i 

January and February 2019 

TABLE OF CONTENTS

ADMINISTRATIVE LAW JUDGE DECISIONS 

01-14-19 M-CLASS MINING, LLC LAKE 2018-0188-R Page 1

01-17-19 RICHMOND SAND & STONE, LLC YORK 2018-0031-M Page 12

02-07-19 SEC. OF LABOR O/B/O JASON 

WYLIE v. ALLEGHENY MINERAL 

CORPORATION 

PENN 2018-0158-DM Page 20

02-08-19 CORMIER CONSTRUCTION Page 27

02-11-19 PETE TARTAGLIA, JR. v. 

FREEPORT-MCMORAN BAGDAD 

INC. 

YORK 2017-0047 

WEST 2018-0362-DM Page 47

02-13-19 NORTHSHORE MINING COMPANY LAKE 2017-0224 Page 50

02-15-19 PEABODY MIDWEST MINING, 

LLC 

LAKE 2016-0421 Page 79

02-19-19 SEC. OF LABOR O/B/O JASON 

WYLIE v. ALLEGHENY MINERAL 

CORPORATION 

PENN 2018-0158-DM Page 116

ADMINISTRATIVE LAW JUDGE ORDERS 

01-09-19 SEC. OF LABOR O/B/O JASON 

WYLIE v. ALLEGHENY MINERAL 

CORPORATION 

PENN 2018-0158-DM Page 123
ii 

01-18-19 SEC. OF LABOR O/B/O DELBERT 

LEIMBACH v. HUBER 

CARBONATES, LLC 

LAKE 2019-0106-DM Page 126 

02-06-19 MICHAEL DEUSO v. SHELBURNE 

LIMESTONE CORP. 

YORK 2019-0015-DM Page 133

02-13-19 GABRIEL SILVA v. ROCKWELL 

MINING, LLC, BLACKHAWK 

MINING, LLC, BLACK OAK 

MINING, LLC 

WEVA 2018-0565-D Page 137

02-25-19 SEC. OF LABOR O/B/O JAMES DEE 

TERRY v. PROSPECT MINING & 

DEVELOPMENT CO., LLC 

SE 2019-0071-D Page 142
iii 

Review was granted in the following cases during the months of January and February 

2019: 

Robert Thomas v. Calportland Company, Docket No. WEST 2018-402 DM (Judge Miller, 

December 10, 2018) 

Secretary of Labor v. KenAmerican Resources, Inc., Docket No. KENT 2013-211 (Judge Gill, 

December 14, 2018) 

Secretary of Labor v. Richmond Sand & Stone, LLC, Docket No. YORK 2018-0031 M (Judge 

Bulluck, January 17, 2019) 

Review was denied in the following case during the months of January and February 2019: 

Secretary of Labor v. Cactus Canyon Quarries, Inc., Docket No. CENT 2018-243 (Judge 

Simonton, December 12, 2018) 

Secretary of Labor v. Poland Sand & Gravel, LLC, Docket No. YORK 2017-0096 (Judge 

Bulluck, December 28, 2018) 

ADMINISTRATIVE LAW JUDGE DECISIONS

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 

January 14, 2019 

DECISION 

Appearances: Christopher D. Pence, Hardy Pence PLLC, Charleston, WV, for Contestant; 

Travis W. Gosselin, U.S. Department of Labor, Office of the Solicitor, Chicago, 

IL, for Respondent. 

Before: Judge Simonton 

This case is before me upon M-Class Mining, LLC’s (“M-Class” or “Contestant”) Notice 

of Contest pursuant to section 104(d) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 815(d).1 This proceeding involves § 103(k) Order No. 9104295 (“(k) Order”), issued to 

M-Class on February 24, 2018, and terminated on April 4, 2018. There is no corresponding

section 104(a) citation or penalty assessment. Nonetheless, M-Class declined to withdraw its

contest and maintained that the (k) Order should be vacated as invalidly issued and overbroad in

scope.

Given the unique procedural posture of the contest, the parties were instructed to brief 

whether this court retained jurisdiction over a terminated (k) Order. Upon review, the court 

found that the Commission did in fact retain jurisdiction to review the terminated (k) Order. 

Order Denying Secretary’s Motion to Dismiss, dated July 18, 2018. The court also denied the 

Secretary’s subsequent Motion to Certify the Matter for Interlocutory Review, and set the docket 

1

 In this decision, the parties’ Joint Stipulations, the transcript, the Secretary’s exhibits, 

and Contestant’s exhibits are abbreviated as “Jt. Stip. #,” “Tr.,” “Ex. S–#,” and “Ex. C–#,” 

respectively. 

M-CLASS MINING, LLC,

 Contestant, 

 v. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent. 

CONTEST PROCEEDING 

Docket No. LAKE 2018-0188-R 

Order No. 9104295; 2/24/2018 

Mine: MC #1 

Mine ID: 11-03189 

41 FMSHRC Page 1
for hearing.2 See Order Denying Secretary’s Motion for Certification for Interlocutory Review & 

Order Denying Secretary’s Motion to Stay, dated September 11, 2018.3

The hearing was held on October 3-4, 2018, in St. Louis, Missouri. Based upon the 

parties’ stipulations and my review of the witness testimony, the entire record, and the parties’ 

post-hearing briefs, I make the following findings. 

I. FINDINGS OF FACT

A. Joint Stipulations

The parties entered into the following joint stipulations:

1. M-Class Mining, LLC, is an “operator” as defined in Section 3(d) of the Federal Mine Safety

Act of 1977, as amended (Mine Act), 30 U.S.C. § 803(d), at the coal mine at which the order

at issue in this proceeding was issued.

2. MC#1 mine is operated by the Contestant in this case, M-Class Mining, LLC.

3. Contestant’s MC#1 mine is located in Macedonia, Illinois.

4. MC#1 mine is subject to the jurisdiction of the Mine Act.

5. The individual whose name appears in Block 22 of the order at issue in this proceeding was

acting in his official capacity and as an authorized representative of the Secretary of Labor

when the order was issued.

6. A duly authorized representative of the Secretary served the subject order and terminations of

the order upon the agent of the Contestant at the dates and place stated therein as required by

the Mine Act, and the order and terminations may be admitted into evidence to establish their

issuance.

2

 The Secretary still maintains that the court lacks jurisdiction to review a terminated § 

103(k) Order and that this matter is moot because there remains no justiciable controversy for the 

court to resolve. Secretary’s Post-Hearing Brief (“Sec’y Br.”) at 14, n. 7. Both parties have 

incorporated the arguments set forth in their previous briefs herein. See id.; Respondent’s PostHearing Response Brief (“Cont. Resp.”) at 3, n. 1. The court herein incorporates its reasoning set 

forth in its Order Denying the Secretary’s Motion to Dismiss, and will not readdress those 

matters in this decision. 

3

 The Commission did not deny the Secretary’s petition for Interlocutory Review, but was 

without the authority to take any substantive action on the matter due to a lack of quorum. 

Commission Letter, dated September 26, 2018. 

41 FMSHRC Page 2
7. The order contained in Exhibit A attached to Contestant’s Notice of Contest is an authentic

copy of the order at issue in this proceeding with all appropriate modifications and

terminations, if any.

B. Factual and Procedural Background

M-Class operates the MC#1 Mine, an underground coal mine located in Macedonia,

Illinois. The Mine consists of the MC and Viking portals. Tr. 207-08. At 8:00 AM on February 

24, 2018, 14 miners arrived at the Headgate #6 section of the MC portal to clean up a roof fall. 

Tr. 221, 224. The group was building a steel archway to re-support an approximately 20-foot 

void in the roof to allow miners to begin cutting, loading, and removing the fallen rock. Tr. 221, 

223. Eight to ten of the miners working in the section wore handheld gas detectors, or “spotters,”

to track oxygen, methane, and carbon monoxide levels. Tr. 226.

The team completed the steel sets by mid- to late morning. Tr. 225. They then started up 

a diesel air compressor to fill the void with expanding Jen-Mar foam. Tr. 223. Miner Mitchell 

Mullins manned and worked in close proximity to the diesel air compressor. Tr. 51-52, 63-64, 

75. About 90 minutes into his shift, Mullins began to complain of dizziness and a light headache.

Ex. S–2; Tr. 76-77. Mullins’ symptoms grew to include stomach pain, shortness of breath, and a

racing heartrate. Ex. S–2; Tr. 77. His condition prompted a fellow miner to inform attending

Superintendent Demetrios Macropoulos that Mullins needed a ride out of the mine.4 Tr. 227.

Mullins was administered oxygen, and evacuated from the mine. Ex. S–2; Tr. 227-28.

Macropoulos personally drove Mullins to the section mouth to get a ride out of the mine. Tr. 228.

He testified that Mullins did not indicate that he believed his symptoms to be due to carbon

monoxide poisoning. Tr. 228. He also noted that no spotters went off in the Headgate #6 section

during the shift. Tr. 228, 236. None of the mounted carbon monoxide monitors mounted

underground revealed elevated levels of carbon monoxide during Mullins’ shift. Ex. C–C.

Mullins was subsequently transported by ambulance to Herrin Hospital in Benton, 

Illinois. Exs. S–2, S–6. Doctor Dean Bosley treated Mullins in the emergency room and quickly 

diagnosed Mullins with carbon monoxide poisoning. Id. Mullins would spend approximately the 

next 72 hours in the hospital on 100% oxygen. Ex. S–6. His initial carboxyhemoglobin 

concentration measured 4.8%. Tr. 189. Over that 72-hour span, Mullins’ carboxyhemoglobin 

concentration decreased to 3.4% the morning after his admission, only to increase to 3.8% that 

afternoon and up to 4.2% by the morning of February 26. Ex. S–6; Tr. 195-97. He was released 

on February 27 with a carboxyhemoglobin concentration measurement of 1.9%. Ex. S–6; Tr. 71, 

195-97.

Concerned about Mullins’ diagnosis, Dr. Bosley notified the Benton Police Department 

of Mullins’ condition and recommended that the mine be shut down to prevent additional 

exposure to carbon monoxide in the mine. Id. The Police dispatcher relayed Dr. Bosley’s 

message to the MSHA hotline. Ex. 6. The hotline constructed an Escalation Report documenting 

4

 Demetrios Macropoulos is the Superintendent for the MC portal at the MC #1 Mine. Tr. 

207-08. He has worked in the mining industry for 12 years and at M-Class for eight years. Tr.

208-09.

41 FMSHRC Page 3
the call and sent the report to the proper channels at MSHA.5 See Ex. S–7; Tr. 27-28. The Report 

states in pertinent part: 

Someone at the mine called 911 at approximately 2:00 PM today because a miner 

was sick. The miner was transported around 3:00 PM to the Emergency Room at 

Herrin Hospital in Herrin, IL, which is about 30 minutes away from the mine. The 

Emergency Room doctor contacted dispatch at approximately 6:50 PM today. He 

stated that the miner has very high levels of Carbon Monoxide poisoning, and 

wants the mine to shut down immediately. The Doctor’s name is Dr. Bosley...He 

stated if the mine is not shut down immediately that he is afraid that there will be 

more miners admitted with carbon monoxide poisoning. The caller does not have 

the authority to shut down the mine. 

Ex. S–7. MSHA’s management personnel took special notice of the report because of the 

apparent severity of Mullins’ diagnosis and because the Police Department called the hotline 

directly. Tr. 157. MSHA District 8 Field Office Supervisor Bob Bretzman read the Escalation 

Report and quickly contacted Parker Phipps, Assistant General Manager for Foresight Energy’s 

mines.6 Bretzman asked if M-Class had detected elevated carbon monoxide levels at the mine 

that day. Tr. 248-49. Phipps responded that they did not. Tr. 248-49. Bretzman informed Phipps 

of Mullins’ condition and expressed his opinion that the mine should be evacuated. Tr. 249. 

When Phipps asked whether MSHA officially ordered evacuation, Bretzman hesitated and 

replied that he would call back shortly. Tr. 249. 

Bretzman called back 15 minutes later to inform Phipps that he would not order an 

evacuation, but that he would be sending an accident investigator to the mine. Tr. 249. Phipps 

testified that he told Bretzman during that call that he was with Mullins at the Headgate #6 

section during the shift and that his personal spotter did not go off. Tr. 250. After the second call, 

Phipps instructed Macropoulos to test all of the entries at which Mullins worked during the shift. 

Tr. 250-51. None of the entries presented elevated levels of carbon monoxide. Tr. 251. 

Inspector Brandon Naas arrived at the mine shortly thereafter to begin MSHA’s E04 

investigation.7 He immediately issued a verbal § 103(k) Order at Headgate #6. Tr. 32-33. Naas 

5 An Escalation Report is a document prepared by the third party contractor operating 

MSHA’s 1-800 hotline. Tr. 28, 154-55. Operators ask the callers questions regarding their 

complaint and take notes and record the responses. Tr. 155, 157. The operator then prepares a 

report summarizing the call and submits it to MSHA. Tr. 150. Escalation Reports are sent to 

management personnel at the corresponding District and at the Agency’s Headquarters in 

Virginia. Tr. 150-51. 

6 Foresight Energy is the parent company to M-Class Mining, LLC. Tr. 241. 

7 Brandon Naas has worked as an underground coal mine inspector for MSHA for 7 

years. Tr. 24. He has served as an accident investigator since 2015. Tr. 24. Prior to that, he 

(continued...)

41 FMSHRC Page 4
relied upon the description of Mullins’ condition in the Escalation Report in doing so. Tr. 129, 

134. He had not yet spoken with Dr. Bosley or Mr. Mullins, had not yet viewed any medical

records or data at the mine, and had not yet gone underground. Tr. 93-94. He testified that in the

event of an accident MSHA inspectors are trained to issue a (k) Order upon arrival to secure the

scene and protect miners before conducting an investigation. Tr. 131, 137. Naas spent the first

hour above ground reviewing the records for the generator, one of the spotters used by another

miner on the shift, and the mine’s carbon monoxide monitoring system. Tr. 41. He also requested

to review Mullins’ spotter, but M-Class was unable to locate it. Tr. 58-59. Unable to pinpoint

exactly where the exposure occurred, Naas proceeded underground to conduct an imminent

danger run across the faces and take carbon monoxide measurements in the Headgate #6 section.

Tr. 49. He did not find any dangerous conditions and modified the (k) Order to allow M-Class to

resume normal mining operations in the early hours of February 25. Tr. 50, 53.

On the morning of February 26, Inspector Naas returned to the mine to speak with six 

other miners on the crew that worked on Mullins’ shift. Tr. 54. Pursuant to instructions from his 

supervisors, Naas also modified the (k) Order to remove the diesel air compressor from service 

pending the completion of the investigation. Tr. 54. Naas testified that since the compressor was 

running while Mullins was ill and was the only piece of equipment to which Mullins was not 

exposed on a normal basis, MSHA suspected it was defective and producing dangerous levels of 

carbon monoxide. Tr. 56. 

Naas returned yet again on February 27 to meet with mine management. M-Class was 

still conducting its own investigation into the matter, but asked that the air compressor be 

released back into service. Tr. 67-69. Naas declined to do so when management could not 

identify any other possible source of carbon monoxide that may have led to Mullins’ illness. Tr. 

67-68. Naas interviewed Mullins on February 28. Tr. 72. Mullins told him that he was working

inby the compressor tightening up roof bolts when he began to experience symptoms. Tr. 76.

Mullins acknowledged that his spotter did not go off while he was working in the Headgate #6

section. Tr. 75. Mullins then described the progression of his symptoms and subsequent

treatment. Tr. 75-77.

Although Naas completed his investigation on February 28, MSHA did not allow the 

compressor to be put back into service. Tr. 88. On March 1, 2018, M-Class submitted a proposal 

to terminate the (k) Order. Ex. C–I. MSHA denied that proposal and provided a list of 

requirements to be fulfilled for termination. Ex. C–J. M-Class later responded that it did not 

agree to implement MSHA’s requirements. Ex. C–K. It filed a notice of contest on March 15. 

Finding no conclusive evidence that linked the compressor to Mullins’ sickness, MSHA 

terminated the (k) Order on April 4, 2018. The Secretary did not issue an accompanying citation 

or penalty assessment. 

7 (...continued) 

worked as a miner at White County Coal over the summers of 2003 to 2005, and was hired full 

time from 2005 to 2011. Tr. 25. He has completed all basic training at the Mine Academy, 

including retraining and two weeks of accident investigation every other year. Tr. 26. 

41 FMSHRC Page 5
II. PRINCIPLES OF LAW

Section 103(k) of the Mine Act provides in pertinent part: 

In the event of any accident occurring in a coal or other mine, an authorized 

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

appropriate to insure the safety of any person in the coal or other mine... 

30 U.S.C. § 813(k). 

The occurrence of an “accident” as defined by section 3(k) of the Act is a necessary 

precondition of the issuance of a section 103(k) Order. Aluminum Co. of America (Alcoa), 15 

FMSHRC 1821, 1824 (Sept. 1993); see also Pinnacle Mining Co., 33 FMSHRC 2207, 2221-

2225 (Sept. 2011) (ALJ); Pattison Sand Co., LLC, 33 FMSHRC 3096, 3142, 2011 WL 6880702 

(Dec. 2011) (ALJ). Section 3(k) of the Act defines an “accident” as a “mine explosion, mine 

ignition, mine fire, or mine inundation, or injury to, or death of, any person.” 30 U.S.C. § 802(k). 

In this context, section 3(k) should be broadly construed; an event not listed in the definition may 

nonetheless constitute an “accident” depending on whether its effects are “similar in nature or 

present[] a similar potential for injury or death as a mine explosion, ignition, fire, or inundation.” 

Alcoa, 15 FMSHRC at 1825-26; see also Pattison Sand Co. v. FMSHRC, 688 F.3d 507, 513-14 

(8th Cir. 2012). Though an accident need not be a sudden occurrence under section 3(k), the 

Commission has recognized that all of the listed events require quick action. Alcoa, at 1826. The 

Secretary need not be aware of what exactly the accident entailed or have completed an 

investigation into the accident prior to issuing a (k) Order. Jim Walter Res., 37 FMSHRC at 

1871. The determination should be made on a case-by-case basis. Alcoa, at 1826. 

The Commission has not explicitly determined the appropriate standard of review of a (k) 

Order. See Eastern Assoc. Coal Corp., 2 FMSHRC 2467, 2472 n. 7 (1980) (declining to 

determine whether a 103(k) Order was reviewable under an “‘arbitrary or capricious,’ 

‘reasonableness,’ or de novo basis”). However, the Commission has recognized that section 

103(k) grants the Secretary plenary authority to issue orders the Secretary deems appropriate to 

ensure the safety of any one in the mine when an accident occurs. Jim Walter Res., 37 FMSHRC 

1868, 1870-71 (Sept. 2015). Once an accident has been proved, Commission Judges have thus 

consistently analyzed (k) Orders under an arbitrary and capricious or an abuse of discretion 

standard. See Pattison Sand Co., LLC, 33 FMSHRC 3096, 3142, 2011 WL 6880702 (Dec. 2011) 

(ALJ) (“[The arbitrary and capricious] standard appropriately respects the Secretary’s judgment 

while allowing review for abuse of discretion, errors of law, and review of the record under the 

substantial evidence test.”), aff’d, 688 F.3d 507 (8th Cir. 2012); see also Pinnacle Mining, 33 

FMSHRC 2207, 2231-33 (Sept. 2011) (ALJ). “The abuse of discretion standard requires the 

agency to examine the relevant data and articulate a satisfactory explanation for its action 

including a rational connection between the facts found and the choice made.” Clintwood 

Elkhorn Mining Co., 32 FMSHRC 1880, 1893-94 (Dec. 2010) (quoting Motor Vehicle Mfr’s 

Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)); Pinnacle Mining, 33 FMSHRC 

at 2226. 

41 FMSHRC Page 6
III. DISPOSITION

M-Class argues that the Secretary has not proven by a preponderance of the evidence that

an “accident” occurred at the MC #1 Mine. It contends that the Secretary did not produce any 

evidence that carbon monoxide was present in the mine that injured or sickened a miner. 

Contestant’s Post-hearing Brief (“Cont. Br.”) at 11. Hence the Secretary failed to prove the 

occurrence of a “sudden event” constituting an accident and the (k) Order should be vacated as 

invalidly issued. Id. M-Class also contends that the scope of the (k) Order was overly broad 

because MSHA refused to vacate the order and return the compressor back into service until well 

after Inspector Naas’ investigation was completed. Id. at 16. 

The Secretary argues that Order No. 9104295 was properly issued because Mullins’ 

hospitalization for carbon monoxide poisoning constituted an “accident” as defined by section 

3(k) of the Mine Act. Sec’y Br. at 15. The Secretary notes that the responses of Dr. Bosley, 

MSHA, and M-Class to Mullins’ hospitalization demonstrate that Mullins’ was injured and that 

his diagnosis required the “quick action” that the events listed in section 3(k) require. Id. at 16; 

see also Alcoa, at 1826. Finally, the Secretary maintains that the scope of the Order and its 

subsequent modifications were reasonably tailored to the information known to MSHA at the 

time. Id. at 17. 

A. Whether the 103(k) Order was Validly Issued

I find that the (k) Order was validly issued. The Secretary has proven by a preponderance 

of the evidence that an “accident” occurred. Mullins presented symptoms that concerned his 

fellow miners. He was evacuated from the mine and transported to the local hospital, where he 

was diagnosed with carbon monoxide poisoning by an emergency room doctor. Mullins spent the 

next 72 hours on oxygen and under observation at the hospital. Dr. Bosley quickly contacted the 

local police department to express his concern about Mullins’ condition and alerted the local 

police department that other miners may be exposed to elevated carbon monoxide. Once notified, 

MSHA immediately contacted the operator and sent an inspector to investigate. Similarly, once 

M-Class was informed of Mullins’ condition, it immediately opened its own investigation and

tested every entry through which Mullins traveled for elevated carbon monoxide levels. Tr. 231-

32.

Mullins’ diagnosis and the rapid response of all involved parties demonstrate that his 

injury was a sudden event similar in nature to those requiring quick action under § 3(k). See 

Alcoa, 15 FMSRHC at 1826. Carbon monoxide poisoning can be life-threatening and can be 

indicative of a gas inundation that requires emergency action as contemplated by section 103(k). 

Cf. Pinnacle Mining Co., 33 FMSHRC 2207, 2222 (Sept. 2011) (ALJ) (holding that elevated 

carbon monoxide buildup is an event similar to, but not as extensive as, an inundation of gas). 

Based on the information available to MSHA at the time, Inspector Naas’ decision to issue a (k) 

Order upon his arrival at the MC #1 Mine was based on his belief that Mullins had been injured 

and that other miners were at risk of unsafe exposure to carbon monoxide. He issued the (k) 

Order to prevent any additional injuries while he investigated the Headgate #6 section. This was 

a valid exercise of MSHA’s authority under the Act. 

41 FMSHRC Page 7
M-Class points to the Commission’s decision in Alcoa to argue that the Secretary failed

to prove that a “sudden event” occurred justifying the issuance of the (k) Order. Cont. Rep. at 9. 

Contestant argues that the Secretary failed to show evidence of elevated carbon monoxide levels 

anywhere in the mine or that any other miners on Mullins’ shift were adversely affected by 

similar symptoms. Id. 

In Alcoa, the Commission held that a gradual unplanned release of mercury in an area of 

the mine did not constitute an “accident” that justified the issuance of a (k) Order. Alcoa, 15 

FMSHRC at 1827. The Commission found that to determine whether an accident occurred, the 

Secretary must look to whether the event was similar in nature to the type of sudden events that 

pose an immediate hazard to miners that require emergency action. Id. at 1826. While the 

Commission noted that accidents need not necessarily be a sudden occurrence and that a gradual 

release of a toxic chemical may qualify, the mercury buildup did not constitute an accident 

because the Secretary did not issue a (k) Order for nearly a month following the initial complaint 

and the Secretary’s witnesses in this matter failed to relate the hazards associated with the 

conditions to the events outlined in Section 3(k)’s definition of “accident.” Id. 

Crucial factual differences distinguish the instant case from Alcoa and indicate that 

Mullins’ injury qualified as an “accident” under section 3(k). First, unlike the (k) Order issued 3 

months later in Alcoa, MSHA received the Escalation Report detailing Mullins’ condition and 

quickly dispatched Inspector Naas to the site to issue the (k) Order and investigate what it 

believed could be a carbon monoxide release at the mine. MSHA and M-Class’ rapid response to 

Mullins’ diagnosis indicates that both considered the injury to be a sudden event justifying quick 

action as defined by Alcoa. 15 FMSHRC at 1826. 

M-Class contends that because MSHA failed to detect elevated carbon monoxide levels

and because of Mullins’ low carbon monoxide concentrations, there was no “sudden event.” 

Here, however, Mullins’ hospitalization with carbon monoxide exposure is itself an “accident” as 

contemplated by section 3(k). Section 3(k) defines an accident as a “mine explosion, mine 

ignition, mine fire, or mine inundation, or injury to, or death of, any person.” 30 U.S.C. § 802(k) 

(emphasis added). Thus, Mullins’ symptoms and extensive hospitalization constitute such an 

injury. 

Furthermore, the information contained in the Escalation Report rationally connects 

Mullins’ injury to a potential buildup or elevation of carbon monoxide at the mine similar in 

nature and presenting a similar potential for injury or death as a gas inundation. Unlike the 

gradual buildup of mercury in Alcoa that lacked a discrete, non-speculative injury related to the 

buildup, the evacuation and hospitalization of a miner positively diagnosed with carbon 

monoxide poisoning constitutes an injury that requires quick action to ensure the safety of other 

miners. Mullins was visibly ill and presented symptoms that prompted his mid-shift evacuation 

from the mine and subsequently convinced the emergency room physician that he had carbon 

monoxide poisoning. The Secretary’s actions were thus valid under the Commission’s 

framework set forth in Alcoa. 

M-Class next contends that the (k) Order was invalidly issued because Inspector Naas

based his decision to issue the (k) Order on the information contained in the Escalation Report, 

41 FMSHRC Page 8
when in fact a more thorough investigation would have revealed that Mullins did not sustain an 

injury and was not exposed to carbon monoxide at the mine. Cont. Br. at 11. Contestant points 

out that no other miners on Mullins’ shift fell ill, no spotters present in the mine detected 

elevated carbon monoxide levels, the subsequent examination of the compressor did not discover 

defects or elevated carbon monoxide emissions, and that Mullins’ carboxyhemoglobin levels 

never reached levels that qualify as carbon monoxide poisoning. Id. at 12-13. It thus did not 

amount to an “injury” as contemplated by section 3(k). 

In support of its assertion, M-Class offered the expert testimony of Dr. Michael Mullens. 

Dr. Mullens testified that he would not expect symptoms of carbon monoxide to present at the 

levels detected in Mitchell Mullins’ blood stream. Tr. 190. He also opined that Mullins’ 

carboxyhemoglobin levels were not close to toxic, and that the subsequent drop and rise in those 

levels during Mullins’ stay at the hospital indicate that the tested concentration were more likely 

to be caused by smoking than by carbon monoxide poisoning. Tr. 191-93. 

Although I find Dr. Mullens to be a credible expert witness, his testimony does not fully 

explain the context of Mullins’ sickness and evacuation. Dr. Mullens did not personally observe 

or treat Mullins’ during his stay in the hospital, and thus did not observe his condition firsthand. 

Tr. 187, 204. His testimony is based only upon his review of Mullins’ medical records, and he 

acknowledged at hearing that it was unlikely that symptoms of carbon monoxide poisoning 

would present at the concentration levels detected in Mullins’ blood, but not impossible. Tr. 190. 

I thus do not find his testimony to be dispositive in showing that Mullins was not in a condition 

that could have been life threatening and merited further investigation in order to ensure the 

safety of other miners. 

Without question, M-Class presented credible evidence demonstrating that no elevated 

carbon monoxide levels were detected at the MC #1 Mine and that Mullins’ original diagnosis 

may not have risen to the level of carbon monoxide poisoning. The court acknowledges these 

arguments, but notes that MSHA received this information after Naas issued the initial (k) Order. 

M-Class’ interpretation would require the Secretary to conduct a thorough preliminary

investigation into the precise conditions surrounding a potential accident, including questioning

the medical diagnosis of an emergency room doctor, prior to issuing a (k) Order. This is contrary

to the plain language and the intended purpose of section 103(k). Section 103(k) does not require

that “the Secretary must be aware of exactly what the accident entailed let alone have completed

an investigation into the accident before issuing a section 103(k) order.” Cf. Jim Walter Res., 37

FMSHRC 1868, 1870-71 (Sept. 2015). As Congress noted:

[t]he unpredictability of accidents in mines and uncertainty as to the

circumstances surrounding them requires that the Secretary or his authorized

representative be permitted to exercise broad discretion in order to protect the life

or to insure the safety of any person. The grant of authority...to issue orders is

41 FMSHRC Page 9
intended to provide the Secretary with flexibility in responding to accident 

situations, including the issuance of withdrawal orders. 

S. Rep. No. 95-181, at 29 (1977), reprinted in Senate Subcomm. on Labor, Comm. on

Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at

617 (1978).

MSHA received information from the local police department that a miner was 

undergoing medical treatment at a hospital for elevated levels of carbon dioxide in his 

bloodstream. MSHA quickly acted based on this information to ensure the safety of other miners. 

The court declines to invalidate MSHA’s decision to issue a (k) Order based on the post hoc

results of the investigation triggered by that Order. Simply because the pursuant investigation did 

not conclusively demonstrate elevated levels of carbon monoxide in the mine does not render 

MSHA’s decision to issue the (k) Order in response to the information it possessed at the time 

improper or invalid. 

I conclude that the Secretary has proven by a preponderance of the evidence that an 

accident occurred and that the (k) Order was appropriate to ensure the safety of other miners 

until the investigation of the Headgate was completed. 

B. Whether the Scope of the 103(k) Order was an Abuse of Agency Discretion

I find that Inspector Naas did not abuse his discretion when he issued the (k) Order to 

close off the Headgate #6 section based upon the available information and the prevailing belief 

that Mullins sustained elevated carbon monoxide exposure at the mine. Naas issued the Order 

upon arrival to quickly conduct an investigation of the Headgate #6 section and to ensure that no 

imminent danger existed and that other miners no longer faced the risk of serious injury. After 

examining the mine’s gas detection data and personally inspecting the section and finding no 

risk, Naas expediently modified the (k) Order to allow work in the area. The (k) Order was thus 

promptly narrowed in scope when Naas determined that miners could safely work in the area. 

MSHA’s subsequent modification to remove the compressor from service was also 

rationally connected to the available facts based upon Naas’ initial investigation and was 

reasonably tailored to investigating the suspected cause of Mullins’ condition. Inspector Naas 

credibly testified that the compressor’s presence in the area was abnormal and was the only piece 

of equipment that he could not definitely rule out as a potential source of carbon monoxide. Tr. 

67-68. MSHA did not close the entire section nor unreasonably halt operations at the mine. It

removed a single compressor from service in order to further investigate whether it posed a

safety risk to miners. Thus, the initial decision to remove the compressor was reasonably tailored

to the investigation.

The sole issue in this matter is whether the (k) Order was validly issued and reasonably 

tailored in scope given the information MSHA had at the time of the accident. Thus, I affirm the 

(k) Order. However, the court sympathizes with M-Class’ position and has grave reservations

regarding MSHA’s subsequent refusal to allow the compressor back into service for over a

month. Inspector Naas conducted a thorough investigation of the mine in response to the

41 FMSHRC Page 10
Escalation Report and modified the (k) Order to allow a resumption of services after discovering 

no indicia of danger in the Headgate #6 Section. Given the narrow scope of the hearing, neither 

party presented evidence focused on the compressor’s extended removal from service. However, 

the court struggles to understand how testing of a compressor could take more than a month 

when Inspector Naas was able to inspect the entire Headgate #6 Section, presumably including 

the compressor itself, and modify the (k) Order to allow resumption of operations only a few 

hours after arriving. 

Despite this concern, the unique procedural posture of this case does not present an 

appropriate remedy for MSHA’s delay in returning the compressor to service. As explained 

above, the (k) Order’s initial issuance was valid and reasonably tailored to conduct the 

investigation into Mullins’ injury and possible carbon monoxide exposure at the MC #1 Mine. 

The (k) Order was terminated some ten months ago. The court will defer to the Secretary’s 

determination and declines to vacate a validly issued (k) Order based upon subsequent 

modifications that are no longer in effect. 

Accordingly, the contested Order is AFFIRMED. 

/s/ David P. Simonton 

David P. Simonton 

Administrative Law Judge 

Distribution: (U.S. First Class Mail) 

Travis W. Gosselin, U.S. Department of Labor, Office of the Solicitor, 230 South Dearborn 

Street, Room 844, Chicago, IL 60604 

Christopher D. Pence, Wm. Scott Wickline, and James P. McHugh, Hardy Pence PLLC, 500 Lee 

Street, East, Suite 701, P.O. Box 2548, Charleston, WV 25329 

41 FMSHRC Page 11
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9900 / FAX: 202-434-9954 

January 17, 2019 

SECRETARY OF LABOR CIVIL PENALTY PROCEEDING: 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. YORK 2018-0031-M 

Petitioner A.C. No. 37-00156-453924

v. 

RICHMOND SAND & STONE, LLC, 

 Respondent Mine: Richmond Sand & Stone 

SUMMARY DECISION 

Before: Judge Bulluck 

This case is before me upon a Petition for Assessment of Civil Penalty filed by the 

Secretary of Labor (“Secretary”) on behalf of the Mine Safety and Health Administration 

(“MSHA”) against Richmond Sand & Stone, LLC (“Richmond”), pursuant to section 105(d) of 

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

Secretary seeks a civil penalty in the amount of $5,000.00 for an alleged violation of his 

mandatory safety standard regarding timely accident notification. 

Richmond filed a Motion for Summary Decision (“Resp’t Mot.”); a Memorandum in 

Support of Respondent’s Motion for Summary Decision (“Resp’t Mem.”), including Peter 

Robbins’ Affidavit (“Robbins Aff.”), and a Prehearing Report with a Supplemental Report 

(“Resp’t Rep.”) and attached exhibits (“Exs. A through C”). The Secretary filed an Opposition to 

Respondent’s Motion for Summary Decision and Cross-Motion for Summary Decision (“Sec’y 

Mot.”); a Memorandum of Points and Authority in Support of His Opposition to Respondent’s 

Motion for Summary Decision and In Support of Secretary’s Cross-Motion for Summary 

Decision (“Sec’y Mem.”); and Parties Stipulations for Summary Judgment (“Jt. Stips.”) and 

attached exhibits (“Exs. P–1 through P–12”), including a copy of the Citation, MSHA Inspector 

Everett G. Kinser’s notes, Inspector Kinser’s Affidavit (“Kinser Aff.”), the Autopsy Report, 

EMS Patient Care Report, and Dr. Keith Hilliker’s Report. Richmond then filed a Response to 

Secretary of Labor's Opposition to Respondent’s Motion for Summary Decision and CrossMotion for Summary Decision (“Resp’t Reply”). 

The following are issues for resolution in this case: (1) whether Richmond violated 30 

C.F.R. § 50.10(a); and, if so, (2) whether Richmond was moderately negligent in violating the

standard; and (3) the appropriate penalty.

41 FMSHRC Page 12
Pursuant to Commission Rule 67(b), “[a] motion for summary decision shall be granted 

only if the entire record, including the pleadings, depositions, answers to interrogatories, 

admissions and affidavits, shows: (1) that there is no genuine issue as to any material fact; and 

(2) that the moving party is entitled to summary decision as a matter of law.” 29 C.F.R. § 

2700.67. 

It is well settled that summary decision is an extraordinary measure and the Commission 

has analogized it to Rule 56 of the Federal Rules of Civil Procedure, which the Supreme Court 

has construed to authorize summary judgment only “upon proper showings of the lack of a 

genuine, triable issue of material fact.” Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9 

(Jan. 2007) (citations omitted). When considering a motion for summary decision, the 

Commission has noted that “the Supreme Court has stated that ‘we look at the record on 

summary judgment in the light most favorable to . . . the party opposing the motion,’ and that 

‘the inferences to be drawn from the underlying facts contained in [the] materials [supporting the 

motion] must be viewed in the light most favorable to the party opposing the motion.”’ Id. at 9 

(quoting Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962); United States v. 

Diebold, Inc., 369 U.S. 654, 655 (1962)). Moreover, Commission Judges should not grant 

motions for summary decision “unless the entire record shows a right to judgment with such 

clarity as to leave no room for controversy and establishes affirmatively that the adverse party 

cannot prevail under any circumstances.” KenAmerican Res., Inc., 38 FMSHRC 1943, 1947 

(Aug. 2016) (quoting Campbell v. Hewitt, Coleman & Assocs., Inc., 21 F.3d 52, 55 (4th Cir. 

1994)); but see Scott v. Harris, 550 U.S. 372, 380 (2007) (holding that there is no genuine issue 

for trial unless a rational trier of fact could find for the nonmoving party). 

Based on agreement of the parties to file cross-motions for summary decision and the 

facts, as represented by the parties, I find that there is no genuine issue as to any material fact. 

For the reasons set forth below, I conclude that the Secretary is entitled to summary decision as a 

matter of law, AFFIRM the Citation, and assess a penalty of $5,000.00 against Richmond. 

