extended. If those two conditions are satisfied, clause two, the center of our controversy, 

mandates that the Secretary must determine the extent of the area affected by the violation, and

then issue an order which requires the withdrawal of all persons from that area. HCC’s reading 

of the provision would have us treat clause two as an additional finding the Secretary must make 

before he is authorized to execute a section 104(b) order. We reject this interpretation. 

When the Mine Act is silent on an issue, the Secretary’s interpretation which reasonably 

effectuates the health and safety goals of the Act is controlling. Sec’y of Labor ex rel. Wamsley 

v. Mutual Mining, Inc., 80 F.3d 110, 115 (4th Cir. 1996). Deference is accorded to “an agency’s

interpretation of the statute it is charged with administering when that interpretation is

reasonable.” Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994) (citing

Chevron, 467 U.S. at 844).

We conclude that the Mine Act is silent on this issue, and that the Secretary’s 

interpretation of the statute, which permits an MSHA inspector to issue a section 104(b) order 

upon a determination that there is no area affected and/or no miners to physically withdraw, is a 

reasonable interpretation of the provision. It is significant that nothing in the language of section 

104(b) prohibits the Secretary from issuing a “no area affected” order. The language indicates 

that, if the two conditions above are met, the MSHA inspector “shall determine the extent of the 

area affected by the violation” and order the appropriate withdrawal of miners from “such area” 

until it is determined that the violation has been abated. Thus, if no specific area of the mine is 

affected by the violation, it is reasonable to read the statute as requiring the inspector to state that 

determination and issue a corresponding section 104(b) order. 

The Secretary’s authority to issue a section 104(b) failure to abate order is not predicated 

on proving that an affected area exists, but on showing that the underlying violation was not 

properly abated and that the time should not be extended. Indeed, Congress stated that “[s]ection 

10[4](b) provides the Secretary with such authority upon a determination that the violation has 

not been totally abated within the original or subsequently extended abatement period, and that 

the abatement period should not be further extended.” S. Conf. Rep. No. 95-181, at 30 (1977), 

reprinted in Legis. Hist. at 618. The language of section 104(b) also makes clear that if the preconditions are met, the Secretary is statutorily required to issue an order regardless of the extent 

of the area affected. See 30 U.S.C. § 814(b) (“If . . . the Secretary finds that a violation . . . has 

not been totally abated . . . and that the period . . . should not be further extended, [then] he shall 

determine the extent of the area affected . . . and shall promptly issue an order”) (emphasis 

added). 

The purpose of section 104(b) is to spur swift abatement of existing violations and 

compel operator compliance with the Act. A “no area affected” order provides an important 

38 FMSHRC Page 1335
deterrent to operators who fail to abate violations in a timely fashion. See Thunder Basin Coal 

Co., 16 FMSHRC 671 (Apr. 1994) (acknowledging the Secretary’s practice of issuing “no area 

affected” section 104(b) orders). The issuance of an order for a failure to abate promotes 

compliance by imposing a consequence on an operator that refuses to comply with the Mine Act. 

Moreover, penalizing an operator’s refusal to comply with the Act in some instances, while 

allowing its refusal in others, falls short of fulfilling the Act’s purpose. Thus, the Secretary’s 

broad interpretation is consistent with the remedial nature of the Act, its structure, and its 

progressive enforcement scheme of increasingly severe sanctions that are applied when an 

operator incurs repeated violations and refuses to comply. See 30 U.S.C. § 814(d), (e); Pattison 

Sand Co. v. FMSHRC, 688 F.3d 507, 513 (8th Cir. 2012). 

While an operator’s continued refusal to turn over records may not present an immediate 

safety risk, it is nonetheless hazardous in that it hinders the Secretary’s investigations, which are 

intended to ensure operator compliance with the Act’s safety measures. Consequently, the rapid 

abatement of all violations, not only those that present immediate physical hazards, is essential 

for the protection of miners. Otherwise, absent our approval of the Secretary’s interpretation, 

MSHA would have no remedy or leverage to force timely compliance should an operator refuse 

to comply with a reasonable request for information in furtherance of an investigation. 

Accordingly, we conclude that the Secretary’s interpretation of section 104(b) is 

reasonable and entitled to Chevron II deference. We hold that an operator’s failure to abate any 

violation is a sufficient basis for the issuance of a section 104(b) order. 

2. The Secretary has met his burden of proof regarding the section 104(b) order.

Lastly, having determined that MSHA’s issuance of a section 104(b) order was proper

under the circumstances, we now decide whether the Secretary has met his burden of proof 

regarding the validity of the withdrawal order issued to Hopkins due to its failure to abate. 

In general, to establish a prima facie case that a section 104(b) order is valid, the 

Secretary must prove by a preponderance of the evidence that the underlying violation has not 

been abated within the time fixed or extended for abatement. Martinka Coal Co., 15 FMSHRC 

2452, 2455-56 (Dec. 1993), citing Mid-Continent Res., 11 FMSHRC 505, 509 (Apr. 1989). The 

operator may also challenge the reasonableness of the time period set for abatement, or the 

Secretary’s refusal to extend the time period. Energy West Mining Co., 18 FMSHRC 565, 568 

(Apr. 1996). 

In the instant case, it is undisputed that HCC refused to turn over the personnel records 

within the 45-minute abatement time. Investigator Smith determined that the abatement time 

was reasonable and should not have been extended because there was no justification to do so. 

34 FMSHRC at 793. Smith’s refusal was not unreasonable considering that just prior to 

expiration of the abatement period, mine General Manager William Adelman indicated that he 

had no intention of complying. 34 FMSHRC at 793; Tr. 72. Adelman then continued to refuse 

after the section 104(b) order had been issued, which then led to issuance of a section 104(a) 

38 FMSHRC Page 1336
citation for continuing to work in the face of the section 104(b) order. HCC made it clear that 

regardless of the time set for abatement, it would not comply.20 

Accordingly, we conclude that the Judge did not err in finding that the section 104(b) 

Order No. 6694905 was validly issued. 

IV. 

Conclusion 

For the reasons set forth herein, we conclude that the Judge did not err in finding that the 

citations and order were validly issued. Accordingly, Citation Nos. 6694904 and 6694906 and 

Order No. 6694905 are all affirmed. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

20 It has been HCC’s position from the beginning that the Secretary is not entitled to the 

requested personnel records as part of its investigation. See Gov. Ex. 7 at 2 (refusing to release 

records on ground that “there has been no basis established for such request, given that no 

protected activity exists in this case”). HCC did not provide the parts of the record that were 

clearly relevant, while withholding the objectionable parts. In fact, HCC’s counsel stated at the 

oral argument that the personnel records were not necessary because the Secretary could have 

obtained the disparate treatment information through other means, such as interviews. She stated 

that even if a protected activity had been provided, it was HCC’s position that the Secretary was 

not entitled to the requested personnel records because they were not “relevant and necessary” to 

his investigation. Oral Arg. Tr. 19. Therefore, a longer abatement time would not have changed 

the outcome. 

38 FMSHRC Page 1337
Commissioners Young and Althen, dissenting: 

In this case, neither the miner nor MSHA alleged or identified any basis for a claim of 

discrimination under section 105(c). The miner’s complaint asserted insubordination as the 

reason for his discharge, and MSHA failed and refused to identify any basis for a claim of 

discrimination. Nonetheless, the majority upholds imposition of a civil penalty arising from 

MSHA’s demand that the operator search and then produce five years of personnel records 

unrelated to any activity by the claimant miner. The Secretary utterly failed to carry his burden 

of proof of showing a reasonable basis for the document demand. We respectfully dissent. 

Disposition1

Section 103(a) of the Mine Act authorizes the Secretary to make inspections and 

investigations for, inter alia, “determining whether there is compliance with the mandatory 

health or safety standards or with any citation, order, or decision issued under this title or other 

requirements of this Act.” 30 U.S.C. § 813(a). Additionally, section 103(h) requires that 

operators “provide such information, as the Secretary or the Secretary of Health and Human 

Services may reasonably require from time to time to enable him to perform his functions under

this Act.” 30 U.S.C. § 813(h) (emphasis added). Here, the Secretary pursues a function under 

section 105(c) of the Mine Act. 30 U.S.C. § 815(c). The ultimate issue, therefore, is whether the 

Secretary reasonably required disclosure of five years of personnel records of uninvolved mine 

employees when the miner has not alleged discrimination based on protected activity and MSHA 

did not identify any alleged basis for a claim of discrimination. 

Section 105(c) permits a miner who believes he has been discharged “in violation of this 

section” to file a “complaint” with MSHA. The miner initiates the investigation by filing a 

written complaint alleging that he/she suffered adverse employment action because of the 

exercise of a right protected by the Mine Act. There are three prerequisites to a Mine Act 

discrimination case: protected activity, adverse employment action, and a motivational 

connection (a link) between the protected activity and the adverse action. Sec’y of Labor on 

behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other 

grounds, 663 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle 

Coal Co., 3 FMSHRC 803 (Apr. 1981). Therefore, a cognizable claim of discrimination exists 

when a miner or MSHA alleges that the miner engaged in protected activity and suffered adverse 

employment action that was at least partly motivated by the identified protected activity. 

Here, MSHA did not base its demand for five years of personnel records upon any factual 

allegation made by the miner or MSHA to the operator that the miner might have suffered 

1

 Commissioner Young also disagrees with the majority’s analysis of the request here as 

an “administrative subpoena” and incorporates in this opinion his dissent in Warrior Coal, LLC, 

38 FMSHRC ___, slip op. at 15-21, KENT 2011-1259-R et al. (May 17, 2016), appeal docketed, 

No. 16-3646 (6th Cir. June 15, 2016). An MSHA request for documents under section 103(h) is 

not an administrative subpoena. Commissioner Althen continues to agree with observations in 

Commissioner Young’s dissent in Warrior Coal regarding the nature of an administrative 

subpoena versus an MSHA document request as set forth in his separate opinion in Warrior 

Coal. 

38 FMSHRC Page 1338
adverse employment action based upon protected activity. Neither the miner nor MSHA ever 

made any allegation of even possibly unlawful discrimination. The miner himself alleged his 

discharge resulted from his own insubordination and MSHA, without saying more, demanded 

five years of personnel records for employees not connected in any way to the complaining 

miner. 

Robert Gatlin, filed a complaint (Gov’t Ex. 1) and, as required by section 105(c), MSHA 

served that document upon the operator. The alleged complaint, however, is factually defective. 

It plainly did not assert a violation of section 105(c). The so-called complaint did not allege 

either protected activity or any adverse action motivated by unnamed protected activity. In its 

entirety, it alleged: 

I feel that I was unfairly terminated due to being directed to do 

more than my regular job duties on a daily basis, which I would do 

on weekends for extra pay. I also feel that the comment about the 

union played a part in my being discharged. 

I would like my job back, any negative comments deleted from my

personnel file and backpay for the time I’ve been off. I feel that 

my name has been black balled in the mining industry around here 

and they will not hire me. 

Gov’t Ex. 1-2. 

Gatlin’s claim was that he insisted upon doing work on weekends for extra pay. In short, 

he simply refused to do assigned work on a weekday. He does not admit insubordination; he 

proclaims it. In doing so, he does not allege either protected activity or any adverse action 

motivated by protected activity. Thus, he fails to allege even implicitly two out of the three 

elements of a violation of section 105(c). He actually alleges that the operator discharged him 

for a legitimate reason—insubordination. Our colleagues in the majority completely agree that 

Gatlin’s claim did not assert discrimination because of protected activity. Indeed, they devote 

many pages to discussing a specific heading of whether MSHA could “investigate Gatlin’s 

complaint of discrimination although it failed to identify a protected activity.” Slip op. at 5. 

Thus, they concede that the miner’s complaint did not state either protected activity or a nexus to 

adverse action.2

 They further concede, therefore, that from the very outset of MSHA’s 

investigation, it was seeking to find a basis for a claim that had not been made by the miner. 

2

 Miners may initially fail to assert in precise legal terms the elements of a discrimination 

claim in their written complaint. When, as here, a miner’s complaint is facially invalid, MSHA 

is entitled to ask questions and investigate whether any facts asserted by the miner at that point 

might support a discrimination claim—that is, can the miner allege the elements of protected 

activity and adverse action because of such activity. Here, MSHA conducted such a further 

inquiry of Gatlin’s complaint even though Gatlin did not make a claim of protected activity or 

nexus to adverse action. The right to conduct such follow-up to a facially invalid complaint is 

not at issue at this point. Here, the miner, admittedly by the majority, did not at any point state a 

claim of protected activity. Thereafter, MSHA was not investigating a claim; it was hunting to 

(continued...) 

38 FMSHRC Page 1339
Nor does the majority contend that MSHA ever identified any potential claim of 

discrimination because of protected activity. When asked by the operator what the claim was – 

that is, what the protected activity was and what the nexus to discharge was, MSHA failed to 

reply. Plainly, neither the miner nor MSHA ever alleged or otherwise notified the operator of 

any cognizable claim of section 105(c) discrimination as a basis of the need for five years of 

personnel records of other miners. 

Despite the absence of any basis for a discrimination claim, MSHA demanded six 

categories of records from the operator. Of course, the operator only knew that the miner 

complained that insubordination was the reason for his discharge. Through counsel, therefore, 

the operator responded reasonably to the facially unreasonable demand by requesting a statement 

of any alleged protected activity and discrimination asserted by the miner that would serve as a 

reasonable basis for the sweeping document demand. MSHA flat out failed and refused to 

provide any reason for the demand.3 

Nowhere in the record do we find any allegation of the basic elements of a violation of 

section 105(c), by inference or otherwise, from the miner or from MSHA. The miner did not 

even testify at the post-citation hearing. Therefore, without a doubt, Gatlin never alleged a 

cognizable claim. He certainly provided no basis for a reasonable need for years of personnel 

records unrelated to the reason for his discharge. We must accept that this miner knew and 

honestly expressed his objection to his discharge. The miner’s expression of discontent was only 

that the operator did not schedule the miner’s work to permit extra pay on Saturday. Without a 

claim of protected activity or nexus to an adverse action, the miner’s complaint is simply that the 

operator fired him for insubordination. 

For its part, MSHA never supplemented the miner’s complaint with any basis for a claim 

of discrimination or reason that, given the absence of a discrimination claim, it was reasonable to 

demand five years of personnel files. This is particularly important because the requested 

records did not even go to the complaining miner’s conduct. It is difficult to believe the majority 

actually thinks MSHA has authority to investigate every adverse employment action in the 

mining industries through sweeping document demands about uninvolved employees without 

any alleged basis in section 105(c). Yet, that is the inevitable outcome of its decision. 

 In Hatfield v. Colquest Energy, Inc., 13 FMSHRC 544 (Apr. 1991), the Commission 

recognized that the miner’s complaint establishes the contours for subsequent action. When 

2

 (...continued) 

see if it could find a claim. The question here is whether an MSHA demand for disclosure of 

five years of confidential company records is reasonable when no one, neither the miner nor 

MSHA, has provided the respondent with any reasonable legal basis for the disclosure of the 

records. 

3

 Eventually, notwithstanding MSHA’s refusal to identify any basis for a claim of 

protected activity, the operator capitulated with respect to all the demanded documents except 

the five years of personnel records. Upon this refusal, MSHA issued the citation for violation of 

section 103(a). 

38 FMSHRC Page 1340
MSHA found no merit in Hatfield’s initial complaint, he filed a pro se action. The operator 

moved to dismiss the complaint for failure to state a claim, and the Judge issued a Show Cause 

Order. Id. In response, Hatfield filed an amended complaint. Id. at 545. The Judge denied the 

motion to dismiss, and the Commission granted a petition for interlocutory review. Id. at 544. 

On review, the Commission described the structure of section 105(c). It found that 

Hatfield’s original complaint was general in nature and contained no indication of the new 

matters apparently alleged for the first time in the amended complaint. Id. at 546. The 

Commission held that the initial complaint formed the basis of MSHA’s investigation. Id. After 

MSHA refused to act on that initial complaint, the miner could not expand his pro se claim by 

alleging matters not within the scope of the initial complaint and never investigated by MSHA. 

The Commission remanded the case to the Judge to determine if the activities alleged in the 

amended complaint were part of matters investigated by MSHA in connection with the initial 

complaint. Thus, the miner’s subsequent pro se complaint was limited by the terms of his initial 

complaint. 

The recent case of Wilson v. Farris, 38 FMSHRC 341 (Feb. 2016) (ALJ), pet. for 

discretionary rev. denied, Unpublished Notice, KENT 2015-672-D (Mar. 11, 2016), relies upon 

Hatfield to find correctly that, absent a cognizable discrimination claim, there is no reasonable 

basis for permitting sweeping discovery. There, a miner’s representative filed a section 105(c) 

complaint against three rank-and-file miners asserting the miners asked a federal inspector how 

they could get rid of him as a miner’s representative. Id. In a well-reasoned opinion, the 

administrative law judge denied the complainant’s request for discovery and granted summary 

judgment for the respondents. Id. at 353. The miner’s complaint did not state a cognizable claim 

of discrimination. Discovery was thus not warranted. 

In ruling upon Respondents’ Motion for Summary Decision, the 

Court works from the proposition that each of Wilson’s allegations 

in his complaint is taken to be true. Thus, the Court is left ‘only 

with the question of whether, as a matter of law, Complainant has 

alleged a cognizable claim of discrimination under section 105(c) 

of the Mine Act.’ 

Id. at 350. In Wilson, the claimant did not allege the necessary element of adverse action in his 

complaint. The Judge did not allow depositions to be taken in the mere hope of finding some 

element of support for a cognizable claim of discrimination—a type of claim not made in his 

Complaint. More specifically, the Judge found, “[h]aving failed to establish any adverse action, 

it would be entirely inappropriate to saddle Respondents with the expense and time attendant to 

such discovery in Complainant’s attempt to see if he can manufacture a claim, when the four 

corners of Wilson’s complaint utterly fall short.” Id. at 353. The Commission declined to hear 

Wilson’s petition for discretionary review on March 11, 2016. 

Throughout the proceedings in this case, MSHA never made any effort to expand upon or 

in any way provide the operator with any claim of an adverse action motivated in any part by 

38 FMSHRC Page 1341
protected activity that could support the reasonableness of its document demand.4

 It is similarly 

inappropriate here to saddle Respondent with the expense and time attendant to responding to 

MSHA’s fishing expedition in hopes it can manufacture a claim for a miner, when the miner’s 

complaint failed to state one, and the agency after its investigation cannot and/or does not 

articulate any alleged basis for a discrimination claim. 

The majority holds that “the burden was on HCC to raise its concerns regarding the 

reasonableness of the section 103(h) records request prior to issuance of any citation.19 Had 

HCC properly raised these concerns regarding the terms of the request, MSHA would have had 

a duty to discuss the concerns with HCC in good faith.” Slip op. at 17-18 (emphasis added.) In 

footnote 19, the majority evinces a compelling sense of irony saying, “Beyond demanding 

identification of the protected activity, HCC did nothing to remedy the deficiencies it would later 

identify in MSHA’s demand.” 

The operator’s concern with whether there existed a cognizable claim of protected 

activity – that is, whether there was any basis for a claim of discrimination – goes directly to the 

heart of the “reasonableness” of a document request. That is the critical “concern” raised by the 

operator.5

 In the absence of a cognizable claim, there simply was no reasonable basis for a 

4

 The majority relies upon irrelevant dicta in NLRB v. H.P. Townsend Mfg. Co., 101 F.3d 

292 (2d Cir. 1996). Slip op. at 15. The majority fails to acknowledge that the National Labor 

Relations Act grants the NLRB the authority to issue administrative subpoenas enforced by court 

order. 29 U.S.C. § 161(1)-(2). Nor does the majority note that the genesis of the cited case was 

a motion to quash a subpoena duces tecum. H.P. Townsend, 101 F.3d at 293-94. Further, the 

case did not even involve the review of an administrative subpoena but instead whether an 

individual could be bound to an order when the NLRB failed to serve an amended complaint 

naming him as a respondent. Id. at 293. The court distinguished between a charge and a 

complaint in the context of considering a necessary precursor to imposing an order upon a 

private citizen. Id. at 294. In this matter, MSHA seeks to impose a fine upon a private citizen 

without any notice of a cognizable claim to which the demanded documents could be relevant 

and in advance of any judicial determination of the propriety of the document demand. 

5

 On February 6, 2009, the operator’s attorney wrote MSHA “we fail to grasp, and would 

appreciate your identifying, what the alleged protected activity is under this Mine Act 

discrimination complaint.” Gov’t Ex. 3. On February 23, 2009, MSHA sent its document 

demand. Gov’t Ex. 4. On March 16, 2009, MSHA sent a brief follow-up demand for the 

documents. Gov’t Ex. 6. The operator quickly responded, as the majority would require. By 

letter dated March 18, 2009, the operator responded to the demand for five years of personnel 

files, stating, “Hopkins County Coal objects to this request on the basis that there has been no 

basis established for such request, given that no protected activity exists in this case, that the 

company does not release personnel files as requested absent consent from the individual 

employee, and that, otherwise, no employee other than Mr. Gatlin was disciplined, reprimanded 

or terminated for engaging in the conduct which led to his own termination.” Gov’t Ex. 7. This 

request did not result “in good faith discussion” by MSHA. Instead, in action directly contrary 

to the majority’s holding, MSHA sent a one-page letter on March 20, 2009, without any 

information whatsoever regarding any basis for a discrimination claim that would make the 

(continued...) 

38 FMSHRC Page 1342
demand of five years of personnel records. MSHA did not even offer to discuss the operator’s 

legitimate concern.6

 

Having held that MSHA had a legal obligation to discuss the operator’s concerns, the 

majority does not, and cannot, cite any evidence that MSHA was willing to engage in any such 

good faith discussions with the operator notwithstanding the operator’s requests. MSHA never 

addressed in any way other than through citation the operator’s legitimate concern that MSHA 

demanded confidential documents even though neither the miner nor MSHA claimed even any 

possible basis for finding adverse action because of protected activity. Clearly, that was an 

“operator concern.” Yet, MSHA refused to discuss it. The majority’s own holding completely 

undercuts its decision. 

Unable to provide a colorable basis for its document request, MSHA simply stonewalled 

the operator’s counsel’s request for a charge of protected activity within the scope of section 

105(c) or any nexus with adverse employment action. The only attempt made by MSHA to 

allege protected activity occurred at the hearing—that is, after the operator necessarily had to 

decide whether to capitulate or assert its rights and face a civil penalty. Even then, the hearing 

record fails to identify any allegation of any connection between any protected activity and an 

adverse employment action.7 

The records demanded by MSHA do not go to the complainant’s performance or any 

actions with respect to him. The majority states the “records would corroborate or undermine 

5

 (...continued) 

request reasonable, but instead advising that inspectors would be at the mine on March 23 and a 

terse, “We expect that the personnel files will be provided to Investigators Smith and Adamson 

at this time.” Gov’t Ex. 8. The final two steps are a letter from the operator’s counsel dated 

March 23, 2009 stating, “[L]et me again reiterate that the agency has repeatedly delayed and 

refused to answer a simple question to which my client is entitled: What is the protected activity 

in this case? If that question cannot be answered, then the agency has no case to investigate, no 

jurisdiction, no entitlement and no basis upon which to make any request.” Gov’t Ex. 9. That 

same day MSHA issued the citation. Gov’t Ex. 10. We search the record in vain for any 

evidence of a willingness of MSHA to engage, let alone actual engagement, in good faith 

discussions over the request. This failure is especially compelling because the requested 

documents do not even go to whether the miner engaged in any protected activity. 

6

 Footnote 19 also begs the question: What could the operator do to “remedy the 

deficiencies in the MSHA’s demand”? The deficiency was that MSHA did not provide any 

reasonable basis for it. Only MSHA could remedy that deficiency. 

7

 In a footnote, the majority complains that other than “demanding identification of the 

protected activity, HCC did nothing to remedy the deficiencies it would later identify in MSHA’s 

demand.” Slip op. at 17 n.19. The operator’s request to find out the basis for an assertion of a 

cognizable claim of discrimination was an effort to remedy a deficiency in the demand—namely, 

the demand did not relate to any cognizable claim. The majority fails to explain how the 

operator could “remedy” the principal deficiency that no cognizable claim of protected activity 

existed. 

38 FMSHRC Page 1343
Gatlin’s allegations of disparate treatment.” Slip op. at 17. However, there is no evidence in this 

record that Gatlin ever made any allegation of disparate treatment. Further, there is no evidence 

anywhere in the record that MSHA had any reason to investigate disparate treatment or asserted 

to the operator that possible disparate treatment was a reason it wanted records. By 

manufacturing an unspoken reason for demanding the records, the majority essentially 

acknowledges that the demand was a fishing expedition by MSHA to see if it could find a basis 

for a claim that had not been made by the miner. 

Remarkably, the miner did not testify at the hearing. Only one inspector testified for 

MSHA. He admitted that the demanded personnel records would not be helpful in determining 

whether the miner engaged in protected activity. Tr. 95. The inspector also admitted that 21 

days after the filing of the complaint (the target date for filing a Request for Temporary 

Reinstatement), he had no idea of protected activity by Gatlin. Tr. 86, 89. The inspector further 

agreed that MSHA did not notify the operator of any protected activity. Tr. 88. Indeed, the 

inspector conceded that on the very day he issued the citation—March 23, which was 62 days 

after the miner filed the complaint—the inspector still did not know of any protected activity by 

the complaining miner other than insubordination. Tr. 101-02.8 Therefore, prior to the citation 

and even the hearing, MSHA neither had nor had presented the operator with any claim of 

protected activity that might form the first predicate for a section 105(c) claim.9 

8

 The Inspector’s testimony was, 

Q. Okay, now, as of March 23rd, had you determined what the protected activity

was?

A. No.

Q. Okay. So you still don’t know what conduct it is you’re looking for?

A. I do know what the conduct was, insubordination.

Tr. 101-02. The inspector testified only that Gatlin was a belt examiner and that he had 

unidentified “suspicions” of protected activity. He did not describe what those suspicions were 

or how those suspicions could have related to adverse action. Hundreds of miners are examiners. 

Every mining position entails duties that may result in the miner engaging in protected activity. 

Having a job in a mine does not constitute “protected activity” within the meaning of section 

105(c). 

9

 The majority emphasizes that when, as here, a miner requests temporary reinstatement, 

MSHA’s preliminary investigation “must determine only whether there may be validity to the 

miner’s claim, or in other words, that the claim was ‘not frivolously brought.’” Slip op. at 9 

(emphasis in original). MSHA did not seek temporary reinstatement for the miner within the 62 

days between the filing of the demand for documents unrelated to protected activity of the 

claimant and the issuance of the citation. Therefore, according to our colleagues, MSHA had not 

even determined the miner’s complaint was not frivolous. Yet, MSHA penalized the operator for 

refusing to provide documents unrelated to the claimant’s conduct while MSHA also refused to 

explain the basis for the need for such documents despite the operator’s repeated requests. 

(continued...) 

38 FMSHRC Page 1344
MSHA’s failure was fundamental; it refused to provide any reason-based claim of any 

alleged protected activity upon which the miner could base a complaint under section 105(c).10 

Further, neither the miner nor MSHA ever stated any connection between any of the unidentified 

protected activity and any adverse employment action. MSHA simply insisted upon production 

of the documents without providing any legal basis for its request, beyond strong-arming the 

operator with demands and threats. This is not an issue of an operator having a right to know the 

full extent of a miner’s contentions; it is an issue of MSHA failing to provide any reasoned basis 

for the mandatory production of records. 

Without an assertion of protected activity and nexus to adverse action, there is no 

“complaint of discrimination” upon which to base a “reasonable” request for years of personnel 

records. It is only a complaint that “I got fired and I do not like it.” The Secretary’s position, 

stated most succinctly, is that there need not be an allegation of a section 105(c) violation in 

order to compel delivery of extensive files. The Secretary asserts, and the majority would 

wrongly grant MSHA, a carte blanche right to records under section 105(c) even when neither 

MSHA nor the complainant alleges that there is an actual claim of discrimination on the table. 

Our colleagues accept that position as reasonable. We vigorously disagree. 

Under the majority’s reasoning, the statutory requirement that the miner file a 

“complaint” that is served on the operator has no purpose. It is merely a notice that a miner has 

asked MSHA to investigate an adverse employment action without an actual claim of section 

105(c) discrimination. Then, MSHA—without a claim of, or any basis for a claim of, any 

possible protected activity or any possible nexus to adverse action—may demand whatever it 

wishes including five years of personnel records that have nothing whatsoever to do with 

whether the subject miner engaged in protected activity. Effectively, under the majority’s 

reasoning, MSHA may make a plenary demand for documents without demonstrating there has 

been an actual claim of discrimination. 

To the majority, MSHA has absolute authority to investigate through extensive document 

demands the possibility of disparate treatment although neither the miner nor MSHA had 

9

 (...continued) 

MSHA never provided any evidence that it even had a colorable claim of discrimination and, 

certainly, never provided the operator with any reasonable basis for disclosure of years of 

personnel records. 

10 At most, the inspector stated that the complainant “alluded” to some things that “did 

not pan out.” Tr. 112. Attempting to cover this defect, the Secretary’s counsel implicitly 

suggested that the inspector should testify without identifying any claim of protected activity 

because MSHA prefers not to let the respondent know the nature of the claim against it. Tr. 48. 

Consequently, MSHA seeks to impose a monetary penalty for a failure to produce records 

claiming that it need not even support its demand to the adjudicatory body evaluating whether to 

assess the demanded penalties. Apparently, even at the adjudication stage, the majority asks that 

we simply assume there might have been a basis for the inspector’s unsupported “suspicions” of 

some unidentified protected activity. 

38 FMSHRC Page 1345
articulated any claim of protected activity or a nexus between protected activity and an adverse 

action. That is nonsense. 

Even when agencies are empowered with the right to issue administrative subpoenas, 

federal courts do not permit fishing expeditions in the absence of an actual claim. For example, 

the Seventh Circuit will not enforce an administrative subpoena for documents when that 

claimant has not made a cognizable claim of discrimination. EEOC v. United Air Lines, Inc.,

287 F.3d 643, 654-55 (7th Cir. 2002) (“Nothing in the charge suggests systemic discrimination 

on the basis of national origin or sex with respect to life, health, disability and leave benefits.”). 

Similarly, nothing in this miner’s charge or MSHA’s conduct suggests discrimination based on 

protected activity. 

The majority fails to come to grips with the fundamental problem in this case. Section 

103 requires that document requests be “reasonable.” This means that MSHA must provide a 

reasonable basis for the request for the demand. The majority focuses on irrelevancies such as 

specificity, quantity, and five-year period without ever dealing with the actual problem. MSHA 

never explained why, or identified any claim with respect to which, the records were reasonably 

necessary. Without an explained connection between an even possibly cognizable claim of 

discrimination and the requested documents, the demand is simply an unfettered investigation to 

see if MSHA can manufacture a claim when no claim has been made. Federal courts reviewing 

administrative subpoenas do not permit fishing expeditions such as MSHA undertook in this 

case.11 See, e.g., EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d 757 (11th Cir. 2014) 

(company-wide information need not be produced in connection with investigation of allegation 

by specific individual); EEOC v. Burlington N. Santa Fe R.R., 669 F.3d 1154, 1157-58 (10th Cir. 

2012) (court refused to enforce broad subpoena in charge filed by two complainants); EEOC v. 

Kronos Inc., 620 F.3d 287 (3d Cir. 2010); EEOC v. S. Farm Bureau Cas. Ins. Co., 271 F.3d 209 

(5th Cir. 2001) (EEOC not entitled to subpoena information about gender of employees as part of 

investigation of employer on race discrimination charge under Title VII); In re McVane, 44 F.3d 

1127 (2d Cir. 1995); EEOC v. K-Mart Corp., 694 F.2d 1055, 1066 (6th Cir. 1982) (“[T]he 

subpoena cannot be so broadly stated as to constitute a ‘fishing expedition.’”). 

 In EEOC v. Kronos Inc., 620 F.3d at 300-02, the Third Circuit refused to enforce a 

subpoena by the Equal Employment Opportunity Commission seeking files relative to possible 

race discrimination when the complaint before it was for discrimination on the basis of disability. 

As here, no facial claim of the type of discrimination the agency sought to investigate was 

pending before the agency. There, at least, there was a cognizable charge of another form of 

discrimination. Nonetheless, a demand for documents to support an investigation into a form of 

discrimination for which there was not a cognizable complaint was not reasonable. It was a 

fishing expedition. Fishing expeditions simply are not reasonable. 

11 This is especially important under the Mine Act because MSHA does not have the 

authority to issue administrative subpoenas. As a result, the Mine Act does not afford any predisclosure hearing rights to challenge a request in the first instance. MSHA’s power to enforce 

document requests through issuance of penalty is a powerful coercive weapon. It is especially 

important, therefore, for the Commission to be scrupulous in requiring that MSHA provide a 

reasonable basis for document demands that an operator may refuse only at significant 

immediate peril. 

38 FMSHRC Page 1346
There simply is nothing in the allegations by Gatlin or MSHA’s preliminary investigation 

that alleged protected activity or adverse action based on protected activity and nothing MSHA 

said changes that fatal fact. When there is not even a claim of protected activity or adverse 

action based on protected activity by the miner or MSHA, a request for five years of personnel 

records is a fishing expedition not authorized by the statute as a reasonable request. 

The miner filed an honest statement that he refused to do work unless he could do it for 

more pay on weekends. He suffered the predictable consequences from a refusal to work—

discharge. That claim, without any subsequent information or explanation by MSHA alleging 

protected activity or such activity as a motivating factor for adverse action, does not provide a 

reasonable basis for an invasive document request under section 105(c). 

We respectfully dissent. 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 1347
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

June 30, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH Docket Nos. LAKE 2013-66 

 ADMINISTRATION (MSHA) LAKE 2012-506 

LAKE 2013-251 

v. LAKE 2013-252 

LAKE 2013-307 

BIG RIDGE, INC. LAKE 2012-896 

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

DECISION APPROVING SETTLEMENT 

BY THE COMMISSION: 

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

30 U.S.C. § 801 et seq. (2012) (“Mine Act”), involve Order No. 8445268 in Docket No. LAKE 

2013-66, which was issued by the Department of Labor’s Mine Safety and Health 

Administration to Big Ridge, Inc. Big Ridge contested the order and associated civil penalty 

before a Commission Administrative Law Judge, who issued a decision in the case on April 16, 

2014. 36 FMSHRC 999 (Apr. 2014) (ALJ). 

Order No. 8445268 was issued under section 104(d)(1) of the Mine Act, 30 U.S.C. 

§ 814(d)(1), for a violation of the electrical equipment examination requirements set forth in 30

C.F.R. § 75.512. The Secretary alleged that the violation was an unwarrantable failure to comply

with a mandatory standard that resulted from the operator’s high negligence, and proposed a

penalty of $25,810. The Judge removed the unwarrantable failure designation, determined that

Big Ridge had acted with moderate negligence, and assessed a penalty of $15,000 for this

violation. 36 FMSHRC at 1024-25, 1046. The Secretary of Labor filed a petition for

discretionary review (“PDR”), which we granted. The Secretary’s PDR sought to reverse the

Judge’s changes to the unwarrantable failure and negligence designations for this order, as well

as a higher penalty. Neither party sought review of the remaining citations, orders, or their

associated penalties.

The Secretary and Big Ridge subsequently filed a joint motion requesting that the 

Commission approve a settlement agreement between the parties. The request for approval of 

settlement was filed in accordance with section 110(k) of the Mine Act, 30 U.S.C. § 820(k), 

which provides, in relevant part, that “[n]o proposed penalty which has been contested before the 

Commission under section 105(a) shall be compromised, mitigated, or settled except with the 

approval of the Commission.” Commission Procedural Rule 31(a) provides that a “proposed 

penalty that has been contested before the Commission may be settled only with the approval of 

38 FMSHRC Page 1348
the Commission upon motion.” 29 C.F.R. § 2700.31(a). The movant is required to provide “facts 

in support of the penalty agreed to by the parties.” 29 C.F.R. §§ 2700.31(b)(1), (c)(1). 

In their joint filing, the parties seek to settle this matter for the $15,000 penalty assessed 

by the Judge for Order No. 8445268. This amount is a reduction from the Secretary’s original 

penalty proposal of $25,810. 36 FMSHRC at 1025. The parties have also agreed that the 

Secretary’s original unwarrantable failure and high negligence designations will be restored. 

The parties’ joint request for approval of settlement is granted. In light of the factual 

justifications provided by the parties, we determine that the penalty is appropriate under the 

criteria set forth in section 110(i) of the Mine Act, 30 U.S.C. § 820(i). We further find that the 

terms of the settlement are supported by the record, in accordance with Commission case law. 

See Black Beauty Coal Co., 34 FMSHRC 1856, 1864 (Aug. 2012), citing Knox Ct.y Stone Co., 3 

FMSHRC 2478, 2480 (Nov. 1981). Finally, we note that the Willow Lake Portal Mine, where 

the violation took place, has been permanently closed. 36 FMSHRC at 1037. Because the 

operator has paid the assessed penalties in full, Big Ridge owes no further payment in executing 

the terms of the settlement. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 1349

COMMISSION ORDERS
38 FMSHRC Page 1350
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

June 7, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

TUNNEL RIDGE, LLC 

Docket No. 

A.C. No. 

WEVA 2014-962 

46-08864-345488

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

ORDER

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

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

801 et seq. (2012) (“Mine Act”). On May 21, 2014, the Commission received from Tunnel 

Ridge, LLC (“Tunnel Ridge”) 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 March 19, 2014, and became 

a final order of the Commission on April 18, 2014. Tunnel Ridge asserts that it failed to timely 

contest the proposed assessment because it currently has only a part time safety director. Tunnel 

Ridge says that it will hire a full-time safety director in the near future to ensure that future 

38 FMSHRC Page 1351
penalty assessments are timely contested. The Secretary does not oppose the request to reopen, 

but urges the operator to take steps to ensure that future penalty contests are timely filed. 

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

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

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

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 1352
Commissioner Cohen, dissenting: 

I dissent from my colleagues’ decision to reopen this proceeding, and conclude that 

Tunnel Ridge has not established good cause for its failure to timely respond. The crux of the 

operator’s motion is that it failed to timely file because it did not have a full-time Safety Director 

on staff. I conclude that a large coal mine’s failure to timely file a notice of contest is not 

excused because the mine lacks a full-time Safety Director. 

In its motion to reopen, Tunnel Ridge represents that beginning in January 2014, it began 

to phase out the Safety Director’s responsibilities while it searched for a new Safety Director. 

Thus, its Safety Director worked in this capacity only on a part-time basis. MSHA’s proposed 

assessment was received on March 19, 2014. The part-time Safety Director did not discover that 

the proposed assessment had gone uncontested until May 5, 2014, and attempted to file a contest 

of some of the proposed penalties then. After MSHA rejected the attempted contest as untimely, 

the motion to reopen was filed on May 20, 2014. Tunnel Ridge states that at the time it filed the 

motion with the Commission it was still seeking to hire a full-time Safety Director. Mot. at 2. 

Apparently, the mine had lacked a full-time Safety Director for a period that stretched for almost 

five months. 

Tunnel Ridge operates a large coal mine. At the time the citations were issued, the mine 

produced over two million tons of coal annually, and its controlling entity produced over ten 

million tons of coal annually.1

 

Tunnel Ridge’s decision to phase out the responsibilities of its Safety Director before a 

new Safety Director was hired was a self-imposed problem that does not justify relief pursuant to 

Rule 60(b). The prolonged absence of a full-time Safety Director at a large coal mine 

demonstrates a complacency toward the operator’s responsibilities under the Mine Act that 

should neither be condoned nor deemed “excusable neglect” by the Commission. 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

1

 The Proposed Assessment reflects that MSHA assigned the mine 15 out of 15 “Mine 

Points” and 10 out of 10 “Controller Points.” Proposed Assessment Case No. 000345488; see 

also 30 C.F.R. § 100.3. 

38 FMSHRC Page 1353
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

June 27, 2016 

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

 

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). 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. 

RIVER VIEW COAL, LLC 

 

Docket No. KENT 2016-26 

A.C. No. 15-19374-389074 

38 FMSHRC Page 1354
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/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 1355
Distribution: 

Kevin Vaughn 

Director of Safety and Training 

River View Coal, LLC 

835 SR 1179 

Waverly, KY 42462 

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 401 

Arlington, VA 22202-5450 

38 FMSHRC Page 1356
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

June 27, 2016 

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). 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. 

ESSROC SAN JUAN 

Docket No. SE 2016-23-M 

A.C. No. 54-00120-388990

38 FMSHRC Page 1357
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/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

 

38 FMSHRC Page 1358
Distribution: 

Robert Huston Beatty, Jr. 

Lorna Waddell 

Dinsmore & Shohl LLP 

215 Don Knotts Blvdd., Suite 310 

Morgantown, WV 26501 

Jason M. Nutzman 

Dinsmore & Shohl LLP 

900 Lee Street, Suite 600 

Charleston, WV 25301 

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 401 

Arlington, VA 22202-5450 

38 FMSHRC Page 1359
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

June 27, 2016 

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). On August 21, 2015, the Commission received from Baillio

Sand Co., Inc., (“Baillio”) a motion seeking to reopen a penalty assessment that had appeared to

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

§ 815(a).

On June 17, 2015, the Secretary mailed the proposed assessment to Baillio by U.S. Postal 

Service Certified Mail. On August 17, 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 days. 

Baillio asserts that it never received the proposed assessment. Tracking information 

submitted by Baillio shows that the proposed assessment reached the Virginia Beach, VA post 

office on June 20, 2015, but does not show that the proposed assessment was delivered. The 

Secretary states that the U.S. Postal Service was not able to locate a signed delivery receipt. The 

Secretary does not oppose the request to reopen, but notes that the proposed assessment was 

mailed to the address of record on Baillio’s Mine ID report. The Secretary asserts that he has 

sent other proposed assessments, which Baillio has contested, to this address. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

BAILLIO SAND COMPANY, INC. 

Docket No. VA 2015-300-M 

A.C. No. 44-06068-384434

38 FMSHRC Page 1360
Having reviewed Baillio’s request and the Secretary’s response, we conclude that the proposed 

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

receive the proposed assessment. See 29 C.F.R. § 2700.26 (“[a] person has 30 days after receipt 

of the proposed penalty assessment within which to notify the Secretary that he contests the 

proposed penalty assessment.”) 

Accordingly, Baillio’s motion to reopen is moot, and this case is remanded to the Chief 

Administrative Law Judge for further proceedings pursuant to the Mine Act and the 

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 1361
Distribution: 

Adele L. Abrams, Esq. 

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

4740 Corridor Place, Suite D 

Beltsville, MD 20705 

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 401 

Arlington, VA 22202-5450 

38 FMSHRC Page 1362
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

June 27, 2016 

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). On October 1, 2015, the Commission received from Gateway

Eagle Coal Company, LLC (“Gateway Eagle”), a motion to reopen Docket No. WEVA 2016-1.

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

v. 

GATEWAY EAGLE COAL 

 COMPANY, LLC 

Docket No. WEVA 2016-1 

A.C. No. 46-08637-380428

38 FMSHRC Page 1363
Gateway Eagle thereafter requested to withdraw its motion to reopen in Docket No. WEVA 

2016-1. 

We hereby grant Gateway Eagle’s motion to withdraw in Docket No. WEVA 2016-1. 

Accordingly, this case is dismissed. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 1364
Distribution: 

Jonathan R. Ellis 

Katrina N. Bowers 

Steptoe & Johnson PLLC 

P.O. Box 1588 

Charleston, WV 25326-1588 

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 401 

Arlington, VA 22202-5450 

38 FMSHRC Page 1365
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710

June 27, 2016 

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). 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. 

GIBRALTAR ROCK, INC. 

Docket No. YORK 2015-154-M 

A.C. No. 28-00021-365489

38 FMSHRC Page 1366
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/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 1367
Distribution: 

Thomas Benjamin Huggett 

Littler Mendelson, PC 

Three Parkway 

1601 Cherry Street, Suite 1400 

Philadelphia, PA 19102-1321 

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 401 

Arlington, VA 22202-5450 

38 FMSHRC Page 1368
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

June 28, 2016 

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). On October 29, 2015, the Commission received from Shane

Horton a motion seeking to reopen a discrimination proceeding and relieve him from the Default

Order entered against him.

On June 10, 2015, Judge Zane Gill issued an Order to Show Cause in response to 

Horton’s perceived failure to communicate with the court or participate in settlement 

negotiations.1

 When Horton did not file a response within 30 days, the Judge entered an order of 

dismissal effective July 21, 2015. 

Horton asserts that he did not receive the Order to Show Cause because the Judge used 

the wrong P.O. Box number on correspondence intended for him. Commission records show 

that Horton stated in his initial discrimination complaint to MSHA and his section 105(c)(3) 

complaint to the Commission that his address was P.O. Box 164, Danville, West Virginia. 

However, the Secretary’s discrimination determination letter was mailed to P.O. Box 803. The 

Judge appears to have adopted the latter address in all of his attempted correspondence with 

Horton. 

Coal River Mining opposes Horton’s motion to reopen. The operator argues, inter alia, 

that Horton failed to demonstrate justifiable circumstances or good cause to excuse the 

significant delay between the accident he alleges as the basis of his harassment and the filing of 

his original complaint to MSHA. 

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

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

1

 Judge Gill was assigned this case on March 27, 2014. In his Order to Show Cause, he 

stated that “[w]e have no record of any communications or filings from Shane Horton since I was 

assigned this case in March 2014.” However, the record shows that Mr. Horton wrote a letter to 

Chief Judge Robert J. Lesnick on April 26, 2014. Mr. Horton had also written a lengthy letter to 

Judge Lesnick, with evidence attached, on March 10, 2014. 

SHANE HORTON 

v. 

COAL RIVER MINING, LLC 

Docket No. WEVA 2013-1183-D 

MSHA Case No.: HOPE-CD-2012-14 

38 FMSHRC Page 1369
decision may be sought by filing a petition for discretionary review within 30 days of its 

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

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

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

decision of the Commission. 

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). 

Having reviewed Horton’s request and the operator’s response, in the interest of justice, 

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

remanded to the Administrative Law Judge for further proceedings pursuant to the Mine Act and 

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 1370
Distribution: 

Shane Horton 

P.O. Box 164 

Danville, WV 25053 

Max L. Corley, III, Esq. 

Dinsmore & Shohl LLP 

707 Virginia St., Suite 1300 

Charleston, West Virginia 25301 

Chief Administrative Law Judge Zane Gill 

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 401 

Arlington, VA 22202-5450 

38 FMSHRC Page 1371
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

June 30, 2016 

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). On March 23, 2016, the Commission received a joint motion

seeking to reopen 562 penalty assessments issued to subsidiaries of Patriot Coal Corporation

(“Patriot”) that had become final orders of the Commission pursuant to section 105(a) of the

Mine Act, 30 U.S.C. § 815(a).

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

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

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

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

1

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

docket numbers WEVA 2016-324, WEVA 2016-325, WEVA 2016-326, WEVA 2016-327, 

WEVA 2015-343, WEVA 2016-344, WEVA 2016-322, WEVA 2016-323, WEVA 2016-303, 

WEVA 2016-304, WEVA 2016-305, WEVA 2016-306, WEVA 2016-307, WEVA 2016-308, 

WEVA 2016-309, WEVA 2016-310, WEVA 2016-311, WEVA 2016-312, WEVA 2016-313, 

WEVA 2016-315, WEVA 2016-316, WEVA 2016-317, WEVA 2016-318, WEVA 2016-319, 

WEVA 2016-320, WEVA 2016-321, WEVA 2016-328, WEVA 2016-329, WEVA 2016-330, 

WEVA 2016-332, WEVA 2016-333, WEVA 2016-334, WEVA 2016-335, KENT 2016-288, 

WEVA 2016-340, WEVA 2016-341, WEVA 2016-342, WEVA 2016-336, WEVA 2016-337, 

WEVA 2016-338, WEVA 2016-339, WEVA 2016-348, WEVA 2016-351, WEVA 2016-282, 

WEVA 2016-295, WEVA 2016-296, WEVA 2016-297, WEVA 2016-298, WEVA 2016-299, 

WEVA 2016-300, WEVA 2016-301, WEVA 2016-302, WEVA 2016-345, WEVA 2016-346, 

WEVA 2016-476, and WEVA 2016-347 involving similar procedural issues. 29 C.F.R. § 

2700.12. For the sake of brevity, the relevant operator’s names, A.C. numbers, and associated 

docket numbers have been listed in Exhibit 1, attached to this order. 

2 On June 16, 2016, the parties filed a joint motion to reopen an additional penalty 

assessment in addition to the 55 penalty assessments in their original motion. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

v. 

APOGEE COAL COMPANY, LLC, et 

 al.1

 

38 FMSHRC Page 1372
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 or about May 12, 2015, Patriot filed for Chapter 11 bankruptcy in the U.S. District 

Court for the Eastern District of Virginia. Pursuant to the court-confirmed reorganization plan, 

Patriot was required to sell substantively all of its assets. For the vast majority of cases, Patriot 

contends that, due to the issues surrounding the bankruptcy and change in ownership, it was 

unable to timely contest penalties issued between the time that it declared bankruptcy and when 

it was able to transfer ownership of its mines. For other cases, Patriot claims that ongoing 

settlement negotiations made it unclear which penalties needed to be contested. The Secretary 

agrees that these cases should be reopened. 3 

Since the parties filed the joint motion to reopen, events have transpired that affect our 

consideration of the joint motion. Eastern Associated Coal, LLC, a subsidiary of Patriot, had a 

motion to reopen Case No. 000389549 (Docket No. WEVA 2016-61) pending before the 

Commission prior the filing of the joint motion. However, the joint motion also requested that 

this case be reopened. On April 5, 2016, the Commission granted Eastern Associated Coal’s 

motion and reopened the case, rendering the joint motion to reopen Docket No. WEVA 2016-

308 moot. 

Additionally, in an email dated April 12, 2016, the parties informed the Commission that 

Case No. 000402707 was not a final order at the time the joint motion was filed and that Midland 

Trail Energy subsequently filed a timely contest. The contest has since been docketed by the 

Commission as WEVA 2016-390. As the penalties in this case never became final orders of the 

Commission, the joint motion to reopen Docket No. WEVA 2016-339 is moot. 

3

 While it does not affect our consideration of the joint motion, we note that the parties 

have reached a proposed global settlement as to the all of the proposed penalties. In exchange 

for the Secretary accepting lower penalty amounts, Patriot has agreed that the Secretary will not 

be treated as a general unsecured creditor under the reorganization plan. Pursuant to 29 C.F.R. 

§ 2700.31, approval of the proposed settlement will be subject to Commission review on remand.

38 FMSHRC Page 1373
Having reviewed the joint motion, we conclude that the motion to reopen Docket Nos. 

WEVA 2016-308 and WEVA 2016-339 are moot. As for the remaining cases, we hereby reopen 

these matters4 and remand them 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, the Secretary shall file petitions for assessment of penalty in each case within 45 

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

4

 Subsequent to the filing of the joint motion, the parties informed the Commission that 

they only sought to reopen certain penalties associated with Case Nos. 000393531 (WEVA 

2016-332), 000394461 (WEVA 2016-351), 000393293 (WEVA 2016-296), and 000394895 

(WEVA 2016-305). Accordingly, we reopen those penalties specified in Exhibit 2, attached to 

this order. 

38 FMSHRC Page 1374
Distribution: 

Michael T. Cimino, Esq. 

Jackson Kelly PLLC 

P.O. Box 553 

Charleston, WV 25322 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 401

Arlington, VA 22202-5450

Robert S. Wilson, Esq. 

Regional Solicitor’s Office 

U.S. Department of Labor 

102 12th Street South, Suite 401 

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 401 

Arlington, VA 22202-5450 

38 FMSHRC Page 1375
Exhibit 1 

Operator Docket Number A.C. Number

Apogee Coal Company, LLC WEVA 2016-324 46-01368-393525

Apogee Coal Company, LLC WEVA 2016-325 46-01368-395956

Apogee Coal Company, LLC WEVA 2016-326 46-08939-400382

Apogee Coal Company, LLC WEVA 2016-327 46-08939-398390

Brody Mining, LLC WEVA 2015-343 46-09086-398610

Brody Mining, LLC WEVA 2016-344 46-09086-396167

Catenary Coal Company, LLC WEVA 2016-322 46-07178-394670

Catenary Coal Company, LLC WEVA 2016-323 46-07178-392504

Eastern Associated Coal, LLC WEVA 2016-303 46-01456-392345

Eastern Associated Coal, LLC WEVA 2016-304 46-01456-401466

Eastern Associated Coal, LLC WEVA 2016-305 46-01456-394895

Eastern Associated Coal, LLC WEVA 2016-306 46-03135-394896

Eastern Associated Coal, LLC WEVA 2016-307 46-03135-397257

Eastern Associated Coal, LLC WEVA 2016-308 46-06448-389549

Eastern Associated Coal, LLC WEVA 2016-309 46-09152-389555

Eastern Associated Coal, LLC WEVA 2016-310 46-09152-392353

Eastern Associated Coal, LLC WEVA 2016-311 46-09152-394901

Eastern Associated Coal, LLC WEVA 2016-312 46-09152-397265

Eastern Associated Coal, LLC WEVA 2016-313 46-09152-397265

Eastern Associated Coal, LLC WEVA 2016-315 46-08610-397263

Emerald Processing, LLC WEVA 2016-316 46-08759-393297

Emerald Processing, LLC WEVA 2016-317 46-08759-398125

Emerald Processing, LLC WEVA 2016-318 46-08993-398129

Emerald Processing, LLC WEVA 2016-319 46-09258-393310

Emerald Processing, LLC WEVA 2016-320 46-09258-398137

Emerald Processing, LLC WEVA 2016-321 46-03085-398118

Gateway Eagle Coal Company, LLC WEVA 2016-328 46-06618-390824

Gateway Eagle Coal Company, LLC WEVA 2016-329 46-06618-393529

Gateway Eagle Coal Company, LLC WEVA 2016-330 46-06618-398383

Gateway Eagle Coal Company, LLC WEVA 2016-332 46-08637-393531

Gateway Eagle Coal Company, LLC WEVA 2016-333 46-08637-390827

Gateway Eagle Coal Company, LLC WEVA 2016-334 46-08637-400380

Gateway Eagle Coal Company, LLC WEVA 2016-335 46-08637-398386

Grand Eagle Mining, LLC KENT 2016-288 15-16231-393377

Hobet Mining, LLC WEVA 2016-340 46-04670-393291

Hobet Mining, LLC WEVA 2016-341 46-05398-393292

Hobet Mining, LLC WEVA 2016-342 46-05398-398120

Midland Trail Energy, LLC WEVA 2016-336 46-09297-393779

Midland Trail Energy, LLC WEVA 2016-337 46-09297-396169

Midland Trail Energy, LLC WEVA 2016-338 46-09297-398612

Midland Trail Energy, LLC WEVA 2016-339 46-09297-402707

Remington, LLC WEVA 2016-348 46-09230-396828

Remington, LLC WEVA 2016-351 46-09230-394461

38 FMSHRC Page 1376
Speed Mining, LLC WEVA 2016-282 46-05437-398121

Speed Mining, LLC WEVA 2016-295 46-05437-402270

Speed Mining, LLC WEVA 2016-296 46-05437-393293

Speed Mining, LLC WEVA 2016-476 46-05437-406785

Speed Mining, LLC WEVA 2016-297 46-09099-390556

Speed Mining, LLC WEVA 2016-298 46-09099-393305

Speed Mining, LLC WEVA 2016-299 46-09099-398132

Speed Mining, LLC WEVA 2016-300 46-08571-393296

Speed Mining, LLC WEVA 2016-301 46-08571-398124

Thunderhill Coal Company WEVA 2016-302 46-08818-393301

Wildcat Energy, LLC WEVA 2016-345 46-09427-398396

Wildcat Energy, LLC WEVA 2016-346 46-09427-390835

Wildcat Energy, LLC WEVA 2016-347 46-09427-393540

38 FMSHRC Page 1377
Exhibit 2 

Eastern Associated Coal, LLC WEVA 2016-305 46-01456-394895 

Citation/ Order Nos.: 

9084090 9084135 9084100 

9084130 9084097 9084139 

9084092 9084098 9084101 

9084131 9084136 9084102 

9084093 9084137 9084140 

9084133 9084138 9084143 

9084134 

 

Gateway Eagle Coal Company, LLC WEVA 2016-332 46-08637-393531 

Citation/ Order Nos.: 

9055817 9059323 9059325 

9055819 9009770 9059327 

9059321 9009771 

 

Remington, LLC WEVA 2016-351 46-09230-394461 

Citation/ Order Nos.: 

9008107 9008112 9008116 

9008108 9008113 9008117 

9008109 9008115 9052207 

9008110 9054964 9052208 

9008111 9053404 

 

Speed Mining, LLC WEVA 2016-296 46-05437-393293 

Citation/ Order Nos.: 

9052040 9055592 9056072 

9052044 9007911 9055595 

9052045 9055593 9056073 

9052046 9059120 9052327 

9055591 9059121 9055596 

 

38 FMSHRC Page 1378
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

June 6, 2016 

AMENDED DECISION AND ORDER 

Appearances: Thomas J. Motzny, Esq., Office of the Solicitor, U.S. Dept. of Labor, 

Nashville, Tennessee for Petitioner 

Christopher D. Pence, Esq., Hardy Pence, PLLC, Charleston, West

Virginia for Respondent 

Before: Judge McCarthy 

The Decision and Order that issued on May 25, 2016 is hereby amended pursuant to 

Commission Rule 69(c), 29 C.F.R. § 2700.69(c), to read as set forth below. 

I. Statement of the Case

These cases are before me are upon two Petitions for Assessment of Civil Penalty 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). The two dockets at issue contain 20 citations alleging violations of 

mandatory health and safety standards. 

A hearing was held on July 22-24, 2014 in Carbondale, Illinois. During the hearing, the 

parties introduced testimony and documentary evidence.1

 Witnesses were sequestered. 

Thereafter, the parties submitted post-hearing briefs. During hearing, the parties made a joint 

motion to settle nine of the 20 citations. The joint motion to approve settlement was read into the 

record. Tr. 377-84.

1

 ALJ Exhibits (ALJ Exs.) 1-8, Petitioner Exhibits (P. Exs.) 100-115, Respondent 

Exhibits (R. Exs.)1-8 and 11, and Joint Exhibit (J. Ex.) 1 were received into evidence. Tr. 10, 19-

20, 304. R. Exs. 9 and 10 were not offered into evidence. Tr. 757. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

MACH MINING, INC., 

 Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2014-0077 

A.C. No. 11-03141-334561

Docket No. LAKE 2014-132 

A.C. No. 11-03141-337701

Mine: No. 1 Underground Mine 

38 FMSHRC Page 1379
In Docket No. LAKE 2014-0077, the parties moved for the approval of the settlement of 

nine of the thirteen citations, and proposed a reduction in penalties from $10,933 to $7,392. Tr. 

386. The Secretary vacated Citation No. 8439443. Tr. 383. The Secretary’s discretion to vacate a 

citation or order is not subject to review. E.g., RBK Constr. Inc., 15 FMSHRC 2099 (Oct. 1993). 

The parties agreed to settle Citations No. 8439449, 8439450, 8439452, 8445747, 8448973, and 

8449000 with no modifications or reductions in penalties. Tr. 383. The parties also request that 

Citation No. 8445731 be modified to reduce the level of negligence from “moderate” to “low.” 

Tr. 383-84. 

I have considered the representations and documentation submitted at hearing, and I 

conclude that the proffered settlement in Docket No. LAKE 2014-0077 is appropriate under the 

criteria set forth in section 110(i) of the Act. The settlement amounts are as follows: 

Citation No. Assessment Settlement 

8439449 $224 $224 

8439450 $224 $224 

8439452 $334 $334 

8439460 $3,143 $2,438 

8445731 $4,689 $2,000 

8445747 $308 $308 

8448973 $207 $207 

844900 $1657 $1657 

TOTAL $10,933 $7,392 

In Docket No. LAKE 2014-0132, the parties moved for the approval of the settlement of 

four of the seven citations, proposing a reduction in penalties from $4,826 to $3,252. Tr. 381. 

Citation No. 8445755 remains unchanged. Tr. 378. Citation No. 8445758 also remains 

unchanged, but the Solicitor justifies the reduction in proposed penalty by stating that there were 

legitimate factual and legal disputes regarding gravity and negligence. Tr. 380-81. The parties 

also request that: 

Citation No. 8445758 be modified to reduce the level of from “moderate” to low,” and 

Citation No. 8451650 be modified to reduce the number of persons affected from 

“twelve” to “six.” 

Tr. 378-80. 

 

38 FMSHRC Page 1380
I have considered the representations and documentation submitted at hearing, and I 

conclude that the proffered settlement in Docket No. LAKE 2014-0132 is appropriate under the 

criteria set forth in section 110(i) of the Act. The settlement amounts are as follows: 

Citation No. Assessment Settlement 

8445758 $2,282 $1,845 

8451649 $1,530 $700 

8451650 $807 $500 

8445755 $207 $207 

TOTAL $4,826 $3,252 

 At hearing, Respondent moved for a directed verdict on Citation Nos. 8443200 and 

8443901 in Docket No. LAKE 2014-132. The undersigned granted the motion because the 

Secretary’s evidence did not support a violation of section 75.821(a). Tr. 242-62.2 

2

 Both citations alleged that Respondent violated Section 75.821(a) because chip alerts 

were not working on longwall equipment. A mule train is comprised of several pieces of 

equipment that distribute power to the longwall. Tr. 53. Power enters the unit through a 

disconnect box, which can be switched on or off, and then travels to the power centers within the 

mule train. Tr. 55. Chirp alerts indicate that the equipment is energized by making a chirping 

noise and emitting a flashing light. Tr. 32-33. On the cited disconnect box in Citation No. 

8443200, the chirp alert failed to make the chirping sound. Tr. 37. On the cited power center in 

Citation 8443901, the chirp alert failed to make the chirping sound and the flashing light failed. 

Id. MSHA inspector John Butcher testified that without notification from the chirp alerts that a 

piece of equipment is energized, the miners are at risk of fatal injuries from electrocution. Tr. 65-

66, 74-75. Essentially, the Secretary argues that since the equipment was not being maintained, 

there was a violation of Section 75.821(a). Section 75.821(a) requires that every seven days, a 

person qualified to perform electrical work must test and examine longwall equipment to 

determine that such equipment is being properly maintained. 30 U.S.C. § 75.821(a). 

The Secretary failed to establish that Respondent did not assign a qualified person to test 

and examine the chirp alerts within the last seven days to ensure that the equipment was being 

properly maintained. Inspector Butcher conceded on cross examination that as far as he knew, 

the required testing was actually performed and that he was not alleging that the mine was not 

conducting the appropriate testing and examination, but merely alleging that the chip alerts on 

the inspected equipment were not working properly. Tr. 109. 

Q: ...As far as you know, the test that was required every seven days was 

actually performed, correct? 

A: As far as I know, yes. 

Q: Okay. And that’s not your allegation, is it, that the test— 

A: No. 

Q: —wasn’t performed? 

(continued...) 

38 FMSHRC Page 1381
Citations No. 8451651 in Docket No. LAKE 2014-0132, and Citation Nos. 8439446, 

8432319, 8439454, and 8452203 in Docket No. LAKE 2014-0077 were litigated at hearing. 

For the reasons set forth below, I modify Citation No. 8451651 to reduce the level of 

negligence from “high” to “moderate.” I modify Citation No. 8452203 to raise the level of 

negligence from “moderate” to “high.” I find that Citation Nos. 8439446, 8432319, 8439454 

were properly issued, as written. I assess a total civil penalty of $32,636 for the five citations 

adjudicated herein. 

Based on a careful review of the entire record, including the parties’ post-hearing briefs 

and my observation of the demeanor of the witnesses,3

 I make the following findings of fact and 

conclusions of law: 

II. PRINCIPLES OF LAW

A. Establishing a Violation

To prevail on a penalty petition, the Secretary bears the burden of proving by a 

preponderance of the evidence that a violation of the Mine Act occurred. RAG Cumberland Res. 

Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), aff’d, 272 F.3d 590 (D.C. Cir. 2001). A mine 

operator is held strictly liable for violations that occur at its mine. Spartan Mining Co., 30 

FMSHRC 699, 706 (Aug. 2008). The operator may avoid liability only by showing that it was 

not properly on notice of the violative nature of its conduct. Even in the absence of actual notice, 

the Secretary may properly charge the operator with a violation when a reasonably prudent 

person familiar with the protective purposes of the cited standard and the factual circumstances 

surrounding the allegedly hazardous condition, including any facts peculiar to the mining 

industry, would have recognized a hazard warranting corrective action within the purview of the 

2

 (...continued) 

A: No. 

Q: Okay. So your—your allegation is — is not that the mine wasn’t 

conducting examinations? Your allegation is — is, When I inspected this 

equipment, the chirp alert wasn’t working, right? 

 A: Yes. 

Q: So there’s no dispute in your mind that the tests that are required by 

[Section] 75.821(a) were actually performed at the times required, correct? 

A: Correct. 

Tr. 109. In these circumstances, I found that Respondent complied with the requirements of § 

75.821(a), and granted Respondent’s motion for directed verdict. Tr. 242-62. 

3

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

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

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

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

testimony of witnesses. 

38 FMSHRC Page 1382
applicable regulation. LaFarge North America, 35 FMSHRC 3497, 3500-01 (Dec. 2013); Ideal 

Cement Co., 12 FMSHRC 2409, 2415-16 (Nov. 1990); Alabama By-Products Corp., 4 

FMSHRC 2128, 2129 (Dec. 1982). 

B. Gravity 

The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is 

often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC 

1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March 1983), 

aff'd, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 

(Apr. 1987)). The seriousness of a violation can be examined by looking at the importance of the 

standard violated and the operator’s conduct with respect to that standard, in the context of the 

Mine Act’s purpose of limiting violations and protecting the safety and health of miners. See,

e.g., Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ). 

The gravity analysis focuses on factors such as the likelihood of an injury, the severity of 

an injury, and the number of miners potentially injured. The Commission has recognized that an 

assessment of the likelihood of injury is to be made assuming continued normal mining 

operations, without abatement of the violation. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 

(Aug. 1985). 

C. 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).4

 

In a seminal early decision interpreting this statutory provision, the Commission held that 

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). 

In so holding, the Commission rejected the Secretary’s argument that all violations are S&S 

except technical violations or violations that pose only a remote or speculative risk of injury or 

illness. The Commission found that the Secretary’s interpretation would result in almost all 

violations being categorized as S&S, which would be inconsistent with the statutory language 

and the role the S&S provision is intended to play in the Mine Act’s graduated enforcement 

scheme. 3 FMSHRC at 825, 828. The Commission also found that the Secretary’s interpretation 

 

 4

 See also id. § 814(e), the Mine Act’s pattern-of-violations provision, which is the only 

other provision that mentions S&S, and which defines the term the same way as § 814(d)(1). 

38 FMSHRC Page 1383
would leave little room for inspectors to exercise their independent judgment. Id. at 825-26.5

 In 

addition, the Commission found that the Secretary’s interpretation would render the Act’s S&S 

language almost superfluous, and would render the Act’s pattern-of-violation provisions wholly 

punitive by making it almost impossible for a mine to be relieved of withdrawal order liability 

once placed on notice of a pattern of violations. Id. at 826-27. Although the Commission did not 

develop a test to determine whether violations are S&S, it enunciated several guiding principles. 

Specifically, it stated that the term “hazard” denotes “a measure of danger to safety or health” 

and that a violation is S&S if it “could be a major cause” of such a danger. Id. at 827. 

In its subsequent Mathies decision, the Commission set forth a four-prong test for 

determining whether a violation is S&S under National Gypsum. Mathies Coal Co., 6 FMSHRC 

1 (Jan. 1984). 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. Id. at 3-4. 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 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). 

Ensuing case law has solidly established several general principles regarding the proper 

application of the Mathies test. The Commission has held that the S&S determination should be 

made assuming “continued normal mining operations.” McCoy Elkhorn Coal Corp., 36 

FMSHRC 1987, 1990-91 (Aug. 2014) (citing U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 

(Aug. 1985)). The assumption of continued normal mining operations 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 as to abatement. 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); see also 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 (citing with approval McCoy Elkhorn’s discussion of operative timeframe 

for S&S). The Commission has repeatedly stated that the S&S determination must be based on 

 5

 The Commission has consistently reiterated that the inspector’s judgment is an 

important element of the S&S determination. However, the concept has generally been raised in 

the context of deferring to the inspector’s opinion that a violation was S&S, rather than in the 

context of examining whether the inspector exercised independent judgment in forming this 

opinion as opposed to merely following the “mechanical approach” advanced by the Secretary 

and rejected by the Commission in National Gypsum, 3 FMSHRC at 825. See, e.g., Wolf Run 

Mining Co., 36 FMSHRC 1951, 1959 (Aug. 2014); Maple Creek Mining, Inc., 27 FMSHRC 555, 

563 n.6 (Aug. 2005); Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998). 

38 FMSHRC Page 1384
the particular facts surrounding the violation. See, e.g., Wolf Run Mining Co., 36 FMSHRC 1951, 

1957-59 (Aug. 2014) (remanding S&S finding for further consideration of relevant 

circumstances); Black Beauty, 34 FMSHRC at 1740; Peabody Coal Co., 17 FMSHRC 508, 511-

12 (Apr. 1995); Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988). 

A line of cases beginning with the Seventh Circuit’s decision in Buck Creek, supra, has 

established that an operator cannot rely on redundant safety measures to mitigate the likelihood 

of injury for S&S purposes. See, e.g., Brody Mining, LLC, 37 FMSHRC 1687, 1691 (Aug. 

2015).6

 Finally, Commission precedent indicates that the likelihood of injury is the key 

consideration in determining whether a violation is S&S. Consolidation Coal Co., 18 FMSHRC 

1541, 1550 (Sept. 1996) (comparing S&S inquiry, which focuses on “the reasonable likelihood 

of serious injury,” with gravity inquiry, which focuses on “the effect of the hazard if it occurs”). 

The evolving case law, however, has presented conflicting guidance as to how some of 

these principles should be applied. In particular, there is some confusion about how to evaluate 

the facts surrounding the violation and the likelihood of injury under the second and third prongs 

of the Mathies analysis. The Fourth Circuit’s recent decision in Knox Creek, supra, and the 

Seventh Circuit’s decision in Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 

2014), have cast doubt on whether the traditional application of the literal language of the second 

and third prongs of the Mathies test is still valid. 

Traditional Application of Mathies Test 

Under the traditional approach, Commission Administrative Law Judges (ALJs) have 

conducted the fact-intensive component of the analysis and evaluated the reasonable likelihood 

of injury at the third prong. In one of its earliest decisions applying the Mathies test, the 

Commission explained that “the reference to ‘hazard’ in the second element [of the test] is 

simply a recognition that the violation must be more than a mere technical violation – i.e., that 

the violation present a measure of danger.” U.S. Steel Mining Co., 6 FMSHRC 1834, 1836. 

“There is no requirement of ‘reasonable likelihood’” encompassed in this element. Musser 

Engineering, Inc., 32 FMSHRC 1257, 1280 (Sept. 2010). Rather, longstanding Commission 

precedent indicates that the likelihood of harm should be accounted for in the third Mathies 

element, which “requires that the Secretary establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there is an injury.” U.S. Steel, 6 FMSHRC at 1836 

(quoted by the Commission on numerous occasions over the next two decades, including in Elk 

 6

 It is not completely clear whether redundant safety measures are precluded from 

consideration such that it is error to take them into account, which could make it difficult for 

judges at the trial level to discharge their duty of considering all the particular facts surrounding 

the violation, or whether arguments that rely on redundant safety measures are simply disfavored 

as a defense to S&S. Compare Brody Mining, 37 FMSHRC at 1691 (stating that evidence 

regarding redundant safety measures has been “consistently rejected as irrelevant”) with Black 

Beauty, 36 FMSHRC 1121, 1125 n.5 (May 2014) (stating only that such measures “do not 

prevent a finding of S&S”) and Buck Creek, 52 F.3d at 136 (“The fact that Buck Creek has safety 

measures in place to deal with a fire does not mean that fires do not pose a serious safety risk to 

miners.”). 

38 FMSHRC Page 1385
Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); Bellefonte Lime Co., 20 FMSHRC 1250, 

1254-55 (Nov. 1998); Zeigler Coal Co., 15 FMSHRC 949, 953 (June 1993); and Texasgulf, 10 

FMSHRC at 500). As the Commission explained in another early decision, “The third element 

embraces a showing of a reasonable likelihood that the hazard will occur, because, of course, 

there can be no injury if it does not.” Consolidation Coal Co., 6 FMSHRC 189, 193 (Feb. 1984). 