 

I. Joint Stipulations

 

Stipulations of Fact:1

 

1. Richmond Sand and Stone (“the mine”) is an “operator” as defined in Section 3(d) of the 

Mine Act, 30 U.S.C. § 802(d), at the crushed stone mining plant at which the Citation at 

issue in this proceeding was issued. 

2. The mine at issue is located at 35 Stolsen Road in Wyoming, Rhode Island. 

3. The mine at issue is subject to the jurisdiction of the Mine Act. 

4. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health 

Review Commission and its designated Administrative Law Judges, pursuant to sections 

105 and 133 of the Mine Act, 30 U.S.C. §§ 815, 823. 

5. The mine is an open-pit crushed stone plant. 

 1

 The Joint Stipulations have been numbered for clarity in this Decision. 

41 FMSHRC Page 13
6. On October 2, 2017, Jose Manuel Ledo, a miner who was operating an excavator, was

observed by two other miners to have slumped over the controls at 2:19 p.m.

7. The plant’s leadman directed a miner to call “911,” and the leadman and another miner

attempted cardio-pulmonary resuscitation of Mr. Ledo.

8. The ambulance squad arrived on the scene at 2:24 p.m., attended to Mr. Ledo, removed

him from the excavator, and transported Mr. Ledo to the Westerly (Rhode Island)

Hospital, leaving the mine site 2:56 p.m.

9. The ambulance squad arrived at the hospital at 3:19 p.m.

10. Mr. Ledo was treated at the Westerly Hospital, but was pronounced dead at 3:35 p.m. by

Dr. Hilliker.

11. The first report of Mr. Ledo’s death was made to MSHA by telephone at 11:21 a.m. on

October 3, 2017, the day after Mr. Ledo died, by Peter Robbins, the Respondent’s Health

and Safety Director.

12. Mr. Robbins was informed by telephone on October 2, 2017, at 2:34 p.m. about Mr.

Ledo’s situation.

13. The Citation attached to the Petition for Assessment of Penalty is a true and authentic

copy of the Citation at issue.

14. Each of the Secretary’s Exhibits, P–1 through P–12, are true and authentic copies of

documents prepared or assembled by MSHA’s personnel in the course of the

investigation of this matter.

15. The deceased, Jose Ledo, died of a natural heart attack on October 2, 2017, and not as a

result of any accident while pursuing his employment.

16. The deceased, Jose Ledo, was declared deceased at the Westerly Hospital at

approximately 3:10 p.m. on October 2, 2017.2

17. The Respondent’s pre-marked Exhibits, A, A–1, B, B–1 and C, are made part of the

Stipulations.

II. Factual Background

On October 2, 2017, Jose Ledo suffered a fatal heart attack while operating an excavator 

at the Richmond Sand & Stone Mine, an open-pit crushed stone plant in Wyoming, Rhode 

Island. Jt. Stips. 1, 6, 15. At approximately 2:19 p.m., the plant’s leadman and a front-end loader 

operator noticed that Ledo’s excavator was idle, and when they checked on Ledo, they found 

him slumped over the controls of the excavator. Jt. Stip. 6; Ex. P−7. The plant’s leadman 

directed another miner to call “911,” while he and the loader operator attended to Ledo. Jt. Stip. 

7. When they reached him, Ledo was not breathing and had no discernible pulse. Ex. B–1. They

began performing cardio-pulmonary resuscitation (“CPR”). Jt. Stip. 7. The Hope Valley

Ambulance Squad (“ambulance squad”) arrived on the scene at 2:24 p.m., and Ledo was still

unresponsive. Jt. Stip. 8; Ex. P–11. The ambulance squad took over CPR, and Ledo did not

2

 The Medical Report was amended to correct the time that Dr. Hilliker declared Ledo 

dead from 3:10 p.m. to 3:35 p.m. (see Jt. Stip. 10). 

41 FMSHRC Page 14
respond to their resuscitation efforts. Ex. P–11 at 4; Jt. Stip. 8. Between 2:30 p.m. and 3:24 p.m., 

he was defibrillated 12 times, six times at the mine and six times en route to the hospital. Ex. P–

11 at 6-7; Jt. Stip. 8. The report generated by the defibrillator indicated that there were moments 

of ventricular fibrillation and pulseless electrical activity, but there was no detectible blood 

pressure or pulse following any of the 12 defibrillations. Ex. P–11 at 6-7. 

The ambulance squad left the mine site at 2:56 p.m., and arrived at Westerly Hospital at 

3:19 p.m. Jt. Stips. 8, 9. Dr. Keith Hilliker noted that Ledo had been unresponsive for almost an 

hour upon his arrival at the hospital. Ex. P–11 at 11-12. Hilliker did not check Ledo’s vital signs, 

and pronounced him dead at 3:35 p.m. Ex. P–11 at 11-12; Jt. Stip. 10. The Autopsy Report 

indicates that Ledo died of a naturally caused heart attack on October 2, 2017. Ex. P−10 at 4. 

Peter Robbins, Richmond’s Health and Safety Director, first learned of Ledo’s condition 

at 2:34 p.m., while the ambulance squad was still working on Ledo at the mine. Jt. Stip. 12. 

Robbins called MSHA to report Ledo’s death at 11:21 a.m. on October 3, the day after the 

accident. Jt. Stip. 11. MSHA Inspector Everett Kinser was assigned to investigate the death on 

October 4, 2017. Ex. P−3. After inspecting the scene and interviewing witnesses, Kinser issued 

the Citation in question to Richmond for its failure to report Ledo's death to MSHA within 15 

minutes of the accident. 

III. Findings of Fact and Conclusions of Law

Inspector Kinser issued 104(a) Citation No. 9367109 on October 11, 2017, alleging a 

violation of section 50.10(a) that had “no likelihood” of causing an injury, and was due to 

Richmond’s “moderate” negligence.3

 The “Condition or Practice” is described as follows: 

The operator failed to notify MSHA of a fatal accident involving 

an excavator operator that occurred at Richmond Sand & Stone. At 

approximately 2:19 p.m. on 10/02/2017, the 58 year old excavator 

operator suffered a heart attack while working in the quarry at the 

mine site. MSHA was alerted of the accident from Peter Robbins 

(Director of Safety for Richmond Sand & Stone) on 10/03/2017 at 

11:21 a.m. and MSHA responded to the site on 10/04/2017. 

Contact was made with Peter Robbins, who stated that he was 

notified of the accident at 2:34 p.m. (verified on his cell phone) on 

10/02/2017. 

Ex. P−3. Kinsler terminated the Citation on October 11, 2017, after reviewing MSHA’s accident 

reporting requirements with the mine operator. Ex. P−3.

3

 30 C.F.R. § 50.10(a) states that: “[t]he operator shall immediately contact MSHA at 

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

accident has occurred involving: (a) A death of an individual at the mine.” (emphasis added).

41 FMSHRC Page 15
 Richmond contends that it is entitled to summary decision because Ledo’s fatal heart 

attack was the result of a non-occupational illness from natural causes rather than any workrelated “accident” within the meaning of sections 50.10(a) and 50.2(h)(1) and, therefore, no 

immediate reporting was required. Resp’t Rep. at 2-4; Resp’t Reply at 1-2. On the other hand, 

the Secretary takes the position that he is entitled to summary decision because any death 

occurring at a mine is a reportable accident under section 50.10(a). Sec’y Mem. at 1. 

Section 103(j) of the Mine Act provides, in relevant part that, “[i]n the event of any 

accident occurring in any coal or other mine, the operator shall notify the Secretary thereof . . . . 

For purposes of the preceding sentence, the notification required shall be provided by the 

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

individual at the mine . . . has occurred.” 30 U.S.C. § 813(j). Section 3(k) of the Mine Act 

defines “accident” to include “a mine explosion, mine ignition, mine fire, or mine inundation, or 

injury to, or death of, any person.” 30 U.S.C. § 802(k) (emphasis added). 

Section 50.10(a) of the Secretary’s regulations largely mirrors the text of the Mine Act, 

requiring that the operator report a death at a mine once it is known or should have been known 

within 15 minutes. One of the definitions of “accident” in section 50.2 is “[a] death of an 

individual at a mine.” 30 C.F.R. § 50.2(h)(1). Moreover, the Commission has emphasized that 

questions of whether an operator should report an accident to MSHA “must be resolved in favor 

of notification.” Signal Peak Energy, LLC, 37 FMSHRC 470, 476-77 (Mar. 2015). 

When the language of a provision is plain, the plain language is the meaning of the 

provision, and the sole function of the courts is to enforce the language, as written. Hartford 

Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000). Here, the plain 

language of the Mine Act and the Secretary’s Part 50 regulations requires any death at a mine to 

be reported to MSHA within 15 minutes of discovery, regardless of the cause of death. Compare, 

for example, section 50.2(h)(2), which distinguishes “an injury to an individual at a mine which 

has a reasonable potential to cause death,” with section 50.10(a)’s broader category of death at a 

mine due to any cause. 30 C.F.R. § 50.2(h)(2) (emphasis added).

Richmond relies on Vulcan Construction Materials and Hanson Aggregates Midwest to 

support its contention that there was no reportable accident. In these cases, ALJs found that 

nonfatal heart attacks were not injuries for purposes of mandatory MSHA reporting under 

section 50.10(b).4

 Resp’t Rep. at 3-4 (citing Vulcan Constr. Materials, 35 FMSHRC 2868, 2874-

75, 78 (Aug. 2013); Hanson Aggregates Midwest, 35 FMSHRC 2412, 2416 (Aug. 2013)). 

Further, Health and Safety Director Robbins claims that he did not know that he was required to 

report the death to MSHA because he believed that only work-related accidents were reportable. 

Robbins Aff. at 1. In fact, he claims that the report made to MSHA was merely informational 

rather than the result of any perceived duty. Robbins Aff. at 1. Richmond also argues that 

sections 50.10 and 50.2(h)(1) do not provide a usable definition of “accident” because the 

sections presuppose a predicate accident, which is not defined by the regulations. Resp’t Reply at 

4

 30 C.F.R. § 50.10(b) requires the operator to immediately contact MSHA within 15 

minutes of “[a]n injury of an individual at the mine which has a reasonable potential to cause 

death.” (emphasis added). 

41 FMSHRC Page 16

A. Fact of Violation
1-2. Therefore, according to Richmond, the word “accident” should be construed according to its 

ordinary meaning.5

 Resp’t Reply at 1. Finally, Richmond argues that the regulations’ inclusion of 

“natural death” in the definition of “accident” is overly broad. Resp’t Reply at 2. 

 Richmond cites to my decision in Nyrstar Gordonsville, LLC, arguing that it was wrongly 

decided, and the Secretary expresses the contrary view. Resp’t Rep. at 5; Sec’y Mem. at 3-4. 

Nyrstar involved an apparent suicide at the mine site, and turned on when the mandatory 

reporting period was triggered after the operator had conducted a cursory investigation upon 

notice of the accident. 38 FMSHRC 1819, 1821-22, 24 (July 2016). Richmond’s argument that 

the apparent suicide was not the result of a work-related accident and, therefore, not reportable, 

is consistent with its challenge to the instant Citation, and is contrary to the clear mandate of the 

Mine Act and regulations. 

 

Likewise, Richmond’s reliance on Vulcan and Hanson is misplaced because these cases 

involve violations of section 50.10(b), requiring reporting of injuries occurring at a mine that 

have a reasonable potential of death, not deaths occurring from natural causes at a mine. 

Therefore, these cases are not helpful. Moreover, Richmond’s claim that Robbins had no notice 

that he was required to report to MSHA is belied by the clarity of the standard, itself, and the 

regulatory definition of “accident,” as well as Robbins’ own admission that he knew of the 

standard.6

 

While neither party has addressed whether Ledo actually died at the mine or later in the 

hospital, it is undisputed that Ledo had been unresponsive and without a pulse for 37 minutes at 

the mine before being taken to the hospital and, ultimately, declared dead. The report generated 

by the defibrillator indicated that there was no circulation during the 12 defibrillations, six of 

which had occurred at the mine. Further, the fact that Dr. Hilliker did not take Ledo’s vital signs 

upon his arrival at Westerly Hospital is another indication that Ledo was already dead. Based on 

these facts, I find that Richmond knew or should have known of Ledo’s apparent death by 2:56 

p.m. at the very latest, the time at which the ambulance squad left the mine to transport him to 

the hospital; at that time, the 15-minute reporting interval began to run. 

 5

 Richmond’s reliance on a dictionary definition of “accident” as “an undesirable or 

unfortunate happening that occurs unintentionally and usually results in harm, injury, damage, or 

loss; casualty; mishap” is of no supportive value because that definition is in conflict with the 

plain language of the Mine Act’s and regulations’ definition of “accident,” insofar as it excludes 

a meaning that the Act and regulations expressly intend. See Resp’t Reply at 1 (quoting 

Dictionary.com, accident, https://www.dictionary.com/browse/accident (last visited Oct. 27, 

2018)). 

6

 There is a contradiction between Kinser’s Affidavit, which states that Robbins was 

aware of the reporting requirement but believed that he had 24 hours to make a report, and 

Robbins’ Affidavit, which indicates that he knew of the reporting requirement but believed that 

the 15-minute rule did not apply to the situation. See Kinser Aff. at 1-2; compare with Robbins 

Aff. at 1. This inconsistency is largely immaterial to the fact of the violation, but, taking Robbins 

at his word, his knowledge of the reporting requirement and failure to comply are considered in 

assessing Richmond’s negligence. 

41 FMSHRC Page 17
Richmond failed to report Ledo’s death to MSHA even after he had been declared dead at 

Westerly Hospital at 3:35 p.m. Although there is no basis upon which to conclude that the 

operator had a reasonable doubt as to whether Ledo had died on-site, the reasonable and prudent 

response, with or without doubt, would have been to report the accident to MSHA when Ledo 

appeared dead. As the Commission has emphasized, reporting is critical because the subsequent 

MSHA investigation ensures prospective safety at the mine. In the moment, a miner or the 

operator may not be able to readily ascertain the cause of death and, therefore, failure to report 

could expose more miners to unknown or unidentified hazards. See Signal Peak, 37 FMSHRC at 

477 (citing Emergency Mine Evacuation, 71 Fed. Reg. 71430, 71431 (Dec. 8, 2006)). 

Under these circumstances, having found that Richmond knew or should have known that 

it had experienced a reportable accident at the mine by 2:56 p.m., it had a duty to notify MSHA 

by 3:11 p.m. Richmond failed to contact MSHA until the next day, and well into the morning at 

11:21 a.m. Accordingly, I conclude that Richmond violated the reporting requirement in section 

50.10(a). 

B. Gravity and Negligence

Given the clarity of the standard and regulatory definition of “accident,” and the

importance of timely notice to MSHA, Richmond’s failure to report Ledo’s death for 21 hours 

was an egregious breach of duty. The record establishes, however, that Ledo’s death did not arise 

from an ongoing hazard affecting miners' safety, and that the delay in reporting the accident to 

MSHA had no likelihood of putting other miners in peril. The Secretary argues that moderate 

negligence is appropriate because Richmond mitigated the violation by immediately calling 

“911” and employing life-saving measures to resuscitate Ledo, and I credit Richmond’s timely 

attention to Ledo’s condition. See Sec’y Mem. at 5. Therefore, although this was a very serious 

violation, considering the mitigating factors, I find that Richmond was moderately negligent. 

IV. Penalty

While the Secretary has proposed a civil penalty of $5,000.00, 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). Notwithstanding 

application of Sellersburg criteria, however, the Mine Act imposes a minimum penalty of 

$5,000.00 for section 50.10 violations. 30 C.F.R. § 110(a)(2). 7 The Commission has found that 

7

 Section 110(a)(2) of the Mine Act states that an operator “who fails to provide timely 

notification to the Secretary as required under 103(j) of [the Mine Act] (relating to the 15-minute 

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

more than $60,000.” 30 U.S.C. § 820(a)(2). Similarly, section 100.4(c) of the Secretary’s penalty 

regulations states that the penalty for failure to provide timely notification to MSHA “will not be 

less than $5,000 and not more than $65,000 for the following accidents: (1) the death of an 

individual at the mine.” 30 C.F.R. § 100.4(c). In January 2018, the minimum penalty was 

increased to $5,903 and the maximum penalty was increased to $70,834 to account for inflation. 

(continued...) 

41 FMSHRC Page 18
Commission ALJs are bound by the statutory minimums imposed by the Mine Act. Consol 

Pennsylvania Coal Co., LLC, 40 FMSHRC 998, 1008 (Aug. 2018). 

Applying the penalty criteria, and based upon a review of MSHA’s online records, I find 

that Richmond is a small operator, with no prior violations of section 50.10(a), and an overall 

violation history that is not an aggravating factor in assessing an appropriate penalty. There was 

no evidence proffered that the civil penalty proposed by the Secretary will affect Richmond’s 

ability to continue in business. I also find that Richmond demonstrated good faith in achieving 

rapid compliance after notification of the violation. The remaining criteria involve consideration 

of the gravity of the violation and Richmond’s negligence in committing it. I have found that this 

was a very serious violation, and that Richmond was moderately negligent in committing it. 

Therefore, I find that a penalty of $5,000.00, the statutory minimum proposed by Secretary, is 

appropriate. 

ORDER

ACCORDINGLY, the Secretary’s Cross-Motion for Summary Decision is GRANTED, 

Respondent’s Motion for Summary Decision is DENIED, and it is ORDERED that Richmond 

Sand & Stone, LLC, PAY a civil penalty of $5,000.00 within 30 days of the date of this 

Decision.8

/s/ Jacqueline R. Bulluck 

Jacqueline R. Bulluck 

Administrative Law Judge 

Distribution: 

James Polianites, Office of the Regional Solicitor, U.S. Department of Labor, Government 

Center, JFK Federal Building, Room E-375, Boston, MA 02203 

Girard R. Visconti, Shechtman Halperin Savage, LLP, 1080 Main Street, Pawtucket, RI 02860 

/adh 

7

 (...continued) 

30 C.F.R. § 100.4(c); see also Department of Labor Federal Penalties Inflation Adjustment Act 

Annual Adjustments for 2018, 83 Fed. Reg. 7, 15 (Jan. 2018). The instant violation predated 

these adjustments. 

8

 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 AC number.

41 FMSHRC Page 19
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004 

February 7, 2019 

DECISION 

and 

REDACTION ORDER 

Appearances: Jason Wylie, pro se, Bridgeville, Pennsylvania; 

Oscar Hampton III, Regional Solicitor, Andrea Appel, Deputy of the 

Regional Solicitor, Matthew Epstein, Esq., Office of the Solicitor, 

Philadelphia, Pennsylvania for the Secretary of Labor; 

 Patrick Dennison, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania 

for Respondent. 

Before: Judge Feldman 

This case is before me based on a discrimination complaint filed pursuant to section 

105(c)(2) of the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c)(2) 

(the "Act"), by the Secretary of Labor (“the Secretary”) on behalf of Jason Wylie against the 

Allegheny Mineral Corporation (“Allegheny”). Before me is a Settlement and General Release 

Agreement between Wylie and Allegheny that resolves all matters at issue with respect to 

Wylie’s compensatory relief. This proceeding is limited to the issue of Wylie’s entitlement to 

compensatory relief. Both Wylie and the Secretary remain as parties in this case until disposition 

of this matter through settlement or adjudication.1

 Due to the extraordinary circumstances of this 

case in which the Secretary continues to object to the propriety of Wylie’s decision to settle, it is 

necessary to provide the procedural history in this matter. 

The captioned discrimination proceeding in Docket No. PENN 2018-0158-DM was 

initially assigned to Judge Paez. Order of Assignment, unpublished Order (April 5, 2018). 

During Judge Paez's consideration of this matter, on or about August 16, 2018, Judge Paez was 

 1

 Commission Rule 4(a) states, in pertinent part, “[i]n a proceeding instituted by the 

Secretary under section 105(c)(2) of the Act . . . the complainant on whose behalf the Secretary 

has filed the complaint is a party . . . .” 29 C.F.R. § 2700.4(a). 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), on behalf 

 of JASON WYLIE, 

 Petitioner, 

 v. 

ALLEGHENY MINERAL 

 CORPORATION, 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. PENN 2018-0158-DM 

MSHA No. NE MD 2018-01 

Mine Name: Bison Mine 

Mine ID: 36-10107 

41 FMSHRC Page 20
informed by the Secretary that the discrimination case brought by the Secretary on Wylie's 

behalf had settled. Second Amended Notice of Hearing, unpublished Order at 1 (Oct. 3, 2018) 

(ALJ Paez). However, Judge Paez was subsequently informed that the Secretary had withdrawn 

his settlement offer. Id. Judge Paez summarized his understanding of the rationale for the 

withdrawal by noting, “[a]lthough the case [had] settled in all other respects,” the Secretary 

subsequently withdrew his consent to the settlement agreement because “the Secretary object[ed] 

to a confidentiality agreement between Wylie and Allegheny Mineral Corporation that would 

keep confidential Wylie's back-pay settlement amount.” Id. (footnote omitted). 

Shortly after the Secretary advised Judge Paez that the tentative settlement 

agreement resolving the issue of Wylie’s compensatory relief had been withdrawn, Wylie 

communicated to the Commission his continuing desire to settle. Specifically, in an email dated 

September 28, 2018, Wylie advised the Commission: 

 

This settlement proceedings [sic] is getting way out of control 

now. I agreed to a[n] amount [of compensatory relief] and now 

feel like it has stalled out to nothing. I have tried to move on but 

[it is getting] ridiculous. When I agreed to settle I was and am 

ready to move on but have yet to get anywhere as far as finalizing 

or receiving my settlement. I don’t want to go to court and I just 

want to move on. It has been long enough and for the [sic] MSHA 

to fight the court and without my settlement is absurd. Thank you 

for reading my email I just want my thoughts on the matter known. 

Allegheny’s Resp. to Sec’y’s Mot. to Recons., Ex. C at 1, (Nov. 5, 2018) (emphasis added). 

This matter was reassigned to me from Judge Paez on October 11, 2018, after Judge Paez 

contemporaneously recused himself from further deliberations. Order Placing Documents Under 

Seal and Notice of Recusal, unpublished Order (Oct. 11, 2018) (ALJ Paez); Order of 

Reassignment to Judge Feldman, unpublished Order (Oct. 11, 2018). 

Given Wylie’s clearly expressed desire to settle, the captioned discrimination proceeding 

in Docket No. PENN 2018-0158-DM was severed from the Secretary’s civil penalty proceeding 

in the newly created Docket No. PENN 2018-0275. Severance Order 40 FMSHRC ___ Slip. op. 

at 4 (Oct. 23, 2018). The Severance Order noted that the captioned discrimination proceeding in 

Docket No. PENN 2018-0158-DM was solely limited to issues concerning the merits of Wylie’s 

discrimination complaint and his claim for relief. Id. 

The Secretary challenged the procedural basis for severance of the compensatory relief 

and civil penalty issues in a Motion for Reconsideration filed on October 26, 2018. See Sec’y’s 

Mot. to Recons. Severance Order. The Secretary’s Motion to Reconsider the October 23, 2018, 

Severance Order was denied on November 8, 2018. Order Denying the Sec’y’s Mot. for 

Recons., 40 FMSHRC, ___ Slip op. at 3. The Secretary’s motion was denied because severance 

was consistent with the Commission’s Rules, the Federal Rules of Civil Procedure, and relevant 

Commission case law. Id. at 2-3. Specifically, Commission Rule 1(b) provides, in pertinent 

part: “on any procedural question not regulated by the Act . . . the Commission and its Judges 

41 FMSHRC Page 21
shall be guided so far as practicable by the Federal Rules of Civil Procedure . . . .” 29 C.F.R. 

§ 2700.1(b). Rule 42 of the Federal Rules of Civil Procedure authorizes a judge to issue orders 

avoiding unnecessary delay or prejudice, or such orders that expedite and/or economize 

proceedings. Fed. R. Civ. P. 42(a)(3), 42(b). 

With respect to case law, the Commission eschews prejudicing a complainant as a 

consequence of actions taken by the Secretary in a 105(c)(2) proceeding. See Sec’y of Labor on 

behalf of Hale v. 4-A Coal Co., 8 FMSHRC 905, 908 (June 1986). Severance enables Wylie to 

expeditiously receive the identical compensatory relief that was tentatively accepted but 

subsequently withdrawn by the Secretary in August, 2018. Moreover, it is inexplicable that the 

impediment to Wylie’s timely receipt of compensatory relief has been based on the Secretary’s 

adamant refusal to accept confidentiality of settlement terms as a quid pro quo for settlement 

despite the Secretary’s history of routine acquiescence to confidentiality of settlement terms that 

resolved 105(c)(2) proceedings. See, e.g., Secretary of Labor o/b/o Pedro Iglesias v. Titan 

Florida, LLC, 39 FMSHRC 1678 (Aug. 2017) (ALJ); Secretary of Labor o/b/o Jerry M. Caudill 

v. Leeco, Inc., 20 FMSHRC 532 (May 1998) (ALJ); Secretary of Labor o/b/o Frank Scott v. 

Leeco, Inc., 18 FMSHRC 648 (April 1996) (ALJ); Secretary of Labor o/b/o Danny Shepherd v. 

Adena Fuels, Inc., 15 FMSHRC 1438 (July 1993) (ALJ). 

Finally, severance is consistent with the Commission’s decision in Sec’y of Labor o/b/o 

Clemmie Callahan v. Hubb Corp., 20 FMSHRC 832 (Aug. 1998) (“Callahan”). In Callahan the 

Commission distinguished a discrimination complainant’s interest in resolving his complaint in a 

105(c)(2) proceeding from the Secretary’s interest in establishing a violation of section 105(c) in 

a pertinent civil penalty proceeding. See Callahan, 20 FMSHRC at 837-39. In other words, 

Wylie’s settlement with Allegheny would not preclude the Secretary from prosecuting his civil 

penalty case. However, consistent with Callahan, Wylie does not need the Secretary’s approval 

to settle his discrimination claim. Id. Moreover, as a party in a 105(c)(2) proceeding, Wylie has 

an unfettered right to settle his discrimination case. 

In support of his opposition to the severance, the Secretary asserts, contrary to Wylie’s 

September 28, 2018, email representations to the Commission, that Wylie “has embraced [the] 

desire to serve the broader public purpose of deterring future discrimination and does not want 

his to be the test case allowing the routine confidential resolution [of] discrimination cases.” 

Sec’y’s Mot. to Recons. Severance Order at 5 (Oct. 26, 2018). The Secretary’s portrayal of 

Wylie as a trailblazing miner who is committed to subordinating his receipt of significant 

compensatory relief to his purported “desire to serve the broader public purpose of deterring 

future discrimination” strains credulity. This is particularly so in view of the frustration 

expressed by Wylie in his September 28, 2018, email regarding the ‘absurdity’ of MSHA (the 

Secretary) interfering with his desire to settle. 

In view of the questionable statements the Secretary has attributed to Wylie, it became 

clear that a telephone conference with Wylie, as well as with all attorneys of record, was 

necessary to ascertain Wylie’s wishes. See Order Scheduling Prehr’g Tel. Conf., 41 FMSHRC 

___ Slip op. (Jan. 9, 2018). Consequently, a recorded conference call was conducted on 

41 FMSHRC Page 22
January 22, 2019, to hear directly from Wylie whether he wished to accept the settlement terms 

proposed by Allegheny, or, whether he wished to pursue his discrimination claim at an 

evidentiary hearing.2

 

During the January 22, 2019, telephone conference, Wylie readily and without hesitation 

indicated he wished to agree to the settlement terms, including that the settlement terms remain 

confidential. Tr. 7-9. Wylie stated, “[a]t first the terms were fine” but he did not understand the 

“confidentiality thing.” Tr. 7. Consistent with his September 28, 2018, email, Wylie expressed 

his regret that “[i]t dragged on. I felt like I was pushed into a corner, but it is what it is. I’m 

going to be happy that we can all walk away from this as soon as possible, sir.” Tr. 11. 

To place the divergent interests of Wylie and the Secretary in perspective, it is necessary 

to reconcile Wylie’s September 29, 2018, affidavit submitted to the Commission by the 

Secretary from Wylie’s repeated unequivocal statements made directly to the Commission 

concerning his interest in settlement. The Secretary acknowledges that he does not represent 

Wylie in this proceeding. Tr. 14. Nevertheless, Wylie’s affidavit was submitted as an exhibit to 

the Secretary’s opposition to the settlement motion for the purpose of demonstrating Wylie’s 

strong opposition to confidentiality. Sec’y’s Opp’n to Settlement Mot., Ex. A (Nov. 29, 2018). 

The affidavit is instructive for several reasons. For example, paragraph eight of the affidavit 

avers: 

I understand and agree with the concerns of the Secretary that any 

resolution of this matter without public inclusion of the amount of 

back wages due makes it harder for miners to assert their rights in 

future Mine Act discrimination cases by decreasing awareness of 

successful enforcement actions. 

Sec’y’s Opp’n to Settlement Mot., Ex. A at 4 (Nov. 29, 2018) (emphasis added). 

Paragraph eight is revealing in two respects. First, it is apparent that the Secretary has 

been the driving force behind the demand for public disclosure, as the Secretary’s interest in 

public disclosure preceded Wylie’s. Second, the Secretary’s reliance on paragraph eight to 

evidence Wylie’s overriding concern for public disclosure is an apparent attempt to mask the 

Secretary’s self-serving interest in this unfortunate situation.

3

 

 2

 Transcript references to the January 22, 2019, telephone conference will be cited as 

“Tr.” followed by the page number. 

3

 As discussed herein, I am concerned about the Secretary’s efforts to act in Wylie’s best 

interests. For example, obviously administering the oath encourages truthfulness that is essential 

to the judicial process. Yet the Secretary objected to the fact that Wylie’s statements during the 

telephone conference would be given under oath based on the disconcerting claim that the 

swearing-in process is intimidating. Tr. 5. In fact, it is clear that Wylie did not feel intimidated, 

as he appeared to be relieved that he had the opportunity to “speak freely” during the conference 

call. Tr. 6, 7. 

41 FMSHRC Page 23
The Secretary also relies on paragraph seven of Wylie’s affidavit that states that Wylie 

“understand[s] that [he] ha[s] the right to settle [his] claim for back wages regardless of whether 

the Secretary wishes to do so.” Id. at 3. However, the extent of Wylie’s understanding in this 

regard is suspect as there is no evidence that Wylie was aware that confidentiality terms have 

historically been agreed to by the Secretary in 105(c)(2) proceedings. 

In attempting to insulate himself from Wylie’s expressed frustrations regarding feeling 

“pushed into a corner” and Wylie’s desire to extricate himself from his dilemma “as soon as 

possible,” the Secretary provides a self-serving explanation that seeks to blame the Commission 

for Wylie’s predicament: 

[T]he most important thing that’s occurred thus far is the statement 

by Mr. Wylie that he said he was pushed in the corner. There is 

absolutely no basis either in the current case law that has been 

promulgated by the Commission or any statutory promulgation by 

the United States Congress nor in the rules that allows a court sua 

sponte to impose a settlement on a complainant who is not 

represented. The Callahan case involves a complainant that was 

represented from the beginning of that litigation. Mr. Wylie does 

not have a lawyer as the court indicated in his initial comments to 

Mr. Wylie expressing the concern about Mr. Wylie being 

intimidated, and Mr. Wylie actually stating that he was somewhat 

intimidated by this process. The court has used its authority, I 

believe, inappropriately to get a settlement to force Mr. Wylie into 

a settlement. 

Tr. 14. 

The objections proffered on behalf of the Secretary during the telephone conference are 

noted. Suffice it to say, there is nothing in the procedural history of this matter to support the 

Secretary’s claim that “the court has used its authority . . . to force Mr. Wylie into a settlement.” 

Id. On the contrary, it is significant that, but for the issue of confidentiality, the Secretary 

previously agreed to identical settlement terms with respect to Wylie’s compensatory relief as 

early as August 2018. Second Amended Notice of Hearing, unpublished Order at 1 (Oct. 3, 

2018) (ALJ Paez). It is regrettable that Wylie has yet to receive his compensatory relief during 

this approximate six month intervening period. Finally, I am not aware of, nor has the Secretary 

cited, any case law that supports the proposition that the Commission disfavors confidentiality of 

settlement terms in discrimination cases brought pursuant to section 105(c) of the Act. 

It is the initial November 6, 2017, Complaint Wylie filed with MSHA that serves as the 

predicate for this discrimination proceeding. Compl., Ex. A (Feb 23, 2018). As previously 

noted, as a party, Wylie has the right to settle his discrimination complaint. To hold otherwise 

would be inconsistent with the Commission’s holding in Callahan. Placing the procedural 

history in this proceeding in perspective will be helpful in the event that the Secretary continues 

to believe that severing these matters is unjustified, or, that he is otherwise aggrieved by the 

approval of the subject settlement terms between Wylie and Allegheny. 

41 FMSHRC Page 24
ORDER 

Consistent with Wylie’s eagerness to accept the settlement terms, including 

confidentiality, expressed during the telephone conference, less than 24 hours after the telephone 

conference, Wylie provided the Commission with a signed copy of his Settlement and General 

Release Agreement with Allegheny on January 23, 2019. During the Conference call, counsel 

for Allegheny agreed that the performance of the terms of the settlement with respect to Wylie’s 

compensatory relief would be completed within 30 days of the date of this Decision. Tr. 9. 

The subject settlement terms resolve all matters in issue with respect to Wylie’s relief. 

Consequently, IT IS ORDERED that the Settlement and General Release Agreement between 

Allegheny and Wylie IS APPROVED and that Allegheny provide Wylie with the compensatory 

relief provided for in the settlement agreement within 30 days of the date of this Decision. 

IT IS FURTHER ORDERED that upon confirmation of Wylie’s timely receipt of his 

compensatory relief, the subject discrimination proceeding in Docket No. PENN 2018-0158-DM 

SHALL BE DISMISSED. 

IT IS FURTHER ORDERED that unredacted copies of the settlement terms and the 

January 22, 2019, telephone conference transcript shall be placed under seal. 

IT IS FURTHER ORDERED that a redacted copy of the January 22, 2019, telephone 

conference transcript deleting all references to the amount of Wylie’s compensatory relief will 

not be sealed.4

 

Nothing herein shall preclude the Secretary from pursuing the civil penalty case in 

Docket No. PENN 2018-0275. In this regard, the Secretary has requested a hearing in the civil 

penalty mater in Docket No. PENN 2018-0275. The date and location of the hearing will be 

specified in a subsequent order. 

 /s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

 4

 To preserve the pending issue of confidentiality, the parties were initially advised that 

the transcript of the telephone conference would be placed under seal. Order Scheduling Prehr’g 

Tel. Conf., 41 FMSHRC ___ Slip op. at 2 (Jan 9, 2019). However, the parties were subsequently 

advised that a redacted copy that deletes all references to the amount of the agreed upon 

compensatory relief sufficiently preserves the issue of confidentiality, and thus would not be 

placed under seal. Tr. 3.

41 FMSHRC Page 25
Distribution: 

Oscar L. Hampton III, Regional Solicitor, U.S. Department of Labor, Office of the Solicitor, 

Suite 630E, The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106 

hampton.oscar@dol.gov 

Andrea J. Appel, Deputy of the Regional Solicitor, U.S. Department of Labor, Office of the 

Solicitor, Suite 630E, The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 

19106 appel.andrea@dol.gov 

Matthew R. Epstein, Esq., U.S. Department of Labor, Office of the Solicitor, Suite 630E, 

The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106 

epstein.matthew.r@dol.gov 

Jason Wylie, 604 Vanadium Road, Bridgeville, P A 15017 airborne_ medic12@yahoo.com 

Patrick W. Dennison, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 

401 Liberty Avenue, Pittsburgh, PA 15222 pwdennison@jacksonkelly.com 

/nm 

41 FMSHRC Page 26
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9900 / FAX: 202-434-9949 

February 8, 2019 

DECISION AND ORDER

Appearances: James L. Polianites, Esq., U.S. Department of Labor, Office of the 

Regional Solicitor, Boston, Massachusetts, for Petitioner; 

Mark Cormier, Pro Se, Cormier Construction & Granite, Deer Isle, Maine, 

for Respondent. 

Before: Judge L. Zane Gill 

This proceeding is before me upon the Petition for the Assessment of Civil Penalty filed 

by the Secretary of Labor (“Secretary”) pursuant to section 105 of the Federal Mine Safety and 

Health Act of 1977 (“Mine Act” or “Act”), 30 U.S.C. § 815. This case involves three section 

104(a) citations issued by the Secretary to Respondent Cormier Construction. 

I. STATEMENT OF THE CASE

On November 2, 2016, the Secretary issued Citation Nos. 9311390, 9311393, and 

9311394 following an E01 MSHA inspection. Citation No. 9311390 alleges a violation of 30 

C.F.R. § 56.110031 for not maintaining a ladder in good condition. Citation No. 9311393 alleges

a violation of 30 C.F.R. § 56.110022 for failing to provide a railing on a bench. Citation No.

9311394 alleges a violation of 30 C.F.R. § 56.110013 for failing to provide safe access to two

1

 Section 56.11003 reads, “Ladders shall be of substantial construction and maintained in 

good condition.” 

2

 Section 56.11002 reads, “Crossovers, elevated walkways, elevated ramps, and stairways 

shall be of substantial construction provided with handrails, and maintained in good condition. 

Where necessary, toeboards shall be provided.” 

3

 Section 56.11001 reads, “Safe means of access shall be provided and maintained to all 

working places.” 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

CORMIER CONSTRUCTION, 

 Respondent. 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 2017-0047 

A.C. No. 17-00609-425848

Mine: Church Quarry 

41 FMSHRC Page 27
benches. Based on the penalty conversion table in 30 C.F.R. § 100.3(g), the Secretary proposed a 

penalty of $2,043.00 for each violation for a total combined proposed penalty of $6,129.00. 

I held a hearing on April 24, 2018, in Portland, Maine. The Secretary presented testimony 

from MSHA Inspector Michael Powers. Respondent presented testimony from Quarry Foreman 

Mark Cormier. The parties each submitted post-hearing briefs. 

 

II. ISSUES 

 The Secretary asserts that Cormier Construction violated sections 56.11003, 56.11002, 

and 56.11001. (Sec’y Br. 2–3) The Secretary also asserts that the violations were significant and 

substantial (“S&S”), inasmuch as they were reasonably likely to result in a fatality and were the 

result of the operator’s moderate negligence. (Id. at 6–7) In contrast, Respondent argued at the 

hearing that the Secretary’s negligence and gravity determinations were over-assessed. (Tr.14:6–

13) Specifically, Respondent argued that MSHA did not prove that a fall, as contemplated in the 

citations, would reasonably be expected to be fatal. (Tr.61:23–25; Resp’t Br. 1) Additionally, 

Respondent argued that the recommended penalty amount is too high, especially considering its 

long history of not having lost-work accidents and its small size. (Tr.66:22–67:11) Respondent 

did not dispute MSHA’s jurisdiction. 

 The following issues are before me: (1) whether Cormier Construction violated sections 

56.11003, 56.11002, and 56.11001 as alleged in Citation Nos. 9311390, 9311393, and 9311394; 

(2) whether the Secretary’s gravity and S&S determinations are proper for the three citations; (3) 

whether Respondent’s negligence is properly designated as “moderate”; and, (4) whether the 

proposed penalties are appropriate. 

III. STIPULATIONS AND FACTUAL BACKGROUND 

The parties agreed to 14 stipulations, which were read into the record at hearing. They are 

as follows: 

(1) On November 2, 2016, the Mine Safety and Health Administration, MSHA, 

conducted a regular safety inspection of the Church Quarry Mine on Deer Isle, Maine, by 

Inspector Michael Powers. 

(2) Mr. Powers held a pre-inspection conference with Tim Ray and also spoke to the 

owner Francis Cormier and Mark Cormier. 

(3) Mr. Powers conducted a general inspection of the quarry and its equipment. 

(4) With respect to the part of the quarry for which the subject citations were issued, the 

quarry was composed of benches from which the granite was cut. 

(5) Photographs taken by Mr. Powers are fair and accurate depictions of the quarry 

during his inspection. 

41 FMSHRC Page 28
(6) Mr. Powers observed that an aluminum ladder used to access bench number 1 in the 

quarry was bent and deformed at the 8th rung, and left and right rails were bent at the 9th 

rung. 

(7) Mr. Powers also observed that there was no railing in place for 40 feet along the right 

side of bench number 1. 

(8) Bench number 1 was used by employees to access the ladders to benches 2 and 3; and 

employees had been working at the end of bench number 1 splitting stone from bench 

number 2. 

(9) The area of bench number 1 depicted in the photographs taken by Mr. Powers 

measures 7 to 8 feet and approximately 4 feet wide where the stone was being split by 

employees. 

(10) The drop from the surface of bench number 1 to the ground below was measured to 

be 89 inches. 

(11) Mr. Powers also observed that safe access was not provided and maintained to 

access benches 2 and 3. The ladder to bench number 3 had its bases removed and the left 

rail was broken at the midpoint. 

(12) In addition, Mr. Powers observed that there was no railing along the right side of 

bench number 2, which was measured to be 54 inches wide and 10 feet 6 inches long. 

(13) Mr. Powers was informed that this area of bench number 2 was accessed throughout 

the shift. 

(14) Mr. Powers conducted a closing conference in which the fall hazards he observed 

and described to the foreman were discussed. 

(Tr.7:1–8:24) 

Powers issued Citation No. 9311390, alleging a violation of 30 C.F.R. § 56.11003, 

Citation No. 9311393, alleging a violation of 30 C.F.R. § 56.11002, and Citation No. 9311394, 

alleging a violation of 30 C.F.R. § 56.11001. (Exs. S–4, S–7, S–10) He designated each of the 

three violations as “S&S” and “reasonably likely” to result in a “fatal injury” to “one miner.” 

(Exs. S–4, S–7, S–10) Additionally, all three citations allege that the operator’s negligence was 

“moderate.” (Exs. S–4, S–7, S–10) 

Cormier Construction abated Citation No. 9311390 by removing the defective ladder 

from the worksite and replacing it with an aluminum ladder in good visible condition. (Exs. S–4, 

S–5 at 4) Cormier Construction abated Citation No. 9311393 by placing a railing along the 

bench. (Exs. S–7, S–8 at 5) Finally, Cormier Construction abated Citation No. 9311394 by 

removing and discarding the broken ladder on bench 2, removing access to bench 2, and 

41 FMSHRC Page 29
providing a new ladder to go from bench 1 to bench 3. (Exs. S–10, S–11 at 4–5) Powers then 

terminated each of the violations. (Exs. S–4, S–7, S–10) 

IV. LEGAL PRINCIPLES 

A. Burden of Proof 

 In order to establish a violation of a safety standard or provision of the Act, the Secretary 

must prove “by a preponderance of the credible evidence” that a violation occurred. Keystone 

Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), citing Garden Creek Pocahontas Co., 

11 FMSHRC 2148, 2152 (Nov. 1989). 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 evidentiary facts and the ultimate fact inferred.” Garden Creek 

Pocahontas Co., 11 FMSHRC at 2152–53, citing Mid-Continent Res., Inc., 6 FMSHRC 1132, 

1138 (May 1984); see also Eagle Energy, Inc., 23 FMSHRC 1107, 1118 (Oct. 2001). 

 The weight of evidence is a measure of the believability or persuasiveness of evidence. 

To satisfy the burden of proof—preponderance of the evidence—the Secretary must convince me 

that the evidence in support of his case outweighs the evidence offered by the Respondent. 

B. Significant and Substantial 

A violation is S&S if, based on the facts surrounding that violation, there is “a reasonable 

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

nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). To establish an S&S 

violation, the Secretary must prove: “(1) the underlying violation of a mandatory safety standard; 

(2) a discrete safety hazard—that is, a measure of danger to safety—contributed to by the 

violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and 

(4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.” 

Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted); see also Buck Creek Coal, 

Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135–36 (7th Cir. 1995) (affirming ALJ’s 

application of the Mathies criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 104 (5th 

Cir. 1988) (approving the Mathies criteria). 

The Commission clarified that in analyzing the second Mathies element, Commission 

Judges must determine whether there is a reasonable likelihood of occurrence of the hazard 

“against which the mandatory safety standard is directed.” Newtown Energy, Inc., 38 FMSHRC 

2033, 2038 (Aug. 2016). In evaluating the third Mathies element, the Commission assumes the 

hazard identified in the second Mathies element exists and determines whether that hazard is 

reasonably likely to cause injury. Id. at 2045 (citing Knox Creek Coal Corp. v. Sec’y of Labor, 

811 F.3d 148, 161–62 (4th Cir. 2016); Peabody Midwest Mining, LLC, 762 F.3d 611, 616 (7th 

Cir. 2014); Buck Creek Coal, 52 F.3d at 135). The Commission has specified that evaluation of 

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

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

Mining Co., 6 FMSHRC 1573, 1574 (July 1984)). 

 

41 FMSHRC Page 30
C. Negligence 

The Commission evaluates negligence using “a traditional negligence analysis.” Am. 

Coal Co., 39 FMSHRC 8, 14 (Jan. 2017) (quoting Mach Mining, LLC v. Sec’y of Labor, 809 

F.3d 1259, 1264 (D.C. Cir. 2016) (citation omitted)). Because the Commission is not bound by 

the Secretary’s regulations in 30 C.F.R. Part 100, the Commission and its Judges are not required 

to consider the negligence definitions in 30 C.F.R. § 100.3(d). Id. (citing Mach Mining, LLC, 809 

F.3d at 1263–64). Under a traditional negligence analysis, an operator is negligent if it fails to 

meet the requisite standard of care. Brody Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015). 

In determining whether an operator met its duty of care, the Commission considers 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. Id. at 

1702 (citation omitted). In making a negligence determination, a Judge is not limited to an 

evaluation of allegedly “mitigating” circumstances, but may consider the totality of the 

circumstances holistically and thus find “high negligence” in spite of mitigating circumstances or 

“moderate” negligence without identifying mitigating circumstances. Id. 

D. Penalty 

Administrative Law Judges are given broad discretion in assessing civil penalties under 

the Mine Act. Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986). When assessing a 

civil penalty, section 110(i) of the Mine Act requires that the Commission consider six criteria: 

(1) the operator’s history of previous violations; (2) the appropriateness of the penalty relative to 

the size of the operator’s business; (3) the operator’s negligence; (4) the penalty’s effect on the 

operator’s ability to continue in business; (5) the violation’s gravity; and, (6) the demonstrated 

good faith of the operator in attempting to achieve rapid compliance after notification of a 

violation. 30 U.S.C. § 820(i). 

 

 In addition, deterrence is a relevant factor that judges may consider separately from the 

statutorily-prescribed criteria in assessing penalties. See Black Beauty Coal Co., 34 FMSHRC 

1856, 1864–69 (Aug. 2012). 

The Commission has repeatedly held that substantial deviations from the Secretary’s 

proposed assessments must be adequately explained using the section 110(i) criteria. E.g., Hubb 

Corp., 22 FMSHRC 606, 612 (May 2000); Cantera Green, 22 FMSHRC 616, 620–21 (May 

2000); Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983). A judge need not make 

exhaustive findings, but the judge must provide an adequate explanation of how the findings 

contributed to his or her penalty assessments. Cantera Green, 22 FMSHRC at 621.

 Although all of the statutory penalty criteria must be considered, they need not be 

assigned equal weight. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). 

Generally speaking, the magnitude of the gravity of a violation and the degree of negligence are 

important factors, especially for more serious violations for which substantial penalties may be 

imposed. Musser Eng’g, Inc., 32 FMSHRC 1257, 1289 (Oct. 2010) (judge justified in relying on 

gravity and gross negligence in imposing substantial penalty); Spartan Mining Co., 30 FMSHRC 

699, 725 (Aug. 2008) (appropriate for judge to raise a penalty significantly based upon findings 

41 FMSHRC Page 31
of extreme gravity and unwarrantable failure); Lopke Quarries, Inc., 23 FMSHRC 705, 713 (July 

2001) (judge did not abuse discretion by weighing the factors of negligence and gravity more 

heavily than the other four statutory criteria). 

 With regard to the penalty’s effect on the operator’s ability to continue in business, the 

Commission has held that “[i]n the absence of proof that the imposition of authorized penalties 

would adversely affect [an operator’s] ability to continue in business, it is presumed that no such 

adverse [e]ffect would occur.” John Richards Constr., 39 FMSHRC 959, 965 (May 2017), citing 

Sellersburg Co., 5 FMSHRC at 294 (citing Buffalo Mining Co., 2 IBMA 226, 247–48 (Sept. 

1973)). Evidence of an operator’s financial condition is relevant to the ability to continue in 

business criterion. Georges Colliers, Inc., 23 FMSHRC 822, 825 (Aug. 2001) 

Finally, the Commission alone is responsible for assessing final penalties. See 

Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151–52 (7th Cir. 1984) (“[N]either the ALJ 

nor the Commission is bound by the Secretary’s proposed penalties [. . .] . [W]e find no basis 

upon which to conclude that [MSHA’s Part 100 penalty regulations] also govern the 

Commission.”). 

V. ANALYSIS AND CONCLUSIONS OF LAW 

A. Citation No. 9311390 

1. Fact of the Violation 

For Citation No. 9311390, the Secretary asserts that Cormier Construction violated 30 

C.F.R. § 56.11003 by using a 10-foot portable aluminum ladder that was not maintained in good 

condition. (Ex. S–4) The cited standard provides: “Ladders shall be of substantial construction 

and maintained in good condition.” 30 C.F.R. § 56.11003. 

According to the Secretary, the #8 rung was bent and deformed and the left and right rails 

were bent at the #9 rung. (Tr.25:11–18; Jt. Stip. 6; Ex. S–4) Additionally, the bottom rung was 

broken and a steel rod was stuck through it. (Tr.26:8–24; Ex. S–4) Inspector Powers stated there 

was nothing there to keep the steel rod from sliding through or falling out. (Tr.27:6–8) 

In contrast, Respondent suggested at the hearing that it did not violate the standard 

because this ladder was previously inspected by other inspectors and deemed to be sufficiently 

safe in this condition. (Tr.15:11–23; 50:19–21) Additionally, Respondent argued the #9 rung 

would not bear any weight because it was above the bench. (Tr.51:19–25) Finally, Respondent 

argued that the rod at the bottom rung was a steel drill rod, which fit snuggly into the rung. 

(Tr.52:1–53:4) 

 Regarding Respondent’s contention that previous inspectors had not cited the ladder at 

issue, it is long established that MSHA cannot be estopped from enforcing its regulations simply 

because it did not previously cite the mine operator. See Mainline Rock & Ballast, Inc. v. Sec’y 

of Labor, 693 F.3d 1181, 1187 (10th Cir. 2012) (citing Emery Mining Corp. v. Sec’y of Labor, 

744 F.2d 1411, 1416–17 (10th Cir. 1984)). The Mine Act is a strict liability statute. As long as a 

41 FMSHRC Page 32
regulation is sufficiently specific that a reasonably prudent person, familiar with the conditions 

the regulation is meant to address and the objective the regulation is meant to achieve, would 

have fair warning of what the regulation requires, then the due process requirements for notice 

are satisfied. Id. at 1187 (citing Walker Stone Co. v. Sec’y of Labor, 156 F.3d 1076, 1083–84 

(10th Cir. 1998)). While the terms “substantial construction” and “good condition” are inherently 

subjective, the obvious bend at rung #9, the damage in the middle of rung #8, and broken bottom 

rung would give a reasonably prudent person familiar with the regulation notice that this ladder 

violated the safety standard. Respondent’s contentions about rung #9 being non-weight bearing 

and the nature of the steel drill rod involve the gravity analysis and will be addressed below. 

 Based on the photographic evidence depicted in the exhibit photos, I agree that the ladder 

was not of substantial construction and had not been maintained in good condition. I conclude 

that Respondent violated 30 C.F.R. § 56.11003 as alleged in Citation No. 9311390. 

2. S&S and Gravity 

To establish the first element of the Mathies test, the Secretary must prove an underlying 

violation of a mandatory safety standard. Cormier Construction’s violation of section 56.11003 

establishes the first element of an S&S violation. 

In regard to the second Mathies element, the Secretary must show that the violation 

created a reasonable likelihood the hazard that section 56.11003 aims to prevent would occur. 

Section 56.11003 requires that ladders be of substantial construction and maintained in good 

condition; thus, the standard aims to prevent a fall hazard. (See Tr.29:7–10; Jt. Stip. 14; Ex. S–6) 

The ladder was the means of accessing bench 1 (Tr.26:7–11; Jt. Stip. 6; Ex. S–5), and it 

was used numerous times throughout the shift and on a regular basis. (Tr.28:25–29:1) Beyond 

this, however, the Secretary failed to illustrate with convincing specificity the reasonable 

likelihood of the occurrence of the hazard. Regarding this important step in the Mathies test, the 

Secretary’s brief makes the following arguments: (1) the “broken rungs and deformed rails [. . .] 

presented a hazard of failing to bear the weight put upon it” (Sec’y Br. 4); the “iron rod had been 

inserted, ostensibly to strengthen the rung to bear weight” (Id.); and, (3) “the degree of damage 

[. . .] put the miners who climbed those ladders at risk of falling if the ladder should fail.” (Id. at 

7) 

 In contrast, Respondent argued at the hearing that the bend at the #9 rung would not bear 

any weight because it was above the bench. (Tr.51:19–25) Respondent also suggested that the 

steel drill rod used to enforce the broken bottom rung made the ladder usable and safe. (Tr.52:2–

53:4) 

The Secretary carries the burden of establishing all of the claims he brings. The Secretary 

did not address the strength and efficacy of the steel-rod-enforced broken bottom rung, did not 

discuss how the bend at the rail above the #9 rung would contribute to a fall, given that it was 

above bench 1, and did not describe the extent of the damage at rung #8 to supplement the view 

provided by the close-up photo. (Ex. S–5 at 1) The Secretary has not established that the ladder, 

41 FMSHRC Page 33
in its current condition, would fail to bear the weight put upon it. Nevertheless, two factors 

persuade me that a fall was reasonably likely to occur. 

First, the ladder was used frequently and on a regular basis. Because the ladder was used 

to access bench 1 from the ground level (Tr.26:7–11; Jt. Stip. 6; Ex. S–5), miners would have to 

use it to get to and leave the active working section. Even with a single miner working at the 

time, frequent, daily use would increase exposure to potential harm and accelerate wear and tear. 

Second, even assuming the ladder’s condition at the time of the citation was safely juryrigged as depicted by Cormier, its future condition would likely have become hazardous. The 

Commission has specified that evaluation of the reasonable likelihood of injury should be made 

assuming continued normal mining operations. U.S. Steel Mining Co., 7 FMSHRC at 1130 

(quoting U.S. Steel Mining Co., 6 FMSHRC at 1574). The Commission has held that the S&S 

inquiry considers “the violative conditions as they existed both prior to and at the time of the 

violation and as they would have existed had normal operations continued.” Mach Mining, LLC 

v. Sec’y of Labor, 809 F.3d 1259, 1267 (D.C. Cir. 2016), citing Knox Creek Coal Corp., 36 

FMSHRC 1128, 1132 (May 2014); McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1991 (Aug. 

2014). 

Cormier’s hearing testimony suggested these problems had existed for a significant 

period of time without being properly addressed. (See Tr.15:11–23; 52:24–25) It is thus 

reasonable to conclude this ladder would have continued to deteriorate beyond its current state 

without replacement but for the citation issued by Inspector Powers. Indeed, Mr. Cormier 

admitted at the hearing that he now uses the ladder, in its cited condition, at his home. (Tr.52:10–

12) The normal wear and tear of the ladder, especially given its frequent, daily use, in 

conjunction with the attitude of mine management strongly indicate that the problems with this 

ladder would get worse. I determine that it was reasonably likely for the hazard to occur. 

 Regarding the third and fourth Mathies elements, the Secretary must demonstrate a 

reasonable likelihood the hazard will result in a reasonably serious injury. In analyzing the third 

element, I must assume that the hazard identified in the second Mathies element exists. 

Newtown, 38 FMSHRC at 2045. A fall from a ladder of any height is reasonably likely to result 

in an injury to a miner. Consequently, I determine that the hazard of a miner falling from the 

ladder would be reasonably likely to result in an injury, thus satisfying the third Mathies element. 

 The primary reason Powers gave at the hearing for the fatal designation was a statistic 

that, between 2013 and 2016, five fatal injuries occurred with falls of less than 8 feet in 

metal/non-metal mining. (Tr.29:7–10) The Secretary did not brief the severity of injury with any 

specificity. The severity of injury for all three citations was addressed in a single sentence: 

“Since a miner falling from a ladder would likely land on a solid granite surface, or on to the 

waste rock, the prospect of a serious, even fatal injury was ever-prevalent on the day of Mr. 

Power’s inspection.” (Sec’y Br. 7) 

 The evidence does not support the Secretary’s argument by a preponderance of the 

evidence that an injury in this citation could reasonably be expected to be fatal for three reasons. 

41 FMSHRC Page 34
 First, the Secretary failed to provide specific information on the fatality data Powers 

relied on. During cross-examination by Respondent, Inspector Powers was unable to discuss or 

provide additional, useful fall data. (Tr.51:5–7) Notably, Powers was unable to discuss the total 

number of falls. The Secretary’s citation language—“could reasonably be expected to be”—

indicates probability. The concept of “likelihood” is necessarily probabilistic. The five fatalities 

cited let us know that a fatality is possible, which Respondent fully acknowledged (Tr.64:21–

65:1), but the information is not sufficient to determine probability without establishing the 

denominator of total falls. I realize, and as the parties discussed at hearing, the difficulty in 

collecting this data since near-misses or non-serious injuries are not reported to MSHA. 

(Tr.51:3–18) While not dispositive, more data on the number of falls during that multi-year 

period would have been helpful and instructive. 

 Second, the Secretary’s statistic does not necessarily apply here. Powers’ data on 

fatalities from falls of less than 8 feet does not parse the numbers to show the likelihood of a 

fatality from a fall of 89 inches (7.42 feet)—the distance from the surface of bench 1 to the 

ground below. For example, I would be less convinced of the Secretary’s conclusion that a fall 

could reasonably be expected to result in a fatal injury if the data showed that all five of the 

noted fall fatalities between 2013 and 2016 occurred in the range of 7.50 feet and 7.99 feet. 

 In any event, the Secretary’s calculation of a fall height of 89 inches for this citation is 

unreasonable. As evident from the photographic evidence, rung #9 was positioned four inches 

above bench 1. (Ex. S–5 at 1) In agreement with Respondent’s argument (see Tr.51:19–25; Ex. 

S–5), the Secretary failed to prove why a miner would need to stand on rung #9 to get to bench 1. 

Miners likely stood on rung #8, which was measured five inches below bench 1 (see Ex. S–5 at 

1), or possibly rung #7 before stepping up to bench 1. While the specifics of weight distribution 

on the ladder are not clear, what is clear, however, is that any fall would most likely occur at 

rung #8 or below: a height lower than the 89 inches cited by the Secretary. 

 Third, the Secretary focused solely on fall height and failed to discuss other important 

factors involved in the cited fatalities. For example, inspectors considering fall hazards have 

previously taken into account where the miner might fall, what he might fall into, what he might 

fall on, the height of the miner, the weight of a miner, the surface the miner was standing on, and 

the types of the tools the miner might be carrying. See, e.g., Boart Longyear Co., 36 FMSHRC 

106, 120 (Jan. 2014) (ALJ) (inspector theorized that toolbox door on the side of a truck was not 

strong enough to support the weight of the driver and could snap); Granite Rock Co., 34 

FMSHRC 261, 264 (Jan. 2012) (ALJ) (inspector testified that he took into account the surface 

itself, the tools, loose rock, dust conditions, height of the miner, configuration of equipment, and 

possibility of falling on different surfaces depending if the fall was to the left side or right side in 

determining the likelihood and severity of an injury); D. Holcomb & Co., 33 FMSHRC 1435, 

1451–52 (June 2011) (ALJ) (where the inspector testified a rung on a ladder could give way, 

resulting in a fall that would either involve a hit to the head or result in contact with the nearby 

jaw crusher’s moving parts). 

 While the lack of detail provided by Powers here is not dispositive, more information on 

the circumstances in each of the cited fatalities, which served as the primary basis for the fatality 

41 FMSHRC Page 35
designation in this violation (Tr.29:7–10), would have been helpful in guiding my analysis, 

especially when compared to the facts in this case. 

 Here, given the area surrounding the ladder as depicted in Exhibit S–5, a falling miner 

might fall onto a collection of large tires (on the left), onto the ground below (directly behind), or 

onto a lone sledgehammer (on the right). (See Ex. S–5 at 2–4) Contrast this with the fall area in 

Citation No. 9311393, which was filled with jagged waste rock (see Ex. S–8 at 1) or the potential 

fall heights in Citation No. 9311394. (See Ex. S–11 at 4–5) The Secretary does not distinguish 

between these important factual considerations in his brief, instead bundling them as factually 

identical violations. Thus, while a fall would undoubtedly be serious here, the Secretary has not 

sufficiently met his burden to prove the fall could reasonably be expected to be fatal in this case. 

Instead, I determine that such injuries could reasonably be expected to be permanently disabling 

given the likely height a miner might fall from and the types of surfaces and objects below. 

The Secretary has satisfied all four elements of the Mathies test. I conclude that Citation 

No. 9311390 was appropriately designated as S&S. However, for the reasons stated above, I 

determine the gravity for this citation to be “reasonably likely” to result in a “permanently 

disabling” injury to “one miner.” 

3. Negligence 

The Secretary asserts that Cormier Construction’s conduct involved moderate negligence. 

(Ex. S–4) Interestingly, the Secretary’s post-hearing brief does not discuss negligence. At the 

hearing, Inspector Powers testified that mine management was not aware because the condition 

was not reported or listed in the daily workplace examination. (Tr.28:10–13) However, the fact 

that somebody had put a bar in the bottom rung suggests that somebody on the mine property 

knew about the structural problems of the ladder. (Tr.28:5–15) 

In an attempt to argue against the occurrence of a violation, Cormier stated at the hearing 

that the ladders had been in place and in the cited damaged condition for years and were never 

cited by previous MSHA inspectors. (Tr.15:11–23) Cormier’s own words cut sharply against the 

argument that mine management was not aware of the condition, which admittedly existed for a 

long period of time. 

While reliance on a previous MSHA inspector’s incorrect interpretation cannot estop 

MSHA from issuing a citation, it can be considered in reducing the level of negligence and 

penalty amount for a violation. Mach Mining, LLC, 809 F.3d at 1266, citing Mettiki Coal Corp., 

13 FMSHRC 760, 770–71 (May 1991); U.S. Steel Mining Co., 6 FMSHRC 2305, 2310 (Oct. 

1984); King Knob Coal Co., 3 FMSHRC 1417, 1422 (June 1981). The three structural problems 

with this ladder were obvious. Additionally, according to Cormier’s testimony, the problems 

existed for years and were known about by mine management. (Tr.15:11–23) However, I deem 

Respondent’s reliance on previous inspectors’ statements about the condition of this ladder an 

important mitigating factor. 

Considering the totality of the circumstances, I conclude that the operator’s conduct 

involved moderate negligence. 

41 FMSHRC Page 36
B. Citation No. 9311393 

1. Fact of the Violation 

 For Citation No. 9311393, the Secretary asserts that Cormier Construction violated 30 

C.F.R. § 56.11002 by failing to have a railing in place. (Ex. S–7) The cited standard provides: 

“Crossovers, elevated walkways, elevated ramps, and stairways shall be of substantial 

construction provided with handrails, and maintained in good condition. Where necessary, 

toeboards shall be provided.” 30 C.F.R. § 56.11002. 

The parties stipulated: (1) there was no railing in place for 40 feet on the right side of 

bench 1 (Jt. Stip. 7); (2) bench 1 was active at the time of inspection (Jt. Stip. 8); and, (3) the 

drop-distance to the ground below bench 1 was 89 inches. (Jt. Stip. 10) At the end of bench 1, 

employees split stone from bench 2. (Jt. Stip. 8) The area of bench 1 depicted in the photographs 

taken by Powers measured 7–8 feet and approximately 4 feet wide where the stone was being 

split by employees.4

 (Jt. Stip. 9; Ex. S–8 at 1, 4) A wooden scaffold was in place at the narrow 

(i.e., 4 foot) end of bench 1. (Ex. S–8 at 1, 4, 5) The scaffold was elevated about a foot above 

bench 1, 6–7 feet wide, and the platform planks were approximately 16 inches deep. (Tr.31:5–7; 

see Ex. S–8 at 1) Additionally, bench 1 was used by employees to access the ladders to benches 

2 and 3. (Jt. Stip. 8) 

Powers testified a railing existed, but it had been taken down the day before at the end of 

the shift to remove a block on bench 2. (Tr.33:13–14) Powers did not see anybody working in 

the area at the time of the inspection, but Ray stated they had broken stone from bench 2 on the 

previous shift. (Tr.30:16–19) Additionally, Ray stated to Powers they had been up on the 

benches to retrieve some tools during the shift on the morning of the inspection. (Tr.55:4–10) 

In contrast, Respondent argued at the hearing that factors outside of its control created a 

conundrum. Respondent stated the railing had to be removed in order to pull granite slabs with a 

lifting crane; if the railings were not removed, they would be destroyed in the process. (Tr.54:3–

8) Accordingly, the railing was removed at the end of the shift the day before. (Tr.54:8–9) 

However, because of a noise ordinance, diesel equipment and air equipment could only be used 

at the mine from 10 a.m. to 2 p.m. (Tr.53:22–25) Thus, until 10 a.m., Respondent was not able 

to use air drills or compressors and could not reinstall the railing.5

 (Tr.54:10–13) Respondent 

stated that inspectors often show up earlier in the morning—at 7:00 or 8:00 a.m.—which has 

resulted in Respondent being cited on multiple occasions for not having a railing in place. 

(Tr.54:18–22) 

 4

 Despite stipulating to these dimensions, Mr. Cormier testified at the hearing that the 

planks were 12 inches wide; thus, the width of the narrow portion of bench 1 was wider than 

estimated by Inspector Powers. (Tr.55:12–22) Upon viewing the exhibit photo (Ex. S–8 at 1) at 

the hearing, I noted that there were at least a few feet on either side of the planks. (Tr.55:23–

56:1) Ultimately, this discrepancy—whether the narrow portion of bench 1 was 4 feet or 5–6 

feet—does not change my analysis here. 

5

 During this “quiet” period before 10 a.m., miners are generally directed to do cleanup, 

maintenance, and things of that nature. (Tr.54:13–15) 

41 FMSHRC Page 37
 Based on the photographic evidence (see Ex. S–8 at 1, 3, 5), I determine that bench 1 was 

an elevated walkway. Further, the parties stipulated that no handrail existed at the time of the 

citation. (Jt. Stip. 7) As bench 1 was an elevated walkway with no handrail provided at the time 

of the citation, I conclude that Respondent violated 30 C.F.R. § 56.11002 as alleged in Citation 

No. 9311393. 

2. S&S and Gravity 

To establish the first element of the Mathies test, the Secretary must prove an underlying 

violation of a mandatory safety standard. Cormier Construction’s violation of section 56.11002 

establishes the first element of an S&S violation. 

To satisfy the second Mathies element, the Secretary must show that the violation created 

a reasonable likelihood the hazard that section 56.11002 aims to prevent would occur. Section 

56.11002 requires that elevated walkways be of substantial construction, provided with 

handrails, and maintained in good condition; specifically, the standard aims to prevent a fall 

hazard. (See Tr.30:6–7; Jt. Stip. 14; Ex. S–9) Powers stated that he designated this citation as 

“reasonably likely” because workers had been working on the bench multiple times throughout 

the shift and were not using any fall protection equipment. (Tr.34:16–18) Specifically, Powers 

testified that Ray told him that they went up on the benches to retrieve tools earlier that morning. 

(Tr.55:4–10) Powers also testified that there were no tie-off points in lieu of a railing at the 

scaffolding. (Tr.34:19–25) 

Respondent’s contention that the railing would have been reinstalled after 10 a.m. does 

not change the fact that miners were accessing the benches to collect tools earlier that morning. 

(Tr.55:4–10) It is reasonable to infer that miners collected tools from the narrow end of bench 1 

since they were working there the day before to split stone from bench 2. (Tr.30:16–19; Jt. Stips. 

8, 9) Given the narrow 4 foot width and the existence of the elevated wooden scaffolding 

situated in the walkway, it is also reasonably likely that a miner collecting tools from this area 

could misstep, slip, or trip and fall. 

For these reasons, a fall was reasonably likely to occur, particularly at the narrow end of 

bench 1, where employees had been splitting stone the day before. 

To satisfy the third and fourth Mathies elements, the Secretary must demonstrate a 

reasonable likelihood the identified hazard would result in a reasonably serious injury. In 

analyzing the third element, I must assume the hazard identified in the second Mathies element 

existed. Newtown, 38 FMSHRC at 2045. Unlike a fall in the previous citation, a fall in this case 

would be from a higher point, either from a standing position on bench 1 (89 inches) or possibly 

from the elevated wooden scaffold (101 inches). (Ex. S–8 at 1–3; see Tr.31:5–6) Further, as 

evident from the photographic evidence, granite waste rock, metal bars, and other sharp-edged 

objects lay in the area parallel to the right-side edge of bench 1. (Ex. S–8 at 1–3) Assuming a 

fall, an injury would be certain and could reasonably be expected to be fatal. 

Accordingly, the Secretary has satisfied all four elements of the Mathies test. I conclude 

that Citation No. 9311393 was appropriately designated as S&S. For the reasons stated above, I 

41 FMSHRC Page 38
determine the gravity for this violation to be “reasonably likely” to result in “fatal” injuries to 

“one miner.” 

3. Negligence 

The Secretary asserts that Cormier Construction’s conduct involved moderate negligence. 

(Ex. S–7) At the hearing, Inspector Powers stated that he chose the moderate designation because 

a railing had been provided, but somebody had removed it and failed to properly put it back up. 

(Tr.35:16–20) Powers believed Cormier Construction just forgot to reinstall the railing. 

(Tr.33:18) As mentioned above, the Secretary’s post-hearing brief does not discuss negligence. 

In response, Respondent stated that the railings had to be removed in order to pull the 

blocks with the lifting crane. (Tr.54:3–8) If the railings were not removed prior to pulling the 

granite blocks with the lifting crane, they would be destroyed. (Tr.54:5–6) According to 

Respondent, the railings were removed at the end of the shift the previous day. (Tr.54:8–9) 

However, the company is only able to run diesel equipment or air equipment between 10 a.m. 

and 2 p.m. due to noise concerns with the town. (Tr.53:22–25) Powers acknowledged that he had 

been told about the noise ordinance. (Tr.54:1) 

The operator has a duty of care to avoid violations of mandatory standards, and the 

failure to do so can lead to a finding of negligence when a violation occurs. A.H. Smith Stone 

Co., 5 FMSHRC 13, 15 (Jan. 1983). In cases where a rank-and-file miner has violated the Act or 

its mandatory standards, the Commission examines the operator’s supervision, training, and 

disciplining of its employees to determine whether the operator had taken reasonable steps 

necessary to prevent the rank-and-file miner’s violative conduct. S. Ohio Coal Co., 4 FMSHRC 

1459, 1464 (Aug. 1982) (“SOCCO”), citing Nacco Mining Co., 3 FMSHRC 848, 850–51 (Apr. 

1981). The Commission also considers the foreseeability of the miner’s conduct and the risks 

involved when determining whether the operator was negligent. A.H. Smith, 5 FMSHRC at 15, 

citing SOCCO, 4 FMSHRC at 1463–64; Nacco, 3 FMSHRC at 850–851. 

Here, Respondent claims to have found itself between a regulatory Scylla and 

Charybdis—seemingly forced to choose between violating the town noise ordinance by using 

heavy equipment before 10 a.m. or MSHA’s safety regulation requiring the railing. It is clear 

from the record that this problem has led to Respondent being cited before. (Tr.54:17–22) It is 

also clear that mine management was aware of the standard and the reasons for having a railing 

as evident by the fact that they normally had railings installed on the benches. (Tr.33:10–14; 

34:3–9; 56:2–3) It is not clear, however, how frequently the railing was taken down and for how 

long. It is also not clear if Ray’s accessing the railing-less benches to collect tools was done in 

conformance with or defiance of management’s instructions or policies. 

Although life presents things outside of our control, whether noise ordinance regulations 

or rogue rank-and-file miners, Respondent did not take the necessary, reasonable steps it should 

have taken to create a safer environment. Respondent stated that workers used the period prior to 

10 a.m. to do clean up and maintenance work. (Tr.54:13–15) It is foreseeable that miners doing 

cleanup and maintenance work might clean and maintain the area they were last working at. 

Thus, in order to ensure no miners accessed the benches while the railing was down, a 

41 FMSHRC Page 39
reasonably prudent operator would have taken actions—perhaps removing the first ladder, 

placing signs and warnings, adding a barricade—to prevent miners from accessing the benches 

before the railing was reinstalled. However, no preventative measures were taken to deter access 

to the benches while the railing was down. 

Further, Ray is listed in the MSHA Post-Inspection Report as the mine foreman. (Ex. S–2 

at 1) As a foreman, Ray is held to a higher standard of care. E.g., Midwest Material Co., 19 

FMSHRC 30, 35 (Jan. 1997) (“[A] foreman [. . .] is held to [a] high standard of care”); see also

Lehigh Anthracite Coal, 40 FMSHRC 273, 280, 280 n.12 (Apr. 2018) (holding a supervisor to a 

higher standard of care because he was the only supervisor on duty at the time of the incident and 

was thus “the agent responsible on behalf of the operator for the health and safety of each of 

[the] miners”). 

Considering the totality of the circumstances, I conclude the operator’s conduct involved 

moderate negligence. 

C. Citation No. 9311394 

1. Fact of the Violation 

With Citation No. 9311394, the Secretary asserts that Cormier Construction violated 30 

C.F.R. § 56.11001 by failing to provide and maintain safe access to benches 2 and 3. (Ex. S–10) 

The cited standard provides: “Safe means of access shall be provided and maintained to all 

working places.” 30 C.F.R. § 56.11001. 

The parties stipulated that the ladder to bench 3 had its bases removed, and the left rail 

was broken at the midpoint.6

 (Jt. Stip. 11) Powers testified that the ladder had been put in place 

at the end of the previous shift after Cormier Construction removed a section of bench 2. 