Following this guidance, ALJs have traditionally applied Mathies by identifying the 

potential hazard at the second prong, and then at the third prong, assessing whether there is a 

reasonable likelihood that the hazard will result in injury under the particular facts of the case at 

hand, with the caveat that normal mining operations are assumed to continue without abatement 

of the violation. The crux of this traditional Mathies analysis is the third and fourth prongs of the 

test, which effectuate National Gypsum’s definition of S&S (reasonable likelihood of a 

reasonably serious injury) and are often combined into a single showing (reasonable likelihood 

that a particular serious injury will occur under the facts of the case). 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 elements.7

 

Over the years, it appears that the Commission, with court approval, has developed 

special rules for applying the Mathies test in two situations. First, for violations that contribute to 

the hazard of an ignition, fire, or explosion, the Commission has held that the third Mathies 

element is satisfied only when a “confluence of factors” is present that could have triggered an 

ignition, fire, or explosion, under continued normal mining operations. Zeigler Coal Co., 15 

FMSHRC at 953; Texasgulf, 10 FMSHRC at 501; see, e.g., Paramont Coal Co. Va., LLC, 37 

FMSHRC 981, 984 (May 2015). Second, for violations of emergency safety standards, the 

Commission assumes the emergency when making the S&S evaluation. See, e.g., Cumberland 

Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1027-28 (D.C. Cir. 2013); Mill Branch Coal Corp., 

37 FMSHRC 1383, 1394 (July 2015). 

Effect of Recent Fourth & Seventh Circuit Decisions 

The Fourth Circuit’s recent Knox Creek decision issued in January 2016 appears to shift 

the focus of the S&S analysis from the third to the second Mathies prong and to restrict 

consideration of the facts bearing on the reasonable likelihood of injury under the third prong. 

The Fourth Circuit interpreted the second Mathies prong to entail an inquiry into the likelihood 

of harm, stating: 

In our view, the second prong of the test ... primarily accounts for 

the Commission’s concern with the likelihood that a given 

 7

 The Secretary’s citation/order form contains boxes for inspectors to check the likelihood 

of injury and the expected severity of injury immediately above the line where they designate the 

violation S&S or non-S&S. Inspectors are trained not to designate a violation as S&S, unless 

item 10.A on the 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). 

38 FMSHRC Page 1386
violation may cause harm. This follows because, for a violation to 

contribute to a discrete safety hazard, it must be at least somewhat 

likely to result in harm. 

Knox Creek, 811 F.3d at 162. Significantly, the Fourth Circuit further held that the occurrence of 

the hazard must be assumed under the third prong of the Mathies test. Id. at 161-65. Evidence of 

the likelihood that the hazard will occur is not considered at this prong, according to the Fourth 

Circuit. Rather, the inquiry is whether the hazard, assuming it occurred, would result in serious 

injury. Id. at 162. 

 The particular hazard confronted by the Fourth Circuit in Knox Creek was the escape of 

ignited gas into the mine atmosphere through impermissible enclosures. Id. at 164. The parties 

had stipulated that the mine was a “gassy” mine that liberated more than 500,000 cubic feet of 

methane or other explosive gases per day. Id. at 164. Consequently, the ALJ had found that 

methane was reasonably likely to accumulate to explosive concentrations. Id. The ALJ had also 

found that a resulting explosion was reasonably likely to cause serious injuries, but he had 

ultimately declined to find that the violation was S&S because the Secretary had failed to prove 

the likelihood of an ignition. Id. at 154, 164-65. Without discussing the likelihood of ignition, the 

Fourth Circuit deemed the ALJ’s other findings sufficient to satisfy the third Mathies prong. Id. 

Previously, in Peabody Midwest Mining, the Seventh Circuit had similarly suggested that 

the S&S analysis assumes the occurrence of the hazard. The violation at issue in that case was 

the mine operator’s failure to erect berms on an elevated roadway. The Seventh Circuit defined 

the hazard as the risk that a vehicle would veer off the roadway and go over the edge. Peabody 

Midwest, 762 F.3d at 616. The operator had argued that a vehicle was not reasonably likely to 

veer off the road. Id. However, the Seventh Circuit stated that the question “is not whether it is 

likely that the hazard (a vehicle plummeting over the edge) would have occurred” but “whether, 

if the hazard occurred (regardless of likelihood), it was reasonably likely that a reasonably 

serious injury would result.” Id. 

Peabody Midwest does not discuss the proper role of deference in the S&S context, but 

the Fourth Circuit reached its holding in Knox Creek by deferring to the Secretary’s 

interpretation that the third Mathies element requires proof that the hazard, not the violation 

itself, is likely to cause injury. 811 F.3d at 161 (declining to afford deference under Chevron, 

USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), but finding the Secretary’s 

interpretation persuasive and therefore entitled to deference under Skidmore v. Swift & Co., 323 

U.S. 134 (1944)). The Fourth Circuit further asserted that this interpretation is consistent with a 

number of prior cases, including the Seventh Circuit’s decisions in Peabody Midwest and in 

Buck Creek, supra, 52 F.3d at 135 (assuming occurrence of fire at third Mathies prong when ALJ 

had engaged in “confluence of factors” analysis at second prong); the Fifth Circuit’s decision in 

Austin Power, supra, 861 F.2d at 103-04 (declining to require evidence that the hazard was likely 

to occur); and the Commission’s decision in Musser Engineering, supra, 32 FMSHRC at 1280-

81 (stating that the third Mathies prong requires a showing that the hazard, not the violation 

38 FMSHRC Page 1387
itself, will cause injury). 811 F.3d at 161-62.8

 The Fourth Circuit rejected the operator’s 

argument that under Zeigler Coal Company, supra, the Secretary must show that an ignition is 

reasonably likely under the third Mathies prong. 811 F.3d at 164. The Court found this position 

to be “flatly contradicted” by Musser Engineering and by decisions of other federal appellate 

courts. Id. 

The Fourth Circuit emphasized, however, that the Mathies approach that it has adopted 

“still allows plenty of room for a fact-intensive S & S analysis, both under prong two, where the 

Secretary must establish that the violation contributes to a discrete safety hazard, and within 

prongs three and four, where evidence is still necessary to establish that the hazard is reasonably 

likely to result in a serious injury.” Id. Realistically, however, it will likely require very little 

fact-specific analysis to conclude that any given non-technical violation contributes to a discrete 

safety hazard, because the Secretary generally does not promulgate a mandatory health and 

safety regulation (except technical regulations), unless the Secretary has already found that 

violating the standard would contribute to a hazard. Under the third Mathies prong, judges must 

consider all of the facts surrounding the violation, but must assume continued normal mining 

operations without abatement of the violation, and may not rely on redundant safety measures to 

mitigate the likelihood of injury. Now, under Knox Creek and Peabody Midwest Mining, judges 

must also assume that the hazard will actually occur. At some point, so many circumstances are 

either assumed or precluded from consideration that judges will find themselves evaluating the 

likelihood of injury in the abstract. If this is the case, the Commission will have turned its back 

on the principles set forth in National Gypsum because the Mathies test will have become a 

longhand expression for “non-technical violations.” S&S will apply to almost all violations and 

therefore will no longer serve as a statutory tool by which the Secretary can single out the 

violations that he believes the Commission should consider significant and substantial when 

assessing a penalty. 

As noted above, the Fourth Circuit reached its result in Knox Creek by deferring to the 

Secretary’s interpretation of the Mine Act, and the Seventh Circuit reached a similar result. At 

 8

 It is debatable to what extent Austin Power and Buck Creek truly stand for the 

proposition the Fourth Circuit seems to be embracing, which is that the actual likelihood of 

injury is irrelevant, except to the extent necessary to establish a “discrete” hazard at the second 

Mathies prong. In Austin Power, the Fifth Circuit upheld an S&S finding for a fall protection

violation, reasoning that “[a] danger of falling is a necessary element of this violation, so by the 

very nature of a violation there was a discrete safety hazard.” 861 F.2d at 103. However, the 

hazard had actually occurred and had resulted in a fatality, which may have influenced the 

Court’s failure to require additional evidence of likelihood at the third Mathies prong. 861 F.2d 

at 100. In Buck Creek, the Seventh Circuit did not expressly discuss the proper application of the 

Mathies test, but simply rejected the mine operator’s argument that the ALJ had not put enough 

emphasis on the third and fourth Mathies factors when evaluating S&S for an accumulations 

violation. 52 F.3d at 135. The ALJ had made a finding at the second Mathies prong (rather than 

the third) that there existed a confluence of factors, including fuel sources and ignition sources, 

that could trigger a fire. Id. By contrast, in Knox Creek, the Fourth Circuit did not require a 

“confluence of factors” analysis or a showing that an ignition source existed at any prong of the 

Mathies test.

38 FMSHRC Page 1388
the outset of its analysis, the Fourth Circuit indicated that it would review the Commission’s 

legal conclusions de novo but would afford deference to the Secretary’s, not the Commission’s, 

legal interpretations. Id. at 157 (citing Sec’y of Labor ex rel. Wamsley v. Mut. Mining, Inc., 80 

F.3d 110, 113-15 (4th Cir. 1996), in which the Fourth Circuit discussed the Mine Act’s splitenforcement scheme and concluded that an informal rule created and implemented by the 

Secretary was entitled to deference over a contrary Commission decision). 

It is not surprising that the Circuit Courts have departed somewhat from the traditional 

Mathies analysis in favor of the Secretary’s legal interpretation, given the rule of deference 

mentioned above, and given the fact that the Secretary’s attorneys, and not the Commission’s, 

are the ones who argue for enforcement of the Commission’s decisions in the Circuit Courts of 

Appeals. That latter protocol is strange. Notwithstanding the propriety of the rule of deference 

applied by the Fourth Circuit, which raises concerns that I previously discussed in Knife River 

Corporation Northwest, 34 FMSHRC 1109, 1125-27 (May 2012) (ALJ), it does not make sense 

that although Congress conferred independent adjudicatory authority upon the Commission to 

serve as an impartial forum for Mine Act litigation, and although the Commission itself laid out 

the test that parties have followed for more than thirty years to litigate S&S in this forum, the 

Secretary is permitted to challenge the Commission’s interpretation of this long-standing test in 

the Circuit Courts of Appeals and litigate his own interpretation on behalf of the Commission. It 

should be obvious that since the Secretary is one of the litigating parties before the Commission 

at the trial level, the Commission’s and the Secretary’s views on interpretation of the Act may 

differ. See e.g., The American Coal Co., 36 FMSHRC 1311 (May 2014) (ALJ), petition for 

interlocutory review granted, Unpublished Order dated July 11, 2014. In my view, the 

Commission’s interpretations of Mine Act provisions that turn on adjudication and not 

enforcement should be accorded at least some form of deference based on the power to persuade, 

as evidenced by the fact that courts and litigants have uniformly followed the Commissionderived Mathies test.9 Compare Chevron, supra (according full deference to agency’s reasonable 

interpretation of ambiguous statutory provision) with United States v. Mead Corp., 533 U.S. 218 

(2001) (according deference based on “power to persuade” under Skidmore, supra, and finding 

that Chevron applies only where the agency was authorized by Congress to make rules carrying 

the force of law and did in fact promulgate the proffered interpretation in the exercise of that 

authority). It is within the Commission’s authority to specify how the second and third factors of 

the Mathies test should be applied – particularly, whether the hazard must now be assumed at the 

third factor, and if so, what steps of the test account for the facts surrounding the violation – and 

whether the Mathies test is still intended to effectuate National Gypsum’s interpretation of the 

S&S provisions of the Mine Act or whether the Commission now interprets S&S differently. 

Because I am bound by the Mathies test, I will evaluate S&S under this test after taking 

into consideration the more recent approach set forth in Knox Creek and Peabody Midwest 

Mining. 

 

 9 But see Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1027 (D.C. Cir. 2013) 

(expressly declining to address validity of Mathies test). 

38 FMSHRC Page 1389
D. Negligence 

Negligence is not defined in the Mine Act. The Commission has found “[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, 

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, 

1976-77 (Aug. 2014) (requiring Secretary to show that operator failed to take specific action 

required by standard violated); Spartan Mining Co., 30 FMSHRC 699, 708 (Aug. 2008) 

(negligence inquiry circumscribed by scope of duties imposed by regulation violated). 

 

The Mine Act imposes a high standard of care on foremen and supervisors. Midwest 

Material Co., 19 FMSHRC 30, 35 (Jan. 1997) (holding that “a foreman ... is held to a high 

standard of care”); see also Capitol Cement Corp., 21 FMSHRC 883, 892-93 (Aug. 1999) 

(“Managers and supervisors in high positions must set an example for all supervisory and 

nonsupervisory miners working under their direction,” (quoting Wilmot Mining Co., 9 FMSHRC 

684, 688 (Apr. 1987)); S&H Mining, Inc., 17 FMSHRC 1918, 1923 (Nov. 1995) (heightened 

standard of care required of section foreman and mine superintendent). 

Although MSHA’s regulations regarding negligence are not binding on the Commission, 

see Wade Sand & Gravel Co., 37 FMSHRC 1874, 1878 n.5 (Sept. 2015), MSHA defines 

negligence by regulation in the civil penalty context as follows: 

Negligence is conduct, either by commission or omission, which 

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

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

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

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

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

to correct or prevent hazardous conditions or practices. The failure 

to exercise a high standard of care constitutes negligence. The

negligence criterion assigns penalty points based on the degree to 

which the operator failed to exercise a high standard of care. 

When applying this criterion, MSHA considers mitigating 

circumstances which may include, but are not limited to, actions 

taken by the operator to prevent or correct hazardous conditions or 

practices . . . . 

30 C.F.R. § 100.3(d). 

MSHA regulations further provide that mitigation is something the operator does 

affirmatively, with knowledge of the potential hazard being mitigated, and that tends to reduce 

38 FMSHRC Page 1390
the likelihood of an injury to a miner. This includes actions taken by the operator to prevent or 

correct hazardous conditions. 30 C.F.R. § 100.3(d). According to MSHA, the level of 

negligence is properly designated as high when “[t]he operator knew or should have known of 

the violative condition or practice, and there are no mitigating circumstances.” 30 C.F.R. § 

100.3, Table X. The level of negligence is properly designated as moderate when “[t]he operator 

knew or should have known of the violative condition or practice, but there are mitigating 

circumstances.” Id. The level of negligence is properly designated as low when there are 

considerable mitigating circumstances surrounding the violation. Id. 

Recently, the Commission held that Commission judges are not required to apply the 

level-of-negligence definitions in Part 100 and may evaluate negligence from the starting point 

of a traditional negligence analysis rather than from the Part 100 definitions. Brody Mining, LLC, 

37 FMSHRC 1687, 1701 (Aug. 2015); accord Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 

1259, 1263-64 (D.C. Cir. 2016). Moreover, because Commission judges are not bound by the 

definitions in Part 100 when considering an operator’s negligence, they are not limited to a 

specific evaluation of potential mitigating circumstances, and may find “high negligence,” in 

spite of mitigating circumstances, or moderate negligence, without identifying mitigating 

circumstances. Brody, 37 FMSHRC at 1701; Mach Mining, 809 F.3d at 1263-64. In this regard, 

the gravamen of high negligence is “an aggravated lack of care that is more than ordinary 

negligence.” Brody, 37 FMSHRC at 1701 (citing Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 

1998)0. Thus, in making a negligence determination, a Commission judge is not limited to an 

evaluation of allegedly mitigating circumstances and 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. Id. 

E. Penalty Assessment

The Act requires that the Commission consider the following statutory criteria when 

assessing a civil penalty: (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 of the violation; and (6) any good-faith compliance after 

notice of the violation. Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000); 30 

U.S.C. § 820(i). The Commission is not required to give equal weight to each of the criteria, but 

must provide an explanation for any substantial divergence from the proposed penalty based on 

such criteria. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). 

As I discussed in my final Big Ridge decision, in an effort to avoid the appearance of 

arbitrariness, I look to the Secretary’s penalty regulations and assessment formula as a reference 

point that provides useful guidance when assessing a civil penalty. Big Ridge Inc., 36 FMSHRC 

1677, 1681-82 (July 2014) (ALJ); see also Wade Sand & Gravel, supra, at 1880 n.1 (Chairman 

Jordan and Commissioner Nakamura, concurring). See also Bowles v. Seminole Rock & Sand 

Co., 325 U.S. 410, 414 (1945) (holding that an agency’s interpretation of its own regulation 

should be given controlling weight unless it is plainly erroneous or inconsistent with the 

regulation). This formula is not binding, but operates as a lodestar, since factors involved in a 

violation, such as the level of negligence, may fall on a continuum rather than fit neatly into one 

of five gradations. Unique aggravating or mitigating circumstances will be taken into account 

38 FMSHRC Page 1391
and may call for higher or lower penalties that diverge from this paradigm. My independent 

penalty assessment analysis applies to each of the citations at issue in this case. 

III. Stipulated Facts 

A. Stipulations of Fact 

 At hearing, the parties agreed to the following stipulations: 

1. 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, 30 U.S.C. § 803. 

4. At all relevant times, Respondent operated Mach No. 1 Mine, Mine ID 11-03141. 

5. The violations in this docket are complete, authentic and admissible, but the 

Respondent does not stipulate to the allegations asserted therein. 

 6. Respondent mined 7,528,061 tons of bituminous coal in 2012 at Mach No. 1 Mine. 

7. The violations in this docket were properly served on Respondent by a duly authorized 

representative of the Secretary on the dates stated therein. 

8. The penalties proposed in this docket would not affect Respondent’s ability to remain 

in business. 

9. Respondent abated the citations involved herein in a timely manner and in good faith. 

8. Tom Crum, Jr. is an agent of the operator Mach Mining. Tr. 272. 

J. Ex. 1. 

IV. Background Information 

 

 Mach Mining’s No. 1 Mine is an underground coal mine located in Marion, Illinois. The 

height of the mine is generally nine to ten feet. Tr. 619. The mine is subject to five-day spot 

inspections by the Department of Labor’s Mine Safety and Health Administration (MSHA), 

pursuant to § 103(i) of the Mine Act because the mine liberates more than one million cubic feet 

of methane or other explosive gases during a 24-hour period. 30 U.S.C. § 813(i); see Tr. 35, 211-

10. At the time of the October 14, 2014 inspection, the mine liberated approximately two million 

cubic foot of methane in a 24-hour period. Tr. 158, 211-10. 

38 FMSHRC Page 1392
V. Citation No. 8451651 

A. Findings of Fact 

1. The Inspection 

On October 15, 2014, MSHA inspector Chad Lampley10 issued Citation No. 8451651 

during an E16 inspection of Mach Mine’s No. 1 mine.11 Tr. 140-42. Mark Schilke, the mine 

safety manager, accompanied Lampley during the inspection.12 Tr. 143, 152, 159-160. The 

inspection was conducted during a production shift. Tr. 155. At the time of Lampley’s 

inspection, however, mining had halted due to a problem with a conveyer belt. Tr. 153-54, 214-

15. 

2. The Location of the Truck 

During the inspection, Lampley noticed a Dodge Ram pickup truck parked facing inby in 

the #3 tailgate entry at the no. 109 crosscut, two crosscuts from the longwall face. Tr. 144-45, 

152; see P. Ex. 113.13 Lampley used a 25-foot tape measure and determined that the dieselpowered truck was approximately 144 feet from the face, rather than the required 150 feet. Tr. 

146-47.14 Shilke observed Lampley measure the distance between the face and the truck. Tr. 302, 

316. Neither Shilke nor Lampley reported any other measurements of the truck’s location. Tr. 

147, 301-02. Respondent does not dispute that the truck was closer than 150 feet from the 

longwall face. R. Post Hr’g Br. 4. 

 10 At hearing, Lampley had been a certified mine inspector with MSHA for seven years. 

He received a degree in Applied Science from Southern Illinois University (SIU). Upon 

graduation, Lampley worked in the automotive field and taught classes at SIU in automotive 

base, and electrical theory and operation. Prior to his employment at MSHA, Lampley worked at 

American Coal performing general mining tasks and maintenance. Tr. 140-41. 

11 MSHA ceased its regular EO1 quarterly inspections and normal 103(i) spot inspections 

during the 2014 government shutdown. Tr. 142. Nonetheless, Lampley still conducted E16 spot 

inspections of the working areas of the mine. Id. 

12 Schilke was a certified mine manager, examiner, instructor, and mine rescuer. 299-300. 

He worked for Respondent since 2010 in a variety of roles. Tr. 299. He had a bachelor’s degree 

in mining engineering from SIU. Tr. 299-300. 

13 There is some confusion about the correct crosscut numbers. The crosscut referenced in 

the text above as no. 109 is referred to in Lampley’s testimony as no. 108 and in Schilke’s 

testimony as no. 109. Similarly the crosscut referred to herein as no. 110 is referred to in 

Lampley’s testimony as no. 109 and in Schilke’s testimony as no. 110. In the interest of clarity, I 

use Schilke’s numbers as he was more certain about this issue at hearing. 

14 Electric face equipment must be permissible within 150 feet from pillar workings or 

longwall faces or in return air outby the last open crosscut. 30 C.F.R. §§75.1002 and 75.507-1. 

38 FMSHRC Page 1393
Lampley learned that Tom Allen Crum, Jr. (Crum), the longwall maintenance supervisor, 

drove the truck. Tr. 152-53, 162, 213. Lampley did not speak to Crum. Tr. 215. 

 

 Crum testified that he drove his truck into the #3 tailgate entry to repair a conveyor belt. 

Tr. 265-67, 287.15 Schilke testified that the truck was parked “slightly” inby the outby corner of 

crosscut 109. Tr. 305-06. Crum, however, testified that the truck was even with the outby corner. 

Tr. 268-69. I credit Schilke, particularly since his testimony is consistent with Respondent’s map 

of the area where Crum parked. See R. Ex. 8. 

There were no footage markers to indicate the distance from the face. Tr. 316. Crum 

estimated that he parked over 150 feet from the face because the crosscut centers were 120 feet 

and the face appeared 50 feet further than the last crosscut center. Tr. 268-71, 284. Because that 

crosscut was open, Crum knew that he was not permitted to drive further into the return air. Tr. 

282-83. There were no obstructions blocking Crum from driving the truck all the way to the face. 

Tr. 216. Crum testified that had he intended to breach the 150-feet limit, he could have easily 

parked by the face. Tr. 271-72, 280. Crum opined that his actions demonstrated his intent to 

comply with the permissibility requirements, and that they negate any classification of high 

negligence. Tr. 279-80. 

Crum further testified that he would have moved his truck before production resumed. Tr. 

286-87. He further admitted that he would have started the truck’s ignition to do so, because he 

had assumed that it was not parked in return air. Tr. 287. 

3. The Presence of Methane 

 

a. The Temperature of the Air 

Inspector Lampley was concerned that the non-permissible diesel truck was parked in 

return air, which presented a methane ignition hazard. Tr. 148-49. Lampley testified that return 

air is warm and moist due to heat emitted from the longwall mining unit. Tr. 144, 146, 150. Near 

the truck, Lampley observed that the air approaching him from the face was warmer than the 

intake air at his back, indicating the presence of return air. Tr. 144, 146, 199. 

Respondent’s witnesses disagree. Schilke testified that the vehicle was in intake air 

because he felt cool air at his back and warm return air was not present until the middle of the 

intersection. Tr. 305-08. Crum testified that when he exited his truck, he felt cool intake air at his 

back. Tr. 273-76. Crum testified that there was little to no air movement where he parked the 

vehicle. Tr. 273. Crum further testified that he did not feel return air until midway through the 

crosscut. Tr. 283. 

 15 Crum had 13-14 years of mining experience and had worked at several companies in a 

variety of roles. Tr. 263-64. Crum was a certified mine electrician, with face and examiner 

papers. Tr. 264. He was a member of mine management and a stipulated agent of Respondent. 

Tr. 272. 

38 FMSHRC Page 1394
Longwall coordinator Parker Phipps drove an Electric Mine Utility vehicle (EMU) to the 

longwall tailgate that day. Tr. 324.16 Phipps was aware of the requirement to park in intake air at 

least 150 feet from the face. Tr. 339. He parked approximately 150 feet from the face near open 

crosscut no. 109. Tr. 324, 340; see P. Ex. 110 and R. Ex. 8. After learning about the citation, 

Phipps observed Crum’s truck underground. Tr. 330. Phipps testified that Crum’s truck was 

parked even with the outby rib, approximately two feet from the solid coal wall. Tr. 330-331, 

333. Phipps testified that the front of Crum’s truck was within ten feet of the front of his own 

vehicle. Tr. 343. Facing inby, Phipps walked into the area between Crum’s truck and the solid 

right-hand rib. Tr. 333. Phipps testified that the air was cool and moved inby. Id. Because return 

air from the longwall was warmer and more humid, Phipps opined that the truck was in intake 

air. Tr. 325, 328. 

By the feel of the air, Phipps opined that the return air began in the center of the crosscut. 

Tr. 329, 358-359. Phipps referred to the crosscut center as a mixing zone for return and intake 

air. Tr. 329. Mixing zones are classified as return air. Tr. 363. Phipps believed that the mixing 

zone was inby Crum’s truck, which left the truck entirely within intake air. Tr. 329-331, 335, 

363. Phipps later testified, however, that the truck was near a “dead spot” with little air 

movement, where both the outby and inby air courses met. Tr. 353-54. 

b. Inspector Lampley’s Smoke Test 

After noting the temperature differentials, Lampley performed a smoke test to determine 

the direction of return air. Tr. 150-51. A smoke test reveals the path of air along the mine’s 

ventilation pattern. Id. With respect to ventilation in this area, Respondent sent 90,000-100,000 

cubic feet of air per minute (cfm) from the headgate, which was well over the required 60,000 

cfm. Tr. 181-82. Phipps testified that a great velocity of air would dilute gases. Tr. 355. In fact, 

Phipps opined that as little as 50 cfm of air would render flammable or noxious gases harmless, 

although Phipps did not know if the air around the truck reached that velocity. Tr. 361-62. 

Lampley released smoke at the mining face and observed it travel down the entry. Tr. 

145-46, 150-51, 207-08. The heavy airflow displaced the smoke, so Lampley released smoke 

into the atmosphere several times as he neared the truck. Tr. 208-10. 

The smoke test revealed that the air traveled down the longwall face to the T-split, where 

it either seeped into the gob or branched off towards the #2 and #3 tailgate entries. Tr. 145, 176, 

182-84.17 Because the #2 entry had lower air pressure than the #3 entry, the majority of the air 

moved from the #3 entry into the #2 entry through the open no. 110 crosscut. The remaining air 

in the #3 entry reached the open no. 109 crosscut where the truck was located. Tr. 145, 184, 205-

07. Stoppings were legally removed at the nos. 109 and 110 crosscuts (the first two crosscuts 

after the T-split) to allow this air movement. Tr. 187. 

 16 Phipps was a licensed, professional engineer and was a certified mine examiner, 

manager, and fire boss. Tr. 323. His duties included running the longwall on a day-to-day basis, 

planning production, and dealing with MSHA inspectors. Tr. 323-324. 

17 A “gob” is an area of the mine where coal has been removed and the roof and strata 

have been allowed to cave in. Tr. 177. 

38 FMSHRC Page 1395
Because the return air that reached the no. 109 crosscut was also drawn into the #2 entry, 

it moved faster at the corner near the crosscut than it did in the middle or other side of the entry 

near Crum’s truck. Tr. 186, 194-95. Lampley noticed that while a large portion of the return air 

hugged the inby corner near the crosscut, some smoke traveled directly over the hood, 

windshield, and cab of the truck. Tr. 151, 185-87, 194, 200. Rather than continue over the back 

of the truck, the air turned and exited into the #2 entry through the crosscut upon meeting the 

intake air in a “mixing zone.” Tr. 147, 161, 198. Lampley testified that the front of the truck up 

to the cab area was in return air, and that the cab to the tailgate bumper at the back of the truck 

was in the intake air. Tr. 146, 198-99. 

 

During the inspection, Schilke watched Lampley conduct the smoke test. Tr. 303, 308. 

Schilke testified that Lampley had to stand “almost over the hood of the truck” before the smoke 

sample traveled over the hood. Tr. 308. No smoke test was conducted at the tailgate of the truck. 

Tr. 313-14. 

Schilke testified that when Lampley tested further inby from the truck, the sample 

traveled towards the no. 109 crosscut, rather than over the hood of the truck. Tr. 309-311. 

Further, Schilke testified that when Lampley tested directly over the hood of the truck, the smoke 

rose and spread out, indicating to Schilke that the truck was in a dead spot. Tr. 307-309, 315. 

Schilke determined that this dead spot was caused by a “mixing zone” where return and intake 

air met. Tr. 307. On cross examination, however, Schilke conceded that if the truck was in the 

intake air, that air would push the smoke inby above the truck, which did not occur, rather than 

allow the smoke to rise and spread, which did occur. Tr. 315-16. 

Lampley testified that the exact location of the truck within the return air was not 

important. Tr. 158-59. Rather, any place inby the intake air at crosscut no. 109 posed an equal 

hazard because it had the same, undiluted gas concentration where no additional air was added. 

Tr. 158-59, 194, 196-97, 221-22.Because of this, Lampley chose not to test the air volume. Tr. 

166, 195-96, 198, 219. Lampley conceded, however, that the concentration of gas would 

diminish in a mixing zone. Tr. 198. Most of the mixing occurred near the corner where the air 

velocity was greatest, not above the truck. Tr. 200-201, 222. Lampley did not see any swirling 

smoke over the truck to indicate the mixing of intake and return air. Tr. 222-23. Lampley 

agreed, however, that there was no way to easily distinguish between return air and intake air. Tr. 

201-02. 

c. Other Considerations 

 Schilke testified that the cited area usually had 20.9 % oxygen and up to 0.1 % methane 

during production. Tr. 318. By contrast, Phipps testified that methane concentrations typically 

reached 0.6 % to 0.8 % during production. Tr. 332. While Phipps was in the cited area, his 

methane spotter reported 20.8 % oxygen, no methane, and no carbon monoxide. Tr. 331. He 

testified that historically no methane was produced in the area when the longwall was down. Tr. 

331-332. 

38 FMSHRC Page 1396
Crum also carried a methane detector, which produces audio and visual warnings when 

methane concentrations reach one percent. Tr. 276-77. Crum watched his detector closely and 

observed no methane in the cited area. Tr. 277. 

During the repair work near the longwall face, the miners were required to take air 

readings every fifteen minutes with individual methane spotters. Tr. 289-90. The readings 

detected no methane. Id. Crum reported that all the checks were properly conducted. Tr. 290. 

Schilke testified that no methane or carbon monoxide was present because the longwall 

had been down for several hours before Crum’s truck arrived. Tr. 312-13. Lampley did not know 

how long the longwall had been down before Crum parked his truck, but Lampley noted that the 

hood of Crum’s truck was still warm at the time of the inspection. Tr. 155, 213-14. 

Schilke testified that the inspection began at approximately 6:00 a.m. Tr. 301. Phipps 

testified that the longwall had been down for several hours when Phipps arrived between 5:00 

and 6:00 a.m. Phipps further testified that Crum’s truck had not yet arrived. Tr. 332, 338, 341-42. 

Crum, however, testified that after working the day shift, he returned to the mine between 2:00 

and 3:00 a.m. because the longwall was down. Tr. 265. 

4. Issuance of Citation No. 8451651 

After observing that Crum’s non-permissible, diesel-powered pick-up truck was being 

used where permissible electrical equipment was required, Lampley issued Citation No. 8451651 

for a violation of 30 C.F.R. § 75.1907(a), which requires that all diesel-powered equipment used 

where permissible electrical equipment is required must be approved under part 36. Tr. 147-48. 

Lampley determined that the violation was S&S and contributed to a methane ignition hazard 

that was reasonably likely to result in fatal injuries affecting four miners, as a result of 

Respondent’s high negligence. Tr. 156, 162-63. The Secretary proposed a penalty of $16,867. 

 

Lampley determined that the cited diesel truck was not permissible because it lacked 

properly enclosed electrical components necessary to prevent a methane ignition in the mine 

atmosphere. Tr. 147-49. Engine enclosures prevent flame paths from reaching the atmosphere. 

Tr. 149. 

Lampley determined that the truck would likely ignite methane for several reasons. The 

truck had numerous ignition sources including a starter motor and a combustion engine, which 

produced thousands of combustions per minute. The electrical components of the truck were not 

sufficiently enclosed to contain any sparks from the engine. The diesel-powered truck did not 

have countermeasures, such as flame arresters, that were required in permissible equipment. Tr. 

156-7. Most of the ignition sources were in the front of the truck and exposed to return air. Tr. 

224. The cited truck was in the tailgate (rather than a headgate), which increased the likelihood 

of a methane ignition because the air in that area had ventilated the face. Tr. 175-176. Further, 

Lampley opined that since Crum was apparently unaware that he parked the truck in return air, it 

was likely to remain there until the longwall resumed production. Tr. 156. Further, during 

production, the face would move 2 and 1⁄2 feet closer to the truck with each pass of the longwall 

drum. Tr. 177. 

38 FMSHRC Page 1397
Lampley was not aware of any reserves of methane at the mine, nor was he aware of the 

average concentration of methane in the mine atmosphere. Tr. 211-12. Lampley testified, 

however, that methane would be present in return air coming off an active longwall face in a 

gassy mine, which has gob, and would most likely be found at the tailgate or at a bleeder system 

at the wall. Tr. 158. Lampley found no methane present when he took readings at the T-split of 

air, when production was down. Tr. 189-91, 197. Lampley testified that regardless of air quality, 

or the fact that when the citation was written, the air from the T-split of the longwall outby 

Crum’s truck was sufficient to dilute or render harmless any methane, MSHA regulations do not 

allow shorter permissibility distances when the longwall is not in production. Tr. 173-74, 227-29. 

Apart from the likelihood of ignition during production, Lampley explained that an 

ignition hazard could be realized spontaneously from a rock fall. Tr. 155, 189-92. He noted that 

rock falls were not unusual and major gob falls were fairly common in longwall mining and that 

the methane concentration “at the gob line where the T-split occurs, that could change at any 

given moment whenever a roof fall occurs back there, and it’s going to fall, it’s just when it’s 

going to fall.” Tr. 190-92, 230. If a major rock or gob fall prevented the absorption of methane 

by sealing the gob, the resulting change in air pressure would pull methane from the gob area and 

allow methane to accumulate in the active working area. Tr. 227-30. Such a rock fall in the gob 

is fairly common given mining conditions in that area, although pressure changes in this mine 

were somewhat less likely because of the blowing and exhausting fans. Tr. 230-33. 

 Lampley testified that a methane ignition in a gassy mine could result in a “massive” 

explosion. Tr. 162. A massive methane explosion would be fatal to some or all of the miners on 

the face. Tr. 162-63. Lampley ascertained that at least two shearer operators, a shieldman, and a 

stage loader operator would be affected by an explosion. Tr. 162-64. Lampley referenced the 

Upper Big Branch explosion as one caused by the ignition of methane on a tailgate. Tr. 158.18 

With respect to the negligence designation, Lampley found no mitigating circumstances 

and determined that Respondent’s agent Crum should have been aware of the presence of return 

air when parking his truck. Tr. 163-64, 167. Given the change in air temperature and humidity 

and the lack of a visible stopping, Lampley opined that Crum knew or should have known that 

the truck’s location created a permissibility violation. Tr. 163-64. Crum was a member of 

management who should have been aware of the methane ignition hazard created once Crum 

drove into the return air and broke the plane of the intersection. Tr. 171-73. According to 

Lampley, once Crum broke the plane and entered return air, it was too late to correct the 

condition. Tr. 173. Rather, Lampley testified that Crum should have stopped 300 feet from the 

face to ensure compliance. Tr. 174-175. Further, Lampley opined that Respondent also could 

have placed signs 150 feet from the face or blocked off the area to prevent the entrance of diesel 

equipment. Tr. 178. Lampley emphasized that the hazard remained whether the truck was parked 

six feet within the 150-foot limit or directly next to the face. Tr. 166-167. Rather, the dispositive 

issue was that the truck was in return air. Tr. 166-67. 

 18 Lampley did not personally investigate the explosion and could not testify whether the 

majority of the air samples taken at Upper Big Branch contained methane rather than natural gas, 

or whether the gas originated from the face, or from another location, such as a crack in the floor. 

Tr. 210-11. 

38 FMSHRC Page 1398
 To abate the alleged violation, the truck was pulled by chain by another piece of 

equipment from intake air, and moved to an outby location outside the 150-foot limit where no 

return air was coursing over the pickup. Thereafter, the truck was disconnected and driven an 

additional 150 feet away from the face. Tr. 179; S. Ex. 114. 

B. Analysis and Disposition 

1. The Violation of §75.1907(a) 

30 C.F.R. §75.1907(a) provides that diesel-powered equipment must meet permissibility 

standards where permissible electrical equipment is required. 30 C.F.R. §75.1907(a). Electric 

face equipment must be permissible within 150 feet from pillar workings or longwall faces or in 

return air outby the last open crosscut. 30 C.F.R. §§75.1002 and 75.507-1. The truck cited by 

inspector Lampley was diesel-powered equipment that did not meet permissibility requirements. 

Tr. 148. It is undisputed that the equipment was closer than 150 feet from the longwall face. R. 

Post Hr’g Br. 4. Accordingly, I find that the Respondent violated the cited standard. 

2. The Violation was Significant and Substantial 

a. There was a Violation of a Mandatory Safety Standard

 For the reasons explained above, I have found the underlying violation of mandatory 

safety standard § 75.1907(a). 

b. The Violation Contributed to a Discrete Measure of Danger to Safety 

 With regard to the second Mathies factor, the Secretary must show that the violation 

contributed to a discrete safety hazard, “which implicitly requires a showing that the violation is 

at least somewhat likely to result in harm.” Knox Creek, 811 F.3d at 163 (citing Black Beauty, 34 

FMSHRC at 1741, n.12 (“[I]f the roadway here had lacked berms for only a short distance 

[thereby making the hazard of a vehicle falling off the edge less likely], or if the violation had 

been otherwise insignificant, the trier-of-fact could have found that the violation did not 

contribute to a discrete safety hazard, and hence that the Secretary had failed in her proof under 

the second element of Mathies.”)), aff’d sub nom. Peabody Midwest, 762 F.3d 611; Cumberland 

Coal Res., LP, 33 FMSHRC 2357, 2368 (2011) (the violation, under the particular 

circumstances, was likely to contribute to the relevant hazard under Mathies’ second prong), 

aff’d sub nom. Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020 (D.C. Cir. 2013); E. 

Associated Coal Corp., 13 FMSHRC 178, 183 (1991) (same); Utah Power & Light Co., 12 

FMSHRC 965, 970 (1990) (same). For the reasons set forth below, I find that the violation of 

parking an impermissible diesel-powered truck in return air where permissible equipment was 

required contributed to a discrete safety hazard or measure of danger to safety, that is, a methane 

ignition or explosion. 

Permissibility requirements like the one at issue here ensure that ignitions occurring 

within enclosures on mining equipment with electrical circuits will not escape into the mine 

atmosphere. Knox Creek, 811 F.3d at 153-54; Consolidation Coal Co., 35 FMSHRC 2326, 2336 

38 FMSHRC Page 1399
(Aug. 2013) (permissibility requirement is designed to prevent hot gases from escaping from an 

enclosure containing electrical connections, thus causing an ignition outside the enclosure.”). 

Thus, the permissibility requirements are intended to prevent the ignition of explosive airmethane mixtures surrounding mine equipment. Consequently, I must determine whether it was 

somewhat likely that the violation contributed to the hazard or danger of allowing an ignition 

source to be available in this gassy mine. Cf., Consolidation Coal, 35 FMSHRC at 2335-36 

(Commission affirmed judge’s description of relevant hazard contributed to by the violation and 

her determination that second prong of Mathies was satisfied because the violation contributed to 

the hazard of “the danger of allowing an ignition source to be available in this gassy mine.”). 

When examining the likelihood of a permissibility violation to contribute to the hazard of 

a methane ignition or explosion, the Commission has traditionally examined whether a 

“confluence of factors” is present based on the particular facts surrounding the violation. 

Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988). The Commission has held that the 

confluence-of-factors analysis requires consideration of the particular circumstances in the mine, 

including the possible ignition sources, the presence of methane, and the type of equipment in 

the area. Excel Mining, LLC, 37 FMSHRC 459, 465 (Mar. 2015); Utah Power & Light Co., 12 

FMSHRC at 970-71; Texasgulf, 10 FMSHRC at 501-03. For example, the mine in Texasgulf

contained only miniscule amounts of methane and had never had a methane ignition or 

explosion. See 10 FMSHRC at 501. Given detailed testimony establishing the mine's history of 

low methane emissions, the absence of previous ignitions or explosions, and testimony 

establishing a reasonable expectation of low methane emissions in the future, the Commission 

concluded that that substantial evidence supported the judge's findings that there was not a 

reasonable likelihood that the hazard contributed to would result in a mine ignition or explosion. 

On the other hand, numerous other Commission cases have upheld an S&S determination 

where the particular facts surrounding a violation established that a methane ignition was 

reasonably likely in a gassy mine. See e.g., U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1867–

69 (Aug. 1984) (upholding significant and substantial finding where coal mine liberated over one 

million cubic feet of methane in 24-hour period, had a history of methane ignitions, and there 

was an excessive accumulation of coal nearby); United States Steel Mining Co., Inc., 7 FMSHRC 

1125, 1128–30 (Aug. 1985) (upholding significant and substantial finding where coal mine 

liberated over one million cubic feet of methane in a 24-hour period, had a history of past 

methane ignitions, could liberate dangerous levels of methane in a relatively short period, and 

ventilation was substandard); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 677–678 

(upholding significant and substantial finding where coal mine was subject to inspection 

pursuant to section 103(i) and sudden outburst of methane had occurred recently); Consolidation 

Coal Co., 35 FMSHRC at 2337 (upholding a significant and substantial finding for a roof bolter 

that violated permissibility standards where methane was emitted during roof bolting, the bolter 

was located near the gob and far from the bleeder fans, and the mine was gassy). 

 

Applying the confluence-of-factors analysis to the instant facts, I find that supervisor 

Crum’s truck was a non-permissible ignition source that was parked in return air and would 

therefore likely be exposed to an explosive concentration of methane released from the longwall 

face during continued normal mining operations. Parking impermissible, diesel-powered 

equipment within 150 feet of the face in return air contributed to the discrete safety hazard that 

38 FMSHRC Page 1400
restarting the truck could ignite any explosive concentration of methane present in return air 

during continuous mining operations. Accordingly, I find that the violation contributed to the 

hazard of a methane explosion caused by the location of impermissible equipment in return air. 

Although the testimony of Crum, Schilke and Phipps suggested that the return air was 

inby the location where Crum parked his non-permissible, diesel-powered Dodge truck (Tr. 275, 

283-84, 308, 330-31), I find that the hood of the truck extended into the mixing zone intersection 

and into return air and was not in intake air as Phipps, Crum and Schilke suggested. I credit 

Lampley’s testimony and measurements that the truck was parked within 150 feet of the face, 

and the hood of the vehicle, including the combustion engine, was actually parked within the 

plane of the intersection or crosscut. Tr. 146-147, 158, 171, 198-99, 217. Crum’s testimony and 

Respondent’s own map indicate this. Tr. 269; R. Ex. 8. Lampley and Phipps both described the 

intersection at crosscut 109 as a mixing zone, where return air met intake air. Tr. 107, 329. 

Lampley and Phipps both noticed that warmer and more humid air that was characteristic of 

return air was present in the intersection or crosscut itself, where such air mixed with fresh intake 

air. Tr. 150, 328. Phipps conceded that areas containing return air, including mixing zones, are 

properly classified as return air. Tr. 363. Further, I have credited Schilke’s testimony that the 

truck was parked slightly inby the outby corner of crosscut 109 (Tr. 305-06), over Crum’s 

testimony that the truck was parked even with the outby corner. Tr. 268-69. 

Although Schilke testified that Lampley had to stand directly at the Dodge truck and 

almost over the hood of the truck to get the smoke to travel over the hood of the truck, Schilke 

thereafter acknowledged that the smoke was in a dead spot and automatically spread out over the 

hood of the Dodge truck. Tr. 309. I credit Lampley’s testimony that the results of his smoke test, 

which recreated the movement of air from the longwall face to the truck, established that return 

air wafted over the hood of the truck where the engine was located, and then out across crosscut 

109. Tr. 151. Based on Lampley’s credited testimony, as supported by the results of the smoke 

test, I find that return air, which would be carrying methane during continuous mining operations 

in a gassy mine, reached the hood and windshield of the truck, which extended into the 

intersection and mixing zone. Tr. 151, 194, 202. 

 I further credit the testimony of Lampley that the truck was an ignition source. Tr. 156-

57. Lampley identified several sources of ignition within the truck that Respondent did not 

contest. Id. Most notably, the engine produced thousands of combustions per minute. Id. It is 

undisputed that the truck was not permissible equipment. Tr. 156-57, 275, 319. Consequently, 

the truck did not prevent sparks released by the combustions from encountering potentially 

explosive methane concentrations in the air. Tr. 147-49. Due to the numerous ignition sources 

within the truck, the number of ignitions per minute, and the lack of countermeasures to arrest a 

methane ignition, I find that the truck was a likely source of methane ignition because it was 

parked in return air in a gassy mine on five-day spot protocol where methane would be coming 

off an active face and heading outby past gob and over the truck, during continuous mining 

operations. Tr. 157-59. 

It is important to emphasize that the Mach #1 Mine was subject to section 103(i) spot 

inspections every five days because of its excessive liberation of methane. Although the 

Secretary put on no evidence of any prior ignition at the Mach #1 Mine, and there is no mention 

38 FMSHRC Page 1401
of a prior methane ignition on MSHA’s data retrieval, there is some evidence of the presence of 

high dust concentration, including float coal dust, which might propagate a methane ignition. For 

example, inspector Robert Bretzman specifically testified that the mine normally had high dust 

concentration. In this regard, with respect to Citation 8432319, alleging that on September 12, 

2013, almost a year before Citation No. 8451651 was written, the longwall shearer on the 

headgate six unit did not have a visible warning device to adequately alert the shearer operator 

when the methane concentration reached 1.0 percent, inspector Bretzman testified as follows: 

I determined that if—in the event that we did have a high degree of 

methane, excessive methane, and the operators were not aware of

the methane and we was in a high dust concentration, like we 

normally are, we could have an ignition . . . . 

Tr. 411 (italics added). As further explained below, these facts coupled with Lampley’s 

testimony that methane would travel off the active face in return air and past gob to the truck (Tr. 

157-59) are sufficient to make an accumulation of methane at explosive concentrations 

reasonably likely during continued normal mining operations. Cf., Knox Creek, 811 F.3d at 164; 

Consolidation Coal Co., 35 FMSHRC at 2336. 

 Respondent argues that the truck was not exposed to methane, much less any explosive 

concentration of methane. This argument is unconvincing in the context of continued normal 

mining operations. Although no methane was found in the readings taken at the time of the 

citation, I credit Lampley’s testimony that the truck was exposed to numerous sources of 

methane. The most likely source of methane was from the gas released from the face during coal 

production, under continued normal mining operations. Tr. 158. Additionally, Lampley 

convincingly testified that bursts of methane released from rock falls within the gob could 

spontaneously increase methane concentrations to explosive levels quickly. Tr. 189-92. Finally, 

as noted above, the Commission has consistently found permissibility violations to be S&S 

where mines are characterized as gassy. See e.g., Consolidated Coal Co., 35 FMSHRC at 2336 

(affirming judge’s finding that of reasonable likelihood of injury from an explosion despite no 

methane detected at time of violation because methane was emitted as bolter drilled into the roof, 

the bolter was close to the gob and far from the bleeder fans, and the mine was a gassy mine). 

 As emphasized, this mine was on a five-day spot and liberated approximately two million 

cubic foot of methane in a 24-hour period. Tr. 158. The risks of dangerous concentrations of 

methane quickly rising to an explosive level from the above sources are increased where the 

mine liberates such high quantities of methane. Although Respondent offered its ventilation 

scheme as a sufficient countermeasure against methane accumulation, the Commission has 

consistently found that adequate ventilation within a mine is not sufficient to remove the danger 

of explosive levels of methane. U.S. Steel, 6 FMSHRC at 1869; Excel Mining, LLC, 37 

FMSHRC at 466. Based on the entire record, I find it reasonably likely that under continued 

normal mining operations, Crum’s non-permissible truck would be exposed to an explosive 

concentration of methane in the return air where it was parked. 

 Respondent argues that the truck would have been removed before production restarted, 

thus eliminating the presence of the ignition source. Tr. 286. I reject this argument. As the 

38 FMSHRC Page 1402
Fourth Circuit recently recognized, the Commission has long “held that an S&S determination 

ought to be ‘made at the time the citation is issued (without any assumptions as to abatement).’ 

Sec’y of Labor v. U.S. Steel Mining Co., 6 FMSHRC 1573,1574 (1984) (emphasis added); see 

also Sec’y of Labor v. McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1991 (2014) (rejecting 

the argument that an S&S finding was erroneous ‘because [the mine operator] was in the process 

of cleaning the accumulations when the inspector arrived’); Sec’y of Labor v.Gatliff Coal Co., 14 

FMSHRC 1982, 1986 (1992) (finding that the ALJ erred in ‘inferring that the violative condition 

would cease’ in the course of normal mining operations).” Knox Creek, 811 F.3d at 165. In 

addition, Crum’s testimony that the truck would have been removed before production restarted 

is speculative and unsupported by any evidence. Apart from Crum’s interest as a longwall 

maintenance supervisor in remaining by the longwall to ensure that the belt and longwall 

operated properly before he returned to his truck and the surface, Crum likely would have been 

delayed in any number of ways as longwall maintenance supervisor. Furthermore, because 

Crum was ignorant of the violative condition (see e.g., Tr. 284), I find it likely that he would 

have started the truck while it was in return air after production restarted, thus increasing the 

likelihood of a methane ignition. 

 In sum, I find that the presence of an ignition source, the location of that ignition source 

within return air reserved only for permissible equipment, the likelihood of a methane build up to 

an explosive level during continued normal mining operations in this gassy mine, and the 

testimony that the mine normally had high dust concentrations make it likely that the violation 

contributed to a discrete methane ignition or explosion hazard. As such, I find that the second 

prong of Mathies test was satisfied. 

c. The Violation Contributed to a Hazard That was Reasonably Likely to 

Result in Injury 

As the Fourth Circuit has recognized, the third and fourth prongs of Mathies, which are 

often combined in a single showing, are primarily concerned with gravity or the seriousness of 

the expected harm. To the extent that the third and fourth prongs are concerned with likelihood at 

all, they are concerned with the likelihood that the relevant hazard will result in serious injury 

because requiring a showing at prong three that the violation itself is likely to result in harm 

would make prong two superfluous. Knox Creek, 811 F.3d at 162, citing Mathies, 3 FMSHRC at 

3-4. 

Regarding the third Mathies factor, the Secretary demonstrated a reasonable likelihood 

that the hazard contributed to by the violation, i.e., a methane explosion contributed to by 

parking an impermissible ignition source in return air, was reasonably likely to result in an injury 

to the four miners working near the face. As noted, for this element to be satisfied “[t]he 

Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” 

Cumberland, 33 FMSHRC 2357, 2365 (Oct. 2011) (quoting Musser Engineering, Inc. & PBS 

Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010). Nor is the Secretary required to prove that 

the hazard contributed to will actually result in an injury-causing event. Youghioghemy & Ohio 

Coal Co., 9 FMSHRC 673, 678 (April 1987). 

38 FMSHRC Page 1403
Rather, the test under the third prong of Mathies is whether there is a reasonable 

likelihood that the hazard contributed to by the violation . . . will cause injury. Knox Creek, 811 

F.3d at 161, citing Musser Engineering, 32 FMSHRC at 1281, where the Commission assumed 

the existence of the relevant hazard and considered only “evidence regarding the likelihood of 

injury as a result of the hazard.” Although the Commission’s decision in Ziegler Coal Co., 15 

FMSHRC 949, 953 (1993), supports the argument that evidence of the likelihood of the hazard is 

relevant at prong three, as the Fourth Circuit noted, that position is flatly contradicted by more 

recent Commission precedent in Musser, 32 FMSHRC at 1281, and by the unanimous voice of 

the Fourth, Fifth and Seventh Circuits. See Knox Creek, 811 at 164; see also Peabody Midwest 

762 F.3d at 616 (holding that the question is not whether it is likely that the hazard would have 

occurred, but only if the hazard occurred, regardless of likelihood, it was reasonably likely that a 

reasonably serious injury would result); Knox Creek, 811 F.3d at 161 (Skidmore deference 

applied to Secretary’s litigating positions 1) that third prong of Mathies focuses on the likelihood 

that the hazard to which the violation contributes will cause injury, not on the likelihood of the 

hazard occurring, and 2) the existence of the relevant hazard should be assumed); Buck Creek, 52 

F.3d at 135 (the third prong of Mathies is satisfied where the ALJ determined that in the event of 

the hazard, a reasonably serious injury would result); Austin Power, 861 F.2d at 103-04 (finding 

third prong of Mathies satisfied where the hazard “would almost certainly result in serious 

injury,” without requiring evidence that the hazard itself was likely); cf. Cumberland Coal, 71 

F.3d at 1027-28 (Secretary’s interpretation that decision maker should assume the existence of an 

emergency when evaluating whether the violation of an emergency safety standard is S&S is not 

inconsistent with Mathies or Commission precedent). 

I credit inspector Lampley’s testimony that the violation, parking the impermissible 

truck with unapproved electrical components in return air, contributed to a methane ignition or 

explosion hazard that was reasonably likely to result in an injury to the four miners working at 

the face. Tr. 156-63. The Commission has long recognized that a methane ignition or explosion 

is likely to result in a fatal injury to exposed miners. See Consolidation Coal, 35 FMSHRC at 

2337 (affirming judge’s determination that the lack of a permissible light on a roof bolter would 

contribute to the hazard of a methane gas ignition or explosion, which is reasonably likely to 

cause a permanently disabling or fatal injury); Black Diamond Coal Mining, 7 FMSHRC 117, 

1120 (1985)(“We have previously noted Congress’ recognition that ignitions and explosions are 

major causes of death and injury to miners”); Jim Walter Res., Inc., 37 FMSHRC 1968, 1976 

(Sept. 2015)(“horrific mine explosion[s took] the lives of 12 miners at Sago Mine”); Sec’y of 

Labor v. Performance Coal Co., 34 FMSHRC 587, 588 (2012) (ALJ) (explosion at longwall 

section due to an ignition of methane propagated by coal dust resulted in deadliest U.S. mine 

disaster in 40 years, killing 29 miners); cf. Knox Creek, 811 F.3d at 163 (permissibility violations 

where a mine’s atmosphere contains explosive concentrations of methane contribute to a 

methane ignition or explosion hazard that is reasonably likely to result in an injury-producing 

event). Accordingly, I find that the third prong of Mathies was satisfied. 

d. There was a Reasonable Likelihood That the Injury in Question Will Be of a 

Reasonably Serious Nature 

With regard to the fourth Mathies factor, I find a reasonable likelihood that any injury 

from a methane explosion would be of a reasonably serious nature. A methane-related explosion 

38 FMSHRC Page 1404
contributed to by the violation was reasonably likely to result in fatal injuries to the four miners 

working at the face. Consolidation Coal Co., 35 FMSHRC at 2337; Black Diamond Coal 

Mining, 7 FMSHRC at 1120; Jim Walter Res., Inc., 37 FMSHRC at 1976; Sec’y of Labor v. 

Performance Coal Co., 34 FMSHRC at 588. Fatal injuries are necessarily serious in nature. 

Thus, I find the fourth Mathies factor satisfied. 

 In sum, considering all relevant factors, I find the violation was S&S. 

3. Respondent’s Negligence is Reduced from High to Moderate 

 I find that Respondent’s negligence should be reduced from “high” to “moderate.” It was 

not unreasonable for Crum, an agent of the operator, who was visually estimating distances, to 

mistake 144 feet for 150 feet and to park the hood of his truck slightly in return air. I find this 

honest mistake to be a mitigating circumstance that supports a reduction in Respondent’s 

negligence from high to moderate. 

4. Civil Penalty for Citation No. 8451651 

 Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find 

that Respondent, Mach Mining, Inc., operates the Mach Mining No. 1 Underground Mine, which 

mined 7,528,061 tons of bituminous coal in 2012. The parties stipulated that the originally 

proposed penalty of $16,867 will not affect Respondent’s ability to remain in business. MSHA 

recognized Respondent’s good-faith compliance in abating the citation. I have affirmed MSHA’s 

gravity and S&S determinations. I have modified MSHA’s negligence determination from high 

to moderate. After consideration of the penalty assessment criteria set forth in section 110(i) of 

the Act, I assess a $5,081 civil penalty against the Respondent for Citation No. 8451651. 

VI. Citation No. 8439446 

A. Findings of Fact 

1. Inspector Stanley’s Testimony 

 

After determining that Respondent’s methane monitor attached to a roof bolting machine 

failed to register explosive concentrations of methane, Inspector Phillip Wayne Stanley19 issued 

Citation No. 84539446 for a violation of 30 C.F.R. § 75.342(a)(4). Tr. 465-66. The cited 

standard requires that methane monitors be maintained in proper operating condition. Tr. 465. 

Properly operating monitors de-energize electrical equipment when methane concentrations 

reach 2.0 percent or when the monitor is not operating properly. 30 C.F.R. § 75.342(c); Tr. 465. 

Stanley determined that the violation was S&S and contributed to a methane ignition hazard that 

 19 At the time of the hearing, Stanley had been a coal mine inspector for MSHA for four 

years and eight months. Tr. 461. Starting in December 1990, Stanley worked in potash mining 

for sixteen to seventeen years. Id. Thereafter, he worked in coal mining for approximately eight 

years. Id. Stanley graduated from high school in 1980, worked in the military for four years, and 

completed his training at the National Mine Safety and Health Academy. Tr. 461-62. 

38 FMSHRC Page 1405
was reasonably likely to result in flash burns affecting two miners, as a result of Respondent’s 

moderate negligence. Tr. 156, 162-63. The Secretary proposed a penalty of $1,412. 

On August 6, 2013, Stanley conducted a regular inspection at Mach Mining. Tr. 461-62. 

As part of that inspection, Stanley tested the methane monitor attached to roof bolter #4 on the 

eighth headgate panel. Tr. 462, 464. Stanley conducted the inspection with a calibrator that 

displayed a digital readout, which listed the methane level. Tr. 464-65. When Stanley applied 

2.5% methane to the monitor, it only read as high as 1.6 % methane. Id. The roof bolter is 

programmed to automatically de-energize at 2.0 %. Tr. 465. With an inaccurate methane 

monitor, the machine would likely fail to de-energize in explosive levels of methane. Tr. 468. 

Under MSHA regulation, methane readings must be taken every twenty minutes during 

the process of roof bolting. Tr. 466, 496; 30 C.F.R. §75.362(d)(2). If a roof bolter lacks a 

methane monitor, readings must be taken with a probe at the deepest point of the cut 

approximately a foot from the roof or face. Tr. 467, 493-94. If the roof bolter has a methane 

monitor, readings can be taken within sixteen feet of the front of the machine. Tr. 466-67, 494-

95. Stanley opined, but was not positive, that the methane monitor on the bolter did not run all 

day and was only used when a reading was taken. Tr. 495. 

 

 Stanley issued Citation No. 8439446 for a violation of 30 C.F.R. § 75.342(a)(4). Tr. 465-

66. The cited standard requires that methane monitors be maintained in proper operating 

condition. Tr. 465. Properly operating monitors de-energize electrical equipment when methane 

concentrations reach 2.0 percent or when the monitor is not operating properly. 30 C.F.R. § 

75.342(c); Tr. 465. 

Stanley marked the citation as “reasonably likely” to result in an injury because the 

machine would not de-energize when encountering an explosive concentration of methane. Tr. 

468. The mine liberated two million cfm of methane in a 24-hour period, and the eighth headgate 

panel itself released 25,000 cfm of methane in a 24-hour period. Id. Although more methane is 

released during extraction, some methane is released during roof bolting. Tr. 496. Because 

methane is lighter than oxygen, it accumulates in the top third of the entry where bolting occurs. 

Tr. 472-73. The methane monitor was placed on the automated temporary roof support system 

(ATRS) to gather readings in this accumulation zone. Tr. 468-69, 492. Additionally, the area 

near the roof of the mine was susceptible to sparking because the carbide tips of the bolter’s drill 

bits encountered materials such as sandstone, limestone, and shale. Tr. 469. The roof bolter also 

created sparks when its wrench and bolt rotated against a steel-bearing plate. Id. Stanley referred 

to a 2012 ignition at Prosperity Mine to demonstrate the hazard resulting from a malfunctioning 

methane monitor on a roof bolter. Tr. 470. 

Given the malfunctioning methane monitor, the likelihood and location of methane 

accumulation, and the potential for sparking, Stanley expected resulting injuries from an ignition 

to manifest as flash burns. Id. Stanley determined that these injuries would result in lost 

workdays or restricted duty and would affect the two machine operators. Tr. 470-71. 

 At the time of the citation, Respondent’s ventilation system met regulatory standards. Tr. 

490-92. Looking inby, the system ventilated the roof bolter with air traveling from right to left, 

38 FMSHRC Page 1406
and included a line curtain to assist with ventilation. Id. This air acted to render harmless or 

remove noxious and hazardous gases and dust. Id., Tr. 505. However, ventilation systems may be 

inadequate where methane bleeders are encountered. Tr. 505-06. Bleeders are pockets of 

methane pressured under the strata. Id. They may continually replace explosive concentrations of 

methane faster than the ventilation can sweep the air. Id. 

In deference to Respondent’s implementation of seven-day checks on its methane 

monitors rather than the thirty-one day intervals required by the regulations, Stanley determined 

that Respondent’s negligence was moderate. Tr. 471. 

2. The Testimony from Respondent’s Witnesses 

a. Mark Schilke’s Testimony 

 

 Schilke accompanied Stanley during his inspection of the roof bolter. Tr. 552. At the time 

of inspection, the bolter was pulled back approximately eighty feet from the face and outby the 

feeder break or last open crosscut. Tr. 555-56. The roof bolter is typically pulled in to secure 

unsupported roof after the continuous miner takes a fresh cut at the face. Tr. 557-58. 

Schilke testified that prior to positioning the roof bolter, the roof bolt operators would 

take a methane reading. Tr. 553. A separate handheld methane monitor was attached to the probe 

and extended at least fifteen feet beyond the bolter. Tr. 553, 629-630, 635. The bolter operators 

repeated these readings every twenty minutes with a probe. Tr. 553, 624, 644. Schilke testified 

that having a methane monitor attached to the bolter did not affect the nature of the twentyminute gas checks in any way. Tr. 629-632. There was no evidence to suggest errors in the 

equipment or data derived from these regular methane checks. Tr. 554. 

Both Stanley and Schilke wore methane spotters and neither reported methane near the 

face. Tr. 559. Schilke testified that although the cited methane monitor failed to deenergize the 

machine, it did emit a warning during the methane test. Tr. 552, 628-29. Schilke also emphasized 

that methane monitors were an optional safety precaution. Tr. 552-53. 

 

During roof bolting, Respondent ran a curtain to the tail of the bolter, to facilitate the 

flow of approximately 3000 cfm of intake air. Tr. 556-57. This ventilation system directed the air 

towards the face and across the bolter to remove gas and dust from the bolter. Tr. 556-58. 

Schilke admitted that the amount of ventilation would not diminish the necessity of twentyminute gas checks. Tr. 633. 

 

38 FMSHRC Page 1407
b. Johnny Robertson’s Testimony 

General Manager Johnny Robertson20 testified that methane was only liberated when the 

continuous miners or the longwall shearers cut coal. Tr. 710-11, 742. Robertson testified that 

methane is less likely encountered during roof bolting than mining, and is usually only present 

when roof bolting into a coal seam. Tr. 716. Robinson testified that during his four years of 

tenure with Respondent, there were no reports of methane released from the roof or during 

bolting. Tr. 718-19. 

According to Robertson, the regularity of spot inspections is determined by the amounts 

of methane and intake air in the mine. Tr. 743. Higher volumes of intake air reduce the methane 

content within the mine. Tr. 743-44. Robertson explained that Respondent’s ventilation plan 

required a minimum of 3000 cfm of intake air blowing against a line curtain and across the back 

of the roof bolters. Tr. 711. Although Respondent met the ventilation requirements, its methane 

levels nonetheless required five-day spot inspections. Tr. 709-10, 743-44. Robertson conducted 

weekly methane readings where methane accumulated at the bleeder system behind the longwall. 

Tr. 710. He testified that during his time as general manager, neither his readings, nor any 

readings reported to him, were above 0.7 % methane. Tr. 711. 

 Robinson confirmed that Respondent used a continuous miner to carve out entryways. Tr. 

717. After it cut forty feet of coal and withdrew, the roof bolter moved in to support the roof. 

Id., Tr. 742-43. Robertson testified that the light on the monitor was generally visible to the 

operator when the continuous miner cut and loaded coal. Tr. 723-24. He testified that the 

operator stood in front of the methane monitor. Tr. 745. He acknowledged, however, that the 

operator might turn away from the monitor while the cutter drum cut coal, whenever the shuttle 

car approached and loaded coal. Tr. 723-25, 745. Under such circumstances, the methane 

monitor was not visible for a few seconds. Tr. 723-25, 746. The continuous miner was not 

programed to automatically de-energize in concentrations of one-percent methane. Tr. 746-47. 

Instead, it was de-energized manually. Id. 

Robertson also confirmed that when the roof bolter had a methane monitor attached to the 

ATRS, the operators probe sixteen feet in front of the bolter. Tr. 719. These methane checks 

were repeated every twenty minutes during roof bolting. Id. If the bolter did not have an attached 

methane monitor on the ATRS, these checks would occur with a different handheld monitor at 

the deepest point of penetration about twelve inches from the face and roof. Tr. 720. 

 20 Robertson had thirty-two years of experience in mining. For six years before 

commencement of employment with Mach Mining, Robertson was employed at Foresight 

Energy, which owns Mach Mining. Tr. 706. Before that, he worked for Massey Energy for 

twenty-six years, and held positions in engineering, safety, and operations. Id. He supervised 

multiple mine sites and was president of one of Massey Energy’s large resource groups. Tr. 706-

07. He was certified in Ohio, New Mexico, and Illinois as a foreman or mine manager. Tr. 707. 

Robertson was a MSHA instructor with certifications in dust and noise. Tr. 707. He has a 

Bachelor’s Degree from Marshall University in West Virginia. Id. Robertson served in the Army 

Special Forces. Id. 

38 FMSHRC Page 1408
B. Analysis and Disposition 

1. The Violation of § 75.342(a)(4)

 Section 75.342(a)(4) requires that operators maintain methane monitors in permissible 

and proper operating condition and calibrate them with a known air-methane mixture at least 

once every 31 days. A methane monitor in permissible and proper operating condition shall 

automatically de-energize electric equipment or shut down diesel equipment on which it is 

mounted when the methane concentration reaches 2.0 percent or when the monitor is not 

operating properly. 30 C.F.R. § 75.342(c). 

 Respondent admitted the violation. Tr. 552. See R. Br. 12. The methane monitor failed to 

de-energize the machine when methane concentrations reached 2% and failed to provide 

readings higher than 1.6 %. Tr. 464-65. Respondent argues that the violation was not S&S, that 

its negligence was less than moderate, and that the proposed penalty calculation is inappropriate. 

2. The Violation was Significant and Substantial

a. There was a Violation of a Mandatory Safety Standard

For the reasons explained above, I have found and Respondent admits the underlying 

violation of a mandatory safety standard, i.e., § 75.342(a)(4). 

b. The Violation Contributed to a Discrete Measure of Danger to Safety 

As stated previously, the second Mathies factor requires a showing that the violation 

created a discrete safety hazard, “which implicitly requires a showing that the violation is at least 

somewhat likely to result in harm.” Knox Creek, 811 F.3d at 16, citing Black Beauty Coal Co., 

34 FMSHRC at 1741, n. 12, aff’d sub nom. Peabody Midwest, 762 F.3d 611 (7th Cir. 2014); 

Cumberland, 33 FMSHRC at 2368, aff’d sub nom. Cumberland, 717 F.3d 1020; E. Associated 

Coal Corp., 13 FMSHRC at 183; Utah Power & Light Co., 12 FMSHRC at 970. Where a 

violation poses a risk of fire or explosion, this likelihood is demonstrated by the presence of a 

“confluence of factors,” such as possible ignition sources, the presence of methane, and the type 

of equipment in the area. Excel Mining, LLC, 37 FMSHRC at 465, slip op. at 7, (Mar. 

2015); Utah Power & Light Co., 12 FMSHRC at 970-71; Texasgulf, 10 FMSHRC at 501-03. For 

example, in Consolidation Coal, the Commission found that a methane ignition was reasonably 

likely because methane was emitted during roof bolting, the bolter was located near the gob and 

far from the bleeder fans, and the mine was gassy. Consolidation Coal Co., 35 FMSHRC at 

2337. 

A properly functioning methane monitor is expected to automatically de-energize 

electrical equipment in two percent methane to avoid the potential ignition of explosive levels of 

methane at the 5-15% range. The monitor at issue in the present citation did not detect two 

percent methane when tested, and would not automatically de-energize the roof bolter in rising 

concentrations of methane, thus contributing to the likelihood of a methane ignition should 

methane accumulate to an explosive level during continued normal mining operations. 

38 FMSHRC Page 1409
Consequentially, I find that the hazard contributed to by the violation was a methane-related 

ignition caused by undetected explosive levels of methane where ignition sources were present. 

The risk of excessive methane in Respondent’s mine nearly parallels the risk cited in 

Consolidation Coal. Methane was liberated during roof bolting. Tr. 469. Due to its weight, the 

methane accumulated near the top third of the entry where bolting occurred. Tr. 468-69. The 

potential for bleeders increased the possibility of dangerous methane concentrations. Tr. 505-06. 

Furthermore, the Commission has held that if a mine liberates high levels of methane 

there may be an even greater potential for a methane ignition to occur and that this may be 

considered in a confluence-of-factors analysis. Excel Mining, LLC, 37 FMSHRC 465, slip op. at 

7, (Mar. 2015); Knox Creek Coal Corp., 36 FMSHRC at 1134. As stated previously, the Mach 

Mining No. 1 Underground Mine is a gassy mine that is on a five-day spot inspection schedule. 

Tr. 35. The mine liberates over two million cfm methane in a 24-hour period and approximately 

35,000 cfm methane at the eighth head-gate panel. Tr. 468. I find that the confluence-of-factors 

test is satisfied here and that the violation created a discrete safety hazard, which was at least 

somewhat likely to result in harm. 

Citing facts discussed in the Consolidation Coal ALJ decision, Respondent argues in its 

response to the Secretary’s Post-Hearing brief that the risk of excessive methane in the present 

case is substantially different from the risk of excess methane in Consolidation Coal. R. Resp. 

Br. 6-7. According to Respondent, respondent Consolidation Coal had higher levels of methane 

because the roof bolters and continuous miners shut down four to five times in a cycle, and a 

curtain was removed by a foreman, thus raising methane levels to 7.7%. Id. However, the facts 

that Respondent relies on were not determinative in Consolidation Coal. Instead, the 

Commission cited only three factors when establishing a sufficiently dangerous risk for a 

methane ignition. Consolidation Coal Co., 35 FMSHRC at 2337 (emphasis added). The 

Commission cited the emission of methane while roof bolting, the location of the roof bolter near 

the gob and further from the bleeder fans, and the fact that the mine was gassy. Id. (“[T]he 

Robinsons Run mine liberates more than a million cfm of methane during a 24-hour period and 

is subject to five-day methane spot inspections”). Given the cited conditions, the Commission 

quoted the inspector’s testimony that “it would only take a roof-fall for the gob air to ... create 

an explosive amount of methane.” Id. at 2336. With the additional danger of encountering 

pockets of methane bleeders, the present risk factors are nearly identical to those enumerated by 

the Commission in Consolidation Coal. Accordingly, I do not find Respondent’s argument 

persuasive. 

Respondent also cites Judge Zielinski’s decision in Ohio County Coal for the proposition 

that a malfunctioning methane monitor is not S&S where the mine has low levels of methane 

concentrations. Ohio County Coal Co., 32 FMSHRC 220 (Feb. 2010)(ALJ). Ohio County Coal

is distinguishable from the present case in at least one major way. The mine in Ohio County Coal 

did not liberate excessive quantities of methane, as noted by Judge Zielinski in his analysis. 32 

FMSHRC at 224 (comparing Freedom mine to mines that liberate greater quantities of methane 

and are subject to spot inspections). Instead, the mine in that case emitted a mere 12,000 to 

13,000 cfm methane in a 24-hour period, in comparison to Respondent’s liberation of one 

million cfm methane in a 24-hour period. Id. 