(Tr.36:11–13) 

In addition, Inspector Powers observed that there was no railing along the right side of 

bench 2, which measured 54 inches (4.5 feet) wide and 10 feet 6 inches (10.5 feet) long. (Jt. Stip. 

12; Ex. S–10) Powers was informed that this area of bench 2 was accessed throughout the shift. 

(Jt. Stip. 13) 

 

 6

 The ladder’s bases were also referred to as “feet” or “shoes” during the hearing. (See

Tr.38:4; 56:15–25; 57:4–16) To distinguish this ladder from the ladder in Citation No. 9311390, 

I will refer to the ladder here as the “footless ladder.” 

41 FMSHRC Page 40
Respondent argued at the hearing that its understanding of “a safe means of access” was 

informed by prior inspectors over the years as not applying to falls less than 6 feet.7

 (Tr.48:21–

50:22) 

 The Commission has held that section 56.11001 comprises the “dual requirements of 

providing and maintaining safe access to working places.” Watkins Eng’g & Constructors, 24 

FMSHRC 669, 680 (July 2002) (citation omitted). The Commission has previously used a plain 

meaning approach when interpreting this safety standard. See W. Indus. Inc., 25 FMSHRC 449, 

452 (Aug. 2003) (applying the judge’s definition of “safe” as “secure from threat of danger, 

harm, or loss”); Lopke Quarries, Inc., 23 FMSHRC 705, 707–08 (July 2001) (using the plain 

meaning of the word “maintained” in the regulation). Unlike OSHA, MSHA has not specified a 

specific height requirement, instead opting for the more general language of “safe means of 

access.” Thus, a “five foot elevation is neither inherently safe nor inherently unsafe; site specific 

conditions must be taken into account.” Boart Longyear Co., 36 FMSHRC 106, 113 (Jan. 2014) 

(ALJ) (challenging respondent’s contention that an elevation of five feet does not create a danger 

of falling for a section 56.15005 citation). 

 As discussed previously, MSHA cannot be estopped from enforcing its regulations 

simply because it did not previously cite the mine operator. See Mainline Rock & Ballast, Inc., 

693 F.3d at 1187. Instead, reliance on an MSHA inspector’s incorrect interpretation can reduce 

the level of the operator’s negligence, which will be discussed in the section below. 

 

 Here, there was a risk of falling from bench 2 to bench 1 given that there was no railing 

in place on the right side of bench 2. Additionally, the ladder to bench 3 was both footless and 

significantly damaged on its left rail, which presented the possibility of a slip or collapse while in 

use. Neither of these conditions allowed miners accessing bench 2 to be secure from threat of 

danger, harm, or loss. Accordingly, I determine that Cormier Construction failed to provide and 

maintain a safe means of access for benches 2 and 3 and violated 30 C.F.R. § 56.11001 as 

alleged in Citation No. 9311394. 

2. S&S and Gravity 

To establish the first element of the Mathies test, the Secretary must prove an underlying 

violation of a mandatory safety standard. Cormier Construction’s violation of section 56.11001 

does that. 

 For the second Mathies element, the Secretary must show that the violation created a 

reasonable likelihood the hazard section 56.11001 aims to prevent would occur. In this case, the 

standard aims to prevent a fall. (See Tr.40:9–12; Jt. Stip. 14; Ex. S–12) Powers assessed that a 

fall was reasonably likely since the footless ladder was used multiple times per shift. (Tr.39:19–

 7

 Cormier at hearing was likely referring to the language in OSHA’s fall protection 

standard, which states: “Each employee on a walking/working surface (horizontal and vertical 

surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level 

shall be protected from falling by the use of guardrail systems, safety net systems, or personal 

fall arrest systems.” 29 C.F.R. § 1926.501(b)(1) (emphasis added). 

41 FMSHRC Page 41
22) He also noted on his citation documentation (MSHA Form 4000–49E) that no tie-off points 

were available. (Ex. S–12) 

On cross examination, Powers clarified that he based his assessment that the footless 

ladder on bench 2 was used multiple times solely on statements made by Ray that miners had 

been going up to bench 3 to retrieve tools and do some cleanup. (Tr.58:16–23) However, Powers 

testified that the ladder had been put in place at the end of the previous shift (Tr.36:11–13), and 

his citation documentation noted the footless ladder was placed on bench 2 for temporary use. 

(Ex. S–12) Nevertheless, his understanding was that this was a repeat process. (Tr.59:7–10) 

 Powers testified that the footless ladder could slide out while in use. (Tr.38:8) Moreover, 

the work environment was wet, increasing the possibility that the ladder would slide out. 

(Tr.38:9–13) Cormier countered by suggesting the footless ladder was actually secure—and 

possibly more secure than a footed ladder—due to the notched texture at the top of bench 2. 

(Tr.56:21–57:16) According to Cormier, when the block was lifted, drill lines and perforations 

were created on the top surface of bench 2, which functioned as divots to hold the footless ladder 

in place. (Tr.57:12–24) 

 Respondent did not provide further evidence to support its argument that the alleged drill 

lines and perforations created a safe surface on bench 2 for the footless ladder. But even 

assuming the surface of bench 2 was safer for a footless ladder than a footed ladder, Respondent 

did not address the severe damage on the ladder’s left rail. Unlike the damage on rung #8 of the 

ladder from Citation No. 9311390, the damage on the left rail of the footless ladder was 

significant, possibly affecting the structural integrity of the ladder. (Compare Ex. S–5 at 1, with 

Ex. S–11 at 1–3) 

 Weighing these factors—with the temporary use of the ladder on one hand and the 

railing-less edge of bench 2 and the multiple problems with the ladder, especially the damaged 

left rail, on the other—and assuming continued normal mining operations, I conclude that a fall 

was reasonably likely to occur. 

Vis-à-vis the third and fourth Mathies elements, the Secretary must demonstrate a 

reasonable likelihood the hazard will result in a reasonably serious injury. In analyzing the third 

element, I must assume the existence of the hazard identified in the second Mathies element. 

Newtown, 38 FMSHRC at 2045. 

 Assuming a fall from the footless ladder, a miner could be expected to fall in one of three 

ways: to the right side, backward, or to the left side.8

 A fall to the right side would result in a fall 

to bench 2, a distance of up to 7 feet. (See Ex. S–11 at 1, 2, 4) A fall backward would result in a 

fall to either bench 2 or down to bench 1, a distance of up to 13 feet. (See Exs. S–8 at 3–5, S–11 

at 2, 4) A fall to the left side would result in a fall to bench 2 or, more likely, bench 1, a fall of up 

to 13 feet. (See Exs. S–8 at 3–5, S–11 at 1, 2, 4) Assuming a fall from a standing position on 

 8

 While the parties discussed and measured bench 1 at 89 inches, there were no 

stipulations or testimony pertaining to the heights of benches 2 or 3. Thus, I am forced to 

estimate the possible fall heights from bench 2 and bench 3 based solely on the photographic 

evidence provided in Exhibits S–8 and S–11. 

41 FMSHRC Page 42
bench 2, a miner would fall to bench 1, a fall of approximately 6 feet. (See Exs. S–8 at 3–5, S–11 

at 2, 4) 

 

 In all of these scenarios, the fall would be directly onto the flat granite surfaces of the 

benches, which would undoubtedly result in serious injury. If a miner were to fall from the 

ladder, given the range of possible fall heights, it could reasonably be expected to result in a fatal 

head injury. 

Accordingly, the Secretary has satisfied all four elements of the Mathies test. I conclude 

that Citation No. 9311394 was appropriately designated as S&S. For the reasons stated above, I 

determine the gravity for this violation to be “reasonably likely” to result in a “fatal” injury to 

“one miner.” 

3. Negligence 

The Secretary asserts that Cormier Construction’s conduct involved moderate negligence. 

(Ex. S–10) Inspector Powers testified that he designated moderate negligence because 

Respondent had previously installed a railing on bench 2 and understood that the railing was 

removed the day before, on November 1, 2016. (Tr.40:13–20) Again, the Secretary’s posthearing brief does not discuss negligence. 

 As with Citation No. 9311390, Respondent argued at the hearing that it relied on the 

incorrect interpretation of former MSHA inspectors. (Tr.50:17–22) And, as with Citation No. 

9311393, Respondent argued it could not replace the rail because it is only able to run diesel 

equipment or air equipment between 10 a.m. and 2 p.m. due to noise concerns with the town. 

(Tr.53:22–25) 

 Cormier Construction knew it was supposed to have a railing as evident by the fact it 

previously had a railing in place on bench 2 the day before. Additionally, the damage on the left 

rail of the footless ladder was extensive and obvious, which would have given notice to a 

reasonably prudent operator that it was unsafe for use. I determine Respondent’s reliance on 

previous MSHA inspector statements as to what constitutes a “safe means of access” to be a 

slightly mitigating factor. 

Considering the totality of the circumstances, I conclude that the operator’s conduct 

involved moderate negligence. 

D. Penalty 

Respondent was concerned about the proposed penalty and, specifically, the severity of 

injury or illness criterion. (Tr.14:16–15:6; 66:8–13) Cormier stated at the hearing that this was 

the first time Cormier Construction had ever contested citations. (Tr.65:24–66:6) 

Under Section 110(i) of the Mine Act, I must consider six criteria in assessing a civil 

penalty: (1) the operator’s history of previous violations; (2) the appropriateness of the penalty 

relative to the size of the operator’s business; (3) the operator’s negligence; (4) the penalty’s 

41 FMSHRC Page 43
effect on the operator’s ability to continue in business; (5) the violation’s gravity; and, (6) the 

demonstrated good faith of the operator in attempting to achieve rapid compliance after 

notification of a violation. 30 U.S.C. § 820(i). 

1. Gravity, Negligence, and Good Faith Abatement 

I have affirmed the Secretary’s S&S and negligence determinations. However, I lowered 

the severity of injury or illness from “fatal” to “permanently disabling” for Citation No. 

9311390. Additionally, Cormier Construction demonstrated good faith by abating the citations 

quickly after notification of the violations. (Exs. S–5 at 4, S–8 at 5, S–11 at 5) 

2. History of Previous Violations, Appropriateness of Penalty Relative to Size, and 

Ability to Continue in Business 

Respondent contested these three citations because the penalties were significantly higher 

than those it had received in the past. (Tr.65:24–66:13) Indeed, the 15 citations prior to this 

inspection had a range in penalties from $100 to $270, with an average penalty of $152.07. (Ex. 

S–15 at 4–6) However, after looking at Cormier Construction’s history of violations (Ex. S–15), 

while it is clear that the “fatal” designation significantly increased the Secretary’s proposed 

penalties, the most notable factor for this inspection was the high VPID (“Violations Per 

Inspection Day”) score. (See Exs. S–14, S–15 at 1) 

 

 The VPID is calculated by first dividing the number of violations that have been paid, 

finally adjudicated, or have become final orders during the Violation History Period9 by the 

number of inspection days.10 The resulting number is then applied to Table VI of 30 C.F.R. 

§ 100.3(c)(1) and converted into a penalty point number ranging from 0 to 25. 

 Here, Respondent’s history of violations shows 15 violations with a final order date in the 

preceding 15 months.11 (Ex. S–15 at 1) Per the formula, the VPID on November 2, 2016, was 

2.50, resulting in a maximum 25 penalty points. (Id. at 1–2; 30 C.F.R. § 100.3(c) (Table VI)) By 

way of comparison, the national average during that same time period for surface metal/nonmetal 

operators was 1.06, or 10 penalty points. (Ex. S–15 at 2; 30 C.F.R. § 100.3(c) (Table VI)) I have 

previously held that a VPID score, as calculated by the Secretary’s algorithm, was unfairly high. 

 9

 The “Violation History Period” covers the preceding 15 months. 30 C.F.R. § 100.3(c). 

10 “Inspection Days” are calculated by dividing the total MSHA on-site inspection hours 

for Authorized Representatives of the Secretary for certain types of inspection activities by five. 

History of Previous Violations: Violations Per Inspection Day (VPID); Repeat Violations Per 

Inspection Day (RPID), MSHA (last visited Feb. 4, 2019), https://arlweb.msha.gov/drs/ASP/ 

MineAction.asp. Any remainder amount increases the number of inspection days by one. Id. 

11 Respondent had previously violated sections 56.11001 and 56.11002 within the 

preceding 15 months. (Exs. S–14, S–15 at 1) This had no effect on the penalty points for the 

RPID (“Repeat Violations Per Inspection Day”) column since the repeat aspect of the history 

criterion applies only after a nonmetal mine operator has received 10 violations and has accrued 

a minimum of six repeat violations. 30 C.F.R. § 100.3(c)(2). 

41 FMSHRC Page 44
Oil-Dri Prod. Co., 40 FMSHRC 876, 891–92 (June 2018) (ALJ). In that case, the timing of the 

inspection a day earlier or later would have made a significant difference in the VPID score. Id.

at 891. That discrepancy arose from the timing of a series of five final orders, which were added 

to the violation history table the day immediately preceding the inspection. Id. at 892. I found 

that those conditions created a “perfected storm” scenario for a short-lived spike in the VPID and 

held that the “process cannot be deemed fair in the rare instance where the mere order of 

operations or the random timing of an investigation—issues completely outside the control of the 

mine operator—yields vastly different results.” Id. 

 The unique circumstances in Oil Dri that warranted lowering the VPID score are not 

present in this case. While I am sympathetic to the struggles of small operators like Cormier 

Construction, the continued issues at the Church Quarry are concerning. The VPID formula was 

designed to address continued and numerous violations over time. It has done so appropriately 

here. 

 Respondent is a small operator. (Tr.67:6–11) The Church Quarry, Respondent’s only 

mine, had 3,131 annual hours worked (Ex. S–14), with only two full-time employees in the 

spring. (Tr.67:8–9) Cormier Construction is a solely owned corporation with one shareholder. 

(Tr.67:19–21) Although the Secretary’s Exhibit A allocated zero penalty points for Mine Size 

and Controller Size for all three citations, I find the particular facts here justify a slight reduction 

in the penalty.12

Respondent asserts that the Secretary’s proposed penalty would create significant 

financial hardship (Resp’t Br. 1; Tr.67:4–18; 68:10–11), and it has provided tax information 

regarding its ability to pay. (Ex. R–3) However, upon my questioning at hearing, Respondent 

admitted that the company would continue to operate if the Secretary’s full proposed penalty 

were assessed. (Tr.68:5–11) As the Secretary argued in his brief, mere financial discomfort is 

not a sufficient reason to reduce the penalty. 

Taking into account Cormier Construction’s small size, its history of violations, the effect 

of the penalty on its ability to continue in business, its good faith efforts to abate the violations, 

its negligence, and the gravity, including the modification to Citation No. 9311390, as well as 

considering all the facts and circumstances set forth above, I assess a civil penalty of $800.00 for 

Citation No. 9311390 and $1,600.00 each for Citation Nos. 9311393 and 9311394, for a total 

penalty of $4,000.00. 

 12 Table IV shows the smallest operator size as measured by annual hours worked are 

those operators with 0–50,000 hours. 30 C.F.R. § 100.3(b) (Table IV). This means, theoretically, 

an operator with nearly 16 times as many hours worked (i.e., 50,000 hours) is treated identically 

as Cormier Construction (3,131 hours) per the Secretary’s regulation. 

41 FMSHRC Page 45
VI. ORDER

Based on the above discussion, it is hereby ORDERED that Citation No. 9311390 be 

MODIFIED to reduce the severity of injury or illness from “fatal” to “permanently disabling.” 

IT IS FURTHER ORDERED that Respondent pay a total penalty of $4,000.00 within 

forty (40) days of the date of this order.13

/s/ L. Zane Gill 

L. Zane Gill

Administrative Law Judge

Distribution: 

James L. Polianites, Esq., U.S. Department of Labor, Office of the Regional Solicitor, JFK 

Federal Bldg, 15 New Sudbury St, Ste E375, Boston, MA 02203-0018 

Mark Cormier, Cormier Construction & Granite, P.O. Box 97, Deer Isle, ME 04627-0097 

13 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.

41 FMSHRC Page 46
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 

February 11, 2019 

DECISION APPROVING SETTLEMENT UNDER SEAL 

ORDER ENFORCING SETTLEMENT AGREEMENT 

Before: Judge Simonton 

 This case is before me pursuant to section 105(c)(3) of the Federal Mine Safety and 

Health Act of 1977, (“Mine Act”), 30 U.S.C. § 815(c)(3). Pete Tartaglia, Jr. (“Tartaglia” or 

“Complainant”) alleges that Freeport-McMoran Bagdad Inc., (“Freeport” or “Respondent”) 

violated the Mine Act when it terminated him. Tartaglia has since been reinstated and is seeking 

transfer. 

 A hearing was held on September 19-20, 2018 in Phoenix, Arizona. The parties reached a 

settlement at the hearing and read the terms of the agreement into the record. The parties also 

agreed to confidentiality as to its terms. Respondent produced a written version of the settlement 

which Tartaglia reviewed and, in fact, signed. In the following months, however, Complainant 

allegedly encountered other conflicts at the mine and determined that he no longer wished to and 

was no longer required to adhere to the terms of that agreement. The court held a number of 

conference calls to address Tartaglia’s concerns, none of which were successful. 

 On January 14, 2019, this court issued an Order presenting Tartaglia with two options. 

He could either provide the court with proof that he complied with the settlement terms or he 

could notify the court and Respondent within seven days of that Order that he wished to submit 

post-hearing briefs and pursue a decision on the merits. Tartaglia did not comply with that Order 

and did not notify Respondent or the court of his choice. 

 On January 25, 2019, Freeport submitted a motion to enforce the settlement agreement as 

stated on the record and to file that portion of the hearing transcript under seal. Respondent’s 

Motion to Enforce Settlement Agreement and Motion to File Hearing Transcript Under Seal, at 

2-3. Freeport contended that under Arizona state law, Freeport’s offer and consideration and 

Tartaglia’s recognition and assent to the settlement terms on the record rendered the agreement 

PETE TARTAGLIA, JR., 

 Petitioner, 

 v. 

FREEPORT-MCMORAN BAGDAD INC., 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. WEST 2018-0362-DM 

MSHA Case No. RM-MD-18-07 

Mine: Freeport-McMoRan Bagdad Inc. 

Mine ID: 02-00137 

41 FMSHRC Page 47
enforceable. Id. at 3. Freeport thus argued that the court should approve the settlement agreement 

and enforce its terms as stated in the record. Id. 

 The court acknowledged receipt of Freeport’s motion and allowed Tartaglia to respond as 

to why the settlement should not be approved and this case dismissed. On February 1, 2019, 

Tartaglia filed a brief response that reiterated that he would not comply with the settlement 

terms. Tartaglia cited alleged “fraudulent criminal activity” that occurred after the agreement 

was reached on the record. Complainant’s Response to Order of Acknowledgement, at 2. 

 I find that the agreement on the record is valid and should be enforced accordingly. The 

Commission and its Judges have the authority to enforce settlement agreements and to reopen 

those cases in instances of breach. Morealle v. Veris Gold USA. Inc., 38 FMSHRC 410, 413 

(Mar. 2016); Johnson v. Lamar Mining Co. et. al., 10 FMSHRC 506, 508-09 (Apr. 1998). In 

order to approve a settlement motion, the record must reflect and the Commission should be 

assured that the motion in fact represents a genuine agreement between the parties. Tarmann v. 

Int’l Salt Co., 12 FMSHRC 1291 (June 1990) (ALJ) (citing Peabody Coal Co., 8 FMSHRC 

1265, 1266 (Sept. 1986)). The validity of a settlement agreement is generally governed by the 

applicable contract law of the place where it was made, in this case Arizona. Golden v. 

California Emergency Physician Med. Grp., 782 F.3d 1083, 1086-87 (9th Cir. 2015); United 

Commercial Ins. Serv., Inc. v. Paymaster Corp., 962 F.2d 853, 856 (9th Cir. 1992); Eastern 

Associated Coal Corp., 19 FMSHRC 659, 659-60 (Mar. 1997) (ALJ). Under Arizona law, 

settlement agreements made orally in court are enforceable. See Robertson v. Alling, 237 Ariz. 

345, 346 (2015). The state requires a valid enforceable contract to consist of an offer, an 

acceptance, consideration, and sufficient specification of terms. See, e.g., Savoca Masonry Co. v. 

Homes & Son Const. Co., 112 Ariz. 392, 394 (1975). 

 Here the parties’ agreement on the record constituted a valid settlement contract. The 

record unambiguously reflects that Freeport and Tartaglia willingly entered into an agreement to 

settle the matter. Freeport offered explicit terms in exchange for a general and specific release of 

claims, which shows offer and consideration. Ex. 1. Tartaglia accepted the offer after a full 

explanation of those terms. Id. There is no evidence that Tartaglia misunderstood the terms of the 

agreement or declined to accept any of those terms on the record. He subsequently reviewed and 

signed a written version of the same agreement. There is likewise no evidence that Freeport 

misrepresented or failed to comply with its responsibilities under the settlement. The parties 

therefore entered into a valid and mutual settlement agreement.

 Tartaglia did not provide any valid legal justification to void or otherwise set aside the 

agreement. Complainant’s allegations of “fraudulent criminal activity” are vague and unrelated 

to the specific terms of the settlement agreement and to the events that prompted his initial 

section 105(c)(3) complaint. The record on this matter is closed and the court will not accept new 

evidence regarding those allegations. The alleged facts behind Complainant’s allegations are 

hence not before the court in any capacity, and the court will not reach those issues in a decision 

on the merits. 

 The court therefore finds no good cause to set aside the settlement that Freeport and 

Tartaglia reached on the record. Valid settlement agreements are binding and must be fulfilled in 

41 FMSHRC Page 48
good faith. The court will not set aside a settlement or excuse noncompliance and permit a party 

to tarnish the integrity of the settlement process on a whim. Simply because Tartaglia no longer 

wishes to adhere to the agreement he made does not mean that he is no longer required to do so. 

WHEREFORE, the Respondent’s motion for approval of the settlement is GRANTED. 

It is ORDERED that Freeport and Tartaglia comply with the terms of the settlement agreement 

entered into the record, and this case is DISMISSED. The agreement made on the record is to be 

placed under seal with the understanding that it may be subject to review by the Commission. 

 /s/ David P. Simonton 

 David P. Simonton 

 Administrative Law Judge 

Distribution: (U.S. First Class Mail and e-mail) 

Pete Tartaglia, Jr., 8340 N. Thornydale Road, #209 Suite 110, Tucson, AZ 85741 

Kristin R.B. White, Benjamin J. Ross, Jackson Kelly, PLLC, 1099 18th Street, Suite 2150, 

Denver, CO 80202 

41 FMSHRC Page 49
 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

February 13, 2019 

 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

NORTHSHORE MINING COMPANY, 

 Respondent. 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

MATTHEW ZIMMER, employed by 

NORTHSHORE MINING COMPANY, 

 Respondent. 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

ROGER PETERSON, employed by 

NORTHSHORE MINING COMPANY, 

 Respondent. 

 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 2017-0224 

A.C. No. 21-00831-434118 

Docket No. LAKE 2017-0248 

A.C. No. 21-00831-435608 

Mine: Northshore Mining Company 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2018-0141 

A.C. No. 21-00831-457528 A 

Mine: Northshore Mining Company 

 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2018-0146 

A.C. No. 21-00831-457527 A 

Mine: Northshore Mining Company 

41 FMSHRC Page 50
 

DECISION AND ORDER

Appearances: Barbara M. Villalobos, U.S. Department of Labor, Office of the Solicitor, 

Chicago, Illinois, for Petitioner; 

 R. Henry Moore, Arthur M. Wolfson, Jackson Kelly PLLC, Pittsburgh, 

Pennsylvania, for Respondent. 

Before: Judge Miller 

 These cases are before me upon petitions for assessment of civil penalties filed by the 

Secretary of Labor pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 815(d) (“the Act”). These dockets involve a citation and an order issued to 

Northshore Mining Company (“Northshore”) pursuant to Section 104(d) of the Act with 

originally proposed penalties totaling $199,600.00. The alleged violations involve a failure to 

maintain a walkway in good condition and a failure to barricade the walkway from access by 

miners. MSHA also seeks to impose personal liability under section 110(c) of the Mine Act, 30 

U.S.C. § 820(c), against two section managers, Matthew Zimmer and Roger Peterson, for the 

failure to maintain the walkway. The parties presented testimony and evidence regarding the 

citations and orders at a hearing held in Duluth, Minnesota. 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. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The Northshore Mining Company is an iron ore mine located in Lake County, Minnesota. 

The parties have stipulated that Northshore 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. ¶¶ 

2-4. 

This case involves an outer east walkway of the 62/162 conveyor gallery at the mine’s 

pellet processing plant in Silver Bay, Minnesota. The facility processes iron ore pellets for use in 

steel production. The conveyor gallery is a covered gallery with two conveyors, a primary 

walkway between the two conveyors, and an outer walkway on each side. The citations here 

involve the east outer walkway. 

The citations at issue stem from an accident at the mine on September 7, 2016 that 

resulted in the failure of the elevated east outer walkway. The accident involved a contract 

miner, Evander King, who testified at hearing on behalf of the Secretary. King was employed in 

2016 by VanHouse Construction as a contractor at the Northshore processing facility. He 

primarily performed clean-up work at the mine with a number of other contractors. He and the 

other contractors were supervised by John Gornik, a Northshore employee responsible for 

coordinating the day crew, and Dennis Lehtinen, a senior operations technician employed by 

Northshore. Tr. 47, 61, 480. 

41 FMSHRC Page 51
 

On September 6, 2016, the VanHouse contract crew checked in with Gornik at the 

beginning of the shift to receive work orders for the day. Gornik informed King and two other 

VanHouse employees that they would be doing clean-up on the 62 conveyor ramp. Gornik and 

the VanHouse miners then went to the office of Roger Peterson, the section manager for 

operations on the “hot side,” which includes the conveyor gallery. Peterson informed the miners 

that they should use fall protection to work on the walkway because there was a danger of 

slipping on the pellets or getting caught in the moving conveyor. Lehtinen, the Northshore 

employee who frequently acted as a liaison between Gornik and the contract workers, walked 

with the VanHouse workers to the transfer tower at the top of the 62/162 conveyor. He 

demonstrated how to put on the safety harnesses and then demonstrated how to wrap a canvas 

wrap with D-rings onto a vertical support beam and use it to tie off with the lanyard from the 

harness. Lehtinen told the contractors to work their way down the walkway and keep tying off to 

successive beams. Tr. 50, 486. Because of the dusty and steamy conditions, along with the width 

of the walkway, only one of the three contractors could work on the walkway at a time. 

Therefore, the contractors rotated the duty every fifteen minutes and the two not on the 

walkway waited in the transfer tower. King explained that the miners worked on the east 

walkway, hosing the pellets and mud down toward the bottom of the ramp. The walkway was 

covered in 6 to 12 inches of muddy pellets and the floor was not visible to the miners. They 

clipped onto a D-ring on the anchor strap wrapped around a beam, cleaned until there was not 

enough water pressure to move the pellets, then unclipped and moved the anchor strap farther 

down the walkway. Tr. 51. The contract miners could not see the walkway under the 

accumulated pellets, were not aware of any problems with the walkway, and did not see any 

hazard or warning signs on the walkway. Tr. 69. 

King explained that while moving up and down the outer conveyor walkway, there were 

times between support beams when he was not tied off. Lehtinen, however, testified at hearing 

that he had shown the miners how to use two lanyards in alternation in order to stay tied off the 

entire time. Lehtinen also claimed that the miners used the process in reverse to remain tied off 

while walking back up the walkway to the transfer tower. Tr. 487. King disagreed and explained 

that the miners were not tied off the entire time because they had to unclip their harnesses to 

move down the walkway when they reached the end of the lanyard. He did not recall being told 

that he could be tied off continuously by using a lanyard borrowed from one of the other miners, 

and denied that Lehtinen had instructed them to be clipped on the entire time. Tr. 52, 77. Instead, 

King stated in an interview with an MSHA inspector that when the miners walked up the ramp to 

switch places, they were not tied off. Lehtinen indicated that he did not observe King or the other 

contractors while they were working on the walkway, and that he had told them only that they 

should be tied off, assuming they would understand that they needed to be tied off the entire 

time. Lehtinen also explained that he was not told directly why the miners needed to be tied off, 

but he assumed it was because of the slip hazard presented by the pellets and the slope of the 

walkway. Tr. 492. However, in an interview with Inspector Norman, Lehtinen observed that 

Gornik told him to have the workers tie off both because of the pellets and because of concerns 

over bad decking. Tr. 107. Norman also interviewed Gornik, who confirmed that the workers 

were required to tie off because of the bad floor. Tr. 125. However, at hearing, Gornik believed 

the fall protection was required because of the slip hazard from the pellets. Tr. 129, 479. Given 

the contradiction in testimony, I find that both Gornik and Lehtinen understood that the decking 

41 FMSHRC Page 52
 

was bad on the east walkway and asked the miners to tie off for that reason, along with the slip 

hazard. I also credit King’s testimony that the three contract miners did not understand that they 

were to be tied off the entire time while working and while walking off the east walkway, 

primarily because they were told only that there was a slip hazard on the pellets. I find that there 

were times when they were not tied off while standing or walking on the conveyor walkway. 

King and the other VanHouse workers spent the remainder of the shift on September 6 

cleaning the east outer walkway and completed about half of the cleaning work. The following 

day, on September 7, the VanHouse employees were given other work assignments and, when 

those were complete, they returned to the east walkway to resume cleaning the bottom half of the 

walkway. On one of King’s first turns at hosing the pellets down the walkway, he heard a loud 

bang and felt the building begin to shake. Sheets of caked mud and buildup from around the 

structure began to fall on him. King, who was standing on pellets, crouched down to protect 

himself from the falling material. When the shaking stopped, there was a hole in the floor of the 

walkway directly in front of him. He recalled looking down and seeing a front-end loader below. 

He also recalled seeing the outer walls and conveyor buckling. He believed he was about 45 or 

50 feet above ground when the incident occurred and that he would have been seriously injured 

if he had not been tied off. King waited to be certain that the shaking had stopped, then unhooked 

his fall protection and ran back up the walkway to the transfer tower. Tr. 59. 

King met with the other contractors in the transfer tower and they were joined by Matt 

Bailey, a maintenance technician employed by Northshore. Bailey told King he never should 

have been working on the walkway. He believed the conveyor should have been shut down, and 

also stated that the walkway had been in terrible condition for years and that it had been reported 

to management. Bailey then drove the contractors to the breakroom in the pelletizer. There, King 

discussed the accident with several other miners. Steven Floen, a second maintenance technician 

employed by Northshore, became angry and replied that he had been telling the people upstairs 

about this problem for a long time. Tr. 61. Floen told King he had carried heavy equipment on 

that ramp many times and was lucky it hadn’t collapsed on him. The shaking King experienced 

was due to a fall or buckling of the conveyor walkway, along with a broken beam and bolts that 

were sheared. 

King provided an incident report to the company that day describing what had happened. 

At first report, King did not believe he had not been injured, but later discovered that he had 

incurred a spinal cord contusion, which required pain medication and physical therapy. King also 

suffered from mild post-traumatic stress disorder and sleep disturbances after the accident. Tr. 

71-73. 

The next day that King was scheduled to work, he met with Gornik to receive his work 

orders. King recalled that Gornik was nervous, and told King that he had been discussing the 

incident with other miners. Gornik explained that people at the company had known about the 

potential for a collapse and had been hoping that removing the weight of the pellets would allow 

the ramp to last longer before it had to be replaced. At hearing, Gornik denied making any such 

statement, claiming instead that he had no knowledge that the walkway was in danger of 

collapsing and would not have sent workers onto the outer walkway if he had. Tr. 475. 

41 FMSHRC Page 53
 

As a result of the accident, King filed a hazard complaint with MSHA on September 8, 

2016, and Inspector Terrance Norman was assigned to investigate. His investigation resulted in 

the issuance of the citation and order at issue here, and was the basis for the 110(c) investigation 

regarding Peterson and Zimmer. Norman has been a mine inspector since 2014, and previously 

worked for 20 years in the mining industry. His investigation into the hazard complaint and the 

incident involving King lasted approximately eight weeks. He conducted interviews with 

Northshore employees, management, contract laborers, the contract safety director, and the 

owner of the contracting company. Tr. 98. He also worked with a special investigator from 

MSHA and an engineer from the MSHA technical support division regarding the safety of the 

east walkway. 

Norman determined that concerns about the walkway had been ongoing for several years. 

Daniel Scamehorn, a structural engineer with Northshore, testified that he first learned of a 

problem with the 62/162 gallery in 2013. An engineer supervised by Scamehorn submitted a 

work order in October 2013 reporting that concrete panels on the underside of the gallery had 

been falling. The work order mentioned that steel plates had been installed sometime earlier 

under the center walkway, but that the two outer walkways had not been reinforced and thus 

needed repair. Sec’y Ex. 18. Scamehorn testified that around the same time, the company had to 

do repairs on another conveyor at the mine, the No. 2, which had a similar problem with concrete 

falling from the bottom of the conveyor. The company prioritized the work on the No. 2 

conveyor and put the repairs for the 62/162 on a project list to be considered in the future. Tr. 

339. 

In November 2014, another work order concerning a walkway in the 62/162 gallery was 

initiated by Jason Betzler, then the hot side maintenance planner at the mine. Betzler noticed 

cracking in the concrete and observed that in places along the walkway, the concrete had settled 

up to four inches. Resp. Ex. A. Betzler testified at hearing that the work order was in reference to 

the center walkway and did not concern the outer walkways. Upon receiving the work order, 

Scamehorn reviewed the maintenance records for the 62/162 gallery, and learned that steel plates 

had been installed under the center walkway in 2010. Scamehorn also examined the center 

walkway himself, and observed that it was cracked and that the edges of the walkway were 

settling. Scamehorn believed that the middle of the walkway was being heaved upward by 

material trapped by the steel plates. He did not examine the outer walkways. Subsequently, 

Scamehorn contacted the engineering firm Krech Ojard and Associates, Inc. (“KOA”) to contract 

with the firm to evaluate the condition of the 62/162 conveyor walkway. An engineer from KOA 

visited the mine and conducted a visual inspection of the conveyor gallery. As a result, a report 

was prepared and sent to Scamehorn in June 2015. Tr. 324-25; Sec’y Ex. 12. 

The KOA report was introduced as Secretary’s Exhibit 12. As part of their work, KOA 

engineers reviewed structural design documents for the gallery, and learned that the center and 

outer walkways were constructed of 2 5/8 inch perlite panels reinforced with wire mesh fabric 

and a 1 1/2 inch plain concrete topping. KOA structural engineer Patrick Leow visited the gallery 

to conduct the evaluation for KOA. He visually inspected the gallery from the ground level 

inside and outside the gallery, then walked the center and east walkways and a portion of the 

west walkway. He observed cracking and heaving on the outer walkways. Tr. 367. 

41 FMSHRC Page 54
 

Following the examination of the walkway, an engineer-in-training from KOA prepared 

the written report that was submitted to the mine. The report states that Leow observed damage 

over large areas of the walkway slab underside, which included spalled concrete, delaminated 

concrete, debonded reinforcement, and corroded reinforcement. Sec’y Ex. 12. Leow clarified at 

hearing that this description referred to the perlite panels forming the underside of the walkway 

and did not refer to the concrete topping. Tr. 366. The damage was observed on the outer 

walkways but it was not visible on the center walkway because of the steel plate reinforcement 

on that walkway’s underside. The report further states that the topping slab was in poor condition 

with large surface cracks and heaving, and that it was in need of replacement. The engineers 

believed that the damage was caused by the freeze-thaw cycle and water seeping into the space 

between the perlite and the concrete. The report also includes an evaluation of the load rating for 

the center walkway. KOA found that the perlite slabs, as well as the concrete, were compromised 

and provided little to no structural support. Thus, the report found that the center walkway was 

“potentially reliant upon the structural capacity of the steel plate reinforcing alone.” With respect 

to the outer walkways, the report found that the concrete was damaged but lacked the steel 

panels. The report states that without steel plate reinforcing, the outer walkways “may not 

contain adequate structural support for the use of these walkway areas.” Sec’y Ex. 12. Therefore, 

the outer walkways “cannot be found to be structurally adequate for use.” Id. The report 

concludes with the recommendation that Northshore “restrict access to these [outer] walkways as 

they are not safe for personnel to be using until a repair has been completed.” Id. KOA also 

recommended that the company prohibit use of a heavy equipment cart on the center walkway, 

and limit the use of that walkway to personnel performing minor maintenance activities due to 

the tripping hazard from cracked concrete. The report recommends that Northshore replace the 

walkway slabs. 

After receiving the report, Scamehorn discussed the findings with Leow, the structural 

engineer from KOA. Based upon their conversation, Scamehorn supposed that the condition of 

the gallery was not as severe as the report had indicated. Scamehorn believed that Leow’s main 

concern with the gallery was the cracking on the top concrete slab of the outer walkways, which 

created the potential for a “very finite failure,” meaning a small foot hole, if the cracks were to 

align a certain way. Tr. 328-29. Leow gave the impression that there was a potential for a small 

hole, but not a hole large enough for a person to fall through, nor did he indicate that it was 

necessary to completely prohibit access to the outer walkways. Scamehorn understood that 

access to the outer walkways should be limited to maintenance activities, with no casual traffic 

permitted. Tr. 330. 