38 FMSHRC Page 1410
In short, Respondent roof bolted with a malfunctioning methane monitor in an area of 

methane emission and accumulation within a gassy mine. The inspector credibly testified that 

sparks released from roof bolting in excess methane concentrations will cause an ignition. I find 

that this combination of risk factors satisfies the confluence-of-factors test for a methane ignition 

hazard and supports a finding that the hazard is at least somewhat likely to occur. Accordingly, I 

find that the second Mathies factor is satisfied. 

c. The Violation Contributed to a Hazard That was Reasonably Likely to 

Result in Injury 

As stated previously, federal appellate law and Commission precedent have sufficiently 

established that a methane explosion is reasonably likely to result in injures. See Buck Creek, 52 

F.3d at 135; Consolidation Coal Co., 35 FMSHRC at 2337; Black Diamond Coal Mining, 7 

FMSHRC at 1120; Jim Walter Res., Inc., 37 FMSHRC at 1976; cf. Knox Creek, 811 F.3d at 164-

65. Accordingly, I find that the third Mathies factor is met. 

d. There was a Reasonable Likelihood That the Injury in Question Will Be of a 

Reasonably Serious Nature 

 With regard to the fourth Mathies factor, I find a reasonable likelihood that any injury 

from a methane explosion would be of a reasonably serious nature. The record establishes that a 

methane-related ignition contributed to by the violation was reasonably likely to result in a 

serious injury or illness to at least two miners working with the bolter, who would suffer flash 

burns from a methane ignition. I find that the designation of “lost workdays or restricted duty” 

was appropriate for this violation. 

 In sum, considering all the relevant factors, I find that the violation was properly 

designated as S&S. 

3. Respondent’s Negligence was Appropriately Designated as Moderate 

 Based on the testimony and briefs, I do not find considerable mitigating circumstances 

that would justify reducing the negligence designation from moderate to low. Respondent knew 

or should have known of the violation. Respondent’s ventilation and weekly methane monitor 

calibrations are mitigating circumstances that support a moderate negligence designation. 

However, Respondent highlighted no action that considerably mitigated the likelihood or 

severity of a methane ignition during roof bolting without a properly functioning methane 

monitor. In these circumstances, I conclude that the Secretary properly designated Respondent’s 

negligence as moderate. 

4. Civil Penalty for Citation No. 8439446 

 

Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find 

that Respondent mined 7,528,061 tons of bituminous coal in 2012. The parties stipulated that the 

originally proposed penalty of $1,412 will not affect Respondent’s ability to remain in business. 

MSHA recognized Respondent’s good-faith compliance in abating the citation. I have affirmed 

38 FMSHRC Page 1411
MSHA’s gravity, negligence, and S&S determinations. After consideration of the penalty 

assessment criteria set forth in section 110(i) of the Act, I assess a $1,412 civil penalty against 

the Respondent for Citation No. 8439446. 

 

V. Citation No. 8432319 

A. Findings of Fact 

1. Inspector Bretzman’s Testimony 

After observing the absence of an auxiliary methane alarm light on a longwall shearer, 

MSHA inspector Robert L. Bretzman21 issued Citation No. 8432319 for a violation of 30 C.F.R. 

§ 75.342(b)(2), which requires that “[t]he warning signal device of the methane monitor shall be 

visible to a person who can de-energize electric equipment or shut down diesel-powered 

equipment on which the monitor is mounted.” Tr. 409. Bretzman determined that the violation 

was unlikely to contribute to a methane ignition hazard, but that any injuries that did result from 

the hazard would result in lost work days or restricted duty affecting three miners, as a result of 

Respondent’s low negligence. Tr. 409-411. The Secretary proposed a penalty of $117. 

On September 11, 2013, Bretzman was among several inspectors who conducted a 

quarterly inspection of Respondent’s longwall. Tr. 396-97. Bretzman testified that the longwall 

was probably producing coal when he arrived, but he could not say for sure. Tr. 418. During the 

inspection, Bretzman noticed that there was no auxiliary alarm light on the longwall shearer. Tr. 

398. In Bretzman’s experience, longwall shearers always have auxiliary alarm lights. Tr. 407, 

410. The shearer at issue has an electric panel with a four to six-inch LED screen, which 

constantly displays the current concentration of methane. Tr. 439-440. This methane reading 

flashes when methane levels reach a certain percentage. Tr. 440-441. When methane 

concentrations reach one percent, an alarm light turns on to alert the shearer operator of 

excessive methane. Tr. 441. This alarm light is located in the bottom right-hand corner of the 

panel and is approximately the size of a quarter. Tr. 411-412, 441; S. Ex. 102. 

Respondent usually has two longwall shearer operators, a headgate operator and a tailgate 

operator, and each has a remote control box that can de-energize the shearer. Tr. 404-05, 433. 

The shearer also has an emergency stop button that can be operated by anyone in the area, 

including the stage loader operator. Tr. 434-36. Bretzman testified that the stage loader operator 

works in a stationary position at the headgate of the longwall. Tr. 435-36. Bretzman testified 

that the only way to see the alarm on the shearer is to stand directly in front of the monitor. Tr. 

 21 Inspector Bretzman was employed by MSHA as a special investigator for two and a 

half years, and as an electrical specialist for five years. Tr. 394. Bretzman worked in mining 

since 1977. Tr. 395. He held positions as a belt maintenance worker, a shieldman, a mechanic, 

and a maintenance foreman. Id. Additionally, Bretzman worked for a short time in the electrical 

department for Joy Technologies, a mine manufacturing company. Id. Bretzman holds an 

Associate’s degree and received his Bachelor’s degree from Southern Illinois University in work 

force education and training. Tr. 396. He was a certified mine examiner, who possessed a federal 

electrical card. Tr. 398. 

38 FMSHRC Page 1412
402, 413. Respondent failed to present any testimony that the stage loader operator could see the 

auxiliary light on the longwall shearer. 

Bretzman did not observe the longwall in operation and did not know for certain where 

the operators stood that particular day. Tr. 437-438, 442. However, Bretzman testified that it was 

highly unlikely that a miner would stand where he could see the monitor because from that 

location he would be unable to see the cutting drums. Tr. 402-403. At any given time, an 

operator may stand anywhere along the shearer, up to twenty-five feet from the monitor. Tr. 412-

15, 438-439, 447. Upon questioning headgate operator Mike Skelton, Bretzman learned that he 

was positioned outby the headgate drum when it traveled towards the headgate. Tr. 446; see S. 

Ex. 100, p. 3. This location confirmed Bretzman’s suspicion that the shearer operator would not 

see the warning light. Tr. 446. Bretzman’s notes from the day of the inspection do not indicate 

the tailgate operator’s usual location, although Bretzman opined that Skelton would have 

volunteered that information if it was exculpatory. Tr. 456-57.

Bretzman returned to MSHA and verified that alarm lights were required on the shearer. 

Tr. 405, 408, 443. Bretzman decided, and the MSHA field office supervisor agreed, that a 

citation was appropriate. Tr. 444. Bretzman returned to the mine the next day and issued the 

citation. Tr. 408. The cited standard requires that “[t]he warning signal device of the methane 

monitor shall be visible to a person who can de-energize electric equipment or shut down dieselpowered equipment on which it is mounted.” 30 C.F.R. § 75.342(b)(2); see also Tr. 409. 

Bretzman determined that the operator could not see the monitor during normal mining 

operations unless he was in the direct line of sight of the readout. Tr. 409, 412, 441. As a result, 

the operator would not have accurate methane readings during mining. Tr. 409. However, 

Bretzman conceded that the standard does not specifically say that the monitor must be visible to 

the headgate or tailgate operator. Tr. 436-37. Any person assigned to watch the monitor would be 

sufficient. Tr. 437, 439. To Bretzman’s knowledge, no one stood at the center of the shearer. Tr. 

447. Furthermore, Bretzman could not recall anyone from Respondent telling him that the 

indicator light could be seen by a person who could de-energize the machine. Tr. 446. 

 Respondent argues that the lack of previous citations from past inspections suggests that 

the condition was not a violation. Tr. 725-27. Since 2006, Respondent developed longwall panels 

for three miles and was subject to many inspections, including E01 inspections, spot inspections, 

and permissibility certifications for 2G longwall equipment. Tr. 422-442. Bretzman testified that 

the 2G approvals were irrelevant because they only certified diagrams and plans of the mine, and 

not the ways in which equipment was actually used. Tr. 451-452. For instance, Bretzman 

recalled a similar citation at the same mine requiring an auxiliary alarm light on a stage loader. 

Tr. 406. In that case, the stage loader satisfied 2G permissibility requirements if one assumed 

that the operator was in view of the methane alarm. Tr. 451-52. In practice, however, MSHA 

inspectors observed that the operators were not always in position to view the alarm and 

therefore issued a citation. Id. Bretzman could not recall if he had spoken with Respondent 

previously about the failure to place a light on the shearer, although he believed he had. Tr. 422, 

431. Bretzman testified that every longwall shearer that Bretzman worked with at Consol, and 

most of the ones at Joy Technologies had auxiliary alarm lights. Tr. 407. 

38 FMSHRC Page 1413
 Bretzman determined that the unlikely injury that would result from the alleged violation 

was lost work days or restricted duty for three miners. Tr. 410-11. He testified that there was 

normally a high concentration of coal dust at the site. Tr. 411. Excessive methane in an 

environment with coal dust creates an ignition hazard. Id. As a result, Bretzman determined that 

the shearer operators and shieldman were at risk for burns. Id. Bretzman wrote the citation as 

unlikely because mining had stopped and he had no evidence to suggest that methane was 

present. Tr. 410, 420. Furthermore, Respondent’s ventilation pushed over 100,000 cfm of intake 

air over the headgate, and the shearers were designed to automatically de-energize at 2.5 % 

methane. Tr. at 417-21. The monitors designed to shut off the shearers worked properly at the 

time of the citation. Tr. 421. 

 To abate the alleged violation, Respondent ordered the equipment necessary to install an 

auxiliary alarm light on the shearer. Tr. 412. Respondent installed a new, two-inch flashing light 

that was visible to the shearer operators. Tr. 448. The citation was terminated by another 

inspector. Tr. 457-58. 

2. The Testimony from Respondent’s Witnesses 

a. James Key’s Testimony 

James Key was a shearer operator for the Respondent.22 Key explained that a longwall 

shearer is a piece of equipment with two drums, one at the head and one at the tail end. Tr. 649-

650. As the shearer passes from the headgate to the tailgate, the tail drum cuts the top, and the 

head drum cuts the bottom. Id. The headgate operator runs the head drum with a remote control 

as cuts are made, while the tailgate operator does the same with the tail drum. Tr. 650-52. The 

remotes have stop buttons that can turn off, but not de-energize, the machine. Tr. 651. Instead, 

the shearer has an emergency stop that de-energizes the machine. Tr. 652. 

 When the shearer moves from the headgate to the tailgate, the tailgate operator typically 

stands approximately six to seven feet to the right of the alarm light in the direction of the 

tailgate. Tr. 653, 664. Key further testified that the alarm light was visible to the tailgate 

operator, if he turned his head. Tr. 664. According to Key, the headgate operator was usually in a 

variety of locations, including anywhere from right behind the tailgate operator to the back of the 

head drum. Tr. 653-54, 664-65, 668. Key testified that the headgate operator could also see the 

light, if he turned his head. Tr. 664. 

 Key testified that when the shearer moved in the opposite direction, the tailgate operator 

typically stood on the head side of the drum. Tr. 655, 666-68. The headgate operator was usually 

located closer to the alarm light, although neither operator remained in a certain location. Tr. 

666-68. Although the light was usually visible, the operators might not have been in position to 

 22 Key had been employed by Mach Mining since January 2007. Tr. 647. At the time of 

the citation, Key was certified as a mine examiner and mine manager. Tr. 648. Prior to that, Key 

worked as a shearer operator on the longwall at American Coal’s Galatia Mine for 20 months. 

Tr. 646-48. Key had twenty years of mining experience. Tr. 647. 

38 FMSHRC Page 1414
see the light at any given moment. Tr. 666. Key admitted that there was not always someone 

standing in front of the light during mining. Tr. 674. 

 Key was familiar with the methane monitor and the lights on the display. Tr. 661. Key 

had worked for a different coal company with a similar longwall system, which had the monitor 

in the same location. Tr. 669. According to Key, the light, which turned on when methane levels 

reached one percent, was “pretty bright.” Tr. 662-63, 665. The light was approximately an inch 

in circumference. Tr. 663. It was located within an enclosure that jutted out around the edges. Tr. 

673. The raised edges limited the light’s visibility at certain angles from the monitor. Tr. 673-74. 

b. Johnny Robertson’s Testimony 

General Manager Robertson was familiar with the methane monitor on the longwall 

shearer. Tr. 720-21. Robertson testified that in one percent methane, a yellow light turned on. Tr. 

722, 746. Further, given adequate ventilation, the operator merely had to stop mining to halt 

methane liberation. Tr. 722. Once methane levels dropped below one percent, the operators 

could resume mining. Id. 

Robertson testified that Respondent had never received a citation for the location of the 

auxiliary alarm light on the shearer during the prior six years when Respondent used the 

longwall. Tr. 725-27. Additionally, Robertson testified that Massey Energy used the same 

methane display and never received a citation during his four years as a general manager there. 

Tr. 725-28. Until the instant inspection, Robertson had never heard of a citation for this issue. Tr. 

729. Robertson testified that, apart from the issuance of the citation, Respondent suffered no 

reported negative consequences from the location of the alarm light. Tr. 751-53. Respondent 

abated the citation by ordering an alarm light and installing it on a Saturday, when the longwall 

was down. Tr. 756. 

 Robertson testified that approximately five years before the date of the hearing, MSHA 

inspector, Dean Cripps, issued a similar citation for lack of visibility on a monorail methane 

monitor.23 Tr. 728-30, 749-50. Robertson testified that Cripps’ concern about the location of the 

alarm light was limited to the monorail because Cripps did not issue a citation for the alarm light 

on the longwall shearer. Tr. 730. According to Robertson, Cripps informed Robertson’s 

supervisor, Anthony Webb, that any change in policy for the shearer methane monitors would be 

accompanied by written verification from MSHA. Tr. 730, 738. Robertson testified that 

Respondent never received verification in writing on this issue until the issuance of the citation. 

Tr. 738-41. 

Robertson further testified that two years ago, Webb and Robertson determined that 

installing the light required partially dismantling the shearer, and therefore, any necessary 

alterations to the alarm light would occur when the shearer was rebuilt for another mining panel. 

 23 Both Robertson and Bretzman referred to a prior similar citation. Tr. 728-30, 749-50. 

Bretzman testified that the alarm light in the prior instance was on a stage loader, and Robertson 

testified that the citation was for a monorail alarm light. Id. The particular equipment is not 

determinative in the present case. 

38 FMSHRC Page 1415
Tr. 730-32, 749-50. Robertson, however, admitted that Respondent did not have to rebuild the 

shearer to install the light for abatement purposes. Tr. 752. 

Robertson relayed his conversations with Cripps and Webb to Bretzman. Tr. 733, 739-40. 

B. Analysis and Disposition 

1. Respondent had Adequate Notice of the Requirements for § 75.342(b)(2) 

 Respondent argues that it did not have fair notice of the standard before receiving the 

citation. R. Br. 25-27. Respondent asserts that a previous MSHA inspector (Cripps) assured 

Respondent that a change in policy on the methane monitors would be accompanied by written 

notification. Tr. 730, 738. Respondent contends that Cripps’ assurance, coupled with a lack of 

previous citations on the longwall shearer’s methane monitor, establish that Respondent did not 

receive fair notice of the standard. 

 Due process considerations prevent the adoption of an agency’s interpretation of a 

regulation that “fails to give fair warning of the conduct it prohibits or requires.” LaFarge North 

America, 35 FMSHRC 3497, 3500-01 (Dec. 2013)(citing Gates & Fox Co. v. OSHRC, 790 F.2d 

154, 156 (D.C. Cir. 1986)). The Commission has held that adequate notice is provided where a 

regulation has clear meaning and is not inconsistent with MSHA’s Program Policy Manual 

(PPM). Jim Walter Res., Inc., 28 FMSHRC 579, 594-95 (Aug. 2006). Where a regulation is not

expressly defined, the Commission has found adequate notice where clarification is found in 

MSHA policy publications. See e.g., Dolese Brothers Co., 16 FMSRHC 689, 693-94 (Apr. 

1994)(where MSHA’s PPM and a policy letter clarified the applicable standard). 

Here, the language of the regulation is clear when it states that the “[t]he warning signal 

device of the methane monitor shall be visible to a person who can deenergize electric equipment 

or shut down diesel-powered equipment on which the monitor is mounted.” § 75.342(b)(2). This 

standard is further explained in MSHA’s Program Policy Manual (PPM) for machines operated 

by remote controls. Thus, even assuming some ambiguity in the regulatory language, the PPM 

was sufficiently clear regarding the requirements of the standard. See Coal Employment Project 

v. Dole, 889 F. 2d 1127, 1130 n. 5 (D.C. Cir. 1989)(PPM, although not binding, is an accurate 

guide to current MSHA policies and practices); accord Mettiki Coal Corp., 13 FMSHRC 760, 

766-67 & nn. 6 & & (May 1991). For such machines, the PPM requires that methane warning 

devices be installed “in such a location that [it] can be readily seen or heard by...the machine 

operator...at all locations from which the machine is operated.” V MSHA, U.S. Dep’t of Labor, 

Program Policy Manual, Part 75.342 at 41(2015) (emphasis added). I find that the plain 

language of the regulation, coupled with the accompanying explanation in the PPM, provided 

clear and fair notice to Respondent regarding the interpretation of the cited standard. That is, 

MSHA requires that methane warning devices for remote-controlled machinery be visible from 

all locations from which the operator is located. 30 C.F.R. 75.342(b)(2). 

 Respondent’s argument that it detrimentally relied on inspector Cripps’ assurances that a 

change in policy on the methane monitors would be accompanied by written notification is not 

persuasive. Essentially, Respondent argues that MSHA should be estopped from issuing a 

38 FMSHRC Page 1416
citation on the methane warning light on the longwall shearer because of Cripps’ assurances and 

lack of previous enforcement. The Commission has declined to apply equitable estoppel against 

the government, or in this case, its agents. King Knob Coal Co., 3 FMSHRC 1417, 1421 (June 

1981). Generally, “those who deal with the Government are expected to know the law and may 

not rely on the conduct of government agents contrary to law.” Heckler v. Community Health 

Services, 467 U.S. 51, 63 (1981). The Commission has held that “an inconsistent enforcement 

pattern by MSHA inspectors does not prevent MSHA from proceeding under an application of 

the standard that it concludes is correct.” Mach Mining, 34 FMSHRC 1769, 1774 (Aug. 2012) 

(citing Austin Powder Co., 29 FMSHRC 909, 920 (Nov. 2007)). 

I have credited Bretzman’s testimony that MSHA requires visible alarm warnings on 

methane monitors on longwall shearers. Bretzman recognized an alleged violation and verified 

the applicability of the regulation with his supervisor at MSHA. Tr. 444. I have found that the 

plain language of the regulation, coupled with the accompanying explanation in the PPM, 

provided clear and fair notice to Respondent regarding the interpretation of the cited standard. 

Accordingly, I conclude that Respondent had adequate notice of the requirements of 30 C.F.R. § 

75.342(b)(2). 

2. The Violation of § 75.342(b)(2)

 Section 75.342(b) provides that the warning signal device of the methane monitor must 

be visible to a person who can de-energize the equipment on which the monitor is mounted. 30 

C.F.R. § 75.342(b)(2). The regulations require the monitor to give this alarm signal when 

methane concentrations reach one percent. 30 C.F.R. § 75.342(b)(1). At that point, the miner 

must de-energize or shut down the equipment. 30 C.F.R. § 75.342(b)(2). 

 The Commission and the D.C. Circuit have previously examined the application of this 

regulation to longwall methane monitors. Consolidation Coal Co., 136 F.3d 819 (D.C. Cir. 1998) 

affirming Consolidation Coal Co., 18 FMSHRC 1903 (Nov. 1996). The D.C. Circuit determined 

that a visible alarm is essential because it alerts miners of dangerous concentrations of methane 

should other safety measures fail. Id. at 822. The warning functions as a fail-safe to ensure that 

miners respond to potentially hazardous situations. Id. at 823. The D.C. Circuit Court concluded 

that the Secretary’s interpretation of § 75.342(b) which requires that a warning signal be visible 

at all times to a miner who can “react to increasing methane levels and, if necessary, de-energize 

mining equipment,” was appropriate. Id. at 822. 

Respondent attempts to distinguish the present case from Consolidation Coal on the basis 

of notice. R. Resp. Br. 25-26. In that case, the Commission found actual notice where MSHA 

reiterated the requirement in seven meetings over the course of one year. Consolidation Coal, 

Co., 18 FMSHRC at 1907. Those facts do not prevent a finding of fair notice in the present case, 

for the reasons explained above. 

 I credit Bretzman’s testimony that the longwall shearer operators would not be able to see 

the alarm light from various positions. Tr. 446. Although Key described the warning light as 

bright, both he and Bretzman testified that it was quite small, only up to an inch in 

circumference. Tr. 412, 661. Furthermore, the control panel in which the alarm light was 

38 FMSHRC Page 1417
contained had raised edges, which further limited its visibility at certain angels. Tr. 673-74. 

Finally, Bretzman credibly testified that the operators worked up to twenty-five feet from the 

warning light. Tr. 415. 

Respondent argues that because Bretzman did not observe an operator working thirty feet 

from the monitor, the citation was inappropriate. R. Resp. Br. 26. However, Key corroborated 

Bretzman’s testimony that the operators were not stationary during mining. Tr. 664-668. 

Further, Key acknowledged that the alarm was not in the line of sight of the operators at certain 

locations or angles. Tr. 666. Bretzman determined that the operator could not see the monitor 

during normal mining operations unless he was in the direct line of sight of the readout. Tr. 409, 

412, 441. Therefore, I find that the Secretary proved by a preponderance of the evidence that the 

small methane alarm light on the longwall shearer was not visible from all locations where the 

machine was operated, to a person, especially a machine operator working up to twenty-five feet 

from the control panel, who could de-energize the equipment. Indeed, a light the size of a quarter 

and located within the enclosure described, would not be visible at much shorter distances. 

Respondent failed to rebut the Secretary’s case by establishing that a person could see the alarm 

light from all locations from which the machine was operated remotely. Further, Bretzman could 

not recall anyone from Respondent telling him that the indicator light could be seen by a person 

who could de-energize the machine. Tr. 446. Accordingly, I find a violation of § 75.342(b)(2). 

 Bretzman determined that because production had halted and because he had no evidence 

of methane present at the time of the citation, the violation was unlikely to result in an injury. Tr. 

410, 420. Under extant Commission precedent, I lack authority to modify the non-S&S 

designation and make it S&S.24 

3. Respondent’s Negligence was Appropriately Designated as Low 

The Secretary argues that Respondent’s negligence was low, citing the lack of previous 

enforcement as a mitigating factor in the inspector’s analysis. P. Post Hr’g Br. 3-4 (quoting Mach 

Mining, LLC, 34 FMSHRC 1769, 1744 (Aug. 2012), citing Austin Powder Co., 29 FMSHRC 

909, 920 (Nov. 2007)). In determining the weight to be given the lack of enforcement, I note that 

Commission judges are not bound to apply the levels of negligence definitions that are 

designated by potential mitigating circumstances in the Secrtary’s regulations. Brody, 37 

FMSHRC at 1701; Mach Mining, 809 F.3d at 1263-64. While the Commission has held that 

inconsistent enforcement is not a defense to liability, it is relevant to the determination of 

negligence, and may be cited as a mitigating factor in reducing said negligence. Mach Mining, 34 

FMSHRC at 1744 (citing King Knob Coal Co., 3 FMSRHC 1317, 1422 (June 1981), aff’d sub 

nom Mach Mining, LLC v. FMSRHC, 809 F.3d 1259 1259 (D.C. Cir. 2016) (inconsistent 

enforcement of a regulation may reduce the level of negligence and detrimental reliance on 

MSHA’s incorrect interpretation of a regulation is properly considered in mitigation of penalty). 

Both this citation and the previous citation involve violations of the same standard. While 

the similarity between the citations might result in comparable negligence determinations, the 

 24 Mechanicsville Concrete, Inc. t/a Materials Delivery, 18 FMSHRC 877, 880 (June 

1996). 

38 FMSHRC Page 1418
precedent cited above permits consideration of inconsistent prior enforcement at this juncture to 

determine the appropriate level of negligence. I credit Robinson’s testimony that MSHA 

overlooked the violation of §75.342(b)(2) on the instant shearer for years before issuing a 

citation on the date of the inspection. Tr. 725-27. Given the lack of previous enforcement, I find 

that the Secretary properly designated Respondent’s level of negligence as low. 

4. Civil Penalty for Citation No. 8432319 

 Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find 

that Respondent mined 7,528,061 tons of bituminous coal in 2012. The parties stipulated that the 

originally proposed penalty of $117 will not affect Respondent’s ability to remain in business. 

MSHA recognized Respondent’s good-faith compliance in abating the citation. I have affirmed 

MSHA’s gravity and negligence determinations. After consideration of the penalty assessment 

criteria set forth in section 110(i) of the Act, I assess a $117 civil penalty against the Respondent 

for Citation No. 8432319. 

VII. Citation No. 8439454 

A. Findings of Fact 

1. Inspector Stanley’s Testimony 

On August 15, 2013, Stanley returned to the mine to conduct a regular inspection of the 

surface of the property, including any underground equipment found on the surface. Tr. 472. 

Stanley inspected a Kubota 10, a two-seater diesel Road Taxed Vehicle (RTV), used to transport 

men or material underground. Tr. 473. Stanley did not know who operated the Kubota, but 

thought that it was Schilke. Tr. 499. Stanley examined the steering components of the vehicle as 

the operator turned the steering wheel. Tr. 474, 482. Stanley inspected the Kubota again in the 

repair shop. Tr. 486. Stanley testified that both times, he observed impermissible play in the 

lower left ball joint. Id. 

Stanley observed and concluded that there was excessive wear and play in the lower left 

ball joint for three reasons. Tr. 474-75, 482. First, the tires did not simultaneously turn with the 

steering wheel. Tr. 474-75, 508. Stanley described this as hesitation or delay in the steering. Tr. 

474-75. Second, there were areas of shine on the ball joint. Tr. 474, 508. Stanley observed that 

the shiny area was more than an eighth of an inch. Tr. 483. He testified that this shine occurs 

when the tie-rod end wears on the ball. Tr. 474. Finally, Stanley observed that there was in 

excess of an eighth of an inch of play on the joint. Tr. 474, 480. 

Stanley did not use a dial indicator or any other tool to assist his measurements during 

either inspection. Tr. 483, 487, 507. Instead, he examined for separate movement in steering 

components. Tr. 474-75, 487, 498. Stanley testified that an excess of an eighth of an inch of play 

contravenes MSHA out-of-service criteria. Tr. 507-08. Stanley was unable to verify where the 

standard for an eighth of an inch of play could be found in writing. Tr. 511-12. Stanley further 

testified that the day before the hearing, he learned from Kubota’s service personnel that a 

steering linkage component with any play must be replaced immediately. Tr. 475, 507, 510. 

38 FMSHRC Page 1419
After observing excessive wear on the ball joint of a Kubota vehicle, inspector Stanley 

issued Citation No. 8439454 for a violation of 30 C.F.R. § 75.1914(a), which requires that all 

diesel equipment be maintained in proper operating condition. Tr. 465, 476. Stanley determined 

that the violation was S&S and contributed to a loss of steering hazard that was reasonably likely 

to result in a lost workdays or restricted duty injury for one miner as a result of Respondent’s 

moderate negligence. P. Ex. 107; Tr. 476-77. The Secretary proposed a penalty of $1,026. 

The Kubota was driven at speeds up to approximately 21 miles per hour (mph) in the 

mine. Tr. 500, 503. When underground, the Kubota was driven on a rough, concrete travel road, 

with potholes and a steep decline of approximately 3000 feet. Tr. 477, 501-02. Stanley described 

the slope as having at least an eight-percent grade. Tr. 478. He testified that an excessively worn 

and unrepaired ball joint will cause “the steer tire [to] most likely fold over and lay down... 

[resulting in a] complete loss of steering on the vehicle.” Tr. 477. Stanley determined that such a 

hazard was likely to cause injury to the Kubota operator or one of the pedestrian miners clearing 

coal near the conveyor belt along the travelway. Tr. 477-79. The latter type of injury would 

result from the Kubota either striking a miner or pinching a miner against other structures. Tr. 

478. Stanley testified that the brakes on the Kubota were in good working condition, and that 

operators generally drove at speeds consistent with road conditions. Tr. 499-500. 

Stanley opined that the condition needed more than one day to develop. Tr. 479. He 

further testified that the wear would not likely be discovered during weekly inspections. Id. 

Stanley did not recall whether Respondent’s miners made any statements about mitigating 

factors when he issued the citation. Tr. 488. Without evidence indicating how long the condition 

actually existed, Stanley classified the Respondent’s negligence as moderate. Tr. 479. 

The citation was abated later that day when the tie-rod end and the ball joint were replaced. 

Tr. 480, 488. Stanley did not take measurements after abatement, although he did go under the 

Kubota to examine the repair. Tr. 498. 

2. The Testimony from Respondent’s Witness 

a. Schilke’s Testimony 

 As noted, Schilke accompanied Stanley during the inspection. Tr. 560. Schilke testified 

that he did not recall if Stanley initially examined the vehicle. Tr. 563. Schilke then testified that 

Stanley observed the steering while Jeff Wilkins, the Kubota operator, was directed to turn the 

steering wheel. Tr. 560, 563-64. 

According to Schilke, after Stanley’s inquiry, Wilkins told Stanley that Wilkins had 

checked the Kubota prior to use and found no issues with the steering. Tr. 560-61, 624, 627. 

Stanley then directed Wilkins to drive the Kubota to the repair shop. Tr. 561-62. Schilke 

observed no problems with the steering as Wilkins drove the vehicle to the shop. Id., Tr. 624. At 

the shop, the vehicle was lifted and the ball joints were examined. Tr. 561, 567. There Schilke 

observed movement in the ball joint, although neither he nor Stanley used an instrument to 

quantify how much movement was present. Tr. 561-62, 567-68, 621, 625. Schilke opined that the 

38 FMSHRC Page 1420
movement was less than an eighth of an inch, or less than the thickness of a quarter. Tr. 568, 622, 

625. Schilke conceded that the movement would get worse over time if not repaired. Tr. 625. 

Schilke testified that the Kubota that Wilkins drove was very similar to the Kubota that 

Schilke drove. Tr. 565-66; see R. Ex. 5 (photograph of Schilke’s Kubota). Schilke described the 

brakes on the Kubotas as “pretty good.” Tr. 566. The Kubotas have hydrostatic transmissions, 

which slow down the vehicles when pressure is removed from the gas pedal. Id. Finally, Schilke 

described the concrete slope in the mine as rougher than an interstate, with a rutted and grooved 

surface. Tr. 636. 

 When asked on direct examination to offer any mitigating circumstances, Schilke 

testified that the movement of the ball joint had little impact on the steering. Tr. 569. He also 

mentioned that any impact on steering was further reduced by the soft tread of the tires on the 

soft clay floor of the mine. Id. Finally, Schilke reiterated that Wilkins had driven the Kubota 

down to the seals of the mine and back, and that Wilkins had found no difficulty with steering. 

Id. 

Schilke also testified that he spoke with a mechanic for Respondent after Stanley issued 

the citation. The mechanic did not testify at hearing. Schilke testified that the mechanic told him 

that he would not have allowed an unsafe Kubota to go underground. Tr. 627, 637. According to 

Schilke’s testimony, the mechanic was of the opinion that the Kubota was safe because Wilkins 

had told him that the steering worked fine. Id. Schilke further testified that the mechanic told him 

that although the Kubota manufacturer wants no movement in the ball joint, in practice, vehicles 

that are used in a mine experience similar movement. Tr. 561-62, 566. Schilke later conceded on 

cross-examination that the steering in a private vehicle is very different from the steering in a 

Kubota. Tr. 620. 

b. Jeff Wilkins’ Testimony 

Jeff Wilkins was a mine examiner for Respondent.25 Tr. 683. Wilkins operated the 

Kubota in question every day. Tr. 685-686, 697. On the date of the inspection, Wilkins 

conducted a pre-operational check of the Kubota. Tr. 687. This check included an examination of 

the steering, which he performed by turning the wheel back and forth to ascertain any slack.26 Tr. 

687-88. Wilkins stated that a visual inspection of the ball joint while the wheel was turned was 

not necessary to detect movement in the ball joint. Tr. 688-89. Instead, the movement would 

manifest as play in the steering wheel. Id. Wilkins testified that without turning the wheel, he 

would not notice wear in the ball joint, unless it was substantial. Tr. 699. Wilkins claimed that he 

 25 Wilkins was employed with Respondent for seven and a half years. Tr. 683. Apart from 

his position as an examiner, Wilkins worked as an outby laborer and foreman. Id. Prior to his 

employment with Respondent, Wilkins worked at three separate mines: Willow Lake Mine, 

Eagle Valley Mine, and Sahara Mine. Tr. 683-84. Wilkins was a certified examiner with an 

electrical card. Tr. 685. 

26 When the wheel turned, suspension rose and descended, pivoting the ball joint that was 

threaded in the tie rod. Tr. 701-03. The ball joint had a nut and cotter pin that were intact. Id. 

38 FMSHRC Page 1421
would notice gradual slack in the Kubota’s steering over time. Tr. 698. Wilkins further testified, 

consistent with Schilke’s account, that Wilkins did not notice any problems with the steering 

during his pre-operational check of the vehicle. Id. 

After concluding his pre-operational check, Wilkins drove his Kubota underground for 

approximately one hour. Tr. 689-90. He described the underground path driven as a fairly steep 

slope, with smooth and rough patches, with rough conditions encountered where rocks fell off 

beltlines and along intake ways. Tr. 695-96. He testified that the Kubota was a slow-moving 

vehicle and he experienced no problems with the steering or the brakes. Tr. 690-91, 701. 

 Wilkins contrasted his trip on the day of the citation with an earlier experience that he 

had driving a Kubota with faulty steering. Tr. 692. In the later instance, Wilkins noticed the 

steering arm loosen and jerk when he drove over a rough area. Id. He testified that without 

repair, such a steering arm may disconnect from the steering jack, forcing the vehicle to halt 

instantly. Id. Wilkins testified that the Kubota automatically stops when the wheel is turned and 

the operator removes his foot from the gas. Tr. 693. 

 Contrary to Schilke’s testimony, Wilkins testified that he did not operate the Kubota 

around Stanley. Tr. 696. Rather, Wilkins testified that he left the Kubota after returning to the 

surface. Tr. 693-94. Wilkins was not present for Stanley’s initial inspection of the vehicle or for 

the inspection that occurred in the repair shop.Id. When Wilkins returned to the vehicle, Stanley 

and Schilke had already decided to relocate the vehicle to the repair shop. Id. 

B. Analysis and Disposition 

1. The Violation of § 75.1914(a)

Section 75.1914 imposes two duties upon an operator: (1) to maintain machinery and 

equipment in safe operating condition, and (2) to remove unsafe equipment from service. 

Derogation of either duty violates the standard. Peabody Coal Co., 1 FMSHRC 1494, 1495 (Oct. 

1979). The Kubota cited by inspector Stanley was mobile equipment. It is undisputed that such 

mobile equipment was in service when cited. The dispute is whether the Kubota was maintained 

in safe operating condition. I find that the Kubota was not maintained in safe operating condition 

and was not removed from service. Accordingly, I find the violation. 

 Equipment is in unsafe operating condition when a reasonably prudent person familiar 

with the factual circumstances surrounding the alleged hazardous condition, including any facts 

peculiar to the mining industry, would recognize a hazard warranting corrective action within the 

purview of the applicable regulation. Ambrosia Coal & Construction, 18 FMSHRC 1552, 1557 

(Sept. 1996) (citing Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982) (applying 

identical standard in underground coal mines)). 

The Commission has recognized that movement in steering linkage ball joints alone can 

rise to the level of a hazardous defect. See LaFarge North America, 35 FMSHRC at 3500 

(applying § 56.14100(c), which concerns defects that make continued operation hazardous, and 

remanding to determine amount of movement in ball joints and whether such amount constitutes 

38 FMSHRC Page 1422
a hazardous defect). Stanley credibly testified that MSHA finds violations where there is excess 

play in the ball joint. Tr. 507. Both Stanley, and through Schilke’s hearsay admission, 

Respondent’s mechanic, reported that the Kubota manufacturer requires no movement in the ball 

joint. Tr. 475, 561. In addition, I take administrative notice of the North American Standard Outof-Service Criteria, issued by the Commercial Vehicle Safety Alliance.

27 This manual provides 

that a vehicle is to be taken out of service if any of its ball and socket joints exhibit “any motion, 

other than rotational, between any linkage member and its attachment point of more than 1/8 

inch (3.2 mm) measured with hand pressure only” or if any tie rod exhibits “any looseness in any 

threaded joint.” Commercial Vehicle Safety Alliance, North American Standard Out-of-Service 

Criteria, at 44 (revised April 2010). 

I credit inspector Stanley’s testimony that there was impermissible movement in the 

lower left ball joint. A simple visual inspection by Stanley as the operator turned the wheel 

revealed a hesitation in steering, while the shine on the ball joint itself supplied physical 

evidence of wear. Tr. 474. Schilke corroborated the play in the ball joint when recalling the 

examination conducted in the repair shop. Tr. 561-62. The operator, Wilkins, used the Kubota 

after conducting a pre-operational examination, which he admits did not include a visual 

examination of the ball joint, and failed to reveal the play in the ball joint. Tr. 687-89.28 Neither 

side disputes that, if left unchecked, the movement would grow worse over time. Tr. 477, 625. 

Accordingly, I find that excess play in the ball joint as visually observed by inspector Stanley 

constitutes a hazard making continued operation of the Kubota unsafe and requiring its removal 

from service. 

I discredit the recollection of Respondent’s witnesses concerning the ball joint 

examination. Respondent’s witnesses contradict themselves and each other with regard to the 

Kubota’s inspection. Schilke alleged that he could not recall Stanley’s examination of the 

Kubota’s steering, and then immediately proceeded to describe the inspection. Tr. 563-64. 

Although Wilkins did not remember participating in the inspection, both Stanley and Schilke 

confirmed the participation of Wilkins during Stanley’s inspection. Tr. 482, 560-64, 693. 

Based on my review of the testimony, I find that the Secretary proved by a preponderance 

of the evidence that Respondent violated § 75.1914(a) by failing to maintain the Kubota in safe 

operating condition, and by failing to remove it from service. 

 

 27 This manual is relied on and cited by the United States Department of Transportation. 

49 C.F.R. Pt. 385.4(b)(1)(2013); 79 F.R. 27766, (May 15, 2014). Under Commission precedent, 

judicial notice can be taken of the existence or truth of a fact or other extra-record information 

that is not the subject of testimony, but is commonly known, or can safely be assumed, to be true. 

Union Oil, 11 FMSHRC 289, 300 n.8 (Mar. 1989). 

28 Although Respondent was not cited for an inadequate pre-operational inspection, I 

have determined in previous cases that a proper pre-operational inspection of a ball joint requires 

one person monitoring the steering linkage while another person moves the steering wheel. Extra 

Energy, 36 FMSHRC 2733, 2743 (Oct. 2014)(ALJ). Wilkins failed to conduct a visual 

inspection of the ball joint while another person turned the wheel, or vice versa. 

38 FMSHRC Page 1423
2. The Violation was Significant and Substantial

a. There was a Violation of a Mandatory Safety Standard

For the reasons explained above, I find the underlying violation of mandatory safety 

standard § 75.1914(a). 

b. The Violation Contributed to a Discrete Measure of Danger to Safety 

My finding of a violation supports a finding of a discrete measure of danger to safety as 

the standard violated requires a failure to maintain mobile equipment in safe operating condition. 

Accordingly, if the Kubota is not maintained in safe operating condition, there is necessarily a 

discrete measure of danger to safety. This conclusion is supported by the fact that MSHA, the 

Kubota manufacturer, and the North American Standard Out-of-Service Criteria manual require 

that vehicles with ball joints exhibiting excessive wear must be immediately repaired or removed 

from service. Tr. 507, 475. Furthermore, Stanley credibly testified that such a ball joint, if left 

unrepaired, would fail and result in compromised steering and control over the vehicle. Tr. 477. 

Accordingly, I find that the second Mathies factor is satisfied. 

c. The Violation Contributed to a Hazard That was Reasonably Likely to 

Result in Injury 

Regarding the third Mathies factor, the Secretary demonstrated that the hazard 

contributed to by the violation, i.e., loss of steering of a Kubota within the mine, was reasonably 

likely to result in an injury. Schilke and Wilkins testified that Kubotas are slow to a stop when 

pressure is removed from the gas pedal. Tr. 499, 692-93. However, a Kubota driven at speeds up 

to approximately twenty-one miles an hour on rough mine roads at an eight degree slope with 

undiscovered excess wear on the ball joint, is reasonably likely to contribute to compromised 

steering and loss of control of the Kubota, which hazard is reasonably likely to result in injury to 

the driver or injury to a miner working nearby. The driver is exposed to injury due to the 

excessive wear in the ball joint, which contributes to a compromised or loss-of-steering-control 

hazard that would likely result in collision with an object or rib and injury to the driver. Further, 

Stanley’s testimony credibly establishes that miners working along the conveyer belt adjacent to 

the travelway were exposed to injury from a collision due to the loss of control of the Kubota. In 

these circumstances, the loss-of-control hazard contributed to by the violation, was reasonably 

likely to result in injury during continued operation of the Kubota with excessive wear in the ball 

joint. 

d. There was a Reasonable Likelihood That the Injury in Question Will Be of a 

Reasonably Serious Nature 

With regard to the fourth Mathies factor, I find a reasonable likelihood that any such 

injury would be of a reasonably serious nature. The loss-of-control hazard contributed to by the 

failure to maintain the Kubota in safe operation condition was reasonably likely to result in a 

collision with associated serious or fatal injury to the Kubota operator or pedestrian miners 

working nearby. The Kubota is large enough to seat two people and has a dump bed in the back. 

38 FMSHRC Page 1424
See R. Ex. 5. A collision with a miner, the rib, or other equipment would likely be serious or 

fatal. A miner struck by the Kubota and pinned against the vertical supports within the mine 

would likely suffer serious injuries. Accordingly, the Secretary has shown a reasonable 

likelihood that an injury resulting from the hazard contributed to by the violation was reasonably 

likely to be serious or fatal. 

3. Respondent’s Negligence was Appropriately Designated as Moderate 

 As discussed above, a reasonably prudent operator engaging in appropriate buddy-checks 

of steering linkage components should have been aware of the cited condition. Based on the 

testimony and briefs, I do not find considerable mitigating circumstances that would justify 

reducing the negligence designation from moderate to low. Respondent’s assertion that the soft 

floor of the mine would reduce the impact of malfunctioning steering is not persuasive. There 

was no evidence that the floor disturbed the speed or performance of a Kubota in safe operating 

condition. Therefore, I discredit Schilke’s inference that the same floor would hinder a Kubota 

with compromised steering. Tr. 569. Further, the assertion that the Kubota’s operator (Wilkins) 

noticed no defect in the steering that day does not eliminate the likelihood of the danger. Rather, 

the insufficient examination procedure supports at least a moderate negligence designation. 

Respondent’s Kubota operator failed to perform any visual examination the vehicle, much less 

while another person turned the wheel. Tr. 699. In these circumstances, I find that the Secretary 

properly designated the Respondent’s level of negligence as moderate. 

4. Civil Penalty for Citation No. 8439454 

 Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find 

that Respondent mined 7,528,061 tons of bituminous coal in 2012. The parties stipulated that the 

originally proposed penalty of $1,026 will not affect Respondent’s ability to remain in business. 

MSHA recognized Respondent’s good-faith compliance in abating the citation. I have affirmed 

MSHA’s gravity, negligence, and S&S determinations. After consideration of the penalty 

assessment criteria set forth in section 110(i) of the Act, I assess a $1,026 civil penalty against 

the Respondent for Citation No. 8439454. 

VII. Citation No. 8452203 

A. Findings of Fact 

1. Inspector Horseman’s Testimony 

 

After observing a missing portion of an emergency lifeline, MSHA inspector Steven Paul 

Horseman29 issued Citation No. 8452203 for a violation of 30 C.F.R. § 75.380(d)(7)(i), which 

 29 At the time of hearing, inspector Horseman had been employed with MSHA for one 

year and eleven months. Tr. 515. Apart from a four-year stint with a phone company, Horseman 

had worked in mining since 1991. Tr. 516. He has experience in longwall and continuous mining 

and has held various positions, including equipment operator, examiner, IT specialist, electrician, 

and mine supervisor. Id. 

38 FMSHRC Page 1425
requires that lifelines be installed and maintained throughout the entire length of the escapeway. 

Tr. 465, 476. Stanley determined that the violation was S&S and contributed to an inability-totimely-escape hazard that was reasonably likely to result in injuries affecting thirty miners as a 

result of Respondent’s moderate negligence. Tr. 156, 162-63. The Secretary proposed a penalty 

of $13,268. 

On September 8, 2013, Horseman conducted an EO2 section 103(i) spot inspection, 

while being accompanied by safety manager Schilke. 30 U.S.C. §813(i); Tr. 517; P. Ex. 109. On 

the way toward headgate seven, Horseman lost sight of the lifeline along the East Mains travel 

road. Tr. 517. He asked Schilke to pull over and the two of them located the lifeline one entry 

over in the secondary escapeway. Tr. 517, 529. They returned to their vehicle and followed the 

lifeline until they found a break in the line. Id. The lifeline dangled from the ceiling, 

approximately five feet above the ground. Tr. 517-18. The other end of the line was located 

approximately 160 feet away. Tr. 518. Horseman measured the gap between the ends of the 

lifeline, while Schilke found replacement line. Id. With the extra line, Horseman and Schilke 

connected the two ends of the lifeline. Id., 525-26. 

 Horseman issued Citation No. 8452203 for a § 75.380(d)(7)(i) violation. Tr. 519. 

§75.380(d)(7)(i) requires lifelines to be installed and maintained throughout the entire length of 

the escapeway. Id. A lifeline is typically a durable, nylon rope. In the event of an emergency, a 

lifeline provides disoriented miners with a tactile method of escape if the entry fills with smoke. 

Tr. 520. The lifeline has cones and reflective lights that direct the miner towards the exit near the 

slope. Tr. 543-45; 30 C.F.R. § 75.380(d)(7)(iii-v). 

Horseman opined that all lifeline citations are not automatically S&S. Tr. 526. He 

designated the instant violation as S&S because he determined that the violation contributed to a 

hazard that was reasonably likely to result in fatal injuries affecting 30 miners. Tr. 523-24. With 

respect to likelihood, Horseman testified that the lifeline would only be used in the event of an 

emergency. Tr. 523. If a fire or explosion occurred, Horseman testified that it would not be 

unusual for ventilation control devices to fail. Id. With failed ventilation, Horseman testified that 

miners would inhale toxic fumes from smoke, or find themselves in a buildup of carbon 

monoxide. Id. Even assuming sufficient time to don self-contained self-rescuers (SCSRs), 

Horseman noted the reduced efficacy of these devices should the miners panic or fumble during 

the emergency. Tr. 523. He recalled an incident from his own experience as a miner when a 

smoke-filled entry limited visibility to the point where “you could not see your hand in front of 

your face.” Tr. 521. He testified that in such conditions, 160 feet of missing lifeline would 

prevent a miner from locating the other end of the lifeline and escaping the mine. Id. 

Additionally, he testified that the miners may not have been aware that the lifeline changed 

entries, which left them susceptible to further disorientation. Tr. 522. Given these conditions, 

Horseman believed that fatal injuries were reasonably likely. Tr. 523. With respect to the number 

of persons affected, Schilke informed Horseman that three loading crews comprised of ten 

miners apiece were working inby the missing lifeline. Tr. 524. 

Horseman designated the Respondent’s negligence as moderate. Id. He made this 

designation because he could not determine how long the condition existed. Tr. 524-25. He 

conceded that of the 35,000 feet of secondary escapeway, he found only 160 feet of the lifeline 

38 FMSHRC Page 1426
that was missing. Tr. 542-43. He confirmed that Respondent held escape drills for miners to 

familiarize themselves with using the escapeways. Tr. 547. Additionally, Respondent’s vehicles 

had tethers. Id. A tether allows miners to stay attached to one another in case a single miner 

grows disoriented. Tr. 547-49. 

2. The Testimony from Respondent’s Witnesses 

a. Schilke’s Testimony 

Schilke confirmed that a portion of the lifeline was missing in the East Mains #1 

travelway. Tr. 570-72. Schilke did not know how the condition occurred, or for how long it had 

existed prior to discovery by Horseman. Tr. 601-02. Schilke admitted that he traveled that route 

daily and had not discovered the condition. Tr. 615. The mine records did not contain any 

notations regarding the missing lifeline. Tr. 602. The cited condition was in an area where 

tractors were driven all day long, including the third-shift tractors, which had passed through the 

area before the inspection. Tr. 602-03. Schilke did not find the disconnected section of the 

lifeline and speculated that it could have been dragged away by a passing vehicle. Tr. 612-15. 

The remaining ends of the lifeline, normally at shoulder height, were on the ground. Tr. 613-14. 

Schilke testified about the location of the missing lifeline. If one walked towards the exit 

of the mine, the lifeline primarily followed the direction of the travel road. Tr. 600. The travel 

road headed north before turning west into the #3 entry of the East Mains #1 route. Id. The 

lifeline did not turn with the travel road, but continued into the #2 entry before turning west. Tr. 

601. This detour ran parallel to the travel road and past three crosscuts. Id. The gap in the lifeline 

occurred within this detour in the #2 entry. Tr. 578, 599-601. The detour turned south down the 

#29 crosscut to rejoin the travel road in the #3 entry. Tr. 597-601; see R. Ex. 11. A miner, who 

followed the lifeline into the #2 entry, needed to walk through two crosscuts to find the other end 

of the line. Tr. 574-75. 

Schilke testified that the miners were aware of the detour because the lifeline had 

followed that path since the area was developed. Tr. 610. He conceded, however, that miners 

would not be expecting the section of the lifeline to be missing. Tr. 611. Schilke opined that 

miners, who encountered a gap in the lifeline, would continue forward following the flow of air 

rather than choose to retrace their path to rejoin the travel road. Tr. 608. However, he admitted 

that in an emergency, the direction of air can change, thus preventing miners from using air 

courses as directional indicators. Tr. 616. Nonetheless, he opined miners would know which 

direction they were walking because the mine graded up as it headed outby. Tr. 616-17. 

According to Schilke, if the miner could not find the other end of the line, he or she 

would eventually hit stoppings placed west and north of the detour through the #2 entry.30 Tr. 

 30 There was a stopping in the #2 entry inby the # 29 crosscut, which prevented miners 

from walking further westward. Tr. 595-96. There were additional stoppings that blocked access 

to the crosscuts and entries to the north of the #2 entry. One of the stoppings in the crosscuts 

north of the #2 entry had a man door. Tr. 596. A man door allow miners to cross through a 

stopping. Id. During normal production, man doors are closed. Tr. 595-96. 

38 FMSHRC Page 1427
596, 608. Thus, disoriented miners would eventually be forced to turn south or return east in the 

direction from which they came. Tr. 596-98, 608. When choosing between these options, Schilke 

opined that the miners would not return east in the direction from where smoke traveled. Tr. 608. 

The remaining direction, south, would lead the miners to the travel road. Tr. 596-97, 608. 

The self-contained self-rescuers (SCSRs) are equipped to last from forty-five minutes to 

an hour. Tr. 617. Schilke recalled that the nearest self-rescuer caches were approximately 2,500 

feet inby the missing lifeline, and 3,000 feet outby the missing lifeline. Tr. 640-42. As noted, the 

height of the mine is generally nine to ten feet. Tr. 619. Schilke estimated that it would take 

approximately an hour to travel about 5,700 feet, although some miners may move more slowly 

than others. Tr. 619, 637, 644. Additionally, disoriented or lost miners may take longer to reach 

a cache. Tr. 644-45. According to Schilke, the distance from the three working sections to the 

missing lifeline was 15,000 feet. Tr. 618. The distance between the missing lifeline and the slope 

exit of the mine was about another 15,000 feet. Tr. 617-18. On foot, it would take a miner nearly 

three hours to reach the slope from the missing lifeline. Tr. 619, 637. 

Schilke opined that directional signals on the lifeline and Respondent’s safety protocols 

reduced the danger of the violation. On either end of the missing lifeline section, Respondent’s 

lifeline had cones and reflectors that indicated the direction towards the exit. Tr. 572-73, 614. 

The reflectors were visible in the cited area. Tr. 573-74. Reflectors were spaced every twentyfive feet and were attached to either a cone or the lifeline itself. Tr. 573. Schilke recalled that the 

cones were spaced every 100 feet. Tr. 573. The cones were situated on the lifelines so that a 

miner’s hand would slide smoothly over the tip of the cone towards the base as the miner 

traveled towards the exit. Tr. 573. If a miner traveled in the wrong direction, the miner’s hand 

would stop against the base of the cone. Tr. 573. 

Additionally, Schilke testified that escaping miners would not rely solely on lifelines 

during an emergency situation. Tr. 609. He testified that in the event of an emergency, the ideal 

method for escape was by vehicle. Tr. 574, 604-05, 609. He further testified that an escaping 

vehicle would continue along the main travelway, rather than detour into the adjacent entry to 

follow the lifeline. Tr. 574. Depending on the level of smoke, however, Schilke was uncertain 

whether the vehicle could drive down the secondary escapeway. Tr. 611-12. Schilke opined that 

a pedestrian miner would exit the mine along the main travelway, rather than follow the lifeline. 

Tr. 574-576. He conceded, however, that a miner might become disoriented, panic, and become 

lost in an emergency. Tr. 611, 644-45. 

Schilke confirmed that Respondent held escapeway drills every ninety days and 

instructed miners to use tethers to keep together during a mine evacuation. Tr. 603-605, 609, 

611. Additionally, he testified that signs labelling the crosscut numbers would indicate a miner’s 

location. Tr. 573-74. Schilke maintained that these precautions, combined with the miner’s 

knowledge of the mine’s topography and air flow, were sufficient for miners to find their way 

out of the mine in an emergency situation. Tr. 608-10. 

 

38 FMSHRC Page 1428
B. Analysis and Disposition 

1. The Violation of § 75.380(d)(7)(i) 

 Section 75.380(d)(7)(i) provides that a continuous directional lifeline must be installed 

and maintained throughout the entire length of each escapeway. 30 C.F.R. § 75.380(d)(7)(i). 

Neither side contests that a portion of the lifeline was missing. Tr. 572; see R. Ex. 14 (missing 

lifeline denoted in red). The missing portion of the line was approximately 160 feet. Tr. 518. A A 

missing portion or gap in the lifeline makes it non-continuous under the plain meaning of the 

standard and creates a violation of § 75.380(d)(7)(i). 

 Respondent argues that the violation was not S&S because the missing portion of the 

lifeline was relatively small compared to the full length of the line, and because additional safety 

measures were adequate to ensure the safe evacuation of the miners. 

 

2. The Violation was Significant and Substantial

a. There was a Violation of a Mandatory Safety Standard

For the reason explained above, I find the underlying violation of mandatory safety 

standard § 75.380(d)(7)(i). 

b. The Violation Contributed to a Discrete Measure of Danger to Safety 

 With regard to the second Mathies factor, the violation created a discrete safety hazard or 

measure of danger to safety. The Commission has found that an accurate description of the 

hazard contributed to by an inaccessible lifeline is “the danger of not being able to access or use 

the lifeline in the event of an emergency where visibility is reduced and miners must rely upon 

the tangible nature of the lifeline to quickly and safely escape the mine.” Black Beauty Coal Co., 

36 FMSHRC 1121, 1124 (May 2014). This description supports the Commission’s earlier 

understanding of the hazard as “miners not escaping quickly in an emergency with attendant 

increased risk of injuries due to a delay in escape.” Cumberland, 33 FMSHRC at 2346, aff’d sub 

nom., Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020 (D.C. Cir. 2013). I find that a 160-

foot gap in the lifeline is a significant and substantial hindrance that contributes to the hazard of 

not being able to use the lifeline to escape the mine in an emergency situation. 

Respondent argues that an S&S designation is inappropriate because 160 feet of missing 

lifeline is a small percentage of the length of the entire lifeline. R. Br. 20-21. The percentage of 

uninterrupted line is essentially immaterial to the impact that a 160-foot break in the line would 

have on escaping miners. In Black Beauty, the Commission found that 110 feet of inaccessible 

lifeline was reasonably likely to contribute to an inability-to-timely-escape hazard that would 

result in injury. Black Beauty, 36 FMSHRC at 1124-25. Given the greater length of missing 

lifeline in the present case, I find that 160 feet of missing lifeline supports my S&S finding for 

this violation. 

38 FMSHRC Page 1429
 Respondent also argues that its miners would use quicker alternatives to escape, and that 

their knowledge of the primary escapeway would keep them on the quickest path towards the 

exit, allowing them to disregard the lifeline entirely. I reject this argument. Although the 

Commission has not yet defined the weight that must be given to the presence of additional 

safety precautions, the Commission discounts the argument that additional safety measures 

prevent an S&S finding. See Brody Mining, 37 FMSHRC at 1691 (stating that evidence of 

redundant safety measures has been consistently rejected as irrelevant); Black Beauty, 36 

FMSHRC at 1125 n.5 (stating that additional safety measures do not prevent a finding of S&S); 

Cumberland, 33 FMSHRC at 2369 (stating that allowing redundant safety measures to provide a 

defense to a finding of S&S would defeat the purpose of any safety protection, and citing Buck 

Creek, 52 F.32 at 136). Thus, alternative safety protocols do not undercut the significant and 

substantial contribution that violations of mandatory standards have toward discrete safety 

hazards. 

In the present case, I examine the impact of a missing lifeline on a miner that must rely 

upon said lifeline to quickly and safely exit the mine in an emergency situation. In short, I find 

that the hazard contributed to by the violation was the prevention of a quick escape from the 

mine by miners who were entitled to rely on a continuous lifeline when escaping the mine during 

an emergency. Accordingly, the second Mathies factor is satisfied. 

 

c. The Violation Contributed to a Hazard That was Reasonably Likely to 

Result in Injury

I find that the violation contributed to the hazard that miners would become lost, 

disoriented, or otherwise unable to quickly escape from the mine because of a compromised 

lifeline, and that such hazard was reasonably likely to result in injury. The Commission requires 

its judges to examine the S&S factors for lifeline violations within the context of emergency 

conditions. Cumberland, 33 FMSHRC at 2357, aff’d Cumberland Coal Res., LP v. FMSHRC, 

717 F.3d 1020 (D.C. Cir. 2013). The Commission has discussed different hazards that are 

reasonably likely to result in an injury because of a lifeline violation in an emergency situation. 

Black Beauty, 36 FMSHRC at 1125 (inaccessible lifelines contribute to injuries that are 

reasonably likely to result from hazards such as tripping or stumbling, an interruption of 

ventilation, miner panic and disorientation during an emergency, and excessive smoke filling a 

corridor as a result of an a fire inby). In the present case, should miners follow the lifeline into 

the secondary escapeway, and should the secondary escapeway fill with smoke, visibility may be 

completely compromised. Because the gap in the lifeline occurs within the secondary escapeway, 

miners will be unable to use the lifeline to navigate out of the secondary escapeway in conditions 

of reduced visibility, re-enter the primary escapeway and continue exiting the mine via the 

primary escapeway. Tr. 522; R. Ex. 11. Inspector Horseman testified that he personally 

experienced a situation where smoke within the mine was so thick that he could not see his hand 

in front of his face. Tr. 521. With such reduced visibility, locating a lifeline 160 feet away is a 

staggering and time-intensive obstacle to overcome. A miner with little to no visibility and no 

lifeline is likely to be disoriented or lost. 

The Commission has discussed different ways a lifeline violation in an emergency 

situation was reasonably likely to result in injury. Black Beauty, 36 FMSHRC at 1125 

38 FMSHRC Page 1430
(inaccessible lifelines contribute to injuries that may result from hazards such as tripping or 

stumbling, an interruption of ventilation, miner panic and disorientation during an emergency, 

and excessive smoke filling a corridor as a result of an a fire inby). Should ventilation fail in an 

emergency, miners may breathe toxic air or a buildup of carbon monoxide. Tr. 523. The miners 

carry portable ventilation self-rescuers that only last for forty-five minutes to an hour. Tr. 617. 

This time is reduced if the miners fumble or panic in an emergency. Tr. 523. In an emergency, 

time spent lost or disoriented due to a missing lifeline reduces precious air supply, may prevent 

miners from reaching the next self-rescuer supply cache, or may thwart them from escaping the 

mine entirely. 

Respondent put on evidence that it has adequate safety protocols and training to ensure 

that miners will not panic in an emergency. Tr. 608-10. However, the Commission has reasoned 

that even experienced miners “panic and become disoriented in an emergency.” Black Beauty, 36 

FMSHRC at 1124. I find it likely that panic will exacerbate the consequences of reduced 

visibility or limited ventilation. 

 I conclude that a miner who becomes lost, disoriented, or delayed in locating a missing 

portion of the lifeline in order to escape during a mine emergency is reasonably likely to suffer 

injury from smoke inhalation, carbon monoxide inhalation, or entrapment during the emergency. 

Accordingly, the third Mathies factor is satisfied. 

d. There was a Reasonable Likelihood That the Injury in Question Will Be of a 

Reasonably Serious Nature 

 With regard to the fourth Mathies factor, any such injury from a delayed escape from the 

mine is reasonably likely to be of a serious nature. Black Beauty, 36 FMSHRC at 1125 (“The 

hazard of delayed or no escape at all due to an inaccessible lifeline in an emergency is 

reasonably likely to result in serious or fatal injuries”); Cumberland, 717 F.3d at 1029 (“[T]he 

lifeline violations at issue here would delay miners from escaping from an emergency and that 

such a delay would be reasonably likely to cause serious injuries or death”). The hazard of a 

delayed escape is supported by inspector Horseman’s testimony. He reasonably determined that 

limited air supply from the self-rescuers in a corridor filled with smoke and carbon monoxide, 

miner panic and disorientation during an emergency, and reduced visibility are reasonably likely 

to inhibit a timely escape from the mine. Tr. 523-24. I credit his testimony that the prolonged 

inhalation of smoke and carbon monoxide during such an escape from the mine is reasonably 

likely to be of a reasonably serious nature or fatal. Id. Accordingly, the Secretary has 

demonstrated a reasonable likelihood that any injury resulting from the hazard contributed by the 

violation would be serious or fatal. 

3. Respondent’s Negligence is Raised from Moderate to High 

 I find that Respondent’s negligence should be raised from moderate to high. Respondent 

knew or should have known of the missing lifeline and there are no mitigating circumstances. 

Initially, I note that escapeways must 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). The 

lifeline followed a circuitous route used by drivers to avoid a belt drive that was once installed in 

38 FMSHRC Page 1431
the main travelway. Tr. 610. However, at the time of the citation, the belt was no longer within 

the travelway. Tr. 610. Respondent’s failure to move the line to the primary travelway indicates 

that Respondent paid little to no attention to the path of the line after the belt drive was removed. 

Furthermore, Respondent failed to discover the condition of the lifeline for an undetermined 

length of time. 

 The violation before me presents more than a lifeline that was merely in poor condition. 

A portion of the primary escapeway did not have a lifeline because the lifeline took a detour into 

the secondary escapeway that was costly in both time and distance for a miner escaping on foot. 

Within that detour, 160 feet of lifeline was entirely absent. Schilke testified that he traveled the 

route daily and did not notice the condition. Tr. 615. Respondent’s inability to definitively 

explain why the line was missing or for how long the violation existed is not a mitigating 

circumstance, but instead, is further evidence of a cavalier lack of care towards a condition that is 

essential to the survival of miners in an emergency situation. Further, Respondent’s ignorance 

raises the concern that a similar section of the lifeline could go missing again without discovery. 

Finally, Respondent has not justified its failure to maintain an intact lifeline -- a failure that 

jeopardized the lives of thirty miners. I find that the Respondent should have known of the 

violative condition and corrected it immediately as a top priority. Accordingly, Respondent’s 

negligence is raised from moderate to high. 

4. Civil Penalty

Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find 

that Respondent mined 7,528,061 tons of bituminous coal in 2012. The Secretary originally 

proposed a penalty of $13,268 and the parties have stipulated that the total proposed penalty 

from all seven citations equaling $39,500 will not affect Respondent’s ability to remain in 

business. MSHA recognized Respondent’s good-faith compliance in abating the citation. I have 

affirmed MSHA’s S&S determination. I have modified MSHA’s negligence determination from 

moderate to high for the reasons stated above. After consideration of the penalty assessment 

criteria set forth in section 110(i) of the Act, I assess a $25,000 civil penalty against the 

Respondent for Citation No. 8452203. Respondent’s new total penalty from the combined 

citations is now $32,636. Given that this is lower than the total amount which Respondent 

stipulated will not affect its ability to remain in business, I find that this increase in penalty is 

appropriate and justified for the gravity and severity of the violation and would not affect 

Respondent’s ability to remain in business. 

VIII. ORDER

WHEREFORE, the joint motion for settlement presented at hearing is GRANTED. 

 It is ORDERED Citation No. 8445731 be MODIFIED to reduce the level of negligence 

from “moderate” to “low.” 

 It is ORDERED Citation No. 8445758 be MODIFIED to reduce the level of from 

“moderate” to low,” and 

38 FMSHRC Page 1432
 It is ORDERED Citation No. 8451650 be MODIFIED to reduce the number of persons 

affected from “twelve” to “six.” 

 It is further ORDERED that Citation No. 8451651 be MODIFIED to reduce the level of 

negligence from high to moderate. 

It is ORDERED that Citation No. 8439446 be AFFIRMED, as written. 

It is ORDERED that Citation No. 8432319 be AFFIRMED, as written. 

It is ORDERED that Citation No. 8439454 is AFFIRMED, as written. 

 It is ORDERED that Citation No. 8452203 be MODIFIED to raise the level of 

negligence from moderate to high. 

 It is further ORDERED that the operator pay a total penalty of $43,28031 within thirty 

days of this decision.32 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

 Administrative Law Judge 

 

 31 As noted herein, I assess a penalty of $5,081 for Citation No. 5481651, $1,412 for 

Citation No. 8439446, $117 for Citation No. 8432319, $1,026 for Citation No. 8439454, and 

$25,000 for Citation No. 8452203. 

32 Payment should be sent to: Mine Safety & Health Administration, U.S. Department of 

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

38 FMSHRC Page 1433
Distribution: 

Marty J. Gayer, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 

2300 Willow St, Suite 200, Vincennes, IN 47591 

Christopher D. Pence, Esq., Eric L. Silkwood, Esq., Hardy Pence PLLC, 500 Lee St. East, Suite 

701, Charleston, WV 25301 

Jason Grover, Esq., Office of the Solicitor, U.S. Dept. Of Labor, 201 12th Street South, Suite 

500, Arlington, VA 22202-5450 

Daniel McIntyre, Esq., U.S. Dept. of Labor, Office of the Solicitor, Cesar E. Chavez Memorial 

Building, 1244 Speer Blvd, Suite 515, Denver, CO 80204 

Thomas J. Motzny, Esq., U.S. Dept. Of Labor, Office of the Solicitor, Castner Knott Building 

618 Church Street, Suite 230, Nashville, TN 37219-2440 

38 FMSHRC Page 1434
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 

June 6, 2016 

 

DECISION

Appearances: Suzanne F. Dunne, Esq., U.S. Department of Labor, Office of the 

Solicitor, Chicago, Illinois, on behalf of Complainant

 

R. Henry Moore, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania, on 

behalf of Respondent 

Before: Judge Barbour 

 This case is before me upon a complaint filed by the Secretary of Labor (“the Secretary”) 

on behalf of Mindy Pepin pursuant to the interference provision of Section 105(c) of the Federal 

Mine Safety and Health Act of 1977 (“Mine Act” or “the Act”), 30 U.S.C. § 815(c), and on an 

amended complaint seeking the assessment of a civil penalty filed by the Secretary against 

Empire Iron Mining Partnership (“Empire Iron”) pursuant to Sections 105 and 110 of the Act, 30 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of MINDY S. PEPIN, 

 Complainant, 

 v. 

EMPIRE IRON MINING PARTNERSHIP, 

 Respondent. 

 DISCRIMINATION PROCEEDING: 

Docket No. LAKE 2015-386-DM 

MSHA Case No. NC-MD 15-02 

Mine: Empire Mine 

Mine ID: 20-01012 

38 FMSHRC Page 1435
U.S.C. §§ 815 and 820.1

 On December 2, 2014, Pepin filed a complaint with the Mine Safety and 

Health Administration (“MSHA”) alleging that her shift supervisor, Tim Hooper, confronted her 

about a safety concern she raised and accused her of using safety to bottleneck production. On 

April 6, 2015, the Secretary filed this action on behalf of Pepin alleging that “Pepin was illegally 

interfered with by [Empire Iron] when she was confronted and intimidated by a management 

official for engaging in activities protected by [the Act].” Sec’y Complaint at 2. 

The Secretary proposes a civil penalty of $20,000 for Empire Iron’s alleged violation of 

section 105(c)(1) and an order granting Pepin unspecified monetary compensation for pain, 

suffering, and emotional distress. Additionally, the Secretary requests a finding that Empire Iron 

unlawfully interfered with protected activity, an order that the company cease and desist from the 

unlawful interference, an order that the company’s mine superintendent read a notice to all 

miners informing them of their 105(c) rights and of the company’s 105(c) violation, and an order 

that the company post a written copy of that notice to the mine bulletin board for a period of one 

year. 

The case was assigned by the Chief Judge to the court, and the parties presented 

testimony and documentary evidence at a hearing on January 20, 2016, in Marquette, Michigan. 

For the reasons that follow, the court concludes that Empire Iron interfered with the rights of 

Pepin under the Mine Act in violation of section 105(c). 

I. STIPULATIONS 

1. At all times relevant to this proceeding, [Empire Iron] did business and 

operated the Empire Mine . . . and associated processing plants and is . . . an 

"operator" as defined in Section 3(d) of the Act. . . . 

2. The subject Empire Mine wherein [Empire Iron] operates the surface mine . . . 

is a "mine" as defined in Sections 3(b) and 4 of the Act. . . .

                                                             1

 Section 105(c)(1) states, in part: 

No person shall discharge or in any manner discriminate against or . . . cause 

discrimination against or otherwise interfere with the exercise of the statutory 

rights of any miner . . . because such miner . . . has filed or made a complaint 

under or related to this Act, including a complaint notifying the operator or the 

operator’s agent . . . of an alleged danger or safety or health violation in a coal 

or other mine . . . or because of the exercise by such miner . . . of any statutory 

right afforded by this Act. 

30 U.S.C. § 815(c)(1) (emphasis added). Section 105(a) requires the Secretary to advise the 

operator of the amount of the civil penalty proposed for an alleged violation of section 105(c)(1), 

and section 110(a)(1) requires the Commission to assess a penalty if a violation of section 

105(c)(1) is found to have occurred. 30 U.S.C. § 820(a)(1). Section 105 mandates the assessment 

of a penalty for a violation of the Act, and Section 110(i) sets forth criteria the Commission must 

consider in assessing any such penalty. 30 U.S.C. § 820(i).

38 FMSHRC Page 1436
3. At all times relevant herein, Mindy S. Pepin . . . worked at . . . Empire Mine 

and was a "miner" as defined in Section 3(g) of the Act. . . . 

4. Empire Mine is subject to the jurisdiction of the [Act]. . . . 

5. Empire [Mine] is a large open pit mine near Ishpeming, Michigan. Empire 

[Iron] produces iron ore pellets for use in the steelmaking industry.

6. Pursuant to Section 113 of the Act . . ., the Federal Mine Safety and Health 

Review Commission has jurisdiction over the subject matter of this case.

7. The presiding Administrative Law Judge has jurisdiction over these 

proceedings, pursuant to Section 105 of the Act.

8. The parties stipulate to the authenticity of their exhibits, but not to the 

relevance or truth of the matters asserted therein.

9. [Empire Iron's] operations affect interstate commerce.

10. On the morning of October 31, 2014, an alert generated by the ThorGuard 

lightning detection system was "cleared" and the mine returned to full 

operating mode.

11. On November 2 and 3, Ms. Pepin had recorded the clearing of a lightning red 

alert on what [are] known as "Take 5" cards.[2

] These cards were signed by 

Mike Gauthier who made Tim Hooper aware of the notations. Copies of such 

cards are identified as Exhibit G-1 and may be admitted into evidence.