Scamehorn conveyed the KOA report, along with information from the conversation with 

Leow, to Matthew Zimmer and Roger Peterson, the section managers of hot side maintenance 

and operations. Scamehorn explained that the potential issue with the walkways was a finite 

failure in the form of a foot hole. While there was cracking visible, it was nothing that he 

believed formed any present concern. Based on that information, the three decided to require fall 

protection on the outer walkways to mitigate any risk of a person falling through to the ground. 

Scamehorn said that he believed it to be a conservative approach because there was no actual risk 

of a person falling through to the ground. The three did not discuss installing warning signs or 

barriers on the outer walkways. 

41 FMSHRC Page 55
 

In November 2015, the mine was idled due to economic conditions in the steel industry, 

and most of the workforce was laid off. Workers were rehired and the plant was restarted 

beginning in March 2016. Tr. 552. Around that time, Erik Ollila, a maintenance supervisor, 

received a report from one of the maintenance workers that material was falling from the 

underside of the 62/162 gallery. Ollila went to look at the gallery and observed that there were 

pieces of perlite on the ground that had fallen from the gallery. Ollila directed miners to install 

jersey barriers in the areas where material was falling from above so that miners traveling under 

the walkway would not be hit by falling debris. However, the roadway under a portion of the 

conveyor walkway was not blocked off. Around the time the jersey barriers were installed, 

Northshore discontinued a practice of using front-end loaders to knock icicles down from under 

the gallery during the winter months. Tr. 127. There is no evidence of further maintenance or 

safety measures taken to address the condition of the conveyor walkways. 

Inspector Norman interviewed several miners at Northshore to determine how the east 

outer walkway was used prior to the accident in September 2016. Steve Floen, a miner employed 

as a maintenance mechanic at Northshore, informed Norman that he had worked in the gallery 

the week prior to the accident, changing idlers on the conveyor. He stated that the miners were 

afraid to walk down the outer walkways, and instead climbed over the conveyors to reach them. 

He explained that while changing the rollers there was not always a place to tie off, so sometimes 

they worked on the outer walkways without being tied off. Tr. 116, 196. Floen claimed that he 

had brought these issues to the attention of his supervisor, Erik Ollila, as well as to Roger 

Peterson. Inspector Norman confirmed that the central walkway rather than the outer walkways 

was the usual route for travel for maintenance work, but some limited access to the outer 

walkways was necessary. 

As part of his inspection, Norman took photographs of the site where the accident 

occurred. The photos were introduced as the Secretary’s Exhibit 7. A photograph of the exterior 

of the gallery taken from the mine road shows that about halfway down the length of the gallery, 

the roof of the gallery had settled and a piece of siding was missing. Sec’y Ex. 7, 00015. A 

photograph taken closer to the area where the siding is missing shows that the upper and lower 

beams on the gallery have settled significantly. Sec’y Ex. 7, 00019. Norman determined that the 

failure point of the walkway was at a height of 50 feet and was located above the roadway 

through the gallery. Norman also took photographs of the underside of the east outer walkway, 

which show that the perlite had deteriorated to the point of falling, and the internal wire mesh of 

the floor was exposed. Sec’y Ex. 7, 00086, 00088. Photographs of the west outer walkway also 

show deteriorating perlite. Sec’y Ex. 7, 00097. 

An engineer from MSHA Technical Support, Michael Superfesky, inspected the mine 

after the accident and took photographs. One of his photographs taken from a manlift shows 

mesh in one area of the walkway. Sec’y Ex. 7, 000921. There is no perlite in the mesh as there 

should be; instead, the floor is visible through the mesh. There is also a significant crack in the 

concrete, which Superfesky believed had been there for some time. Tr. 247-48. Another 

photograph shows the underside of the walkway 15 to 30 feet up the walkway from where the 

accident occurred. Sec’y Ex. 7, 000950. The mesh is showing through in this part of the walkway 

as well, and much of the perlite is missing. Sec’y Ex. 7, 000950. Superfesky noted that the upper 

layer of concrete showing through the mesh was stained red from taconite pellets, indicating that 

41 FMSHRC Page 56
 

it had been exposed for some time. Tr. 251. Superfesky explained that the mesh broke easily, 

either during or before the accident, and thus must have been corroded. Tr. 254. In Superfesky’s 

view, the weight of the pellets as they were being moved with high compression water added to 

the cause of the failure of the walkway. 

Following the accident, David Franseen, an engineer at KOA, visited the mine site to 

investigate the accident and assist with remediation. He took photographs of the gallery over the 

course of several weeks. Respondent’s Exhibit M3 illustrates the east side of the gallery after the 

exterior cladding had been removed. There are two vertical support beams with a diagonal beam 

between them. The diagonal beam is broken and no longer connected to the left beam. Resp. Ex. 

M3. The photograph also shows that a horizontal board used to attach the cladding is broken, and 

bolts are sheared in the lower right hand corner at the connection point of two horizontal beams. 

Franseen believed the horizontal beam had moved significantly during the accident. 

Respondent’s Exhibit M1 shows the piece of steel that the walkway would have been resting on, 

known as the “clip angle.” Tr. 526-27. It is bent downward to an angle of approximately 48 

degrees. Resp. Ex. M1. Franseen opined that the pellets that were being hosed down the 

walkway were a component of the failure of the beam and the walkway. The entire conveyor 

structure was compromised and could no longer be used following the failure of the beam and 

the walkway in September 2016. 

 

A. Order No. 8897220 

Following his inspection, Inspector Norman issued Order No. 8897220 to Northshore for 

failing to maintain the 62/162 outer walkways in good condition. The Secretary alleges a 

violation of 30 C.F.R. § 56.11002, which provides that “[c]rossovers, elevated walkways, 

elevated ramps, and stairways shall be of substantial construction provided with handrails, and 

maintained in good condition. Where necessary, toeboards shall be provided.” 

The parties disagree as to whether the walkways were “maintained in good condition” 

prior to the accident on September 7, 2016. The Secretary argues that the walkway had extensive 

cracking, spalling concrete, delaminated concrete, and debonded and corroded reinforcements, 

which diminished the carrying load strength. The walkways had been deteriorating over a long 

period of time and, given the conclusions of the KOA report, the walkway was not safe. The 

mine operator argues that the actual condition of the walkway was substantial and had been 

maintained. The condition of the perlite panels and concrete did not support the Secretary’s view 

that the walkway was not maintained. 

 Several expert witnesses testified regarding the condition of the east outer walkway. 

Michael Superfesky,1

 a civil engineer with MSHA Technical Support, testified for the Secretary. 

Superfesky visited the Northshore mine after the accident to determine the cause of the collapse 

and whether the structure was safe for continued use. Superfesky discussed the accident with 

Inspector Norman and mine personnel, and inspected the gallery, primarily the outside from a 

manlift and from the ground. Superfesky observed that the east outer walkway was about four 

 1. Superfesky holds a master’s degree in civil engineering with an emphasis in structural 

engineering. Tr. 234. He is a licensed professional engineer. He has conducted around 28 

accident investigations for MSHA. 

41 FMSHRC Page 57
 

inches thick and was composed of two layers. The bottom layer was a 2.6-inch layer of perlite 

containing 10-gauge, bi-directional wire mesh. Above the perlite was a 1.6-inch layer of 

concrete. Superfesky observed that the mesh in the perlite layer had detached or de-bonded from 

the perlite. He explained that the mesh is essential to the structure because it provides tensile 

strength, which is lacking in concrete. That tensile strength was significantly diminished when 

the mesh de-bonded from the perlite. Superfesky estimated that the de-bonded mesh had reduced 

the load-carrying capacity of the walkway by as much as 50 percent. Superfesky also observed 

cracking or spalling in the top layer of concrete in isolated areas as a result of the freeze/thaw 

cycle. Superfesky noted that the structure was old and would have been through many 

freeze/thaw cycles. He explained that with the loss of the tensile strength, the concrete would be 

distressed and the cracking would accelerate. 

Superfesky concluded that prior to the accident the walkway was structurally deficient for 

foot traffic. He reviewed the mine’s maintenance records and found that there had been no 

maintenance to the walkways other than to add steel plates to the center walkway. He also 

reviewed the KOA report and observed that the KOA engineers had noted many of the same 

indicators of deterioration in 2015 that he noted in the fall of 2016. He interpreted the KOA 

report as recommending that no one access the outer walkways until repairs were made. The 

KOA report referred to a strength of 3,000 psi for the top concrete layer and Superfesky 

explained that such strength was insufficient to support the weight of a person along with the 

weight of the large amount of taconite pellets observed on the walkway. 

Superfesky explained that the east walkway was in deteriorating condition, and that the 

walkway failed due to its condition. Contrary to the assertion of Northshore, the problem with 

the walkway was not caused by the beam that broke but, instead, had the walkway been 

maintained, it would not have failed. I find Superfesky to be a credible and knowledgeable 

witness. His opinion is based on sound scientific principles and sound reasoning. He 

demonstrated the various ways in which the walkway was compromised through the photographs 

in Secretary’s Exhibit 17. He also testified that fall protection does not completely mitigate the 

fall; the use of fall protection can result in a number of serious, if not fatal, injuries. 

Patrick Leow,2

 one of the engineers who prepared the 2015 KOA report, testified on 

behalf of Northshore about the condition of the walkway at the time of the report. Leow’s 

testimony implied that he did not believe that the walkway was in as bad of a condition as his 

report had indicated in 2015. That KOA report explained that the outer walkways in the gallery 

“cannot be found to be structurally adequate for use.” Sec’y Ex. 12. Leow explained that it is 

difficult to calculate the load carrying capacity of concrete, and this statement simply meant that 

he could not provide calculations to definitively show the load carrying capacity of the 

walkways. The report also recommended “that Northshore Mining restrict access to these [outer] 

walkways as they are not safe for personnel to be using until a repair has been completed.” Sec’y 

Ex. 12. Leow testified that he intended that Northshore limit access to the walkways to 

authorized personnel only, and not that the mine completely prohibit use of the walkways. He 

stated that his primary concern was that excessive cracks could lead to deformation of the 

 2. Leow holds a master’s degree in civil engineering and is a licensed professional 

engineer. He works in structural engineering. Tr. 362. His testimony was not offered as that of an 

expert witness. 

41 FMSHRC Page 58
 

walkway or that small chunks could fall out, and not that someone would fall through the 

walkway. While the deterioration of the walkways would continue, it would be slow, according 

to Leow. Nevertheless, he concluded that there was some risk with the outer walkways and that 

mitigation was necessary. He proposed limiting use of the walkways to reduce exposure and also 

suggested that the mine provide protective measures for people who did use the walkway. I do 

not find Leow to be a credible witness given that his testimony in 2018 departs dramatically from 

the written conclusions of the 2015 KOA report. 

A second engineer with KOA, David Franseen,3 provided expert opinion as to the cause 

of the September 7 accident. Franseen testified that due to the cleaning work being done at the 

time of the accident, there was a significant amount of taconite pellets on the walkway, more 

than the walkway was designed to carry. Resp. Exhibit O. Franseen determined that the 

concentrated weight of the pellets caused the diagonal beam in the gallery to fracture. The 

fracture of the beam then caused one of the vertical beams in the gallery to be displaced 

downward. Id. The vertical displacement of the beam created an increased vertical load on the 

clip angle, a piece of steel below the concrete and perlite of the walkway. These forces caused 

the clip angle to bend and rotate away and the bolts of the walkway support beam to shear off. 

With the left edge of the walkway no longer supported, the concrete and perlite portions fell. 

Franseen stated that the concrete portion was mainly intact with no significant holes when it was 

removed after the accident. He believed the walkway would have failed as a result of the beam 

failure even if it had been in brand new condition. He acknowledged that the perlite was 

deteriorating, but stated that the perlite is primarily used during the construction stage as a form 

to pour the concrete into and is not intended to last. Franseen explained, that in addition to the 

mesh in the perlite layer, there was also mesh reinforcement in the concrete layer providing 

additional strength to the walkway. Franseen’s ultimate conclusion was that the walkway was in 

fact capable of supporting more weight than the primary structure of the gallery. Thus, he 

believed that the weight of the taconite pellets on the walkway led to the failure of the beam 

rather than to the failure of the walkway. Tr. 539. The Secretary suggests the opposite, that the 

weight of the pellets caused the walkway to fail, resulting in the failure of the beam. In any 

event, the failure of the beam is not definitive evidence of the condition of the walkway itself. 

Instead, I rely on the KOA report, along with eye witness testimony regarding the condition of 

the walkway. 

 

The issue here is whether the elevated walkway, specifically the east side walkway of the 

conveyor, was maintained in good condition. There is ample evidence to demonstrate that it was 

not. Even if it had not failed during the moving of the taconite pellets, the evidence demonstrates 

that the walkway was not in good condition at the time of the KOA report in June 2015 and no 

action to correct the condition of the walkway had been taken up to the time the walkway failed 

in September 2016. Inspector Norman learned through interviews that the maintenance crew 

would not walk on the east walkway, but walked up the middle walkway and climbed over the 

conveyor to maintain it. Floen, one such maintenance worker, explained to Norman that they 

worked in that manner because the outside walkway was in bad condition. They understood that 

because of its bad condition, they should use fall protection when on the east walkway but they 

 3. Franseen holds a bachelor’s degree in civil engineering and has done work in concrete 

testing and the forensics of concrete. Tr. 512-13. He was accepted as an expert witness in the 

field of structural engineering. 

41 FMSHRC Page 59
 

were often not able to do so. Lehtinen explained that he learned from Gornik that workers must 

tie off on that outer walkway because the floor was bad. Most importantly, the KOA engineering 

report clearly indicates that the outer walkways were in bad condition and, at best, protective 

measures should be used when accessing the outer east walkway. 

The KOA report, Secretary’s Exhibit 12, indicates that the walkways were not safe for 

personnel to use until repaired. All of the evidence—the falling chunks of cement, the cracks, 

and the heaving, for several years—points to the fact the walkway was not maintained. 

Respondent argues that the fall protection requirement was a mitigating factor but fall protection 

is not a substitute for keeping the walkway in good condition. It may lessen an injury, but it does 

not prevent the walkway from being dangerous. Norman relied upon the findings in the KOA 

report in issuing the violation and specifically referred to the report’s conclusion that “the 

deteriorated condition of the conveyor walkway slabs is significant . . . access to the outer 

walkway slabs be restricted.” I find that there is substantial evidence to support the alleged 

violation. Further, I find that the violation was significant and substantial. 

Significant and Substantial 

The Secretary alleges that the violation was highly likely to result in fatal injury and was 

significant and substantial (“S&S”). An 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 addresses the likelihood of the occurrence of the 

hazard the cited standard is designed to prevent. Newtown Energy, Inc., 38 FMSHRC 2033, 2036 

n.8 (Aug. 2016). The Commission has explained that “hazard” refers to the prospective danger 

the cited safety standard is intended to prevent. Id. at 2038. For example, Newtown involved a 

violation of a standard requiring that equipment be locked out and tagged out while electrical 

work is being performed. Id. The Commission determined that the hazard was a miner working 

41 FMSHRC Page 60
 

on energized equipment. Id. The likelihood of the hazard occurring must be evaluated with

respect to “the particular facts surrounding the violation.” Id.; see also McCoy Elkhorn Coal 

Corp., 36 FMSHRC 1987, 1991-92 (Aug. 2014); Mathies, 6 FMSHRC at 4. At the third step, the 

judge must assess whether the hazard, if it occurred, would be reasonably likely to result in 

injury. Newtown, 38 FMSHRC at 2037. The existence of the hazard is assumed at this step. Id.; 

Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148, 161-62 (4th Cir. 2016). As with the 

likelihood of occurrence of the hazard, the likelihood of injury should be evaluated with respect 

to specific conditions in the mine. Newtown, 38 FMSHRC at 2038. Finally, the Commission has 

found that the S&S determination should be made assuming “continued normal mining 

operations.” McCoy, 36 FMSHRC at 1990-91. 

Inspector Norman explained that based upon his investigation, he concluded that using 

the outer walkways would result in an accident. The cited standard is designed to protect persons 

from having to walk in an area that is not maintained in good condition. The lack of such 

maintenance would result in any number of hazards, including a fall on the walkway, or a fall 

through any holes in the walkway. Given that the walkway was covered in mud and taconite 

pellets, the miners could not see the condition of the floor below and all accounts indicate that 

the walkway floor was in poor condition. The fact that the concrete was in poor condition, and 

that the walkway was covered in mud and pellets, both indicate a violation of the requirement to 

keep the walkway maintained in good condition. Each condition created a separate hazard. First, 

the pellets and mud contributed to a fall hazard in an area next to a moving conveyor. Second, 

the condition of the walkway created a hazard of material falling to the ground below, as well as 

uncertain footing and walking in the area with cracks and missing portions. Finally, the condition 

of the walkway would cause it to give way, causing the miner to fall 50 feet to the area below. I 

find it likely that all of these hazards were created in this instance and find further that each of 

the hazards is likely to result in a serious injury. 

Norman explained that if the floor gave way, a fall to the ground below would be fatal. 

Even if tied off, the miner would be jolted and strike his head. He could hit equipment below and 

injure his back or neck, or cement could fall and hit the miner. The use of fall protection, 

therefore, does not mitigate the seriousness of the injury. Nor is the hazard mitigated by the fact 

that the primary walkway was the center one, and not the east side walkway. Miners were often 

sent out into the area of the east walkway, and were not tied off. Certainly the crew on 

September 7 was only tied off a portion of the time, and King was fortunate that he was not more 

seriously injured. The standard is designed to keep walking areas in good condition to prevent 

fall hazards. Here, the hazard of falling was likely and a fall would result in a serious, if not fatal 

injury. The violation is properly designated as S&S. 

Negligence 

The Commission has recognized that “[e]ach mandatory standard ... carries with it an 

accompanying duty of care to avoid violations of the standard, and an operator’s failure to meet 

the appropriate duty can lead to a finding of negligence if a violation of the standard occurs.” 

A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining whether an operator met its 

duty of care, the judge must consider “what actions would have been taken under the same 

circumstances by a reasonably prudent person familiar with the mining industry, the relevant 

41 FMSHRC Page 61
 

facts, and the protective purpose of the regulation.” Newtown, 38 FMSHRC at 2047; Brody 

Mining, LLC, 37 FMSHRC1687, 1702 (Aug. 2015); U.S. Steel Corp., 6 FMSHRC 1908, 1910 

(Aug. 1984). 

The Mine Act places primary responsibility for maintaining safe and healthful working 

conditions in mines on operators, and they are thus expected to set an example for miners 

working under their direction. Newtown, 38 FMSHRC at 2047; Wilmot Mining Co., 9 FMSHRC 

684, 688 (Apr. 1987); see also 30 U.S.C. § 801(e). “Such responsibility not only affirms 

management’s commitment to safety but also, because of the authority of the manager, 

discourages other personnel from exercising less than reasonable care.” Wilmot, 9 FMSHRC at 

688. 

Reckless disregard is “the closing of the eyes to or deliberate indifference toward the 

requirements of a mandatory safety standard, which standard the (mine) should have known and 

have reason to know at the time of the violation.” United States v. Jones, 735 F.2d 785, 790 (4th 

Cir. 1984). The Commission has recognized that negligence is properly characterized as reckless 

disregard where a supervisor directs a miner into a situation knowing that the situation poses an 

immediate and appreciable risk to the safety of that miner. Lehigh Anthracite Coal, 40 FMSHRC 

273, 283-84 (Aug. 2018).

The Secretary alleges that the violation involved reckless disregard for the safety of 

miners. The Secretary bases his argument on the fact that Scamehorn understood there could be a 

localized failure of the walkway and that both Peterson and Zimmer, agents of the operator, were 

aware of the deteriorated condition of the walkway and took no reasonable steps to correct the 

condition. Northshore argues that the negligence was lower because the mine made reasonable 

efforts to address the safety hazard by requiring miners to wear fall protection. The Secretary 

believes the fall protection measures were “wholly inadequate,” and did not mitigate the 

negligence in this case. 

Northshore received the engineering report from KOA in June 2015, after it had received 

a number of complaints about the condition of the outer walkways on the 62/162 conveyor. 

There was no indication that anything was done to shore up or otherwise repair the aging outer 

walkways. Steel reinforcement had been installed to support the center walkway, but the outer 

walkways did not receive such reinforcement. The center walkway was the primary access to the 

conveyor and was used most often. Nonetheless, miners were required to use the east outer 

walkway and to work on that walkway. 

 The mine argues that the miners were directed to use fall protection, that access to the 

walkway was restricted, and that employees had been trained on the use of the fall protection, 

thereby mitigating the negligence. However, nothing was done to directly correct the condition 

of the walkway or make it safer to use. Instead, it continued to deteriorate. Further, for miners 

who were not familiar with the area, there was no sign posted to indicate that fall protection was 

required. The miners were often not tied off when doing maintenance or changing the rollers, 

and on the day of the accident, the worker hosing down the pellets was not continually tied off. 

Inspector Norman indicated that the mine was reckless in continuing to allow access to the east 

walkway, even if miners were tied off. In his view, fall protection may have been discussed at 

41 FMSHRC Page 62
one time, but it was not made clear to the miners or the contractors how and when to tie off. 

Management was aware of the condition of the walkway, yet made no effort to correct or 

maintain the walkway in a safe condition. 

Failure to maintain the walkway resulted in the walkway crumbling and falling away 

while workers were on it. On the day of the accident, the contract miners were using hoses to 

wash the pellets down the 300 feet of the outer walkway ramp, and in doing so, the pellets built 

up in some locations, causing a heavy load on the walkway. The condition of the walkway was 

such that it could not withstand the weight of the pellets as they washed down. Mine 

management knew of the condition of the area yet demonstrated indifference to the violation, 

thereby placing the contract miners in a hazardous position. I credit Superfesky’s testimony that 

the condition of the walkway was the primary reason for its failure, and find that the failure of 

the mine to correct the condition and maintain the walkway in good condition was the result of 

reckless disregard. 

Unwarrantable Failure 

The Secretary alleges that the violation was the result of an unwarrantable failure to 

comply with the regulation. 

The unwarrantable failure terminology is taken from Section 104(d) of the Act, 30 U.S.C. 

§ 814(d). The Commission has explained that unwarrantable failure is “aggravated conduct

constituting more than ordinary negligence. [It] is characterized by conduct described as

‘reckless disregard,’ ‘intentional misconduct,’ ‘indifference,’ or a ‘serious lack of reasonable

care.’” Consol. Coal Co., 22 FMSHRC 340, 353 (Mar. 2007) (citing Emery Mining Corp., 9

FMSHRC 1997, 2001-04 (Dec. 1987)) (citations omitted). In determining whether a violation is

an unwarrantable failure, the Commission has instructed its judges to consider all of the relevant

facts and circumstances in the case and determine whether there are any aggravating or

mitigating factors. Id. Aggravating factors to be considered 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. IO Coal Co., 31 FMSHRC 1346, 1352

(Dec. 2009); see also Consol., 22 FMSHRC at 353.

The Secretary submits that the violation was extensive, that both outer walkways were 

dangerously deteriorated, and because it was unknown when a failure would occur, miners were 

exposed to a hazard for the entire length of both walkways. Miners doing work over the previous 

year were exposed to the same hazard as those in September 2016. The amount of time that the 

mine knew of the hazard is significant, along with the obviousness of the condition. Northshore 

argues that the violation was not an unwarrantable failure to comply because the mine took what 

it viewed as effective remedial measures to address a known condition. The walkways were in 

usable condition and there was no significant hazard. 

Length of time that the violation has existed. In IO Coal Co., the Commission 

emphasized that the duration of time that the violative condition existed is a “necessary element” 

41 FMSHRC Page 63
of the unwarrantable failure analysis. 31 FMSHRC at 1352. The condition in IO Coal had

existed for four or five days, and the Commission remanded to the judge to consider whether 

such duration was an aggravating factor. 31 FMSHRC at 1352. The Commission noted that 

analysis of the duration factor may be affected by the operator’s good-faith, reasonable belief 

that the condition did not exist. Id. at 1352-53. 

The problem with the outer walkways had existed for several years, at least from the time 

in June 2015 when the KOA report had been completed. In all likelihood, the problem also

existed prior to the report, as there is evidence that a number of miners complained about the 

walkways. Even after the mine was made aware of the deteriorating condition of the walkways 

from the 2015 KOA report, no maintenance or repair had occurred by the time of the accident in

September 2016. During the time between the report and the accident, the walkway continued to 

crack and deteriorate. The length of time figures prominently in the evaluation of the 

unwarrantable failure. 

Extent of the violative condition. The extent factor is intended to “account for the 

magnitude or scope of the violation” in the unwarrantable failure analysis. Dawes Rigging & 

Crane Rental, 36 FMSHRC 3075, 3079 (Dec. 2014). Facts relevant to the extent of the condition 

include the size of the affected area and the number of persons affected. Id. at 3079-80. In 

Dawes, the Commission found that where only one miner endangered himself by walking under 

a suspended load, the violation was not extensive. Id. at 3080. 

Here, the violation included the entire 300 feet on the east outer walkway, as well as the 

west outer walkway. Accessing the conveyor system was most often done by using the 

reinforced, center walkway. Still miners explained that they used the outer walkway to perform

maintenance tasks and on the day of the accident, the contract miners had been using the 

walkway for two days. The violation was thus extensive and workers were called to use the 

entire area. 

Whether the operator has been placed on notice that greater efforts were necessary for 

compliance. A mine operator may be put on notice that it has a recurring safety problem in need 

of correction where there is a history of similar violations. Black Beauty Coal Co. v. FMSHRC, 

703 F.3d 553, 561 (D.C. Cir. 2012); IO Coal, 31 FMSHRC at 1353; Peabody Coal Co., 14 

FMSHRC 1258, 1264 (Aug. 1992). Prior violations may be relevant even though they did not 

involve the same regulation or occur in the same area of the mine within a continuing time 

frame. IO Coal, 31 FMSHRC at 1354; San Juan Coal Co., 29 FMSHRC 125, 131 (Mar. 2007); 

Peabody, 14 FMSHRC at 1263. It is not required that the past violations were the result of 

unwarrantable failure. IO Coal, 31 FMSHRC at 1354; Consol. Coal Co., 23 FMSHRC 588, 595 

(June 2001). Past discussions with MSHA can also serve to place the operator on notice that 

greater efforts were necessary to assure compliance with the safety standard. Consol. Coal Co., 

35 FMSHRC 2326, 2342 (Aug. 2013) (citations omitted). 

The Secretary did not present evidence that the mine had been told to correct the 

condition of the walkway or that it had been cited for similar violations prior to September 2016. 

However, the mine was put on notice of the defective walkway through complaints made by 

41 FMSHRC Page 64
miners, and through the KOA engineering report in June 2015, Secretary’s Exhibit 12. The 

report explains that the load bearing capability could not be determined and that access to the 

walkway should be restricted. Therefore, notice has some effect on the finding of an 

unwarrantable failure. 

Operator’s efforts in abating the violative condition. An operator’s efforts in abating the 

violative condition are also relevant as to whether a violation is unwarrantable. Consol., 35 

FMSHRC at 2342; IO Coal, 31 FMSHRC at 1356; San Juan, 29 FMSHRC at 134. Abatement 

efforts prior to or at the time of the inspection may support a finding that the violation was not 

unwarrantable. Utah Power & Light Co., 11 FMSHRC 1926, 1933-34 (Oct. 1989). Conversely, 

where the operator has notice of a condition, such as through previous violations or 

conversations with an inspector, a failure to remedy the problem weighs in favor of an 

unwarrantable failure finding. Consol., 35 FMSHRC at 2343; Enlow Fork Mining Co., 19 

FMSHRC 5, 17 (Jan. 1997). Abatement efforts relevant to the unwarrantable failure analysis are 

those made prior to the issuance of the citation or order. Consol., 35 FMSHRC at 2342; IO Coal, 

31 FMSHRC at 1356. 

Northshore argues that instituting a policy of using fall protection when accessing the 

outer walkways was an attempt to abate the condition. Peterson and Zimmer, the managers who 

determined that fall protection should be used, testified that they did not understand that access 

should be prohibited, but merely restricted. They agreed that the use of fall protection would 

protect against injury. Even though they are trained mine managers and supervisors, they did not 

consider repairing the walkway and did not see that it was maintained in a safe condition. While 

the use of fall protection has some mitigating purpose, it does not correct the condition. 

Therefore, no effort was made to address the deteriorating walkway itself. 

Whether the violation posed a high degree of danger. A high degree of danger posed by a 

violation can be an aggravating factor that supports an unwarrantable failure finding. IO Coal, 31 

FMSHRC at 1355-56. In some cases, the degree of danger may be “so severe that, by itself, it 

warrants a finding of unwarrantable failure. However, the converse of this proposition—that the 

absence of significant danger precludes a finding of unwarrantable failure—is not true.” 

Manalapan Mining Co., 35 FMSHRC 289, 294 (Feb. 2013). The degree of danger is greater 

when there is a chronic problem that is ignored. Consol., 35 FMSHRC at 2343. 

The hazard created by a failure to maintain the east walkway in good condition, created a 

high degree of danger. The KOA engineering report explained that the outer walkways were not 

safe for use until repairs could be made. A number of hazards had been created, including falling 

through the walkway, stumbling and falling on the uneven surface, and walking on the taconite 

pellets. All of these examples indicate that the violation created a serious safety hazard and thus 

a high degree of danger. 

Whether the violation was obvious. The obviousness of the violative condition is an 

important factor in the unwarrantable failure analysis. IO Coal, 31 FMSHRC at 1356. However, 

when a condition is non-obvious because of actions of the operator, the Commission generally 

does not recognize lack of obviousness as a mitigating factor. Consol., 35 FMSHRC at 2343 

41 FMSHRC Page 65
 

(upholding judge’s unwarrantable failure finding where the operator deliberately ignored testing 

requirements in the mine’s ventilation plan). 

The hazard was obvious to many of the miners who spoke with Inspector Norman. They 

indicated that chunks of the walkway had fallen to the ground below and that they crawled across 

the conveyor to do maintenance in order to avoid the outer walkways. The violation was also 

obvious to the mine and particularly to the engineers who made complaints, including 

Scamehorn, who requested an engineering report. The managers who reviewed the report were 

aware of the hazard. The obviousness of the deteriorating and unsafe condition of the outer 

walkways is one of the primary factors in finding this violation to be unwarrantable. 

Operator’s knowledge of the existence of the violation. In IO Coal, the Commission 

reiterated the well-settled law that an operator’s knowledge of the existence of a violation may 

be established not only by demonstrating actual knowledge, but also by showing that the 

operator “reasonably should have known of the violative condition.” IO Coal Co., 31 FMSHRC 

at 1356-1357; see also Drummond Co., 13 FMSHRC 1362, 1367-68 (Sept. 1991); E. Associated 

Coal Corp., 13 FMSHRC 178, 187 (Feb. 1991); Emery Mining Corp., 9 FMSHRC at 2002-04. 

As discussed above, even if the mine denies knowledge of the violation—that is, the 

condition of the outer walkway based upon their observation—the engineering report made it 

clear that the walkway was not safe for use. The mine managers received the KOA report in June 

2015 and understood that, at best, the outer walkways should be restricted. Yet no action was 

taken to repair or maintain the walkways. Knowledge is an important factor in determining that 

the violation is unwarrantable. 

Based upon the factors listed here, I find that the violation was a result of the mine’s 

unwarrantable failure to comply with the Mine Act and its standards. 

Flagrant Violation 

 

The Secretary has designated this violation as flagrant and assessed a penalty of 

$130,000.00 as a result. 

The Act provides that 

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. 

 

41 FMSHRC Page 66
 

30 U.S.C. § 820(b)(2). Thus, in order to establish that a violation was flagrant, the Secretary 

must prove that: 

(1) there was a condition that constituted a violation of a 

mandatory health or safety standard, (2) the violation was “known” 

by the operator; (3) the violation either (a) substantially caused 

death or serious bodily injury, or (b) reasonably could have been 

expected to cause death or serious bodily injury; (4) there was a 

failure on the part of the operator to make reasonable efforts to 

eliminate the violation; and (5) that failure was either “reckless” or 

“repeated.” 

Am. Coal Co., 38 FMSHRC 2062, 2066-67 (Aug. 2016). As discussed below, I find that the 

Secretary has not established the elements of a flagrant violation. 

 The Secretary argues that the violation was flagrant because Northshore management 

knew of the condition of the walkway, failed to make reasonable efforts to eliminate a known 

violation, and displayed reckless disregard toward miners. Scamehorn, Peterson, and Zimmer 

were on notice of the violation based upon the 2015 engineering report they received from KOA, 

but ignored the report’s findings, as well as the miners’ concerns about the walkways. 

Northshore takes the position that the violation is not flagrant because the condition of the 

walkway was not the cause of the accident and that there was no injury here. The mine also 

asserts that the condition of the walkway would not lead to a serious injury because the miners 

wore fall protection. 

 As set forth above, the Secretary has established that a violation of a mandatory standard 

occurred. Next, the Secretary has shown that the violation was known by the operator. The 

discussion regarding the unwarrantable failure established that there is substantial evidence to 

demonstrate that the mine knew that the outer walkways were in a dangerous and deteriorating 

condition, in violation of 30 C.F.R. § 56.11002. Work orders dating back to 2013 detail concerns 

about cracks, debonding, and spalling of concrete on the 62/162 walkways. The June 2015 KOA 

report warned the mine that the load bearing capacity of the outer walkways could not be 

determined and that access to the walkways should therefore be restricted. While the center 

walkway had, at some point, been reinforced with steel plates, the outer walkways had not 

received the same repairs. Mine managers, employees, and engineers all testified that they were 

aware that the east walkway was not being maintained in a safe condition. Therefore, the 

knowledge required for the second element of the flagrant assessment is met. 

The third element of the flagrant discussion identified in Am. Coal Co., 38 FMSHRC at 

2066-67, requires the Secretary to show that the violation either substantially caused or 

reasonably could have been expected to cause death or serious bodily injury. This part of the 

analysis is similar to the third and fourth prongs of the Mathies test, which is used to evaluate 

whether a violation is properly designated as significant and substantial. As discussed above, the 

hazards created as a result of this violation were likely to result in serious injury. These hazards 

include tripping or falling on the walkway or through to the ground below. 

41 FMSHRC Page 67
 

The parties disagree over whether a fall due to the failure of the walkway floor would 

reasonably have been expected to cause death or serious bodily injury. The mine argues that the 

potential for such a fall from the elevated walkway must be evaluated in the context of a miner 

using fall protection. The mine’s argument assumes that miners were always correctly and 

appropriately tied off when using the outer walkways. The testimony in this case has shown 

otherwise. King was clear that he and the other contractors were not tied off for the entire time 

and gave two examples. First, they were not tied off when they walked up the ramp in order to 

take turns cleaning the walkway. Second, they could not tie off for the entire time while using a 

high pressure hose to move the pellets down the walkway because they had to unclip in order to 

move down the walkway. Furthermore, the contract miners did not appear to understand that 

they needed to be tied off for the entire time that they used the east walkway. Thus, based on the 

facts surrounding the violation, I find that the violation reasonably could have been expected to 

cause death or serious bodily injury. 

Finally, a flagrant violation involves a “reckless or repeated” failure to make reasonable 

efforts to eliminate the violation. 30 U.S.C. § 820(b)(2). This component of the flagrant violation 

relates to the degree of negligence with which the operator acted. The unwarrantable failure 

analysis above also relates to negligence. However, the Commission in Am. Coal found that 

based on the heightened penalties available under the flagrant provision, the violations should be 

distinguishable from those addressed under the S&S and unwarrantable failure provisions of the 

Act. 38 FMSHRC at 2069-70. Thus, the “reckless failure” component of a flagrant violation 

requires a higher negligence showing than that required under the unwarrantable failure analysis. 

The mine’s conduct amounts to reckless disregard when analyzed in the context of the 

negligence and unwarrantable failure frameworks, but the same conduct does not rise to the 

heightened recklessness contemplated by a flagrant designation. In Stillhouse Mining, Judge 

Paez noted that a reckless failure to make reasonable efforts to eliminate a violation occurs when 

“in light of all the facts and circumstances surrounding the violation, the operator does not take 

the steps a reasonably prudent operator would have taken to eliminate the known violation of a 

mandatory health or safety standard and consciously or deliberately disregards an unjustifiable, 

reasonably likely risk of death or serious bodily injury.” Stillhouse Mining, LLC, 33 FMSHRC 

778, 804 (Mar. 2011) (ALJ). The analysis is in line with the Commission’s discussion in Am. 

Coal, 38 FMSHRC 2062. 

While it is true that Northshore failed to take steps that a reasonably prudent operator 

familiar with the mining industry would have taken to protect miners from the risks related to 

using the walkways in their deteriorated condition, they made some effort to address their 

concerns. Respondent could have repaired the walkway but the mine chose to use fall protection 

as a solution. Given that decision, there is no evidence to suggest a conscious or deliberate 

indifference to the risks on the part of the mine. Instead, the evidence indicates that the mine was 

limited at best in its evaluation of the risks. In other words, rather than ignoring the problem, the 

mine did not fully consider the appropriate steps to take to mitigate the risk posed by the 

condition of the walkways. Respondent believed, albeit wrongly, that requiring miners to wear 

safety harnesses would solve the problem with the walkways until repairs were completed. This 

type of conduct, while careless and indicative of reckless disregard, does not meet the heightened 

negligence showing required under Am. Coal, 38 FMSHRC 2062. Therefore, I find that the 

41 FMSHRC Page 68
 

violation of section 56.11002 cited in Order No. 8897220 is not flagrant within the meaning of 

section 110(b)(2) of the Act. 