12. A section 103(g) complaint was filed concerning the issue.[3] On November 

3-4, MSHA Inspector Ernie Letson investigated the Section 103(g) complaint 

concerning the clearing of the lightning red alert. A copy of such complaint as 

presented to the mine is identified as Exhibit G-2 and may be admitted into 

evidence.

                                                             2

 A red alert indicates the potential for lightning in the area.

3

 Section 103(g)(1) of the Act states, in pertinent part: 

Whenever a . . . miner . . . has reasonable grounds to believe that a violation of 

this Act or a mandatory health or safety standard exists, or an imminent danger 

exists, such miner . . . shall have a right to obtain an immediate inspection by 

giving notice to the Secretary or his authorized representative of such violation or 

danger. Any such notice shall be reduced to writing, signed by the . . . miner, and 

a copy shall be provided the operator or his agent no later than at the time of 

inspection. . . . The name of the person giving such notice and the names of 

individual miners referred to therein shall not appear in such copy or notification. 

Upon receipt of such notification, a special inspection shall be made as soon as 

possible to determine if such violation or danger exists in accordance with the 

provisions of this title. 

30 U.S.C. 813(g)(1). 

38 FMSHRC Page 1437
13. On November 4, 2014, after extensive interviews of hourly and management 

personnel, Mr. Letson issued a notice of negative findings[4

] to Steve Baril, 

who forwarded it to Tyson Murphy, who forwarded it to the Mine Operations 

Supervisory team, including Tim Hooper, Ms. Pepin's direct supervisor. A 

copy of the negative findings [is] marked as Exhibit G-3 and may be admitted 

into evidence.

14. The Secretary has no independent knowledge of whether or when Ms. Pepin 

was informed of the outcome of the Section 103(g) complaint she filed related 

to the ThorGuard lightning detection system. Pursuant to MSHA 

requirements, MSHA investigators routinely inform company management 

and union officials of results of hazard complaints. MSHA does not routinely 

inform complainants of results of hazard complaints.

15. Mr. Hooper gave a copy of the findings to Ms. Pepin on the evening of 

November 4, 2014 before the start of her shift.

16. Ms. Pepin and Chad Filizetti then went to Mr. Hooper's office for a 

discussion. The nature and content of such discussion is at issue in this case.

17. On December 2, 2014, Ms. Pepin filed a complaint with the Secretary of 

Labor charging discrimination pursuant to Section 105(c)(l) of the Act.

18. The total proposed penalty for the citations at issue ($20,000) will not affect 

Respondent's ability to continue in business.[5]

J-Ex. 1. 

II. THE TESTIMONY 

1. Background and the 103(g) Complaint 

Empire Iron owns and operates two adjacent open pit iron ore surface mines, the Empire 

Mine and the Tilden Mine, both of which are located in Marquette County, Michigan. Tr. 17, 93. 

At the Empire Mine, iron ore is extracted, crushed, and concentrated. Tr. 93. Mindy Pepin is a 

crusher operator at the Tilden Mine. Tr. 24. She has approximately six years of experience in her 

current position, and nearly eleven years of experience at the mines. Tr. 24. 

In the early morning of October 31, 2014, at the end of a midnight shift, Pepin walked 

into the dispatch office at the mine and noticed a “red alert” on a computer screen for two 

different ThorGuard systems, which she believed indicated a “great potential for lightning.” Tr. 

                                                             4

 A notice of negative findings informs an operator at the end of a 103(g) complaint 

investigation that no violation of the Act or a mandatory health or safety standard has been 

found. 

5

 No citation or citations were actually issued. Rather, the Secretary seeks the assessment 

of a $20,000.00 penalty for the company’s violation of the Act in an amended complaint. Sec’y 

Amended Complaint at 3. 

38 FMSHRC Page 1438
24-25. The ThorGuard system monitors electrical activity in the atmosphere in order to assess 

the potential for a lightning strike at the mine. Tr. 94. Witnesses for both the Secretary and the 

company testified that it was snowing that day. Tr. 25, 96. However, Pepin also testified to 

seeing thunder and lightning around the start of her shift. Tr. 25, 96. 

Pepin maintains that up until that night “the ThorGuard system was used as ... the holy 

grail,” meaning if there was a red alert, the company evacuated the areas that could be affected 

by lightning. Tr. 27. However, in this instance, the company “disregarded the red alert” and 

informed employees at the mine that they could continue working in the affected area. Tr. 26-27. 

Pepin was concerned about employees working on the ground, especially near a blast pattern, or 

in areas where they might be handling energized cables, because the ThorGuard system was still 

indicting the potential for a lightning strike, and lightning could cause explosives to detonate. Tr. 

79. 

When she entered the dispatch room, Pepin asked her supervisor Tyson Murphy, the 

section manager for mine production, why Empire Iron chose to disregard the red alert. Tr. 26, 

92. Murphy testified that he provided Pepin with a 30 second explanation for why he did not 

believe there was a hazard. Tr. 98. Part of this explanation was that the ThorGuard system is 

prone to show false positives, especially when it is snowing, and all of the other evidence that the 

company looks to in these circumstances suggested that there was no lightning hazard.6

 Tr. 98. 

Murphy described Pepin’s demeanor during this conversation as “agitated” and “upset,” 

and he believed that at the end of the discussion Pepin “still wanted to argue the point.” Tr. 100. 

Murphy testified that Pepin turned around with a “humpf” and “stormed down the hallway” 

saying something he could not make out. Tr. 100. According to Jeffrey Delmont, a blasting 

supervisor at the mine who walked by her while she was leaving the office, Pepin said, “Fucking 

red is red.” Tr. 116. Witnesses for the company admitted that as of October 31, there was nothing 

explicit in the electrical storm notification procedures available to employees at the mine dealing 

with ThorGuard system false positives. Tr. 109-10, 118-19, 130-31. 

On the 2nd and 3rd of November, Pepin filled out a Take 5 card, a workplace inspection 

form on which employees may raise safety concerns with the company. Tr. 27-28, 100-01. On 

both dates, Pepin documented on the cards that management permitted employees to reenter the 

area affected by a potential lightning strike on October 31, even though the ThorGuard system 

was still displaying a red alert. Tr. 28; Sec’y Ex. 1. At the end of each shift, Pepin placed the 

cards in a box, where they would be picked up and reviewed by the shift supervisor. Tr. 29. 

Pepin testified that prior to this incident she had only written a safety concern on a Take 5 card 

three or four times over the course of approximately five years. Tr. 29. 

                                                             6 According to Murphy, none of the supervisors or dispatchers to whom he spoke 

observed lightning, nobody called in and reported seeing lightning, and an online lightning strike 

map indicated that the nearest lightning was in Texas. Additionally, Murphy and Jeffrey 

Delmont, a blasting supervisor at the mine, testified that ThorGuard and Weather Channel radar 

maps did not indicate any nearby thunderstorm activity. Tr. 97, 114-15. 

38 FMSHRC Page 1439
Daniel Keranen, the area manager of mining operations, testified that it is the company’s 

expectation that when employees raise safety issues on Take 5 cards, they will receive a response 

from management. Tr. 171. When asked whether management responds to these complaints, 

Keranen responded affirmatively, and clarified that the employee’s supervisor may be the one to 

respond. Tr. 171-72. However, Keranen conceded that the company does not have any way of 

ensuring that supervisors respond, and therefore he could not say for sure how Take 5 complaints 

are addressed in practice. Tr. 172-73. Pepin testified that in the three or four prior instances in 

which she raised a safety concern on her Take 5 cards, she never received a response from 

management, nor had she received a response to the one additional concern she raised following 

her ThorGuard complaints. Tr. 58-59. She stated it was typical not to get an answer from the 

company. Tr. 58-59. 

On the morning of November 3, shortly after turning in her Take 5 card at the end of her 

shift, Pepin contacted MSHA and made a complaint pursuant to section 103(g) of the Act raising 

the same concerns about the company sending miners back to work even though the ThorGuard 

system displayed a red alert. Tr. 29; Sec’y Ex. 2. Pepin testified that this was the first time she 

had ever made a safety complaint to MSHA. Tr. 36. On November 3 and 4, MSHA investigated 

the complaint, interviewing hourly and management personnel in the process. Tr. 112; Stip. 12. 

On November 4, MSHA issued a notice of negative findings for the allegations in Pepin’s 103(g) 

complaint. Stip. 13; Sec’y Ex. 3. MSHA did not interview Pepin as a part of the investigation or 

inform her of its findings. Tr. 30. The inspector who investigated the incident personally 

delivered the findings to Steve Baril, a safety representative for the company. Tr. 122-23. Baril 

scanned the document and emailed the findings to supervisors Dan Keranen, Tyson Murphy, 

Dan Wegleitner, and Richard Carlson. Tr. 123. Baril claims he expected them to communicate 

the findings to the employees at the company through intermediate supervisors in toolbox 

meetings. Tr. 123-24. He also testified that supervisors often communicate the findings from an 

MSHA complaint inspection this way. Tr. 124. 

2. The Ready Room Incident 

On the evening of November 4, Mindy Pepin was seated in the employee’s ready room in 

a building at the mine waiting to start her shift. Tr. 64. With her, at the time, was Chad Filizetti, a 

fellow miner and her then-fiancé. Tr. 64. At least two or three other miners were also in the 

room. Tr. 32, 64. Tim Hooper, her shift supervisor for the night, entered the ready room at 

approximately 10:10 p.m., walked up to Pepin, and gave her a piece of paper containing 

MSHA’s negative findings on her 103(g) complaint. Tr. 31, 65, 137-38. According to Pepin, 

Hooper “shoved” the paper in her face and said, “Here, I thought you’d like to see this.” Tr. 31. 

He then left the room and went back to his desk. Tr. 139; see also Tr. 65. 

Hooper testified that he merely “handed” the paper to Pepin by “set[ting] it on the 

counter right in front of” her and Filizetti. Tr. 137, 139. Then, in Hooper’s account, he stated 

“Here[,] . . . I thought you’d be interested in seeing this. This is the findings from MSHA on the 

ThorGuard.” Tr. 139. According to him, he did not stick around to have a discussion “because 

[he] knew it would probably escalate into an argument” which he wished to avoid. Tr. 139-40. 

38 FMSHRC Page 1440
Pepin testified that she was taken aback by Hooper’s decision to give her the complaint 

because it was not a normal practice. Tr. 33. She interpreted Hooper’s actions as “giving [her] a 

message that he knew it was [Pepin] that called MSHA.” Tr. 33. Filizetti testified that he 

interpreted Hooper’s actions similarly. Tr. 74, 84. 

Hooper insisted that he merely intended to address the concerns Pepin raised in her Take 

5 cards, and that he did not even know she filed the section 103(g) complaint.7

 Tr. 136-37, 140. 

Hooper testified that he arrived at the decision to present Pepin with the negative findings in 

consultation with his supervisor Joe Garnsey, because “obviously by filling her Take 5 card out 

two days in a row, [Pepin] was very concerned” about the October 31 incident. Tr. 135-36. 

Garnsey stated in a deposition that he thought Hooper should show Pepin the findings because 

they would relieve her anxiety, and that the decision had nothing to do with proving Pepin 

wrong. Resp’t Ex. 19 at 10. Garnsey did not know whether Pepin filed the MSHA complaint, but 

he assumed she had. Resp’t Ex. 19 at 11, 16. 

Additionally, Hooper testified that he planned to discuss the MSHA negative findings 

with the rest of the shift crew during their standard toolbox meeting at 10:45 p.m. on November 

4, which he subsequently did. Tr. 137-38, 145. However, Pepin started her shift early, normally 

at 10:20 p.m., before the rest of the crew. Tr. 137. Therefore, Hooper informed Pepin of the 

findings individually apart from the rest of the crew. Tr. 137.

3. The Confrontation in Tim Hooper’s Office 

After Hooper left the ready room, Pepin followed him into his office because, according 

to her, she “was curious to see why he felt the need to give [her] the MSHA findings.” Tr. 33. 

She denied that she had any intent to provoke Hooper, although she was “aware that Mr. Hooper 

has a temper.” Tr. 47, 53. At Pepin’s request, Filizetti accompanied Pepin. Tr. 33. 

Pepin testified that she calmly asked Hooper why he gave her the findings. Tr. 33-34. 

According to Pepin, Hooper responded, “Because we all knew it was you that called MSHA.” 

Tr. 34. Pepin said she was shocked by that statement and told Hooper, “Just because you know 

it’s me doesn’t mean you’re supposed to be telling me it’s me.” Tr. 34. According to Pepin’s 

testimony, when asked how he knew it was Pepin who had called MSHA, Hooper answered that 

it was because she wrote the same complaint on her Take 5 cards. Tr. 34. 

At some point during this interaction, Pepin claims that Hooper “came flying out of his 

chair at his desk” and that the conversation “got pretty heated really fast.” Tr. 34-35. Pepin 

recalled that Hooper asked, “Do you know how many people I had to pull off of equipment to go 

                                                             7

 Hooper stated that he found out about the complaint almost immediately after seeing 

Pepin’s Take 5 card complaints, so the thought crossed his mind that it was Pepin who called 

MSHA. Tr. 147, 150. However, Hooper agreed that Pepin could have raised the issue with the 

safety committee of the United Steelworkers of America (Pepin’s union), and a member of the 

union’s safety committee, rather than Pepin, could have called MSHA. Tr. 154. Hooper 

maintained that he would have no way of knowing who filed the 103(g) complaint in that 

scenario. Tr. 154-55. 

38 FMSHRC Page 1441
in for your interview?” Tr. 35. She interpreted this question to mean that the MSHA 

investigation was a major inconvenience for the company. Tr. 35. Pepin also alleged that Hooper 

told her she used “safety [complaints] to bottleneck production” and that Pepin and Filizetti were 

the “ringleaders of the bottlenecking” operation.8

 Tr. 35, 37. When asked by Pepin for further 

elaboration, Hooper allegedly replied, “[E]verybody in the back office knows what [you are] up 

to and they’re watching [you].” Tr. 37. As far as Pepin was aware, the back office would have 

included Dan Keranen, Tyson Murphy, and all upper salary management personnel. Tr. 38. 

Pepin testified that Hooper next threatened to send her home for insubordination. Tr. 38. 

When Filizetti asked how Pepin was being insubordinate, Hooper allegedly answered, “Because 

she’s scolding me for the way I’m talking to her,” and “I’m just telling her everything that 

everyone else wants to say but is afraid to.” Tr. 38. Pepin testified that she was angry and 

shocked at the turn the conversation had taken, and that she told Hooper the conversation was 

over and left. Pepin recalled that at the end of the conversation she realized she had backed out 

into the hallway after Hooper got up from his chair, even though she had started the conversation 

at his desk. Tr. 47. 

Although Filizetti’s recollection of the meeting was much hazier than Pepin’s and 

omitted a few statements that Pepin alleged Hooper made, Filizetti corroborated Pepin’s 

testimony that Hooper accused her of filing the MSHA safety complaint and of using safety 

complaints to bottleneck production. Tr. 66-68. Filizetti also recalled Hooper getting out of his 

chair at some point during the conversation, although in his telling Hooper “slowly came [their] 

way” instead of “flying at” them. Tr. 70. 

After Pepin left, Filizetti remained with Hooper in his office. Tr. 39. Although Filizetti 

had trouble recalling most of the ensuing conversation, he testified that Hooper explained, 

regarding his interaction with Pepin, that he does not have “people skills.” Tr. 75. According to 

Filizetti, Hooper also stated that “everybody in the back hallway knew what [Pepin] was up to,” 

which Filizetti interpreted to mean that his superiors were watching Pepin. Tr. 75-76. Filizetti 

agreed that the tension eased in the room after Pepin left. Tr. 86. 

Hooper’s account of the meeting differed slightly from Pepin’s. According to Hooper, 

Pepin started asking questions right away and the interaction became increasingly hostile. Tr. 

140. Pepin was allegedly loud, agitated, and full of attitude. Tr. 142. Hooper also testified that he 

made sure he was seated the entire time, because he did not want to look intimidating, whereas 

Pepin was “moving around.” Tr. 142, 145. Hooper admitted that he did become slightly angry 

during the conversation. Tr. 145-46. He stated that “it’s hard not to be [angry] when stressful 

situations are thrown at you like that.” Tr. 146. 

                                                             8

 Pepin believed that she did not make safety complaints very often and only regarding 

issues that were “really concerning.” Tr. 35-36. She had never made a complaint to MSHA prior 

to this incident, although she did recall bringing what she termed “minor things” to the attention 

of a shift supervisor or salaried employee verbally. Tr. 36-37. These included issues regarding a 

disintegrating walkway grating and berms of insufficient height. Tr. 37. 

38 FMSHRC Page 1442
Hooper claimed that he did not know Pepin had called MSHA until she brought up the 

subject. Tr. 140-41. Hooper stated that once the conversation started to get hostile, he announced 

that the conversation was over and told Pepin and Filizetti to leave. Tr. 141. However, they did 

not leave, and Pepin continued to ask questions. Tr. 141. It was at this point that Hooper claims 

he threatened Pepin with insubordination because she would not leave the room when told to do 

so. Tr. 141. Hooper then told Filizetti, “She cannot . . . come in here and quiz me on anything she 

feels is relevant at the time.” Tr. 142. 

 

Hooper next described his conversation with Filizetti after Pepin left the room. After 

complaining about Pepin’s attitude, Hooper told Filizetti, “I don’t know what’s happened to this 

crew. That crew . . . used to be one of the top crews, and now it seems like there are a few people 

on the crew that are using safety as a crutch to not do their work.” Tr. 143. Hooper clarified that 

he was referring to “minor equipment issues” where employees would shut down equipment that 

was actually safe to run. Tr. 143-44. Hooper also believed that there had been frivolous 

complaints filed with MSHA, including one where an employee had contacted MSHA because a 

toilet was plugged without notifying management. Tr. 144. Hooper generally did not view 

MSHA as an ideal first option for raising safety issues.9

 Tr. 151. 

Hooper testified that he then continued, “You know, have you seen the price our stock is 

trading at? . . . [W]e need to work through some of these safety issues together to take care of 

them, not in this manner.” Tr. 144. As noted, Hooper believed that the majority of safety issues 

could be taken care of if they were brought to management’s attention. Tr. 144-45. That said, he 

maintained he did not intend to prohibit or discourage Pepin or Filizetti from filing complaints 

with MSHA. Tr. 145. 

 

                                                             9

 Hooper believed miners should raise safety complaints with management before 

complaining to MSHA. He expressed this belief during the following exchange with the solicitor 

at the hearing: 

Q: [Y]ou felt that some people were making frivolous safety complaints? 

A: Not frivolous safety complaints. Frivolous complaints to MSHA. 

Q: So you think a complaint to MSHA is not a safety complaint? 

A: Not if it’s—if it’s not a real one. 

Q: So who is to judge what a real safety complaint is then? 

A: Well, I guess the safety committee and the supervisors. 

Q: So then the miners should take their complaints only to the supervisors and not 

call MSHA if they feel that they have a complaint, to check to see if it’s a real 

safety complaint? 

 * * * 

A: Firstly, yes. 

Q: So firstly they should take a complaint to the supervisors instead of taking the 

complaint to MSHA? 

A: Yes. 

Tr. 151.

38 FMSHRC Page 1443
4. The Toolbox Meeting 

At around 10:45 p.m. on November 4, Hooper subsequently discussed the MSHA 

negative findings with his crew in a toolbox meeting in the ready room. Tr. 77. Pepin was not a 

part of this meeting. Tr. 77. According to Filizetti, Hooper made mention during that meeting 

that the company’s stock had been dropping and that the company was not in good shape 

financially. Tr. 77. Filizetti took this comment, immediately following discussion of the MSHA 

negative finding, to mean that unsubstantiated safety complaints were costing the company 

money. Tr. 78. Hooper denied discussing the company’s stock prices with the crew, and instead 

claims that he only mentioned that to Filizetti in private due to Filizetti’s own personal interest in 

the matter. Tr. 153. 

Hooper claimed that he had provided MSHA negative findings in a toolbox meeting prior 

to this, but later admitted that he could not remember if he had. Tr. 148-49. Daniel Keranen, the 

area manager of mining operations, testified that the company communicates MSHA negative 

findings with the crew during toolbox meetings and that he had told Tyson Murphy to 

disseminate information regarding the negative findings at issue in this case to all of the crews at 

the mine. Tr. 171 

5. Relevant History Between Mindy Pepin and Tim Hooper 

Pepin testified that while she and Hooper did have a “couple of small run-ins” prior to the 

events of this case, she considered her relationship with Hooper to be friendly and professional 

up until this point. Tr. 40. The “run-ins” to which Pepin referred included an incident where 

Hooper informed Pepin that she needed to start scanning in and out of the mine at the end of her 

shift and an incident where he allegedly berated her for using the wrong door to exit a changing 

room at the mine. Tr. 41, 53-54. Hooper clarified that there were several other employees who 

were reprimanded for not scanning in and out of the mine at the time, but that the changing room 

reprimand was specific to her. Tr. 146. These incidents were documented by the company in a 

record of verbal redirections, although Pepin claims that she was not aware that such a record 

existed until this proceeding. Tr. 40; Sec’y Ex. 4, 5. Pepin also recalled an incident in the fall of 

2011 where Hooper reprimanded her for questioning a management decision on the company 

radio. Tr. 42. According to Pepin, Hooper angrily slammed open the door where Pepin was 

working and told her, “Don’t ever say something like that again on the radio.” Tr. 42. 

Filizetti testified that Pepin and Hooper have similar personalities, in the sense that it is 

very difficult to change their minds when they think they are right. Tr. 81. Multiple witnesses 

also testified about the fiery attitudes of both individuals. Keranen stated that although he and 

Pepin had been childhood friends and neighbors, she had been aggressive and abrasive toward 

him at work in the past, Tr. 169-70, while Garnsey claimed that Pepin is easily agitated. Resp’t 

Ex. 19 at 7-9. Both Pepin and Filizetti testified that everyone who knows Hooper is aware that he 

has a temper. Tr. 53, 86. 

 

38 FMSHRC Page 1444
6. Damages and Aftermath 

Pepin testified that following her encounter with Hooper, she cried during her shift and 

felt very frustrated. Tr. 39. Because of allegedly being told that everyone in the back office is 

watching her, she claims that she now feels there is a target on her back and worries that the 

company is looking for a reason to fire her. Tr. 45. Filizetti confirmed that Pepin has expressed 

feeling this way. Tr. 78-79. Keranen testified that Pepin later told him that she felt threatened by 

Hooper and did not want to work with him. Tr. 174. Pepin stated that the stress of having to 

interact with Hooper has affected her personal life. Tr. 45-46. According to her, the situation was 

a contributing cause to the dissolution of her relationship with her then-fiancée and co-worker 

Filizetti. Tr. 46, 55-56. However, at the time of the hearing, Pepin and Filizetti were once again 

engaged. Tr. 33, 87. Pepin has also not sought treatment or medication for her stress. Tr. 58. 

 

Other employees at the mine have learned about Pepin and Hooper’s confrontation from 

Pepin and Filizetti. Tr. 60. Pepin testified that those employees have said that they are “floored” 

by this situation, and have told her sympathetically, “That’s what you get for filing safety 

complaints.” Tr. 60. Pepin claims that she will have significant reservations about raising safety 

issues in the future. Tr. 46. 

Pepin has become a member of the union safety committee since the alleged interference. 

Tr. 53. She has raised a safety issue within the company and made a safety complaint during a 

crew meeting since then as well. Tr. 158, 170. Since the alleged interference there has not been a 

decline in the number of section 103(g) complaints filed by mine employees at the company. 

Resp’t Ex. 17. 

III. SECTION 105(C) INTERFERENCE CLAIMS 

1. The Law 

 The Secretary alleges that Empire Iron interfered with the exercise of Pepin’s statutory 

rights in violation of Section 105(c)(1) of the Mine Act. Section 105(c)(1) states in pertinent part: 

No person shall discharge or in any manner discriminate against . . . or 

otherwise interfere with the exercise of the statutory rights of any miner . 

. . because such miner . . . has filed or made a complaint under or related 

to this Act . . . or because of the exercise by such miner . . . of any 

statutory right afforded by this Act. 

30 U.S.C. § 815(c)(1) (emphasis added). This section establishes a cause of action for unlawful 

discrimination, which the Commission normally analyzes under the Pasula-Robinette framework 

laid out below. However, in plurality and concurring opinions in a recent case, a majority of 

Commissioners recognized that this section also “establishes a cause of action for unjustified 

interference with the exercise of protected rights which is separate from the more usual 

intentional discrimination claims evaluated under the Pasula-Robinette framework.” UMWA on 

behalf of Franks v. Emerald Coal Res., LP, 36 FMSHRC 2088, 2103 n.22 (Aug. 2014) (Young 

38 FMSHRC Page 1445
& Cohen, Comm’rs), vacated, 620 Fed. Appx. 127 (3d Circ. 2015); id. at 2105-07 (Jordan & 

Nakamura, Comm’rs). 

Under the traditional Pasula-Robinette framework, a complainant alleging discrimination 

must prove, by a preponderance of the evidence, (1) that he or she engaged in protected activity; 

(2) that he or she suffered an adverse action; and (3) that the adverse action taken against him or 

her by the mine operator was motivated in any part by the protected activity. The operator may 

rebut a prima facie case by showing that no protected activity occurred or that the adverse action 

was in no part motivated by the miner's protected activity. Sec'y of Labor on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980) (rev'd on other grounds); Consolidation 

Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec'y of Labor on behalf of Robinette v. 

United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981). If the operator is unable to rebut the 

miner's prima facie case, it may nevertheless defend itself affirmatively by proving (1) that it 

was also motivated by the miner's unprotected activity and (2) that it would have taken the 

adverse action in any event for the unprotected activity alone. Haro v. Magma Copper Co., 4 

FMSHRC 1935 (Nov. 1982). 

Additionally, certain business policies that on their face plainly and explicitly 

discriminate against protected activity may be “so ‘inherently destructive of employee interests' 

that [they] may be deemed proscribed without need for proof of an underlying improper motive.” 

See Swift v. Consolidation Coal Co., 16 FMSHRC 201, 206 (Feb. 1994) (quoting NLRB v. Great 

Dane Trailers, 388 U.S. 26, 33 (1967). This is because “some conduct carries with it 

unavoidable consequences which the employer not only foresaw but which he must have 

intended and thus bears ‘its own indicia of intent.’” Great Dane Trailers, 388 U.S. at 33 

(emphasis added). 

In contrast to the detailed analysis that the Commission has provided for discrimination 

claims, there is relatively little Commission case law on the appropriate framework for analyzing 

interference claims. The most significant Commission cases dealing with interference are Moses 

v Whitley Dev. Corp., 4 FMSHRC 1475 (Aug. 1982), aff’d, 770 F.2d 168 (6th Cir. 1985) and 

Sec’y of Labor on behalf of Gray v. N. Star Mining, Inc., 27 FMSHRC 1 (Jan. 2005). 

Additionally, the Secretary and two Commissioners have recently proposed a framework for 

interference claims, discussed more fully below, that the Commission as a whole has yet to 

adopt. Franks, 36 FMSHRC at 2108 (Jordan & Nakamura, Comm’rs). The Secretary urges the 

court to adopt the Franks framework, in part because he argues it is consistent with Commission 

precedent, specifically Moses and Gray. Sec’y Br. 11. Therefore, the court will discuss these two 

cases in depth below. 

In Moses v Whitley Dev. Corp., the Commission held that persistent and accusatory 

interrogation directed toward a miner in response to that miner’s filing of a 103(g)(1) complaint 

constituted prohibited interference under the Act. Moses, 4 FMSHRC at 1480. In reaching that 

result, the Commission first cited to Mine Act legislative history indicating that section 105(c)(1) 

was directed against “not only the common forms of discrimination, such as discharge, 

suspension, [and] demotion . . ., but also against the more subtle forms of interference, such as 

promises of benefit or threats of reprisal” and then found that “coercive interrogation and 

harassment over the exercise of protected rights” were among the “more subtle forms of 

38 FMSHRC Page 1446
interference” that the drafters of the Act had in mind. Id. at 1479 (citing S. Rep. 95-191, 95th 

Cong., 1st Sess. 36 (1977) [“S. Rep.”], reprinted in Senate Subcommittee on Labor, Committee 

on Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 624 (1978) [“Legis. Hist.”]). The Commission was especially concerned 

about the tendency of an employer’s actions or statements to instill a fear of reprisal in the minds 

of its employees and chill the exercise of protected rights. Moses, 4 FMSHRC at 1479. In a 

footnote, the Commission attempted to distinguish between comments or questions regarding a 

miner's exercise of a protected right that are “innocuous or even necessary to address a safety or 

health problem” and those that constitute unlawful interference: “Whether an operator’s actions 

are proscribed by the Mine Act must be determined by what is said and done, and by the 

circumstances surrounding the words and actions.” Id. at 1479 n.8. 

In a separate part of the Moses decision, dealing primarily with discharge, and 

secondarily with interference, under the Pasula-Robinette framework, the Commission also held 

that an operator may be held liable for adverse actions motivated by the suspicion of protected 

activity, even if the complainant had not actually engaged in such protected activity. Moses, 4 

FMSHRC at 1480. The Commission acknowledged that a literal interpretation of section 

105(c)(1) might require the actual or attempted exercise of protected activity, but reasoned that 

such a narrow interpretation would frustrate Congressional intent. Id. Instead, the Commission 

adopted a broad interpretation of the statutory language, “No person shall discharge . . . any 

miner . . . because of the exercise by such miner . . . of any statutory right afforded by this Act.” 

The Commission’s interpretation turned on the motives and beliefs of the “person” discharging 

the miner, rather than the activities of the miner. Id. 

The Commission subsequently distinguished interference from discrimination claims and 

raised new questions about the intent requirement in section 105(c) interference cases in the 

matter of Sec’y of Labor on behalf of Gray v. N. Star Mining, Inc. In Gray, a mine’s 

superintendent repeatedly asked an employee about his grand jury testimony stemming from an 

MSHA investigation and sought assurances from the miner that he did not testify against the 

superintendent, joking that if he had, the superintendent would kill him. Gray, 27 FMSHRC at 2-

3. A Commission ALJ evaluated the interference allegations under the Pasula-Robinette

framework and found that the alleged interference did not qualify as adverse actions under the 

Act because, in part, the superintendent did not literally intend to harm the employee. Id. at 4-5; 

Sec’y of Labor on behalf of Gray v. N, Star Mining, Inc., 25 FMSHRC 198, 202 (Apr. 2003) 

(ALJ). The ALJ found it unnecessary to reach the issue of discriminatory motivation, having 

already found no adverse action. Gray, 25 FMSHRC at 216. The Commission vacated the ALJ’s 

interference finding and remanded the matter for “further consideration of the facts and 

circumstances surrounding the statements to determine if they were coercive under section 

105(c)(1) of the Mine Act.” Gray, 27 FMSHRC at 12. 

 

 After first announcing that coercive operator statements are not to be analyzed under the 

normal Pasula-Robinette framework, the Commission identified several other errors in the ALJ’s 

decision that hinted at how the Commission would prefer interference claims to be analyzed. 

Gray, 27 FMSHRC at 7 n.6. In particular, the Commission noted “that the judge examined [the 

superintendent’s] statements too narrowly by considering largely, if not exclusively, [his] intent 

or motive in making the statement.” Id. at 10. The Commission found error in the ALJ’s belief 

38 FMSHRC Page 1447
that “the presence or absence of a violation of section 105(c) of the Mine Act turned on whether 

[the supervisor] literally intended by his words to cause physical harm to [the employee] or any 

other miner who testified against him during the grand jury investigation.” Id.. Instead, citing 

Moses and case law on section 8(a)(1) of the NLRA, the Commission held that the ALJ should 

have analyzed the “totality of circumstances surrounding [the supervisor’s] statements to 

determine whether they were coercive and violative of section 105(c)” because they carried 

implicit “threats of reprisals or of employment discrimination,” which the Commission had 

already recognized in Moses as capable of giving rise to claims of prohibited interference. Id. 

 

2. The Secretary’s Proposed Test 

The Secretary of Labor has proposed a test for evaluating interference claims. Sec’y Br. 

9-12. The Secretary originally proposed this test before the Commission, and two 

Commissioners chose to adopt it. Franks, 36 FMSHRC at 2108 (Jordan & Nakamura, Comm’rs). 

Under the Franks test, an interference violation occurs if: 

(1) a person’s action can be reasonably viewed, from the perspective of members of the 

protected class and under the totality of the circumstances, as tending to interfere with 

the exercise of protected rights, and 

(2) the person fails to justify the action with a legitimate and substantial reason whose 

importance outweighs the harm caused to the exercise of protected rights. 

Franks, 36 FMSHRC at 2108. 

Under the first prong of the test, in order to establish that conduct tends to interfere with 

the exercise of protected rights “it is not necessary [for the Secretary] to show that a miner has 

been actually prevented or deterred from exercising rights” or “that the operator acted with 

discriminatory motivation or unlawful intent.” Franks, 36, FMSHRC at 2107; Sec’y Br. 12. The 

second prong of the test “ask[s] whether the operator’s actions were narrowly tailored enough to 

promote its business justification without undue interference to the rights of the miners.” Franks, 

36 FMSHRC at 2118 n.14; Sec’y Br. 10-11. 

Empire Iron asks the court to reject the Secretary’s proposed test, particularly because the 

company believes that discriminatory motive must be a required element of a section 105(c) 

violation. Resp’t Br. 12. The Secretary in turn claims that his proposed test is entitled to Chevron

deference, and provides two rationales for why the court should adopt this test. Sec’y Br. 10; see

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984). First, the 

Secretary argues that section 105(c)(1)’s prohibition on “interference” reflects parallel language 

in section 8(a)(1) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a)(1), and that 

section 8(a)(1) has been interpreted by courts and the National Labor Relations Board (“NLRB”) 

not to require a showing of intent. Second, the Secretary claims that his proposed test is “firmly 

grounded in both Commission and NLRA precedent.” Sec’y Br. 11. 

38 FMSHRC Page 1448
Even assuming that the Secretary’s entire test is deserving of Chevron deference if it is 

found to be a reasonable interpretation of an ambiguous provision,10 the court finds the 

Secretary’s interpretation of section 105(c)(1) to be unreasonable as to the question of whether 

the Secretary is required to prove unlawful intent in interference proceedings but reasonable as to 

the question of whether it is necessary to show that a miner has actually been deterred from 

exercising rights. 

3. The Plain Language of the Act and NLRA Guidance 

The court first acknowledges that certain elements of section 105(c)(1) of the Act are 

ambiguous. For instance, the types of actions that may qualify as “interference” under the section 

are open to interpretation. However, the court cannot envision any permissible interpretation of 

section 105(c)(1) that entirely reads out the word “because” and all subsequent language from 

the phrase: “No person shall . . . interfere with the exercise of the statutory rights of any miner . . 

. because such miner . . . has filed or made a complaint under or related to this Act . . . or 

because of the exercise by such miner . . . of any statutory right afforded by this chapter.” 30 

U.S.C. § 815(c)(1). 

It is a general principle of legal interpretation that every word and phrase in a statutory 

provision must be given effect. And a statutory provision that prohibits a person from acting 

“because of” a protected status or activity is generally given the effect of requiring that the 

protected status or activity “was the ‘reason’ that the [person] decided to act,” Gross v. FBL Fin. 

Servs., Inc., 557 U.S. 167 (2009), or at least a motivating factor. See E.E.O.C. v. Abercrombie & 

Fitch Stores, Inc., 135 S.Ct. 2028, 2032 (2013).11 The court concludes that within section 105(c), 

the phrase beginning with the word “because” clearly denotes a requirement that a miner’s 

protected activity motivated an operator’s interference with his or her exercise of protected 

rights. 

The Secretary instead relies primarily on the similarities in both language and purpose 

between section 105(c)(1) of the Mine Act and section 8(a)(1) of the NLRA and argues that the 

interference language in each statute does not carry with it an intent requirement. Sec’y Br. 11. 

Section 8(a)(1), in full, states, “It shall be an unfair labor practice for an employer to interfere 

with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this 

title.” 29 U.S.C. § 158(a)(1). While there are some similarities between the two sections that 

justify the inference that section 8(a)(1) informed the drafting of section 105(c), the court 

                                                             10 The court notes that the Court of Appeals for the Sixth Circuit, wherein the mine that is 

the subject of this proceeding is located, has previously refused to grant Chevron deference to the 

Secretary’s interpretation of an ambiguous Mine Act provision. See North Fork Coal Corp. v. 

FMSHRC, 691 F.3d 735 (6th Circ. 2012). 

11 In exceptional circumstances involving disparate impact language in antidiscrimination 

statutes closely modeled after Title VII of the Civil Rights Act of 1964, courts have occasionally 

declined to give such effect to the words “because of,” however this court does not find that 

section 105(c)(1) of the Mine Act fits into this exception. See, e.g., Griggs v Duke Power Co., 

401 U.S. 424 (1971); Smith v. City of Jackson, 544 U.S. 228 (2005), Texas Dept. of Hous. & 

Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015).

38 FMSHRC Page 1449
nevertheless cannot ignore the obvious difference between the statutory provisions: section 

8(a)(1) does not use the word “because” or include any intent requirement, while section 

105(c)(1) unambiguously does. The additional language must serve some distinct purpose. 

Of further relevance, section 8(a)(4) – a clearly separated sub-section within the same 

section of the NLRA – provides that, “It shall be an unfair labor practice for an employer to 

discharge or otherwise discriminate against an employee because he has filed charges or given 

testimony under this subchapter.” 29 U.S.C. § 158(a)(4) (emphasis added). If the drafters of the 

Mine Act had indeed sought guidance from section 8(a) of the NLRA, they would have found a 

straightforward template for separating discharge and discrimination from interference and for 

ensuring that the intent requirement for the first two causes of action did not apply to the third. 

Instead, the Mine Act clearly groups “discharge,” “discriminate,” and “interfere” together and 

applies the same intent requirement to all three. 

 

 The Secretary also notes that the Commission has previously identified an identical 

purpose between section 8(a)(1) of the NLRA and section 105(c) of the Mine Act, namely “to 

provide legal protection against adverse action to employees who exercise rights afforded by 

law.” Sec’y Br. 11 (citing Sec’y of Labor on behalf of Johnson v. Jim Walters Resources, Inc., 18 

FMSHRC 552, 558 (Apr. 1996) (finding subjective and objective evidence of an adverse action’s 

chilling effect on the exercise of rights is relevant to the gravity criterion for a civil penalty 

assessment in discrimination proceedings)). The court agrees that the two provisions share an 

identical purpose when framed in that broad level of generality. However, the different language 

in the two statutes indicates that section 105(c) is aimed in a more targeted fashion at providing 

legal protection against adverse actions motivated by the exercise of rights afforded by law. 

 One possible explanation for this difference is that section 8(a)(1) of the NLRA deals 

with labor organizing and negotiation over terms of employment and assumes a naturally 

adversarial relationship between employers and employees in that process. Cf. Franks, 36 

FMSHRC at 2120 (Althen, Comm’r, dissenting). Therefore, intent may be inferred in employer 

actions that interfere with the right to organize or collectively bargain. In contrast, the Mine Act 

deals with miner health and safety and does not automatically assume that employers and 

employees always have adverse interests in the goal of promoting safety. 

The Secretary, finding support in NLRA case law, also takes the position that he need not 

prove that a complainant “has been actually prevented or deterred from exercising rights” in 

order to “show that [the alleged] conduct tends to [unlawfully] interfere with the exercise of 

protected rights.” Sec’y Br. 12 (citing Flagstaff Med. Cir., Inc. v. NLRB, 715 F.3d. 928, 930 

(D.C. Cir. 2012); NLRB v. Air Contact Transp., Inc., 403 F.3d 206, 212 (4th Circ. 2005); NLRB v. 

Okun Bros. Shoe Store, 825 F.2d 102, 107 (6th Cir. 1987)). This issue is relevant in this matter 

because the company claims that Hooper’s alleged interference has not in fact affected Pepin’s 

exercise of her protected rights. Resp’t Br. 30-31. 

 In this limited context, the court agrees with the Secretary’s use of applicable NLRA 

principles. The Secretary’s position is not contradicted by the plain language of the statute, and 

the court recognizes that a complainant’s perseverance in the face of efforts to deter his or her 

exercise of protected rights should not defeat any potential interference claims. Therefore, the 

38 FMSHRC Page 1450
court finds the Secretary’s position regarding the lack of a need to prove that the exercise of 

protected rights was actually restricted to be reasonable and persuasive, under both a Chevron

and Skidmore analysis. See Skidmore v Swift & Co., 323 U.S. 134, 139 (1944) (deferring to an 

agency’s interpretation of an ambiguous provision due to its power to persuade). 

 

4. Commission Precedent 

 

The Secretary argues that his proposed test is consistent with Commission precedent 

regarding interference, specifically in Moses and Gray. Regardless of whether or not this 

assertion is correct, the court does not find that Commission precedent compels the Secretary’s 

interpretation. 

Reading the statute broadly in Moses, the Commission articulated a totality of the 

circumstances test to assess whether certain statements or actions rise to the level of unlawful 

interference and affirmed an ALJ’s finding of discrimination even when an operator was 

motivated by suspicion of a miner’s protected activity rather than actual knowledge. Moses, 4 

FMSHRC at 1479 n.8, 1480. It did not, however, suggest that such a test would be sufficient to 

establish a violation of section 105(c)(1) absent any showing of intent.12 

 

Gray provides stronger support for the Secretary’s claim that intent is not a necessary 

element of an interference claim. See discussion supra p. 13. However, it is important to keep in 

mind that the ALJ had analyzed the case under the Pasula-Robinette framework and had only 

addressed the issue of the operator’s intent in the context of finding that the Secretary had failed 

to prove any adverse action. It was this finding alone that the Commission found to be in error, 

as the ALJ did not reach the issue of discriminatory motivation. 

It is therefore unclear to this court whether the Commission in Gray found the ALJ to be 

in error for requiring the Secretary to prove any intent whatsoever (which is one possible 

interpretation of the opinion given the Commission’s extended discussion of section 8(a)(1) of 

the NLRA), or whether it concluded the ALJ erred by finding that the alleged statements could 

not qualify as adverse actions unless the superintendent in the matter intended his statement as a 

literal threat on the complainant’s life, rather than as a threat of reprisal more generally. The lack 

of a clearly articulated standard or holding from the decision regarding the role or relevance of 

intent in interference proceedings, and the extent to which a broad holding would have 

represented a significant development in the law, cautions against drawing too broad a 

conclusion from the language therein. Instead, the court reads the opinion to reaffirm the 

importance, first articulated in Moses, of looking at the totality of circumstances in interference 

allegations and focusing on the tendency of an employer’s actions or statements to instill a fear 

of reprisal in the minds of its employees and chill the exercise of protected rights. 

 

                                                             12 The Commission in Gray speculated that the totality of the circumstances test in Moses

may have been derived from section 8(a)(1) of the NLRA and subsequent case law. Gray, 27 

FMSHRC at 10. This finding is consistent with this court’s approach in drawing from NLRA 

precedent in its interpretation of section 105(c)(1) where appropriate. Exactly how much of that 

case law should be imported into the Mine Act, however, is open to question. 

38 FMSHRC Page 1451
5. Additional Considerations 

The court is troubled by the possible implications of the Secretary’s proposed test in 

interference cases going forward. The test may even introduce uncertainty into the relatively 

settled area of discrimination law under the Mine Act. 

 

Normally a discharge or suspension, or similar acts of serious discipline, would trigger 

the Pasula-Robinette analysis, whereby the Secretary would need to prove all of the elements 

mentioned previously: protected activity, adverse action, and discriminatory motivation. Then, 

not only may an operator rebut the Secretary’s prima facie case and prevail by establishing nondiscriminatory motives for its actions, but it may even avoid liability in spite of discriminatory 

motives through an affirmative defense. Additionally, other acts of discipline or reprisal can also 

trigger the Pasula-Robinette analysis, provided that they satisfy the Burlington Northern

standard, which asks whether such actions are “harmful to the point that they could well dissuade 

a reasonable worker from [engaging in protected activity],” “depend[ing] upon the particular 

circumstances” surrounding the actions. Sec’y on behalf of Pendley v. Highland Mining Co., 34 

FMSHRC 1919, 1930-31 (Aug. 2012) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 

U.S. 53, 57 (2006)). This language closely resembles the Secretary’s proposed test for 

interference claims.13 However, the Burlington Northern test still fits within the PasulaRobinette framework, and therefore still requires proof of discriminatory motivation (along with 

protected activity) once an adverse action is established. 

 

In contrast, under the Secretary’s theory of section 105(c), alleging subtler acts of 

interference would trigger a far less demanding test, where the Secretary would no longer be 

required to prove any protected activity, adverse consequences for the complainant in his or her 

employment relationship, or improper motivation on the company’s part. Further, even if the 

                                                             13 The similarities between the Commission’s adverse action test and interference test are 

not coincidental. The “interference” analysis in Moses spawned two divergent lines of cases and 

culminated in these two related tests. One line of cases (Moses-Gray-Franks) treats 

“interference” as a separate cause of action, with a distinct framework for analysis. See Franks , 

36 FMSHRC 2088, 2103 n.22 (Young & Cohen, Comm’rs); id. at 2105-07 (Jordan & Nakamura, 

Comm’rs) (citing Gray, 27 FMSHRC at 8 n.6). Another line of cases (Moses-Hecla DayPendley) treats the “interference” analysis in Moses as a guide for deciding when actions other 

than “discharge” or “suspension” qualify as adverse actions for traditional discrimination claims. 

See Sec’y of Labor on behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847-48, 

1848 n.2 (Aug. 1984) (noting that when faced with actions outside of the “self-evident form[s] of 

adverse action, like discharge or suspension, . . . [the Commission] must examine closely the 

surrounding circumstances to determine the nature of this action.”) (citing Moses, 4 FMSHRC at 

1478); see also Pendley, 34 FMSHRC at 1930-31 (adopting the Burlington Northern adverse 

action test in large part due to its consistency with Moses and Hecla-Day). This has created, over 

time, no little confusion regarding exactly when the Gray-Franks interference test is appropriate 

and when the Hecla Day-Pendley discrimination test should be used instead. See, e.g., McNary v. 

Alcoa World Alumina, Inc., 37 FMSHRC 2205 (Sept. 2015) (ALJ) (currently on appeal over 

whether the ALJ erred in analyzing the interference claims under the Hecla Day-Pendley adverse 

action test instead of the Gray-Franks interference test.) 

38 FMSHRC Page 1452
operator established a motive unrelated to the exercise of protected rights, the company would 

then need to prove that its justification for its action was substantial, business-related, and that its 

importance outweighed the harm caused to the exercise of protected rights—additional hurdles 

not present in the Pasula-Robinette analysis. The lack of a substantial business justification 

whose importance outweighs the interests of the protected activity may provide circumstantial 

evidence that an operator’s proffered justification is merely pretextual. However, this is not the 

only factor or evidence that the court considers in evaluating an operator’s true motivation. The 

court cannot see how any allegation that satisfied the traditional discrimination requirements 

would not likewise satisfy all of the elements of the Secretary’s proposed interference test, 

whereas the reverse would not hold true in many instances. 

In effect, under the Secretary’s suggested test, the less severe of a disciplinary action that 

a complainant alleges, the lower the burden will be for establishing a section 105(c) violation. 

This could create a perverse incentive for a petitioner to recast every act of overt discrimination 

as one of the subtler forms of interference in order to obtain that lower burden, especially since 

many subtle acts that subject an employee to a detriment in his employment relationship may 

qualify as either acts of interference or adverse actions under the Burlington Northern standard. 

Additionally many overt acts of discipline alleged to be discriminatory are often preceded 

or accompanied by acts or statements that may otherwise tend to interfere with the exercise of 

protected rights. For example, in Franks, three out of five Commissioners disagreed with the 

ALJ’s finding that a company’s suspension of its miners constituted unlawful discrimination 

under section 105(c) of the Act, but the Commission nonetheless affirmed the ALJ’s ruling based 

in part on two Commissioners finding that the suspension and the company’s interviews with its 

miners leading up to the suspension interfered with their protected rights. Franks, 36 FMSHRC 

2088. The court is unclear as to whether the complainants could have alleged interference, and 

therefore could have prevailed as they ultimately did, absent the allegation of “subtler acts” of 

coercive interrogation preceding the suspension. If the answer is no, this creates a problematic 

incentive to allege coercive operator statements or other subtler acts of interference alongside 

every allegation of traditional discrimination.14 If the answer is yes, the court does not see why a 

complainant would ever again allege a suspension to be an act of discrimination, rather than an 

act of interference.    

6. The Court’s Interference Test 

Based on the foregoing, the court holds that to prove an allegation of illegal interference 

under section 105(c)(1), the Secretary must show that (1) the Respondent’s actions can be 

reasonably viewed, from the perspective of members of the protected class and under the totality 

                                                             14 The court recognizes that the alleged acts of interference preceding the suspension in 

Franks were serious and substantial. However, the plurality opinion finding interference did not 

specify that acts of interference must be any more serious and substantial than the acts that 

qualify as adverse actions under Burlington Northern. Were the Commission to provide 

clarification along those lines, the court would be less concerned about the potential for 

opportunistic pleading to avoid the additional hurdles of the Pasula-Robinette test. 

38 FMSHRC Page 1453
of the circumstances, as tending to interfere with the exercise of protected rights,15 and that (2) 

such actions were motivated by the exercise of protected rights.

16 

The respondent may rebut the Secretary’s prima facie case by showing that its actions did 

not tend to interfere with the exercise of protected rights or that the actions were in no part 

motivated by the miner's protected activity. 

If the operator is unable to rebut the miner's prima facie case, it may nevertheless defend 

itself affirmatively by demonstrating a legitimate and substantial reason whose importance 

outweighs the harm caused to the exercise of protected rights. 

IV. APPLICATION OF THE COURT’S INTERFERENCE TEST 

1. Actions Tended to Interfere with the Exercise of Protected Rights 

Section 103(g) protects the anonymity of miners in making safety complaints and 

encourages complaints when miners have “reasonable grounds to believe” that a violation exists. 

30 U.S.C. 813(g)(1). The court finds that Mindy Pepin engaged in protected activity when she 

filed an anonymous section 103(g) safety complaint with MSHA under a reasonable belief that a 

violation existed. The fact that the company’s procedures did not deal with the possibility of a 

false positive on the ThorGuard system, and that Pepin did not receive a response when she filed 

multiple Take 5 complaints within the company raising the issue, supports the reasonableness of 

Pepin’s belief. Tr. 58, 109-10, 118-19, 130-31. 

The court further finds that Hooper’s response to Pepin’s protected activity tended to 

interfere with the exercise of protected rights. The court finds Pepin’s account of the substance of 

her conversation with Tim Hooper in his office to be credible, and the statements Hooper made 

in that account would tend to instill within the mind of a reasonable person a fear of reprisal for 

exercising protected activity. 

                                                             15 By focusing on the tendency to interfere with protected activity, the court adopts the 

Secretary’s position that “it is not necessary to show that a miner has been actually prevented or 

deterred from exercising rights.” Sec’y Br. 12. Further, the court’s interference test does not 

focus on the type of employer decisions that necessarily subject a miner to an actual detriment in 

his or her employment relationship, such as discharge, suspension, or demotion. Thus, statements 

that could reasonably chill the exercise of protected rights may qualify as acts of interference 

even if the exercise of those rights has not been chilled and the particular complainant in a 

proceeding has suffered no detriment in his or her employment relationship. 

16 The court notes that while the Pasula-Robinette test prohibits retaliation against the 

complainant’s actual, attempted, or suspected exercise of protected rights, the Secretary has 

urged the Commission to adopt an interference test that encompasses attempts to chill the 

exercise of rights going forward without any showing of protected activity. See, e.g., Sec’y of 

Labor, on behalf of McGary v. The Marshall County Coal Co., 37 FMSHRC 2597 (Nov. 2015) 

(ALJ). The court takes no position on this issue, as the instant matter involves the actual exercise 

of protected activity. 

38 FMSHRC Page 1454
Unlike acts that the Commission has previously found to constitute interference, this 

matter does not involve persistent questioning over the course of multiple interactions, explicit 

threats, or attempts to isolate the complainant in an inherently coercive one on one setting. 

However, this matter does involve implicit threats of reprisal and intimidating behavior by a 

supervisor, which the Commission has noted takes on special significance given the supervisor’s 

“ability to impact the employment relationship of [the complainant].” Gray, 27 FMSHRC at 8. 

Hooper’s accusations that Pepin was using safety complaints to bottleneck production and that 

Pepin and Chad Filizetti were the ringleaders of a bottlenecking operation are examples of 

intimidating language directed against the exercise of protected rights. Tr. 35, 37, 66-68. His 

statement that his superiors in the back office were watching Pepin can also be reasonably 

viewed as a threat of reprisal or of employment discrimination. Tr. 37, 75-76. 

 In regard to the ready room incident, the court first notes that Hooper’s decision to hand 

Pepin the results of the MSHA investigation might not be reasonably viewed as tending to 

interfere with the exercise of protected rights when taken in isolation. Rather, the decision could 

be viewed as a reasonable response to the concerns on Pepin’s Take 5 cards. However, under the 

totality of the circumstances, given Hooper’s subsequent statements in his office (“We all knew 

it was you that called MSHA,” and “Do you know how many people I had to pull off of 

equipment to go in for your interview?”), the court’s finding that Hooper’s actions tended to 

interfere with protected rights encompasses the events in the ready room as well.17 Tr. 34-35. 

The company argues that Hooper’s alleged acts of interference within his office would 

have never occurred had Pepin not followed him in there and instigated a confrontation. Resp’t 

Br. 28, 31. The court agrees with this assessment. The company also argues that Pepin’s 

behavior during the meeting was likely much more “agitated” and “challenging” than how she 

portrayed it in her testimony, given other witnesses’ descriptions of her normal behavior, while 

Hooper’s demeanor was likely less “threatening.” Resp’t Br. 29-30. Be that as it may, Hooper’s 

statements were sufficiently threatening in context that Hooper’s and Pepin’s respective 

demeanors and the alleged provocation for the statements are not decisive factors in the court’s 

analysis of their tendency to interfere with protected rights. 

 

The Secretary alleges that Hooper’s statements to Filizetti, privately, and to Hooper’s 

crew during a toolbox meeting with Pepin out of the room also affected other miners. Sec’y Br. 

15. Whether actions directed wholly toward miners other than the complainant are relevant to 

that complainant’s interference claim need not be decided at this juncture, as the court does not 

find that those statements or activities tended to interfere with protected rights regardless. 

There is some discrepancy between Hooper and Filizetti about whether Hooper discussed 

the company’s falling stock prices and financial condition in the toolbox meeting with the entire 

crew or only in the private conversation between the two of them after Pepin left Hooper’s 

                                                             17 The court however does not agree with the Secretary that Hooper’s actions interfered 

with the rights of others seated in the ready room at the time. Sec’y Br. at 15. Hooper did not 

publicize his message for Pepin to anyone else in the room, and there is insufficient evidence in 

the record to find that anyone else in the room knew or could have known what Hooper’s actions 

meant. Tr. 57. 

38 FMSHRC Page 1455
office. Tr. 77, 144, 153. Although both witnesses had difficulties with their recollection in their 

testimony, the court credits Hooper’s testimony that he only discussed falling stock prices with 

Filizetti in his office, and only because Filizetti had expressed interest in the subject previously. 

Tr. 153. Given this context that Filizetti would have understood, the court does not find that this 

statement would tend to interfere with Filizetti’s protected activity, or Pepin’s protected activity 

indirectly. 

 

Similarly, the court does not find that the presentation of MSHA’s negative findings in 

Hooper’s toolbox meeting constituted interference. The court credits Keranen’s and Baril’s 

testimony that the company often communicated MSHA negative findings with the crew during 

toolbox meetings. Tr. 124, 171. While Hooper himself may not have presented negative findings 

in a toolbox meeting prior to this incident, a reasonable person at the mine listening to the 

presentation would not necessarily draw an inference that Hooper was motivated by animus 

toward Pepin, since Hooper did not mention Pepin at the time nor use the findings to discourage 

safety complaints. Tr. 148-49. 

In summary, the court finds that Hooper’s statements to Pepin in his office and his 

decision to hand Pepin MSHA’s negative findings from her 103(g) complaint tended to interfere 

with her exercise of protected rights, because they carried with them implicit threats of reprisal. 

However, the court does not find that Hooper’s statements to Filizetti in private or to the crew 

during his toolbox meeting violated section 105(c) of the Act, because under the totality of 

circumstances a reasonable person in the miners’ positions would not interpret them as threats or 

hostile gestures. 

2. Actions Were Motivated by the Exercise of Protected Rights 

With traditional discrimination claims, a complainant will often have to rely on 

circumstantial evidence in order to prove that an adverse action was motivated by protected 

activity, since “direct evidence of motivation is rarely encountered.” Sec'y of Labor on behalf of 

Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev. on other grounds sub 

nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The Commission has 

clarified that circumstantial evidence may include: (1) knowledge of protected activity, (2) 

hostility or animus toward the protected activity, (3) coincidence in time between the protected 

activity and the adverse actions and (4) disparate treatment. Chacon, 3 FMSHRC at 2510. The 

court finds such evidence to be equally useful in analyzing whether the actions that give rise to 

an interference claim were intended to interfere with protected activity. 

The court first finds that Hooper had at least a strong suspicion that Pepin had filed a 

103(g) MSHA complaint based on his knowledge that she had filed nearly identical Take 5 

safety complaints within the company. Tr. 147. While Hooper could not be sure that the MSHA 

complaint came from Pepin (rather than a United Steelworkers safety committee member), he 

admitted that the thought crossed his mind, and his supervisor Joe Garnsey admitted that he 

assumed she had. Tr. 150; Resp’t Ex. 19 at 11-16. 

Hooper also expressed hostility and animus toward the protected activity both in his 

statements to Pepin in his office and at the hearing during cross-examination. Several of 

38 FMSHRC Page 1456
Hooper’s statements that form the basis of Pepin’s interference claim also provide evidence of 

Hooper’s hostility toward protected activity. These include accusing Pepin of using safety 

complaints to bottleneck production and expressing significant frustration at having to pull 

miners away from production to participate in the MSHA investigation. Tr. 34-5, 37, 66-68. At 

hearing, Hooper also complained about frivolous complaints to MSHA, and suggested that all 

complaints should go through the company or safety committee first in order to determine 

whether or not they are frivolous. Tr. 151. The court finds these statements also indicate animus 

and hostility toward 103(g) complaints and those who make them, in this case Pepin. 

The coincidence in time between Pepin’s protected activity and the alleged interference is 

a less relevant factor in this analysis, since the company contends that the alleged interference 

was a response to Pepin’s Take 5 complaints, which were filed contemporaneously with her 

103(g) MSHA complaint. Tr. 136-37. Additionally, there may have been disparate treatment in 

the way the company responded to Pepin’s Take 5 complaints by using MSHA negative 

findings, as there is sufficient evidence to suggest that the company did not normally respond to 

employees about their Take 5 complaints at all. Tr. 58-59. However, this disparate treatment can 

be explained by the persistence with which Pepin raised concerns about the ThorGuard issue. Tr. 

135-36. 

There are two additional considerations for the court in this matter. First, the heart of 

Pepin’s interference claims is contained in her confrontation with Hooper in his office. That 

confrontation never would have happened if she had not followed him into his office. Second, 

Hooper’s temper, Pepin’s adamant questioning, and past disciplinary “run-ins” between the two 

likely contributed to Hooper’s outbursts during the meeting. 

Taken together, these findings lead to the conclusion that the proven acts of interference 

in the proceeding were not premeditated. However, the court concludes that they were motivated 

by Hooper’s animus toward Pepin’s exercise of protected rights, which boiled to the surface 

during a heated exchange, and they were intended in that moment to deter Pepin from filing 

safety complaints with MSHA in the future. The court finds this sufficient to establish intent to 

interfere with protected activity. 

3. Actions Had No Legitimate and Substantial Business Justification 

The court finds that Hooper could not have had any legitimate business justification for 

the statements he made to Pepin in his office and that his proffered rationale for presenting Pepin 

with the MSHA negative findings was not narrowly tailored to achieve the company’s interests 

of adequately responding to Pepin’s Take 5 complaints without doing undue harm to her right to 

make anonymous safety complaints with MSHA. Empire Iron could have achieved the same 

purpose by simply explaining the findings of its own investigation to Pepin after she filed her 

Take 5 cards. Alternatively, the company could have posted the MSHA negative findings in the 

ready room as it normally did. Tr. 57. This approach would have protected Pepin’s anonymity 

and would not have created the perception that she was being singled out for reprisal because she 

exercised her 103(g) rights.

 

38 FMSHRC Page 1457
V. REMEDIES 

1. Civil Penalty 

 The court has found a violation and it must assess a civil penalty taking into account the 

statutory civil penalty criteria, including the size of the operator, its history of previous 

violations, the effect of the penalty on the operator’s ability to continue in business, the 

operator’s negligence, the gravity of the violation, and the demonstrated good faith of the 

operator in attempting to achieve rapid compliance after notification of a violation. 30 U.S.C. § 

820(i). 

 The Secretary has proposed a $20,000.00 civil penalty. The Secretary relies primarily on 

the “high negligence” and “substantial” gravity of Hooper’s conduct in justifying the penalty. 

Sec’y Br. 18. Empire Iron argues that the Secretary’s assessment lacks evidentiary foundation 

and that the company evidenced no animus toward protected activity. Resp’t Br. 33, 35. 

 

 The court first notes that the parties stipulated to the fact that Empire Mine is large and 

that the assessed penalty would not impact the mine’s ability to continue in business. Stip. 5, 18. 

Additionally, the mine’s history of assessed violations admitted into evidence showed no history 

of 105(c) violations. Sec’y Ex. 7. 

 In regard to the company’s negligence, the court has found that Hooper intentionally 

interfered with Pepin’s protected rights. This intent establishes an elevated level of negligence, 

and that intent is imputed to the company. However, the court has also found that Hooper’s 

interference was not premeditated. Additionally, there was scant evidence at hearing, outside of 

Hooper’s own comments during his confrontation with Pepin, that other officials at the company 

displayed animus toward Pepin’s protected activity or that backroom management officials were 

actually watching Pepin and plotting reprisal as Hooper claimed. Hooper’s interference did not 

reflect a concerted effort by multiple agents of Empire Iron to interfere with Pepin’s protected 

rights.18 Indeed, one of those backroom officials Hooper referenced was Keranen, a childhood 

friend of Pepin’s, who gave serious attention to her complaints regarding Hooper and offered to 

formally investigate her allegations against him – which the court also considers a good faith 

effort to remedy the violation. Tr. 169-70, 174; Resp’t Ex. 5. These factors mitigate Empire 

Iron’s level of negligence. 

 The court finds that the gravity of the violation was serious. The right to make 

anonymous safety complaints to MSHA is an important and necessary one. Therefore, the 

expression of animus toward those rights and efforts to chill their exercise must not be tolerated. 

                                                             18 The court observes that this factor may often distinguish interference from 

discrimination claims. The adverse actions in a typical discrimination proceeding, including 

discharge and suspension, often require multiple agents to sign off on the decision giving rise to 

a cause of action and therefore tend to reflect a level of deliberation and coordination (or at least 

a systemic failure of oversight and supervision) that may not be present in an interference case 

stemming from the words of a single supervisor in the heat of the moment. The court believes 

that the civil penalties in these matters should reflect this distinction. 

38 FMSHRC Page 1458
However, different actions have varying degrees of chilling effect on the exercise of rights. An 

oral confrontation where a supervisor expresses animus regarding a miner’s exercise of protected 

rights may not have the same effect as a discharge or suspension or even an overt threat of 

dismissal. As indicated earlier, the Secretary did not allege persistent questioning over multiple 

interactions, explicit threats, or attempts to isolate the complainant in an inherently coercive one 

on one setting. The record also does not indicate that Hooper’s actions have had any effect on the 

filing of MSHA safety complaints, which the court finds slightly relevant for its gravity 

determination. Resp’t Ex. 17. Furthermore, the court has found that Hooper did not widely 

publicize his hostility regarding Pepin’s protected activity, which limited the number of persons 

affected by his act of interference. Consequently, the court finds the gravity of the violation to be 

lower than alleged. 

 Given these findings, the court assesses a civil penalty of $8,000.00 for the violation. 

2. Other Relief Requested 

 As Pepin was not terminated, suspended, or officially disciplined, there is no back pay 

owed. Pepin instead seeks unspecified compensation for pain, suffering, and emotional distress 

caused by the company’s interference. The Secretary acknowledges that the “Commission has 

never specifically decided whether emotional distress damages may be awarded under the Act.” 

Sec’y Br. 16. And, the complainant acknowledged that she did not seek or incur expenses for 

treatment or medication related to her distress. Tr. 58. However, the Secretary argues that 

emotional distress damages are nonetheless necessary to fulfill the Act’s remedial purpose of 

making the complaining party whole. Sec’y Br. 16. 

 The court expresses no opinion as to whether emotional distress damages may ever be 

awarded under the Act, absent any concrete injury or financial loss, but finds that this case does 

not present the sort of exceptional circumstances that might merit such an award. Pepin may 

have been justifiably upset by her encounter with Hooper, but being upset by workplace disputes 

is part and parcel of the workplace experience, and there is nothing in the record to indicate her 

encounter with Hooper caused her to seek medical and/or psychological assistance, or that it 

interfered with her normal daily activities. Pepin also alleged that the violation had strained her 

relationship with her fiancé, Chad Filizetti, and caused them to break their engagement. 

However, Pepin and Filizetti were again engaged at the time of the hearing. Tr. 33, 46, 55-56, 87. 

Given these facts, the court denies the request for emotional distress damages. 

 In regard to the Secretary’s request for Empire Iron to have its Mine Superintendent (a 

position that the company alleges does not exist at its mine) read a notice to all miners at Empire 

Mine acknowledging the violation and reiterating miners’ rights, the court deems it sufficient for 

deterrence purposes to order the company to post a notice to that effect to the mine bulletin 

board, for a period of one year. 

ORDER 

 Based on the above, the court finds that Respondent violated section 105(c) of the Act by 

unlawfully interfering with the protected activity of Pepin. It is hereby ORDERED that Empire 

38 FMSHRC Page 1459
Iron cease and desist from the unlawful interference that forms the basis of the interference 

violation. It is further ORDERED that within 30 days of the date of this decision Empire Iron 

post on the mine bulletin board, for a period of one year, a written notice stating that: (1) a 

section 105(c) complaint was filed against Empire Iron based on the above-described conduct; 

(2) Empire Iron has been found to violate section 105(c); (3) miners have a protected right to 

communicate safety and health concerns to Empire Iron management; (4) miners have the 

protected right to confidentially and independently communicate safety and health concerns to 

MSHA; and (5) mine management will not interfere with or engage in discrimination based on 

the exercise of those protected rights. Finally, within 30 days of the date of this decision, 

Respondent is hereby ORDERED to pay a civil penalty of $8,000.00.19

/s/ David F. Barbour 

David F. Barbour 

 Administrative Law Judge 

Distribution: 

Suzanne F. Dunne, Esq., U.S. Department of Labor, Office of the Solicitor, 230 S. Dearborn 

Street, 8th Flr., Chicago, Illinois 60604 

 

R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, 401 Liberty Ave., Suite 

1500, Pittsburgh, Pennsylvania 15222 

Mindy S. Pepin, 1545 South Westwood Circle, Ishpeming, MI 49849

/rd 

                                                             19 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.

38 FMSHRC Page 1460
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH ST., SUITE 443 

DENVER, CO 80202-2500 

OFFICE: (303) 844-5266/FAX: (303) 844-5268 

June 9, 2016 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), Docket No. WEST 2015-856 

Petitioner, A.C. No. 04-05038-384525

v. 

SUTTER GOLD MINING COMPANY, 

Respondent. Mine: Lincoln Mine Project 

DECISION AND ORDER 

Appearances: Daniel Brechbuhl, United States Department of Labor, Office of the 

Solicitor, Denver, CO, for Petitioner; 

Katie Jeremiah, Jordan Ramis, PC, Lake Oswego, OR, for Respondent. 

Before: Judge Miller 

This case is before me upon a petition for assessment of a civil penalty filed by the 

Secretary of Labor pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 815(d) (“the Act”). This docket involves four citations issued pursuant to 

Section 104(a) of the Mine Act with proposed penalties totaling $6,406.00. The parties presented 

testimony and evidence regarding these citations at a hearing held in Sacramento, California, on 

May 4, 2016. Based upon the parties’ stipulations, my review of the entire record, my 

observation of the demeanors of the witnesses, and consideration of the parties’ legal arguments, 

I make the following findings and order. 

I. MSHA’S INSPECTION

The Lincoln Mine Project is an underground gold mine in Sutter Creek, California, 

operated by Sutter Gold Mining Company. At the time of the inspection in March 2015, the 

Lincoln Mine Project was non-producing but was being maintained for future production. This 

involved operating an underground water treatment facility and maintaining escapeways. On the 

date of the inspection, only one employee of Sutter Gold was working at the mine. The previous 

two days, several contractors had been working at the mine doing safety inspections and 

maintenance. The parties have stipulated that Sutter Gold is an “operator” as defined in Section 

3(d) of the Mine Act, 30 U.S.C. § 803(d), and is subject to the jurisdiction of the Commission. Jt. 

Stips. ¶¶ c, d. 

38 FMSHRC Page 1461
On March 4, 2015, Inspector Kimberly Hakala traveled to the Lincoln Mine Project to 

conduct a general inspection. Hakala has been a mine inspector for approximately four years and 

has conducted hundreds of inspections of underground mines. Prior to becoming a mine 

inspector, she worked for seven years at a family-owned gypsum mine, including as a safety 

representative who accompanied mine inspectors. 

Upon arriving at the mine, Inspector Hakala went into the mine’s office and asked to see 

the person in charge. She was directed to Pat Carney, a consultant at the mine. Hakala recalled 

that on her last visit to the mine, Carney had been identified as a supervisor or foreman. Carney 

escorted Hakala underground to conduct the inspection. David Cochrane, Vice President for 

Environment, Health, and Safety at the mine, arrived at 10 a.m., after Carney and Hakala had 

begun the inspection. Cochrane attempted to reach Carney and Hakala when he arrived, but 

could not. Instead, he met with Hakala when she returned from underground to discuss the 

citations she had issued and advised her that Carney was a contractor and did not have the 

authority to act on behalf of the company. Cochrane did not ask to revisit any underground areas 

with Hakala. 

Sutter Gold argues that its walk-around rights were violated when Hakala conducted the 

inspection accompanied by Carney, a contractor, instead of Cochrane. Section 103(f) of the Mine 

Act requires that “a representative of the operator and a representative authorized by his miners 

shall be given an opportunity to accompany the Secretary or his authorized representative during 

the physical inspection of any coal or other mine . . . .” 30 U.S.C. § 813(f). However, the Act 

specifies that “Compliance with this subsection shall not be a jurisdictional prerequisite to the 

enforcement of any provision of this Act.” Id. The Commission has explained that where an 

operator’s Section 103(f) rights are violated, “the judge is permitted to consider the effect of the 

improper denial of the operator's walkaround rights on the operator’s ability to present its case.” 

SCP Investments, LLC, 31 FMSHRC 821, 822 (Aug. 2009). 

At the outset, I find no problem with the actions of Inspector Hakala. She did not refuse 

to allow a representative to accompany her; rather, no one from management was present when 

she arrived at the mine. The inspector had met Carney on earlier inspections and was unaware 

that his position had changed from manager to consultant. She did everything she was required to 

do, including asking for the person in charge and going underground with someone who she 

thought, from previous experience, was management at the mine. Carney did nothing to indicate 

he was not in charge and accompanied her underground. Further, Carney was familiar with the 

mine and worked there regularly. I find no merit to Respondent’s argument that there was an 

improper denial of its right to have a representative accompany the inspector. 

II. PRINCIPLES OF LAW

A. Establishing a Violation

To prevail on a penalty petition, the Secretary bears the burden of proving an alleged 

violation by a preponderance of evidence. RAG Cumberland Res. Corp., 22 FMSHRC 1066, 

1070 (Sept. 2000), aff’d 272 F.3d 590 (D.C. Cir. 2001); Jim Walter Res., Inc., 9 FMSHRC 903, 

907 (May 1987). The Secretary may establish a violation by inference in certain situations, but 

only if the inference is “inherently reasonable” and there is “a rational connection between the 

38 FMSHRC Page 1462
evidentiary facts and the ultimate fact inferred.” Garden Creek Pocahontas Co., 11 FMSHRC 

2148, 2152-53 (Nov. 1989). 

B. Significant and Substantial

A “significant and substantial” (“S&S”) violation is described in Section 104(d)(1) of the 

Mine Act as a violation “of such nature as could significantly and substantially contribute to the 

cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(l). A 

violation is properly designated S&S “if based upon the particular facts surrounding that 

violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 

822, 825 (Apr. 1981). 