B. Citation No. 8897219 

Based upon his observations and the interviews conducted at the mine following the 

accident in September 2016, Inspector Norman issued Citation No. 8897219 for a failure to 

barricade the east outer walkway. The Secretary alleges a violation of 30 C.F.R. § 56.20011, 

which provides that “[a]reas where health or safety hazards exist that are not immediately 

obvious to employees shall be barricaded, or warning signs shall be posted at all approaches. 

Warning signs shall be readily visible, legible, and display the nature of the hazard and any 

protective action required.” There is no dispute that there were no warning signs or barricades at 

the east walkway. The only barricades related to the walkway had been placed below the 

walkway when chunks of cement were observed falling from the walkway onto the area below 

where miners traveled. Those barriers had been removed at the time of the incident and had no 

effect, in any event, on the walkway above. 

The Secretary alleges that the violation is proven because there were no barricades or 

warnings to alert miners to the hazards of the walkway. The condition of the walkway, while 

perhaps known to some workers, was not obvious to contractors and miners who did not 

routinely work in the area. The condition was not immediately obvious because the walkway was 

covered in mud and 6 to 12 inches of pellets. The mine defends that the Secretary did not prove 

that the condition of the walkway was not obvious. Further, the walkway was in good condition 

and it was not often used. 

I find that the Secretary has shown that the walkway created a safety hazard to miners 

that was not immediately obvious due to the mud and pellets on the surface. The area should, 

therefore, have had barricades or warning signs and none were present. The discussion regarding 

the first violation cited by Norman relates to the safety hazard of the walkway and is 

incorporated here, along with the S&S discussion related to the hazards. A number of miners told 

Norman that the walkway was a safety hazard and they avoided it. Floen advised the inspector 

that it was necessary to access the outer walkways at least every four to six weeks to change the 

conveyor rollers or idlers. Other maintenance was done from the walkway as necessary, 

including hosing down the pellets to clear the walkway. 

The walkway created a safety hazard, as evidenced by the cracks, the chunks of cement 

that had fallen to the ground below, and the lack of reinforcement similar to that on the center 

walkway. In addition, the KOA report specifically said that the load bearing capacity could not 

be determined, and the area should be restricted. The cracks in the concrete, coupled with the 

spalling and uneven surface, created a hazard on the walkway. In addition, the walkway was in 

such poor condition that holes could develop leading to a miner putting a foot through the floor 

or falling through the floor onto the roadway 50 feet below. Hence, the Secretary has 

demonstrated that the area was a safety hazard. 

Next the Secretary has demonstrated that the hazard was not obvious to all miners and 

particularly the contractors working at the mine. The contractors were not told about the 

41 FMSHRC Page 69
 

condition of the walkway, except to say that fall protection was needed to avoid the fall hazard of 

walking on the pellets. King explained that the condition of the walkway was not obvious 

because it was covered in mud and pellets and he could not see the surface. The contractors and 

miners who did not routinely use the walkway would not be aware of the hazardous condition of 

the walkway because it could not be seen. Even miners who worked in the area claimed that they 

did not know that the walkway was in bad condition. For example, Lehtinen explained that he 

learned from Gornik that the floor of the walkway was bad when they were discussing the use of 

fall protection by the contractors in September 2016. Therefore, it was not obvious to him that 

the cement floor beneath the pellets was a hazard. For miners or contractors who did not 

routinely work in the area, there was no indication of a hazard or of a requirement to use fall 

protection. Given that the walkway created a safety hazard, and that hazard was not obvious, 

barricades or warning signs were required at either end of both outer walkways. I find that the 

violation, as alleged, has been shown. 

Significant and Substantial 

The Secretary alleges that Citation No. 8897219 was highly likely to cause a fatal injury 

and was significant and substantial. I have found that there is a violation and I find further that 

the standard violated is meant to protect miners from entering unsafe areas where the hazard is 

not obvious so that miners can avoid the area or take other precautions. The KOA report, 

Secretary’s Exhibit 12, includes a statement that the outer walkways of the conveyor area are not 

safe for personnel to use until repaired. The conclusion of the report includes “the deteriorated 

condition of the conveyor walkway slabs is significant... access to the outer walkway slabs be 

restricted.” Thus, the outer walkways were compromised and the condition created a hazard to 

anyone who entered the area. The lack of warnings and barriers created a hazard by not warning 

workers to stay out of the area. The mandatory standard is intended to prevent access, or at least 

provide caution, when miners must access an area where a hazard exists, yet is not obvious. The 

evidence here demonstrates that there is a strong likelihood that a miner, who is not familiar with 

the area, would enter into an unsafe walkway and likely be injured. 

Inspector Norman suggests that unknowingly using the floor of the walkway would result 

in an accident if the floor gave way. In addition, the condition of the concrete under the mud and 

pellets added to the slip and fall hazard. Without notice, miners will not avoid the area or take 

precautions if they do decide to access the area. The miners also explained to Inspector Norman 

that tying off to use the walkway was difficult at best and, often times, miners were without fall 

protection. The decision to require fall protection was not effective in this case, and did not 

mitigate the hazard created by the lack of barriers or warning signs. 

Norman also testified that a hazard is likely to lead to an accident which would in turn 

result in a serious injury. A miner who wanted to use the walkway, would not be aware of the 

floor under the pellets, and could trip on the uplifted cement floor, or stumble on one of the 

cracks, resulting in a fall. But most importantly, when the walkway heaves or gives way, as it did 

for King, there is a real danger of falling through the walkway to the ground below. Falling 

through a hole from 50 feet to a concrete surface below would lead to a fatal injury. In the event 

a miner only put a leg through the hole, a serious injury would still likely occur. Similarly, if a 

miner is tied off when the floor gives way, a hole opens up, or he trips, a serious injury can 

41 FMSHRC Page 70
 

occur. A safety line may stop the miner from falling 50 feet, but it can lead to other hazards, such 

as being jostled or yanked by the lanyard resulting in back and neck injuries. A miner who is tied 

off could also strike his head, hit equipment below, or be hit by falling cement. The presence of 

the fall protection may lessen the injury in some circumstances, but does not remove the 

likelihood of a serious injury. Further, the miners agreed that even if they used fall protection, 

there were not always tied off. Therefore, I find that it is reasonably likely that an accident would 

occur, and result in a serious, if not fatal, injury. The violation is therefore, significant and 

substantial. 

 

Negligence 

The Secretary alleges that Citation No. 8897219 involved reckless disregard on the part 

of the operator and cites to the same arguments as those for the negligence in the violation cited 

above in Order No. 8897220. The arguments include the miners’ complaints about the condition 

of the walkway and the subsequent engineering report that indicated that the walkway was not 

safe for use. The Secretary argues that both Gornik and Lehtinen say they did not know about the 

condition of the walkway, but were the persons assigned to direct the contractors. They were told 

by Zimmer to have the contractors use fall protection, but only for purposes of protecting against 

a fall on the pellets. Both Zimmer and Peterson failed to consider the serious consequences of 

their actions. Northshore, too, makes the same arguments as to the negligence of the order 

discussed above. That is, that the mine required fall protection and therefore made some effort to 

protect the safety of miners. In addition, the mine argues that the managers understood from 

Leow that the condition may not have been as bad as the report suggested and were not negligent 

in relying on those representations. 

A reasonably prudent miner would have understood that telling miners to wear fall 

protection was not enough. Instead signs should have been posted advising miners about the 

condition of the walkway and, if the fall protection was required, to have a sign advising of the 

requirement. The primary support for a finding of reckless disregard is the fact that the mine 

commissioned the 2015 KOA engineering report to address concerns about the condition of the 

conveyor walkway. The resulting report from KOA found that the walkway was not safe for 

personnel to use and access should be restricted. The mine, through its engineers and two of its 

managers, knew of the poor and dangerous condition of the walkway, yet failed to put up any 

warning or barricade to at least limit access to the area until repairs could be completed. The area 

was open and available to anyone who was in the conveyor area, and it could have been accessed 

without any warning. The mine knew of the problem with the east walkway but took no steps to 

limit access and those actions demonstrate an indifference to a known violation. The managers 

put the miners in a situation that posed a significant risk to safety. Therefore, I agree that the 

violation is the result of reckless disregard on the part of the mine. 

Unwarrantable Failure 

The unwarrantable failure terminology is taken from Section 104(d) of the Act, 30 U.S.C. 

§ 814(d). The Commission has explained that unwarrantable failure is “aggravated conduct 

constituting more than ordinary negligence. [It] is characterized by conduct described as 

‘reckless disregard,’ ‘intentional misconduct,’ ‘indifference,’ or a ‘serious lack of reasonable 

41 FMSHRC Page 71
 

care.’” Consol. Coal Co., 22 FMSHRC at 353 (citing Emery, 9 FMSHRC at 2001-04) (citations 

omitted). In determining whether a violation is an unwarrantable failure, the Commission has 

instructed its judges to consider all of the relevant facts and circumstances in the case and 

determine whether there are any aggravating or mitigating factors. IO Coal Co., 31 FMSHRC at 

1352; see also Consol., 22 FMSHRC at 353. Both the Secretary and Northshore refer to the 

arguments made when discussing the unwarrantable nature of the violation in Order No. 

8897720. Many of those arguments apply here. 

Length of time that the violation has existed. The problem with the outer walkways had 

existed for several years, at least from the time in June 2015 when the KOA report had been 

completed. As a result of the report, the mine was made aware of the deteriorating condition of 

the walkway in 2015 and nothing was done to correct the condition. The walkway continued to 

crack and deteriorate up until the accident on September 7, 2016. For more than a year, the mine 

failed to put any barriers in place to prohibit access, or post any warning signs to prevent access, 

to warn of the dangerous condition, or to provide notice of a requirement to wear fall protection. 

The length of time figures prominently in the evaluation of the unwarrantable failure designation. 

Extent of the violative condition. The extent of the violative condition included the entire 

walkway, on both the east and west side of the conveyor, each extending about 300 feet. No 

barriers or warnings were used at either of the two walkways, leaving it accessible to anyone. 

The entire area was open to use by any person at the mine. Therefore, the violative condition was 

extensive. 

Whether the operator has been placed on notice that greater efforts were necessary for 

compliance. In this case, the mine was put on notice of the defective walkway, first by 

complaints by miners and then by the KOA engineering report in June 2015, Secretary’s Exhibit 

12. The report indicated that the load bearing capability of the outer walkway could not be 

determined. The KOA report indicated that the mine should restrict access to the outer 

walkways, and yet no barriers or warnings were put in place following that notice. The mine did 

determine that fall protection should be used on the outer walkways, but again did not post a 

warning or notice in that regard. 

Operator’s efforts in abating the violative condition. The only effort made to address the 

deteriorating walkway and its unsafe condition was to tell miners to use a safety harness when 

accessing the outer walkways. Although mine management may have told workers at the 

location to use safety harnesses, they did not post a notice explaining the requirement. Nor did 

mine management place any barriers to restrict access to the walkways as suggested by the 

report. Therefore, I find that no efforts were made to abate the condition. 

Whether the violation posed a high degree of danger. This violation, the failure to warn 

miners of the unsafe condition of the walkway, posed a high degree of danger. A contractor or a 

miner who did not usually work in or around the conveyor walkways would not understand that 

access to the area was restricted, or that there was a safety hazard to be considered. Anyone 

using the walkway would be subjected to a number of hazards, including the cracks, uneven 

concrete, and the possibility of falling through a hole in the walkway floor. 

41 FMSHRC Page 72
 

Whether the violation was obvious. The hazard regarding the walkway was obvious to 

many of the miners who spoke with Inspector Norman, but the unsafe condition of the walkway 

was not obvious to each miner or contractor who may have been required to use the walkway. 

Although the condition of the walkway was not obvious to all miners or contractors due to the 

mud and pellets, the condition, and hence the violation, was obvious to mine management. 

Operator’s knowledge of the existence of the violation. The mine had knowledge of the 

existence of the violation and failed to take any action. The mine received a number of 

complaints from miners and engineers about the condition of the outer walkways, including 

complaints about falling cement and debris. The mine managers received the KOA report in 

June 2015 and understood that, at best, the outer walkways should be restricted from use. 

Yet no action was taken to barricade or otherwise provide a warning about the condition of 

the walkways. A reasonable prudent miner, and manager, familiar with the requirements of 

the Act, would understand that to limit access or require the use of fall protection, requires a 

barricade or some kind of notice at each end of each walkway. 

Based upon the factors discussed, I find that the violation was a result of an 

unwarrantable failure to comply with the standard. 

C. Liability of the Agents 

The Secretary also seeks to impose personal liability under Section 110(c) against 

two employees of the mine: Matthew Zimmer, Section Manager for Hot Side Asset 

Management, and Roger Peterson, Section Manager for Hot Side Operations and 

Maintenance. The Secretary alleges that both Zimmer and Peterson, acting as agents of the 

mine, knew of the violative condition addressed by Order No. 8897220, the failure to 

maintain the walkway, and failed to act on the basis of that information to protect worker 

safety and health. 

The negligence of an operator’s agent is imputable to the operator for penalty assessment 

and unwarrantable failure purposes. Nelson Quarries, Inc., 31 FMSHRC 318, 328 (Mar. 2009); 

Whayne Supply Co., 19 FMSHRC 447, 450 (Mar. 1997); Rochester & Pittsburgh Coal Co., 13 

FMSHRC 189, 194 (Feb. 1991). The Mine Act defines an “agent” as “any person charged with 

responsibility for the operation of all or a part of a coal or other mine or the supervision of the 

miners in a coal or other mine.” 30 U.S.C. § 802(e). In analyzing whether an employee is an 

agent of an operator, the Commission has considered factors including “the ability of the 

employee to direct the workforce, whether the employee holds himself out as a person with 

supervisory responsibilities and is so regarded by other miners, and whether the actions of the 

employee in directing the workforce have an impact on health and safety at the mine.” Nelson 

Quarries, 31 FMSHRC at 328. 

Section 110(c) provides that when a corporate operator violates a mandatory health 

or safety standard . . . any director, officer, or agent of such corporation who knowingly 

authorized, ordered, or carried out such violation . . . shall be subject to the same civil 

penalties, fines, and imprisonment that may be imposed upon a person under subsections (a) 

and (d) [providing for assessment of civil and criminal penalties against mine operators]. 30 

41 FMSHRC Page 73
 

U.S.C. § 820(c). The Commission has explained that an agent is liable under Section 110(c) 

when the agent, “knew or had reason to know of a violative condition.” McCoy, 36 

FMSHRC at 1996. The relevant question is whether the agent knowingly acted; the 

Secretary need not prove that the individual knowingly violated the law. Id.; Warren Steen 

Const. Inc., 14 FMSHRC 1125, 1131 (July 1992). 

The Commission has determined that “[a]n individual acts knowingly where he is, 

‘in a position to protect employee safety and health [and] fails to act on the basis of 

information that gives him knowledge or reason to know of the existence of a violative 

condition.’” McCoy, 36 FMSHRC at 1996 (quoting LaFarge Constr. Materials, 20 

FMSHRC 1140, 1148 (Oct. 1998)) (alteration in original). Liability under Section 110(c) “is 

generally predicated on aggravated conduct constituting more than ordinary negligence” but, 

“does not hinge on whether an agent engaged in ‘willful’ conduct.” Matney, employed by 

Knox Creek Coal Co., 34 FMSHRC 777, 783 (Apr. 2012). For the purposes of Section 

110(c), “knowing” conduct includes deliberate ignorance and reckless disregard as well as 

actual knowledge. Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 363 (D.C. 

Cir. 1997). 

Zimmer and Peterson have worked at the mine for 13 and 25 years, respectively, and 

both have shared an office and worked in managerial roles since at least 2015. As part of 

their responsibilities, they both assigned and directed the work of other miners. Zimmer’s 

team was normally comprised of seven miners, while Peterson directed three operating 

supervisors and four maintenance supervisors. Zimmer testified that it was part of his job to 

plan and coordinate the maintenance and repair work that would take place in the 62/162 

gallery, and ensure that his group worked safely. Peterson was largely responsible for 

reviewing work orders, prioritizing and directing maintenance work, and, when necessary, 

informing miners of any changes in safety policies or procedures. Both Zimmer and 

Peterson became aware of the KOA report and its conclusions with respect to the outer 

walkways shortly after the mine received the report in June 2015. 

The KOA report included the recommendation that access to the outer walkways be 

restricted, “as they are not safe for personnel to be using until a repair has been completed.” 

Sec’y Ex. 12. Following a conversation with Scamehorn, the mine engineer who initially 

received the KOA report, both Zimmer and Peterson believed that the report’s 

recommendation to restrict access was not an outright prohibition, but rather a limitation on 

use of the outer walkways. Instead of repairing or prohibiting use of the walkways, together 

they decided to implement a fall protection policy. Shortly after receiving the report, 

Zimmer and Peterson informed their crews of the fall protection requirement. When the 

mine used contractors more than a year later, they were told to use fall protection to avoid 

tripping on the pellets, but were not warned about the condition of the walkway. There is no 

indication that the policy was reduced to writing, or that any signs or notices were posted 

indicating that fall protection was essential. Zimmer and Peterson did not take any steps to 

repair or maintain the outer walkways after learning of the condition, both from miner 

complaints and from the written KOA reports. Peterson maintained that he did not believe 

anyone would fall through the floor of the walkway and was not aware that miners could not 

41 FMSHRC Page 74
 

be tied off the entire way while accessing the outer walkways. Nonetheless, as a manager, 

Peterson is trained in safety and in the requirements of the Mine Act. 

The Secretary alleges that both Peterson and Zimmer were agents of the operator 

based upon their supervisory roles and their authority to hire, fire, discipline miners, assign 

job duties, shut down operators and direct the workforce. Northshore does not dispute that 

they are agents as defined by the Act. 

The Secretary argues that both Peterson and Zimmer failed to act based upon the 

KOA report findings and recommendations that detailed the unsafe condition of the 

walkways. Both participated in conversations with Scamehorn concerning the deteriorating 

condition of the outer walkways, and agreed to require the use of fall protection rather than 

repairing or maintaining the walkway as required by the MSHA standard. They were aware 

that the walkways were used for maintenance and other travel, but subjected miners to an 

unsafe and unsound work area. 

Northshore argues that Peterson should not be charged as an agent because he did not 

directly interact with Leow regarding the KOA report, but instead acted based upon what he 

learned from Scamehorn. Further, following the June 2015 KOA report, Peterson was 

involved in implementing the fall protection requirement and communicated the need for 

fall protection to the supervisors. The mine makes the same argument on behalf of Zimmer, 

but adds that on June 1, 2015, Zimmer no longer had responsibility for employees who 

worked along the outer walkway. I do not find merit in the mine’s argument that Zimmer 

was no longer in charge of employees in that area as of June 1, since it is undisputed that he 

was involved in making the decisions after receiving the KOA report. 

During the accident investigation, Zimmer and Peterson were interviewed by James 

Hautamaki, a special investigator with MSHA. Based on his interviews with Zimmer and 

Peterson, Hautamaki concluded that both men had knowledge of the violative condition and 

failed to act to protect worker safety. Hautamaki testified that he learned that both Zimmer 

and Peterson knew about the structural concerns with the floor of the outer walkways before 

KOA was called in to perform the evaluation. Once they received the KOA report, Zimmer, 

Peterson, and Scamehorn came to the conclusion that fall protection would be sufficient. 

According to Hautamaki, neither Zimmer nor Peterson personally inspected the area before 

deciding to implement fall protection, and neither manager thought to put up barricades or 

warning signs to warn miners about the condition of the walkway or of the need to wear fall 

protection. Hautamaki also learned that while both managers informed their respective 

crews about the condition of the walkways and that access was to be restricted, a similar 

warning was not given to the contractor crew in charge of cleaning the outer walkways. 

There is sufficient evidence to demonstrate that both Zimmer and Peterson, acting as 

agents of the mine, knew that the walkways of the 62/162 gallery were not of substantial 

construction or maintained in good condition. Many of the actions that resulted in a finding 

of reckless disregard, for Order No. 8897220, can be attributed to the action or inaction of 

Zimmer and Peterson as agents of the mine. For example, Zimmer authorized a work order 

for the 62/162 gallery in September 2015, which stated, in part, “[v]erify the floor is safe on 

41 FMSHRC Page 75
 

the east side of the conveyor. Roger [Peterson] says that fall protection is required.” Resp. 

Ex. F. The contractors testified that they were not told of the condition of the floor, only that 

they needed fall protection to avoid falling on the pellets. Moreover, as managers, Zimmer 

and Peterson received copies of the KOA report, along with an email from Scamehorn 

alerting them to the structural issues with the walkways and suggesting that they restrict 

access. 

Similarly, there is sufficient evidence to support the conclusion that Zimmer and 

Peterson failed to act on the basis of the walkway information to protect worker safety and 

health. Following receipt of the KOA report, Zimmer and Peterson spoke with Scamehorn. 

Together, they decided that they would take no corrective action, but instead put the 

walkways on a list for later repair. More than a year later, when King and the contract crew 

were assigned to clean the outer walkway, nothing had been done to repair or maintain the 

walkways. Zimmer and Peterson did agree to require fall protection and instructed the 

supervisors regarding the need for fall protection on the outer walkways. However, they 

failed to repair or maintain the walkway. Fall protection was an inadequate solution to 

address the violative condition here; miners could not be tied off the entire time on the outer 

walkways and had to unclip their harnesses to move when performing maintenance on the 

conveyor belts and when hosing down the pellets. Both Zimmer and Peterson did not fully 

consider the importance of repairing the walkways or warning the miners of the deteriorated 

state of the walkways, and instead tried to work around the issue by implementing, rather 

badly, a policy of fall protection. Mine managers who are trained on the requirements of the 

regulations, and on the importance of safety and health, should have known that the 

conveyor walkways must be maintained in good condition or, alternatively, restricted from 

access appropriately. Therefore, I find both Zimmer and Peterson, individually, liable under 

section 110(c) of the Act. 

II. PENALTY 

The principles governing the authority of Commission Administrative Law Judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine Act delegates to the Commission and its judges, “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). The Secretary calculates penalties using the 

penalty regulations set forth in 30 C.F.R. § 100.3, or following the guidelines for special 

assessments in 30 C.F.R. § 100.5. When an operator notifies the Secretary that it intends to 

challenge a penalty, the Secretary then petitions the Commission to assess the penalty. 29 C.F.R. 

§ 2700.28. Commission judges are not bound by the Secretary’s penalty regulations or his 

special assessments. Am. Coal Co., 38 FMSHRC 1987, 1990 (Aug. 2016). Rather, 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 

41 FMSHRC Page 76
 

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 Commission requires that its judges 

explain any substantial divergence from the penalty proposed by the Secretary. Am. Coal, 38 

FMSHRC at 1990. 

The Secretary has proposed a penalty of $130,000 for the violation cited in Order No 

8897220, which alleges a failure to maintain the outer walkways. The proposed penalty is based 

upon a finding that the violation was flagrant, and assessed pursuant to 30 U.S.C. § 820(b)(2). 

The flagrant aspect is discussed above and I have found that the Secretary has not met his burden 

of proof with regard to the flagrant finding. However, there is a violation of the mandatory 

standard, the violation is S&S and unwarrantable. In addressing those issues, I addressed the 

negligence of the operator and agree that the mine engaged in a reckless disregard of the 

mandatory standard. I have also addressed the gravity of the violation and found it to be a serious 

violation that would result in death or serious bodily injury. I have also considered the history of 

assessed violations. Sec’y Ex. 1. The violation was abated in good faith. The mine has not raised 

the ability to pay. Northshore is considered a large mine operator. Based upon my findings, I 

assess a penalty of $60,000 for this violation. 

The Secretary has proposed a penalty of $69,400 for the violation cited in Citation No. 

8872219, which alleges a failure to provide barricades and/or warning signs at either end of the 

outer walkways. The proposed penalty was assessed as a special assessment, but in determining 

the penalty, I have considered and applied the six penalty criteria. Northshore is a large operator 

and did not raise the ability to pay the penalty as proposed. The history of assessed violations 

shows three citations for violations of this standard in the 12 months prior to this citation. Sec’y 

Ex. 1. The good faith abatement has been considered. I have addressed the negligence and 

gravity in the discussion above and have found the negligence to be reckless disregard and the 

gravity to be extremely serious. Therefore, I assess a penalty of $60,000. 

The two agents named in this matter, Zimmer and Peterson, have been assessed a 

proposed penalty of $4,300 and $4,500 respectively. I have addressed the negligence of each of 

the agents above, along with the gravity of the violation. Neither of the agents has raised the 

issue of the ability to pay, and neither have a history of a violation as an agent of the operator. 

Based upon all of the findings, I assess a penalty of $4,000 for each. 

 

41 FMSHRC Page 77
 

III. ORDER 

Respondent, Northshore Mining, is hereby ORDERED to pay the Secretary of Labor the 

sum of $120,000.00 within 30 days of the date of this decision. Matthew Zimmer is ordered to 

pay $4,000.00, and Roger Peterson is ordered to pay $4,000.00 as an agent of the operator within 

30 days of the date of this decision. 

 /s/ Margaret A. Miller 

Margaret A. Miller 

Administrative Law Judge 

Distribution: (U.S. Certified First Class Mail) 

Barbara M. Villalobos, U.S. Department of Labor, Office of the Solicitor, 230 South Dearborn 

Street, 8th Floor, Chicago, IL 60604 

R. Henry Moore , Arthur M. Wolfson, Jackson Kelly PLLC, Three Gateway Center, 401 Liberty 

Ave., Suite 1500, Pittsburgh, PA 15222 

41 FMSHRC Page 78
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 

 

February 15, 2019 

 

 

DECISION AND ORDER

Appearances: Edward B. Hartman, Esq., Office of the Solicitor, U.S. Department of 

Labor, Chicago, Illinois, for the Petitioner, 

 Arthur M. Wolfson, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania, 

for the Respondent. 

Before: Judge Rae 

I. INTRODUCTION 

A. Statement of the Case 

These cases are before me upon three petitions for assessment of civil penalties filed by 

the Secretary of Labor (“the Secretary”) pursuant to § 105(d) of the Federal Mine Safety and 

Health Act of 1977, as amended, (“the Mine Act” or the “Act”), 30 U.S.C. § 815(d). At issue are 

five § 104(d)(2) orders issued to mine operator Peabody Midwest Mining, LLC (“Peabody”) as a 

result of two separate inspections conducted by authorized representatives for the Department of 

Labor’s Mine Safety and Health Administration (MSHA). 

A hearing was held in Evansville, Indiana, at which time testimony was taken and 

documentary evidence was submitted. The parties also filed post-hearing briefs. I have reviewed 

all of the evidence at length and have cited to the testimony, exhibits, and arguments I found 

critical to my analysis and ruling herein without including a detailed summary of the testimony 

given by each witness. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

PEABODY MIDWEST MINING, LLC, 

 Respondent. 

 CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 2016-0421 

A.C. No. 12-02295-416252 

Docket No. LAKE 2017-0178 

A.C. No. 12-02295-430695 

Docket No. LAKE 2017-0382 

A.C. No. 12-02295-434929 

Mine: Francisco Underground Pit 

41 FMSHRC Page 79
After consideration of the evidence and observation of the witnesses and assessment of 

their credibility, I uphold the five § 104(d)(2) orders as written for the reasons set forth below. 

B. Stipulations 

 The parties have stipulated to the following facts: 

1. Peabody Midwest Mining, LLC, is an “operator” as defined in § 3(d) of the Federal 

Mine Safety and Health Act of 1977, as amended (Mine Act), 30 U.S.C. §803(d), at 

the coal mine at which the citation at issue in these proceedings was issued. 

2. The Francisco Underground Pit mine is operated by Respondent in this case, Peabody 

Midwest Mining, LLC. 

3. The Francisco Underground Pit mine is subject to the jurisdiction of the Mine Act. 

4. At all relevant times, the products of the Francisco Underground Pit mine entered 

commerce or are products that affect commerce, within the meaning of the Mine Act, 

30 U.S.C. §§ 802(b) and 803. 

5. These proceedings are subject to the jurisdiction of the Federal Mine Safety and 

Health Review Commission and its designated Administrative Law Judges pursuant 

to §§ 105 and 113 of the Mine Act, 30 U.S.C. §§ 815 and 823. 

6. 30 C.F.R. § 75.202(a) is a mandatory health or safety standard as that term is defined 

in § 3(l) of the Mine Act, 30 U.S.C. § 802(l). 

7. 30 C.F.R. § 75.364(b)(2) is a mandatory health or safety standard as that term is 

defined in § 3(l) of the Mine Act, 30 U.S.C. § 802(l). 

8. 30 C.F.R. § 75.400 is a mandatory health or safety standard as that term is defined in 

§ 3(l) of the Mine Act, 30 U.S.C. § 802(l). 

9. 30 C.F.R. § 75.362(b) is a mandatory health or safety standard as that term is defined 

in § 3(l) of the Mine Act, 30 U.S.C. § 802(l). 

10. 30 C.F.R. § 75.360(g) is a mandatory health or safety standard as that term is defined 

in § 3(l) of the Mine Act, 30 U.S.C. § 802(l). 

11. In Docket LAKE 2016-421, payment by Respondent of the proposed penalty of 

$5,054.00 will not affect Respondent’s ability to remain in business. 

12. In Docket LAKE 2017-178, payment by Respondent of the proposed penalty of 

$154,363.00 will not affect Respondent’s ability to remain in business. 

13. In Docket LAKE 2017-382, payment by Respondent of the proposed penalty of 

$44,546.00 will not affect Respondent’s ability to remain in business. 

14. The individual whose signature appears in Block 22 of the Orders at issue in these 

proceedings was acting in his official capacity and as an authorized representative of 

the Secretary of Labor when the citation was issued. 

15. A duly authorized representative of the Secretary served the subject orders and any 

termination thereof upon the agent of the Respondent at the date and place stated 

41 FMSHRC Page 80
therein, as required by the Mine Act, and the citation and termination may be 

admitted into evidence to establish its issuance. 

16. The orders contained in Exhibit A attached to the Petitions for Assessment of Penalty 

for these dockets are authentic copies of the orders at issue in this proceeding with all 

appropriate modifications and terminations, if any. 

17. The exhibits listed in each party’s List of Witnesses and Exhibits are true and 

accurate copies of the originals. 

Joint Ex. 1; Tr. 7.1

II. BACKGROUND 

 Peabody Midwest Mining, Francisco Underground Pit is a large underground bituminous 

coal mine located in Francisco, Indiana. MHSA inspector Ryan Seitz2 conducted a quarterly 

inspection of the mine on June 7, 2016 at the 3rd Southwest Sub-Main R/S Return Entry #8. 

During his examination, he found what he determined to be hazardous rib conditions for which 

he issued an order, specifically at crosscuts #64-65 and #89-90 as a violation of 30 C.F.R. § 

75.202(a). Upon an inspection of the weekly examination books pertaining to this entryway, he 

found the hazardous conditions were not properly noted in the examination record, nor were the 

corrective measures taken by the operator to adequately control the problem. As a result, he 

issued an order in violation of 30 C.F.R. § 75.364(b)(2) for an inadequate weekly examination of 

the entryway. Both of these orders were assessed as reasonably likely to result in permanently 

disabling injuries to one person, significant and substantial (S&S), with high negligence, and an 

unwarrantable failure to comply with the applicable mandatory standards. The proposed penalty 

for the violation of § 75.202(a) has been enhanced by a special assessment by MSHA. 

 On September 20, 2016, MSHA inspector Nicholas Vandergriff3

 conducted a quarterly 

inspection of the mine at the 4th SE Belt Entry. The belt in this entry had been recently 

converted from two separate belts to one belt measuring almost one mile long. Along the belt, 

Vandergriff observed accumulations of coal, belt pressings, and float coal dust in what he 

determined to be hazardous dimensions over an extensive number of crosscuts. When compared 

 1

 In this decision, the abbreviation “Tr.” refers to the transcript of the hearing. There are 

two volumes to the transcript and the pages are numbered sequentially therefore they will not be 

referred to by volume number. The Secretary’s exhibits are numbered Ex. S-#, Respondent’s Ex. 

R-# 

2 Seitz had been with MSHA for approximately three years assigned to the Vincennes, 

Indiana office. He began his mining career in 2008 with Peabody Energy and then moved to 

Vectren Energy. He held mine foreman papers, methane certification, and respirable dust and 

impoundment certifications. He then attended the Mine Academy and became an Authorized 

Representative for MSHA. 

3 Vandergriff had been employed by MSHA since 2015 at the Vincennes, Indiana office. 

He had worked for Sunrise Coal for nine years running all types of equipment including roof 

bolters and served as a face boss. He held mine foreman papers while at Sunrise. He then 

attended the Mine Academy to obtain his Authorized Representative card from MSHA. 

41 FMSHRC Page 81
to the examination record book, he found the hazards listed as Observed and Corrected did not 

correspond with the extensive conditions he observed underground. As a result, he issued three 

orders that day - one for accumulations of combustible materials, one for an inadequate preshift/on-shift examination, and the last for improper recordkeeping of pre-shift examination 

results. Each of these orders was assessed as reasonably likely to result in fatal injury to 30 

persons, S&S, with high negligence, and an unwarrantable failure to comply with mandatory 

health and safety standards. 

 Peabody contests each violation and asserts that each should be dismissed. In the 

alternative, it argues that none of the violations should be found as significant and substantial, of 

high negligence, or an unwarrantable failure. It also argues that there was no basis provided by 

the Secretary for the specially assessed penalties. 

III. LEGAL PRINCIPLES 

A. Standard of Proof 

 A mine operator is strictly liable for Mine Act violations that occur at its mine. Spartan 

Mining Co., 30 FMSHRC 699, 706 (Aug. 2008). The Secretary bears the burden of proving any 

alleged violation by a preponderance of the credible evidence. In re: Contests of Respirable Dust 

Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d sub nom. Sec’y of Labor v. 

Keystone Coal Mining Corp., 153 F.3d 1096 (D.C. Cir. 1998). 

B. Significant and Substantial and Gravity Findings 

 A significant and substantial violation is a violation “of such nature as could significantly 

and substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 30 

U.S.C. § 814(d). A violation is properly designated significant and substantial “if, based upon the 

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

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

Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

 In Mathies Coal Company, the Commission set forth the following four-part test to 

determine whether a violation is properly designated significant and substantial: 

 In order to establish that a violation of a mandatory safety standard is 

significant and substantial under National Gypsum, the Secretary of Labor must 

prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete 

safety hazard – that is, a measure of danger to safety – contributed to by the 

violation; (3) a reasonable likelihood that the hazard contributed to will result in 

an injury; and (4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature. 

6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th 

Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988); Consolidation 

Coal Co. v. FMSHRC, 824 F.2d 1071, 1075 (D.C. Cir. 1987). 

41 FMSHRC Page 82
 The Commission has stated that the focus of the Mathies analysis “centers on the 

interplay between the second and third steps.” Newtown Energy, Inc., 38 FMSHRC 2033, 2037 

(Aug. 2016). The second step “addresses the extent to which the violation contributes to a 

particular hazard” and “is primarily concerned with likelihood of the occurrence of the hazard 

against which a mandatory safety standard is directed.” Id. Thus, the second step requires the 

judge to first identify the hazard, which the Commission defines “in terms of the prospective 

danger the cited safety standard is intended to prevent,” then determine whether the violation 

sufficiently contributed to this hazard by considering “whether, based upon the particular facts 

surrounding the violation, there exists a reasonable likelihood of the occurrence of the hazard.” 

Id. at 2038. At the third step, the judge must determine whether the occurrence of the hazard 

would be reasonably likely to result in injury, assuming the hazard were to occur. Id. 

 

 The significant and substantial determination must be based on the particular facts 

surrounding the violation at issue. Peabody Coal Co., 17 FMSHRC 508, 511-12 (Apr. 1995); 

see, e.g., Wolf Run Mining Co., 36 FMSHRC 1951, 1957-59 (Aug. 2014). Evaluation of the 

reasonable likelihood of injury should be made assuming “continued normal mining operations,” 

U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984), i.e., the evaluation should be made 

“in consideration of the length of time that the violative condition existed prior to the citation and 

the time it would have existed if normal mining operations had continued.” Black Beauty Coal 

Co., 34 FMSHRC 1733, 1740 (Aug. 2012); Rushton Mining Co., 11 FMSHRC 1432, 1435 (Aug. 

1989). The inspector’s judgment is also an important element of the significant and substantial 

determination. Wolf Run, 36 FMSHRC at 1959; Mathies, 6 FMSHRC at 5. 

 The significant and substantial nature of a violation and the gravity of the violation are 

not synonymous, although they are frequently based on the same or similar factual 

circumstances. Quinland Coals, Inc., 9 FMSHRC 1614, 1622 n.11 (Sept. 1987). The Secretary 

assesses gravity in terms of the reasonable likelihood of injury, the severity of the expected 

injury, the number of persons affected, and whether the violation is significant and substantial. 