In Mathies Coal Co., the Commission established the standard for determining whether a 

violation is 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). 

The second element of the Mathies test must be evaluated with respect to specific 

conditions in the mine. See, e.g., McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1991-92 (Aug. 

2014) (finding that an accumulations violation contributed to a combustion hazard because of the 

extensiveness of the accumulations of coal, their highly combustible makeup, and the amount of 

methane liberated by the mine); Mathies, 6 FMSHRC at 4 (finding that a broken sander on a 

mantrip contributed to the hazard of a derailment or collision because of damp conditions at the 

mine and the steep route of the mantrip). With respect to the third element, the Commission has 

explained that the Secretary must “establish a reasonable likelihood that the hazard contributed 

to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 

1834, 1836 (Aug. 1984). The Commission has made clear that the “Secretary need not prove a 

reasonable likelihood that the violation itself will cause injury,” but rather that the hazard created 

would cause an injury. Musser Eng’g, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010); see also

Cumberland Coal Res., LP, 33 FMSHRC 2357, 2365 (Oct. 2011). Finally, the Commission has 

held that the S&S determination should be made assuming “continued normal mining 

operations.” McCoy, 36 FMSHRC at 1990-91.

C. Negligence

The Secretary’s regulations categorize negligence into five categories, from “no 

negligence” to “reckless disregard.” 30 C.F.R. § 100.3, Table X. The Commission has 

emphasized, however, that these regulations apply to the Secretary’s proposal of penalties only, 

38 FMSHRC Page 1463
and are not binding on the Commission. Brody Mining, LLC, 37 FMSHRC 1687, 1701 (Aug. 

2015). The Commission instead directs its judges to “evaluate negligence from the starting point 

of a traditional negligence analysis . . . . Under such an analysis, an operator is negligent if it fails 

to meet the requisite standard of care—a standard of care that is high under the Mine Act.” 

Brody, 37 FMSHRC at 1702. In evaluating an operator’s negligence, the judge should consider 

“what actions would have been taken under the same circumstances by a reasonably prudent 

person familiar with the mining industry, the relevant facts, and the protective purpose of the 

regulation.” Jim Walter Res., 36 FMSHRC 1972, 1975 (Aug. 2014). 

While the Secretary’s regulations focus on the presence or absence of mitigating 

circumstances in determining the level of negligence, 30 C.F.R. § 100.3, the Commission has 

indicated that Commission judges are not limited to this analysis and “may find ‘high 

negligence’ in spite of mitigating circumstances or may find ‘moderate’ negligence without 

identifying mitigating circumstances.” Brody, 37 FMSHRC at 1702-03. High negligence is 

characterized by “an aggravated lack of care that is more than ordinary negligence.” Id. at 1703. 

III. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The findings of fact detailed below are based on the record as a whole and my careful 

observation of the witnesses during their testimony. My credibility determinations are based in 

part on my close observation of the witnesses’ demeanors and voice intonations. In resolving any 

conflicts in testimony, I have taken into consideration the interests of the witnesses, 

corroboration or the lack thereof, and consistencies and inconsistencies in each witness’s 

testimony and among the testimonies of the various witnesses. Any failure to provide detail on 

each witness’s testimony in this decision should not be deemed a failure on my part to have fully 

considered it. The fact that some evidence is not discussed does not indicate that it was not 

considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000). 

A. Citation No. 8873031 

Citations 8873031, 8873032, and 8873033 relate to the water treatment area of the mine. 

The treatment area is accessed regularly for maintenance, and miners had been working there the 

day prior to the inspection. 

Inspector Hakala testified that as she entered the water treatment area, she observed 

material on the ground and timbers being used to support the roof. Carney informed her that 

some material had recently fallen from the roof, and miners had scaled the area and added the 

timbers as additional support. He informed her that the timbers were a temporary fix until the 

condition could be properly addressed. Hakala conducted a visual inspection of the area and 

observed a fracture in the rock. She thus determined that a fall of material hazard existed. She 

did not sound the material, however, and testified that the timbers were stable and in good 

condition. 

The mine’s witnesses disputed Carney’s assertion that a fall of materials had occurred in 

the area. Cole McGowan had gone to the water treatment area to check ground conditions in 

February 2015. He testified that he had been sent to check the area not because of a recent fall, 

38 FMSHRC Page 1464
but rather in preparation for electricians to work there. McGowan had scaled the area, but 

noticed some hollow-sounding rock that would not come down with a scaling bar. He thus 

suggested to Cochrane that they install timbers as extra support. McGowan stated that he did not 

believe that the hollow-sounding rock was in danger of falling, but wanted to provide extra 

support in case of vibrations during the upcoming electrical work. The timbers were installed on 

March 2 and 3. McGowan’s opinion was that the timbers had fixed the problem, and the area 

was safe. Cochrane testified that the rock in the area was of a strong type that was unlikely to 

fall. Inspector Hakala agreed that the rock was of a solid type. She admitted that she did not 

believe that there was an imminent danger of materials falling. 

Inspector Hakala cited the mine for a violation of 30 C.F.R. § 57.18002(c) based on the 

conditions in the water treatment area. Section 57.18002(c) requires that 

conditions that may present an imminent danger which are noted 

by the person conducting the [shift] examination shall be brought 

to the immediate attention of the operator who shall withdraw all 

persons from the area affected (except persons referred to in 

section 104(c) of the [Act]) until the danger is abated. 

30 C.F.R. § 57.18002(c). The persons referred to in Section 104(c) include 

(1) any person whose presence in such area is necessary, in the

judgment of the operator or an authorized representative of the

Secretary, to eliminate the condition described in the order; ... and

(4) any consultant to any of the foregoing.

30 U.S.C. § 814(c). 

The Secretary alleges that a fall of material hazard existed in the area, and thus that the 

mine should have withdrawn all persons from the area. While Carney told the inspector that an 

imminent danger existed in the area, the Secretary presented no further evidence to support that 

finding. The inspector admitted at hearing that she did not believe a rock was going to fall while 

she was in the water treatment plant. The mine’s witnesses all agreed that there may have been a 

“drummy” portion of the roof in the area, but that the timbers had been set as an extra precaution 

and that they had resolved the issue. 

I find that the Secretary has failed to prove that the ground conditions constituted an 

imminent danger, a necessary element of the standard. Accordingly, the citation is vacated. 

B. Citation No. 8873032

Citation No. 8873032 also relates to ground conditions in the water treatment area.

Inspector Hakala cited the mine for a violation of 30 C.F.R. § 57.3200, which provides: 

Ground conditions that create a hazard to persons shall be taken 

down or supported before other work or travel is permitted in the 

38 FMSHRC Page 1465
affected area. Until corrective work is completed, the area shall be 

posted with a warning against entry and, when left unattended, a 

barrier shall be installed to impede unauthorized entry. 

The Secretary alleges that no warning signs or barriers were posted to warn miners of the 

possibility of falling materials in the water treatment area. 

The mine’s witnesses testified that a chain with warning signs was ordinarily in place in 

front of the water treatment area. Inspector Hakala recalled seeing this chain on previous 

inspections. See Gov’t Ex. 2 at 8. However, it was not in place on the date of the inspection. The 

mine’s witnesses explained that this was because the mine had held an emergency drill at the end 

of the shift prior to the inspection, and because miners were required to leave their work stations 

immediately the chain had not been replaced it at the end of the shift. Inspector Hakala believed 

that even if the chain had been present, the mine should have had a sign specifically referring to 

hazardous ground. David Cochrane also testified that there is a barrier made of a rail and 55 

gallon drums several feet before the chain that impedes entry to the area. 

To prove a violation of § 57.3200, the Secretary must prove first that hazardous ground 

conditions were present, and second that the required warning signs or barriers were not 

provided. The Commission has stated that a number of factors should be considered in 

determining whether loose ground is present in a metal mine, including, but not limited to: “the 

results of sounding tests, the size of the drummy area, the presence of visible fractures and 

sloughed material, ‘popping’ and ‘snapping’ sounds in the ground, the presence, if any, of roof 

support, and the operating experience of the mine or any of its particular areas.” ASARCO, Inc., 

14 FMSHRC 941, 952 (June 1992); Amax Chem. Corp., 8 FMSHRC 1146, 1149 (Aug. 1986). In 

ASARCO, the Commission found that no violation had been proven where the area had been 

examined and tested, testimony indicated that ground conditions were not believed to be 

hazardous, scaling had been performed, there were no popping or snapping sounds, and the 

dolomite formation in the mine was stable. 14 FMSHRC at 952-53.

I find that the Secretary failed to present sufficient evidence of a ground condition 

creating a hazard in this area. The inspector based her conclusion that a hazard existed on a 

visual inspection and information provided by Carney that may not have been accurate. She did 

not conduct a sounding test and did not have reliable information about past roof falls. The area 

had been scaled and Cochrane testified that the rock in the area was stable. While miners had 

found that some rock in the area was hollow sounding, they had placed timbers to support it, and 

there was no evidence that those would not be effective at preventing rock from falling. Before 

the timbers were added, the chain with warning signs was in place to impede entry. For these 

reasons, I find that the Secretary did not meet his burden of proof. Therefore, I vacate the 

citation. 

C. Citation No. 8873033

While in the water treatment area, Inspector Hakala observed a number of electrical

panels used to power the water treatment equipment. The seven panels were hanging by chains 

and not secured to the ribs. Inspector Hakala testified that the panels were 480 volts, which is 

38 FMSHRC Page 1466
considered high voltage. The panels were energized when Hakala observed them. The chains 

holding the panels were meant to keep them off the floor and out of the water but at a reasonably 

accessible height, but Hakala did not believe that the chains were sufficient to hold the panels. 

She observed that an S-hook connecting a chain to the wall was pulling apart and away from the 

wall. Several links appeared stressed and one was cracked. She believed that this was an 

indication that the chains were holding too much weight or had been struck. She also observed 

that the panels swayed when touched. Given the small size of the area, she was concerned that 

the panels would hit someone if they were to fall. 

Cochrane pointed out that the chains were capable of holding 800 pounds and were 

connected to rock bolts, which were in turn connected to face plates. Cochrane believed that the 

chain mounting system was standard practice in many mines and was sufficient to support the 

weight of the panels. Randy Dutton, who had installed the panels, also testified that the chain 

mounting was a common practice in other mines. He believed that there was no chance that the 

panels would fall, and noted that blasting had occurred numerous times near the panels and they 

had not fallen. While there had been no blasting since the mine was put on non-producing status, 

the mine did not dispute or address the strength of the chains in the weakened condition observed 

by the inspector. 

Carney informed Inspector Hakala that Cal-OSHA had advised the mine to update the 

chain system on a previous inspection. Carney characterized the Cal-OSHA statement as a 

“warning,” but Cochrane described it as a “comment,” saying that Cal-OSHA was merely 

recommending that the mine update the system to conform to the changing practice in other 

mines of using a solid mount. The mine had attempted to hire someone to address the condition, 

but the person had not yet been available to do the work. The inspector understood that several 

people were going in and out of the water treatment area each week. She noted that it was a tight 

area where workers would be very close to the hanging panels. 

Inspector Hakala cited the mine for a violation of 30 C.F.R. § 57.12030, which requires 

that “When a potentially dangerous condition is found it shall be corrected before equipment or 

wiring is energized.” 

I credit the testimony of Inspector Hakala that there were defects in the chains that 

weakened their effectiveness. It was unclear from her testimony whether the damage to the 

chains was enough to contribute to a fall or whether some work or vibration was necessary to 

contribute to the failure of the chains. However, the panels were heavy and there was activity in 

the mine that could have loosened or weakened the chains further. I find that the Secretary has 

demonstrated a violation of the mandatory standard. Because the mine was aware of the 

condition based on the Cal-OSHA inspection but had hired someone to fix the panels, I affirm 

the Secretary’s moderate negligence assessment. 

 The Secretary alleges that the violation was reasonably likely to result in an injury 

causing lost workdays or restricted duty and that it was S&S. The Secretary has proven that a 

violation occurred, satisfying the first element of the Mathies test for S&S. 

38 FMSHRC Page 1467
To satisfy the second element, the Secretary must prove the existence of “a discrete 

safety hazard—that is, a measure of danger to safety—contributed to by the violation.” Mathies, 

6 FMSHRC at 3-4. Here, the inspector observed that the chain links supporting the electrical 

panels appeared stressed and the panels swayed when touched. She observed that one of the Shooks was pulling away from the wall and one of the chains had signs of cracks. The 

maintenance work in the area, such as scaling and setting timbers, could create a vibration that 

could cause the panels to fall. Given that the panels were heavy and the ability of the chains to 

hold their full weight was compromised, I find that the Secretary has demonstrated that the 

violation created a discrete safety hazard of the panels falling. The inspector observed that 

conditions in the area were tight and that miners would be in close proximity to the panels. The 

presence of timbers for roof support made it especially difficult to maneuver in the area. While 

there is some dispute as to how many people routinely worked in the area, it is clear that scaling 

had to be done and the water treatment area maintained, indicating that someone would be in the 

area two to three times each week. Such a person would likely be seriously injured if a panel 

were to fall. Therefore, I find the violation to be S&S. 

D. Citation No. 8873030 

In addition to inspecting the water treatment plant, the inspector and Carney traveled the 

secondary escapeway. Citation 8873030 concerns conditions in the secondary escapeway at the 

1100-1200 level. Carney told Inspector Hakala that the escapeway had been examined and the 

roof scaled on the day prior to the inspection. But Hakala observed loose and cracked material in 

a number of areas as she walked the escapeway, an indication to her that the roof had not been 

properly scaled. She believed the loose materials were obvious and should have been pried off 

before anyone traveled the escapeway. Some of the loose areas were as large as one and a half 

feet wide by two feet long. If these fell, they would be likely to cause fatal injury. While there 

were roof bolts in places, some of the loose materials were not near the bolts. The Secretary 

produced photographs showing the condition, though they were not particularly illustrative due 

to the dark conditions in the mine. Gov’t Ex. 4 at 4-10. Hakala did not conduct sounding tests 

and the roof was not making any sounds, but Carney tested an area with a bar and material fell. 

Hakala understood that miners did not regularly access the escapeway except for maintenance, 

but that they should be checking it every time they went underground, approximately two to 

three times per week. 

David Cochrane confirmed that scaling was done in the secondary escapeway on a 

monthly basis, and it had been done by an independent contractor the previous day. The 

contractor, Cole McGowan, testified that he and another contractor had spent two days scaling 

the secondary escapeway. Cochrane had not inspected the area because of the safety drill the 

previous day, but McGowan had told him he had finished. McGowan testified that he had 

performed the scaling thoroughly, taking down any loose ground with a scaling bar. He stated 

that no material was falling or obvious, but that he did bring some material down. He also 

brought down any material that sounded drummy, even if it was not loose. He stated that 

typically he moved the material brought down during scaling to the side, but could not 

completely remove it because of the difficulty of getting the appropriate equipment into the area. 

Cochrane and Dutton testified that hard hats would be worn in the area, and any materials that 

would have fallen would not have been large enough to injure someone. 

38 FMSHRC Page 1468
Cochrane testified that when McGowan scaled the area to abate the citation, he was able 

to bring down only a few pieces, none bigger than egg size. Randy Dutton, who also assisted 

with the scaling, stated that the only pieces large enough to hurt someone were low on the ribs. 

Inspector Hakala was not present for the termination, but believed that large pieces were brought 

down. The termination photos show a few large pieces, though it is unclear whether they were 

brought down from the roof or the ribs.1 See, e.g., Gov’t Ex. 4 at 12, 17. It is also possible that 

the pieces were brought down in prior scaling, given that the area had not been cleaned in over a 

year. 

Inspector Hakala issued Citation No. 8873030 based on the conditions in the secondary 

escapeway. The Secretary alleges a violation of 30 C.F.R. § 57.3200, which requires that: 

Ground conditions that create a hazard to persons shall be taken 

down or supported before other work or travel is permitted in the 

affected area. Until corrective work is completed, the area shall be 

posted with a warning against entry and, when left unattended, a 

barrier shall be installed to impede unauthorized entry. 

As stated with regard to Citation No. 8873032, the Commission has stated that a number of 

factors should be considered in determining whether loose ground is present, including, but not 

limited to: “the results of sounding tests, the size of the drummy area, the presence of visible 

fractures and sloughed material, ‘popping’ and ‘snapping’ sounds in the ground, the presence, if 

any, of roof support, and the operating experience of the mine or any of its particular areas.” 

ASARCO, Inc., 14 FMSHRC at 952; Amax, 8 FMSHRC at 1149. 

McGowan and the inspector walked the secondary escapeway a day apart, but had 

differing views of the roof conditions. McGowan believed he had thoroughly scaled the area just 

prior to the inspection, whereas Hakala saw roof problems including cracks and loose material in 

a number of areas. McGowan admitted that it was possible for the ground material to have 

shifted overnight. In any case, I credit the inspector’s testimony with regard to the roof 

conditions. While she did not conduct sounding tests or observe popping or snapping sounds, she 

noticed cracks and loose material. There were roof bolts in the area, but some loose areas were 

not captured by the bolts. Accordingly, I find that there was a ground hazard as alleged by the 

Secretary. Because there was no barrier or warning sign in the area, the condition was in 

violation of § 57.3200. 

The Secretary alleges that the violation was the result of moderate negligence. Because 

the area had been recently scaled, I agree that the negligence was moderate. 

1

 Respondent argues that evidence of termination should not be admitted because it 

constitutes evidence of subsequent remedial measures, which is inadmissible as proof of 

culpability under Federal Rule of Evidence 407. However, the policy behind the Federal Rule is 

to avoid discouraging safe conduct after an accident. That policy is inapplicable here, where 

abatement of the alleged violation is required by statute. See 30 U.S.C. § 814(b). Accordingly, I 

find that evidence of abatement measures is admissible, but I do not rely on it as evidence of the 

violation. 

38 FMSHRC Page 1469
The Secretary alleges that the violation was reasonably likely to result in a fatal injury 

and was S&S. Respondent offered evidence that miners would be wearing hard hats and any 

material that fell would be small and therefore would not injure a miner. However, Hakala 

observed loose materials that were large enough to injure or kill a person if they fell. While the 

loose materials were only in some areas of the escapeway, given that miners travelled the area, it 

was reasonably likely that a fall would injure a miner. 

Applying the Mathies test to this citation, the Secretary has proven that a violation 

occurred. The inspector observed fractures and loose materials, which indicate that the hazard of 

falling material was present, satisfying the second Mathies element. Some of the loose rocks 

were large and miners were frequently in the area. Even though some of the loose rocks were 

small, a small falling rock could still cause serious injury to a miner, even one wearing a hard 

hat. See Springfield Underground, Inc., 17 FMSHRC 613, 620 (Apr. 1995) (ALJ) (upholding 

S&S for violation of § 57.3200 where only fist-sized rocks were brought down in abatement, 

because those could still seriously hurt someone). I find that a fall of materials would be likely to 

cause serious injury, satisfying the third and fourth elements. Accordingly, the citation was 

properly designated S&S. 

IV. PENALTY 

The principles governing the authority of Commission Administrative Law Judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties 

provided in [the] Act.” 30 U.S.C. § 820(i). The duty of proposing penalties is delegated to the 

Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it 

intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 

C.F.R. § 2700.28. The Act requires that in assessing civil monetary penalties, the judge must 

consider six statutory penalty criteria: the operator’s history of violations, its size, whether the 

operator was negligent, the effect on the operator’s ability to continue in business, the gravity of 

the violation, and whether the violation was abated in good faith. 30 U.S.C. § 820(i). In keeping 

with this statutory requirement, the Commission has held that judges must make findings of fact 

on the statutory penalty criteria. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd, 

736 F.2d 1147, 1152 (7th Cir. 1984). Once these findings have been made, a judge’s penalty 

assessment for a particular violation is an exercise of discretion “bounded by proper 

consideration of the statutory criteria and the deterrent purposes underlying the Act’s penalty 

scheme.” Id. at 294; see also Cantera Green, 22 FMSHRC 616, 620 (May 2000). 

The Secretary has proposed a penalty of $243.00 for Citation No. 8873033, the violation 

related to the electrical boxes and a penalty of $807.00 for Citation No. 8873030, the violation 

related to hazardous ground conditions in the escapeway. Sutter Gold is a small operator for 

purposes of penalty calculations. The Secretary introduced the mine’s history of violations, 

which shows that the mine had two violations in the year prior to the inspection at issue. Gov’t 

Ex. 7. With regard to the two violations at issue, the Secretary has proven that the operator was 

moderately negligent and the violations were reasonably likely to cause serious injury. The 

parties have stipulated that the operator demonstrated good faith in abating the violations. Jt. 

Stips. ¶ f. No evidence was presented that the proposed penalties would affect the operator’s 

38 FMSHRC Page 1470
ability to continue in business. Accordingly, I find that a penalty of $500.00 is appropriate for 

Citation No. 8873033 and because the violation was extensive, I find that a penalty of $1,000.00 

is appropriate for Citation No. 8873030. 

V. ORDER 

Respondent is hereby ORDERED to pay the Secretary of Labor the sum of $1,500.00 

within 30 days of the date of this decision. 

/s/ Margaret A. Miller 

Margaret A. Miller 

Administrative Law Judge 

Distribution: (U.S. First Class Certified Mail) 

Daniel Brechbuhl, Office of the Solicitor, U.S. Department of Labor, Cesar E. Chavez Memorial 

Building, 1244 Speer Boulevard, Suite 216, Denver, CO 80204 

Katie Jeremiah, Jordan Ramis, PC, Two Centerpointe Drive, 6th Floor, Lake Oswego, OR 97035 

38 FMSHRC Page 1471
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE NW, SUITE 520N 

WASHINGTON, D.C. 20004

June 10, 2016 

AMENDED DECISION 

Appearances: Jan M. Coplick, Esq., Seema N. Patel, Esq., U.S. Department of Labor, 

Office of the Solicitor, San Francisco, California, for Petitioner; 

Michael M. Miller, President, Original Sixteen to One Mine, Inc., 

Alleghany, California, for Respondent. 

Before: Judge Bulluck 

This Amended Decision CORRECTS the proposed penalty figures as follows: page 2 – 

the introductory paragraph, line 5 and footnote 1, line 3; page 34 – Penalties section, paragraph 

1, line 1. 

These cases are before me upon Petitions for Assessment of Civil Penalty filed by the 

Secretary of Labor (“Secretary”) on behalf of the Mine Safety and Health Administration 

(“MSHA”) against Original Sixteen to One Mine, Incorporated (“Original Sixteen”), pursuant to 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ORIGINAL SIXTEEN TO ONE MINE, 

INCORPORATED, 

 Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 2012-1022-M 

AC No. 04-01299-289667 

Docket No. WEST 2013-321-M 

AC No. 04-01299-306795-01 

Docket No. WEST 2013-322-M 

AC No. 04-01299-306795-02 

Docket No. WEST 2013-323-M 

AC No. 04-01299-306795-03 

Docket No. WEST 2013-365-M 

AC No. 04-01299-309234 

Docket No. WEST 2013-486-M 

AC No. 04-01299-311898 

Mine: Sixteen to One Mine 

38 FMSHRC Page 1472
section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Act”), 30 U.S.C. § 815(d). 

The Secretary seeks a total penalty of $10,141.00 for 29 alleged violations of his mandatory 

safety standards.1

 

 A hearing was held in Nevada City, California.2 The following issues are before me: (1) 

whether Original Sixteen violated the cited standards; (2) whether the violations were significant 

and substantial, where alleged; (3) whether the violations were attributable to the level of 

negligence alleged; and (4) whether the violations were attributable to unwarrantable failures to 

comply with the cited standards, where alleged. 

I. STIPULATIONS 

The parties stipulated as follows: 

1. Original Sixteen to One Mine, Incorporated, is the owner and operator of 

the Sixteen to One Mine (hereafter “the mine”), MSHA I.D. No. 0401299. 

2. The mine is an underground gold mine located near Alleghany, California. 

3. The subject citations were properly served by a representative of the 

Secretary upon an agent of Respondent on the date and place stated 

therein, and may be admitted into evidence for the purpose of establishing 

their issuance and not for the truthfulness or relevancy, if any, of the 

statements asserted therein. 

4. The exhibits to be offered by Respondent and the Secretary are stipulated 

to be authentic, but no stipulation is made as to their relevance or the truth 

of the matters asserted therein. 

5. Photocopies of the parties’ exhibits are presumed to be accurate copies of 

the originals. 

6. Documents pertaining to violations and quarterly production that are 

downloaded from MSHA’s on-line Data Retrieval System at MSHA.gov 

are presumed to contain accurate information. 

 1

 The parties reached a settlement on 15 of the 29 contested citations/orders. The total 

civil penalty proposed for the 14 remaining citations/orders adjudicated in this proceeding is 

$7,843.00. 

2

 By my direction, a complete set of MSHA Inspectors William Edminister’s and Roshan 

Gulati’s field notes were provided by the Secretary and received in evidence as exhibits P-16 and 

P-17, respectively, post-hearing. See Tr. 540-43. 

38 FMSHRC Page 1473
7. Documents reflecting information downloaded from the Security and 

Exchange Commission’s on-line data retrieval system at SEC.gov are 

presumed to contain accurate information.3

 

Tr. 7-8. 

 For the reasons set forth below, I VACATE two citations; AFFIRM 10 citations and 2 

orders, as issued; and assess penalties against Respondent. 

II. FACTUAL BACKGROUND 

Original Sixteen operates the Sixteen to One mine, an underground gold mine in 

Alleghany, California. Jt. Stip. 1. Michael Miller is the President of Original Sixteen. 

Tr. 543-44. Michael Miller, his son Reid Miller, Joseph Sauer, and Aaron (Chico) Aguirre 

were working in the mine during the 2012 inspections at issue. Tr. 389, 475, 430-31. 

On March 20, 2012, William Edminister, an MSHA inspector since early 2009, 

conducted a regular inspection of the mine. Tr. 16, 19. He issued a citation to Original Sixteen 

for loose ground in the main haulageway. Ex. P-1A. Two days later, he returned to the mine and 

issued a citation for failure to maintain the 600 and 1000 level secondary escapeway in safe and 

travelable condition. Ex. P-2A. 

On September 18, 2012, Inspector Edminister, accompanied by MSHA Inspector David 

Blankenship, conducted another regular inspection of Sixteen to One and cited several 

conditions. Tr. 362-63. Edminister issued a citation for failure to maintain the 600 and 1000 level 

secondary escapeway in safe and travelable condition (Ex. P-4A); a withdrawal order concerning 

a miner working alone where hazardous ground conditions existed (Ex. P-5A); a withdrawal 

order for loose ground in the 21 Tunnel secondary escapeway (Ex. P-6A); and an order 

withdrawing miners from all underground areas of the mine for failure to maintain the 21 Tunnel 

secondary escapeway in safe and travelable condition (Ex. P-7A). He also issued citations for 

failure to barricade an unsafe area beyond the 800 station (Ex. P-8A); failure to take down 

hazardous material in an elevated ore chute (Ex. P-9A); failure to provide fire protection for 

timbered construction in the 21 Tunnel secondary escapeway portal (Ex. P-10A); failure to guard 

or insulate output terminals on a welder (Ex. P-11A); failure to clear dry vegetation in close 

proximity to the Upper Bench mine opening (Ex. P-12A); and failure to accurately depict mine 

openings on the mine map (Ex. P-14A). 

On October 10-11, 2012, MSHA Inspectors Roshan Gulati and Blankenship conducted a 

regular inspection of the mine. Tr. 320. Gulati issued citations for working in the face of the 

September 18 withdrawal order pertaining to the 21 Tunnel (Ex. P-3), and failing to repair a 

defect affecting the safety of an electric hoist in a timely manner (Ex. P-13A). 

 

 3

 No SEC documents were offered or received in evidence, and the only testimony 

relating to Original Sixteen’s filings with the SEC presumably bears on jurisdiction, which is not 

at issue in these proceedings. See Tr. 607-09. 

38 FMSHRC Page 1474
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

A. Citation No. 8612839 

Inspector Edminister issued 104(a) Citation No. 8612839 on March 20, 2012, alleging 

a violation of section 57.3200 that was “unlikely” to cause an injury that could reasonably be 

expected to be “fatal,” and was caused by Original Sixteen’s “moderate” negligence.4

 The 

“Condition or Practice” is described as follows: 

Loose ground was found approximately 1800 ft from the 800 Level Mine Portal 

along the main haulage way. There is large fractured rock overhead along the slip 

plain that has come free from the plain and dropped down about 1⁄4 inch. This rock 

is about 2 ft by 3 ft by about 6 inches thick and about 5-7 ft over the travel way 

which is about 6 ft wide. There was other unscaled or unsupported ground 

conditions around the slip plain in this area. This condition exposes miners 

traveling through the area to fatal type injuries had this condition been allowed to 

further exist. 

Ex. P-1A.5 The citation was terminated on March 22 after Original Sixteen barred down 

the fractured rock, and installed a wood sprag and two additional stalls. Ex. P-1B. 

1. Fact of Violation

In order to establish a violation of one of his mandatory safety standards, the Secretary 

must prove that the violation occurred “by a preponderance of the credible evidence.” Keystone 

Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas 

Co., 11 FMSHRC 2148, 2152) (Nov. 1989)). 

The Secretary contends that the cited ground conditions were hazardous and unsafe. 

Sec’y Br. at 9-10. Original Sixteen argues that the ground conditions were not hazardous, and 

that Edminister lacks the qualifications to inspect the Sixteen to One mine. Resp’t Br. at 6-7. 

As a preliminary matter, I note that Original Sixteen stipulated to Gulati’s and 

Blankenship’s competence to inspect the Sixteen to One mine. Tr. 318; 361. However, it 

 4

 30 C.F.R. § 57.3200 provides that “[g]round conditions that create a hazard to persons 

shall be taken down or supported before other work or travel is permitted in the affected area. 

Until corrective work is completed, the area shall be posted with a warning against entry and, 

when left unattended, a barrier shall be installed to impede unauthorized entry.” 

5

 In the context of a previous, analogous standard, 30 C.F.R. § 57.3-22, the Commission 

interpreted loose ground to refer “generally to material in the roof (back), face, or ribs that is not 

rigidly fastened or securely attached and thus presents some danger of falling.” Amax Chem. Co., 

8 FMSHRC 1146, 1148 (Aug. 1986). 

38 FMSHRC Page 1475
essentially raised a standing challenge to Edminister’s qualifications to inspect the mine and 

make judgments respecting the cited hazards. Tr. 192-93. 

Edminister came to MSHA with eight years experience as a safety representative at a 

surface mining operation, and six months of training in identification of loose ground and ground 

support systems; as an MSHA inspector, he had participated in several underground mine 

inspections. Tr. 13-18. Notably, when making determinations as to loose ground, he relied upon 

the array of techniques recognized by the Commission. Tr. 276-77; see Asarco Inc., 14 

FMSHRC 941, 952-53 (June 1992). Accordingly, I find that Edminister was qualified to inspect 

Sixteen to One and issue the citations and orders contested in this proceeding. 

Edminister testified that section 57.3200 requires Original Sixteen to remove or support 

loose ground conditions in travel or work areas. Tr. 38-40. He stated that he observed a slip plane 

directly above the travelway, evidence of water seepage through it, and a 2ʹ by 3ʹ by 68ʹʹ rock 

slab that had dropped 1⁄4 inch along the plane, indicating that it was loose.6 Tr. 28, 30-31, 34; 

Exs. P-1C, P-1D, P-1E, P-1F, P-1G, P-1H; see P-16 at 3. It was his opinion that the slab had 

been scaled down by hand to terminate the citation, confirming his conclusion that it was, in fact, 

loose ground. Tr. 40; see Exs. P-1J, P-16 at 6. He also opined that, in the unlikely event that the 

slab were to fall on a miner from the height of five to seven feet, it could cause fatal injuries. Tr. 

42-43. 

Michael Miller testified that the roof was not loose, that there were ground supports near 

the cited slab, that experienced miners who pass through the travelway regularly and are trained 

to identify loose ground had not noticed the cited condition, and that the metamorphic geology of 

Sixteen to One makes it resistant to formation of loose ground. Tr. 545-46. Joseph Sauer testified 

similarly, that the roof was not unstable, and that there were ground supports near the slab. Tr. 

502-03. He stated that he did not scale down the slab, that it was still in place, and that stalls 

were installed to support it. Tr. 487-88, 502-03. 

The evidence indicates that the travelway was regularly used by the miners, and that the 

cited area of roof contained cracks or fractures. I credit Sauer’s testimony that he did not scale 

down the slab. However, crediting Edminister’s testimony that upon his return the next day, he 

observed fragments of the slab on the ground, it is clear that someone had scaled it down or that 

rock fragments had broken away from the roof. Furthermore, the loose ground created a hazard 

since crushing injuries from a falling slab, while unlikely, would be reasonably expected to be 

fatal. Accordingly, I find that the Secretary has established a violation of section 57.3200. 

2. Negligence 

Edminister opined that Original Sixteen’s negligence was moderate because the 

travelway was regularly used, but he considered as mitigating factors that the area was dimly lit 

and the unstable slab was not readily noticeable, and that Original Sixteen had no recent 

 6

 A slip plane is “[c]losely spaced surfaces along which differential movement takes 

place in a rock. Analogous to surfaces between playing cards.” Am. Geological Institute, 

Dictionary of Mining, Mineral, and Related Terms 514 (2d ed. 1997) (“DMMRT”).

38 FMSHRC Page 1476
violation for loose ground. Tr. 43-44. Original Sixteen offered no rebuttal. I find the lack of 

obviousness of the roof condition and Original Sixteen’s clean history to be mitigating factors. 

Therefore, I find that Original Sixteen was moderately negligent in violating the standard. 

B. Citation No. 8612841

 Inspector Edminister issued 104(a) Citation No. 8612841 on March 22, 2012, alleging 

a violation of section 57.11051 that was “unlikely” to cause an injury that could reasonably be 

expected to be “fatal,” and was caused by Original Sixteen’s “moderate” negligence.7 The 

“Condition or Practice” is described as follows: 

The Secondary escape way designated and posted on the mine map along the 600 

and 1000 level is not being maintained in safe or travelable condition. There are 

several areas along the 600 level escape way where there is a 3 inch air line 

crossing the tracks about 6-10 inches above the ground level creating a tripping 

hazard. There is a 3 inch metal pipe line crossing the travel way 48 inches off the 

pass away level. There are areas where the lagging for the stopes have given way 

allowing loose unconsolidated material to enter the passage way creating 

additional hazards.[8] There is a section of the passageway that is under up to 14 

inches of water and has a 2ʹʹ x 12ʹʹ x 7ʹ long piece of timber floating in the water. 

There are two large boulders ranging up to 44 inches wide, 45 inches long and 20 

inches thick that have fallen from a slip plain and or old stope workings. There is 

a section of unconsolidated and unsupported material from an overhead stope that 

is resting directly above the passageway exposing the miners to a hazard of being 

struck by falling material. These conditions exposed the miners needing to access 

the secondary escape in the event of an emergency to serious to fatal type injuries 

in the event of an accident. The miners access many different areas at the mine 

depending on maintenance and repairs. 

Ex. P-2A. The citation was terminated on March 27 when Original Sixteen barricaded the area 

from which the secondary escapeway is accessed. Ex. P-2B. 

1. Fact of Violation

Original Sixteen argues that the 600 and 1000 level secondary escapeway was not 

required because miners had not worked in the area served by the escapeway for several years. 

Resp’t Br. at 7. 

 7

 30 C.F.R. § 57.11051 provides that “[e]scape routes shall be (a) [i]nspected at regular 

intervals and maintained in safe, travelable condition; and (b) [m]arked with conspicuous and 

easily read direction signs that clearly indicate the ways of escape.” 

8

 A stope is “[a]n excavation from which ore has been removed in a series of steps.” 

DMMRT at 541. 

Lagging is “[material that] wedges and secures the roof and sides behind the main timber 

or steel supports in a mine and provides early resistance to pressure.” DMMRT at 302. 

38 FMSHRC Page 1477
Edminister testified that section 57.11051 requires Original Sixteen to keep escapeways 

clear of tripping hazards and loose ground. Tr. 55, 57, 65. He stated that he observed numerous 

tripping hazards impeding a miner’s emergency exit through the travelway, including a threeinch air line crossing in front of a ladder used to reach the secondary escapeway (Tr. 47; Ex. 

P-2C); an air or water line zig-zagging three inches off the travelway floor (Tr. 54; Exs. P2D; P-2L); multiple piles of old shot rock in the travelway (Tr. 60, 62; Exs. P-2E; P-2F; P-2I; P2K); an unsupported ledge from a mined-out stope (Tr. 57; Exs. P-2G, P-2H); and a piece of 

timber floating in a twelve-inch deep water accumulation (Tr. 61; Ex. P-2J). Edminister opined 

that, in the context of a mine emergency requiring use of the secondary escapeway, a miner 

would be exposed to tripping hazards, fatal crushing injuries from groundfalls, and drowning 

from slips and falls in accumulated water. Tr. 64-65. He also testified to the unlikelihood of the 

occurrence of injury, having relied on Michael Miller’s assertion that no miners had been 

working in the affected area. Tr. 64. 

Michael Miller testified that miners had not worked in the area served by the 600 and 

1000 level escapeway in 2012. Tr. 549. Sauer testified that the pipe crossing the ladder posed no 

tripping hazard to an experienced miner, that the piles of material only partially blocked the 

travelway, that the line crossing the travelway was not a tripping hazard because it was waisthigh, and that the hazards associated with the cited condition were not as severe as cited by the 

inspector. Tr. 522, 524-25; Resp’t Br. at 7. 

An operator’s duty to maintain escapeways free of hazards impeding safe exit is not, as 

Original Sixteen argues, contingent upon whether they are required. Rather, by its plain 

language, section 57.11051(a) requires an operator to maintain all active escapeways in “safe, 

travelable condition.” Original Sixteen to One Mine, Inc., 23 FMSHRC 1158, 1173-74 (Oct. 

2001) (ALJ) (holding that even if Original Sixteen’s secondary escapeway was not required, it 

was not relieved of its duty to maintain designated escapeways safe and travelable). In this case, 

the 600 and 1000 level travelway was designated as a secondary escapeway on the mine map, 

and no barricade or warning signage removed from service either the escapeway or the area it 

serves. Thus, the evidence indicates that miners were able to access the area from which the 

secondary escapeway is accessed and the escapeway, itself. Accordingly, I find that Michael 

Miller’s testimony that the area served by the 600 and 1000 level secondary escapeway had not 

been used in 2012, while unchallenged, fails to absolve Original Sixteen of its duty to maintain 

the escapeway in safe and travelable condition since it had not been taken out of service. 

Original Sixteen presented no direct evidence that the conditions observed by Edminister 

did not exist, and I find no merit in contentions that the totality of the cited conditions was not as 

hazardous or serious as alleged by the Secretary. Even experienced miners would be faced with 

the “panic factor” where “it would be unrealistic to fail to take into consideration that miners 

may be hurrying, possibly with limited vision because of smoke.” Id. at 1163. Therefore, I find 

that the combination of the hazards, each posing an obstacle to speedy exit in the event of an 

emergency, and risk of serious to fatal injury, amounted to failure to comply with the standard. 

Accordingly, the Secretary has established a violation of section 57.11051. 

 

38 FMSHRC Page 1478
2. Negligence

Edminister opined that Original Sixteen’s negligence was moderate because, although 

miners had not been working in the area served by the secondary escapeway, it was designated 

on the mine map as an active escapeway. Tr. 65. While Original Sixteen may have believed that 

the escapeway was not required, Michael Miller is an experienced miner and mine owner who 

should have known that where a designated escapeway is accessible and, therefore, active, there 

is an obligation to maintain it in safe, travelable condition. Furthermore, it is noteworthy that 

Original Sixteen had been cited for similar violations in 1999 and 2011. See id. at 1161; Original 

Sixteen to One Mine, Inc., 36 FMSHRC 2224, 2227 (Aug. 2014) (ALJ). Accordingly, I find that 

Original Sixteen was moderately negligent in violating the standard. 

C. Citation No. 8695844

 Inspector Edminister issued 104(d)(1) Citation No. 8695844 on September 18, 2012, 

alleging a “significant and substantial” violation of section 57.11051 that was “reasonably 

likely” to cause an injury that could reasonably be expected to be “fatal,” and was caused by 

Original Sixteen’s “high” negligence and “unwarrantable failure” to comply with the standard. 

The “Condition or Practice” is described as follows: 

The mine operator has removed the barricade put in place to impede access to the 

working and or travel areas where the secondary escape located on the 600 and 

1000 Level would be needed in the event of an emergency. Miners travel this area 

as needed to metal detect for ore and get supplies as needed. The Mine President 

Mike Miller stated that there is no area in this mine that is abandoned and that 

they can travel and access any area of the mine. This secondary escape was under 

citation (8612841) issued on 03/22/2012 and was terminated based on the mine 

president’s statement that the area has been abandoned and there was no need to 

access the area; therefore installed a barricade and warning sign. The cited 

condition along the secondary escape have not been corrected as required by the 

previous citations termination (8612841-01). Due to the actions and inactions of 

the mine operator, this condition/practice has been evaluated at higher than 

ordinary negligence. 

Standard 57.11051 was cited 1 time in two years at mine 0401299 (1 to the 

operator, 0 to a contractor). This violation is an unwarrantable failure to comply 

with a mandatory standard. 

Ex. P-4A. The citation was terminated on October 17 when the mine operator reinstalled a 

barricade blocking access to the secondary escapeway. Ex. P-4E. 

1. Fact of Violation 

The Secretary argues that Sixteen to One was in a production rather than exploration 

mode, which requires the operator to have and maintain a secondary escapeway and, irrespective 

38 FMSHRC Page 1479
of whether it was producing or exploring, it was required to maintain its active secondary 

escapeways in safe, travelable condition.9

 Sec’y Br. at 8-9, 15. 

Original Sixteen argues that no miners were working in the affected area at the time of 

the inspection, and that there were no workplaces or travelways on the 1000 level. Tr. 552-53; 

Resp’t Br. at 12. It further contends that the mine was in an exploration mode, requiring no 

secondary escapeway and, therefore, access to the affected area was permitted. Resp’t Br. at 12. 

In other words, Original Sixteen is essentially arguing that since no secondary escapeway was 

mandated, it was not required to either maintain the 600 and 1000 level escapeway or take it out 

of service.10

Edminister testified that upon returning to inspect the mine in September 2012, he 

observed that the barricade that Original Sixteen had installed to terminate Citation No. 8612841 

had been removed, and that Reid and Michael Miller told him that the hazards cited in the 600 

and 1000 level secondary escapeway in March had not been abated. Tr. 66; Exs. P-2, P-16 at 30. 

He testified that he was never told when or why the barricade had been taken down, or how 

frequently miners had been entering the area beyond the barricade. Tr. 72. He stated that Michael 

Miller told him that miners were free to travel anywhere in the mine, and that Original Sixteen 

was not required to have a secondary escapeway because the miners were engaged in 

exploration. Tr. 66; Ex. P-16 at 30. In his opinion, it would be reasonably likely that a miner 

attempting to exit the mine in an emergency situation would be unable to safely negotiate the 

unabated slipping, tripping, and crushing hazards in the travelway, thereby delaying timely 

escape. Tr. 81-82. 

On cross-examination, Sauer testified that the secondary escapeway had not been cleaned 

up, that the barricade had been removed and, for approximately one week, the affected area had 

been open until a gate with a lock had been installed. Tr. 525-28, 535. He also stated that, to his 

knowledge, no miners had actually entered the affected area after Original Sixteen was cited in 

March. Tr. 525. 

In each instance where Original Sixteen was cited for conditions relating to either the 600 

and 1000 level secondary escapeway or the 21 Tunnel, the Secretary contends, and Original 

Sixteen contests, that Original Sixteen was in a production mode and, therefore, required by 

regulation to have a secondary escapeway. See Sec’y Br. at 8-9, 12-14. While I note that the 

evidence shows little, if any, material distinction between Original Sixteen’s core mining 

methods for production and exploration, it is unnecessary to resolve this issue because, 

irrespective of the mine’s operational mode, the standard clearly requires that active escape 

routes be maintained free of hazards impeding safe exit. 

 9

 Section 57.11050(a) provides that “[e]very mine shall have two or more separate, 

properly maintained escapeways to the surface . . . . [a] second escapeway is recommended, but 

not required, during the exploration or development of an ore body.” 

10 There are two separate secondary escapeways identified in these proceedings; the 600 

and 1000 level escapeway at issue in Citation Nos. 8612841 and 8695844, and the 21 Tunnel at 

issue in Order Nos. 8695848, 8695849, and 8695846. 

38 FMSHRC Page 1480
In this case, by Original Sixteen’s own account, the hazards cited in the 600 and 1000 

level secondary escapeway in March had not been cleaned up, and it had only been taken out of 

service temporarily. Without evidence to the contrary, by removal of the barricade and 

installation of the gate, it is reasonable to conclude that Original Sixteen intended that its miners 

have access to the area served by the secondary escapeway. Consequently, once the barricade 

was removed, miners were exposed to the hazardous conditions in the escapeway. Accordingly, I 

find that the Secretary has established a violation of section 57.11051(a). 

 2. Significant and Substantial

 In Mathies Coal Company, the Commission set forth four criteria that the Secretary must 

establish in order to prove that a violation is “significant and substantial” (“S&S”) under Nat’l 

Gypsum, 3 FMSHRC 822 (Apr. 1981): 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); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 

(7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’d

9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). Evaluation of the third 

criterion, the reasonable likelihood of injury, should be made in the context of “continued normal 

mining operations.” U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). Since the “need 

for adequate escapeways will only arise in the context of an emergency evacuation from the 

mine . . . the S&S nature of an escapeway violation must be considered in the context of an 

emergency.” Mill Branch Coal Corp., 37 FMSHRC 1383, 1395 (July 2015). Moreover, 

resolution of whether a violation is S&S must be based “on the particular facts surrounding that 

violation.” Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1998); Youghiogheny & Ohio Coal Co., 

9 FMSHRC 2007, 2001-12 (Dec. 1987). The Secretary need not prove a reasonable likelihood 

that the violation, itself, will cause injury. Musser Eng’g, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 

2010). 

 The fact of violation has been established. Miners using the secondary escapeway in 

the event of an emergency would be exposed to slip and trip, crushing, and drowning hazards, 

thereby impeding speedy exit from the mine. The focus then, is the third and fourth Mathies

criteria, i.e., whether the hazard was reasonably likely to result in an injury, and whether the 

injury would be serious. Here, miners impeded in exiting the mine through the 600 to 1000 level 

secondary escapeway during an emergency would be reasonably likely to suffer serious to fatal 

injuries. Therefore, I find that the violation was S&S. 

3. Negligence and Unwarrantable Failure

 Unwarrantable failure is aggravated conduct constituting more than ordinary negligence. 

Energy Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is 

characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” 

or a “serious lack of reasonable care.” Id. at 2001-04; Rochester & Pittsburgh Coal Co., 

13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 52 F.3d at 136. The Commission 

has recognized the relevance of several factors in determining whether conduct is “aggravated” 

38 FMSHRC Page 1481
in the context of unwarrantable failure, such as the extensiveness of the violation, the length of 

time that the violation has existed, whether the violation posed a high degree of danger, whether 

the violation was obvious, the operator’s knowledge of the existence of the violation, the 

operator’s efforts in abating the violative condition, and whether the operator has been put on 

notice that greater efforts are necessary for compliance. See Wolf Run Mining Co., 35 FMSHRC 

3512, 3520 (Dec. 2013); Consolidation Coal Co., 35 FMSHRC 2326, 2330 (Aug. 2013); 

Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013). Each case must be examined on its 

own facts to determine whether an actor’s conduct is aggravated, or whether mitigating 

circumstances exist. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Although 

some factors may be irrelevant to a particular scenario, all relevant factors must be examined. 

ICG Hazard, LLC, 36 FMSHRC 2635, 2637-38 (Oct. 2014) (citing IO Coal, 31 FMSHRC 1346, 

1351 (Dec. 2009). 

 In arguing that Original Sixteen’s conduct was characterized by high negligence that 

rose to the level of an unwarrantable failure to comply with section 57.11051(a), the Secretary 

contends that Original Sixteen deliberately left the affected area unbarricaded for, at least, a 

week, despite the fact that this secondary escapeway was cited in March for hazardous 

conditions that it had not cleaned up. Sec’y Br. at 16. Original Sixteen does not directly address 

the Secretary’s contentions, but argues that no miners were working in the area at the time of the 

inspection, that there were no workplaces or travelways on the 1000 level, and that the mine was 

in an exploration mode. Resp’t Br. at 12. 

 The hazardous conditions cited were obvious and existed in several locations throughout 

the escapeway. Furthermore, after Edminister cited the hazards in March, Original Sixteen was 

on notice that further efforts for compliance were necessary. Original Sixteen’s conduct was 

aggravated by its removal of the barricade, permitting access to the area served by the secondary 

escapeway. Original Sixteen’s argument that the mine was in an exploration mode does not 

mitigate the seriousness of its conduct, given that the operator was on notice from a previous 

violation that it had a duty to maintain active designated escapeways safe and travelable, 

regardless of whether they are required, or take them out of service. 

Despite the initial barricade, Original Sixteen’s subsequent removal of the barrier then 

replacement with a locking gate, without addressing the hazards, was egregious. I find that the 

violation posed a high degree of danger because of the consequences of delayed escape. 

Regarding duration, it is undisputed that the area was unbarricaded for, at least, a week - - a 

sufficient period of time to sustain an unwarrantable failure finding given the seriousness of the 

violation. See, e.g., Buck Creek Coal, Inc., 52 F.3d 133, 136 (7th Cir. 1995) (upholding an 

unwarrantable failure designation where accumulations existed for more than one shift). 

Therefore, I find that the Secretary has established that Original Sixteen was highly negligent in 

violating the standard, and engaged in aggravated conduct that constitutes unwarrantable failure. 

D. Order No. 8695848

 Inspector Edminister issued 104(d)(1) Order No. 8695848 on September 18, 2012, 

alleging a “significant and substantial” violation of section 57.18025 that was “reasonably 

likely” to cause an injury that could reasonably be expected to be “fatal,” and was caused by 

38 FMSHRC Page 1482
Original Sixteen’s “high” negligence and “unwarrantable failure” to comply with the standard.11

The “Condition or Practice” is described as follows: 

No employee shall be assigned, or allowed, or be required to perform work alone 

in any area where hazardous conditions exist that would endanger his safety 

unless his cries for help can be heard or he can be seen. A miner was assigned to 

work alone in the secondary escape where the timbers and lagging had collapsed 

allowing material from the upper stope to fall into the travel way. There is 

unsupported and unstable ground conditions in the stope near the area the miner 

was performing his duties. It was stated that the miner was working in the area 

alone while clearing the fallen debris while the other two miners were working 

the heading near the 848 split where the miners cries for help would not be heard. 

This practice posses an imminent danger to the miners working alone where 

hazardous conditions exist. 

This violation is an unwarrantable failure to comply with a mandatory standard. 

Ex. P-5A, P-5B, P-5D. Gulati terminated the order during his October 12 inspection upon 

confirmation that Original Sixteen would be enforcing its applicable work policy. Ex. P-5C. 

On October 22, 2012, MSHA modified the order by deleting the following wording from the 

“Condition or Practice” section: 

This condition was a factor that contributed to the issuance of Imminent Danger 

Order No. 8695845 dated 09/18/2012. Therefore, no abatement time was set. 

Ex. P-5D.12 

1. Fact of Violation 

 

 Original Sixteen argues that Edminister did not actually observe anyone working alone in 

hazardous conditions and, therefore, the order should never have been issued. Resp’t Br. at 13. 

Edminister testified that several hazardous conditions existed in the 21 Tunnel. He noted 

two instances where ground failures had occurred, timbers and lagging that had not been 

properly maintained, material that had collapsed into the travelway due to improperly maintained 

timbers and lagging, and a nearby ground support that was at risk of collapse. Tr. 83-85, 90, 306. 

He opined that section 57.18025 requires Original Sixteen to prevent its miners from working 

alone in an area with groundfall hazards, where a miner’s call for help would not be heard. Tr. 

 11 30 C.F.R. § 57.18025 provides that “[n]o employee shall be assigned, or allowed, or 

 be required to perform work alone in any area where hazardous conditions exist that would 

endanger his safety unless he can communicate with others, can be heard, or can be seen.” 

12 Imminent Danger Order No. 8695845 was vacated by the Secretary on November 21, 

2012, and is not at issue in these proceedings. P-3D, P-3E, P-3F. 

38 FMSHRC Page 1483
83-84. According to Edminister, Reid Miller told him that approximately two weeks before the 

inspection, Michael Miller had assigned him to work by himself in the 21 Tunnel to clear timbers 

that had fallen two weeks before that, and Reid Miller agreed with Edminister’s assessment that 

the 21 Tunnel was unsafe. Tr. 84, 302-06; Ex. P-16 at 32. He estimated the distance between 

Reid Miller and other miners to have been several hundred feet, explaining that the sound of 

distress cries would have had to have traveled around a ninety degree angle, and that the miners 

told him that they would not have been able to hear the lone miner’s cries from where they were 

working. Tr. 84-85. Edminister also opined, in light of previous and impending groundfalls, that 

it was reasonably likely that a miner would suffer fatal injuries from head trauma and 

asphyxiation. Tr. 85-86, 309. 

 Michael Miller testified that Original Sixteen had never assigned or permitted any miner 

to work alone in hazardous conditions. Tr. 553; Ex. P-17 at 9. Reid Miller testified that he told 

Chico Aguirre to pick up old wood laying in the drift by the 849 Station, and that he would 

return to check on him. Tr. 392. Aguirre testified that it was he who was working alone in the 21 

Tunnel, taking out and replacing old timbers laying on the rib. Tr. 431. Aguirre also testified that 

the old timbers had not fallen, but had been pulled out by the miners. Tr. 431. He stated that he 

did not notice any hazardous conditions when he began work, and that a landline phone is 

located some 200 feet from where he was working. Tr. 433-35. 

 Notwithstanding the fact that Edminister may have been told by Reid Miller that it was 

he who had been working alone, I credit Reid Miller’s and Aguirre’s testimony that Aguirre was 

the solitary miner. I also credit Edminister’s testimony that there had been previous ground 

failures, and that another was imminent, absent any credible challenges by Original Sixteen. 

Indeed, Aguirre’s testimony that there had not been a ground failure, and that he had not noticed 

any hazardous conditions while he was working is unconvincing, given his overall nervousness 

and unwillingness to answer questions directly. Likewise, Original Sixteen failed to rebut 

Edminister’s contention that other miners would not have been able to hear Aguirre’s calls for 

help, and the presence of the landline telephone does not negate the violation, given the 

likelihood that a miner in distress would be in no condition to access the landline, much less use 

it. According to Gulati’s field notes respecting termination of the order, miners told him that they 

check on each other every 20 minutes. Ex. P-17 at 9. However, there is no evidence of Reid 

Miller’s oversight beyond his assurance to Aguirre that he would check on him - - evidence that 

falls short of the structured monitoring necessary to satisfy the standard. See Cotter Corp., 8 

FMSHRC 1135, 1139 (1986) (holding that while contact with the solitary miner need not be 

continual, it must be regular and dependable, and commensurate with the hazard presented). 

Accordingly, I find that the Secretary has established a violation of section 57.18025. 

2. Significant and Substantial 

The fact of violation has been established, and I find that the lone miner was exposed to 

impending groundfalls, without benefit of being heard by nearby workers. The focus then, is the 

third and fourth Mathies criteria, i.e., whether the hazard was reasonably likely to result in an 

injury, and whether the injury would be serious. 

38 FMSHRC Page 1484
I find, in the context of continued normal mining operations and the impeding threat of 

groundfall, that the lone miner was reasonably likely to sustain serious to fatal crush injuries, 

suffocation, and/or head trauma. Therefore, I find that the violation was S&S. 

3. Negligence and Unwarrantable Failure 

 In arguing that Original Sixteen’s conduct was characterized by high negligence that rose 

to the level of an unwarrantable failure, the Secretary contends that the hazardous ground 

conditions were open and obvious, that Reid Miller, as lead miner, had knowledge of them and, 

by permitting work under such conditions, set an unsafe example for other miners. Tr. 86; Sec’y 

Br. at 16-17. Original Sixteen only addresses the Secretary’s contentions by arguing that the 

conditions in the 21 Tunnel were not hazardous. Resp’t Br. at 13. 

The record indicates that the ground conditions were obvious and extensive, as there was 

more than one area where a groundfall had already occurred, and loose ground in the area was 

likely to fail. Reid Miller, as lead miner, had assigned Aguirre to work alone in an area with 

obvious hazards. Since the task involved replacing old timbers where a ground failure had 

occurred, I find that Reid Miller knew or should have known that working alone under these 

conditions would be perilous. The relatively short duration of this violation, having occurred 

during one shift, and the absence of any violation history, is counterbalanced by the seriousness 

of the hazard posed by the miner working alone in an area of loose ground, and by Original 

Sixteen’s lack of any effort to comply with the standard. Accordingly, I find that the Secretary 

has established that Original Sixteen displayed a high degree of negligence in violating the 

standard, and aggravated conduct that constitutes unwarrantable failure. 

E. Order No. 8695849 

Inspector Edminister issued 104(d)(1) Order No. 8695849 on September 18, 2012, 

alleging a “significant and substantial” violation of section 57.3360 that was “reasonably likely” 

to cause an injury that could reasonably be expected to be “fatal,” and was caused by Original 

Sixteen’s “high” negligence and “unwarrantable failure” to comply with the standard.13 The 

“Condition or Practice” is described as follows: 

The ground supports used at the secondary escape along the 800-21 tunnel are not 

being maintained to support the ground. There is a section near the entrance about 

60 feet in that has collapsed due to old deteriorated timbers. The old stalls and 

lagging was not being maintained in good condition which allowed the material 

from the old upper stope above the escape way to collapse into the travel way. 

There is loose unsupported ground along the back (roof) of the old stope which 

 13 30 C.F.R. § 57.3360 provides that “[g]round support shall be used where ground 

conditions, or mining experience in similar ground conditions in the mine, indicate that it is 

necessary. When ground support is necessary, the support system shall be designed, installed, 

and maintained to control the ground in places where persons work or travel in performing their 

assigned tasks. Damaged, loosened, or dislodged timber use[d] for ground support which creates 

a hazard to persons shall be repaired or replaced prior to any work or travel in the affected area.” 

38 FMSHRC Page 1485
would enter into the escape way that is not immediately obvious to persons 

accessing the area. The unsupported ground in the stope area ranges up to about 3 

x 2 feet thick. The miner felt the area was too unsafe to continue through the area 

and stated that other work along the secondary escape was done about 2 weeks 

ago by accessing through the secondary escape portal. The affected area at this 

point is about 15 feet long. There is another stall and lagging along the rib just 

beyond this point that is on the erg [sic] of failing. There is another section further 

down the escape way that has unsupported ground directly over head in the 

escape way. There is material that had previously fallen from the back (roof) at 

this location. The loose deteriorating material (“serpentine slip,” steeply dipping 

vertically above the travel way) is not supported nor miners protected from the 

falling material. The miners stated that they did not want to scale down the loose 

material due to it may cause additional roof fall, nor would barring be an option 

due to the vibration could also cause the slip to give way. This area affected by 

the slip is about 40 ft in length. 

Standard 57.3360 was cited 1 time in two years at mine 0401299 (1 to the 

operator, 0 to a contractor). This violation is an unwarrantable failure to comply 

with a mandatory standard. 

Exs. P-6A, P-6B, P-6G. The order was terminated when Original Sixteen scaled down the loose 

material, installed additional lagging and stalls, and conducted a safety talk with the miners. 

Ex. P-6H. On October 17, 2012, MSHA modified the order by deleting the following wording 

from the “Condition or Practice” section: 

There is another stall and lagging for another old stope just beyond this point that 

is on the erg of failing. This condition was a factor that contributed to the issuance 

of Imminent Danger Order No. 8695845 dated 09/18/2012. Therefore no 

abatement time was set. 

Ex. P-6G. 

1. Fact of Violation

Original Sixteen argues that if the ground support conditions in the 21 Tunnel existed, 

as cited, they would have been noted in Original Sixteen’s monthly examinations, and during 

previous MSHA inspections. Resp’t Br. at 11-12, 14-15. 

Edminister opined that section 57.3360 requires Original Sixteen to maintain ground 

support in proper condition, and to support loose ground before miners can perform work in the 

vicinity of inadequate support. Tr. 86-87. Upon entering the 21 Tunnel secondary escapeway 

during the September inspection, Edminister observed two sections of ground support that had 

collapsed, and noted another section that was on the verge of collapse. Tr. 87, 90, 285; Exs. P6I, P-6J, P-6O. He opined that one of the sections had failed because ground support stalls were 

not being properly maintained. Tr. 91, 93; Ex. P-16 at 17. He testified that Reid Miller was 

working where a rib had collapsed, and that he issued an imminent danger order and 

38 FMSHRC Page 1486
discontinued the inspection out of concern for his own safety and that of the miners. Tr. 87-89; 

Ex. P-16 at 33. According to him, Reid Miller stated that he, too, felt the 21 Tunnel to be too 

unsafe for the inspection to continue. Tr. 88, 285; Ex. P-16 at 33. Edminister noted that a month 

later the hazardous conditions had been abated and he continued farther into the 21 Tunnel, 

where he observed a “seam of serpentine” overhead, indicating that the roof was unstable. Tr. 

91-92; Exs. P-6K, P-6L, P-16 at 58-60. He testified that the miners abated the condition by 

scaling down some of it, and installing stalls and lagging over the travelway to protect passers-by 

from falling ground. Tr. 92-93; Exs. P-6M, P-6N. Edminister explained that based on these 

observations, he surmised that Original Sixteen was in the habit of waiting until its ground 

supports fail before maintaining or replacing them. Tr. 87. 

Joseph Sauer testified that he accompanied Edminister during the inspection, that the 

21 Tunnel is designated for use in an emergency, and that he participated in abating the hazards 

cited by Edminister in the travelway. Tr. 484, 506. He explained that, in identifying loose 

ground, he looks for evidence of stalls taking on weight, or splitting or rotting from age. Tr. 520. 

He testified that he never saw the potential for a hazard in the 21 Tunnel, but noted that there was 

a lot of material on the floor that he estimated to have had been there for 50 or 60 years. Tr. 486. 

He also stated that miners clear a path through the travelway, as needed, by throwing material off 

to the side. Tr. 519. In his opinion, the material in the travelway was “not necessarily something 

that has collapsed due to bad ground,” but appeared to be lagging that “gave out.” Tr. 530-31. 

Reid Miller testified with great difficulty, clearly carrying the weight of being questioned 

by his father while under the expectation of being truthful and, in any event, supportive of his 

father and the family business. Despite his apparent nervousness and conflicted responses, 

however, Miller’s testimony essentially corroborated Edminister’s account of the hazards in the 

21 Tunnel, and lent credence to Edminister’s contention that Miller had agreed that it was unsafe 

to proceed with the inspection. See Tr. 393-94. 

In crediting Edminister’s contention that he had observed two sections of failed ground 

support and another close to collapsing, I find that Sauer’s and Reid Miller’s accounts of the 21 

Tunnel’s condition fall short of mounting a successful challenge to the charges levied by the 

Secretary. Furthermore, Original Sixteen’s own witness, Sauer, described old timber in the 

escapeway that he estimated to be extremely old, as well as the mine’s common practice of 

pitching material to the side to clear a pathway. The evidence lends some credence to the 

suggestion that Original Sixteen maintains its ground support only after it fails, although that 

conclusion remains in the realm of speculation. However, the record amply supports a 

conclusion that the ground supports cited in the 21 Tunnel were deteriorated or otherwise 

damaged and in need of maintenance or replacement. Accordingly, I find that Original Sixteen 

violated the standard. 

 

2. Significant and Substantial

The fact of violation has been established, and I find that inadequately maintained ground 

supports exposed miners to potential groundfalls. The focus then, is the third and fourth Mathies

criteria, i.e., whether the hazard was reasonably likely to result in an injury, and whether the 

injury would be serious. 

38 FMSHRC Page 1487
Since the 21 Tunnel is a secondary escapeway, I find that miners requiring access to the 

travelway in an emergency situation, exposed to the impending threat of groundfalls, would be 

reasonably likely to sustain crushing injuries and head trauma. Therefore, I find that the violation 

was S&S. 

3. Negligence and Unwarrantable Failure

 

In arguing that Original Sixteen’s conduct was characterized by high negligence that rose 

to the level of an unwarrantable failure, the Secretary asserts that the deteriorated condition of 

the ground supports in the 21 Tunnel was open and obvious, that Original Sixteen had 

knowledge of the hazard, and that no action was taken to address it over a period of four weeks. 

Sec’y Br. at 17-20. Original Sixteen argues the contrary, that the ground supports were not 

hazardous, and that MSHA had not cited these conditions previously. Resp’t Br. at 8-12, 14-15. 

The evidence indicates that this violation was extensive and obvious because there were 

two areas where a groundfall had occurred, and another where a groundfall was at risk of 

occurring. Regarding notice and duration, I fully credit Edminister’s testimony that Reid Miller 

told him that one of the ground failures had occurred four weeks prior to the inspection. While 

Original Sixteen points out that MSHA had not identified or cited these ground support 

deficiencies in the 21 Tunnel previously, the operator was fully aware of the age of the timbers 

used in this secondary escapeway, and the previous groundfalls coupled with the miners’ practice 

of pitching aside fallen material put Original Sixteen on notice that greater efforts were necessary 

for compliance. As previously stated, the violation was very serious, in that it exposed miners to 

head trauma and fatal crushing injuries. Furthermore, while Aguirre had been replacing old 

timbers in the 21 Tunnel two weeks before the inspection, Original Sixteen failed to taken any 

further remedial measures. Accordingly, I find that the Secretary has established that Original 

Sixteen displayed a high degree of negligence in violating the standard, and aggravated conduct 

that constitutes unwarrantable failure. 

 

38 FMSHRC Page 1488
F. Citation No. 8695846

 Inspector Edminister issued 104(a) Citation No. 8695846 on September 18, 2012, 

alleging a “significant and substantial” violation of section 57.11051 that was “reasonably 

likely” to cause an injury that could reasonably be expected to be “fatal,” and was caused by 

Original Sixteen’s “high” negligence.14 The “Condition or Practice” is described as follows: 

The designated secondary escape at the 800-21 tunnel is not being maintained in 

safe travelable condition. There is a section near the entrance about 60 feet in that 

has collapsed. The old stalls and lagging was not being maintained in good 

condition allowing the material from the old upper stope above the escape way to 

collapse into the travel way. There is lose unsupported ground along the back 

(roof) of the old stope. The unsupported ground in the stope area ranges up to 

about 3 x 2 feet thick. The miner felt the area was too unsafe to continue through 

the area and stated that other work along the secondary escape was done about 2 

weeks ago by accessing through the secondary escape portal. The affected area at 

this point is about 15 feet long. There is another stall and lagging along the rib 

just beyond this point that is on the erg [sic] of failing. The entrance to the 

secondary escape at the 800-21 tunnel is not barricaded or posted with a warning 

sign. The tunnel is not being maintained in a safe travelable condition. There are 

numerous locations throughout the secondary escape tunnel that present a tripping 

hazard due to numerous hoses ranging up to about 3 inches in diameter crossing 

the travel way. There are locations where timbers protrude across the travel way 

with pot holes on each side that are covered with water creating additional 

tripping hazards. Heading towards the exit of the secondary escape tunnel there 

are even more tripping hazards due to the travel way not being maintained and 

washed out from the mines drainage. There are large rocks and 2 x 12 planking 

 

 14 This citation was originally issued as a 104(d)(1) order withdrawing miners from all 

underground areas of the Sixteen to One mine. By subsequent action on October 22, 2012, 

MSHA modified the order to a 104(a) citation, and deleted the following wording from the 

“Condition or Practice” section: 

There is another stall and lagging for another old stope just beyond this point that 

is on the erg of failing. This condition was a factor that contributed to the issuance 

of Imminent Danger Order No. 8695845 dated 09/18/2012. Therefore no 

abatement time was set. Standard 57.11051 was cited 2 times in two years at mine 

0401299 (2 to the operator, 0 to a contractor). This violation is an unwarrantable 

failure to comply with a mandatory standard. 

Ex. P-7D. 

38 FMSHRC Page 1489
crossing the escapeway with about a 12 inch clearing for the mines drainage. This 

secondary escapeway is used for emergencies in the event of an accident. 

Exs. P-7A, P-7B, P-7D, P-7E. The citation was terminated on October 18, 2012, when Original 

Sixteen cleared the tripping hazards from the travelway, and a safety talk was conducted with the 

miners. Ex. P-7C. 

1. Fact of Violation 

The Secretary asserts that at the time of the inspection, Original Sixteen was in a 

production mode and, therefore, required to have and maintain the 21 Tunnel secondary 

escapeway; furthermore, he argues, Original Sixteen was required to maintain its secondary 

escapeways in safe and travelable condition, regardless of whether the mine was engaged in 

exploration.15 Sec’y Br. at 8-9. In response, Original Sixteen argues that the conditions cited 

were not hazardous, and that the mine was in an exploration mode. Resp’t Br. at 12, 15. 

Edminister testified that the 21 Tunnel was identified on the mine map and referred to by 

the miners as a secondary escapeway. Tr. 281. He stated that he observed several tripping 

hazards in the escapeway, including a 2ʹ to 3ʹ thick rock located in the middle of the travelway 

(Ex. P-7G); an unsecured ladder resting against the rib (Ex. P-7H); uneven ground covered in 

slippery, wet clay-like sediment (Exs. P-7H, P-7I, P-7K); old hoses or pipes laying in the 

travelway (Ex. P-7H); at least two holes in the middle of the walking lane that were obscured by 

standing water (Exs. P-7I, P-7K); uneven ground due to timber and channels that had been 

created by running water (Ex. P-7L); and a pinch point in the walking lane that restricted miners’ 

passage to a narrow path between the rails and a pipe (Ex. P-7J). Tr. 94-101; Ex. P-16 at 58-60. 

He also testified that he based this violation on the same ground conditions that he had cited 

earlier, i.e., two sections of loose ground support that had already collapsed, and another section 

that was on the verge of collapse. Tr. 94-95; see Exs. P-7M, P-7N, P-7O, P-16 at 32-33. 

According to him, Michael Miller slipped while walking along the travelway during the 

inspection. Tr. 293-94; Ex. P-16 at 56. 

 

Michael Miller testified that he did not remember slipping in the 21 Tunnel during the 

inspection. Tr. 555-56. Sauer testified that he did not find any of the conditions cited by 

Edminister to be hazardous to an experienced miner. Tr. 480, 486-87. He also opined that the 

significant amount of material strewn along the 21 Tunnel was from collapsed lagging along the 

side of the travelway, not from an overhead groundfall. Tr. 486, 493. Sauer explained that the 

mining process consists of rounds of drilling and blasting and that, in general, gold is not found 

in every round, but tends to appear randomly in large pockets; if gold is found in sufficiently 

large quantities, the miners notify Michael Miller, who then develops an extraction plan. Tr. 

507, 510-11. He stated that the last time Original Sixteen found gold was two years prior to the 

2012 inspections. Tr. 489-90. 

 15 The Secretary’s arguments in their entirety were based on MSHA originally charging 

Original Sixteen with an unwarrantable failure under a withdrawal order, and make no reference, 

whatsoever, to MSHA’s modification of the order to a 104(a) citation. 

38 FMSHRC Page 1490
I credit Edminister’s observations as to the hazardous conditions in the 21 Tunnel, and 

that such conditions posed tripping hazards to passing miners. For the same reasons stated 

earlier, I find that the ground supports in the 21 Tunnel were deteriorated or otherwise damaged 

and in need of maintenance or replacement. Obviously, any miner requiring use of the 21 Tunnel 

to exit the mine in an emergency situation, experienced or not, should not be subjected to 

navigating an obstacle course. As noted earlier, irrespective of whether Original Sixteen was in a 

production mode, it was required to maintain its active secondary escapeways safe and 

travelable. Accordingly, I find that the Secretary has established a violation of section 57.11051. 

2. Significant and Substantial 

The fact of violation has been established, and I find that inadequately maintained ground 

supports in the 21 Tunnel secondary escapeway exposed miners to impending groundfalls, and 

the debris in the walkway would likely result in slips, trips, and falls. The focus then, is the third 

and fourth Mathies criteria, i.e., whether the hazards were reasonably likely to result in an injury, 

and whether the injury would be serious. 

Edminister opined that the risk of a groundfall, combined with the tripping hazard posed 

by the large rock in the center of the escapeway, would likely subject miners to fatal crushing 

injuries. Tr. 95. Additionally, he testified that miners travel the 21 Tunnel, at least, monthly in 

order to perform examinations. Tr. 95. Original Sixteen confirmed that miners examine the 21 

Tunnel, but argues that the cited conditions could not contribute to injury or death. Resp’t Br. at 

15-16. 

The record indicates that the 21 Tunnel secondary escapeway was used, at least, monthly 

for examination purposes. I find that miners subjected to the impending threat of groundfalls, 

whether from the roof or the lagging, combined with the slip, trip, and fall hazards in the 

walkway, would be reasonably likely to sustain serious to fatal musculoskeletal and crushing 

injuries. Therefore, I find that the violation was S&S. 

3. Negligence 

The Secretary contends that the deteriorated condition of the ground supports and slip, 

trip, and fall hazards were open and obvious. Sec’y Br. at 20-21. Conversely, Original Sixteen 

argues that the ground supports were adequate, and that the 21 Tunnel escapeway did not pose 

slip, trip, and fall hazards. Resp’t Br. at 15-16. 

As noted earlier respecting Order No. 8695849, the record indicates that this violation 

was extensive and obvious, given that loose, unsupported ground and fallen timber existed in 

several locations, in addition to other slip, trip, and fall hazards that were dispersed throughout 

the 21 Tunnel. I find that Original Sixteen had been aware of the ground failures for, at least, 

four weeks, and while it had not been cited previously for these ground support and tripping 

hazards in this travelway, the threat of groundfalls and the variety of slip and fall hazards 

throughout it put the operator on notice that greater efforts were necessary for compliance. 

Accordingly, I find that Original Sixteen was highly negligent in violating the standard. 

38 FMSHRC Page 1491
G. Citation No. 8695857

 Inspector Edminister issued 104(a) Citation No. 8695857 on September 18, 2012, 

alleging a violation of section 57.20011 that was “unlikely” to cause an injury that could 

reasonably be expected to be “fatal,” and was caused by Original Sixteen’s “moderate” 

negligence.16 The “Condition or Practice” is described as follows: 

The area beyond the 800 Station is not barricaded or posted with a warning sign 

to impede access. The area was deemed unsafe to enter by the miner due to the 

area not being examined and may pose a danger. The area was open for travel and 

was being used as a storage area. This condition exposed the miners entering into 

the area to fatal type injuries in the unlikely event of an accident. 

Standard 57.20011 was cited 1 time in two years at mine 0401299 (1 to the 

operator, 0 to a contractor). 

Ex. P-8A. The affected area was barricaded and a warning sign was posted. Ex. P-17 at 6, 8. 

1. Fact of Violation

 Original Sixteen argues that ore cars stored in the area created a barrier, that a barricade 

or warning sign was unnecessary and would only desensitize miners to legitimate safety 

concerns, and that Edminister was wrong to have requested that Reid Miller examine the ground 

in the cited area. Resp’t Br. at 17. 

Edminister testified credibly that in response to questioning Reid Miller as to what 

activities, if any, were conducted in a cut-out where ore cars were parked, Miller stated that the 

area was out of service, that it was unsafe to enter because the ground had not been examined, 

and that he, himself, refused to examine the area. Tr. 102-03, 265-66; Exs. P-8C, P-16 at 31. 

Edminister stated that he did not see any hazards or evidence of previous groundfalls. Tr. 103, 

268. Therefore, finding no reason for miners to be in the cited area, and observing no obvious 

hazards, he opined that a groundfall would be unlikely to result in fatal crushing injuries. Tr. 

126, 267. 

 Michael Miller testified that there were no hidden hazards in the cited area, and that the 

only way to have determined whether hazards existed would have been to conduct an 

examination. Tr. 556-57. I credit Edminister’s uncontradicted testimony that Reid Miller alerted 

him to the danger of entering the unexamined area, and that were a groundfall to occur, it would 

be unlikely to result in serious injuries, given the unlikelihood of miners entering the area. The 

record establishes that the area was open to access, and that the mine cars did not create an 

 16 30 C.F.R. § 57.20011 provides that “[a]reas where health and safety hazards exist that 

are not immediately obvious to employees shall be barricaded, or warning signs shall be posted 

at all approaches. Warning signs shall be readily visible, legible, and display the nature of the 

hazard and any protective action required.” 

38 FMSHRC Page 1492
effective barrier or explicit warning to miners of the hazards posed by unexamined ground. 

Accordingly, I find that the Secretary has established a violation section 57.20011. 

2. Negligence

 Edminister opined that Original Sixteen’s negligence was moderate based on lack of any 

open and obvious hazards in the cited area, and because Reid Miller was aware that the area had 

not been examined. Tr. 126. Original Sixteen argues that experienced miners would know not to 

enter this or other out-of-service areas without first examining them. Resp’t Br. at 17. Since Reid 

Miller was a lead miner who knew that this area was unexamined, and because Original Sixteen 

had not taken the area out of service by placing a barricade or posting warning signage, I find 

that Original Sixteen was moderately negligent in violating the standard. 

H. Citation No. 8695859 

Inspector Edminister issued 104(a) Citation No. 8695859 on September 18, 2012, 

alleging a “significant and substantial” violation of section 57.3200 that was “reasonably likely” 

to cause an injury that could reasonably be expected to result in “lost workdays or restricted 

duty,” and was caused by Original Sixteen’s “moderate” negligence. 

The “Condition or Practice” is described as follows: 

Safe means of access is not being maintained at the 2nd Ore Chute along the 800 

S[p]lit leading to the 848 Split. This is due to the Ore Chute being wedged open 

with timbers and has loose unconsolidated material over head. There is a large 

rock ranging about 8ʹʹ by 10ʹʹ by 12ʹʹ resting on top of the unconsolidated material 

that would fall into the travel way. The large rock is about 9 ft up along the 7 ft 

wide travel way. Miners access this area daily to the work heading. This condition 

exposed the miner traveling in the area to serious type injuries in the event of an 

accident. 

Exs. P-9A, P-9B (October 22, 2012 modification charging a violation of section 57.3200). The 

condition was abated by removing the rock and installing boards to keep unsecured material 

from falling onto the travelway. Tr. 493-94; Ex. P-17 at 7. 

1. Fact of Violation 

Original Sixteen contends that the rock situated in the chute was not hazardous because if 

it were, it would have been noted by miners who regularly use the travelway, or cited by MSHA 

during previous inspections. Resp’t Br. at 18. 

Edminister testified that he observed an old ore chute elevated over a travelway, wedged 

open by two timbers, containing a large rock resting on unconsolidated material. Tr. 127-28, 130; 

Exs. P-9C, P-9D, P-16 at 32. He opined that the loose material and rock were angled directly 

toward the center of the travelway. Tr. 134. 

38 FMSHRC Page 1493
Michael Miller testified that the chute had been out of service, and that the rock posed 

no danger of striking a miner because the design of the chute had been altered to prevent loose 

ground from falling into the travelway where people walked. Tr. 558. Sauer testified that the 

rock had been lodged in the chute for at least 10 years, and had never fallen. Tr. 493-94. 

The record establishes that the travelway was regularly used by miners, that the ore 

chute door was wedged open, and that the rock, resting on unconsolidated material, created a 

groundfall hazard. Accordingly, I find that the Secretary has established a violation of section 

57.3200. 

2. Significant and Substantial

 The fact of violation has been established. The second criterion of the Mathies test has 

been met, in that the large rock, resting on loose material, contributed to the danger of a 

groundfall. Respecting the third and fourth Mathies criteria, the evidence establishes that, while 

the chute had been out of service for several years, there was a reasonable likelihood that a 

groundfall would result in musculoskeletal injuries, and those injuries, including lacerations, 

contusions, and fractures were reasonably likely to be serious. Tr. 135. Therefore, I find that the 

violation was S&S. 

3. Negligence 

 Original Sixteen argues that the hazard had not been cited previously by MSHA, and 

Edminister opined that the miners may not have had actual knowledge that the condition posed 

a hazard. Resp’t Br. at 18; Tr. 134. However, because the rock was situated on unconsolidated 

material, and this condition had existed for at least 10 years without any action by Original 

Sixteen to correct it, I find that Original Sixteen should have known that the condition was 

hazardous and required attention. Therefore, I find that Original Sixteen was moderately 

negligent in violating section 57.3200. 

I. Citation No. 8695860 

Inspector Edminister issued 104(a) Citation No. 8695860 on September 19, 2012, 

alleging a violation of section 57.4560(c) that was “unlikely” to cause an injury that could 

reasonably be expected to be “fatal,” and was caused by Original Sixteen’s “low” negligence.17

The “Condition or Practice” is described as follows: 

The area within 200 feet inside the mine 21 Tunnel Secondary escape portal is not 

provided with a fire suppression system, other than fire extinguishers and water 

hoses, capable of controlling a fire in its early stages; or covered with shotcrete, 

gunite, or other material with equivalent fire protection characteristics; or coated 

 17 30 C.F.R. § 57.4560(c) provides that the area “at least 200 feet inside the mine portal 

or collar timber used for ground support in intake openings and in exhaust openings that are 

designated as escapeways shall be . . . (c) [c]oated with fire-retardant paint or other material to 

reduce its flame spread rating to 25 or less and maintained in that condition.” 

38 FMSHRC Page 1494
with fire-retardant paint or other material to reduce its flame spread rating to 25 or 

less and maintained in that condition. The portal is constructed with timber stalls 

and 2ʹʹ x 12ʹʹ lagging. This condition exposed the miners underground to fatal type 

injuries in the unlikely event of a fire. 

Standard 57.4560(c) was cited 1 time in two years at mine 0401299 (1 to the 

operator, 0 to a contractor). 

Ex. P-10A. 

1. Fact of Violation 

At hearing, Original Sixteen stipulated to the fact of violation, and limited its contest to 

the fatality allegation. Tr. 261. Original Sixteen’s arguments, however, relate to the fact of 

violation, rather than the gravity designation. See Resp’t Br. at 18-19. 

2. Gravity

Edminister testified that section 57.4560(c) requires Original Sixteen to apply fire 

resistant coatings to timber stalls and lagging in intake or exhaust openings that are designated 

secondary escapeways and lack fire suppression systems. Tr. 136. Addressing the gravity of the 

violation, he opined that the timbers in the 21 Tunnel secondary escapeway were very dry, and 

that if a fire were to occur and smoke entered the mine, miners could suffocate from smoke 

inhalation, but could escape if they overcame panic and were wearing self-rescuers. 

Tr. 136, 138, 220-21. 

Michael Miller testified that even if the secondary escapeway were filled with smoke, the 

primary escapeway would be available for use. Tr. 558-59. Specifically, he testified that the 

primary escapeway is comprised of very hard rock and contains an insubstantial amount of 

timbers; therefore, he opined, miners would be able to exit the mine through the primary 

escapeway in the event of an emergency in the secondary escapeway. Tr. 558-59. 

The evidence makes clear that Original Sixteen was required to maintain in safe and 

travelable condition its active secondary escapeways. In the event of a fire, smoke inhalation 

would reasonably be expected to be fatal, were miners to access the 21 Tunnel to exit the mine 

without benefit of self-rescuers. Accordingly, I find that the Secretary has proven the gravity 

designation that the violation could result in a fatality, as charged by the citation. 

 

38 FMSHRC Page 1495
J. Citation No. 8695861 

 Inspector Edminister issued 104(a) Citation No. 8695861 on September 19, 2012, 

alleging a violation of section 57.12023 that was “unlikely” to cause an injury that could 

reasonably be expected to result in “lost workdays or restricted duty,” and was caused by 

Original Sixteen’s “moderate” negligence.18 The “Condition or Practice” is described as follows: 

The welding lead terminals on the Miller Bobcat 225G welder located behind the 

lower shop was not provided with either a guard or insulating covers. The welder 

is not in a regular travel way, and no other items were stored in the immediate 

area. The welder is used as a back up as needed for welding repairs. The welder 

was not in use at the time of the inspection. This exposes miners to serious shock 

and burn related injuries if contacting the unprotected terminals in the event of an 

accident. 

Ex. P-11A. The citation was terminated after the lead terminals were guarded. 

1. Fact of Violation 

Original Sixteen contends that this condition should have been cited, if at all, as a failure 

to tag-out equipment, so that it would not have been forced to spend time and money repairing 

equipment that it does not use, and that miners were protected from the terminals by the location 

of the welder. Resp’t Br. at 19. 

 

Edminister testified that section 57.12023 requires Original Sixteen to guard or insulate 

welding lead terminals that are not otherwise protected from contact by being situated out of 

reach of persons traveling or working around the equipment. Tr. 140-41. He explained that the 

welding lead terminals are electrical connections between the stinger and the lug nuts on the 

welder, that the terminals were not insulated or guarded, that the welder was not tagged out of 

service, and that he could reach the terminals from his position in the travelway. Tr. 142-144; 

Exs. P-11B, P-16 at 36. He opined that the welder had been used since the leads were attached to 

the welder, and that it was designated as a back-up unit. Tr. 144-45; Ex. P-11B. Furthermore, 

Edminister testified that contact with the terminals could be reasonably expected to result in 

injuries including shocks and burns. Tr. 147. He also stated that in determining that the risk of 

injury was unlikely, he relied on statements by Reid Miller or Michael Miller that the welder was 

designated for back-up use only, and his observation that miners only infrequently entered the 

storage area. Tr. 144-47. 

 Michael Miller testified credibly that the battery had been removed from the welder, and 

that the welder was located in a heavy-duty, long-term storage area with very limited space. Tr. 

560-61. 

I find that the welder was in service as a back-up unit and, although the unguarded and 

uninsulated terminals were within reach of passing miners, they posed no shock or burn hazard 

 18 30 C.F.R. § 57.12023 provides that “[e]lectrical connections and resistor grids that are 

difficult or impractical to insulate shall be guarded, unless protection is provided by location.” 

38 FMSHRC Page 1496
because the battery had been removed. However, replacement of the battery, no matter how 

infrequently, subjected miners to the exposed terminals and, therefore, electrical shock and burn 

injuries. While the citation could have been issued for failure to lock- and tag-out the equipment, 

the Secretary has broad discretion in identifying the standard by which he charges a violation. 

Moreover, Original Sixteen had the option of removing the welder from service rather than 

repairing it. See E. Assoc. Coal Corp., 1 FMSHRC 1473-74 (Oct. 1979) (holding that cited 

equipment may either be repaired or withdrawn from service). Accordingly, I find that the 

Secretary has established a violation of section 57.12023. 

2. Negligence 

 Edminister testified that Original Sixteen had not been cited previously for failure to 

guard or insulate the welder under section 57.12023, that there was no evidence that a guard had 

ever been in place, and that the welder was being used infrequently for back-up. Tr. 147-48. I 

credit Michael Miller’s testimony that he had a good-faith belief that he had complied with the 

standard by removing the battery. However, given that the welder was in service for back-up use, 

it posed a safety hazard. Therefore, I find that Original Sixteen was moderately negligent in 

violating the standard. 

K. Citation No. 8695863 

 Inspector Edminister issued 104(a) Citation No. 8695863 on September 19, 2012, 

alleging a violation of section 57.4131(c) that was “unlikely” to cause an injury that could 

reasonably be expected to result in “lost workdays or restricted duty,” and was caused by 

Original Sixteen’s “moderate” negligence.19 The “Condition or Practice” is described as follows: 

The area around the Upper Bench mine opening used for ventilation is not being 

kept clear of dry vegetation within 25 feet of the opening. The area within 25 ft of 

the opening has tall dry vegetation ranging up to 4 ft tall. This area is accessed 

annually for the required fan maintenance inspections. This condition exposes 

miners working underground to smoke related injuries in the unlikely event of a 

fire. 

Ex. P-12A. 

1. Fact of Violation 

In support of affirming the violation, the Secretary argues that there is no evidence that 

the blockage of the Upper Bench opening was air- or smoke-tight. Sec’y Br. at 26-27, 30. 

Original Sixteen counters that section 57.4131(c) applies only to openings that affect ventilation. 

Resp’t Br. at 19-20. 

Edminister testified that he observed dry vegetation within 25 feet of the Upper Bench 

mine opening, and that an electrical box was located near the opening. Tr. 149; Exs. P-12B, P-

 19 30 C.F.R. § 57.4131(c) provides that “[d]ry vegetation shall not be permitted within 25 

feet of mine openings.” 

38 FMSHRC Page 1497
12C, P-16 at 43, R-1, R-2, R-3. He opined that the standard does not require that the opening 

affect ventilation. Tr. 199. Despite the location of the electrical box, he stated that he did not find 

an ignition or heat source in the vicinity of the Upper Bench opening. Tr. 212. 

Michael Miller testified that the Upper Bench area had one of seven mine openings listed 

in Original Sixteen’s Compliance Book. Tr. 599; Exs. P-14C, P-14D. According to him, the 

Upper Bench opening has been completely blocked off by a natural cave-in since 1978 or 1979, 

and there was “no possibility of air to get from the outside through the cave-in.” Tr. 601. He 

stated that in the 1970s the lessee of the Upper Bench had tried to get air into the opening by 

installing a fan, but failed, because it was totally blocked. Tr. 602. He further stated that the 

Upper Bench opening had never been used for ventilation, and that he had informed Edminister 

of this fact. Tr. 564-65, 600. He also stated that he offered to perform a diagnostic test to 

determine whether air was flowing into or out of the opening, but Edminister declined, 

responding that the only relevant question was whether there was an opening. Tr. 564-65. 

I fully credit Michael Miller’s testimony that there had been a cave-in which completely 

sealed-off what once had been an opening into the mine. Aside from Edminister’s conclusory 

testimony that the Upper Bench has an opening, the Secretary merely relies upon Original 

Sixteen’s Compliance Book to support this allegation. However, as discussed more fully below, 

the Compliance Book is demonstrably inaccurate. For lack of supporting evidence, I find that the 

Secretary has not carried his burden of demonstrating that there was, in fact, a mine opening at 

the Upper Bench requiring a 25 foot clearance, and proving a violation of section 57.4131(c). 

Therefore, I vacate the citation. 

 

38 FMSHRC Page 1498
L. Citation No. 8613455 

 Inspector Gulati issued 104(a) Citation No. 8613455 on October 11, 2012, alleging a 

violation of section 104(d)(1) of the Act that had “no likelihood” of causing an injury that could 

reasonably be expected to result in “no lost workdays,” and was caused by Original Sixteen’s 

“high” negligence.20 The “Condition or Practice” is described as follows: 

The mine operator is continuing to operate the mine underground even though a 

104(d)(1) order No. 8695849 for non compliance was issued was on September 

18, 2012. The order required the mine operator or his agent to withdraw all 

persons from all underground areas of the mine, except those persons required for 

elimination of the conditions described in the order. The mine was engaged in 

production and other unrelated activities in areas outside the area cited in the 

order. The President of the company said that they have been mining a heading on 

the 816 level and had blasted five times (each round about 4 feet). The condition 

has not been designated “significant and substantial,” because the conduct 

violated a provision of the Mine Act, rather than a mandatory safety or health 

standard. 

Ex. P-3A. 

1. Fact of Violation

According to the Secretary, because Original Sixteen was in a production mode and 

required by section 57.11050 to have a secondary escapeway, Order No. 8695849, though 

restricted to the 21 Tunnel, effectively withdrew miners from all underground areas. Sec’y Br. at 

9, 13, 14. The Secretary also contends that withdrawal orders can only be lifted by inspection 

confirming that underlying conditions have been abated. Sec’y Br. at 14. 

 20 Section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1), provides, in pertinent part, that: 

If . . . an authorized representative of the Secretary finds that there has been a 

violation of any mandatory health or safety standard, and if he also finds that . . . 

such violation is of such nature as could significantly and substantially contribute 

to the cause and effect of a coal or other mine safety or health hazard, and if he 

finds such violation to be caused by an unwarrantable failure of such operator to 

comply with such mandatory health or safety standards, he shall include such 

finding in any citation . . . . If . . . an authorized representative of the Secretary 

finds another violation of any mandatory health or safety standard and finds such 

violation to be also caused by an unwarrantable failure of such operator to so 

comply, he shall forthwith issue an order requiring the operator to cause all 

persons in the area affected by such violation, except those persons referred to in 

subsection (c) to be withdrawn from, and to be prohibited from entering, such 

area until an authorized representative of the Secretary determines that such 

violation has been abated.

38 FMSHRC Page 1499
Original Sixteen argues, conversely, that the mine was in an exploration mode, requiring 

no secondary escapeway, and that it was not working while under a withdrawal order because 

Randy Cardwell, a conference and litigation representative in MSHA’s Vacaville field office, 

had advised Original Sixteen by phone that the withdrawal order was lifted. Resp’t Br. at 8-12. 

Gulati testified that section 104(d)(1) of the Act required Original Sixteen to withdraw all 

miners from all underground areas of the mine, except for those required to abate the conditions 

identified in the order. Tr. 332-33, 339. He stated that Michael Miller had told him during the 

pre-inspection conference that they had been mining at the 816 heading, that they had blasted 

one round the day before, and four rounds the week before inspection. Tr. 329-30; Ex. P-17 at 3, 

6. He testified that each blast advanced the face of the tunnel four feet and, in his opinion, there 

was no possibility that the blasting was related to abatement of any outstanding withdrawal 

order. Tr. 330-33. Gulati stated that Michael Miller told him that he had called MSHA’s 

Vacaville field office, and been advised that the withdrawal order had been lifted. Tr. 349; Ex. 

P-17 at 6-7. Gulati also testified that there was no written indication of Miller’s contention, and 

that MSHA’s policy is to lift withdrawal orders in writing, rather than over the telephone. Tr. 

355, 358. Inspector David Blankenship testified that he was also present for the pre-inspection 

conference, and that he heard Miller state that they had been blasting during the preceding week. 

Tr. 363-64. 

Edminister opined that while Order No. 8695849, on its face, withdrew miners from the 

21 Tunnel only, it had the effect of withdrawing them from all underground areas of Sixteen to 

One because the mine was in a production mode, requiring a secondary escapeway. Tr. 89-90. 

 Aguirre testified that the last time he had engaged in blasting was approximately 2010, 

that he imagined that there was blasting in 2012 but he did not know by whom, that he did not 

know whether any blasting had been performed to advance the face, and that he did not 

remember being told that the mine was under a withdrawal order. Tr. 455, 461, 463. Sauer 

testified that sometime in October 2012, Michael Miller directed him to drill and blast in the 16-

1 shaft in order to explore for gold. Tr. 489. He also stated that he did not recall being put on 

notice that the mine was under withdrawal orders or what the miners were required to do in light 

of them. Tr. 528-29. Michael Miller testified that he received a phone call from CLR Cardwell 

stating that “Order 8613455 was lifted.” Tr. 550. 

At the time of Gulati’s inspection, the mine’s only two secondary escapeways, the 600 

and 1000 level travelway and the 21 Tunnel, had been taken out of service. The 600 and 1000 

level escapeway was taken out of service to terminate Citation No. 8612841; the 21 Tunnel was, 

apparently, under two withdrawal orders: Order No. 8695849 withdrew miners from the 21 

Tunnel only; Order No. 8695846 withdrew miners from all underground areas of the mine based 

on a determination that Original Sixteen was operating in a production mode without a 

mandatory secondary escapeway in service. During the pre-inspection conference, Gulati was 

advised that mining had been taking place in the 816 heading. Interestingly, following the 

Secretary’s theory that Original Sixteen was producing rather than exploring, it is curious that 

Gulati did not cite the operator for failure to have a secondary escapeway in service under 

section 57.11050. Even more puzzling is Gulati’s failure to cite Original Sixteen for working in 

the face of withdrawal Order No. 8695846, the order affecting the entire underground mine. 

38 FMSHRC Page 1500
Here, the Secretary is advancing an expansive construction of 21 Tunnel-specific Order No. 

8695849 to cover a scenario where work was being performed elsewhere underground. 

Evidently, however, there was activity going on behind the scenes at MSHA respecting Order 

No. 8695846, which provides, at least, one plausible explanation for Gulati’s election not to cite 

that order. 

 Michael Miller contends that Cardwell had advised him that a withdrawal order had been 

lifted. Gulati’s testimony, intended to cast doubt on this contention, was that MSHA lifts 

withdrawal orders in writing, rather than telephonically. Less than two weeks after Gulati’s 

inspection, however, MSHA modified withdrawal Order No. 8695846 to a 104(a) citation. When 

considering that action, in conjunction with Gulati’s election to cite Original Sixteen for 

violating the withdrawal order that was restricted to an area other than where the miners were 

actually working, Miller’s contention rings true. Miller’s obvious misidentification of the order 

number, as 8613455, in no way diminishes the credibility of his testimony. The evidence as a 

whole makes it likely that MSHA had already decided to lift withdrawal Order No. 8695846 at 

the time of Gulati’s inspection on October 11, that Gulati was aware of this fact, and that the 

paperwork, completed on October 22, was a mere formality. Therefore, having found that no 

mining was taking place in the 21 Tunnel, as prohibited by cited withdrawal Order No. 8695849, 

I find that the Secretary has not established that Original Sixteen was operating in the face of that 

withdrawal order in violation of section 104(d)(1) of the Act. 

M. Citation No. 8613452 

 Inspector Gulati issued 104(a) Citation No. 8613452 on October 10, 2012, alleging a 

violation of section 57.14100(b) that was “unlikely” to cause an injury that could reasonably be 

expected to result in “permanently disabling” injuries, and was caused by Original Sixteen’s 

“moderate” negligence.21 The “Condition or Practice” is described as follows: 

It is mandatory that defects on any equipment, machinery, and tools that affect 

safety shall be corrected in a timely manner to prevent the creation of a hazard to 

persons. This was not done for the 2 ton electric hoist (located in the 800 station), 

in that the safety latch was missing from the hook. The purpose of the latch is that 

it retains slings or chains under slack conditions. This defect affected safety, in 

that, an inadvertent detachment of slack sling or a load from the hook could result 

in serious injuries to the miners in the vicinity. According to President and miner, 

the hoist had not been used for about 7 years. This was neither taken out of 

service, nor tagged to prohibit further use and was connected to power supply. 

The miner said that he did not notice it, because the hoist was not in operation. 

 

 21 30 C.F.R. § 57.14100(b) provides that “[d]efects on any equipment, machinery, and 

tools that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to 

persons.” 

38 FMSHRC Page 1501
Standard 57.14100b was cited 1 time in two years at mine 0401299 (1 to the 

operator, 0 to a contractor). 

Ex. P-13A. The citation was terminated on October 15 after a safety clip was installed. 

Ex. P-13C.

1. Fact of Violation 

Original Sixteen argues that its window of opportunity to correct the defect in a “timely 

manner” had not elapsed at the time of inspection, and that it should have been cited, if at all, for 

a failure to lock- and tag-out the hoist, because compliance with section 57.14100(b) required it 

to undergo costly repairs to abate the citation. Resp’t Br. at 20. It further argues that the hoist 

was tied behind a wooden barrier until the inspector entered the area, and that the barrier to entry 

into the abandoned workings extended into the “hoisting area.” Resp’t Br. at 20. 

Gulati testified that the standard requires Original Sixteen to repair equipment defects or 

withdraw defective equipment from service through lock- and tag-out procedures. Tr. 320-21. 

Gulati stated that in a workstation adjacent to an inclined shaft that had been barricaded for 

several years, he observed a hook connected to a two-ton hoist, which was plugged into a power 

supply. Tr. 320-23, 343; Ex. P-13D. He stated that he did not observe evidence that the hoist was 

barricaded or tagged out of service, or that it had been recently operated, but he observed that the 

hook lacked a safety clasp, i.e., a latch bridging the hook’s opening. Tr. 321-23. The absence of 

the clasp, he explained, rendered the hook defective, because a rope or sling gone slack during 

lifting would be at risk of inadvertent slippage from the hook. Tr. 321. If a two-ton load were to 

detach from the hook, he testified, such weight would be reasonably expected to cause serious 

musculoskeletal crushing injury to a nearby miner’s feet. Tr. 324-25. Such injury would be 

unlikely to occur, he concluded, because Michael Miller had represented to him, and Gulati 

agreed based on the condition of the hoist’s chain, that the hoist had not been used for a long 

period of time. Tr. 323-24. 

Michael Miller testified that he did not challenge Gulati’s observations, and agreed that 

the hook lacked a safety clasp. Tr. 578-80. However, he opined, Original Sixteen should have 

been cited for failing to lock- and tag-out the hoist, if at all, since section 57.14100(b) allows for 

repair of defects before equipment is put back in service. Tr. 578-80. Miller stated that the safety 

clasp had been missing for “a while,” and contended that there was no electric power in the hoist 

area, and that the hoist was off to the side of the travelway. Tr. 577, 579-80. 

The record establishes that the missing safety clasp was a defect affecting safety, that the 

hoist was not barricaded or tagged out of service, and that the absence of the safety clasp posed a 

risk of inadvertent detachment of a heavy load, creating a crushing hazard to nearby miners. 

Regarding whether Original Sixteen failed to correct the safety defect in a timely manner, the 

evidence supports a finding that the incline shaft had not been used for several years, and that the 

hoist had been used to perform work related to the shaft. Therefore, I find that the safety defect 

had existed, at least, for several years before the 2012 inspection. As stated previously, the 

Secretary cited Original Sixteen within its discretion, and nothing prevented the operator from

abating the violation by removing the hoist from service, rather than repairing it. Accordingly, I 

38 FMSHRC Page 1502
find that the safety defect was not corrected in a timely manner, and that the Secretary has 

established a violation of section 57.14100(b). 

2. Negligence 

 Gulati opined that Original Sixteen’s negligence was moderate because the hoist was in 

an open and obvious location, although not in an active heading. Tr. 325, 346. Original Sixteen 

offered no countervailing evidence regarding negligence. In light of the evidence that the 

violation had existed for several years and was open and obvious, I conclude that Original 

Sixteen was moderately negligent in violating the standard. 

N. Citation No. 8695892 

 Inspector Edminister issued 104(a) Citation No. 8695892 on October 18, 2012, alleging a 

violation of section 57.8520(b)(8) that had “no likelihood” of causing an injury that could 

reasonably be expected to result in “no lost workdays,” and was caused by Original Sixteen’s 

“moderate” negligence.22 The “Condition or Practice” is described as follows: 

The provided plan of the mine ventilation system did not include the location of 

known openings adjacent to the mine. Revisions of the system shall be noted and 

updated at least annually. The Ventilation Plan/Mine Map and revisions thereto 

shall be submitted to the District Manager for review and comments. 

Ex. P-14A. The citation was terminated on November 2 based upon submission of a revised 

Ventilation Plan showing changes to the mine’s ventilation network. Ex. P-14B. 

1. Fact of Violation 

The Secretary argues that the list of mine openings in the Compliance Book did not 

satisfy the standard, and that there is no evidence that the blockage in the Upper Bench opening 

was air- or smoke-tight. Sec’y Br. at 30. Original Sixteen contends that the standard only 

requires openings affecting ventilation to be depicted on the mine map and, therefore, only the 

primary escapeway and the 21 Tunnel were needed in the Ventilation Plan. Resp’t Br. at 21. 

Edminister testified that the standard requires that mine openings be identified on the 

mine map, or depicted through a schematic or series of schematics that are correlated to the map. 

Tr. 196, 200. He asserted that Michael Miller told him that there were seven openings to the 

mine that provided ventilation, each of which were listed as mine openings in a hand-written 

addendum to Original Sixteen’s Compliance Book and that, depending on barometric pressure, 

the air flow through those openings changes. Tr. 152, 198-99; Exs. P-14C, P-14D, P-14E, P-14F, 

 22 30 C.F.R. § 57.8520(b)(8) provides that “[a] plan of the mine ventilation system shall 

be set out by the operator in written form . . . . The plan shall, where applicable, contain the 

following: . . . (b) The current mine map or schematic or series of mine maps or schematics of an 

appropriate scale, not greater than five hundred feet to the inch, showing: (8) Locations of known 

underground mine openings adjacent to the mine.” 

38 FMSHRC Page 1503
P-16 at 67. He explained that even if an opening does not affect ventilation, it is required to be 

depicted on the map so that mine openings are easily identifiable in the event of an emergency. 

Tr. 199. Edminister also contended that only the primary portal and the 21 Tunnel secondary 

escapeway were depicted on the mine map, and that he cited Original Sixteen for a paperwork 

violation only, because those locations were not depicted on the map as mine openings. Tr. 156-

57; Exs. P-14H, P-14I. He also testified that, in hindsight, the gravity of the violation was more 

accurately “unlikely” to cause an injury that could reasonably be expected to be “fatal,” because 

inadequately documented mine openings would not be inspected for evidence of collapse, and 

pose some likelihood of exposing miners working underground to asphyxiation. Tr. 157-58. 

Michael Miller testified, in essence, that rather than cluttering the mine map with all 

seven openings, Original Sixteen diagrammed the openings, which satisfied section 

57.8520(b)(8). Tr. 583, 589-90. He also explained that those seven openings had been used for 

ventilation at various times up until 2000, when the primary escapeway and the 21 Tunnel 

secondary escapeway, exclusively, became Sixteen to One’s ventilation system. Tr. 588-89. 

Miller did acknowledge, however, that the openings listed in the Compliance Book were not 

accurate, and identified one of them as the Upper Bench opening at issue in Citation No. 

8695863; he also conceded that the schematics were not drawn to scale. Tr. 600-03. 

By Original Sixteen’s own account, the mine openings listed in the Compliance Book 

were inaccurate and the schematics were not to scale; at least one opening, at the Upper Bench, 

was completely sealed and, thus, no longer an “opening.” In accordance with the plain language 

of the standard, I find that neither the mine map nor the Compliance Book satisfied the 

requirements of the standard. Despite these inaccuracies, I find no reason to escalate the level of 

gravity charged by the citation beyond a paperwork violation because Original Sixteen’s 

Compliance Book, at the very least, included, and put MSHA on notice of, all operative mine 

openings. Accordingly, the Secretary has established a violation of section 57.8520(b)(8). 

2. Negligence 

Edminister opined that Original Sixteen’s negligence was moderate because the 

deficiencies in the mine map had not been cited previously by MSHA. Tr. 159. Michael Miller 

testified credibly that Original Sixteen did not knowingly violate this standard or omit the 

openings from the mine map in order to avoid inspection requirements. Tr. 582. Notwithstanding 

Original Sixteen’s intent, I find that it was moderately negligent in violating the standard because 

it knew or should have known the requirements for a compliant ventilation plan, that the mine 

map entries were incomplete, and that the schematics in the Compliance Book were inaccurate 

and not to scale. 

IV. PENALTIES 

 While the Secretary has proposed civil penalties totaling $7,843.00, the Judge must 

independently determine the appropriate assessment by proper consideration of the six penalty 

criteria set forth in section 110(i) of the Act, 30 U.S.C. § 820(i). See Sellersburg Co., 5 

FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d 1147 (7th Cir. 1984). 

38 FMSHRC Page 1504
 Applying the penalty criteria, and based upon a review of MSHA’s online records, I find 

that Original Sixteen is a very small operator, only employing a skeletal crew of three miners in 

addition to the owner/operator, with an overall history of violations that is not an aggravating 

factor in assessing appropriate penalties. I also find that Original Sixteen generally demonstrated 

good faith in achieving rapid compliance after notice of the violations. Original Sixteen asserts 

that it is “broke.” Resp’t Br. at 10. The Commission has held that the mine operator has the 

burden of proving that the proposed penalty will affect its ability to continue in business. 

Sellersburg, 5 FMSHRC at 294 (citing Buffalo Mining Co., 2 IMBA 226, 247-48 (Sept. 1973)). 

As has been noted in an earlier Original Sixteen decision, the operator’s failure to submit an 

audited financial report to substantiate its contention provides an insufficient basis for an 

inability-to-pay defense. 36 FMSHRC at 2251. Without proof of Original Sixteen’s financial 

status, I find that the proposed penalties will not affect Original Sixteen’s ability to continue in 

business. 

 The remaining criteria involve consideration of the gravity of the violations, and Original 

Sixteen’s negligence in committing them. These factors have been discussed fully, respecting 

each violation. Therefore, considering my findings as to the six penalty criteria, the penalties are 

set forth below. 

A. Citation No. 8612839 

It has been established that this violation of section 57.3200 was unlikely to cause an 

injury that could reasonably be expected to be fatal, that Original Sixteen was moderately 

negligent, and that it was timely abated. Therefore, I find that a penalty of $100.00, as proposed 

by the Secretary, is appropriate. 

B. Citation No. 8612841 

It has been established that this violation of section 57.11051 was unlikely to cause an 

injury that could reasonably be expected to be fatal, that Original Sixteen was moderately 

negligent, and that it was timely abated. Therefore, I find that a penalty of $100.00, as proposed 

by the Secretary, is appropriate. 

C. Citation No. 8695844 

It has been established that this S&S violation of section 57.11051 was reasonably likely 

to cause an injury that could reasonably be expected to be fatal, that it was caused by Original 

Sixteen’s high negligence and unwarrantable failure to comply with the standard, and that it was 

timely abated. Therefore, I find that a penalty of $2,000.00, as proposed by the Secretary as the 

statutory minimum, is appropriate. 

D. Order No. 8695848 

It has been established that this S&S violation of section 57.18025 was reasonably likely 

to cause an injury that could reasonably be expected to be fatal, that it was caused by Original 

Sixteen’s high negligence and unwarrantable failure to comply with the standard, and that it was 

38 FMSHRC Page 1505
timely abated. Therefore, I find that a penalty of $2,000.00, as proposed by the Secretary as the 

statutory minimum, is appropriate. 

E. Order No. 8695849 

It has been established that this S&S violation of section 57.3360 was reasonably likely 

to cause an injury that could reasonably be expected to be fatal, that it was caused by Original 

Sixteen’s high negligence and unwarrantable failure to comply with the standard, and that it was 

timely abated. Therefore, I find that a penalty of $2,000.00, as proposed by the Secretary as the 

statutory minimum, is appropriate. 

F. Citation No. 8695846 

It has been established that this S&S violation of section 57.11051 was reasonably likely 

to cause an injury that could reasonably be expected to be fatal, that it was caused by Original 

Sixteen’s high negligence, and that it was timely abated. Based on these factors, and considering 

the operator’s small size, I find that a penalty of $500.00 is appropriate. 

G. Citation No. 8695857 

It has been established that this violation of section 57.20011 was unlikely to cause an 

injury that could reasonably be expected to be fatal, that it was caused by Original Sixteen’s 

moderate negligence, and that it was timely abated. Therefore, I find that a penalty of $100.00, as 

proposed by the Secretary, is appropriate. 

H. Citation No. 8695859 

It has been established that this S&S violation of section 57.3200 was reasonably likely 

to cause an injury that could reasonably be expected to result in lost workdays or restricted duty, 

that it was caused by Original Sixteen’s moderate negligence, and that it was timely abated. 

Therefore, I find that a penalty of $100.00, as proposed by the Secretary, is appropriate. 

I. Citation No. 8695860 

It has been established that this violation of section 57.4560(c) was unlikely to cause an 

injury that could reasonably be expected to be fatal, that it was caused by Original Sixteen’s low 

negligence, and that it was timely abated. Based on these factors, and considering the operator’s 

small size, I find that a penalty of $100.00 is appropriate. 

J. Citation No. 8695861 

It has been established that this violation of section 57.12023 was unlikely to cause an 

injury that could reasonably be expected to result in lost workdays or restricted duty, that it was 

caused by Original Sixteen’s moderate negligence, and that it was timely abated. Therefore, I 

find that a penalty of $100.00, as proposed by the Secretary, is appropriate. 

38 FMSHRC Page 1506
K. Citation No. 8695863 

The Secretary has failed to establish a violation of section 57.4131(c). Therefore, I 

VACATE this citation. 

L. Citation No. 8613455 

The Secretary has failed to establish a violation of section 104(d)(1) of the Act. 

Therefore, I VACATE this citation. 

M. Citation No. 8613452 

It has been established that this violation of section 57.14100(b) was unlikely to cause an 

injury that could reasonably be expected to result in permanently disabling injuries, that it was 

caused by Original Sixteen’s moderate negligence, and that it was timely abated. Based on these 

factors, and considering the operator’s small size, I find that a penalty of $100.00 is appropriate. 

N. Citation No. 8695892 

It has been established that this violation of section 57.8520(b)(8) had no likelihood of 

causing an injury that could reasonably be expected to result in no lost workdays, that it was 

caused by Original Sixteen’s moderate negligence, and that it was timely abated. Therefore, I 

find that a penalty of $100.00, as proposed by the Secretary, is appropriate. 

V. APPROVAL OF SETTLEMENT

 The parties have filed an Unopposed Motion to Approve Partial Settlement respecting 15 

of the 29 citations/orders involved in these dockets. A reduction in penalty from $2,298.00 to 

$1,199.00 is proposed.23 The citations and orders, initial assessments, and proposed 

settlement amounts are as follows: 

Docket No. Citation/Order No. 

Initial 

Assessment 

Proposed 

Settlement 

 

WEST 2013-323-M 8613451 $100.00 $60.00 

8695841 $100.00 $0.00 

8695850 $100.00 $60.00 

8695851 $243.00 $200.00 

8695852 $243.00 $200.00 

8695853 $100.00 $100.00 

8695854 $100.00 $0.00 

8695855 $243.00 $0.00 

8695856 $100.00 $100.00 

 23 Corrections made to the Motion for the Initial Assessment and Proposed Settlement 

amounts for Citation No. 8695856 have adjusted the subtotals for Docket No. WEST 2013-323-

M, and the grand totals for all three dockets. See Penalty Petition. 

38 FMSHRC Page 1507
8695858 $243.00 $100.00 

8695862 $112.00 $112.00 

SUBTOTAL: $1,684.00 $932.00 

WEST 2013-365-M 8695896 $207.00 $207.00 

8695897 $100.00 $0.00 

8695898 $100.00 $60.00 

SUBTOTAL: $407.00 $267.00 

WEST 2013-486-M 8695895 $207.00 $0.00 

SUBTOTAL: $207.00 $0.00 

TOTAL: $2,298.00 $1,199.00 

I have considered the representations and documentation submitted in these matters under 

section 110(k) of the Act, and I conclude that the proffered settlement is appropriate under 

section 110(i) of the Act. 

ORDER

WHEREFORE, it is ORDERED that Citation Nos. 8613455, 8695841, 8695854, 

8695855, 8695897, 8695895 and 8695863 are VACATED. 

It is further ORDERED that Citation Nos. 8612839, 8612841, 8613452, 8695844, 

8695846, 8695853, 8695856, 8695857, 8695859, 8695860, 8695861, 8695862 and 8695892; and 

Order Nos. 8695848 and 8695849 are AFFIRMED, as issued. 

It is further ORDERED that the Secretary MODIFY the following citations as follows: 

the degree of negligence in Citation No. 8695850 to “none” and Citation Nos. 8695851 and 

8695852 to “low;” the level of gravity in Citation Nos. 8613451 and 8695858 to remove the 

“significant and substantial” designation, and Citation No. 8695898 to “lost workdays or 

restricted duty;” and Citation No. 8695896 to incorporate the “Condition or Practice” language 

of Citation No. 8695897; and that these citation are AFFIRMED, as modified. 

It is further ORDERED that Original Sixteen to One Mine, Incorporated, PAY a civil 

penalty of $8,499.00 within thirty (30) days of the date of this Decision.24 ACCORDINGLY, 

these cases are DISMISSED. 

/s/ Jacqueline R. Bulluck 

Jacqueline R. Bulluck 

Administrative Law Judge 

24 Payment should be sent to: Mine Safety and Health Administration, U.S. Department 

of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket 

number and A.C. number. 

38 FMSHRC Page 1508
Distribution: 

Patricia Drummond, Esq., U.S. Department of Labor, Office of the Solicitor, 90 Seventh Street, 

Suite 3-700, San Francisco, CA 94103 

Michael Miller, President, Original Sixteen to One Mine, Inc., P.O. Box 909, 527 Miners St., 

Alleghany, CA 95910 

/tcp 

38 FMSHRC Page 1509
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004 

TELEPHONE: 202-434-9933 / FAX: 202-434-9949 

June 16, 2016 

DECISION 

Appearances: Dominique C. Gutierrez, Esq., U.S. Department of Labor, Nashville, 

Tennessee, for Petitioner 

James F. Bowman, Midway, West Virginia, for Respondent 

Before: Judge Moran 

Introduction 

This matter involves a single section 104(d)(1) order, Order No. 8296433, (hereinafter 

“Order 433”), issued on December 16, 2014, for an alleged violation of 30 C.F.R. § 77.1606(c). 

The standard, titled “Loading and haulage equipment; inspection and maintenance,” provides in 

the cited subsection (c) that “[e]quipment defects affecting safety shall be corrected before the 

equipment is used.”1

 For the reasons that follow, the Court affirms Order 433 and each of its 

associated findings, including that the violated standard was significant and substantial (“S&S”) 

and constituted an unwarrantable failure. The Court further determines that the proposed 

specially assessed civil penalty of $21,900.00 represents an appropriate penalty upon application 

of the statutory criteria set forth at 30 U.S.C. §820(i). 

1

 The predicate for correcting defects, namely finding them, is expressed in the same 

standard, at subsection (a), which requires that “[m]obile loading and haulage equipment shall be 

inspected by a competent person before such equipment is placed in operation. Equipment 

defects affecting safety shall be recorded and reported to the mine operator.” 30 C.F.R. § 

77.1606(a). 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

KENTUCKY FUEL CORPORATION, 

 Respondent. 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 2015-528 

A.C. No. 15-19475-381445

Mine: Beech Creek Surface Mine 

38 FMSHRC Page 1510
Findings of Fact 

Order 433, issued on December 16, 2014, asserts: 

The John Deere 200C Excavator (SNFF200CX507060) in operation at this mine 

had defects affecting safety (Excessive oil leaks, Back-up Alarm) recorded in the 

pre-operational [“pre-op”]2

 exam record book on 12-14-2014. No corrective 

action was taken to correct these conditions prior to the operator placing the 

equipment in service on this day. The pre-operational exams are turned in to the 

operator and filed on a daily basis. Failure to correct defects affecting safety prior 

to placing equipment into operation constitutes more than ordinary negligence and 

would reasonably likely contribute to a serious accident. Standard 77.1606(c) was 

cited 7 times in two years at mine 1519475 (7 to the operator, 0 to a contractor. 

This violation is unwarrantable.3

 

 The events which led up to the issuance of Order 433 are important to understand as they 

involve three other violations involving the same excavator. Each of those three violations was 

issued on the same day as Order 433, and each was paid and each represents a final order. 

MSHA Inspector Douglas Rutherford, the inspector who issued the alleged violations in this 

case, testified in this proceeding. Inspector Rutherford is an experienced and knowledgeable 

inspector, with ten years’ experience in the private mining sector. Tr. 28-30. He was at the Beech 

Creek Mine on December 16, 2014 to perform an E01, (i.e. regular), inspection. Tr. 32. 

Testifying as to the matters which led up to the issuance of Order 433, the inspector first 

identified Ex. P4 as the citation he issued on December 16, 2014, Citation No. 8296430, 

(hereinafter “Citation 430”), for a non-functioning automatic backup alarm on an excavator, a 

John Deere 200C. Tr. 36. Moments later, Inspector Rutherford issued Citation No. 8296431, 

(hereinafter “Citation 431”), on the same equipment, this time for an insulator wire that was not 

properly bushed. The wire ran from the cab’s roof. Tr. 36. Finally, again only minutes later, a 

third citation was issued on the same piece of equipment, Citation No. 82964342 (hereinafter 

“Citation 432”), “for accumulations of combustible material – oil, oil-soaked rags, leaves – that 

were present on the machine.” Tr. 37; see also Exs. P6 A, B. As noted, all three citations 

involved the same piece of equipment, the John Deere excavator, and all three citations became 

final orders prior to the commencement of this proceeding. Tr. 37; Exs. P10, P11, P12, P13. 

 The inspector then testified about the order at issue in this proceeding, Order 433, which 

was issued the same day, on December 16, 2014. Ex. P7. Order 433, issued for the same John 

Deere excavator, alleged that “the two hazards [cited in Citation 430 and Citation 432 for a nonfunctioning backup alarm and accumulations of combustible material] were not corrected prior to 

                                                             2

 The pre-operational exam was more frequently referred to by the parties as the “pre-op” 

exam. 

3

 The inspector recommended Order 433 for special assessment and the recommendation 

was adopted by MSHA. The Secretary then proposed a specially assessed civil penalty of 

$21,900.00. 

38 FMSHRC Page 1511
putting the machine in service on December 14th, 2014.” Tr. 39. Initially, Order 433 was issued 

as a citation for a violation of 30 C.F.R. §77.1606(a), but the inspector subsequently viewed the 

pre-op exam records for the equipment, which led him to conclude that the mine operator knew 

of the hazards on the excavator.4

 Tr. 40. Thus, he concluded that the operator put the machine in 

use, though aware of the defects. Id. 

 The inspector confirmed that, as to the same excavator, he later learned that the pre-op 

exam records that the operator provided to him applied to December 14th, 2014. Those records 

documented the hazards cited in Citations 430, 431, and 432, which were issued around noon. 

He concluded that the operator was aware of the hazards, as his initials were at the bottom of 

those pre-ops, noting the hazards. Tr. 41. Those exhibits and the associated testimony support the 

Court’s finding of such operator awareness as to the backup alarm and excessive oil or hydraulic 

leaks. 

 Each of the four Pre-shift Safety Check List exhibits, Exs. P7 A, B, C, and D, which were 

admitted into the record, will now be discussed. Ex. P7 A is from the operator’s pre-op book 

(“Equipment Operator’s Pre-Shift Safety Check List”) and it is the carbon (yellow) copy of the 

pre-op check that was performed by Ricky Justice on December 13, 2014 on the John Deere 200 

excavator in issue. The box for “Back Alarm,” has an “X” in it, signifying that “Repairs 

Required.” It lists the equipment machine engine’s hours as “75791.”5

 Ex. P7 B is the second 

photo the inspector took of the pre-ops, and it shows the top (white) copy for Ex. P7 A. Thus, 

Exs. P7 A and P7 B involve the same pre-op: the white top copy and the yellow carbon copy for 

December 13, 2014 for the same equipment performed by Justice and initialed by superintendent 

Perry Ryder. As they are copies, the recorded machine hours of 75,791 are the same for Exs. P7 

A and P7 B. The difference is that, for Ex. P7 B, superintendent Ryder’s initials are on the white 

top copy and, oddly, the white copy had, admittedly, been wadded up. 

                                                             4

 As the inspector further explained: 

The pre-op examination record that the operator provided me with actually went 

back to December 14th of 2014. So it documented the hazards that I wrote at 

noon, you know, [at] 12[:]13 [p.m.], 12[:]14, [and] 12[:]15. So the operator was 

aware, due to the fact that he had initialed at the bottom of those pre-ops, the fact 

that the equipment operator had noted those hazards existing. So it wasn’t until I 

was provided with those records that I knew that the operator actually knew that 

that had occurred. 

Tr. 41. 

5

 As the inspector explained, the equipment hours figure represents approximately the 

number of hours “that the engine has actually ran [sic].” Tr. 123. Those numbers indicate that the 

equipment ran about 10 hours between December 13th and 14th, 2014. 

38 FMSHRC Page 1512
The third photo, Ex. P7 C, is a pre-op white copy made on December 14th for the same 

John Deere 200 excavator. This copy, as with the pre-op for the December 13th, also lists an “X” 

for the “Back Alarm,” meaning “Repairs Required.” Only the initials “BH,” appear on Ex. P7 C, 

referring to foreman Bernie Harper. Tr. 127. It also reflects the machine’s engine hours, this time 

recorded as 75,890.1. 

Last, is Ex. P7 D. It is a photograph of another top, (i.e. white copy), pre-op for the same 

equipment, bearing the same date as Ex. P7 C, December 14th, 2014. As with Ex. P7 B, Ex. P7 D 

is another perplexingly “crumpled up” pre-shift safety pre-op. Ex. P7 D is signed by Ricky 

Justice and initialed by superintendent Ryder. Tr. 44-45. 

The following is also noted regarding the first box for the pre-shift safety check list items. 

For Ex. P7 A, the top box on the form, which is designated for excessive oil or hydraulic leaks, is 

blank. Blanks are not allowed. One is to either leave a check mark, indicating the item is okay; a 

zero to indicate that repairs have been made, or an X to mark that repairs are required. The box 

for excessive oil or hydraulic leaks is also blank in Exs. P7 B and P7 C, but in P7 D, applying to 

the same date, December 14, 2014, an X is marked, indicating repairs required. 

Accordingly, two of the photos deal with December 13th, and two deal with December 

14th, yet there are other differences. Ex. P7 A, the yellow copy, and Ex. P7 B, the white copy, 

plainly represent the same pre-shift safety check for the John Deere excavator on December 

13th. However, Ex. P7 C lists the backup alarm box as repair required, and the box for excessive 

oil or hydraulic leaks left blank, while Ex. P7 D lists the box for excessive oil or hydraulic leaks 

as “repairs required,” but identifies the backup alarm as okay. Both are white top copies and 

therefore they are clearly different pre-shift safety checks for the day shift for that equipment. A 

comparison of the check marks on Exs. P7 C and P7 D obviously shows that, unlike Exs. P7 A 

and P7 B, they are not copies of the same safety check for December 14th. Further, Ex. P7 C has 

only Bernie Harper’s initials on it, whereas Ex. P7 D, as noted, is signed by Ricky Justice and 

initialed by superintendent Ryder. What Exs. P7 A through D share is that, except for Ex. P7 D, 

the equipment’s backup alarm box was marked as “Repairs Required.” In addition, Exs. P7 A, 

P7 B, and P7 C leave the box for excessive oil or hydraulic leaks blank, but Ex. P7 D, dated 

December 16, 2014, lists “Repairs Required” for that topic. 

 As stated, Order 433, citing 77.1606(c), deals with correcting hazardous conditions prior 

to placing equipment in service. In sum, setting the stage for the alleged 77.1606(c) violation, 

there was Citation 430, dealing with the inoperative backup alarm, Citation 431 pertaining to the 

un-bushed insulated wire passing through the cab roof, and Citation 432, involving the 

accumulation of combustible materials. Tr. 49. With those predicate violations, there is then 

Order 433 – the charge at issue here – that the operator placed the vehicle back into service, 

knowing of those predicate violative conditions and failing to correct them. 

 For the backup alarm citation, Citation 430, the inspector stated that he issued that 

violation upon observing the excavator’s alarm not working. Tr. 57. This was not immediately 

obvious, as there was clearly an element of deception attempted about the alarm’s operability. 

When the equipment operator was first directed to back up the equipment, an alarm sounded. 

However, the inspector then discerned that the alarm was triggered by a manual toggle switch, 

38 FMSHRC Page 1513
not by an automatic backup feature. Thus, the inspector’s take on the manual switch’s presence 

did not place the operator in a good light, as he expressed that: 

the toggle switch where the [equipment operator] made it appear that the alarm 

was working as he traveled to [the inspector’s] location[.] [However] when [the 

inspector] asked [the equipment operator] to push the lever, that hand was [then] 

being used to push the lever; [and] therefore, he couldn't reach over and flip that 

toggle alarm. That toggle alarm is actually illegal, and it's only there to make it 

appear that the machine was motion-activated. 

Tr. 64. 

The inspector noted this issue to the operator and the response was “that the equipment 

was leased and that the manual toggle alarm was present on the machine when it was delivered to 

the mine.”6 Tr. 58 (emphasis added). In contrast, the motion-activated backup alarm was not 

working. Tr. 58. The inspector reiterated that the mine superintendent, Perry Ryder, stated to him 

that the equipment was leased, and the manual toggle alarm was present on the machine when it 

was delivered to the mine. That is, the superintendent was initially contending to the inspector 

that the equipment had been leased and that the toggle alarm had been added to it prior to the 

machine’s delivery to the mine. Tr. 50, 65, 69. 

 For Order 433, again with the standard at issue here requiring that safety defects be 

corrected before the equipment is used, the inspector listed the violation as reasonably likely, lost 

work days or restricted duty, and S&S. For the accumulation of oil, Citation 432, he marked the 

gravity as reasonably likely, lost work days or restricted duty and S&S. The latter concern was 

that, in the event of a fire, a miner could receive burns. Ex. P6 A shows the accumulations and 

the inspector pointed out oil and dust and oil-soaked leaves and materials. Ex. P6 B reflects the 

rags which were in the battery compartment. Tr. 52. Ex. P6 C shows the battery compartment 

with the dark areas showing oil accumulations too. Tr. 53. This was hydraulic oil, which the 

inspector stated has a flash point of approximately 400 degrees Fahrenheit. The insulating wire 

coming through the cab was identified as an ignition source for that oil. Tr. 53. 

 

The inspector stated that he issued the 104(d) order because of “the extent of the cited 

conditions and the evidence that was provided . . . that the operator had initialed off on two 

separate pre-op examination records, that those existing hazards were marked on those records.” 

Tr. 66. The inspector was first provided with “the actual record book itself with the carbon copy 

provided. That was dated for December the 13th, 2014.” Tr. 66-67. 

The mine superintendent told the inspector that the pre-op procedure involved the 

equipment operator performing the pre-op checklist and then tearing off the white copy and 

bringing that to the supervisor at the mine office at the start of the shift. The operator would then 

determine what hazards to correct. Tr. 67. 

                                                             6

 Whether the manual toggle switch was present when delivered to the mine, or installed 

later at the mine, it is hard to appreciate the value of such a non-automatic device. 

38 FMSHRC Page 1514
The inspector stated that Order 433 was not duplicative of the previously-issued citations 

because it was not issued for the same standard on the same day for the same piece of equipment. 

Tr. 74. He explained the difference: his earlier issued citations were because of the obvious 

nature of the conditions he observed, namely the added manual toggle switch and the inadequate 

pre-op for safety hazards before putting the equipment in service. However, the inspector again 

acknowledged that at 4:16 p.m. that day the operator did provide a record, showing that those 

hazards had been listed.7

 Tr. 74. While thereby escaping a violation of section 77.1606(a) by 

showing that an inspection occurred, albeit an incomplete inspection since no entry was made for 

the oil leaks box in Exs. P7 A, B, or C, those three exhibits disclosed the defective backup alarm. 

By using the equipment in the face of the inoperative backup alarm, the operator’s own pre-shift 

records disclosed that defect affecting safety and the operator’s use of that equipment before it 

was corrected was established, per Citation 430. 

In terms of the oil accumulations, considering the amount the inspector observed and that 

accumulations were observed on leaves, and further considering that, as it was December, such 

leaves had not fallen recently, the inspector modestly estimated that the condition had existed for 

“multiple shifts.” Tr. 76. This was based on “the amount of oil in accumulation and the ability 

for the float dust to actually soak up in the oil on the machine, all stated that, you know, they had 

not cleaned that machine off prior to my inspection.” Tr. 77. This translated into his opinion that 

the condition had existed for four or five days. Because the operator provided no mitigating 

circumstances, he deemed the negligence to be high for Order 433. The inspector also concluded 

that the operator knew of the condition, as it disclosed to him by the operator that the equipment 

was in that condition when it was brought to the mine.8 Tr. 78. 

Though no 110(c) violation charges were ever filed, the inspector did file the matter with 

MSHA as a possible knowing and willful violation. His recommendation was based on the 

wadded up sheets and “[t]he conditions themselves being as obvious as they were and the sheets 

being wadded up and no mitigating circumstances, you know, to be given, I would consider that 

 

                                                             7

 In issuing Order 433, the inspector listed that if an equipment fire were to occur, a 

miner (with one person affected) would be reasonably likely to receive a burn resulting in lost 

work days or restricted duty. Tr. 74-75. The involved standard, 77.1606(c), had been cited seven 

times in the last two years. Tr. 75. 

8

 The inspector rejected the possibility that the condition had been repaired and that it 

then reoccurred because “if that was the case, it would have been documented by the equipment 

operator as repaired, which is a circle, on the pre-op records. . . . [and t]he extent of the 

accumulation, it had not been removed from the time that the machine had been dropped off.” 

Tr. 78. 

 

38 FMSHRC Page 1515
– you know, I consider that constituting more than ordinary negligence,” and also because the 

operator made no effort to correct the problems. 9

 Tr. 80. 

Respondent’s cross-examination of the inspector began with Citation 431, in which the 

inspector asserted that there were bare wires exposed at the top of the excavator’s cab. As noted, 

the deficiency was a failure to provide a rubber bushing. The wire was insulated except for the 

location where it entered the machine. This did not create an electric shock hazard. Rather, the 

hazard was an ignition source. Tr. 91. In terms of the accumulations, the inspector recalled that 

there was oil in the bottom of the battery compartment, and he maintained that in Ex. P6 B, 

though the rags had been moved to the front of the excavator for disposal, the cable wire itself 

was still touching the oily rags. Tr. 94. Regarding the location of the wire, it could not be simply 

described as on the exterior of the door. More accurately, “it was the exterior of the door above 

the compartment but it was inside the door in the compartment.” Tr. 94-95 (emphasis added). 

Accordingly, “[i]t extended from the cab through that compartment over to the battery.” Tr. 95. 

                                                             9

 Asked to explain why he marked the gravity and negligence as more severe in Order 

433 than he had for the earlier issued citations, the inspector stated: 

[t]he underlying citations were issued at moderate negligence because the mine 

operator does train his miners to perform proper pre-operational exams prior to 

placing the machine in service. The reason I cited the order as high is because 

there were no mitigating circumstances after the operator was provided [with the] 

record from the equipment operator that those hazards existed, [ ] they weren’t 

corrected. 

Tr. 81-82. As noted, the matter was specially assessed at $21,900.00, per Ex. P15, versus the 

$4,600.00 figure that a regular assessment would have yielded under Part 100. Also, Ex. P14, the 

underlying “d” citation, was admitted into the record, as it had become a final order. Tr. 85. 

38 FMSHRC Page 1516
 Speaking to Citation 432, the inspector made it clear that he had not contended that he 

observed oil leaks, but rather that his citation was for accumulations of combustible material. Tr. 

96. 10

 

The inspector stated that he issued Order 433 based on what he saw in the pre-op records. 

Tr. 107. Those records were not provided when he was at the machine but only later that day, at 

4:16 p.m. Tr. 107. 

 The inspector marked the backup alarm citation, Citation 430, as unlikely “because there 

was no visible foot traffic around the machine that day.” Tr. 111. The negligence was marked as 

moderate because miners are trained by the operator to look for those defects prior to operating 

such machinery. Id. Ex. P4 A, is a photo of the manual toggle switch. Tr. 112. The Court would 

note that the toggle switch is not a subtle or miniscule addition to the excavator. The inspector 

                                                             10 The Court did acknowledge that, in Order 433, the inspector referred to “[e]xcessive oil 

leaks.” Tr. 106. Respondent made much of the description as an “oil leak.” The problem is that it 

was not a legitimate or pertinent issue. The inspector did not dispute that oil leaks had been 

corrected prior to his issuance of the citation for the accumulations, stating that the “oil leaks 

would have been corrected or I would have physically seen oil leaks.” Tr. 104. The inspector 

also agreed that for Order 433, the accumulations violation was abated in two minutes. Tr. 102. 

When he went back to the excavator at 18:02 or 18:04, (i.e. at 6:02 and 6:04 p.m.) he did not 

observe any oil leaks at that time. Asked to consider that if oil leaks had been previously written 

up two days earlier, and then to postulate that one subsequently sees the machine after that and 

that no leaks are then present, if the leaks could be considered to have been repaired, the 

inspector agreed with that hypothetical. Tr. 103. The inspector was asked, in light of that 

hypothetical, why he included excessive “oil leaks” in Order 433. His response was that “[t]hat is 

what the operator recorded on his pre-operational exam.” Tr. 103. He agreed that there was no 

evidence of any leaks after the pre-op exam for the 14th, as his citation was issued for 

“accumulations of oil [which] were only there because of the preexisting oil leaks.” Tr. 104. He 

discounted the notion that the oil could’ve been from a spill, because it was over the entire 

equipment. Tr. 104. Again, the inspector did not dispute that the oil leaks were corrected at some 

point prior to his issuing the order on the 16th. Tr. 104. The inspector expressed that the photos 

in Exs. P6 A-D, are supporting documentation for Citation 432. They relate to Citation 432, he 

explained, as contributing to the issuance of that order. As Respondent continued to refer to the 

problem as “oil leaks,” though that was never the inspector’s contention, the Court finally 

pointed this out: “Mr. Bowman, you’ve hit this like three times now. . . . [h]e said there was no 

oil leak . . . . [h]is focus was accumulation of combustible materials . . . .” Tr. 106. The inspector 

stated that he wrote excessive oil leaks instead of accumulation of oil-soaked material because 

that is the condition miners are trained to look for, not accumulations of combustible materials, 

and therefore he was documenting the defects that the miner was recording for the operator to 

address, using the term employed in the pre-shift check list. Id.

38 FMSHRC Page 1517
did not inquire as to how the backup alarm was repaired, but he did require that the miner 

demonstrate to him that it had been repaired. Tr. 112. 

 Understandably, the inspector did consider the wadded up pre-ops as reflecting high 

negligence, taking note that both of the wadded up pre-ops were the only ones initialed by the 

foreman. Tr. 114-15. As he stated: “I have no way of knowing why they were wadded up, but 

both of the wadded-up pre-ops were initialed off of by the superintendent. That was the proof 

that he knew of those conditions existing prior to my order.” Tr. 115. 

 Respondent later presented a claim to justify wadding up the pre-ops. Respondent 

suggested to the inspector that the respondent will contend that “when he goes to the machine, 

they leave the . . . yellow copy on the machine, they take the white copy and they wad it up so 

they can toss it down to him so it doesn’t blow back under the machine.” Tr. 116. The inspector 

was not persuaded by the contention, because, as it was explained to him, “the operator stated 

that the original, which would be the white copy you’re referring to, is turned in to the foreman 

at the mine office.” Id. Noting that he found no wadded up yellow copies, the inspector also 

rejected the notion that the yellow copy is the one that is kept, as the yellow copy is “the one 

that’s retained normally at the piece of equipment, but at this piece of equipment this day, there 

were no records of any kind [on the equipment]. That’s why we traveled back to the mine office, 

because the operator referred to me that they were located at the mine office.” Id. 

 As to the claim that the violations in Citation 430 (citing section 77.410, for the manual 

motion switch) and Order 433 (citing section 77.1606(c)), for a defect affecting safety), were 

duplicative, the inspector noted that they cited different standards. Tr. 117. Despite attempts to 

muddle the issue by the Respondent, the inspector made it clear that he did not cite the same 

condition in Citation 430 and Order 433. In Order 433 he was citing section 77.1606(c) for 

putting the machine in service prior to correcting a safety defect. Tr. 129. The Court agrees there 

is no duplication. 

The key consideration in this matter is that the defective conditions had been noted in the 

December 13th and 14th pre-ops, yet the operator placed the machine in operation prior to 

correcting those conditions. Tr. 118. 

Trying to paint a different picture, Respondent’s representative asked the inspector about 

Ex. P7 A , the yellow copy of the pre-op check in which the backup alarm was marked with an 

“X.” Tr. 119. That pre-op check was made by Ricky Justice. Accordingly, the inspector noted 

that the pre-op marked the alarm as defective. Tr. 120. When that occurs, the equipment operator 

is obligated to inform his immediate supervisor of the issue and, following that, the equipment is 

to be repaired or taken out of service. Id. 

The Court, with witness Inspector Rutherford agreeing, noted that Exs. P7 A and P7 B 

are not the same. The foreman’s initials are at the bottom of Ex. P7 B, the crumpled up copy, 

whereas those initials are not present on Ex. P7 A. Tr. 121. Further, while Respondent made a 

claim that the photo of one sheet, Ex. P7 A, was incomplete, critically, the line for the foreman’s 

signature is visible in all four photos of the pre-shift check list. Thus, that empty claim is 

inconsequential and the respondent did not attempt to introduce, as it could have, its own copy of 

38 FMSHRC Page 1518
that exhibit. The inspector stated that Ex. P7 A reflects the full sheet and Court finds that to be 

the fact. That is to say, there are no lines or room for additional information below the line for 

“Mine Foreman.” Tr. 124. Per the testimony, the line for the initials or signature for the mine 

foreman would only be on the white copy. Id. 

The Court has noted that the record reflects two white copy pre-shift safety check lists for 

December 14th. Exs. P7 C, D. There would be two pre-ops performed if the equipment were 

used on two shifts. Tr. 126. This was the starting point for Respondent’s farfetched theory that 

during the day shift somebody did a pre-op and found something wrong and that it was then 

corrected. This claim rests on the idea that foreman Harper did a pre-op on December 14th, and 

then employee Ricky Justice did another pre-op that same day. Tr. 127. The Ricky Justice-signed 

pre-shift check was one of the two crumbled up sheets. Ex. P7 D. That pre-shift check has a 

check beside the back alarm category, indicating that the alarm was okay. Tr. 128. Thus, 

Respondent contended that those two pre-ops support its claim that after Harper noted the 

condition it was repaired and that Justice’s failure to note a problem shows it was repaired by the 

time of his inspection. Tr. 128. The inspector’s answer to this is that the mine superintendent, 

Perry Ryder, admitted to him that the machine was in the cited toggle-switch-installed condition 

when it was dropped off on December 13th. Tr. 128. Further, the two sheets both list the safety 

check list as applying to the day shift for the same day. 

Perry Ryder, mine superintendent, was called by the Respondent. He stated that on 

December 16, 2014, the day the citations were issued, he was at the mine. Tr. 133-134. He stated 

that the job was shut down, in idle status, on the day the inspector arrived. Present were foreman 

Harper, Justice, the machine operator, and Greg Wyatt, a mechanic. The equipment in issue had 

arrived at the mine site around December 11th. Tr. 135-136. Ryder stated that on that day he 

arrived at the mine site and looked at the excavator with foreman Harper. On that day, he found 

no problem with that equipment and proceeded to tram it to the top of the hill, a four to five hour 

process because the equipment moves so slowly. Tr. 136-137. Ryder stated that the excavator’s 

backup alarm was “definitely working” that day. Tr. 137. He acknowledged that the backup 

alarm is automatic; it is to alarm automatically whenever the foot pedal is used. Tr. 137-38. 

However, Ryder also conceded that there was a point in time when the alarm was not 

working. The fix, he stated, was simple: a mechanic only had to clean the switch, as it was only 

occasionally not making contact. Tr. 139. As to the other switch on a mounted bracket, Ryder 

asserted at the hearing that the manual toggle switch was not on the equipment when he first got 

the excavator.11 Tr. 140-141. Referring to that other switch, Ryder stated: “there’s a – a mounted 

bracket there with a switch on it. That is the one that – that the inspector said the backup alarm 

was hooked to, but, now, that switch was not on there when I got the excavator.” Tr. 140. Ryder 

asked Justice if he installed the additional, (i.e. manual), toggle switch on the machine and 

Justice told him he did not. Justice did not know who installed the switch. Very oddly, given the 

small number of personnel at the operation, while asserting at the hearing that the switch had 

been installed after the excavator arrived at the mine, no one knew who installed the switch. This 

claim, in the Court’s estimation, is hard to accept as true and it is not accepted as credible. Ryder 

                                                             11 Ryder confirmed that, per Ex. P4 A, the two red wires which connect to the toggle back 

up switch, is the manually operated backup switch. Tr. 142. 

38 FMSHRC Page 1519
reaffirmed his version of the events, affirming that “between the time that [he] took the excavator 

up the hill and the time that the inspector saw this condition, this switch had been added to it.” 

Tr. 141-42. Again, the Court would comment that this story does not make sense and further it 

doesn’t explain why anyone would add a manual backup switch to the equipment, especially if 

the automatic switch was really working. 

Ryder stated that he didn’t challenge the 104(a) citation but took issue with the 104(d) 

order, stating: 

I didn’t argue with the 104, because evidently when I got to the machine, when I 

told him that the backup alarm did work, it did work, because I’d had a problem 

with the operator telling me one time that it didn’t work, and then when I went to 

the machine, it was working. I had no problem with the 104 on that. But when he 

come back and abated the one – the second citation as a (d) order, I thought 

personally that was ridiculous, because we was working on the machine, doing 

our best to get it right to get it fixed, because if something don’t work, it’s hard to 

find out what it is unless you can work on it when it ain’t working. But when it is 

working, you don’t know where the problem’s at. 

Tr. 145. 

In this regard, Ryder noted that the negligence regarding the backup alarm, Ex. P4, was 

marked as moderate but that for Ex. P7, it was marked as high. Tr. 145-46. Regarding the preops, for Ex. P7 A, performed on the 13th, Ryder agreed that there is an X marked for the backup 

alarm and he admitted that meant the alarm was not working. Tr. 147-48. Ryder stated that he 

took possession of that pre-op exam form. Tr. 148. On that day, he asserted that, upon noting the 

non-working backup alarm notation, he inquired about it with Mr. Justice, asking him to move 

the equipment forward and back, and that the alarm worked when he did that. Therefore, he 

agreed that Justice “went ahead and operated the machine.” Tr. 150. 