The Commission generally expresses gravity as the degree of seriousness of the violation. Hubb 

Corp., 22 FMSHRC 606, 609 (May 2000); Consolidation Coal Co., 18 FMSHRC 1541, 1549 

(Sept. 1996). The Commission has pointed out that the focus of the gravity inquiry “is not 

necessarily on the reasonable likelihood of serious injury, which is the focus of the significant 

and substantial inquiry, but rather on the effect of the hazard if it occurs.” Consolidation, 18 

FMSHRC at 1550; see also Harlan Cumberland Coal Co., 12 FMSHRC 134, 140-41 (Jan. 1990) 

(ALJ) (explaining that some violations are serious notwithstanding the likelihood of injury, such 

as a violation of an important safety standard, a violation demonstrating recidivism or defiance 

on the operator’s part, or a violation that could combine with other conditions to set the stage for 

disaster). 

C. Negligence and Unwarrantable Failure 

 Negligence is conduct that falls below the standard of care established under the Mine 

Act. Under the Secretary’s regulations, an operator is held to a high standard of care and is 

required to be on the alert for conditions and practices that may cause injuries and to take 

necessary precautions to prevent or correct them. 30 C.F.R. § 100.3(d). The Secretary defines 

high negligence as having occurred in connection with a violation when “[t]he operator knew or 

41 FMSHRC Page 83
should have known of the violative condition or practice, and there were no mitigating 

circumstances.” Id.; § 100.3, Table X. High negligence “suggests an aggravated lack of care that 

is more than ordinary negligence.” Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998). The 

Commission generally assesses negligence by considering what actions a reasonably prudent 

person familiar with the mining industry, the relevant facts, and the protective purpose of the 

cited regulation would have taken under the circumstances. Leeco, Inc., 38 FMSHRC 1634, 1637 

(July 2016); see also Brody Mining, LLC, 37 FMSHRC 1687, 1701-03 (Aug. 2015) (explaining 

that Commission ALJs “may evaluate negligence from the starting point of a traditional 

negligence analysis” rather than adhering to the Secretary’s Part 100 definitions); accord Mach 

Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1263-64 (D.C. Cir. 2016). 

 More serious consequences can be imposed under the Mine Act for violations that result 

from the operator’s unwarrantable failure to comply with mandatory health or safety standards. 

The unwarrantable failure terminology is taken from § 104(d) of the Mine Act, 30 U.S.C. § 

814(d), and refers to more serious conduct by an operator in connection with a violation. The 

Commission has determined that unwarrantable failure is aggravated conduct constituting more 

than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001-04 (Dec. 1987). 

Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional 

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

Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (Feb. 1991); Buck Creek Coal, Inc. v. FMSHRC, 

52 F.3d 133, 136 (7th Cir. 1995). 

Whether conduct is “aggravated” in the context of unwarrantable failure is determined by 

looking at all the facts and circumstances of each case to see if any aggravating factors or 

mitigating circumstances exist. These factors often include (1) the extent of the violative 

condition, (2) the length of time the violative condition existed, (3) whether the violation posed a 

high degree of danger, (4) whether the violation was obvious, (5) the operator’s knowledge of 

the existence of the violation, (6) the operator’s efforts in abating the violative condition, and (7) 

whether the operator had been placed on notice prior to the issuance of the violation that greater 

efforts were necessary for compliance. See CAM Mining, LLC, 38 FMSHRC 1903, 1909 (Aug. 

2016); Wolf Run Mining Co., 35 FMSHRC 3512, 3520 (Dec. 2013); IO Coal Co., 31 FMSHRC 

1346, 1350-57 (Dec. 2009). Because supervisors are held to a high standard of care, another 

important factor supporting an unwarrantable failure determination is the involvement of a 

supervisor in the violation. Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001). 

The factors listed above must be viewed in the context of the factual circumstances of a 

particular violation, and it is not necessary to find that all factors are relevant or deserving of 

equal weight in order to determine that the violation is unwarrantable. Wolf Run, 35 FMSHRC at 

3520-21; E. Assoc’d Coal Corp., 32 FMSHRC 1189, 1193 (Oct. 2010); IO Coal, 31 FMSHRC at 

1351. However, all factors that are relevant should be considered. San Juan Coal Co., 29 

FMSHRC 125, 129 (Mar. 2007). 

 

41 FMSHRC Page 84
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

A. Order No. 9101931 (Docket No. LAKE 2017-0178) 

1. Finding of Facts 

Order No. 9101931 was issued by MSHA Inspector Ryan Seitz on June 7, 2016 during an 

E01 inspection of the Francisco Underground Pit. Tr. 25-26. Upon arrival at the mine, Seitz 

reviewed the inspection tracking documents to determine the areas of the mine that still required 

inspection. Tr. 29. He then traveled to the 3rd South West Sub-Main Return Entry #8 (“return 

entry”) with Matt Kamman, a mine employee escort, to begin the day’s inspection. Tr. 28. 

Immediately prior to their arrival, Jim Robinson, the weekly examiner, began an examination of 

the same section. Throughout the inspection, Seitz and Kamman encountered Robinson as he 

examined the area concurrently. Tr. 30-31. 

 

Immediately upon reaching the return entry, Seitz observed loose ribs and loose coal 

material on the ground in the number 8 entry. Tr. 32; Ex. S-3. No timbers or floor-to-roof 

support was present in the areas of concern. Seitz questioned Robinson on how he identified 

hazards and how they are abated and communicated to management. As Seitz noted in his 

inspection notes taken contemporaneously with the inspection, Robinson stated there were too 

many hazards for one person to fix and he (Robinson) had another set of large air courses that he 

must examine during the same shift. Ex. S-3. Seitz testified that as he continued his examination 

of the number 8 entry, he remarked to Kamman and Robinson, “I’m starting to see some areas 

here I don’t really like.” Tr. 32. 

As Seitz and Kamman walked inby, they observed Robinson, three or four crosscuts 

ahead of them, prying down loose ribs and hanging red flags. Tr. 34. Seitz noted at hearing that 

no red flagging, timbers, or any other stabling mechanisms were in place prior to Robinson’s 

work. Tr. 34-35. Seitz continued to observe sloughage, or coal material that comes down off the 

rib or ceiling, as he walked inby. The pathway measured 18 feet long and 6 feet wide. Tr. 35. 

Seitz rejoined Robinson at crosscut 80 and they continued together to crosscuts 89-90. Upon 

further discussion with Robinson, Seitz was informed that during the two years in which 

Robinson had been examining this area, the conditions observed by Seitz had existed. Robinson 

stated that it had always been “a problem area.” Tr. 94. In fact, Robinson told Seitz that the 

conditions were the same in 2013 and 2014 when the area was actively mined. Tr. 39. Robinson 

further informed Seitz that he had sat down with John Devers, Peabody’s General Manager, 

about 30 days prior and voiced his concerns to Devers about the conditions. Robinson said he 

also told Devers that an entire crew comprised of 30 to 40 miners armed with slate pry bars 

would spend an entire shift prying ribs down and it would not get them all. Robinson asked 

Devers, in fact, to take him off this examination route citing personal reasons but told Seitz the 

real reason was because he didn’t want to be in the area or sign the examination record book. 

Robinson characterized Dever’s response as minimal. Ex. S-3. Based upon his initial 

observations, Seitz informed Kamman and Robinson that he would be issuing a 104(a) citation 

because of the loose ribs. Robinson proceeded alone to continue his inspection. Tr. 33. 

41 FMSHRC Page 85
Upon continuing his inspection of the entryway, Seitz observed loose ribs and rib rash 

throughout the entire entry. He testified that most of the ribs in the area measured around 7.5 feet 

long, 4 feet high and 12 inches wide and gapped approximately 9 to 12 inches away from the 

wall. He observed rock dust within the gap behind these ribs, which indicated the conditions had 

been present for some period of time. Tr. 38. Additionally, Seitz stated that he did not observe 

any tire tracks from a scoop or a hose line for a trickle duster in the area. There were no bags of 

rock dust present for use in hand dusting and neither Kamman nor Robinson mentioned anything 

about dusting methods used. Tr. 37. All of these factors led Seitz to the conclusion that the 

conditions were not new and had existed for an unreasonably long period of time without 

corrective action taken. Tr.37-41. Due to the number of loose ribs present and the lack of 

corrective action taken, coupled with Robinson’s comments concerning how long the conditions 

had existed, Seitz informed Kamman that he was elevating the citation to a 104(d) order.4

 Ex. S3. 

Matthew Kamman, a certified foreman, testified on behalf of Peabody. He contended that 

rib conditions change rapidly in a mine and the conditions observed by Seitz had occurred 

recently. Tr. 109, 126. Kamman stated that he worked in the area when it was actively mined and 

described that a mud seam ran through the ribs causing them to “flake off some” and explained 

that they would get worse as mining advanced. He stated that the ribs were scaled and extra bolts 

were added as needed. Tr. 108. He had not examined this cited air course recently. Tr. 109, 120. 

Kamman asserted that Seitz only found two loose ribs in the entire entry and otherwise found no 

violations. Tr. 111-14. He denied the comment contained in Seitz’s notes that he said the ribs 

were “bad” when the area was actively mined in 2013 and 2014. Tr. 115, Ex. S-3, p. 22. 

Kamman confirmed that the black area left when a rib has been pried down will continue to 

appear black until the area has been rock dusted or a long period of time passes. Tr. 122. I find 

Kamman’s denial of his comment to Seitz is not credible as Seitz recorded it in his notes 

contemporaneously with the event. I also find his minimization of the number of bad ribs found 

by Seitz to be unreliable as self-serving and contradicted by Seitz’s very specific listing in his 

notes of the crosscuts affected and by the measurements he took. Ex. S-3. 

Aaron Meador, a certified foreman, testified for Peabody. As an examiner of the cited 

entry, he stated that he would carry a pry bar with him and scale any loose ribs while he was 

making his examination. If a rib could not be addressed by him, he would hang a red danger flag. 

Tr. 129-30. He claimed there was a rock dust bore hole into which large quantities of dust would 

be dumped into the intake air course adjacent to the return causing dust to be vented through the 

return. Tr. 130-31. He claimed he would enter the specific location of any loose ribs he found in 

the examination book whether or not he pried them during his examination. However, he stated 

that at the time of this inspection it was not common practice to specifically identify the location 

where corrective action was taken during the pre-shift examination. It was only after being 

issued a citation by MSHA for not doing so that it became common practice. Tr. 133-34. Meador 

noted loose ribs recorded in numerous examination book entries and confirmed that the 

 4

 Section 104(d) of the Mine Act states in relevant part that when an inspector finds a 

violation that is of such a nature that it could significantly and substantially contribute to the 

cause and effect of a coal mine safety or health hazard, and that is caused by an unwarrantable 

failure of the operator to comply with the mandatory standard, he shall include such finding in 

any violation issued to the operator under this Act. 

41 FMSHRC Page 86
examination books were countersigned by management. Tr. 134-39, 144; Ex. S-4. I find 

Meador’s testimony that he corrected all loose ribs during his examination to be contradicted by 

the sheer number of loose ribs found by Seitz and the fact that it took nine miners 24 hours to 

abate the order. Ex. S-1. It is also contradicted by the credible testimony of Seitz as confirmed by 

his inspection notes taken contemporaneously with the event. 

John Devers, General Manager, testified that Robinson left Peabody in July 2016 and that 

he had never spoken to Devers about the rib conditions. Tr. 150. He maintained that Robinson 

and he never spoke of work – only personal things. Tr. 154. He also attributed the loose ribs to 

the mud seam and stated that it made the ribs less stable than elsewhere in the mine. Tr. 154. I 

find Devers’ testimony to be unreliable. There is no objective reason why Seitz would record a 

conversation he had with Robinson on the day of the inspection in such detail had it not taken 

place. It is also corroborated by the fact that shortly after this event, Robinson left the 

employment of Peabody when Devers did not respond to his complaint about the condition of the 

ribs and his request to be relieved of his duties to examine this entryway. 

2. The Violation 

The narrative section of Order No. 9101931 states that the 3rd South West Sub-Main R/S 

Return Entry #8 from crosscuts 64 to 90 were found to have rib rash and multiple loose ribs on 

both rib lines exposing the weekly mine examiner to the hazard of being crushed by rib rolls 

and/or rib failure, in violation of 30 C.F.R. § 75.202(a). Ex. S-1. 

The violation is assessed as high negligence, S&S, and an unwarrantable failure affecting 

one person and reasonably likely to result in permanently disabling injuries. The Secretary has 

proposed a specially assessed civil penalty of $40,400.00 as the cited standard is identified as a 

“Rule to Live By” standard and the most frequently cited as causing fatal accidents. Ex. S-5. 

 This regulation mandates: “The roof, face and ribs of areas where persons work or travel 

shall be supported or otherwise controlled to protect persons from hazards related to falls of the 

roof, face or ribs and coal or rock bursts.” 30 C.F.R. § 75.202(a). 

Respondent argues that the violative conditions found by Seitz occurred at some time 

after the last examination. Further, it asserts that a violation did not occur because it took 

reasonable efforts to control the loose roof and ribs in the return entry as established by its 

witnesses. I do not find Respondent’s argument to be persuasive. While it is true that weekly 

examiners recorded that they had identified and pried down some loose ribs in this area, the 

credibility of this examination record is questionable because the examiners failed to specifically 

record the areas where loose ribs were located and pried down, as required. Tr. 44; Ex. S-4. 

Furthermore, Seitz contradicted the accuracy of the examination records based on his 

observations of the entry. He saw no evidence of recent pry-downs. Instead he observed dark 

gray rock dust on the floor, no evidence of rock dusting equipment tracks, or material for hand 

dusting. The gap identified by Seitz was obviously not recent as indicated by the color of the rib 

behind it. He was informed by Robinson that the conditions in this entry were so bad that a crew 

of 30 to 40 miners could not pry all the loose ribs in one shift. Indeed, Robinson had asked to be 

taken off the section because he no longer wanted to examine it. In addition, the extent of the 

41 FMSHRC Page 87
hazardous conditions contradicts Respondent’s argument that examiners consistently pried down 

ribs in the weeks prior. While conditions can change rapidly, the existence of 35 loose ribs over 

the course of 4,000 feet, an overwhelming length, does not support Respondent’s claims of 

reasonable efforts to control the ribs in this area. Tr. 46. 

Additionally, relying on the premise that adequate measures were being taken to pry 

loose ribs during the examinations, Respondent argues that the presence of a loose roof or ribs 

alone does not establish a violation of the section. Respondent relies on Jim Walter Resources, 

Inc., (JWR), 30 FMSHRC 872, 879 (ALJ) (Aug. 2008); Harlan Cumberland Coal Co., 22 

FMSHRC 672, 681 (ALJ) (May 2000); and Energy West Mining Co., 18 FMSHRC 1628, 1639 

(ALJ) (Sept. 1996). Respondent’s reliance on these cases is misplaced. While each of these 

decisions is an Administrative Law Judge’s and thus have no precedential value, they are also 

clearly distinguishable on their facts. In each of these cases, a sudden rock fall or coal burst had 

occurred. In JWR, Judge Zielinski found the MSHA investigator issued no violations for 

unsupported roof and was of the opinion that JWR was following its roof control plan and a 

reasonably prudent person familiar with the mining industry and the protective purpose of the 

Act would not have concluded otherwise. Likewise, Judge Cetti found in the other two cases that 

the failure of the pillars was unpredictable and that the operator had fully complied with their 

roof control plan approved by MSHA. In the case of Energy West, the evidence was clear that 

the operator had been working in conjunction with MSHA to deal with the overburden on the 

pillars and had followed suggestions offered by MSHA. Judge Cetti found in both cases that a 

reasonable person familiar with the mining industry and the protective purposes of the Act would 

not have found the operator’s actions to be unreasonable in light of the circumstances known at 

the time of the event. 

I find in the instant case any reasonable person familiar with the mining industry would 

recognize that Peabody was not adequately addressing the loose rib problem which had been 

known to management for a prolonged period of time. They were not sufficiently pried down, 

there was no additional support through bolting or timbers and they were of such a number that, 

as Robinson stated, it would take more than a crew of 30 men over the course of an entire shift to 

begin to correct them all. While that was an exaggeration, it did in fact, require 9 miners 24 

hours to pry down the ribs sufficiently to terminate this violation. Ex. S-1. I find that this 

violation occurred. 

 

3. Gravity and S&S 

 

 The first prong of Mathies has been satisfied in my finding a violation occurred. Based 

upon the conditions described by Inspector Seitz, I find the second prong of Mathies has also 

been satisfied. The discrete safety hazard, a weekly examiner being crushed by rib rolls or a rib 

failure, was contributed to by the presence of 35 loose ribs over the course of 4,000 feet that had 

existed for a prolonged period of time without corrective action being taken. As even 

Respondent’s witnesses confirmed, the condition of the ribs can change and worsen rapidly, 

which underscores the dangerousness of the hazard involved if corrective action is not timely, 

ongoing, and consistent. As Seitz stated, an examiner would be exposed to the hazards of a rib 

fall during each examination and he would not be walking past one loose rib for “one or two 

seconds,” but instead traveling a large area “past a lot of ribs.” Tr. 49. Because of this prolonged 

41 FMSHRC Page 88
exposure to loose ribs, Seitz found it reasonably likely the examiner “would be struck with a 

rib.” Tr. 49. 

The third and fourth prong of Mathies, the reasonable likelihood that the hazard 

contributed to will result in an injury and that the injury will be reasonably serious, are easily 

established by the inspector’s common sense, as he stated being hit by a loose rib that measures 

as much as 29 feet long, 6 feet high, and 12 to 14 inches thick and weigh, at a minimum, 

approximately 10,000 pounds, would be at least permanently disabling. Tr. 50. Violation of this 

mandatory standard is known to be one of the most frequently cited for causing fatal accidents. 

Ex. S-5. 

Respondent contends the violation is not S&S because it would be unlikely that the 

weekly examiner would be traveling the entry at the exact time and place that a rock or rib would 

roll, thereby causing injury. Resp. Br. 15. It further argues that an injury was not likely because 

the entry was only traveled once a week by one examiner who would correct the hazards as he 

found them during his pre-shift examination. Respondent relies on Administrative Law Judge 

decisions Ohio County Coal Co., 31 FMSHRC 1486, 1489 (ALJ) (Dec. 2009) and Freedom 

Energy Mining Co., 32 FMSHRC 1809, 1829 (ALJ) (Dec. 2010) for the proposition that this 

“simultaneous” occurrence of events is necessary to find this violation is S&S. However, these 

decisions are both Administrative Law Judge decisions and therefore do not express the position 

of the Commission, nor do they serve as legal precedent. Furthermore, this “confluence of 

factors” has been addressed by the Commission in cases involving explosions and fires in mines, 

not roof and rib falls. See Paramount Coal Co., Virginia, LLC, 37 FMSHRC 981 (May 2015); 

Consolidation Coal Co., 35 FMSHRC 2326 (Aug. 2013). Those cases discussed the presence of 

all three elements necessary to cause a fire or explosion – potential ignition sources, fuel, and 

methane or coal dust. There is no requirement that the Secretary establish the likelihood of 

simultaneous events, as the Respondent states, for this type of violation to be S&S. 

The Respondent cites to Patriot Mining LLC, 31 FMSHRC 1464, 1470 (ALJ) (Dec. 

2009) in support of his second argument which is equally unpersuasive. Again, the decision does 

not carry precedential value and has been squarely addressed to the contrary by the Commission. 

In Paramount, the trial judge found that there was not a confluence of factors which would have 

resulted in an ignition of a belt fire because wooden baffles that were causing friction were 

immediately removed from service. The Commission, in its remand, stated, “the operative time 

frame for determining if a reasonable likelihood of injury exists includes both the time that a 

violative condition existed prior to the citation and the time that it would have existed if normal 

mining operations continued.” Paramount, 37 FMSHRC at 985 (quoting Rushton Mining Co., 

FMSHRC 1432, 1435 (1989)). The Commission has also stated that the argument that a 

condition would be corrected in a pre-shift examination “is at odds with the basic tenets of mine 

inspection requirements, in that all violations could be defended against as to whether they are 

S&S by maintaining that they would have been recognized in the next pre-shift examination.” 

Consolidation Coal Co., 35 FMSHRC 2326, 2337 (Aug 2013). Additionally, while Respondent 

maintains that only one miner traveled this entry once per week, it ignores the fact that in order 

to address the hazard it would and did require 29 miners over a 24 hour period to correct the 

hazard thereby increasing the exposure to the number of persons over a much broader time 

period if Peabody were to properly maintain the safety of the ribs. 

41 FMSHRC Page 89
I find that, assuming continued normal mining operations, the Mathies test has been met. 

I also find the gravity of this violation to be extremely serious affecting one miner, being the 

weekly examiner, and likely to result in at least permanently disabling injuries. 

4. Negligence and Unwarrantable Failure 

 Seitz stated his rationale in assessing the negligence as high was that Robinson, a 

foreman, was acting as an agent for the operator while conducting his examination. When Seitz 

issued the verbal citation, Robinson had nothing to say in mitigation. In fact, Robinson stated 

that he had spoken with Devers 30 days earlier about the condition of the ribs and that he could 

not correct them during his examination because he had other air courses to examine and it 

would take dozens of miners to pry all the loose ribs down. Tr. 51-52, Ex. S-3. Kamman could 

not give Seitz any mitigating factors either when he was asked. Tr. 51. I find the conduct here 

exhibited an aggravated lack of care that is greater than ordinary negligence. The operator is 

required to be alert for hazardous conditions such as loose ribs that can cause injuries to miners 

and to take necessary precautions to prevent or correct them. As Seitz described, the loose and 

gapping ribs were throughout the entry and patently obvious to anyone. Management was aware 

of the problem which had existed sufficiently long to expose at least the weekly examiner to such 

danger. It neither took preventive measures in the form of timbers or barricades, nor did it take 

sufficient corrective measures as evidenced by the state in which they were found by Seitz. I find 

this violation is the result of high negligence. 

 Seitz designated the violation as an unwarrantable failure to comply with a mandatory 

standard, because the loose ribs were extensive in that they were “everywhere they looked” and 

they were hanging off the wall. Tr. 53. In his opinion, they had been that way longer than the 

previous weekly examination and there were no danger flags, barricades or timbers. The danger 

was that, while walking through this entry, ribs were hanging over a miner’s head, on both sides 

of the passage, and these ribs could come down and the condition was very obvious. Tr. 53-4. He 

determined that the operator was aware of the condition because the notation of loose ribs had 

been in the examination book since April 19, 2016. The book is signed by the examiner, who is 

an agent of the operator, and countersigned by the superintendent. Tr. 54, 60, 144. Seitz stated 

that management was on heightened “negligence” for loose ribs and roof from prior violations. 

He explained that MSHA keeps a record in their office of mines with prior § 75.202(a) 

violations. The lead Authorized Representative determines when to put a mine on the list and 

informs the operator of it. On June 7, 2016, this mine was still on that list. Tr. 55-56. 

 At the hearing, Seitz reiterated that the loose ribs had existed, in their current form, for at 

least a week and possibly since April 19, 2016, when loose ribs were marked in the weekly 

examination book. He based this duration estimate on the existence of dark-gray rock dust on the 

ground and in the gaps between the loose ribs and the passage wall. Tr. 53. Respondent’s 

examiner, Jim Robinson, conceded the area was known to have rib problems as the same 

conditions had existed in 2013 and 2014. Tr. 53. Seitz testified that “everywhere they looked . . . 

there were loose ribs.” Tr. 53. In addition, he observed no attempt to abate the condition, prior to 

Robinson’s simultaneous examination, through flagging, timbering, or prying. Tr. 58-61. 

41 FMSHRC Page 90
 The Secretary argues the unwarrantable failure designation should be upheld based upon 

the inspector’s assessment of the circumstances. 

 Respondent argues the violation did not result from aggravated conduct. Relying on IO 

Coal, in which the Commission held that whether the operator engaged in abatement prior to the 

subject inspection is a key consideration in an unwarrantable failure analysis, Respondent argues 

it took necessary steps to identify and pry the loose ribs during the preceding seven weeks. Tr. 

43; Resp. Br. 18. In addition, Respondent argues the hazardous conditions were neither extensive 

nor lasted an extended period of time. Resp. Br. 20-22. Based upon my analysis below in 

addressing each of these factors, I uphold the unwarrantable failure designation. 

(a) Extensiveness of Violation 

 The extensiveness of a violation can be analyzed in terms of the physical dimensions of 

the affected area, the number of persons endangered, the efforts required to abate the violation, 

or other similar factors. Twentymile Coal Co., 36 FMSHRC 1533 (June 2014); Peabody Coal 

Co., 14 FMSHRC 1258 (Aug. 1992); E. Assoc’d Coal Corp., 32 FMSHRC 1189 (Oct. 2010). 

Other factors that may also be relevant to extensiveness include the number of persons affected 

by the violation and the measures required to abate it. The Commission has stated that the 

extensiveness inquiry “ultimately is a fact question concerning the material increase in the 

degree of risk to miners posed by the violation,” and should account for the broad scope of the 

circumstances surrounding the violation. E. Assoc’d Coal Corp., 32 FMSHR at 1196 (instructing 

ALJ to consider extensiveness of abatement measure needed to terminate the citation). 

 In this case, the condition was found throughout almost an entire entry; a total of 35 ribs 

were loose on both sides of the walkway for 50 crosscuts, or 4,000 feet. Tr. 53. To terminate the 

violation, it required 9 miners over the course of 24 hours to pry down the loose ribs. The 

condition was extensive in both physical dimensions and the amount of effort it took to abate it. 

(b) Duration of Violative Condition 

According to the mine’s own records, the rib violations existed since at least April 19, 

2016. This was seven weeks prior to Seitz’s inspection. This significant duration meant that a 

mine examiner walked through this passage, past loose rib after loose rib, seven times. Tr. 59. 

Robinson and Kamman admitted similar conditions had existed as far back as 2013 and 2014, 

when the area was actively mined. Tr. 39, 108. Ex. S-3. While the current conditions likely did 

not date back to 2013 or 2014, they had, at the very least, existed for a week, according to Seitz’s 

estimates based on the gray color of the rock dust and the absence of rock dusting equipment. 

While the exact length of time is difficult to determine, the Commission has stated that even 

imperfect evidence of duration should be taken into account by the judge. Coal River Mining, 

LLC, 32 FMSHRC 82, 93 (Feb. 2010). Because it was clearly established that the condition of 

loose ribs can worsen quickly, one week is sufficiently long to cause a serious injury. 

 

(c) Degree of Danger Posed by Violation 

Both the extent of the dangerous conditions, which increased the likelihood of a 

hazardous event, as well as the inability of the examiner to contact others in the case of that 

41 FMSHRC Page 91
event, contributed to the high degree of danger that a failed rib would strike or crush an 

examiner, rendering him permanently disabled or worse. This violation was extremely dangerous 

as evidenced by the fact that this standard is the most frequently cited as the cause of fatalities. 

(d) Obviousness of Violation 

 The violation was very obvious. 

 From the outset of the inspection, Seitz immediately noticed the area looked “a little 

rough” as he observed loose ribs. He even remarked to Kamman and Robinson, “Hey, I’m 

starting to see some areas here I really don’t like.” Tr. 32. These were not hidden dangers, rather 

“everywhere they looked . . . there were loose ribs.” Tr. 53. The gaps formed between the 

sloughing material and the passage wall was not insignificant. Seitz observed the material was 

sloughing away from the wall by 9 to 12 inches. He could easily observe rock dust in these gaps. 

Tr. 38. 

(e) Operator’s Knowledge of Existence of Violation 

 

 An operator’s knowledge may be actual or constructive. Knowledge of the predicate 

circumstances is sufficient to establish constructive knowledge. Coal River Mining, LLC, 32 

FMSHRC 82 (Feb. 2010). 

 As stated above, the obviousness of the violation, the frequency with which it was 

recorded in the examination books, and that fact that the operator was put on notice that greater 

efforts at compliance were necessary to address the problem, make it clear that the operator knew 

of the long-standing existence of the violation. I make this finding even discounting the fact that 

Robinson addressed the hazards with Devers prior to this subject inspection. 

(f) Operator’s Efforts at Abating Violative Condition 

 The focus of this element is the efforts, if any, made by the operator prior to the issuance 

of the order. Seitz found no evidence Respondent attempted to abate the dangerous conditions 

prior to his inspection. I find this assessment to be credible. Seitz asked both Robinson and 

Kamman what had been done to remedy this problem. Neither gave an adequate answer. Seitz 

did not observe any flagging, aside from the flags placed by Robinson on the day of the 

inspection, nor did he observe any timbers or freshly-pried sloughage (again, aside from that 

created by Robinson during the course of the simultaneous examination). It is evident that 

Respondent knew of the dangerous conditions and took no action to abate the conditions prior to 

Seitz’s inspection. 

(g) Operator’s Notice that Greater Compliance Efforts Were Necessary 

An operator’s history of past similar violations or other specific warnings from MSHA is 

relevant to inform the operator of the interpretation of a standard or when it can be charged with 

a violation. To demonstrate notice of the need for greater compliance for unwarrantable failure 

purposes, the operator’s history of violations, discussions with inspectors, and other forms of 

specific warnings by MSHA, as well as evidence of record including shift book reports 

41 FMSHRC Page 92
evidencing notice to management of a recurring safety problem in need of correction, is relevant. 

IO Coal, 31 FMSHRC at 1353; Lion Mining Co., 18 FMSHRC 695 (May 1996); Peabody Coal 

Co., 14 FMSHRC 1258 (Aug. 1992). 

 According to the inspection notes, Respondent was cited 22 times for violations of 

75.202(a) since February 2, 2015. Exs. S-3, S-6. In addition, Seitz explained that the mine was 

put on heightened notice for greater compliance and management was made aware of this when 

it was added to the record kept at the MSHA office. Tr. 55-56. Furthermore, both Respondent 

and the Secretary introduced multiple examination reports showing prying of loose ribs and other 

actions such as bolting were ongoing requirements. Exs. R-2, R-3, R-5; Ex. S-4, 1, 3, 5-7, 9-11, 

13-15, 17-19, 21-27, 30. Witnesses for Peabody confirmed that this area was known for having 

loose ribs that changed and worsened rapidly. The examination books, which are countersigned 

by the superintendent, clearly demonstrate that the operator should have been keenly aware by 

the ongoing nature of the hazard that greater efforts at compliance were necessary. Yet no 

additional support was present in the entry. 

(h) Weighing the Factors 

 Obviousness and the degree of danger posed by a violation alone can support an 

unwarrantable failure finding. Manalapan Mining Co., 35 FMSHRC 289 (Feb. 2013); Windsor 

Coal Co., 21 FMSHRC 997 (Sept. 1999). I have already found that the rib condition existed 

throughout the number 8 entry and that roof and rib falls are known throughout the industry to be 

the leading cause of mine fatalities. In light of this, that Peabody had done nothing more to 

support the ribs than expect the weekly examiner to pry them down while covering thousands of 

feet of entries during his examination is tantamount to subjecting him to a game of Russian 

Roulette. These two elements are sufficient to show the complete disregard Peabody exhibited 

for the safety of its miners. In this case, there is also ample evidence to satisfy each of the other 

factors within the unwarrantable failure analysis set forth by the Commission. The existence of 

35 loose ribs over the course of 4,000 feet demonstrate an extensive violation. The hazardous 

conditions had been present for at least one week, but had definitely existed, in some form, for at 

least seven weeks. Respondent knew these conditions existed, as they had been recorded in the 

weekly examination record, and Respondent knew greater efforts were necessary for full 

compliance. For these reasons, I find these factors support a finding of reckless disregard for 

safety and higher than average negligence. 

B. Order No. 9101933 (Docket No. LAKE 2016-0421) 

1. Finding of Facts 

 After making his inspection of the number 8 entry, as detailed in the above Order, Seitz 

went to the surface to review the examination book for the period between April 19 and May 31, 

2016. Tr. 43; Ex. S-4. Upon reviewing the records, he discovered examiners had recorded the 

existence of loose ribs in the area and that these loose ribs had been “pried down.” Tr. 43. The 

examination book had been countersigned by several supervisors including Superintendent Eric 

Carter. Ex. S-3. He questioned Robinson as to why the precise number and locations of the ribs 

were not documented as required and Robinson’s response was that “he would run out of room 

41 FMSHRC Page 93
in the book” if he did so. Tr. 43. Aaron Meador confirmed that it was not until the operator 

received a violation for inadequate examinations that they started listing specific locations for 

hazards found and he never thought it was necessary to do so if the hazard had been corrected. 

He said this was because no one would have to come later to correct it so he didn’t think such 

precision was necessary. Tr. 133. However, as I have found in the previous order, the conditions 

were not being corrected during the examinations or thereafter. As Seitz testified, there was no 

visible evidence that such prying had taken place. There were also no timbers, barricades, or 

other means of support in the area. 

2. The Violation

 The narrative section of this order issued by Inspector Seitz states that an inadequate 

weekly examination was conducted on the 3rd South West Sub-Main R/S Return air course. It 

cites the same conditions of the ribs as cited in the previous order and goes on to document that 

the record book “lists hazards as loose ribs only, and pried ribs down as the action taken.” Ex. S2. The order is assessed as reasonably likely to result in permanently disabling injury to one

person, S&S, high negligence, and an unwarrantable failure to comply with the mandatory

standard. The Secretary has proposed a penalty of $5,054.00. Ex. S-2.

The cited mandatory standard requires: 

At least every 7 days, an examination for hazardous conditions and 

violations of the mandatory health or safety standards referenced in paragraph 

(b)(8) of this section shall be made by a certified person designated by the 

operator at the following locations: . . . (2) In at least one entry of each return air 

course, in its entirety, so that the entire air course is traveled. 

30 C.F.R. § 75.364(b)(2). 

 In his post-hearing brief, the Secretary argues Respondent violated 30 C.F.R. § 

75.364(b)(2) in two distinct ways. First, a violation occurred when Respondent’s weekly 

examiners recorded that they had pried down loose ribs in the return entry, despite the fact that 

Inspector Seitz observed no newly-pried materials to corroborate that claim. Sec’y Br. 14. 

Second, Respondent violated § 75.364(b)(2) when its weekly examiners recorded the existence 

of loose ribs and their actions of prying down those ribs, but did not list the exact locations of the 

ribs or the actions taken, despite the requirement for specificity. Sec’y Br. 15. 

 Respondent argues the weekly examinations, both the one conducted by Mr. Robinson on 

June 7, 2016, and those previous, were adequate and thus no violation of § 75.364(b)(2) 

occurred. Respondent summarizes the steps taken by Mr. Robinson on June 7, 2016, including 

checking, flagging, and prying ribs, as needed. Tr. 73, 111; Resp. Br. 12. In addition, Respondent 

argues that prior weekly examinations were accomplished in a similar fashion. Resp. Br. 12.5

 

5 Respondent also argues that the written order is invalid as it does not provide the 

required specificity as to the date and time of the particular examination that was inadequate. 

This order was issued orally during the examination by Seitz who was accompanied by a 

(continued...) 

41 FMSHRC Page 94
 I do not find Respondent’s arguments to be persuasive. While some notations were made 

in the book concerning loose ribs and prying them down, Robinson and Meador confirmed 

conditions were omitted or not specified due to common practice of the mine and the sheer 

number of hazards they would have had to document. Ex. S-4. Seitz was quite clear in explaining 

that even hazards that no longer exist, i.e., those which have been abated, must be recorded with 

particularity. Tr. 45. 

 In a recent unpublished opinion issued by the United States Court of Appeals for the 

District of Columbia, the court addressed the recordkeeping requirement by mine examiners for 

hazardous conditions and corrective actions taken in a situation where the examiner recorded in 

the book “slope needs cleaned – work in progress.” Mach Mining, LLC. v. FMSHRC, No. 18-

1048, Sept. Term, 2018 (DC Cir. 2019). The operator argued that this was sufficient to record the 

nature and location of the hazardous condition. The Court of Appeals upheld the judge’s 

determination that it was not sufficient. It concluded that the location must be sufficiently 

recorded so that those who read it will know where and how to address the problem. Mach 

Mining, LLC., No. 18-1048, Sept. Term, 2018 (DC Cir. 2019). 

 The Commission, in its review of the trial judge’s decision in Mach, categorically 

rejected Mach’s contention that the language of the standard does not require any degree of 

specificity. Mach Mining II, 40 FMSHRC 1 (Jan. 2018). The Commission held that there were 

multiple locations over a distance of 105 feet where accumulations were in contact with the belt. 

The inspector had testified that the notations in the book were deficient because the slope belt 

needed cleaning every shift. The same notation appeared in the examination book over the 

course of dozens of examinations. The Commission stated, “MSHA has recognized that “[a] 

record of all hazards found, as well as the required corrective action, serves as a history of the 

types of conditions that can be expected in the mine. When the records are properly completed 

and reviewed, mine management can use them to determine if the same hazardous conditions are 

recurring and if the corrective action being taken is effective.” Mach Mining II, 40 FMSHRC at 

12 (citing Safety Standards for Underground Coal Mine Ventilation, 61 Fed. Reg. 9764, 9803 

(Mar. 11, 1996)). The Commission found the vague language in Mach’s examination book 

frustrated the purpose and further did not enable miners to know of dangerous conditions before 

they went underground. Mach Mining II, 40 FMSHRC at13. The language in the recordkeeping 

regulation involved in Mach is essentially identical to that contained in the regulation cited here. 

That is, “a record of hazardous conditions and violations . . . found during each examination and 

their locations, and corrective action taken” are to be recorded in the examination book. 30 

C.F.R. § 75.364(h).