A more fantastic claim accompanied that story, as Ryder attempted to explain why the 

pre-op form was crumpled up. Ryder stated that he picks up the pre-ops. The procedure for 

transferring those pre-ops forms from the operator who performed the pre-op to him is unusual, 

to say the least. 

Asked how the machine operator transfers his pre-op report from his machine down to 

him, Ryder asserted: 

 

[w]ell, it all depends on the location that he’s in. If he’s working in a ditch where 

there’s mud and there’s water and he’s a-digging a ditch, a lot of times they’ll just 

fold it up in their hand and swing that machine around, and I’m standing there, 

 

38 FMSHRC Page 1520
and they’ll pitch it on the ground to me, and I get it. But I always straighten them 

back out. 

Tr. 150-51. Thus, he asserted that the pre-op is delivered to him as a crumpled up ball of paper. 

This method, he contended, prevents the pre-op report from landing in a mudhole. Tr. 151. 

Again, Ryder reasserted that the backup alarm was “absolutely” working. Tr. 151. 

As for Ex. P7 C, Ryder stated that Harper made that pre-op, finding that the alarm was 

not working. Tr. 152. Ex. P7 D reflects another pre-op exam on the same day and also for the 

day shift made by Ricky Justice. It was stated that this second pre-op was done because Justice 

was a new operator of the equipment that day and each new operator must perform his own preshift. Justice found oil leaks, but recorded nothing about any backup alarm problem. Tr. 153. 

This led Ryder to conclude that, while the alarm was not working on the 13th, it was working on 

the 14th. Further, Ryder stated that no backup alarm issues were reported to him on the 15th or 

16th. Tr. 154. As to the “oil leak” issue, Ryder maintained that there were no such leaks on the 

equipment. Rather, there were only “oil spots” from the O-ring that had blown. Tr. 154. 

However, this claim is also doubtful as he admitted that the O-ring is located in an entirely 

different area of the equipment than the area depicted in photograph in Ex. P6 A, and further 

Ryder agreed that any oil depicted in Ex. P6 A would not be due to a blown O-ring. Tr. 163. 

On cross-exam, Ryder agreed that the excavator was available for use on the 16th as it was not 

tagged out. As to his procedure, he was asked if, per his deposition testimony, his practice is to 

write “corrected” when equipment has been repaired, at the hearing he stated, “[n]ot always.” Tr. 

158. The Court inquired about the repair of the backup alarm. Ryder confirmed that a mechanic 

came out from Wayne Equipment to fix the alarm, but he couldn’t give the name of the 

individual, nor the date that the work was done. Tr. 160. Nor did he know if there was a bill for 

that work, as the mechanic worked full-time for Bevins Branch, which is part of the same 

company as Kentucky Fuel. Tr. 161. 

Discussion 

 One must not lose sight of the fact that each of the predicate citations, identified in this 

proceeding as Citations 430, 431 and 432, were all conceded as violations. That left the one 

matter in this litigation – whether 30 C.F.R. §77.1606(c) was violated in Order 433. The Court 

concludes that the preponderance of the credible evidence clearly establishes that standard 

77.1606(c) was violated and that Order 433 was both an unwarrantable failure and an S&S 

violation, though, technically, to sustain the order, only the unwarrantable failure finding must be 

explored, as the underlying section 104(d)(1) citation was not contested and had become a final 

order. The evidence shows that the backup alarm was not working on December 13th and 14th, 

and that excessive oil or hydraulic leaks were also present, at least on December 14th. The 

bushing issue, in Citation 431, found by the inspector on December 16th, and later conceded to be 

a violation and a final order, also presented a risk of fire. 

 The credible evidence establishes that the backup alarm and oil accumulation defects 

were recorded and the operator continued to use the excavator in contravention of section 

77.1606(c). The Respondent’s claims in defense are too tall to be believed. Whether one 

considers – either the story that the excavator came with the toggle switch, or the alternative 

38 FMSHRC Page 1521
story that it did not, but instead that some unknown person at the mine later installed the switch, 

for purposes unknown; or the story that the operator employed the highly unusual method of 

delivering pre-shift reports by wadding them up into a ball, though a more plausible method of 

delivery was first presented to the inspector; or the story that the backup alarm was not working 

on December 14th, per Ex. P7 C, but must have been fixed by someone that same day, as the 

other pre-shift box for that category, per Ex. P7 D, was checked as okay – all of these stories are 

too much to be deemed credible, collectively or individually. Very simply, the evidence 

establishes that the equipment, though defective, continued to be used on December 16, 2014, in 

violation of 30 C.F.R. § 77.1606(c). 

Significant and substantial determination 

A violation is properly designated as S&S in nature if, based on the particular facts 

surrounding that violation, there exists a reasonable likelihood that the hazard contributed to by 

the violation will result in an injury or an illness of a reasonably serious nature. Cement Div., 

Nat’l Gypsum, 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 

1984), the Commission explained: 

In order to establish that a violation of a mandatory safety standard is [S&S] 

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 [by the violation] will result in an injury; and 

(4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature. 

Id. at 3-4; see also Austin Powder Inc. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), 

aff’g 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). With respect to the third 

element of Mathies, an S&S finding requires a determination that the violation contributes 

significantly and substantially to the cause and effect of a hazard. U.S. Steel Mining Co., Inc., 6 

FMSHRC 1866, 1868 (Aug. 1984). Resolution of whether a particular violation of a mandatory 

standard is S&S in nature must be made assuming continued normal mining operations. U.S. 

Steel Mining Co., Inc., 1 FMSHRC 1125, 1130 (Aug. 1985). Thus, consideration must be given 

to both the time frame that a violative condition existed prior to the issuance of a citation, and the 

time that it would have existed if normal mining operations had continued. Bellefonte Lime Co., 

20 FMSHRC 1250 (Nov. 1998); Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986). In the final 

analysis, the essence of an S&S violation is whether it is reasonably likely that the hazard 

contributed to by the violation will result in an event in which there are serious or fatal injuries. 

Bellefonte, 20 FMSHRC at 1254-55. 

 

38 FMSHRC Page 1522
For the reasons discussed above, the Court finds that the cited standard, section 

77.1606(c), was violated. The Court agrees with the Secretary’s identification of the several 

discrete safety hazards as 

[t]he accumulations of oil and other combustible materials, rags and leaves soaked 

in oil, combined with a bare wire at one location not secured by a bushing and 

touching the metal frame of the cab of the excavator created a safety hazard of an 

ignition. Exhibits P-6 and P-5. The motion-detector back-up alarm being 

inoperative while in reverse created another hazard of a collision. Exhibit P-4. 

Sec’y Br. at 12. 

 The Court further agrees that the violation presented a reasonable likelihood of injury. 

Though there was no foot traffic on that day, it is undeniable that foot traffic would occur during 

continued normal mining operations. Further, the excavator could strike one of the other pieces 

of equipment at the site. A manually operated toggle switch contravenes the essential purpose of 

backup alarms – they are to operate automatically, as the standard, 30 C.F.R. §77.410(a)(1), 

provides that mobile equipment with an unobstructed rear view shall be equipped with a warning 

device that gives an audible alarm when the equipment is put in reverse. And, though the backup 

alarm issue was sufficient in its own right, there was the improperly bushed wire and the 

accumulations of combustible materials, each independently presenting an S&S violation. Nor 

can those findings be collaterally attacked now, as the backup alarm, the bushing deficiency, and 

the accumulations of combustible material are all final orders, with their special findings 

included. The failure to correct those defects listed in the pre-shift check list, and those not listed 

or left blank, each constituted equipment defects affecting safety and they were to be corrected 

before the equipment is used. Testimony also supports the Court’s conclusion that any injury 

which might occur would be reasonably serious. The cited standard, requiring that equipment 

defects affecting safety shall be corrected before the equipment is used, is inextricably tied to the 

hazardous conditions found on the excavator by the inspector and cited in the predicate citations, 

each of which were affirmed and became final orders of the Commission. 

Unwarrantable failure determination 

 The Commission has spoken definitively on the subject of unwarrantable failure. In ICG 

Hazard, LLC, 36 FMSHRC 2635 (Oct. 2014) (“ICG Hazard”), it modified a judge’s finding of 

unwarrantable failure to a section 104(a) citation, holding that such a finding must be based on 

an examination of specific criteria. Noting that it has “defined ‘unwarrantable failure’ as 

‘aggravated conduct constituting more than ordinary negligence,’” Manalapan Mining Co., 35 

FMSHRC 289, 293 (Feb. 2013) (citing Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 

1987)),” it reviewed that the criteria for determining whether conduct is “aggravated,” includes 

(1) the extent of the violative condition, (2) the length of time that 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 that greater efforts were 

38 FMSHRC Page 1523
necessary for compliance. See IO Coal Co., 31 FMSHRC 1346, 1351-57 (Dec. 

2009); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on 

other grounds, 195 F.3d 42 (D.C. Cir. 1999). 

Id. at * 2637. Though the Commission acknowledged that “not all factors may be relevant to 

every case, all relevant factors must be examined.” Id. 

Similarly, in Mach Mining, LLC, 34 FMSHRC 1769 (Aug. 2012) (“Mach Mining”), the 

Commission earlier noted that 

. . . the ‘unwarrantable failure’ terminology is taken from section 104(d) of the 

Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in 

connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 

1987), the Commission determined that unwarrantable failure is aggravated 

conduct constituting more than ordinary negligence, and we characterized it in 

such terms as “reckless disregard,” “intentional misconduct,” “indifference,” or 

the “serious lack of reasonable care.” Id. at 2003-04. The Commission has further 

recognized that whether conduct is “aggravated” in the context of unwarrantable 

failure is determined by considering the facts and circumstances of each case to 

determine if any aggravating or mitigating circumstances exist. Factors relevant to 

that consideration include the length of time that the violation has existed, the 

extent of the violative condition, whether the operator has been placed on notice 

that greater efforts were necessary for compliance, the operator’s efforts in 

abating the violative condition, whether the violation was obvious or posed a high 

degree of danger, and the operator’s knowledge of the existence of the violation. 

See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) (“Consol”); 

Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other 

grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 

34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); 

Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992). **6 The Commission 

has repeatedly made clear that it is necessary for a judge to consider all relevant 

factors in determining whether an unwarrantable failure to comply with a standard 

has occurred. Coal River Mining, LLC, 32 FMSHRC 82, 89 (Feb. 2010); Windsor 

Coal Co., 21 FMSHRC 997, 1001 (Sept. 1999); San Juan Coal Co., 29 FMSHRC 

125, 129-31 (Mar. 2007) (remanding unwarrantable determination for further 

analysis and findings when judge failed to analyze all factors). While an 

administrative law judge may determine, in his or her discretion, that some factors 

are not relevant, or may determine that some factors are much less important than 

other factors under the circumstances, all of the factors must be taken into 

consideration and at least noted by the judge. IO Coal Co., 31 FMSHRC 1346, 

1351 (Dec. 2009). 

Id. at 1775. 

38 FMSHRC Page 1524
Here, upon weighing the factors relevant to a finding of an unwarrantable failure, the 

Court concludes that the operator’s conduct in using the excavator without correcting the 

recorded defects amounted to aggravated conduct constituting more than ordinary negligence. 

 

Specifically, the very nature of the operator’s conduct – that is, the decision to place the 

excavator into service with explicit knowledge of existing hazardous defects – based on 

previously-issued citations and pre-op hazard reports – is demonstrative of the obviousness of 

the conditions, and its knowledge of them. It is also noteworthy that there was more than one 

defect that was allowed to exist on the excavator and that these various defects presented discrete 

hazards, thus increasing the degree of danger from the Respondent’s conduct. Additionally, the 

evidence reflects that the subject excavator had been periodically operated from at least the time 

the December 13th pre-op examinations identified hazards, until the time Order 433 was issued 

three days later. In view of these aggravating factors, the Court finds that the violation was an 

unwarrantable failure. When one also considers the toggle switch installation, and the varying 

stories about its origination, the attempt to mislead the inspector about the backup alarm’s 

functioning, the wadded up pre-shift check lists, those all add up to indifference or a serious lack 

of reasonable care. 

Penalty Determination 

The Mine Act sets forth a bifurcated penalty scheme under which the “Secretary proposes 

penalties before a hearing based on information then available to him and, if the proposed 

penalty is contested, the Commission affords the opportunity for a hearing and assesses [the] 

penalty.” Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3101 (Dec. 2014) (quoting Sellersburg 

Stone Co., 5 FMSHRC 287, 291 (Mar. 1983), aff’d, 736 F.2d 1147, 1151-52 (7th Cir. 1984)). 

Under this bifurcated scheme, “[t]he Secretary’s regulations at 30 C.F.R. Part 100 apply only to 

the Secretary’s penalty proposals, while the Commission exercises independent ‘authority to 

assess all civil penalties provided [under the Act]’ by applying the six criteria set forth in section 

110(i) [of the Mine Act].” Id. (quoting 30 U.S.C. § 820(i)). The six section 110(i) factors are: 

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). Original Sixteen to One Mine, Inc., 38 FMSHRC __, slip op. at 6 (May 3, 

2016) (ALJ). 

 

38 FMSHRC Page 1525
Findings on the Statutory Penalty Criteria 

History of previous violations12

Kentucky Fuel Corporation’s history of violations is reflected in Ex. P2. With the mine 

history assessed at 10 points, that translates to a medium history, as does the 9 points given for 

its repeat violation history. Apart from the point structure, the Court finds that the Respondent’s 

violation history may be fairly described as medium. 

Mine Size 

Under the Part 100 point system, the mine was awarded 9 points, which characterizes it 

to be in the medium range and the controlling entity category, at 8 points, was determined to be 

in the high medium range. Apart from the point structure, the Court finds that the Respondent’s 

mine size may be fairly described, at the least, as medium. 

Ability to continue in business 

There was no claim that the proposed special assessment amount would impair the 

mine’s ability to continue in business. 

Good Faith 

This was a non-factor under the Part 100 calculation. The operator did tag out the 

equipment but this occurred in the context of order being issued. The Court also finds that the 

good faith factor does not impact the penalty determination. 

Negligence 

As set forth above, the Court agrees that, in light of the pre-shift safety check list, the 

negligence was properly characterized as high. The Court has found that the violation was 

unwarrantable. 

Gravity 

The Court, having found that the violation was significant and substantial, agrees that the 

injury was reasonably likely to occur, that, at a minimum, lost workdays or restricted duty is the 

injury that could be reasonably expected, with one person affected. 

 

 

                                                             12 The mine size, its history of violations, and its good faith, were all calculated the same 

under the regular and special assessment. That is, under the special assessment for those 

categories, there was no increase in the point calculations over the points awarded under the 

regular assessment. 

38 FMSHRC Page 1526
Based on the application of the statutory criteria, as set forth at 30 U.S.C. §820(i), the 

Court imposes a civil penalty of $21,900.00 for the violation of 30 C.F.R. §77.1606(c). 

ORDER 

For the reasons set forth above, Order No. 8296433 is AFFIRMED. Respondent is 

ORDERED TO PAY the civil penalty of $21,900.00 for that violation. Upon PAYMENT of 

the full civil penalty hereby imposed, the captioned proceeding is DISMISSED. 

/s/ William B. Moran 

William B. Moran

Administrative Law Judge

Distribution (Certified Mail) 

Dominique C. Gutierrez, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue 

North, Suite 420, Nashville, TN 37219 

James F. Bowman, P.O. Box 99, Midway, WV 25878 

38 FMSHRC Page 1527
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004 

TELEPHONE: 202-434-9933 / FAX: 202-434-9949 

June 24, 2016 

DECISION DENYING MOTION 

FOR APPROVAL OF SETTLEMENT 

Before: Judge Moran 

This Court, tired of the Secretary’s continuing and habitual practice of providing empty 

explanations for its settlements, has no option but to deny the present settlement motion and to 

publish for public consumption the basis for the denial. As explained on numerous occasions, 

the Court has an obligation, pursuant to Section 110(k) of the Mine Act, 30 U.S.C. § 820(k), to 

approve settlements. This is not a ministerial task, though the Secretary views it as such, 

because the statutory language does not support such a claim and the Court must presume that 

Congress does not include empty provisions in legislation of any sort, much less in matters 

impacting the safety and health of miners. On this issue, while the Commission has a legislative 

mandate to follow, the Secretary possesses only pretentiousness. 

For each settlement, the Secretary offers the same empty chatter, advising: 

In reaching this settlement, the Secretary has evaluated the value of the 

compromise, the likelihood of obtaining a still better settlement, the prospects of 

coming out better, or worse, after a full trial, and the resources that would need 

to be expended in the attempt. The Secretary has determined that the public interest

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

NEWMONT USA LIMITED, 

 Respondent. 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2015-819 

A.C. No. 26-02512-386028

Mine: Leeville 

38 FMSHRC Page 1528
See, as a representative sample, Motion for Settlement, at 2 (Apr. 1, 2016) (“Motion”). With that 

offering, the Secretary then offers the same rote justification that 

the Secretary believes that the pleadings in this case and the above summary give the 

Commission an adequate basis for exercising its authority to review and approve the 

Secretary’s settlement under Section 110(k) of the Mine Act, 30 U.S.C. §820(k). 

Id. 

It is plain that were the Commission to accept the same mantra from the Secretary, the 

effect would be to endorse the Secretary’s view that Congress’ express language of the 

Commission’s role in settlements per Section 110(k) was an empty gesture. 

The Secretary then routinely moves on in its settlement motions to its secondary stance 

that, in view of litigation over the meaning and effect of Section 110(k), per The American Coal 

Co., 36 FMSHRC 1489 (May 2014) (ALJ) (appeal to the Commission pending), to offer what it 

purports to constitute as “information in support of the penalties agreed to by the parties.” Id. at 

3.

In this case, one in which the Secretary seeks a fifty percent (50%) reduction from the 

proposed penalty under 30 C.F.R. Part 100, the supporting information consists of 101 words, of 

which 60 provide nothing useful at all, to wit: 

The representative for the Secretary has reviewed the factual circumstances 

surrounding Citation No. 8869188 and is persuaded that there were mitigating 

circumstances that warrant a reduction in the gravity of the violation. ... The 

Secretary is willing to stipulate that the likelihood of injury is less than 

‘reasonably likely’, and in the interest of settlement, a reduction in gravity is 

warranted. 

 Id. The remaining 41 words are completely insufficient. In its entirety, the following is offered 

up: 

The respondent contends the small amount of material was along the rib on a 

windrow.1

 Respondent further contends no material had fallen in the middle of 

the drift where persons would travel and the wire ground support was still in 

place. 

Id. (emphasis added). 

1

 A “windrow” is defined as a long low ridge of road-making material scraped to the side 

of a road; a bank, ridge or heap. MERRIAM-WEBSTER DICTIONARY, http://www.merriamwebster.com/dictionary/windrow (last visited June 24, 2016). In short, it is a fancy term for a 

pile of material. 

and the effective enforcement and deterrent purposes of the Mine Act are best 

served by settling the citations as indicated above. 

38 FMSHRC Page 1529
The reader will take note that the Secretary says absolutely nothing about the accuracy of 

the Respondent’s contentions. Rather, the contentions are merely laid out, in a vacuum, free of 

endorsement or comment from the Secretary. All that the Secretary adds is that he is “willing to 

stipulate that the likelihood of injury is less than ‘reasonably likely’, and in the interest of 

settlement, a reduction in gravity is warranted.” Id. (emphasis added). But, neither the 

Commission, nor the public, nor any miner, is told why the Secretary is willing to so stipulate 

that the likelihood of injury is less than reasonably likely. The truth is that the Secretary’s 

grudgingly offered alternative is every bit as empty as his default position that he is not obligated 

to provide any solid reasoning for his settlements. This is inconsistent both with Congressional 

intent and with the protection of miners. It also does a disservice to the dedicated MSHA mine 

inspectors in their efforts to provide such protection.2

The issuing inspector’s section 104(a) citation presents a different picture, which is 

completely unaddressed by the Secretary. The inspector’s written citation provides that the 

ground support was not being maintained, for a 12 foot length which had a 18 foot height, in that 

wire was missing, bolts damaged, and shotcrete missing. Speaking to the likelihood of the 

hazard occurring, the inspector stated that there was loose material, which was scaled down 

easily, and that it was 13 inches by 9 inches by 3 inches and smaller. The inspector assessed the 

hazard presented by the cited condition as reasonably expected to present a permanently 

disabling injury in the event of the loose material falling and striking a miner. The Respondent’s 

contention that “the wire ground support was still in place,” is factually at odds with the 

inspector’s statement that the wire was “missing.” Where the Secretary stands on that factual 

conflict is anybody’s guess. Nor does the Secretary shed any light on the Respondent’s claim 

that there was a small amount of material along the rib on a windrow, presumably from the 

scaling that was then performed, and that no material had fallen in the middle of the drift where 

persons would travel. But scaling is a somewhat controlled process and therefore may not be 

indicative of what would have occurred if the material had simply fallen in an unplanned event. 

Accordingly, the Secretary is directed to either provide a legitimate factual basis to 

support the 50% reduction it seeks, or to prepare for a hearing. 

So Ordered. 

 /s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

                                                             2

 When the Court denies insufficiently justified settlement reductions, it routinely asks 

the Secretary to advise whether, in the course of reaching a settlement, it has consulted with the 

issuing inspector. After all, the issuing inspector is the administration’s eyewitness to the 

violative condition. The Secretary has never responded to this reasonable informational inquiry 

from the Court. Such a declaration, which does not require the particulars of the inquiry, is a 

way of ensuring that a settlement is factually reasonable from the Secretary’s point of view and 

therefore does not rely only on unverified assertions from a respondent. 

38 FMSHRC Page 1530
Distribution: 

D. Scott Horn, Conference and Litigation Representative, U.S. Department of Labor, MSHA, 

991 Nut Tree Road, Vacaville, CA 95687 

Hiliary N. Wilson, Esq., Newmont USA Limited, 1655 Mountain City Hwy, Elko, NV 89801 

38 FMSHRC Page 1531
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004 

June 28, 2016 

DECISION ON REMAND 

Before: Judge Feldman 

I. Procedural History

This single citation civil penalty proceeding, arising under the Federal Mine Safety and

Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”), involves Citation No. 6511548 

issued to West Alabama Sand and Gravel, Inc., (“West Alabama”) by the Department of Labor’s 

Mine Safety and Health Administration (“MSHA”). Citation No. 6511548 alleges that a truck 

driver climbed on top of his truck without fall protection on West Alabama’s mine property, in 

violation of 30 C.F.R. § 56.15005, which provides that “[s]afety belts and lines shall be worn 

when persons work where there is danger of falling. . . .” (emphasis added). Specifically, 

Citation No. 6511548 alleges: 

A customer truck driver [Johnny Koger, who was employed by Denbar 

Transportation,] was observed climbing on top of the loaded trailer. [Koger] was 

not wearing a safety belt and lanyard or any other type of restraining device to 

prevent a fall to the ground below. [Koger] was on his knees pulling on tarp 

within inches of the side of the trailer. [Koger] was exposed to a fall of ten feet to 

ground level. Clay Junkin (Vice President) engaged in aggravated conduct 

constituting more than ordinary negligence by his statement of knowing this was a 

hazard, and allowing this failure to comply with a mandatory standard. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

WEST ALABAMA SAND & GRAVEL, 

INC., 

 Respondent. 

CIVIL PENALTY PROCEEDING 

Docket No. SE 2009-870-M 

A.C. No. 01-02738-194100

Mine: West Alabama Sand & Gravel 

38 FMSHRC Page 1532
As there was no dispute of material facts, the initial disposition affirmed, through 

summary decision, the violation and its significant and substantial (S&S) designation, but ruled 

that it did not result from an unwarrantable failure1

 to comply with the standard in question. 

Consequently, the initial decision reduced the penalty from the proposed assessment of 

$15,971.00 to $760.00. 34 FMSHRC 1651 (July 2012) (ALJ). The Secretary appealed the 

deletion of the unwarrantable failure designation, which was based on a reduction in the degree 

of negligence attributable to West Alabama’s conduct, from “high” to “moderate,” and the 

resultant reduction in proposed civil penalty. 

The Commission now has vacated the initial decision with respect to the deletion of the 

unwarrantable failure, the reduction in negligence, and the reduction of the proposed penalty, 

directing my further consideration of these issues consistent with its remand decision. 37 

FMSHRC 1884, 1891 (Sept. 2015). 

Following a series of conference calls, on December 15, 2015, West Alabama stipulated 

that the subject section 56.15005 violation was attributable to an unwarrantable failure. 

Specifically: 

1. West Alabama stipulates to such facts as are necessary and sufficient to permit 

the Court to make a designation of unwarrantable failure under 30 U.S.C. § 

814(d)(1). 

2. West Alabama stipulates to such facts as are necessary and sufficient to permit 

the Court to make a designation of “high” negligence level. 

West Alabama’s Stipulation of Material Facts, at 1 (Dec. 15, 2015). 

Given West Alabama’s stipulation to the Secretary’s unwarrantable failure designation, 

the issue remains the appropriate penalty to be imposed for Citation No. 6511548. The statutory 

penalty range for a violation attributable to an unwarrantable failure under section 104(d)(1) of 

the Mine Act is between $2,000.00 and $70,000.00. 30 U.S.C. § 820(a)(1), (a)(3)(A). 

In considering the appropriate civil penalty, the parties were ordered to address the 

applicability of the section 110(i) statutory criteria, outlined below. 38 FMSHRC 383 (Feb. 

2016) (ALJ). In addition to addressing the section 110(i) penalty criteria, the Secretary noted: 

. . . that Respondent continues to consistently violate safety standards and 

essentially stopped paying assessed penalties in approximately January 2010, 

according to the Mine Data Retrieval System [“MDRS”]. Respondent’s history, 

 

 1

 The Commission has determined that the essence of unwarrantable failure is aggravated 

conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997 

(Dec. 1987). 

38 FMSHRC Page 1533
present refusal to pay assessed penalties, along with the admitted gravity and high 

negligence of this violation, support the Secretary’s assessed penalty. 

Sec’y Resp., at 12 (Mar. 9, 2016). Consequently, on May 9, 2016, the parties were further 

ordered to address whether delinquency in paying civil penalties is a relevant consideration in 

determining the appropriate penalty to be assessed. 38 FMSHRC __, slip op. (May 9, 2016) 

(ALJ). A discussion of the applicability of the section 110(i) criteria and delinquency follows. 

II. Application of Section 110(i) Criteria 

The Secretary proposes a $15,971.00 civil penalty. The Commission outlined the 

parameters of its responsibility for assessing civil penalties in Douglas R. Rushford Trucking, 22 

FMSHRC 598 (May 2000). The Commission stated: 

The principles governing the Commission’s authority to assess civil penalties de 

novo for violations of the Mine Act are well established. Section 110(i) of the 

Mine Act delegates to the Commission “authority to assess all civil penalties 

provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of 

proposing penalties to the Secretary. 30 U.S.C. §§ 815(a) and 820(a). Thus, when 

an operator notifies the Secretary that it intends to challenge a penalty, the 

Secretary petitions the Commission to assess the penalty. 29 C.F.R. §§ 

2700.28 and 2700.44. The Act requires that, “[i]n assessing civil monetary 

penalties, the Commission [ALJ] shall consider” six statutory penalty criteria: 

[1] the operator’s history of previous violations, [2] the appropriateness of 

such penalty to the size of the business of the operator charged, [3] 

whether the operator was negligent, [4] the effect of the operator’s ability 

to continue in business, [5] the gravity of the violations, and [6] the 

demonstrated good faith of the person charged in attempting to achieve 

rapid compliance after notification of a violation. 

22 FMSHRC at 600 (citing 30 U.S.C. § 820(i)). The Commission has noted that the de novo

consideration of the appropriate civil penalty to be assessed does not require “that equal weight 

must be assigned to each of the penalty assessment criteria.” Thunder Basin Coal Co., 19 

FMSHRC 1495, 1503 (Sept. 1997). 

In keeping with this statutory requirement, the Commission has held that “findings of fact 

on the statutory penalty criteria must be made” by its judges. Sellersburg Stone Co., 5 FMSHRC 

287, 292 (Mar. 1983). Once findings on the statutory criteria have been made, a judge’s penalty 

assessment for a particular violation is an exercise of discretion, which is bounded by proper 

consideration for the statutory criteria and the deterrent purposes of the Mine Act. Id. at 

294; Cantera Green, 22 FMSHRC 616, 620 (May 2000). In exercising my discretion, each 

penalty criterion shall be evaluated with regard to whether it is a mitigating, neutral, or 

aggravating factor. 

38 FMSHRC Page 1534
1. History of Violations

The Commission has addressed the appropriate considerations for evaluating the effect of 

the history of violations criterion in section 110(i) of the Mine Act: 

The Commission has recognized that “the language of section 110(i) does not 

limit the scope of history of previous violations to similar cases.” Secretary of 

Labor on behalf of Johnson v. Jim Walter Resources, Inc., 18 FMSHRC 552, 557 

(Apr. 1996). The Commission has explained that “section 110(i) requires the 

judge to consider the operator’s general history of previous violations as a 

separate component when assessing a civil penalty. Past violations of all safety 

and health standards are considered for this component.” Peabody Coal Co., 14 

FMSHRC 1258, 1264 (Aug. 1992) (emphasis added); see also Glover, 19 

FMSHRC at 1539 (remanding to the judge with instructions to consider the 

operator’s general history of violations, not only its prior section 105(c) 

violations). 

Cantera Green, 22 FMSHRC at 623. 

The Secretary asserts, and the MDRS reflects, that 17 citations were issued to West 

Alabama in the two-year period preceding the July 1, 2009, issuance of Citation No. 6511548. 

Of these 17 citations, 14 were designated as non-S&S in nature, and none of the subject 17 

violations were attributable to an unwarrantable failure. While the general violation history 

should be considered, it is noteworthy that, of these 17 citations, none cited section 56.15005—

the mandatory standard at issue in this matter. As only three of the 17 relevant cited violations 

evidence gravity of a reasonably serious nature, West Alabama’s history of violations is a 

mitigating factor. 

2. Appropriateness of Penalty to Size of Business 

The evidence of record reflects that West Alabama has approximately eight employees. 

The Secretary does not dispute that West Alabama has a small workforce. However, the 

Secretary disputes that a small workforce precludes imposition of a relatively high penalty, 

arguing that such limitation “goes directly against the deterrent purposes of the Act.” Sec’y 

Resp., at 12. I conclude that the size of West Alabama’s business operations, with respect to

the Secretary’s $15,971.00 proposed penalty, is a neutral factor. 

3. Negligence 

The Secretary’s unwarrantable failure designation fundamentally is based on a “gotcha” 

question from the MSHA inspector. Clay Junkin, Vice President of West Alabama, was asked by 

the inspector if he knew that truck drivers had to tie down when climbing on their trucks to 

secure loads. This confronted Junkin with the unenviable choice of admitting liability or 

admitting ignorance. Citation No. 6511548 informs that Junkin responded that he knew that haul 

truck drivers were required to tie down when covering their loads with tarp. 

38 FMSHRC Page 1535
Attempting to rehabilitate himself in this proceeding, Junkin now maintains that he was 

not aware that he was responsible for the contractor’s violative conduct. The Commission’s 

remand noted that I erred in the initial decision when I opined that Junkin’s purported lack of 

awareness of his responsibility for contractor conduct was based on a “reasonable and apparent 

good faith belief” that was a mitigating factor that reduced West Alabama’s degree of 

negligence. 37 FMSHRC at 1886. 

Of course, it is a “knew or should have known” standard that imposes the responsibly on 

mine operators to fulfill their obligations under the Mine Act. Thus, it is true that a mine 

operator’s professed ignorance of its responsibility for the unsafe conduct of its contractors is 

irrelevant. As the Secretary has acknowledged, absent aggravating circumstances, a mine 

operator’s accountability for the violative conduct of its contractor commonly is based on strict 

liability. Sec’y Resp., at 17. That is why such “gotcha” questions are inappropriate. 

Although the initial decision unsuccessfully attempted to pay lip service to West 

Alabama’s claim that it did know that it was responsible for its contractor’s conduct, the intended 

emphasis in the initial decision with respect to notice, which admittedly was not made clear, was 

that West Alabama had not been previously cited for a violation of section 56.15005. I view this 

as somewhat mitigating in nature. 

More significantly, it is noteworthy that the cited violation is predicated on the 

spontaneous action of a contract haul truck driver. The Secretary does not contend that Junkin 

was aware of the violation in that Junkin was not present, did not observe, and did not otherwise 

supervise or encourage, Johnny Koger, the subject truck driver, as he covered his load with a 

tarp. In this regard, it is significant that the negligence of an hourly employee ordinarily is not 

imputed to a mine operator unless there is evidence of inadequate supervision and control.

Reading Anthracite Co., 32 FMSHRC 399, 411 (April 2010); Southern Ohio Coal Co., 4 

FMSHRC 1458, 1464 (Aug. 1982). While the Secretary has the discretion to cite a mine 

operator, its contractor, or both, it is unfortunate that MSHA did not cite Denbar Transportation, 

Koger’s employer, which is better suited to encourage the tie down compliance of its drivers. See 

Sec’y Resp., at 17-18. 

West Alabama has stipulated to “high” negligence. While the negligence remains high, in 

sum, for the purposes of assessing a civil penalty, I conclude that West Alabama’s derivative 

liability for the acts of its contractor, in the absence of a history of similar violations, is a 

mitigating factor with respect to its degree of negligence. 

4. Ability to Continue in Business 

It has neither been contended nor shown that the Secretary’s proposed penalty will affect 

West Alabama’s ability to continue in business. As such, I conclude that this criterion is a 

neutral factor. 

38 FMSHRC Page 1536
5. Gravity 

The gravity penalty criterion requires an evaluation of the seriousness of the violation. 

Consolidation Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996); Sellersburg Stone Co., 5 

FMSHRC 287, 294-95 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). In evaluating the 

seriousness of a violation, the Commission has focused on “the effect of the hazard if it occurs.” 

Consolidation Coal Co., 18 FMSHRC at 1550. Citation No. 6511548 was designated as S&S

and affecting one person. As noted in the initial decision: 

West Alabama does not deny that it is reasonably likely that the continued 

practice of working on an uneven surface elevated ten feet above the ground will 

result in an accident involving a fall that is reasonably likely to result in serious 

injury. Consequently, the cited violation is properly designated as S&S. 

34 FMSHRC at 1654. Accordingly, the violation is serious in gravity. I view this criterion as 

neutral with regard to the appropriate penalty to be assessed.

2

6. Good Faith Abatement 

West Alabama’s abatement is troubling. Instead of installing signage requiring all 

contract haul drivers to tie down when installing tarp, West Alabama posted a sign prohibiting 

truck drivers from installing tarp on mine property by advising drivers “not to climb on 

vehicles.” West Alabama Resp., at 6. (Mar. 24, 2016). In other words, if a haul truck operator 

was inclined to expose himself to the danger of falling, he must do so off mine property. 

Although approved by MSHA, this is questionable good faith abatement, at best. Consequently, I 

view West Alabama’s abatement efforts as an aggravating factor. 

On balance, applying the traditional section 110(i) analysis would provide for a 

meaningful reduction of the $15,971.00 penalty proposed by the Secretary.

 2

 The mandatory standard in section 56.15005 requires “[s]afety belts and lines shall be 

worn when persons work where there is danger of falling. . . .” (emphasis added). Section 

56.15005 must, of necessity, be broad because the myriad circumstances requiring safety lines 

cannot be foreseen. However, the securing of loads on haul trucks is an everyday occurrence. I 

am concerned that the Secretary appears to take the position that the failure to tie down when 

installing tarp on a haulage truck is a per se violation of section 56.15005. In view of the 

Secretary’s per se approach, it is difficult to assess the degree of hazard posed by the facts 

surrounding the violation at issue in Citation No. 6511548, wherein the truck operator was 

observed installing the tarp “on his knees.” To avoid arbitrary enforcement, the Secretary should 

consider initiating a rulemaking to promulgate a mandatory standard to require truck operators 

to tie down when securing their load. By way of example, the mandatory standard at 30 C.F.R. § 

56.12016 requires that all electrically powered equipment must be de-energized before 

mechanical work is performed on such equipment. It is noteworthy that section 56.12016 does 

not require de-energizing electrical equipment only when there is a danger of electric shock or 

other injury. 

38 FMSHRC Page 1537
III. Delinquency 

As previously noted, the Secretary has alluded to West Alabama’s civil penalty payment 

delinquency as a relevant consideration in determining the appropriate penalty to be assessed for 

Citation No. 6511548. See Sec’y Resp., at 12. Specifically, the MDRS reflects that of the 

$27,890.00 in civil penalties assessed for the 59 citations and orders issued to West Alabama 

during the period June 2010 to November 2015, West Alabama has paid $200.00 in satisfaction 

of two citations. The MDRS further reflects that West Alabama is delinquent in its payment of 

the $27,690.00 total civil penalty for the remaining 57 citations and orders. Thus, with the 

exception of two citations, West Alabama has been delinquent in its payment of assessed civil 

penalties for approximately six years. 

With respect to delinquency as it relates to the imposition of civil penalties, in the 

past, the Commission has narrowly construed the civil penalty criteria in section 110(i). In Sec’y 

o/b/o Johnson v. Jim Walter Res., Inc., 18 FMSHRC 841 (June 1996), the Commission stated: 

“An operator’s delinquency in payment of penalties is not one of the criteria set forth in section 

110(i) of the Mine Act for consideration in the assessment of penalties.” Id. at 850. 

However, in Black Beauty Coal Co., 34 FMSHRC 1856 (Aug. 2012), the Commission 

departed from its narrow interpretation of section 110(i) by emphasizing the role of deterrence as 

a proper consideration in assessing civil penalties. In this regard, the Commission noted: 

Clearly Congress viewed civil penalties as a mechanism to promote operator 

compliance with health and safety mandates, and it explicitly called for 

consideration of the protection of the “public interest” - which includes such 

compliance - before a [penalty is assessed]. Consequently, it is eminently 

appropriate for a Judge to acknowledge the need for deterrence in [considering the 

appropriate civil penalty], with the understanding that the [ultimate civil penalty], 

consistent with fundamental principles underlying the penalty provisions of the 

Mine Act, discourage operators from violating health and safety regulations and 

laws in the future. 

Id. at 1866. In sum, the Commission stated: 

Simply put, we refuse to require our Judges to apply blinders . . . and to ignore the 

central and most obvious purpose of civil penalties - to ensure operator 

compliance with safety measures - when deciding whether such penalties are 

appropriate. Deterrence is a principle basic to and underlying the entire statutory 

scheme of imposing civil penalties. 

Id. at 1869. 

 On May 9, 2016, the parties were ordered to address whether delinquency is a relevant 

consideration in determining the appropriate penalty to be assessed. 38 FMSHRC __, slip op. 

(May 9, 2016) (ALJ). West Alabama responded on May 31, 2016, asserting that “while the Court 

may consider the matter of Respondent’s delinquent payment history,” Black Beauty does not 

38 FMSHRC Page 1538
compel the Court to do so. West Alabama Resp. to Order to Show Cause, at 1 (May 31, 2016). 

West Alabama further argues that its delinquent payment history does not adversely affect 

deterrence because “there is no history of relevant violations with respect to drivers climbing on 

their trucks and failing to tie down, and accordingly no history of delinquent payment for such 

violations.” Id. at 2. 

 The Secretary responded on June 14, 2016, asserting that West Alabama’s numerous 

unpaid civil penalties “have done nothing to deter safety infractions at Respondent’s mine or to 

compel Respondent to honor its obligations under the Mine Act.” Sec’y Resp. to Order to Show 

Cause, at 2 (June 14, 2016). Consequently the Secretary avers that West Alabama’s “six-year 

delinquent payment history should be given great weight in assessing the penalty in this matter.” 

Id. 

The ultimate goal of the Mine Act is to promote a general culture of safety by deterring 

violations of the Mine Act and the Secretary’s mandatory safety regulations. In this regard, the 

Commission in Black Beauty stated: 

The legislative history of the Mine Act makes exceedingly clear that Congress 

intended civil penalties assessed pursuant to the Mine Act to induce compliance 

with health and safety laws and regulations. Put another way, Congress 

undoubtedly recognized that such penalties should be used to deter operators from 

violating such mandates. 

The Senate Report, for example, acknowledged that civil penalties are “an 

enforcement tool,” and recognized that the “settlement of penalties often serves a 

valid enforcement purpose.” Legis. Hist. at 632-33. It emphasized that: 

[T]he purpose of a civil penalty is to induce those officials responsible for 

the operation of a mine to comply with the Act and its standards.... 

...To be effective and to induce compliance, civil penalties, once 

proposed, must be assessed and collected with reasonable promptness and 

efficiency. 

... [T]he Committee strongly feels that since the penalty system is not for 

the purpose of raising revenues for the Government, [but] is indeed for the 

purpose of encouraging operator compliance with the Act’s 

requirements.... 

Black Beauty, 34 FMSHRC at 1865-66 (quoting S. Rep. No. 95-181, at 44 (1977), reprinted in 

Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine 

Safety and Health Act of 1977, at 629-33 (1978)). Although Black Beauty concerns the propriety 

of considering deterrence in the context of approving settlements of civil penalties, it is clear that 

deterrence is also an appropriate consideration in determining civil penalties in contested cases. 

See id. 

38 FMSHRC Page 1539
West Alabama acknowledges the deterrent effect that the payment of civil penalties has 

in promoting compliance with the Mine Act and the Secretary’s regulations. See West Alabama 

Resp. to Order to Show Cause, at 2. Yet West Alabama did not provide any explanation for its 

six-year history of delinquency. There was no claim of oversight or regret. Rather, in an 

unabashed reliance on a distinction without a difference, West Alabama asserts that, despite its 

extensive history of delinquency, deterrence has not been compromised simply because it has not 

previously been cited for, and thus has not previously failed to pay a civil penalty for, a violation 

of the safety belt requirement in section 56.15005. Id. 

Succinctly put, the Mine Act’s legislative history makes clear that the purpose of a civil 

penalty is to induce compliance. Id. at 1867. Suffice it to say that West Alabama’s six-year nonpayment history cannot be ignored, as it frustrates this purpose and may expose miners to 

hazardous working conditions. I decline to elevate form—by the purposeless assessment of civil 

penalties—over substance—by encouraging that civil penalties be paid. 

In the final analysis, West Alabama’s delinquency must be considered as a significant 

aggravating circumstance that warrants a meaningful increase in the civil penalty assessed for 

Citation No. 6511548. I am cognizant that increasing the civil penalty in view of West 

Alabama’s pattern of delinquency raises an obvious question: How will raising the civil penalty 

foster compliance in view of West Alabama’s apparent disinclination to pay? Encouraging 

compliance is a two-step process. As noted, compliance is achieved through the payment of civil 

penalties. Thus, step one involves motivating delinquent mine operators to pay civil penalties by 

increasing future assessed penalties that, if not paid, become a debt owed to the federal 

government, collectable through an action brought by the Department of Justice. In step two, by 

encouraging the payment of civil penalties, the Mine Act’s goal of deterrence and future 

compliance hopefully will be achieved. 

As previously noted, de novo consideration of the appropriate civil penalty to be assessed 

does not require “that equal weight must be assigned to each of the penalty assessment criteria.” 

Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). Consequently, consistent with 

the Commission’s holding in Black Beauty that the deterrent goal of assessing civil penalties 

under the Mine Act is a proper consideration, West Alabama’s long-standing pattern of 

delinquency warrants increasing the proposed penalty sought by the Secretary. Accordingly, a 

civil penalty of $22,450.00 shall be assessed against West Alabama. 

 

38 FMSHRC Page 1540
ORDER 

In view of the above, IT IS ORDERED that West Alabama Sand & Gravel, Inc. pay, 

within 40 days of the date of this Decision, a total civil penalty of $22,450.00 in satisfaction of 

the single violation at issue. Upon timely receipt of this amount, Docket No. SE 2009-870 IS 

DISMISSED. 

/s/ Jerold Feldman 

Jerold Feldman 

 Administrative Law Judge 

Distribution: (Regular and Certified Mail) 

Sophia E. Haynes, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street 

SW, Room 7T10, Atlanta, GA 30303 

Clatus Junkin, Esq., P.O. Box 688, 202 3rd Street NE, Fayette, AL 35555 

Charles E. Harrison, Esq., Pearson Harrison & Pate, LLC, P.O. Box 3119, Tuscaloosa, AL 35403 

/acp 

38 FMSHRC Page 1541
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 

June 30, 2016 

AMENDED DECISION AND ORDER 

Appearances: Laura Ilardi Pearson, Esq., U.S. Department of Labor, Office of the 

Solicitor, Denver, CO, for Petitioner; 

Justin Winter, Esq., Law Office of Adele Abrams, PC, Beltsville, MD, for 

Respondent. 

Before: Judge L. Zane Gill 

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

§ 801 et seq. (1994) (“Mine Act” or “Act”), involves one section 104(d)(1) citation, issued by the 

Department of Labor’s Mine Safety and Health Administration (“MSHA”) to Conveyor Belt 

Services, Inc. (“CBS”) at the U.S. Steel Company’s Minntac Mine (“the Mine”). The parties 

presented testimony on December 9, 2014, in Duluth, Minnesota. 

The contested issues at trial for Citation No. 8740887 (“the Citation”) included whether 

CBS violated 30 C.F.R. § 56.11027, whether CBS had fair notice of the Secretary’s 

interpretation of the standard, whether the violation warranted enhanced enforcement, and 

whether the penalty was properly assessed. 

For the reasons set forth below, I find CBS violated 30 C.F.R. § 56.11027 and had fair 

notice that the conveyor belt bed and temporary structure were working platforms under the 

standard. I also find CBS’s violation was properly classified substantial and significant (“S&S”), 

and an unwarrantable failure. Finally, I find the violation involved high negligence and was 

reasonably likely to result in lost workdays or restricted duty. I assess a penalty in the amount of 

$2,000.00. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

CONVEYOR BELT SERVICES, INC., 

 Respondent. 

 CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 2014-0255 

A.C. No. 21-00282-343682 

Docket No. WEST 2014-0202-RM 

A.C. No. 21-00282-8740887 

Mine: Minntac Mine 

38 FMSHRC Page 1542
Stipulations 

The joint stipulations were read into the record at the hearing: (Tr. 92:20-94:16) 

 

1. At all times relevant to this proceeding Conveyor Belt Service, Inc., which is known 

as CBS, Contractor ID# G10, was engaged in mining operations and subject to the 

jurisdiction of Federal Mine Safety and Health Act of 1977. 

2. At the time the citation that is that the subject of this case was issued, Conveyor Belt 

Service was engaged in mining operations at the Minntac Mine. Mine. Mine ID# 21-

00282. 

3. MSHA has jurisdiction over CBS’s operations at the Mine because CBS was an 

operator as defined in Section 3(b) of the Act, 30 U.S.C., Section 803, and the 

products of the Mine entered the stream of commerce or the operations or products 

thereof affected commerce within the meaning and scope of Section 4 of the Act. 30 

U.S.C. Section 803. 

4. The Administrative Law Judge has subject matter and personal jurisdiction over these 

proceedings pursuant to Section 105 of the Act. 

5. CBS’s operations affect interstate commerce. 

6. On or about December 11, 2013, MSHA inspected the Mine. 

7. MSHA Inspector Thaddeus Sichmeller was acting in his official capacity as an 

authorized representative of the Secretary when he inspected the Mine and issued the 

subject citation. 

8. CBS abated the alleged violation in good faith. 

9. The proposed penalties in this matter will not affect CBS's ability to remain in 

business. 

10. Stipulation as to the authenticity of exhibits. The certified copy of the MSHA 

Assessed Violations History, Exhibit GX1, reflects the history of the Mine for the 15 

months prior to the date of the Citation and may be admitted into evidence without 

objection by CBS. 

11. The parties stipulated to the authenticity but not the truthfulness or relevance of the 

content of the following exhibits: 

 a) Citation 8740887. 

b) Citation documentation related to 8740887. 

c) Photographs associated with citation 8740887. 

38 FMSHRC Page 1543
d) Citation 8664341. 

e) Complete inspection report for event number 6631817. 

f) Deposition transcript of Thaddeus Sichmeller. 

g) MSHA Program Policy Letter P12-IV-01. 

Background 

On December 11, 2013, MSHA Inspector Thaddeuys Sichmeller1

 (“Inspector 

Sichmeller”) issued the Citation to CBS, alleging a violation of 30 C.F.R. § 56.11027, pursuant 

to § 104(d)(1) of the Mine Act. The regulation requires that “[s]caffolds and working platforms 

shall be of substantial construction and provided with handrails and maintained in good 

condition.” 30 C.F.R. § 56.11027. Section 56.11027 is a mandatory safety standard. The citation 

alleges: 

Two employees were observed conducting belt work on the 003-01 

conveyor in the basement area of Step 1 and 2 Fines Crusher. The two 

employees were working from a makeshift work platform making a belt 

splice. The two employees were not protected from a fall from the work 

area. The top of the work area to the concrete floor below measured 51 

inches on the south side and 55 inches on the north side due to the sloped 

concrete floor. The company has had similar violations in the past. The 

company has engaged in aggravated conduct by allowing the work to 

conduct in this area with out [sic] the proper protection of from [sic] a fall 

from the work platform. This violation is an unwarrantable failure to 

comply with a mandatory standard. 

(Ex. GX 1) 

U.S. Steel contracted with CBS, a company specializing in conveyor belt maintenance, to 

perform work at the Mine.2

 (Tr. 8:1-2; 9:2-4) On the date of the alleged violation, six CBS 

employees, supervised by CBS foreman Kelly Theil3

 (“Theil”), were performing conveyor belt 

                                                             1

 Inspector Sichmeller has worked for MSHA since February 24, 2003. (Tr. 13:19-20) 

Prior to starting at MSHA, he worked at a molybdenum mine in Idaho for about eight-and-a-half 

years. (Tr. 14:4-24) As a miner, Sichmeller repaired between ten and fifteen conveyor belts. (Tr. 

16:4-10) As an MSHA inspector, Sichmeller is responsible for conducting sixty to eighty mine 

inspections a year. (Tr. 16:22-17:1) Sichmeller also acts as an MSHA accident investigator. 

(16:11-17) 

2

 The Mine is a multi-level, surface iron-ore mine. (Tr. 22:1-6; 17:24-18:2) 

3

 Theil works for CBS as a “belt technician.” (Tr. 65:23-25) At the time of litigation, 

Theil had worked for CBS for 29 years. (Tr. 66:7-9) 

38 FMSHRC Page 1544
maintenance on multiple levels of the Mine. (Tr. 67:2-10) The two employees cited4

 were 

replacing a fifty-four-inch wide conveyor belt in the “basement” area of the Mine.5

 (Tr. 72:22-

73:4) 

To replace the conveyor belt, the employees had to splice the ends of the new belt 

together. (Tr. 9:25-10:15) This process involved punching holes in the ends of the belt, putting 

clips in the holes to attach the belt, and sealing the belt. Id. Because the belt was one-inch thick 

and very stiff, attaching the ends required flattening the belt. (Tr. 74:10-14; 75:19-25) To flatten 

the belt, the employees placed it on a temporary structure fashioned from a stepladder, two steel 

toolboxes, and a piece of plywood. (Tr. 76:10-15) This temporary structure rested on the 

conveyor belt bed, which measured forty-one inches from the ground. (Tr. 76:21) The temporary 

platform measured fifty-one inches from the ground on its south side and fifty-five inches on its 

north side.6 (Tr. 23:19-23; see also Ex. G6) 

Once the employees laid the conveyor belt ends on the temporary structure, they stood on 

the conveyor belt (which was placed on the conveyor belt bed) to attach the middle portion of the 

belt. (Tr. 10:25-11:4) When Inspector Sichmeller observed the alleged violation, one of the 

employees was standing on the conveyor belt and the other was kneeling on the belt. (23:4-

23:10) However, Inspector Sichmeller’s testimony does not make clear whether the employees 

were on the portion of the conveyor belt resting directly on the conveyor belt bed or the portion 

resting on the temporary structure. (Tr. 23:3-17; 38:7; 39:13) Both the conveyor belt bed and 

temporary structure lacked handrails, and the employees were not wearing fall protection. (Tr. 

24:13-16) Inspector Sichmeller testified that a fall from the conveyor belt bed or temporary 

structure could cause sprain-strains, broken bones or, even, fatalities. (Tr. 25:4-15; 27:2-9) The 

employees were on the conveyor belt for an estimated forty-five minutes to an hour. (Tr. 75:24-

25; 81:17-19) 

Theil testified he was on an upper level of the Mine when Inspector Sichmeller saw the 

employees on the conveyor belt. (Tr. 78:1-6) However, Inspector Sichmeller testified that Theil 

was present in the “basement” area when he observed the violative condition. (Tr. 35:11-14) 

About a year-and-a-half before issuing the Citation, Inspector Sichmeller issued Citation 

No. 86604341 (“citation 341”) to CBS for a similar violation at another U.S. Steel mine. (Tr. 

29:8-30:6) Citation 341 alleged that Theil, who was supervising the job, and two CBS 

                                                             4

 The employees had two and eight years of experience working on conveyor belts, 

respectively. (Tr. 73:7-9) The employee with two years of experience had changed about ten 

belts at the time the Citation was issued, while the employee with eight years of experience had 

changed over 100 belts. (Tr. 73:10-18) 

5

 The “basement” is the second lowest level of the Minntac Mine. (Tr. 22:11-16) The 

lowest level of the Mine is called the “subbasement.” Id. 

6

 The height difference was due to the sloped design of the floor in the “basement” area. 

(Tr. 23:18-23) 

38 FMSHRC Page 1545
employees, violated 30 C.F.R. § 56.150057

 by standing on an elevated conveyor belt and cable 

tray without fall protection. (Tr. 30:7-12) The conveyor belt involved in citation 341 was fiftytwo inches high and fifteen inches wide. (Ex. G9) The cable tray was about thirty-eight inches 

high. (Tr. 32:18-24) When Inspector Sichmeller issued citation 341, he spoke to Theil about fall 

hazards and the need for fall protection or hand railings when working on elevated surfaces. (Tr. 

33:4-11) 

Inspector Sichmeller classified the violation as S&S, high negligence and an 

unwarrantable failure, in part, because he had previously cited CBS. (Tr. 8:18-22; 61:10-13) 

Additionally, he considered the presence of tools, mud, and water on the belt when he issued the 

Citation an aggravating factor. (Tr. 60:3-10) 

Prior to beginning the job at Minntac Mine, Theil reviewed U.S. Steel’s safety policies, 

which included an Occupational Health and Safety Administration (“OSHA”) rule requiring fall 

protection at heights of six-feet or more. (Tr. 19:5-11; 20:1-6) In June, 2012, MSHA issued 

Program Plan Letter P12-IV-01 (“PPL”) on fall protection. (Ex. R5) The PPL included OSHA’s 

six-foot rule for inspectors to consider when issuing citations for violations of MSHA standards 

56.15005 and 57.15005. (Tr. 20:7-20) Inspector Sichmeller testified that MSHA inspectors view 

the PPL as a “guideline.” Id. 

CBS also held a safety meeting with U.S. Steel before commencing work on the job. (Tr. 

68:15-17) During this meeting, the companies discussed the safety equipment needed for every 

segment of the job and determined that fall protection was not required for work in the 

“basement” area. (Tr. 68:18-69:16; 70:22-25) However, the companies did not discuss the 

possibility of the employees constructing a temporary structure of the kind they ultimately made. 

(Tr. 85:24-86:7) Theil testified the decision to make the temporary structure was “spur-of-the 

moment,” and that he did not witness the employees erect the structure. (Tr. 85:15-86:7) 

However, he testified he had seen platforms of this kind used to flatten belts in the past. (Tr. 

86:8-21) 

When Inspector Sichmeller issued the citation, the employees came to the ground. (Tr. 

36:21-25) Subsequently, the employees used handrails, surrounding the conveyor belt, to 

complete the belt splice. (Tr. 81:7-11) 

Brief Summary of the Parties’ Arguments 

Secretary of Labor 

The Secretary argues the Citation was properly issued because CBS violated § 56.11027 

by failing to equip a working platform with handrails. (Tr. 8:18-19) The Secretary argues the 

                                                             7

 The standard reads: “[s]afety belts and lines shall be worn when persons work where 

there is danger of falling; a second person shall tend the lifeline when bins, tanks, or other 

dangerous areas are entered.” 30 C.F.R. § 56.15005. 

38 FMSHRC Page 1546
temporary structure was a working platform.8

 (Sec. Br. 12) He defines a working platform as “a 

place from which miners may perform work on areas they otherwise could not reach,” regardless 

of height. (Sec. Br. 12) The Secretary contends the violation warranted enhanced enforcement 

because Inspector Sichmeller’s testimony supported findings of S&S and an unwarrantable 

failure. Id. at 13-17. The Secretary argues the penalty was properly assessed based on CBS’s 

high negligence and the likelihood that the injury would result in lost workdays or restricted 

duty. (Ex. GX 2) 

 Conveyor Belt Service, Inc. 

CBS argues the Citation should be vacated because the Secretary failed to prove the 

company violated § 56.11027. (Resp. Br. 2) CBS contends the Secretary erred in interpreting the 

regulation to require handrails on working platforms of any height. Id. at. 7. Alternatively, CBS 

argues the citation should be vacated because the company did not have fair notice that the 

standard mandated the use of handrails on surfaces less than six feet high. Id. at 2. CBS also 

challenges the Secretary’s finding that the violation warranted enhanced enforcement. Id. CBS 

argues the violation was not S&S because there were many factors that made a fall unlikely to 

occur. Id. at 13. Additionally, CBS argues the violation was not an unwarrantable failure because 

their actions did not meet the six requirements of an unwarrantable failure. Id. at 16-17. Finally, 

CBS argues the violation should be reclassified as low or no negligence because Theil was not 

aware of the violation and there were mitigating factors. Id. at 14-15. 

Violation 

Under the Mine Act, mine operators are strictly liable for violations, provided the 

conditions violating the regulation existed. Asarco v. Comm’n, 868 F.2d 1195, 1197 (10th Cir. 

1989). If such conditions existed, the Secretary is not required to demonstrate that the violation 

creates a safety hazard. Allied Prods, Inc. v. Comm’n, 666 F.2d 890, 892 (5th Cir. 1982).

The Conveyor Belt was a Work Platform Under § 56.11027 

CBS argues the Secretary failed to prove they violated § 56.11027 because the temporary 

structure was not a working platform. (Tr. 9:21-24)9 The Secretary argues the standard mandates 

the use of handrails on all working platforms, which he defines as places “from which miners 

may perform work on areas they otherwise could not reach.” (Sec. Br. 12; Tr. 52:14-17) CBS 

believes this interpretation is erroneous because it would lead to the absurd result of requiring 

handrails on all elevated surfaces, even those that are only two or three inches off the ground. 

                                                             8

 The Secretary argues the temporary structure was a working platform, but he does not 

contend the conveyor belt bed was also a working platform. (Sec. Br. 12) However, the conveyor 

belt bed is a working platform under the Secretary’s definition of the term. 

9

 CBS argues the temporary structure was not a working platform but, like the Secretary, 

makes no mention of the conveyor belt bed. (Tr. 9:21-24) Presumably, CBS intended to argue 

neither surface was a working platform, since they argue fall protection was wholly unnecessary 

in the “basement” area. (Tr. 72:8-15) 

38 FMSHRC Page 1547
(Resp. Br. 7) Additionally, CBS argues this interpretation contradicts MSHA’s PPL on the 

minimum height at which fall protection is necessary. Id. 

“The language of a regulation or statute is the starting point for its interpretation.” Dyer v. 

United States, 832 F.2d 1062, 1066 (9th Cir. 1987) (citing Consumer Product Safety Comm'n v. 

GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). The Commission has found, when the language 

of a regulation is clear, “the ordinary meaning of words must prevail where that meaning does 

not thwart the purpose of the statute or lead to an absurd result.” Emery Mining Corp., 9 

FMSHRC 1997, 2001 (December 1987) (citing In re Trans Alaska Pipeline Rate Case, 436 U.S. 

631, 643 (1978)). “In the absence of a statutory or regulatory definition of a term, or a technical 

usage, we look at the ordinary meaning of the terms used in the regulation.” Bluestone Coal 

Corp., 19 FMSHRC 1025, 1029 (June 1997). Whether a regulation is ambiguous is determined 

by “referring to the language itself, the specific context in which that language is used, and the 

broader context as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). 

When a mandatory standard of the Mine Act is ambiguous, “the courts and the 

Commission defer to the Secretary’s reasonable interpretation of the regulation.” Twentymile 

Coal Co., 36 FMSHRC 2009, 2012 (Aug. 2014). An interpretation is reasonable if it is “logically 

consistent with the language of the regulation[s] and . . . serves a permissible regulatory 

function.” General Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (quoting Rollins Envtl. 

Serv., Inc., 937 F.2d 649, 652 (D.C. Cir. 1991)). Deference to an agency interpretation can be 

due even if the interpretation is articulated in a legal brief. See Christopher v. SmithKline 

Beecham Corp., 132 S.Ct. 2156, 2166 (2012). 

The term working platform is not defined in the Mine Act or any MSHA regulations. 

Also, there is no technical definition of the term as it relates to the facts surrounding the 

Citation.10 However, MSHA regulations define a working place as “any place in or about a mine 

where work is being performed.” 30 C.F.R. § 56.2. Merriam Webster’s Online Dictionary 

defines platform as “a flat surface that is raised higher than the floor or ground and that people 

stand on when performing or speaking” or, “a usually raised structure that has a flat surface 

where people or machines do work.” Merriam Webster's Online Dictionary, 

http://www.merriam-webster.com/dictionary (last accessed Jun. 10, 2016). Taken together, the 

definitions of working place and platform indicate that a working platform is a flat, elevated 

surface where work is performed. 

This plain meaning comports with the purpose of the regulation—to “prevent a fall”—as 

to fall, one must generally be on a surface above ground level. See Granite Rock Co., 32 

FMSHRC 1792, 1794 (Nov. 2010) (ALJ Weisberger). Therefore, I find the standard 

unambiguous. Additionally, I find that the plain meaning of § 56.11027 does not thwart the 

purpose of the statute or lead to an absurd result because it protects against falls that could 

                                                             10 The American Geological Institute defines a work platform as “a board or small 

platform placed at a suitable height in the drill tripod or derrick so that a worker standing on it 

can handle the drill rod stands.” Am. Geological Institute, Dictionary of Mining, Mineral, and 

Related Terms 631 (2d ed. 1997) (“DMMRT”). However, neither drill tripods nor derricks were 

involved in the issuance of the Citation. 

38 FMSHRC Page 1548
potentially injure miners. Judges have also interpreted working platform in a way consistent with 

the term’s ordinary meaning. See Voss Sand Works, Inc., 34 FMSHRC 906, 913 (Apr. 2012) 

(ALJ Miller) (holding a boat was a working platform because it was “an elevated, horizontal, flat 

surface”); Lakeview Rock Products, 19 FMSHRC 321, 359 (Feb. 1997) (ALJ Koutras) (holding 

that an overturned 55-gallon drum elevated 34.8 inches off the ground was a work platform). 

Therefore, I find the plain meaning of the regulation should govern here. 

As I find the regulation unambiguous, there is no need to defer to the Secretary’s 

interpretation of the standard.11 I find the conveyor belt bed and the temporary structure served 

as working platforms because they were elevated, flat surfaces the employees stood on to 

perform a belt splice. Because the conveyor belt bed and temporary structure were working 

platforms and lacked handrails, I find CBS violated § 56.11027. Even if it were possible to claim 

some ambiguity remains in the regulation, I find the deference accorded to reasonable 

interpretations by the Secretary outweighs CBS’s argument that handrails were not required on 

the conveyor belt bed and temporary structure. 

The Operator Had Fair Notice of § 56.11027 

CBS argues it did not have notice handrails were required on a surface less than six feet 

above the ground. (Resp. Br. 12) This argument is based on MSHA’s issuance of a PPL, which 

says inspectors may use the OSHA six-foot rule in interpreting 30 C.F.R. §§ 56.15005 and 

57.15005. (Resp. Br. 8; see also Ex. 5R) 

Under the due process clause, an agency may not enforce a new interpretation of a 

regulation without advance notice of the conduct prohibited or required by the standard. Gates & 

Fox Co. v. Occupational Safety and Health Review Comm’n, 790 F.2d 154, 156 (D.C. Cir. 1986). 

The notice requirement is generally satisfied when a party receives actual notice of MSHA’s 

interpretation of a regulation prior to enforcement of the standard against the party. LaFarge 

North America, 35 FMSHRC 3497, 3500 (Dec. 2013). In the absence of sufficient evidence of 

actual notice, the Commission applies the “reasonably prudent person” test. See id. In Alabama 

By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982), the Commission articulated the 

reasonably prudent person test as follows: “whether a reasonably prudent person familiar with 

the factual circumstances surrounding the allegedly hazardous condition, including any facts 

peculiar to the mining industry, would recognize a hazard warranting corrective action within the 

purview of the applicable regulation.” 

However, actual notice or notice via the “reasonably prudent person” test is not required 

when a regulation is clear, as an unambiguous standard itself provides fair notice to operators of 

its requirements. See Jim Walter Resources, Inc., 28 FMSHRC 983, 988 n.6 (Dec. 2006) (citing 

Bluestone Coal Corp., 19 FMSHRC 1025, 1031 (June 1997)). Because the meaning of “working 

platform” under § 56.11027 is clear, I find CBS had fair notice the conveyor belt bed and 

temporary structure were working platforms, and, therefore, required handrails. Even if it could 

be argued the standard is ambiguous, I find citation 341 provided CBS with actual notice or, at a 

                                                             11 At this point, I will not address the validity of the Secretary’s interpretation of § 

56.11027 or the exact elevation at which a working place becomes a working platform. 

38 FMSHRC Page 1549
minimum, fair notice under the “reasonably prudent person” test that handrails were required on 

the conveyor belt. 

Enhanced Enforcement 

To invoke the enhanced enforcement provisions for mandatory safety standards set out in 

§ 140(d), the Secretary must prove the violation satisfies the S&S and unwarrantable failure 

standards. See Lodestar Energy, Inc., 25 FMSHRC 343, 345 (Jul. 2003). 

Significant and Substantial 

The Secretary designated the citation S&S. (Ex. G2). S&S determinations are made based 

on the specific facts of the case. See Cumberland Coal Res., LP, 33 FMSHRC 2357, 2369 (Oct. 

2011); National Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). A finding of S&S requires that

the Secretary prove: 

(1) underlying violation of a mandatory safety standard; (2) a discrete 

safety standard—that is, a measure of danger to safety—contributed to by 

the violation; (3) 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 (Jan. 1984). The violation satisfies the first element of the 

test because § 56.11027 is a mandatory safety standard. (Ex. GX 2) 

“The second element of Mathies requires the Secretary to demonstrate that the violation 

contributed to a safety hazard.” Oak Grove Res., LLC, 37 FMSHRC 2687, 2696 (Dec. 2015). 

The Commission has said to be a “hazard,” a violation must contribute to a specific danger. See

Mathies, 6 FMSHRC at 3-4. A violation is not S&S if it is non-dangerous. See U.S. Steel Mining 

Co., Inc., 6 FMSHRC 1834, 1836 (Aug. 1984) (citing Gypsum, 3 FMSHRC at 827. However, 

even if a hazard is unlikely to occur, a violation can be deemed S&S. See Musser Eng’g, Inc., 32 

FMSHRC 1257, 1280 (Oct. 2010). Whether a violation is S&S is determined in the context of 

continued mining operations and “cannot ignore the dynamics of the mining environment or 

process.” U.S. Steel, 6 FMSHRC at 1574. I find the Secretary demonstrated the violation 

contributed to a safety hazard, satisfying the second element of the test, because the lack of 

handrails contributed to the risk of falling off the conveyor belt from either side. (Tr. 20:25-21:3) 

The Commission has held element three does not require the Secretary to show it is more 

probable than not that an injury will result from violation. See U.S. Steel Mining Co., 18 

FMSHRC 862, 865 (June 1986). The hazard, rather than the specific violation, must be 

“reasonably likely to result in an injury” for the violation to be deemed S&S. Peabody Midwest 

Mining, LLC v. FMSHRC, 762 F.3d 611, 616 (7th Cir. 2014). An inspector’s judgment is an 

important factor in determining whether there is “a reasonable likelihood that the hazard 

contributed to will result in an injury.” Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-

79 (1998) (holding an inspector’s belief that hanging drawrock posed a reasonable likelihood of 

injury to miners was persuasive). In Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135-36 (7th 

38 FMSHRC Page 1550
Cir. 1995), the Seventh Circuit held no evidence beyond the testimony of an experienced mine 

inspector is necessary to support a finding of S&S. 

Inspector Sichmeller testified an injury was reasonably likely because the employees 

were exposed to a fall hazard without fall protection, and there were tools and mud on the belt. 

(Tr. 26:12-22) Earlier that year, Inspector Sichmeller witnessed a fatal fall from a work platform 

of less than six feet. (Tr. 25:12-26:9) Theil testified the employees only would have been on the 

conveyor belt for about forty-five minutes and that CBS employees have used temporary 

structures to complete belt splices in the past. (Tr. 75:19-75:25) Additionally, Theil testified fall 

protection was not necessary because the employees were standing on a flat, wide area. (79:19-

80:2) However, Inspector Sichmeller estimated the employees were on the conveyor belt for 

closer to an hour. (Tr. 36:2-9) Also, Theil’s testimony that he has seen similar structures used in 

the past indicates he was aware the employees might stand on the belt because it would be 

difficult to reach an elevated temporary structure from the ground. Although the employees were 

only on the belt for forty-five minutes to an hour, and the conveyor belt was wide and flat, the 

tools and water on the belt made an injury reasonably likely. I credit Inspector Sichmeller’s 

judgement that the violation was reasonably likely to result in an injury. 

The remaining factor in the S&S designation, the fourth element of the Mathies test, is 

concerned with the likely gravity of an accident. To be of a “reasonably serious nature” an injury 

does not need to “result in hospitalization, surgery, or a long period of recuperation.” S&S 

Dredging Co., 35 FMSHRC 1979, 1981-82 (July 2013). Injuries such as “muscle strains, 

sprained ligaments, and fractured bones are injuries of a reasonably serious nature,” and have 

been deemed “reasonably serious.” Id. Additionally, the Secretary is not required to show a 

similar type of injury has actually occurred. See Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 

2005) I find the violation meets the fourth element of the test because a fall from the conveyor 

belt bed or temporary structure is reasonably likely to result in sprain strains, broken bones and 

fatalities. (Tr. 25:10-15) As stated earlier, Inspector Sichmeller observed an injury of this kind 

when a miner died as a result of a fall from a similar height. (Tr. 25:12-26:9) All of these injuries 

are considered reasonably serious under the test. Since all the Mathies elements are proven, I 

find the violation was S&S. 

Unwarrantable Failure 

The Secretary argues the violation satisfies the unwarrantable failure criteria because 

aggravating factors were present. (Sec. Br. 17) CBS argues the facts with which the Secretary 

supports a finding of unwarrantable failure are not aggravating factors. (Resp. Br. 16) 

An unwarrantable failure is characterized by conduct such as “reckless disregard,” 

“intentional misconduct,” indifference,” or a “serious lack of reasonable care.” Rochester & 

Pittsburgh Coal Co., 13 FMSHRC 189, 194 (1991). The Commission has defined an 

unwarrantable failure as “aggravated conduct constituting more than ordinary negligence.” 

Emery, 9 FMSHRC at 2001. 

Whether conduct is ‘aggravated’ in the context of unwarrantable failure is 

determined by looking at all the facts and circumstances of each case to see if any 

aggravating factors exist, such as the length of time that the violation has existed, 

38 FMSHRC Page 1551
the extent of the violative condition, whether the operator has been placed on 

notice that greater efforts are necessary for compliance, the operator's efforts in 

abating the violative condition, whether the violation is obvious or poses a high 

degree of danger, and the operator's knowledge of the existence of the violation. 

Lopke Quarries, Inc., 23 FMSHRC 705, 711 (2011). “While each factor does not need to 

be present in order to find unwarrantable failure, all six factors must be considered.” 

Alden Resources, LLC, 37 FMSHRC 753, 767 (April 2015) (ALJ Andrews). 

The Secretary argues the violation was long because any exposure to a fall hazard is “too 

long.” (Sec. Br. 17) Although it is uncertain how long the employees were on the conveyor belt, 

the court must take even imperfect evidence in the record into account when evaluating whether 

a violation was an unwarrantable failure. Coal River Mining, LLC, 32 FMSHRC 82, 93 (Feb. 

2010). Even if violation occurs for a relatively short period, it can be deemed of long duration for 

unwarrantable failure purposes if there is a high degree of danger. See Engineering & 

Constructors, 24 FMSHRC 669, 679-80 (Jul. 2002) (finding a four to five foot gap in a hand rail, 

70 feet above the ground, was a violation of long duration even though it only existed for two 

days); Midwest Material Company, 19 FMSHRC 30, 34-36 (Jan. 1997) (holding a violation was 

an unwarrantable failure, even though it only occurred for a few minutes, because it posed a high 

degree of danger, involved a foreman, and may have continued, but for occurrence of accident). 

Although the violation here only lasted for forty-five minutes to an hour, it posed a high degree 

of danger and a fall, resulting in a serious injury, was possible within the short period of time the 

employees were on the conveyor belt. 

 The Secretary also argues any exposure to a fall hazard is “too extensive.” The extent of 

a violation “has traditionally been determined by examining the extent of the affected area as it 

existed at the time the citation was issued.” Dawes Rigging & Crane Rental, 36 FMSHRC 3075, 

3079 (Dec. 2014). “In some situations . . . extensiveness depends on the number of persons 

affected by the violation.” Id. at 3079-80. CBS’s violation only affected a small area of one 

conveyor belt and two employees; therefore, I find the violation was not extensive. 

The Secretary argues CBS was on notice that handrails were necessary on the conveyor 

belt for compliance with § 56.11027. (Sec. Br. 15-16) “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 a 

standard.” Brody Mining, LLC, 37 FMSHRC 1687, 1698 (Aug. 2015). As discussed earlier, CBS 

was cited for a similar violation a year-and-a-half earlier. Although a single citation does not rise 

to the level of “repeated” violations, the same foreman supervised both jobs and was expressly 

put on notice that fall protection was necessary when performing work on elevated conveyor 

belts. (Tr. 31:16-25) For this reason, I find CBS was on notice that greater efforts were necessary 

for compliance with the standard. 

The Secretary argues the violation was obvious. (Sec. Br. 17) A condition is obvious 

when it could be observed by a supervisor or inspector. See E. Associated Coal Corp., 32 

FMSHRC 1189, 1200 (Oct. 2010). The violation at issue meets this definition because Inspector 

38 FMSHRC Page 1552
Sichmeller saw the employees standing on the conveyor belt as soon as he walked into the 

“basement” area. 

Finally, CBS claims Inspector Theil did not know the employees planned to stand on the 

belt to complete the splice. (Resp. Br. 14) They argue the employees’ violation cannot be 

imputed to the company because the employees acted unilaterally in standing on the belt. Id.

However, there is contradictory testimony regarding Theil’s location when the employees were 

on the conveyor belt, meaning it is possible Theil witnessed the employees use the belt as a work 

platform. Theil testified he had seen employees use a temporary structure, like the one built by 

the employees, to flatten out conveyor belts in the past. (Tr. 76:2-4) This testimony, along with 

Theil’s admission that, before receiving citation 341, CBS had done similar conveyor belt 

changes fifty times without fall protection, indicates Theil should have known the employees 

might stand on the belt to complete the splice. (Tr. 72:4-7) Therefore, I find Theil knew, or had 

reason to know, of the violation. 

Because CBS’s actions meet the majority of requirements for an unwarrantable failure, I 

find the violation was an unwarrantable failure. Additionally, as the violation was S&S and an 

unwarrantable failure, I find enhanced enforcement was warranted. 

Penalty 

The Secretary proposed a $2,000 penalty for CBS’s violation.12 (Ex. G2) CBS argues this 

penalty is too high because the violation was low or no negligence. (Resp. Br. 14-15) 

The Mine Act sets forth the following criteria for the Commission to weigh in assessing 

civil penalties: 

(1) the operator’s history of previous violations; (2) the appropriateness of such 

penalty to the size of the business of the operator charged; (3) whether the 

operator was negligent; (4) the effect on the operator’s ability to continue in 

business; (5) the gravity of the violation; and (6) the demonstrated good faith in 

abatement of the violative condition. 

30 U.S.C. § 820(i). The Secretary uses the same criteria in determining proposed penalties. See

Sellersburg Stone Co., 736 F.2d 1147, 1151 (7th Cir, 1984). While Commission judges may 

weigh some of the six penalty assessment criteria more heavily than others, they must address 

each of the criterion in his or her decision. See Musser Eng’g, Inc., 32 FMSHRC 1257, 1289 

(Oct. 2010); Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983). 

Commission judges may set civil penalties, provided the penalty serves as an effective 

deterrent against future violations. See Cantera Greene, 22 FMSHRC 616, 620 (May 2000). 

Commission judges are not bound to the Secretary’s proposed penalty assessments. See

Sellersburg, 736 F.2d at 1151. However, if the Commission’s assigned penalty differs 

                                                             12 The proposed penalty is the minimum amount for 104(d)(1) citation, which the 

Commission may not lessen if the violation is deemed S&S and an unwarrantable failure. 30 

U.S.C. 820(a)(3)(A); Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3103 (Dec. 2014). 

38 FMSHRC Page 1553
substantially from the penalty proposed by the Secretary, the Commission must provide an 

explanation justifying the change. Sellersburg, 5 FMSHRC at 293. It is appropriate for a judge to 

raise the penalty significantly based on his or her findings of extreme gravity and unwarrantable 

failure. Spartan Mining, 2008 W.L. 4287784, at *23 (FMSHRC Aug. 28, 2008). Judges are free 

to give greater weight to the negligence and gravity of a violation when assessing penalties. See

Lopke, 23 FMSHRC at 713.

Negligence

Inspector Sichmeller cited the violation as high negligence because he issued CBS and 

Theil a citation for a similar violation a year-and-a-half earlier. (Tr. 34:21-35:4) Inspector 

Sichmeller argues this prior citation indicates the operator knew of the fall protection 

requirement. Id. CBS argues the violation should be reclassified as low or no negligence because 

Theil did not know, or have reason to know, of the violation and there were mitigating 

circumstances. (Resp. Br. 15) 

The Mine Act is a strict liability statute, so negligence plays no role in citation issuance. 

30 U.S.C. § 814(1). Inspectors must issue citations for violations of mandatory safety standards, 

regardless of operator negligence. Musser, 32 FMSHRC at 1272. However, negligence is 

considered in assessing civil penalties. Asarco, Inc., 8 FMSHRC 1632, 1636 (Nov. 1986), aff’d, 

868 F.2d 1195 (10th Cir. 1989). In determining negligence for penalty purposes, “the conduct of 

a rank-and-file miner is not imputable to the operator.” Whayne Supply, 19 FMSHRC 447, 451 

(Mar. 1997) (quoting Fort Scott Fertilizer, 17 FMSHRC 1112, 1116 (July 1995). However, 

factors used to determine negligence include the “foreseeability of the miner’s conduct, the risks 

involved and the operator’s supervising, training, and disciplining of its employees to prevent 

violations of the standard in issue.” A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). 

Negligence is “conduct, either by commission or omission, which falls below a standard 

of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. § 

100.3(d). A violation is not negligent “when the operator exercised diligence and could not have 

known of the violative condition or practice.” Id. A violation is low negligence “when an 

operator knew or should have known of a Mine Act violation, but there are considerable 

mitigating circumstances.” Id. A violation is moderately negligent when “an operator knew or 

should have known of a Mine Act violation, but there are mitigating circumstances.” Id. Finally, 

a violation is high negligence “when an operator knew or should have known of Mine Act 

violation, and there are no mitigating circumstances.” Id. 

Mitigating factors are also weighed in this analysis. A mitigating factor is something an 

operator does affirmatively, with knowledge of the potential hazard being mitigated, that tends to 

reduce the likelihood of an injury to a miner. This includes actions taken by the operator to 

prevent or correct hazardous conditions. 

As discussed in terms of the unwarrantable failure analysis, CBS argues Theil did not 

know, or have reason to know, of the violation. I find this argument unpersuasive. CBS also 

argues the citation should be reclassified as low or no negligence because there were mitigating 

circumstances. (Resp. Br.15) Firstly, CBS argues MSHA’s issuance of the PPL, which indicated 

inspectors may use the OSHA six-foot rule as guidance, was a mitigating factor. Id. However, 

38 FMSHRC Page 1554
the PPL addressed citations issued under § 56.15005, not § 56.11027. (Ex. R5-001) More 

importantly, the PPL “leaves room for site specific evaluation.” Boart Longyear Co., 35 

FMSHRC 3680, 3687 (Dec. 2013) (ALJ Barbour). Inspector Sichmeller testified the PPL was a 

“guideline for inspectors to use,” but that they were not bound to follow the OSHA six-foot rule. 

(Tr. 44:12-45:19) Thus, Inspector Sichmeller was not bound to the interpretation put forth by 

MSHA in the PPL, and it was not a mitigating factor. 

Secondly, CBS argues its meeting with U.S. Steel prior to the start of the job was a 

mitigating factor. (Tr. 12:9-13) However, the employees deviated from the plan discussed at the 

meeting when they used the conveyor belt as a working platform. (Tr. 85:1-86:7) Theil testified 

building the temporary structure and standing on the conveyor belt was a “spur-of-the-moment 

decision,” and that the employees had to “improvise.” Id. There is also no proof CBS told U.S. 

Steel that work on the basement conveyor belt would be performed from any surface other than 

the floor. For these reasons, I find the meeting was not a mitigating factor. Additionally, I believe 

allowing employees to change work plans without supervisor approval is a dangerous business 

practice. 

I find CBS knew, or should have known, handrails were required when the employees 

were on the conveyor belt bed and temporary structure. Since there were no mitigating 

circumstances, I find the violation was properly cited as high negligence. 

Gravity 

Inspector Sichmeller testified a fall from the conveyor belt could reasonably be expected 

to result in lost workdays or restricted duty. (Tr. 25:6-9) In assessing civil penalties, the 

Commission also considers the “gravity of the violation.” 30 C.F.R. § 820(i). Gravity is usually 

viewed in terms of “the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC 

1541, 1549 (Sept. 1996) (citing Sellersburg, 5 FMSHRC at 294-95). Specifically, the standard 

refers to “the effect of the hazard if it occurs.” 18 FMSHRC at 1550. The gravity analysis 

focuses on factors such as the likelihood of an injury, the severity of an injury, and the number of 

miners potentially injured. 

Inspector Sichmeller’s gravity designation was based on his belief that a fall from 55-

inches could result in a sprain-strain, broken bones, and, even, a fatality. (Tr. 25:10-15) Inspector 

Sichmeller found such injuries were likely to result from a fall based on his experience as an 

MSHA inspector and accident investigator. (Tr. 25:17-26:6) The citation alleges two people 

would be affected, which is reasonable given that two employees were working on the 

“basement” conveyor belt. (Ex. GX 2) Based on these assertions, I find an injury was reasonably 

likely and would have been serious, possibly resulting in lost work days or restricted duty. 

 Other Considerations 

In addition to negligence and gravity, the Commission must consider the operator’s 

history of previous violations, the appropriateness of the penalty to the size of the business of the 

operator charged, the effect on the operator’s ability to continue in business, and the 

demonstrated good faith abatement of the violative condition when assessing penalties. 30 

38 FMSHRC Page 1555
U.S.C. § 820(i). The parties agreed to the stipulations that the penalty will not affect CBS’s 

ability to stay in business and that CBS abated the violation in good faith. (Tr. 93:22-35) 

 As discussed earlier, Inspector Sichmeller cited CBS and Theil for a violating another fall 

protection standard a year-and-a-half before the incident at the Minntac Mine. (Ex. G9) This 

shows CBS had a previous history of violations. Finally, while there is no information about 

CBS’s size in the record, there is no evidence to support a finding that the penalty was 

inappropriate in proportion to the size of the business. 

I find CBS was highly negligent in failing to require the use of handrails on the conveyor 

belt. Additionally, I find this violation was reasonably likely to result in lost work days and 

restricted duty. I do not believe there are any additional considerations supporting a lessened 

penalty. Moreover, because I find the violation was S&S and an unwarrantable failure, $2,000 is 

the lowest possible penalty for the citation. 30 U.S.C. 820(a)(3)(A); Hidden Splendor Res., Inc., 

36 FMSHRC at 3103. For the foregoing reasons, I find the penalty was properly assessed at 

$2,000. 

WHEREFORE, it is ORDERED that Conveyor Belt Services, Inc. pay a penalty of 

$2,000.00 within thirty (30) days of the filing of this decision. 

/s/ L. Zane Gill 

 L. Zane Gill 

 Administrative Law Judge 

Distribution: 

Laura Ilardi Pearson, Esq., Trial Attorney, U.S. Department of Labor, Office of the Solicitor, 

1244 Speer Boulevard, Suite 216, Denver, CO 80204 

Justin Winter, Law Office of Adele Abrams, PC, 4740 Corridor Place, Suite D, Beltsville, MD 

20705 

38 FMSHRC Page 1556
ADMINISTRATIVE LAW JUDGE ORDERS

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 

June 1, 2016 

AMENDED ORDER OF DISMISSAL1

Before: Judge Simonton 

This case is before me upon a discrimination complaint filed pursuant to section 

105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2), by the 

Secretary of Labor on behalf of Ms. Jennifer Morreale (Complainant) against Veris Gold USA, 

Inc. (Respondent). 

On May 20, 2016, this court issued an Order Conditionally Approving Joint Withdrawal 

Motion stating that this matter would be dismissed with prejudice after confirmation of full 

satisfaction of the parties’ private settlement agreement. May 20, 2016 Order. On May 23, 

2016, Complainant and counsel for the Respondent both represented that the terms of the 

settlement agreement had been completed and satisfied. 

Accordingly, this matter is DISMISSED with prejudice. 

/s/ David P. Simonton 

David P. Simonton 

Administrative Law Judge

1

 The Order was amended because the first sentence incorrectly stated that this was a 

105(c)(3) complaint, when it was in fact a 105(c)(2) complaint. 

SECRETARY OF LABOR, MSHA, 

 on behalf of JENNIFER MORREALE, 

 Complainant, 

 v. 

VERIS GOLD USA, INC., 

JERRITT CANYON GOLD, LLC, 

WHITEBOX MANAGEMENT, & 

ERIC SPROTT, 

 Respondents. 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2014-793-DM 

MSHA Case No.: WE MD 14-13 

Mine: Jerritt Canyon Mill 

Mine ID: 26-01621 

38 FMSHRC Page 1557
Distribution: (U.S. First Class Mail) 

Brad Mantel, U.S. Department of Labor, Office of the Solicitor, Division of Mine Safety and 

Health, 201 12th Street South, Suite 401, Arlington, VA 22202 

Niamh E. Doherty, Office of the Solicitor, U.S Department of Labor, 350 S. Figueroa Street, 

Suite 370, Los Angeles, CA 90071 

Jennifer Morreale, 686 Westcott Drive, Spring Creek, NV 89815 

Annette Jarvis, Dorsey & Whitney LLP, Counsel for Jerritt Canyon Gold, 136 South Main 

Street, Suite 1000, Salt Lake City, UT 84101 

Mark R. Kaster, Dorsey & Whitney LLP, Counsel for Jerritt Canyon Gold, 50 South Sixth Street, 

Suite 1500, Minneapolis, MN 55402 

Shaun Heinrichs, Veris Gold, 688 West Hastings Street, Suite 900, Vancouver, BC V6B 1P1, 

Canada 

Cathy L. Reece, Counsel for Whitebox Management, LLC, 2394 East Camelback Rd., Ste. 600, 

Phoenix, AZ 85016 

Tevia Jeffries, Dentons Canada LLP, Counsel for Bankruptcy Monitor, 250 Howe Street, 20th

Floor, Vancouver, BC V6C 3R8, Canada 

38 FMSHRC Page 1558
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 / FAX: 202-434-9949 

June 2, 2016 

ORDER ON RESPONDENT’S MOTION FOR INTERLOCUTORY REVIEW 

Before: Judge Moran 

Dorsey & Whitney LLP, on behalf of Jerritt Canyon Gold, LLC, (“JCG”) has filed a 

motion seeking interlocutory review, per 29 C.F.R. § 2700.76. JCG’s Motion requests that the 

Court “certify that [its] ruling to add JCG as a respondent in this matter, involves a controlling 

question of law and that immediate review will advance the final disposition of the proceeding.” 

JCG Mot. for Cert. of Interlocutory Rev., at 1 (Apr. 13, 2016) (“Mot.”) (emphasis added).1

1

 In pertinent part, the provision addressing interlocutory review by a judge provides: 

(a) Procedure. Interlocutory review by the Commission shall not be a matter

of right but of the sound discretion of the Commission. . . . (1) Review cannot

be granted unless: (i) The judge has certified, upon his own motion or the

motion of a party, that his interlocutory ruling involves a controlling question

of law and that in his opinion immediate review will materially advance the

final disposition of the proceeding; or (ii) The Judge has denied a party’s

motion for certification of the interlocutory ruling to the Commission, and the

party files with the Commission a petition for interlocutory review within 30

days of the Judge's denial of such motion for certification. . . .

29 C.F.R. § 2700.76 (emphasis added). Given this Court’s denial of the motion, the provisions 

in Commission Rules 76(a)(1)(ii) and (a)(2) come into effect. JCG’s counsel is fully aware of 

these provisions. 

DANIEL B. LOWE, 

 Complainant, 

v. 

VERIS GOLD USA, INC., 

and 

JERRITT CANYON GOLD, LLC, 

 Respondents. 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2014-614-DM 

WE-MD 14-04 

Mine: Jerritt Canyon Mill 

Mine ID: 26-01621 

38 FMSHRC Page 1559
For the reasons that follow, the Court, by not having determined that immediate review 

will materially advance the final disposition of the proceeding, DENIES the motion. 

JCG’s Motion essentially repeats the arguments it has advanced many times before, most 

recently in the parallel ongoing discrimination proceeding, Varady v. Veris Gold USA, Inc. and 

Jerritt Canyon Gold, LLC (“Varady”). In its most recent ruling in the Varady matter, the Court 

denied JCG’s request to certify that an interlocutory ruling in that matter involved a controlling 

question of law and that immediate review of the Court’s opinion would materially advance the 

final disposition of the proceeding. 38 FMSHRC __, slip op., WEST 2014-307 DM (Apr. 26, 

2016) (ALJ). That order in Varady is hereby incorporated by reference.2 

JCG’s Motion contends that there is no jurisdiction to add JCG as a party. It then revisits 

all of the arguments previously made to, and rejected by, this Court in support of its claim of lack 

of jurisdiction, which will not be repeated here.3, 4 

JCG’s Motion incorrectly describes the “Issue” as whether allowing the Complainant to 

amend his discrimination complaint “to add JCG as an additional respondent in the case [is] in 

contravention of the Canadian and U.S. Bankruptcy Courts’ automatic stay, prior adjudication, 

discharge and free and clear sale of the Veris Gold assets to JCG under Section 363(f) of the 

Bankruptcy Code.” Mot. at 7. The issue, however, is whether the asserted jurisdictional bar 

involves a controlling question of law and whether, in the Court’s opinion, immediate review of 

that issue will materially advance the final disposition of the proceeding.5 

Among the many arguments advanced by JCG, all rejected by this Court in its previous 

rulings, are: that any actions taken in violation of the bankruptcy court’s automatic stay are void 

ab initio; that only the bankruptcy courts can modify the automatic stay; and, because of that, all 

MSHA proceedings are stayed. Id. at 10. JCG then continues with citations to the Canadian and 

U.S. Bankruptcy Courts’ holding that JCG acquired the assets of Veris Gold free and clear of any 

2

 In issuing this Order, the Court read and considered Complainant Lowe’s Opposition to 

Respondents’ Motion for certification of interlocutory review, Respondents Reply in support of 

its motion, and Complainant’s Reply in further opposition. The Court would add that the reply 

filed on behalf of Whitebox Entities seems to be an initially unpersuasive exercise in parsing the 

various relationships among the various respondents, which only demonstrates the importance of 

discovery so that their true nature can be understood. 

3

 In fact, and as a matter of practicality, the motion essentially repeats, verbatim, large 

portions from previous submissions to this Court. 

4

 The Court’s March 4, 2016, Order on Complainant’s Motion to Amend addresses JCG’s 

contentions. See 38 FMSHRC __, slip op., WEST 2014-614-DM (Mar. 4, 2016) (ALJ). 

5

 JCG also requests that “in the interest of judicial economy and fairness to the parties, 

[the] proceedings in th[is] docket . . . be stayed pending a final determination on the issue of 

jurisdiction.” Mot. at 2, 8. This request is DENIED. The proceedings are stayed, but only until 

the Commission rules on the motion for interlocutory review. 

38 FMSHRC Page 1560
interest, claim, or liability. Id. at 10-12. These claims rest upon the asserted legitimacy of the 

section 363(f) proceeding under the Bankruptcy Code. In its prior ruling, the Court has addressed 

this issue as well. 

The Essential Problem with JCG’s Motion 

It is not the job of a Federal Mine Safety and Health Review Commission administrative 

law judge to do the laundry for another court. The Court acknowledges that, should the 

Commission decline to adopt JCG’s contentions, it is possible that another court may determine 

that JCG’s purchase of certain Veris Gold assets was free and clear of all liens, claims, and 

interests, that section 363 of the Bankruptcy Code provides a total corporate welfare cover to that 

and other potentially related entities, and that there was no need to employ the due process 

hearing procedure found in section 1141 of that Code. It may also be that some other court, but 

not this Court, may determine that Veris Gold, JCG, and the bankruptcy monitor fully informed 

such bankruptcy courts about the nature of Lowe’s and Varady’s Mine Act claims, and that due 

process was fully satisfied, that Mine Act discrimination proceedings are indistinguishable from 

those debts owed to traditional business creditors, and that the hearing which was ostensibly held 

regarding Lowe’s (and Varady’s) claims, demonstrates a record that evinces fairness.6

 

However, that is not this Court’s role in deciding discrimination matters under the Mine 

Safety and Health Act. This Court upheld Mr. Lowe’s discrimination complaint after a hearing. 

That hearing afforded Veris Gold a full opportunity to challenge Lowe’s claim. Indeed, Veris 

Gold hired an attorney to do just that, and that attorney conducted discovery and vigorously 

defended Veris Gold in that action until, only a few days before the Lowe hearing was to 

commence, that attorney announced that he had been instructed to withdraw his representation. 

The attorney also acknowledged on the record at the start of Lowe’s discrimination proceeding, 

that Veris Gold fully understood the consequences of that withdrawal.7 

6

 No record of any hearing transcript before a Bankruptcy Court addressing Lowe’s or 

Varady’s claims has been provided to the Court by JCG’s Counsel. 

7

 As the Court noted in its October 15, 2015 decision: 

At the outset of the hearing, Attorney David Stanton, privately retained legal 

counsel for Veris Gold, appeared. The Court noted that Attorney Stanton filed a 

motion for his withdrawal as the Respondent’s representative. Tr. 6. The Court 

had previously received word of Attorney Stanton’s motion to withdraw at the 

conclusion of the prior week, one day after another section 105(c)(3) hearing 

against Veris, Matthew Varady v. Veris Gold USA, Inc., WEST 2014-307-DM, 

had concluded. This Court presided in the Varady discrimination case. That case 

involved the pro se discrimination claim brought Matthew Varady against Veris 

Gold, and a decision finding for Mr. Varady was issued on September 2, 2015. 

Attorney Stanton represented Veris in the Varady discrimination matter for the 

entirety of the hearing. As noted, infra, the Varady hearing did not go well, 

(continued...) 

38 FMSHRC Page 1561
With liability for discrimination having been established by this Court, apart from 

whatever may come to pass regarding Veris Gold’s employment of bankruptcy protection, the 

next step under the Mine Act is to determine if successorship applies to any or all of those 

entities that now run the Jerritt Canyon Mill, which, it is noted, continued to hum along 

essentially without interruption throughout the whole bankruptcy process.8 Because the Court is 

7 (...continued) 

evidentiary-wise, from Respondent’s perspective, and it was obvious that 

Attorney Stanton correctly gauged the adverse evidentiary consequences of the 

proceeding, owing to the poor credibility of Respondent’s various witnesses. 

Therefore, it was not a surprise to the Court that the attorney moved to withdraw 

from representation. As the Varady and Lowe matters are closely linked, it 

followed that withdrawal would be sought in the Lowe matter as well. Due to the

indefinite nature of Attorney Stanton’s initial email request to withdraw his 

representation of Veris, it was not clear whether the attorney’s request was 

confined to the Lowe and Varady matters or whether the attorney was

withdrawing completely from all representation of Veris. Attorney Stanton was 

equivocal about his continuing role, in that he indicated that it would continue 

until the bankruptcy monitor in Canada acts. Tr. 6. At the time of and prior to the 

hearing’s start, Veris had been involved in a bankruptcy proceeding. Attorney 

Stanton confirmed that mining would continue at the Veris site and it was his

understanding that Veris would continue as a legal corporate entity and he

represented that the Veris entity would ‘remain in existence for some period of

time while the monitor addresses some ... lingering issues,’ although he did not 

know exactly what those issues were. Tr. 8. Emphasizing that the mine would be

a continuing operation, albeit under a successor, ‘White Box’ or the debtor in

possession, Attorney Stanton hoped that his legal representation would continue 

with the new ownership. Tr. 9. Thus, it is fair to state that the mining operation 

and attorneys representing it would continue to move along nicely, while

apparently simultaneously attempting to evade responsibility, through bankruptcy 

legal mechanisms, for acts of discrimination under the Mine Act. 

8

 In a recent, related, development, the Court notes that in Sec’y o/b/o Morreale v. Veris 

Gold USA, Inc., Jerritt Canyon Gold, LLC, Whitebox Management, and Eric Sprott, 38 

FMSHRC __, slip op., WEST 2014-793 DM (May 25, 2016) (ALJ) (“Morreale ”), yet another 

discrimination proceeding initially against Veris Gold, the parties reached a private settlement 

and the judge in that case dismissed the proceeding upon the parties’ representation that “the 

terms of the [private] settlement agreement had been completed and satisfied.” Id. at 1. This 

Court is aware of the putative distinction in Morreale that the discrimination proceeding was 

brought by the Secretary. Substantively, the Court sees no difference, and it would note that 

Congress, in enacting the Mine Act’s discrimination provisions, did not characterize section 

105(c)(3) claims as inferior. The Court believes that, it is in the interests of all for the parties to 

explore settlement in the Lowe and Varady matters. 

38 FMSHRC Page 1562

Lowe v. Veris Gold USA, Inc., 37 FMSHRC 2337, 2238-39 (Oct. 2015) (ALJ). 
duty bound to attend to the relevant discrimination issues before it, the Respondent must be 

entitled to conduct legitimate discovery in order for the Court to determine if the Commission’s 

adopted successorship principles should apply to JCG, and/or Whitebox, and/or Eric Sprott.9

 

9

 As pertinent in this matter as it was in the Court’s April 26, 2016, Order addressing 

JCG’s motion for interlocutory review in the Varady matter, it should be 

. . . noted that fellow Administrative Law Judge David Simonton recently issued a 

briefing order relevant to these issues. After noting that there is legal ambiguity 

concerning the ‘correct interaction of bankruptcy law and the Commission’s 

successorship doctrine,’ Judge Simonton concluded that ‘the most prudent course 

of action is to first resolve the factual question of JCG’s successorship status 

before proceeding to potential bankruptcy protection issues,’ and, in line with 

view, that stated ‘further discovery into the facts of JCG’s acquisition and 

operation of the Jerritt Canyon Mill mine is necessary to determine if JCG, Eric 

Sprott and Whitebox Asset Management are liable as successors in interest for the 

conduct of Veris.’ Briefing Order at 2, Sec’y of Labor on behalf of Morreale v. 

Veris Gold U.S.A. Inc., WEST 2014-793 (FMSHRC Apr. 21, 2016). Helpfully, 

Judge Simonton directed the respondents to respond to the following nonexclusive, preliminary questions regarding successorship: 

1) Did JCG management learn of the finalized settlement

agreement between the Secretary, Ms. Morreale, and Veris prior to

JCG’s purchase of the Jerritt Canyon Mill mine?

2) Did JCG management learn of any pending 105(c)

discrimination claim against Veris Gold USA prior to JCG’s

purchase of Veris?

3) What percentage of Veris Gold USA did Eric Sprott and his

subsidiary holdings, own and/or control prior to JCG’s acquisition

of the Jerritt Canyon Mill mine?

4) What percentage of JCG does Eric Sprott and his subsidiary

holdings own and/or control?

5) What percentage of Veris employees employed at the Jerritt

Canyon Mill mine did JCG rehire following their assumption of

mining operations in June 2015?

6) What percentage of Veris supervisory agents at the Jerritt

Canyon Mill mine were retained by JCG? In addition to senior

management personnel, the Commission generally considers

supervisors with production and safety responsibilities agents of

(continued...) 

38 FMSHRC Page 1563
Once such discovery is completed, the Court will be in an informed position to rule upon those 

successorship issues. Should the Complainant prevail against some or all of those other entities, 

the final step for the Court would be to make a ruling on the appropriate damages. 

Accordingly, for the reasons expressed in this Order on JCG’s Motion for Certification of 

Interlocutory Review, JCG’s Motion is DENIED. 

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

9

(...continued) 

the operator. Nelson Quarries, Inc., 31 FMSHRC 318, 328-31 

(Mar. 2009) (affirming ALJ holding that onsite foremen who 

conducted safety examinations and assigned tasks were agents of

the operator). 

7) Has JCG substantially altered production methods at the Jerritt

Canyon Mill mine?”

38 FMSHRC __, slip op. at 4 n.3, WEST 2014-307 DM (Apr. 26, 2016) (ALJ). 

38 FMSHRC Page 1564
Distribution: 

Mark Kaster, Dorsey & Whitney, LLP, 1500 South 6th Street, Minneapolis, MN 55402 

Annette Jarvis, Dorsey & Whitney, LLP, 136 South Main Street, Suite 1000, Salt Lake City, UT 

84101 

Daniel B. Lowe, P.O. Box 2608, Elko, NV 89801 

Cathy L. Reece, Fennemore Craig, P.C., 2394 East Camelback Rd., Suite 600, Phoenix, AZ 

85016 

Brad J. Mantel, Esq., U.S. Department of Labor, Office of the Solicitor, 201 12th Street South, 

Suite 401, Arlington, VA 22202-5450 

Shaun Heinrichs, Veris Gold, 688 West Hastings Street, Suite 900, Vancouver, BC V6B 1P1, 

Canada 

Tevia Jeffries, Dentons Canada LLP, Counsel for Bankruptcy Monitor, 250 Howe Street, 20th

Floor, Vancouver, BC V6C 3R8, Canada 

38 FMSHRC Page 1565
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2536 

303-844-3577/FAX 303-844-5268

June 2, 2016 

ORDER CONCERNING PROPOSED TESTIMONY OF STEVEN ROGERS

The hearing in this discrimination case is set to commence on June 22, 2016. In my 

notice of hearing, I required the parties to exchange witness and exhibit lists by no later than 

June 8, 2016. Under Commission Procedural Rule 56(e), discovery should have been completed 

by June 2, 2016. 29 C.F.R. § 2700.56(e). By email on May 31, Joseph Lake, counsel for 

Complainant, asked that the discovery deadline be extended until June 10 because certain 

individuals could not be scheduled for deposition until the week of June 6. Donna V. Pryor, 

counsel for Respondent, does not oppose this extension of the discovery period. 

Late in the day on May 31, Mr. Lake also disclosed via email that he intends to call an 

expert witness at the hearing and that his written report would be produced later this week. Ms. 

Pryor, via email, opposed the request because it is only about twenty-two days until the hearing, 

discovery is coming to a close, and she needs this time to prepare her case. She contends that the 

Complainant should have disclosed the identity of this potential witness in response to discovery 

much earlier so that she could have scheduled his deposition in May. This delay does not give 

her much time to schedule a deposition and determine whether Respondent needs to call an 

expert witness. 

I scheduled a conference call for June 1. During the call, Jessica Flores, counsel for 

Complainant, advised me that the expert she wants to call is Steven Rogers, a safety and health 

specialist with MSHA in the Vacaville, California, office. He would be called as a rebuttal 

witness in response to expected testimony from Respondent’s witnesses that certain actions taken 

by Jacob Hamilton, the complainant in this case, were unsafe and that he was discharged for 

those unsafe actions. Rogers was not present at the mine during the disputed events and, as I 

understand it, he would testify generally about the safety of Hamilton’s actions when he 

discovered drill holes underground that had not been shot during the most recent round of 

blasting. 

Ms. Flores stated during the conference call that she first learned of this defense during 

depositions of Respondent’s witnesses taken in mid-May. She also stated that she had planned 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of JACOB HAMILTON, 

 Complainant 

v. 

AMERICAN MINING AND 

TUNNELING, LLC 

 Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2016-326-DM 

MSHA No. WE MD 2016-04 

Fire Creek Mine 

Mine ID 26-02691 A4880 

38 FMSHRC Page 1566
on using a different MSHA safety specialist as a rebuttal witness but he became unavailable 

because of a death in the family. Counsel stated that the process of finding a second safety 

specialist to testify contributed to the delay. 

Ms. Pryor objected to Complainant’s request during the call primarily because of the 

delay in notifying her that an expert would be called. She had requested the names of potential 

witnesses during discovery. She stated that she will not be able to depose Mr. Rogers next week 

because of scheduling issues but that she could depose him on June 14 in Denver, if I grant the 

Complainant’s request. Counsel did not indicate whether she will now be seeking to call an 

expert on Respondent’s behalf. 

It is ORDERED that Complainant shall be permitted to call Steven Rogers as a rebuttal 

witness at the hearing on June 22-23, 2016. Although the disclosure of this witness is later than 

is optimal, given the sequence of events, the delay was not unreasonable. The hearing is three 

weeks away, which gives the parties time to prepare for hearing.

1

 At the hearing, Complainant 

will be required to qualify Rogers as an expert in his field before he will be allowed to testify. 

Although Commission judges are not bound by the Federal Rules of Evidence, I will use them as 

a guide. Fed. R. Evid. 702 et seq. Complainant SHALL serve Rogers’ written report on counsel 

for Respondent via email by no later than 5:00 p.m. Mountain Time on Friday, June 3, 2016. 

Counsel for Complainant SHALL make Steven Rogers available for deposition on June 14, 

2016, in Denver, Colorado, or on another date agreed to by the parties. 

/s/ Richard W. Manning 

Richard W. Manning 

Administrative Law Judge 

Distribution (Via email and USPS): 

Jessica M. Flores, Esq., and Joseph Lake, Esq., Office of the Solicitor, U.S. Department of 

Labor, 90 7th Street, Suite 3-700, San Francisco, CA 94103-6704 

Donna V. Pryor, Esq., Jackson Lewis, 950 17th Street, Suite 2600, Denver, CO 80202-2828 

RWM 

1

I also note that in Mark Gray v. North Fork Coal Corp., 35 FMSHRC 2349 (August 

2013), the Commission reversed a judge’s order excluding the testimony of late-identified 

expert witnesses and remanded the case back to the judge. The identities of the two proposed 

expert witnesses were not disclosed to the respondent until about 15 days before the hearing. 

Although that case raised issues not present in this case, the Commission held that “the 

exclusion of critical evidence is an ‘extreme’ sanction, not normally to be imposed absent a 

showing of willful deception or ‘flagrant disregard’ of a court order by the proponent of the 

evidence.” 35 FMSHRC at 2360 (citations omitted). 

38 FMSHRC Page 1567
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 

June 9, 2016 

ORDER ON 

CROSS MOTIONS FOR SUMMARY JUDGEMENT 

Before: Judge Barbour 

This case is before the court upon a notice of contest filed by United States Steel 

Corporation – Minnesota Ore Operations (“the company”) challenging the validity of a citation 

(No. 8896708) issued at its Minntac Mine, a surface iron ore operation located in St. Louis 

County, Minnesota. The citation is dated February 1, 2016, and it charges the company with a 

violation of 30 C.F.R. § 56.12028, a mandatory safety standard for the nation’s surface metal and 

nonmetal mines. The standard requires: 

Continuity and resistance of grounding systems 

shall be tested immediately after installation, 

repair and modification; and annually thereafter. 

A record of the resistance measured during the 

most recent tests shall be made available on a 

request by the Secretary or [his inspector]. 

UNITED STATES STEEL 

CORPORATION – MINNESOTA ORE 

OPERATIONS, 

Contestant, 

v. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent. 

CONTEST PROCEEDING: 

Docket No. LAKE 2016-193-RM 

Citation No. 8896708; 02/01/2016 

Mine: Minntac Mine 

Mine ID: 21-00282 

38 FMSHRC Page 1568
The citation states in part: 

When requested, the . . . operator was unable 

to produce current documentation that the 

annual continuity and resistance test of [its] 

portable electric welders had been conducted. 

The continuity/ground resistance test ensures 

The portable welders are properly grounded. 

This condition exposes the miners using the 

portable welders to burns, shock and/or 

electrocution. 

Notice of Contest, Exh. A.1

Shortly after receiving the citation the company contested its validity asserting the issue 

of whether section 56.12028 is applicable to the equipment in question (the portable welders, 

including their power cables) previously was decided against the Secretary and that the citation 

should be vacated on res judicata grounds.2 Notice of Contest (February 26, 2016). 

The prior decision to which the company refers is USX Corporation –Minnesota Ore 

Operations, 21 FMSHRC 346 (March 1999) (ALJ), a case that arose at the Minntac Mine and 

that involved the same company as the subject case, albeit under the name of its holding 

company (USX Corporation). In the decision, now retired Commission Administrative Law 

Judge, T. Todd Hodgdon held that section 56.12028 does not apply to grounding conductors in 

trailing cables, power cords and cords supplying power to tools and portable or mobile 

equipment. Although the Secretary of Labor’s Mine Safety and Health Administration issued a 

policy statement interpreting the standard as applicable to such cables and cords, Judge 

Hodgdon, for several reasons, held that the policy statement constituted a substantive change in 

section 56.12028 and that notice and comment rulemaking, which the Secretary did not institute, 

was required before the change could be implemented. 21 FMSHRC at 355. The decision was 

not appealed by the Secretary. 

Despite the lack of an appeal, the USX case is not the end of the story regarding the 

courts and section 56.12028 because in a subsequent proceeding in which an operator contested 

the application of the standard to the cables and cords of its electrical equipment and power 

tools, a case decided on cross motions for summary decision, Commission Administrative Law 

Judge Alan Paez reached a different conclusion. Tilden Mining Company, LC, 33 FMSHRC 876 

(April 2011). Unlike Judge Hodgdon, Judge Paez found the Secretary’s interpretation that the 

1

 The citation also contains findings that the cited condition was unlikely to cause a fatal 

injury and was the result of the company’s low negligence. Notice of Contest, Exh. A. 

2

 Although Citation No. 8896708 refers to a failure to document resistance testing of 

portable welders, it is clear that the citation was issued for a failure to test the power cables or 

cords supplying power to the welders. The court reaches this conclusion because the parties 

essentially agree that the issue before the court is the applicability of section 56.12028 to cords 

supplying power to the welders. See, Secretary’s Response 13; Company’s Reply Br. 3  

38 FMSHRC Page 1569
standard applied to such cables and cords to be both reasonable and entitled to deference. 33 

FMSHRC at 880-881. Judge Paez concluded that rulemaking was not required (33 FMSHRC at 

880-883), and he therefore affirmed the contested citations and granted the Secretary’s cross

motion for summary decision. 33 FMSHRC at 885. The matter was appealed to the

Commission, which affirmed Judge Paez in all respects. 36 FMSHRC 1965 (Aug. 2014). The

Commission’s decision then was appealed to the United States Court of Appeals for the District

of Columbia Circuit, which has yet to rule. D.C. Cir. 14-1170 (2014).

In the case before the court, U.S. Steel asserts the primacy of the USX decision and seeks 

to foreclose re-litigation of an issue it contends was tried and decided as to U.S. Steel and its 

mine in a final judgment on the merits, a judgement that involved the same parties as the subject 

case. The company argues that the “issue of the applicability of the standard is a matter of res 

judicata between the parties and that the issuance of the [c]itation is improper and illegal.” 

Company’s Mot. For Sum. Dec. 2. 

The doctrine of res judicata encompasses limits on both the claims and the issues that 

may be raised in subsequent proceedings, and the company essentially contends that both forms 

of preclusion apply in this case. Id.3-7. The Secretary asserts they do not, and the parties argue 

at length about it. See Company’s Mot. for Sum. Dec.; Company’s Mem. of Law In Support of 

Mot. for Sum. Dec.; Company’s Reply Br.; Sec.’s Response to [Co.’s] Mot.for Sum. Dec. and 

Sec.’s Cross Mot. for Sum. Dec. While the court appreciates the parties’ efforts, it concludes 

that a more fundamental concept compels the court to short circuit the issue of preclusion and 

succinctly rule in the Secretary’s favor. 

RULING 

Summary judgement on behalf of the company is inappropriate because the court is 

compelled to follow the Commission, which has spoken on the issue. Unless and until the D.C. 

Circuit reverses the Commission’s holding, the court must conform to the Commission’s 

decision. As the Secretary notes, “[Tilden] is binding precedent.”3 Resp. to [Co.]’s Mot. For 

Sum. Dec. 8. Were the court to rule in favor of the company and follow Judge Hodgdon, the 

court would allow the preclusions argued for by the company to trump res judicata, and the 

result would be to grant U.S. Steel a variance from a requirement that governs all other of the 

nation’s metal and nonmetal mine operators.4 See. Sec.’s Resp 11 (“To . . . allow [the company] 

to abide by the 1999 decision rather than current law would accord [the company] different 

treatment from that given to other miner operators. Id.] Section 101(c) of the Mine Act, 30 

3

 Moreover, and again as the Secretary points out, Tilden represents a change in 

controlling legal principles and therefore cautions against the application of res judicata. “[A] 

subsequent modification in controlling legal principles . . . may make [a] prior determination 

obsolete for future purposes.” Sec.’s Resp. to Contestant’s Mot. For Sum. Dec. 11 (citing 

Commissioner v. Sunnen, 333 U.S. 591, 598-599 (1948). 

4

 The company and the court clearly hold opposite views as to whether the 

Commission’s decision in Tilden is controlling. As stated, the Secretary and the court believe a 

Commission decision must be followed until it is reversed or otherwise nullified and that carving 

out exceptions based on a prior contrary decision is not allowed. The company finds this belief 

to be “without merit.” Company’s Reply Br.3 n. 3. 

38 FMSHRC Page 1570
U.S.C. §, 811(c), provides a way to obtain a variance, but the Act does not allow an operator to 

end run a principal that assures even handed uniformity in the application of the law. 

For these reasons the court holds that the cited standard applies to the cited equipment. 

Therefore, the company’s motion for summary judgement IS DENIED. While it is clear from 

the record that the company did not annually test the grounding systems for its electric welders 

and hence did not (and indeed, could not) produce documentation that the annual tests were 

conducted, the company asserts this proceeding should continue so there can be “a full record 

surrounding the issuance of the [c]itation.” Company’s Rep. Br. 10. In arguing for further 

proceedings, the company is not taking a new position. In its notice of contest the company 

raised reasons other than res judicata as to why the contested citation is invalid. Notice of 

Contest 2 at 3 (a) – 3(c). The company is entitled to prove these reasons. Accordingly, the 

Secretary’s cross motion also IS DENIED. This proceeding IS STAYED pending a ruling by 

the United States Court of Appeals for the District of Columbia Circuit in Tilden and/or the 

assessment of a proposed civil penalty for the violation alleged in Citation No. 8896708 followed 

by the subsequent filing of a civil penalty petition by the Secretary. 

/s/ David F. Barbour 

David F. Barbour 

Administrative Law Judge 

38 FMSHRC Page 1571
Distribution: (1st Class U.S. Mail) 

Barbara M. Villalobos, Esq., U.S. Department of Labor, Office of the Solicitor, 230 S. Dearborn 

St., 8th Flr., Chicago, IL 60604 

R. Henry Moore, Esq.; Arthur M. Wolfson, Esq.; Patrick W. Dennison, Esq.; Jessica M. Jurasko,

Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Ave, Suite 1500, Pittsburgh, PA

15222

/db 

38 FMSHRC Page 1572
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004 

June 14, 2016 

SEVERANCE ORDER 

AND 

PREHEARING ORDER 

Before: Judge Feldman 

The captioned matters are before me upon petitions for assessment of civil penalties filed 

by the Secretary of Labor (“Secretary”), pursuant to section 105(d) of the Federal Mine Safety 

and Health Act of 1977 (“the Mine Act”), 30 U.S.C. § 815(d). The focus of these proceedings is 

Order No. 8059209 in Docket No. WEVA 2015-632, issued on July 30, 2014, which has been 

designated as a repeated flagrant violation under section 110(b)(2) of the Mine Act.1

 Order No. 

8059209 alleges extensive accumulations of loose coal and coal fines, many of which were in 

1

 Section 110(b)(2) provides: 

Violations under this section that are deemed to be flagrant may be assessed a 

civil penalty of not more than $220,000. For purposes of the preceding sentence, 

the term “flagrant” with respect to a violation means a reckless or repeated failure 

to make reasonable efforts to eliminate a known violation of a mandatory health 

or safety standard that substantially and proximately caused, or reasonably could 

have been expected to cause, death or serious bodily injury. 

30 U.S.C. § 820(b)(2) (emphasis added). 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

CONSOLIDATION COAL COMPANY, 

 Respondent. 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 2015-74 

A.C. No. 46-01968-361667

Docket No. WEVA 2015-425 

A.C. No. 46-01968-371547

Docket No. WEVA 2015-473 

A.C. No. 46-01968-373553

Docket No. WEVA 2015-509 

A.C. No. 46-01968-374332

Docket No. WEVA 2015-632 

A.C. No. 46-01968-377533

Mine: Blacksville No. 2 

38 FMSHRC Page 1573
contact with turning rollers, in violation of the mandatory standard in 30 C.F.R. § 75.400. The 

Secretary proposes a $121,300.00 enhanced civil penalty for Order No. 8059209. Specifically, 

Order No. 8059209 provides: 

Accumulations of combustible material is allowed to accumulate over previously 

rock dusted surfaces on the 5-West company #1 belt conveyor in the following 

locations: 1) Accumulations of loose coal, and coal fines is allowed to exist from 

6 block to 34 block. The accumulations measured 16 feet wide, 1/8 inch thick, 

and approximately 3400 feet long. These accumulations are located on the mine 

floor, roof, ribs, and belt structure. The accumulations are dry in spots, and very 

dry on belt structure. The accumulations are dark brown in color. 2) 

Accumulations are present 10 1/2 block and in contact with both bottom rollers. 

These accumulations of coal fines/belt fines measured 3 feet wide, 2 foot long, 

and 16 inches deep. 3) Also, accumulations of dry coal fines/belt fines are present 

at 12 1/4 block and in contact with both bottom rollers. These accumulations 

measured 3 feet long, 3 feet wide, and 24 inches deep. 4) Accumulations of loose 

coal, and coal fines is present at 12 1/2 block, and are in contact with on bottom 

roller that is turning in accumulations. These accumulations measured 3 feet long, 

3 1/2 fee wide, and 20 inches high. 5) Also, accumulations of coal fines, and loose 

coal is in contact with bottom roller at 17 1/2 block. These accumulations 

measured 1 foot wide, 2 feet long, and 20 inches deep. 6) Also, accumulations of 

coal fines/belt fines is present at 21 3/4 block and contacting both bottom rollers. 

These accumulations measured 2 feet wide, 2 feet long, and 22 inches high. 7) 

Also, accumulations just inby 23 block are in contact with inside part of both 

bottom rollers, allowing rollers to turn in accumulations. These accumulations are 

coal fines, and belt fines. These accumulations measured 3 feet long, 1 foot wide, 

and 10 inches deep. 8) Also, accumulations of coal fines/belt fines is in contact 

with both bottom rollers at 23 1/2 block. The accumulations measured 2 feet 

wide, 2 foot long, and 12 inches deep. 9) Also, accumulations of coal fines/belt 

fines is present at 24 block and in contact with both bottom rollers. These 

accumulations measured 3 feet long, 1 foot wide, and 10 inches wide. These 

accumulations were dry and black in color. 10) Also, accumulations of dry coal 

fines/belt fines are in contact with 2 consecutive bottom rollers at 25 1/2 block. 

The accumulations measured 3 feet wide, 1 1/2 wide, and 10 inches deep in both 

locations. 11) Also, accumulations of coal fines/belt fines is allowed to exist on 

mine floor, and in contact with bottom roller. Accumulations measured 1 1/2 feet 

wide, 1 foot long, and 18 inches deep at 19 3/4 block. This mine is on a 5-day 103 

(I) spot inspection for liberating over 1 million cubic feet of methane in a 24 hour

period. Citation #8059210, and Citation #8059211 are issued in conjunction with

this order for damaged rollers, and belt rubbing metal components in the same

areas as the cited accumulations. This creates a confluence of factors. Miners

work and travel in these areas each shift in performance of their duties. There is

evidence that these accumulations have existed for an extended period of time,

due to amount of accumulations present, and foot prints in the walkway through

accumulations. A certified mine examiner travels this belt conveyor 3 times a day,

and should have been aware that these conditions were present.

Accumulations/roller spillage was visible to the most casual observer.

38 FMSHRC Page 1574
Examinations are the first line of defense for the health and safety of the miners. 

These conditions were obvious and extensive and should have been reported and 

corrected. History has shown that frictional heat sources such as belt rubbing 

structure causes mine fires. If normal mining operations were to continue and 

these conditions were left unabated it is reasonably likely that friction sources 

present will ignite accumulations, and/or contribute to a fire and/or explosion 

occurring nearby. The operator removed the belt from service to correct ignition 

sources. Numerous 75.400 citations have been issued at this mine in the past. This 

is the third 75.400 order issued on belt conveyors at this mine in the past 6 

months. The operator has engaged in aggravated conduct constituting more than 

ordinary negligence. The belt was in operation at the time of issuance. A mine fire 

occurred at this mine on 3-12-12. This violation is an unwarrantable failure to 

comply with a mandatory health and safety standard. 

Also at issue in this proceeding is Order No. 8059212 in Docket No. WEVA 2015-509, 

which alleges a failure to conduct an adequate examination with respect to the cited violative 

accumulation condition in Order No. 8059209. The Secretary seeks a civil penalty of $40,300.00 

for Order No. 8059212. 

The Secretary has identified three predicate 104(d) orders contained in Docket Nos. 

WEVA 2015-74, WEVA 2015-425, and WEVA 2015-473, in support of his repeated flagrant 

designation in Order No. 8059209. The Secretary does not assert that the alleged predicate 

violations in Docket Nos. WEVA 2015-74, WEVA 2015-425, and WEVA 2015-473, are 

themselves flagrant in nature. The Respondent objects to the Secretary’s consideration of these 

predicates as arbitrary and immaterial. 

Given the Secretary’s asserted relevance of the alleged predicates, the five captioned 

dockets were consolidated and stayed on May 12, 2016, pending the final disposition of Oak 

Grove Res., LLC, 38 FMSHRC __, slip op. (May 3, 2016) (ALJ) (“Oak Grove”), which 

addressed the evidentiary requirements for a repeated flagrant designation with respect to an 

alleged violation of section 75.400.2 Oak Grove held that a violative condition that does not 

otherwise meet the statutory definition of flagrant cannot be elevated to flagrant status simply 

based on a history of violations. Id. at 4. Thus, Oak Grove stands for the proposition that, 

although a history of violations may be a relevant consideration with respect to the appropriate 

civil penalty, individual alleged predicate violations are not dispositive of the question of 

whether a cited condition is properly designated as flagrant. As petitions for discretionary review 

were not filed in Oak Grove, the May 3, 2016, decision in Oak Grove constitutes a final ALJ 

decision. 

2

 The May 12, 2016, stay of the captioned dockets will remain in effect pending the 

parties’ responses to this Order. 

38 FMSHRC Page 1575
In view of the finality of the ALJ holding in Oak Grove that individual alleged predicates, 

alone, are not a prerequisite for a repeated flagrant designation, Docket Nos. WEVA 2015-74, 

WEVA 2015-425, and WEVA 2015-473, which contain violations alleged to be predicates 

supporting the flagrant designation in Order No. 8059209, shall be severed from WEVA 2015-

509 and WEVA 2015-632. Severance will permit the focus to be on the principle issue in this 

matter: whether the cited accumulation condition in Order No. 8059209 is properly designated as 

flagrant. 

Section 75.400 is the most frequently cited mandatory standard in underground coal 

mines. For example, section 75.400 violations constituted eleven percent of all citations issued at 

underground coal mines in 2015. MSHA, Most Frequently Cited Standards, 

http://arlweb.msha.gov/stats/top20viols/top20viols.asp (last visited June 10, 2016). As such, Oak 

Grove further stands for the proposition that the vast majority of routine section 75.400 coal dust 

accumulations violations that do not involve proximity to existing ignition sources cannot be 

properly designated as flagrant. However, Oak Grove also noted: 

There may be exceptional cases where the depth of prohibited coal dust 

accumulations and their contact with multiple turning rollers causes demonstrable 

suspension of coal dust that could be construed as reasonably expected to be the 

proximate cause of propagation and resultant serious bodily injury or death, thus 

satisfying the statutory definition of flagrant. 

38 FMSHRC __, slip op. at 7 n.4. 

Specifically, Oak Grove noted the following criteria necessary for a repeated flagrant 

designation:

1. A repeated flagrant violation is a flagrant violation that is demonstrated by

either:

a. A repeated failure to eliminate the violation properly designated as

flagrant, or

b. A relevant history of violations that also meet the requirements for

a flagrant violation with respect to knowledge, causation and

gravity, as enumerated below.3

2. A flagrant violation must be a known violation that is conspicuously

dangerous, in that it cannot reasonably escape notice.

3

 This criterion that predicate violations must also meet the requirements for a flagrant 

violation was included at the suggestion of the Secretary. See Oak Grove Order, 36 FMSHRC 

1777, 1789 n.13 (June 2014) (ALJ). However, under certain circumstances, I believe a history of 

relevant violations can provide a basis for a “repeated” designation for a violation otherwise 

properly designated as flagrant, regardless of whether the previous violations satisfy the statutory 

definition of flagrant. 

38 FMSHRC Page 1576
3. A flagrant violation must be the substantial and proximate cause of death

or serious bodily injury that has occurred or can reasonably be expected to

occur.

a. A substantial and proximate cause is a dominant cause without

which death or serious bodily injury would not occur.

b. A serious bodily injury is a grave injury that results in significant

debilitating and/or permanent impairment.

c. Such injury is reasonably expected to occur if there is a significant

probability of its occurrence.

Id. at 5. 

ORDER 

In view of the above, IT IS ORDERED that Docket Nos. WEVA 2015-74, WEVA 

2015-425, and WEVA 2015-473 ARE SEVERED from WEVA 2015-509 and WEVA 2015-

632. 

Furthermore, assuming the accumulations conditions cited in Order No. 8059209 

accurately reflect the conditions as they existed when Order No. 8059209 was issued on July 30, 

2014, IT IS FURTHER ORDERED that the Secretary should address in writing, on or before

July 15, 2016, whether the cited accumulation violation is properly designated as flagrant, in that 

it satisfies the criteria in (2) and (3) above. 

With respect to the Secretary’s alleged repeated designation, MSHA’s database reflects 

that in the two years preceding the July 30, 2014, issuance of Order No. 8059209, the 

Respondent received 147 citations and orders for violations of section 75.400 at its Blacksville 

No. 2 mine. Of these 147 violations, five were attributed to an unwarrantable failure, and 64 

were designated as significant and substantial. (Three of these five 104(d) violations are pending 

in the captioned proceedings.) Consequently, IT IS FURTHER ORDERED that the Secretary 

should address whether the Respondent’s history of previous section 75.400 violations provides 

an adequate basis for designating Order No. 8059209 as a repeated flagrant violation. See 

footnote 3, supra. 

IT IS FURTHER ORDERED that the Respondent file a written response to the 

Secretary’s submission on or before August 5, 2016. 

/s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

38 FMSHRC Page 1577
Distribution: 

Susan T. Kinniry, Esq., U.S. Department of Labor, Office of the Solicitor, 170 S. Independence 

Mall West, Suite 700 East, Philadelphia, PA 19106-3306 

Jordana L. Greenwald, Esq., U.S. Department of Labor, Office of the Solicitor, 170 South 

Independence Mall West, The Curtis Center, Suite 630E, Philadelphia, PA 19106-3306 

Jason W. Hardin, Esq., Melanie S. Grayson, Esq., Fabian Vancott, 215 South State Street, Suite 

1200, Salt Lake City, UT 84111-2323 

/acp 

38 FMSHRC Page 1578
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH ST., SUITE 443 

DENVER, CO 80202-2500 

OFFICE: (303) 844-5266/FAX: (303) 844-5268 

June 24, 2016 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), Docket No. WEST 2013-636-M 

Petitioner, A.C. No. 02-01049-315370

v. 

BHP COPPER, INC., 

Respondent. Mine: Pinto Valley Operations 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), Docket No. WEST 2013-587-M 

Petitioner, A.C. No. 02-01049-315369

v. 

TETRA TECH CONSTRUCTION SERVICES, 

Respondent. Mine: Pinto Valley Operations 

ORDER DENYING MOTION FOR RECONSIDERATION 

ORDER DENYING MOTION TO CERTIFY 

Before: Judge Miller 

These cases are before me upon a petition for assessment of a civil penalty filed by the 

Secretary of Labor pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 815(d) (“the Act”). The cases involve a fatal accident that occurred at the 

Pinto Valley Mine on September 22, 2012. In response to the accident, Respondent BHP 

Copper, Inc. (“BHP”) conducted an internal investigation into the accident, in which Respondent 

Tetra Tech Construction Services (“Tetra Tech”) also participated pursuant to a common interest 

agreement. On March 21, 2016, the Secretary filed a motion to compel production of the mine’s 

fatal accident report and related documents. I granted in part and denied in part the Secretary’s 

motion to compel in an order dated April 25, 2016. On April 29, 2016, BHP filed a motion 

requesting that I stay the order and reconsider it, or, in the alternative, certify the order for 

interlocutory review by the Federal Mine Safety and Health Review Commission. Tetra Tech 

joined in the motion. I stayed the order in an email to the parties on May 2, 2016, pending further 

review. The Secretary filed a response in opposition to BHP’s motion, and BHP filed a reply. 

38 FMSHRC Page 1579
I. BRIEF SUMMARY OF THE PARTIES’ ARGUMENTS

BHP argues that reconsideration is appropriate because the order is contrary to law. The 

order requires BHP to provide any documents containing factual information, with any 

deliberation, attorney opinion, comment, legal strategy, or mental impression redacted. Order at 

7. BHP argues that this conclusion erroneously applies the Supreme Court’s holding in Upjohn

Co. v. United States, 449 U.S. 383 (1981), and is contrary to Ninth Circuit precedent in Admiral

Ins. Co. v. U.S. Dist. Court for Dist. of Ariz., 881 F.2d 1486, 1493-95 (9th Cir. 1989). It further

argues that it is uncertain how to comply with the order to the extent that it is required to separate

facts from opinions. Finally, BHP further argues that my conclusion that the materials sought

were prepared in the ordinary course of business and thus not protected by the work product

privilege is contrary to law. It argues that this conclusion ascribes a single purpose to the

documents, which is inappropriate under Ninth Circuit precedent. 

The Secretary argues that reconsideration is not warranted because there has been no 

change in controlling law, the order did not contain a clear error of law, and the order will not 

result in any injustice. The Secretary argues that the order correctly applies the holding in 

Upjohn that “a party cannot conceal a fact merely by revealing it to his lawyer.” 449 U.S. at 

396. The Secretary also argues that the conclusion that the materials in question were not

protected by work product privilege was correct.

II. LEGAL STANDARD

The Commission has held that reconsideration of a final order is appropriate if the 

Commission has “overlooked or misapprehended significant facts or legal arguments.” Island 

Creek Coal Co., 23 FMSHRC 138, 139 (Feb. 2001). Similarly, reconsideration of a final 

judgment in federal court is appropriate only if the court is “presented with newly discovered 

evidence, committed clear error, or if there is an intervening change in the controlling law.” 

McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (emphasis omitted) (interpreting 

Fed. R. Civ. P. 59(e) regarding alteration of a judgment). 

Regarding intermediate orders, Federal Rule of Civil Procedure 54(b) provides that 

any order or other decision, however designated, that adjudicates 

fewer than all the claims or the rights and liabilities of fewer than 

all the parties does not end the action as to any of the claims or 

parties and may be revised at any time before the entry of a 

judgment adjudicating all the claims and all the parties’ rights and 

liabilities. 

Accordingly, a showing of clear error or a change in law may not be necessary for modification 

of an interlocutory order. See Agapito Assocs., Inc., 30 FMSHRC 1187, 1188-89 (Dec. 2008) 

(ALJ) (deciding that an Island Creek showing was not necessary for reconsideration of an order 

denying a motion to stay). 

38 FMSHRC Page 1580
III. DISCUSSION 

A. Work Product Privilege 

BHP asks that I reconsider my conclusion that the materials addressed in the motion to 

compel, an accident investigation report and related documents, were not protected by the work 

product privilege. BHP asserts that its investigation of the accident that killed Jon Vanoss was 

conducted in preparation for litigation. However, BHP also had a regulatory obligation to 

investigate the accident. The Secretary’s regulations require that “Each operator at a mine shall 

investigate each accident and each occupational injury at the mine. Each operator of a mine shall 

develop a report of each accident.” 30 C.F.R. § 50.11(b). In addition, BHP had an internal 

policy requiring an investigation after any accident at the mine. The issue in this case is whether 

the work product doctrine limits discovery of materials that were prepared in anticipation of 

litigation but also pursuant to a regulatory requirement or internal business policy. 

The Supreme Court has recognized that in order to effectively prepare a case, a lawyer 

must be able to “assemble information, sift what he considers to be the relevant from the 

irrelevant facts, prepare his legal theories and plan his strategy without undue and needless 

interference.” Hickman v. Taylor, 329 U.S. 495, 511, 67 S. Ct. 385, 393 (1947). Accordingly, 

the Federal Rules of Civil Procedure limit discovery of “documents and tangible things that are 

prepared in anticipation of litigation or for trial by or for another party or its representative” 

unless the party seeking to discover the materials demonstrates a substantial need. Fed. R. Civ. 

P. 26(b)(3); see also United States v. Nobles, 422 U.S. 225, 237-38, 95 S. Ct. 2160, 2170 (1975) 

(“The Court therefore recognized a qualified privilege for certain materials prepared by an 

attorney ‘acting for his client in anticipation of litigation.’”) 

Materials that are prepared in anticipation of litigation as well as for another purpose are 

often referred to as having a “dual purpose.” Courts that have addressed the issue of work 

product protection of these materials have adopted the “because of” test. See, e.g., United States 

v. Richey, 632 F.3d 559, 568 (9th Cir. 2011); United States v. Adlman, 134 F.3d 1194, 1203 (2d 

Cir. 1998); Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Murray Sheet Metal Co., 967 F.2d 

980, 984 (4th Cir. 1992). Under this test, materials should be considered “prepared ‘in 

anticipation of litigation,’ and thus within the scope of [Rule 26(b)(3)], if in light of the nature of 

the document and the factual situation in the particular case, the document can fairly be said to 

have been prepared or obtained because of the prospect of litigation.” Adlman, 134 F.3d at 1202 

(internal quotations omitted) (citing 8 Charles Alan Wright et al., Federal Practice & Procedure

§ 2024 (1994)). In Adlman, the Second Circuit explained further that: 

Where a document is created because of the prospect of litigation, 

analyzing the likely outcome of that litigation, it does not lose 

protection under this formulation merely because it is created in 

order to assist with a business decision. Conversely, it should be 

emphasized that the “because of” formulation ... withholds 

protection from documents that are prepared in the ordinary course 

 

38 FMSHRC Page 1581
of business or that would have been created in essentially similar 

form irrespective of the litigation. 

Id.; see also Richey, 632 F.3d at 568 (holding that an appraisal report required by the IRS for a 

tax deduction was not covered by the work product doctrine because the report would have been 

prepared even in the absence of litigation). 

The Ninth Circuit addressed a situation similar to the one at hand in Torf, which involved 

a “dual purpose” investigation conducted in part because of regulatory requirements. In re 

Grand Jury Subpoena (Mark Torf/Torf Envtl. Mgmt.), 357 F.3d 900 (9th Cir. 2004). An agent of 

the company’s attorney had conducted an investigation into hazardous substances at the 

company’s plant in response to a request from the EPA as well as in preparation for litigation 

with the government. Id. at 904. A grand jury later sought to subpoena documents produced as 

part of the investigation. Id. The Ninth Circuit held that the documents were protected by the 

work product doctrine because the litigation purpose of the documents “so permeates any nonlitigation purpose that the two purposes cannot be discretely separated from the factual nexus as 

a whole.” Id. at 910. In reaching its conclusion, the court emphasized that the company had 

hired an attorney “only after learning that the federal government was investigating it for 

criminal wrongdoing” and that it was not “assigning an attorney a task that could just as well 

have been performed by a non-lawyer.” Id. at 909. 

In this case, the company had a clear regulatory obligation to conduct an investigation of 

the accident and produce a report. The company also had a policy requiring an investigation of 

any accident, and detailed procedures for how to conduct the investigation. Thus, I find that 

BHP’s accident report “would have been created in essentially similar form irrespective of the 

litigation.” See Adlman, 134 F.3d at 1202. I also find that this case is distinguishable from Torf. 

While in that case the company hired an attorney only after learning that the government was 

investigating it, here the company contacted its attorney soon after learning of the accident. 

Further, I find that unlike in Torf, the investigation here was “a task that could just as well have 

been performed by a non-lawyer.” See Torf, 357 F.3d at 909. The deposition testimony 

submitted by the Secretary indicates that investigations were at times conducted without the 

supervision of an attorney. Sec’y Ex. 7 at 129. The only exception to this is notes by the 

attorney or his agents regarding legal strategy, which could not have been produced by a nonattorney and would not have been produced but for anticipated litigation. See Upjohn Co. v. 

United States, 449 U.S. 383, 400 (Jan. 1981) (“Rule 26 accords special protection to work 

product revealing the attorney’s mental processes.”) Accordingly, I find that, with the exception 

of those notes, the materials relating to the investigation were not protected by the work product 

doctrine. 

B. Attorney-Client Privilege 

In my initial order, I concluded that parts of the investigation report and related materials 

were protected by the attorney-client privilege, but that factual matter contained in the 

documents was not privileged. BHP asks that I also reconsider this conclusion. 

38 FMSHRC Page 1582
Materials for which BHP claims attorney-client privilege include the incident report 

summarizing findings of the investigation; drafts of the report; slide presentations, memoranda, 

and flow charts summarizing the report; memoranda to and from counsel regarding the 

investigation; notes taken by counsel regarding the accident; emails to and from counsel relating 

to logistics, procedures, and legal strategy for carrying out the investigation; and emails to and 

from counsel discussing the findings of the investigation. 

The attorney-client privilege is intended to “encourage full and frank communication 

between attorneys and their clients.” Upjohn v. United States, 449 U.S. 383, 389 (1981). The 

privilege “rests on the need for the advocate and counselor to know all that relates to the client’s 

reasons for seeking representation” to enable the lawyer to effectively advise and advocate for 

the client. Trammel v. United States, 445 U.S. 40, 51 (1980). 

To successfully assert attorney-client privilege, the party claiming the privilege must 

demonstrate that 

(1) the asserted holder of the privilege is or sought to become a 

client; (2) the person to whom the communication was made (a) is 

a member of the bar of a court, or his subordinate and (b) in 

connection with this communication is acting as a lawyer; (3) the 

communication relates to a fact of which the attorney was 

informed (a) by his client (b) without the presence of strangers (c) 

for the purpose of securing primarily either (i) an opinion on law or 

(ii) legal services or (iii) assistance in some legal proceeding, and 

not (d) for the purpose of committing a crime or tort; and (4) the 

privilege has been (a) claimed and (b) not waived by the client. 

Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998). 

The Secretary argues that BHP has not proven part 3(c) of the test with regard to most of 

the documents requested because the accident investigation was not conducted for the purpose of 

obtaining legal advice, but rather to determine the cause of the accident and identify measures to 

prevent a recurrence. 

In Upjohn, the Supreme Court ruled that attorney-client privilege extended to 

communications made during an internal investigation conducted to ensure compliance with the 

law. 449 U.S. at 392. The Court noted that “In light of the vast and complicated array of 

regulatory legislation confronting the modern corporation, corporations, unlike most individuals, 

‘constantly go to lawyers to find out how to obey the law.’” Id. As in the area of work product 

privilege, communications made to an attorney can often have more than one purpose. To 

resolve the issue of whether such communications are covered by the attorney-client privilege, 

courts apply the “primary purpose test.” In re Kellogg Brown & Root, Inc., 756 F.3d 754, 760 

(D.C. Cir. 2014). The D.C. Circuit has described the test as asking “whether obtaining or 

providing legal advice was one of the significant purposes of the attorney-client 

communication.” Id. (emphasis added); cf. United States v. Richey, 632 F.3d 559, 567 (9th Cir. 

2011) (finding that privilege did not apply because communications were “not made for the 

purpose of providing legal advice, but, instead, for the purpose of determining the value” of 

38 FMSHRC Page 1583
property). In Kellogg, the court concluded that communications made as part of an internal 

investigation were privileged because one of the significant purposes of the investigation was to 

obtain or provide legal advice, even though the investigation was also conducted as part of a 

compliance program required by federal regulations. Id. 

I find that, while the investigation at issue was conducted in part for business reasons, it 

was also done for the purpose of obtaining legal advice. The investigation was led by counsel, 

and the attorney claims that he provided legal advice as a part of that investigation. 

However, it is not clear from the record that all of the documents withheld were 

communications by a client to counsel. In Upjohn, the Court made clear that the attorney-client 

privilege extended only to “the responses to the questionnaires” the attorney had sent to 

employees “and any notes reflecting responses to interview questions.” 449 U.S. at 397. In this 

case, many of the documents at issue were written by the attorney and his investigation team 

rather than by clients. See, e.g., Privilege Log ¶¶ 1, 9-16. These documents are protected only 

insofar as they reflect statements by employees or managers given directly to counsel or his 

agents seeking legal advice and documents that include that legal advice. Conclusions or 

impressions of the attorney, including attorneys’ notes, are protected by the work product 

privilege as discussed above. Any emails from clients to counsel regarding the investigation are 

protected if the statements relate to the procurement of legal advice, but emails that simply 

include an attorney as one of many recipients are not protected. The work of an attorney in 

giving advice and legal conclusions and impressions is protected by privilege, but the facts of the 

case are not, and may not be shielded by privilege. 

IV. INTERLOCUTORY REVIEW 

BHP asks that if I deny its motion for reconsideration, I certify the April 25 Order for 

interlocutory review by the Commission. Commission Rule 76 provides that the judge should 

certify a ruling for interlocutory review if the 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)(1). 

I find that a controlling question of law is involved: whether materials relating to a 

mine’s internal investigation of an accident are protected by the attorney-client privilege or work 

product doctrine. However, the resolution of this question will not materially advance the final 

disposition of this proceeding. BHP states that an Arizona state court has ruled in related civil 

litigation that BHP’s investigation materials are protected from discovery under state law. 

Nevertheless, the issue is not dispositive as to the entire case. The parties have already engaged 

in extensive discovery for a case that involves only two citations. The case is set to be heard 

nearly four years after the subject accident occurred. Appellate review of this issue would 

merely delay the proceeding further. 

V. ORDER 

For the reasons above, Respondent’s Motion for Reconsideration is hereby DENIED. 

Respondent’s Motion for Certification for Interlocutory Review is also DENIED. Consistent 

38 FMSHRC Page 1584
with the April 25 Order, BHP and Tetra Tech are ORDERED to provide all requested 

documents to the Secretary except for documents that include the impressions, thoughts and 

conclusions of Respondent’s attorneys. Reports, slide presentations, drawings, photographs, 

memoranda, fact statements and other materials summarizing the findings of the investigation 

must be provided. Statements by employees and management to counsel seeking advice or 

advice from the attorney, contained in the documents may be redacted. Discussions of legal 

strategy by counsel may also be redacted. 

/s/ Margaret A. Miller 

Margaret A. Miller 

 Administrative Law Judge 

Distribution: (U.S. First Class Certified Mail) 

Norman E. Garcia, U.S. Department of Labor, 90 7th Street, Room 3-700, San Francisco, CA 

94103 

Demian Camacho, U.S. Department of Labor, 350 South Figueroa Street, Suite 370, Los 

Angeles, CA 90071 

Michael C. Ford, Snell & Wilmer, LLP, One Arizona Center, 400 East Van Buren Street, Suite 

1900, Phoenix, AZ 86004 

Peter S. Gould, Squire Patton Boggs (US), LLP, 1801 California Street, Suite 4900, Denver, CO 

80202 

38 FMSHRC Page 1585