 The purpose of both mandatory standards, § § 75.363(b) and 75.364(h), is identical – to 

help identify recurrent conditions, assess the effectiveness of corrective action taken, and to 

5

 (...continued) 

representative of management. The reason for the violation was explained to him at the time the 

violation was found. The Commission has consistently held a written violation is sufficient if the 

operator is adequately advised of the violating conditions and the operator was sufficiently 

notified of them in order to abate them. Additionally there was no prejudice to the operator in 

their preparing for trial as pretrial discovery was robust. See Jim Walters Resources, 1 FMSHRC 

1827 (Nov. 1979); Twentymile Coal Co., 26 FMSHRC 666 (Aug. 2004). 

41 FMSHRC Page 95
protect miners before going underground. Although Seitz’s Order is not charged as a violation 

of the recordkeeping section of § 75.364, if the record is inadequate, then the entire examination 

is for naught and frustrates the purpose of identifying ongoing problems, correcting them, and 

protecting the health and safety of the miners. 

 The facts in Mach are also analogous to the instant case. The hazards were numerous and 

widespread over the course of a 4,000-foot-long entry. The record books indicated, as did the 

witnesses from Peabody, that this area was known to have recurrent problems with the ribs. To 

abate the violation, nine miners spent 24 hours cleaning the area. Had the examination been 

adequate and the specific locations and corrective actions been recorded, it should have been 

readily apparent that the measures taken were deficient and more support was needed. It also 

forced the weekly examiners to go underground not knowing exactly where the hazards would be 

located and exposing them to an unreasonable danger. 

I find the Secretary has met his burden of proving this violation. 

3. Gravity and S&S 

 Inspector Seitz characterized this as an S&S violation essentially for the same reasons as 

the previous Order. Tr.57. The weekly examiner would go through the area by himself exposed 

to large ribs either coming down off the top or sloughing down which would be reasonably likely 

to cause an injury. Any injury would be serious in nature and permanently disabling. Since the 

examiners did not have trackers on them, he would be unable to contact anyone for help. Tr. 57-

58. Respondent disputes the S&S finding and makes the same argument against such a finding as 

it made concerning the S&S finding for Order No. 9101931. Because the argument is 

duplicative, I incorporate my earlier analysis, as applied to Order No. 9101931, here.6

 

 I find that this violation meets the four elements of the Mathies test and therefore I 

uphold the Secretary’s characterization of the violation as S&S. Respondent violated § 

75.364(b)(2), a mandatory safety standard, when it failed to adequately conduct a weekly 

examination of the return entry. This created a “measure of danger to safety” because it increased 

the likelihood that hazardous conditions within the return entry, such as loose ribs, would go 

unresolved. Mathies, 6 FMSHRC at 3-4. The Commission has found that the failure to conduct 

an adequate pre-shift examination satisfies the third prong of the Mathies test, because such a 

failure “exposed its miners to the underlying hazardous conditions.” Dominion Coal Corp., 35 

FMSHRC 3557, 3600 (Dec. 2013). Here, an inadequate weekly examination exposed miners to a 

reasonable likelihood of an injury sustained by a rib failure and such injury would be serious. 

 I find that, assuming continued normal mining operations, the Mathies test has been met. 

I also find the gravity of this violation to be extremely serious affecting one miner, being the 

weekly examiner, and likely to result in at least permanently disabling injuries. 

 

6 As stated above, the argument that a condition would be corrected in a pre-shift 

examination “is at odds with the basic tenets of mine inspection requirements, in that all 

violations could be defended against as to whether they are S&S by maintaining that they would 

have been recognized in the next pre-shift examination.” Consolidation Coal Co., 35 FMSHRC 

2326, 2337 (Aug 2013). 

41 FMSHRC Page 96
4. Negligence and Unwarrantable Failure

Seitz testified that he marked this violation as high negligence and an unwarrantable failure 

for the same reasons as the previous order. Peabody contests the negligence and unwarrantable 

failure designation based on the same arguments raised and addressed in the previous Order. I 

find they are not persuasive for the same reasons set forth in my analysis above. 

 I uphold the high negligence designation for the reasons set forth in the previous Order. I 

also find the unwarrantable failure designation to be supported for the same reasons set forth 

above and reiterated below. 

 (a) Extensiveness of Violation 

 The extensiveness was demonstrated by the fact that there was no specificity in the 

examination book to determine how many or where the ribs were that needed correction. In fact 

Seitz found far more loose and sloughing ribs, and in many more locations, than was indicated in 

the examination record. In fact, he found loose and sloughing ribs on both sides of the entry 

throughout the 4,000-foot length of it with no flagging, barricading, timbering, or prying having 

taken place. The violation was also extensive in the sense that it had been the historical practice 

at the mine not to indicate the location or corrective actions taken in the examination book until a 

violation for failing to do so was issued. The statements of both Robinson and Meador confirmed 

this. 

 (b) Duration of Violative Condition 

 Seitz reviewed the examination book back as far as April 19, 2016, in determining that 

the record was not being properly completed. Tr. 44, 59. The weekly examiners failed to 

adequately record the results of their weekly examinations for at least seven weeks. However, as 

Robinson told Seitz, he never put all the information in the book because he would run out of 

room. Meador confirmed that at the time of this inspection, they had not been in the practice of 

recording that information in the examination book. It was not until they were cited for not doing 

so that the practice changed. It is unclear just how far back the practice went but it is abundantly 

clear that it was far too long considering the danger posed to the examiner making his weekly 

examination. It would additionally pose the same danger to miners had Respondent assigned the 

appropriate number of persons needed to maintain the ribs in satisfactory condition. 

 (c) Degree of Danger Posed by Violation 

 The degree of danger posed by the inadequate, even misleading, record of the weekly 

examination was great. As discussed, despite the fact that examiners claimed to have pried down 

loose coal material during prior weekly examinations, Seitz witnessed no evidence to corroborate 

this claim. Tr. 53. Therefore, the inadequate weekly examinations created a situation where a 

miner would go underground without knowledge of where loose ribs were located, thus exposing 

him to grave danger. It did, however, enable management to ignore the fact that this was a 

serious ongoing problem which required greater corrective action to protect its miners. This rib 

41 FMSHRC Page 97
failure could have catastrophic effects, including the striking, crushing, or pinning of a miner. Tr. 

49. 

 (d) Obviousness of Violation 

 A trained weekly examiner of a mining operation would have known the requirement to 

list the specific locations of hazards and the actions taken to abate them. The two-word notations, 

“loose ribs” and “pried down,” lacked any specificity sufficient to alert other examiners, miners, 

or mine management of the location of these hazards. This would have been obvious to any 

informed reader of the examination book. 

 (e) Operator’s Knowledge of Existence of Violation 

 Testimony from both Seitz and Peabody’s witnesses confirmed that once the weekly 

examiner signed the examination book, it was countersigned by the Superintendent of the mine. 

Tr. 54-55, 60, 141, 144. Based upon the extensiveness and obviousness of the rib condition 

compared to the vague and very few notations in the book, I find the operator had at least 

constructive knowledge of this violation. 

 (f) Operator’s Efforts at Abating Violative Condition 

 While the examiner noted that “loose ribs” were “pried down” in preceding 

examinations, Seitz found no evidence that loose material had been pried down in the passage. 

Tr. 48. No visible evidence, in the book or the passage, demonstrated an effort to abate the 

violation. Tr. 53. There was also no evidence presented that the operator took any steps to 

instruct or train the examiners to properly complete the examination books until they were cited 

for the behavior. 

 (g) Operator’s Notice that Greater Compliance Efforts Were Necessary 

Respondent was aware of the need for greater compliance efforts in conducting weekly 

examinations because it had been cited 15 times for violating § 75.364(b) since June 29, 2015. 

Ex. S-3. Seitz stated that the mine was on heightened negligence for this condition and it was 

communicated to the operator. Tr. 61 

 (h) Weighing the Factors 

 There is ample evidence to satisfy each of the factors within the unwarrantable failure 

analysis set forth by the Commission. It had obviously been the practice of the examiners to 

omit from the record book the specific location and action taken of hazards found. Whether it 

was because the conditions were so extensive that the examiner would run out of room in the 

book or because it would have revealed to the MSHA investigator, who reviews the mine books 

during each quarterly inspection, how extensive and unabated the conditions were is immaterial. 

As the Commission has stated, the specificity required in the examination book is to protect 

miners from entering an area without warning of the potentially deadly hazards that may exist 

there. It also serves to identify for the operator ongoing problems that would require more 

41 FMSHRC Page 98
extensive remedial action. The book was countersigned by the Superintendent of the mine which 

means such behavior was at least condoned by management making the violation that much 

more egregious. I find the danger posed by this violation alone supports a finding of an 

unwarrantable failure to comply with the mandatory standard. 

C. Order No. 9101766 (Docket No. LAKE 2017-0178) 

1. Finding of Facts 

MSHA inspector Nicholas Vandergriff issued this order on September 20, 2016, during 

his quarterly inspection of the mine. Tr. 163. Vandergriff started his inspection by reviewing the 

mine’s files including roof control and ventilation plans to check for deficiencies. He also 

reviewed a copy he brought from the heightened negligence book retained at MSHA. This mine 

had been on the list for accumulations since July 2015. Tr.157, 217. He was then escorted 

underground by Randy Hammond, a weekly examiner and member of the mine’s Compliance 

Assistance Safety team. Tr. 163. Vandergriff began his underground inspection at the power 

center of the 4th Southeast (SE) belt line, which runs coal to the outside of the mine. Tr. 163, 

166. Almost immediately upon his arrival underground, the belt went down. Tr. 167. Hammond 

contacted Jason Fink, the head maintenance chief, who attempted to diagnose the problem with 

the belt. Tr. 167. 

While Fink worked on the belt, Vandergriff went to observe the head drive and saw two 

miners who were assigned to go from belt drive to belt drive cleaning by shoveling loose coal, 

dusting the drive, and spraying them as needed. Tr. 168, 171. This concerned Vandergriff 

because he had reviewed the examination book prior to going underground and the miners were 

not addressing the conditions observed by the examiner and were engaged in cleanup work in an 

area that had been listed in the examination book as having been completed on September 19, 

2016 Tr. 168-71; Ex. S-12, 34. 

Traveling inby within the first break or two, Vandergriff observed loose coal on the 

intake side of the belt. The accumulations measured anywhere from two to four inches deep and 

two to four-and-a-half feet wide. Tr. 173. After observing these conditions for another three to 

four crosscuts, or about 200 to 250 feet, Vandergriff informed Hammond he was going to issue a 

104(a) citation. Hammond did not respond. Tr. 174. After walking four more crosscuts, 

Hammond said, “This is going to get bad. I have to go make a phone call.” Tr. 174. He did not 

elaborate. At that point, Hammond left. The belt had been switched on and off three or four times 

prior to Hammond’s remark and was currently off. Vandergriff observed piles of coal along the 

entire length they had walked so far. Tr. 174-75. He began photographing the conditions. Tr. 

174-75; Ex. S-11. At trial, referring to his photographs, he pointed out an “abnormal” amount of 

accumulations several crosscuts long on the intake side of the belt and a misaligned roller above 

a pile of coal. Tr. 175-78; Ex. S-11. Vandergriff pointed to one photograph where in one location 

on the intake side of the belt, a portion of the belt was not properly aligned with the top roller 

which would cause the belt to sway back and forth when in motion. Tr. 179-80; Ex. S-11, 7. 

Photograph 10, Vandergriff testified, showed the top belt shoved towards the haul road side of 

the entry. He explained this misalignment happens when coal is dumped onto a full belt which 

causes it to be deposited onto the bottom belt and then thrown onto the ground. Tr. 192. 

41 FMSHRC Page 99
Referring to Photograph 6, he testified that it depicts where the belt was running inside the top 

roller rather than underneath them causing the belt to overhang the roller by as much as 10 

inches. Tr. 195-98. He additionally observed areas where the belt was resting on the metal 

structure and had made gouges from one-half to one inch deep. Tr. 199. During the time 

Vandergriff was taking photographs, Hammond repeatedly met up with him and then walked 

back to the haul road to call in to get people to start shoveling. Tr. 180-81. 

 

Vandergriff was approached by MSHA Compliance Assistance Program (CAP) 

personnel Danny Mann and Kris Robinson. At this time, Vandergriff told Hammond he was 

issuing a 104(d) order. Tr. 183. Robinson requested that Vandergriff not issue the order, because 

they would ensure the spillage was cleared. After a short conversation with Mann, Vandergriff 

reiterated to Robinson and Hammond that he was going to issue a (d)(2) order. Hammond left 

with no response. Vandergriff walked down to the head drive and the belt was locked and tagged 

out. Tr. 185. 

Vandergriff continued his inspection walking inby the belt drive. Six or seven miners 

were shoveling the accumulations. Tr. 185. He recognized an examiner, Nathan Kamman, and 

asked him how long the belt had been in this condition. Kamman answered that he had not 

examined the belt in some time, but when he had, it had always been as Vandergriff observed 

and he, Kamman, and management knew about it. Tr. 185-86. 

Vandergriff stated that he determined the condition had existed since September 6, 2016. 

He explained that there had been an A and a B belt at one time but the motors on the B belt went 

down so the B belt drive was removed and the A and B belts were spliced together. When they 

did so, they removed the rollers but not the tails on the B belt and just moved it over and 

connected them together. While the A belt was straight, the B belt had a slight angle, so when the 

two were spliced together the change was “enough to throw off an entire belt line” in his opinion. 

Tr. 186-87. This caused the accumulations that he observed on the ground. Kamman confirmed 

that the situation had been like that since they removed the B belt. Tr. 187. 

 As he continued up the belt line, Vandergriff continued to take photographs, make notes, 

and take measurements of the accumulations. After 25 or 30 breaks, Hammand would walk back 

in at each crosscut, ask what conditions were found, and go back to the haul road and call for 

additional people. Tr. 188. Vandergriff stated that he found coal, float coal dust, and belt 

pressings anywhere from 2 to 10 inches deep. Tr. 188. At crosscut 119, he spoke to Don Moeller, 

another examiner, who stated he knew about the (d)(2) orders and told him the cited conditions 

had existed for a long time. Tr. 189. Moeller stated that management knew about the issues, but 

did not specifically identify any member of management. Tr. 190. By this time, two hours had 

elapsed since Vandergriff had placed the closure tag on the belt, which had effectively shut down 

the mine. Tr. 189-190. He observed nearly 20 to 25 people shoveling the accumulations in the 

worst part, which was located 30 breaks away from where the belts were spliced together. Tr. 

191. 

 

41 FMSHRC Page 100
2. The Violation 

 In the narrative section of Order No. 9101766, it states that accumulations on the 4th SE 

belt line in the form of loose coal, float coal dust, and belt pressings were found in numerous 

specified locations from the 2nd Main South tail to the head drive measuring varying widths and 

depths primarily on the intake side. The violation is charged as reasonably likely to result in a 

fatality, affecting 30 miners, S&S, and an unwarrantable failure to comply with a mandatory 

standard. The Secretary proposes a civil penalty of $69,417.00. Ex. S-7. 

The cited mandatory standard provides: “Coal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be 

permitted to accumulate in active workings, or on diesel-powered and electric equipment 

therein.” 30 C.F.R. § 75.400. The purpose of the standard is to prevent the “confluence of 

factors” which can cause a fire and propagate an explosion in a mine. McCoy Elkhorn Coal, 

Corp., 36 FMSHRC 1987, 1992 (Aug. 2014). 

 The Secretary maintains that Respondent violated § 75.400 because it allowed coal 

material to accumulate along a “vast majority” of the 4th SE belt line and failed to properly abate 

those conditions in an effective and timely manner. Sec’y Br. 40. Allowing the coal, coal dust, 

and belt pressings to accumulate in an environment where the belt was rubbing on the metal 

structure would in the course of continued normal mining operations pose the hazard of a fire or 

ignition. 

 Peabody contests the violation on three grounds. First, that Vandergriff did not actually 

take measurements of the accumulations. Second, that what Vandergriff cited was actually 

spillage rather than accumulations. Third, that it was not likely that the material was 

combustible. 

 Hammond stated that he did not see Vandergriff take the measurements listed in the 

narrative section of the order. However, he confirmed that he was continually darting back and 

forth between the belt line and the haul road to call out for shovelers to address the conditions 

found by Vandergriff. He maintained that he went out and back in the same crosscut each time 

purporting to say that Vandergriff was never out of his sight. Tr. 328. While Hammond was at 

the haul road, which was frequent, Vandergriff did not stop his inspection on the opposite side of 

the belt. It is entirely plausible that Hammond did not observe a great deal of what Vandergriff 

was doing during his frequent absences. And, in fact, Hammond testified that he didn’t “recall” 

seeing Vandergriff take measurements which is quite different from saying he did not do so. Tr. 

328. When asked whether he trusted Vandergriff, Hammond testified that he found him to be 

competent and trustworthy and he believed the measurements he cited. Tr. 368. Hammond also 

confirmed, as Vandergriff had testified, that the coal was one half of an inch away from the belt 

at crosscuts 13 to 17. Tr. 352. I find Peabody’s first argument to be baseless. 

As to its second point of contention, that the coal represented “spillage” rather than an 

accumulation, I find the implied significance of the distinction between the two unsupported by 

case law. In support of its argument, Peabody cites to Old Ben Coal Co., 1 FMSHRC 1954 (Dec. 

1979) and Utah Power & Light Co. v. Sec’y of Labor, 951 F.2d 292 (10th Cir. 1991). However, 

41 FMSHRC Page 101
these cases do not support the Respondent’s theory of spillage versus accumulations. In 

addressing whether a condition was an accumulation or spillage, the Court of Appeals stated, 

“FMSHRC has expressly rejected the argument that ‘accumulations of combustible materials 

may be tolerated for a reasonable time.’” Black Beauty Coal Co. v. FMSHRC, 703 F.3d 553 (DC 

Cir. 2012). The court went further to state that § 75.400 “was directed at preventing 

accumulations in the first instance, not at cleaning up the materials within a reasonable period of 

time after they have accumulated.” Black Beauty, 703 F.3d. at 2 (citing Old Ben Coal Co. (Old 

Ben 1), 1 FMSHRC 1954 (1979)). Citing Utah Power & Light Co., the court recognized that the 

test for whether an accumulation exists is if “a reasonably prudent person familiar with the 

mining industry and the protective purpose of the standard, would have recognized the hazardous 

condition that the regulation seeks to prevent.” Black Beauty Coal Co., 703 F.3d at 558 (citing 

Utah Power & Light Co., 951 F.2d 292 (10th Cir. 1991)). I find Vandergriff’s testimony that the 

amount of material he observed was both extensive in length, sufficiently deep to be abnormal, 

and posed a potential for a fire or explosion credible. See McCoy Elkhorn Coal Co., 36 

FMSHRC 1987, 1993-94 (Aug. 2014) (finding accumulations were extensive where spillage was 

more extensive than normal). I further find, based upon his description, measurements, and 

photographs of the conditions, he found that a reasonably prudent person familiar with the 

mining industry would recognize the hazardous condition that the regulation seeks to prevent. 

The material found by Vandergriff was not spillage, as Respondent defines it, and there is no 

tolerance for it to exist without appropriate corrective action underway, which there was not. 

 With regard to its last argument, the fact that some of the coal may have been wet, mixed 

with mud, or dusted making it non-combustible is not persuasive. The Commission has long 

recognized that wet coal can dry out quickly and provide the fuel necessary for a fire or 

explosion. See Consolidation Coal Co., 35 FMSHRC 2326 (Aug. 2013); see also Continent Res. 

Inc., 16 FMSHRC 1226 (June 1994). Again, the photographs taken by Vandergriff, his notes 

taken simultaneously with the inspection, and his measurements clearly disprove the assertion 

that the material was mostly wet, muddy material. This is especially true in the area where the 

coal was a mere half of an inch from the belt. 

 The Secretary has met his burden of proving this violation. 

3. S&S Designation and Gravity 

I find that this violation meets the four elements of the Mathies test and therefore I 

uphold the Secretary’s characterization of the violation as S&S. The first factor is satisfied by my 

finding of the violation of a mandatory safety standard. 

 The second element is also satisfied because the discrete hazard posed by the 

accumulations was reasonably likely to cause harm. The testimony established that 

accumulations were a mere one half of an inch below the belt at points and the belt had gouged 

into the metal structure by as much as an inch, which could be an ignition source. Assuming 

continued normal mining operations and the amount of coal being dumped off the belt, it would 

take a very short period of time before the accumulations were sufficiently deep to make contact 

with the belt providing fuel to propagate a fire or explosion. The accumulations would be likely 

to ignite and such an ignition would be likely to result in injury. 

41 FMSHRC Page 102
 Respondent contends that the material would have been corrected during the next 

examination. I have already rejected the argument that this was merely a spill. The validity of the 

argument that the condition would be corrected during the next examination has also been 

addressed in section A. 2. of this decision’s discussion of Paramount Coal Co. under Order No. 

9101931. The condition was far too extensive for correction to be made during an examination. 

It required numerous miners a considerable amount of time to rectify the situation. 

 

 Respondent argues that there was not a confluence of factors to make an ignition possible 

as there were no ignition sources present. It alleges that Vandergriff’s testimony regarding the 

belt rubbing in the structure was essentially fabricated. Resp. Br. 49. I find Vandergriff was a 

credible witness. He exhibited excellent recall of the facts without having to reference his notes. 

That this particular fact was not in his notes is not a concern to me. His testimony as a whole was 

specific, detailed, and corroborated by photographs and in some instances by witnesses for 

Peabody. As described in some detail above, he had a photograph of a section of the belt that 

extended over the rollers by a significant margin. The misalignment of the belt rubbing against 

the rollers alone could serve as an ignition source. A belt rubbing in coal can also be an ignition 

source and with continued normal mining operations, it would take very little time for the 

accumulations to contact the belt. 

 The third Mathies factor is also satisfied. The Fourth and Seventh Circuits’ application of 

this factor requires the assumption that the hazard occurred and looks to whether an injury would 

be serious. Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148,162 (4th Cir. 2016); Peabody 

Midwest Mining, LLC v. FMSHRC, 762 F. 3d 611, 616 (7th Cir. 2014).7

 Due to the extensive 

nature of the accumulation, an ignition would be highly likely to result in a fatality. This entry 

also serves as a haul road, meaning that equipment passes through it. Tr. 202. Additionally, belt 

rollers and head drive motors located on the belt are considered pieces of equipment. See Buck 

Creek, 52 F.3d at 135 (affirming S&S designation where the frictional heat from a roller turning 

in coal dust could easily cause a fire, despite no evidence that the roller was hot or defective). 

Tom Burnett testified that on September 16, 2016, his team changed a bad roller which he 

confirmed can become a fire hazard. Tr. 452-55; Ex. S-12, 27. While there was no evidence 

produced that this mine is gassy or methane was present, it does not negate the likelihood that 

rollers running in coal creates an ignition hazard. Tr. 454-55. 

 The fourth factor has also been met. As Vandergriff testified, the beltline is also an 

escapeway. It is the primary escapeway for Unit 3 at crosscut 52 and a secondary one for the 

other two units. Should there be a fire on Unit 3 inby crosscut 52, with the air directed outby, the 

fire could travel through their primary escapeway preventing escape. Tr. 203. If an explosion 

were to occur, it would be propagated outby and any miners located outby the explosion could be 

burned, overcome by smoke, or disoriented and unable to escape. Tr. 202. 

 I find this violation was properly designated as S&S. Vandergriff explained that the unit 

averaged 16 to 18 miners in Unit 3 and there were commonly mechanics, shovelers, and others 

working on the haul road at any one time. There could be as many as 30 persons affected. Tr. 

203. I find the gravity to be extremely serious as the hazard could have caused fatal injuries to at 

least 20 miners.

 

7 This case was heard in Southern Indiana within the 7th Circuit. 

41 FMSHRC Page 103
4. Negligence and Unwarrantable Failure 

a. Negligence 

Vandergriff determined that the violation was due to reckless disregard when he issued 

the order. It was subsequently modified to high negligence. He stated that high negligence was 

appropriate due to the conditions he saw and because no one was able to offer any mitigating 

evidence. Tr. 204. 

The Commission considers the actions a reasonably prudent person familiar with the 

mining industry would have taken under the circumstances to comply with the protective 

purpose of the mandatory standard. See U.S. Steel Corp., 6 FMSHRC at 1910. 

 The Respondent argues that high negligence is not supported by the evidence, however, it 

offers no explanation as to why in its brief. It addresses only the unwarrantable failure factors. 

Witnesses for Peabody testified that they were aware of the problem with the belt spilling 

coal. Ryan Sandefur, Peabody’s safety manager, testified that he was the belt coordinator at the 

time of the inspection. Tr. 258. At one time, there were two belts, 4th SE A and 4th SE B, 

serving the three working units. Units 1 and 2 dumped onto the B belt and Unit 3 dumped onto 

the A belt at crosscut 50. Tr. 287. At some point around September 6, 2016, two or three 

reducers failed on the B belt. Each reducer costs $25,000.00 and would require at least one shift 

of down time to install them. Tr. 288. Due to the time and expense, it was determined that the 

two belts could be joined into one without affecting the ability of the belt to function. Additional 

structure was added to bridge the gap between the two belts and belts were spliced together. The 

newly spliced belt measured 7,000 feet in length and worked well until September 13, 2016, 

when it started to spill coal mostly at the head of the belt. Tr. 262-70, 285. Sandefur began to 

investigate the cause of the spills over the next several days and assigned a belt mechanic, Travis 

Kyffin, to spend extra time on the belt to figure out what the cause was. Tr. 271-75. He also 

assigned workers to spray the belt, level the structure between the head and the 3A dump area 

where most of the spillage was occurring. Tr. 277. On September 19, 2016, he told his leadman 

that the two of them were going to come in the following day to figure out what was going on 

even if they “had to live down there for the rest of the week.” Tr. 280. Before that plan could be 

put into effect, however, Vandergriff showed up the next morning to conduct his inspection of 

the belt line. Tr.282. 

 In contrast to Sandefur’s testimony, when Vandergriff asked examiner Nathan Kamman 

how long the belt had been in this condition, Kamman answered that he had not examined the 

belt in some time, but when he had, it had always been like that and he had called it out. Tr. 185. 

Additionally, Sandefur stated that the spills were located at the head of the belt and that is where 

the work was concentrated. Tr. 270. Vandergriff testified that when he arrived at the head, 

miners were moving from belt head to belt head shoveling. However, he found the 

accumulations were also at the following locations: 

4th SE head drive to XC 8 6" to 1" in depth by 3' in width, road side XC 6-11 1" 

to 5" in depth by 3 1/2 feet in width, intake side XC 8-12 1" to 2 1/2' in depth by 

4' wide, intake side XC 13-18 1" to 2 1/2' in depth by 4' width, intake side XC 21-

41 FMSHRC Page 104
24 1" to 4" in depth by 3 1/2' in width, intake side XC 25-31 1/2" to 6" in depth 

by 3 1/2' in width, under belt/intake side XC 32-34 1" to 4" in depth by 2 1/2' in 

width, under belt/intake side XC 36-40 1" to 6" in depth by 2 1/2' in width, under 

belt/intake side XC 42-46 1" to 3" in depth by 3 1/2' in width, under belt/intake 

side XC 48-51 1" to 5" in depth by 4' in width, under belt/intake side XC 51-52 1" 

to 3" in depth by 3 1/2' in width, under belt/intake side XC 52-60 1" to 3" in depth 

by 3 1/2' in width, under belt/intake side XC 63-69 1" to 3" in depth by 3 1/2' in 

depth, under belt XC 71-73 1" to 3" in depth by 3' in width, under belt XC 78-82 

1" to 3" in depth by 3' in width, under belt/intake side XC 86-89 1" to 3" in depth 

by 4' in width, under belt XC 90-93 1" to 4" in depth by 3' in width, all belt line 

XC 95-101 1" by 6" in depth by 10' wide, all belt line XC 104-114 1" to 3" in 

depth by 16' in width, under belt XC 116-119 float dust to 3" in depth. 

Ex. S-7. 

 

Shortly before arriving at the mine, Vandergriff was contacted by another examiner who 

had asked to speak with him. The miner met with him briefly and informed him that the 4th SE 

belt line was a disaster and no one was taking care of it. Vandergriff was also informed that the 

books were being signed off indicating the work was being done when in fact it had not been and 

upper management had been informed of it. Ex. S-10. While I may not give these statements full 

faith on their own, they corroborate the conditions Vandergriff observed for himself. They also 

are corroborated by the statements made to Seitz by Robinson that the hazardous conditions at 

Peabody were not sufficiently corrected. Both he and Meador stated that identified hazards were 

not accurately reflected in the examination books and management was well aware of the 

practice. 

 The testimony from Respondent’s witnesses do not overcome or in any way mitigate the 

gross lack of care for miners’ safety exhibited by Peabody. High negligence is appropriate. 

b. Unwarrantable Failure 

The Secretary requests Vandergriff’s unwarrantable failure designation be upheld, citing 

the extensiveness and obviousness of the accumulations posing a high risk of danger. 

Sec’y Br. 45. 

 The Respondent asserts that the Secretary has not established any of the unwarrantable 

factors. It posits that Peabody took numerous steps to control and remedy the spillage; the 

condition did not exist for an extended period of time; it was not extensive; mine management 

had no knowledge of the cited conditions; and that the Secretary has disclaimed that the 

heightened notice due to past violations was used in support of the unwarrantable failure 

assessment. Resp.’s Br. 52-57. 

 

 After considering the following factors, I uphold the unwarrantable failure designation. 

 

41 FMSHRC Page 105
(a) Extensiveness of Violation 

 The accumulations of coal extended along the 4th SE belt line for a mile and a half as 

detailed in the narrative section of the Order. Tr. 166; Ex. S-7. Their depth ranged from two to 

six inches, while their width ranged from four to four and a half feet wide. Tr. 173; Ex. S-7. The 

windrow of coal, which was measured to be one half of an inch from the belt in one area, was 

1,600 feet long. Tr. 349-50. This was an extensive accumulation of coal material. While 

Respondent has argued that Vandergraff did not take measurements, Hammond agreed at trial 

that Vandergriff is indeed a competent and trustworthy person and he believed the measurements 

he found. Tr. 368. 

 Other factors that may also be relevant to extensiveness include the number of persons 

affected by the violation and the measures required to abate it. The Commission has stated that 

the extensiveness inquiry “ultimately is a fact question concerning the material increase in the 

degree of risk to miners posed by the violation,” and should account for the broad scope of the 

circumstances surrounding the violation. E. Assoc’d Coal Corp., 32 FMSHR at 1196 

(instructing ALJ to consider extensiveness of abatement measure needed to terminate the 

citation). Vandergriff credibly testified that were a fire to start inby crosscut 52, the entire Unit 3 

could be trapped. With return air traveling outby, a propagation could make the entire entry, 

which served as a secondary escapeway, impassable. Nathan Courtney testified that it required at 

least six unit miners, three shovelers, and several other miners at least one day to abate the 

violation. Tr. 469. Vandergriff characterized the amount of accumulations as “abnormal.” See 

McCoy Elkhorn Coal Co., 36 FMSHRC 1987, 1993-94 (Aug. 14) (finding accumulations were 

extensive where spillage was more extensive than normal). He stated that, while he did not 

terminate the Order, he was aware that the entire mine had stopped production. He stated he 

thought it would have taken 70 to 80 people to shovel it. Tr. 247. 

 I find the violation was extensive based upon all of these factors. 

(b) Duration of Violative Condition 

 While Peabody witnesses testified that the condition had only existed since September 

13, 2016, Vandergriff found evidence in the examination book that it had existed since the 

September 6 or 7, and that the notations that it was cleaned every shift were not believable. Tr. 

205. From his experience, the number of shovelers they had on staff at the time would not have 

been able to clean every shift. Tr. 206. Both Kamman and Moeller told Vandergriff that the 

conditions had existed for a long time. Tr. 186, 189. Because coal can accumulate quickly, it was 

already confirmed to be within one half of an inch from the belt, and there was evidence of the 

belt rubbing the structure, the existence of uncorrected accumulations for two weeks is 

sufficiently long to cause an ignition. 

(c) Degree of Danger Posed by Violation 

 The operator’s conduct exposed miners to the hazards of a fire or explosion along the 

7,000-foot-long belt line. This could have caused miners to be burned, disoriented, or trapped, 

41 FMSHRC Page 106
thus preventing their escape. A mine fire or explosion is one of the single most dangerous of 

hazards in mining and has led to catastrophic results. 

 The degree of danger posed by the accumulations was extremely high. 

(d) Obviousness of Violation 

 The violation was blatantly obvious to the most unsophisticated of observers. Coal had 

accumulated along approximately a mile and a half of the belt line and measured as much as four 

feet wide and two and one half feet deep. Tr. 173. Hammond testified that one windrow ran from 

Crosscut 6 to Crosscut 30 or 31, a distance of 16,00 feet. Tr. 349-50. 

(e) Operator’s Knowledge of Existence of Violation 

Knowledge of a violation is established where the operator knew or reasonably should 

have known of the violation. Coal River Mining, LLC, 32 FMSHRC 82, 95 (Feb. 2010). The 

knowledge or negligence of an agent may be imputed to the operator. Excel Mining, LLC, 37 

FMSHRC 459, 467-68 (Mar. 2015); Martin Marietta Aggregates, 22 FMSHRC 633 (May 2000). 

 Sandefur testified that several days after the belts were spliced together, they were aware 

that the belt was dumping coal. It was an ongoing problem of which management was aware. 

Multiple agents of Respondent admitted to Vandergriff during the inspection that they knew the 

hazardous conditions had existed for a long time. Both Kamman and Moeller stated they 

personally knew about the belt problem and the resultant accumulations. General Manager Eric 

Carter stated to Vandergriff that he had been approached by an examiner asking for help in 

training miners to shovel and that he had no excuse for the conditions. Tr. 207. The miner who 

contacted Vandergriff prior to the examination stated that the information had been brought to 

management’s attention and they continued to sign off on the examinations knowing the work 

had not been done. The unabated conditions were clearly known to management, yet the 

superintendent signed off on the examination books indicating corrective actions had been taken 

despite his knowledge that the hazard persisted. 

 The extensiveness and obviousness of the hazard alone would put any reasonable person 

on notice of the violation. Here, I find the operator had actual knowledge of the violation. 

(f) Operator’s Efforts at Abating Violative Condition 

While some effort was taken to clear the accumulations of coal material along the belt 

line, these efforts were a mere fraction of that required to satisfactorily abate the conditions. As 

has been repeatedly stated, the coal accumulations lasted for nearly a mile and a half along the 

belt line. Tr. 285. Only two miners were cleaning the head drives and only one other miner was 

shoveling in the area of crosscuts 14 to 17. Tr. 207. Hammond observed no miners shoveling the 

1,600-foot windrow of coal. Tr. 354. Vandergriff disputed the claim that the accumulations were 

cleared during every shift, as recorded in the examination book. He testified, “I do not believe 

[the accumulations] were cleared every shift like it states in the book. From my experience and 

the amount of shovelers that they had on staff at the time, there is no way they could have 

41 FMSHRC Page 107
cleared it every single time.” Tr. 205-06. Even the General Manager, Eric Carter, admitted the 

need to train more shovelers lest his examiners kill themselves. Tr. 207. 

Vandergriff stated that while he did not terminate the Order, he was aware that the entire 

mine had stopped production. He thought it would have taken 70 to 80 people to clean it in order 

to abate the condition. Tr. 247. 

I do not find Sandefur and his workers’ efforts to determine the cause of the coal 

dumping off the belt to be abatement efforts. Their work was directed towards keeping the belt 

running so that production could continue rather than protecting the miners as evidenced by the 

fact that so much of the affected area was left untouched by cleanup efforts before Vandergriff’s 

Order was issued. 

 I find no meaningful effort at abatement was made. 

(g) Operator’s Notice that Greater Compliance Efforts were Necessary 

An operator’s history of past similar violations or other specific warnings from MSHA is 

relevant to the unwarrantable failure analysis to the extent the past violations and warnings 

placed the operator on notice, before the citation was issued, that greater efforts were necessary 

for compliance with the cited safety standard. IO Coal, 31 FMSHRC at 1353. Respondent was 

cited for violations of § 75.400 178 times in two years at this mine. Such a high frequency of 

violations provided Respondent notice of a need for greater compliance efforts when it came to 

accumulation prevention and clean up. Additionally, Vandergriff testified that the mine was put 

on the heightened awareness list by MSHA for violations of accumulations throughout the mine 

since July 2015 and management was so informed. Tr.157, 217. 

Respondent cites Vandergriff’s testimony that the past enforcement actions did not play a 

part in issuing an unwarrantable failure. Resp’s Br. 57. However, the Commission has said that 

an Administrative Law Judge must consider all relevant record evidence not limited to specific 

warnings from MSHA, including shift record books, to determine whether an operator is on 

notice of recurring safety problem in needs of correction. Jim Walter Res., 19 FMSHRC 480, 

485 (Mar. 1997) (emphasis added). This case is instructive for two reasons. First, it underscores 

the fact that it is the judge who determines the issue of whether past enforcement actions put the 

operator on notice. Second, it highlights the fact that other forms of notice are sufficient. 

Vandergriff testified that the records books indicated problems along the belt line for some time, 

although he did not believe the corrective work listed had been done as evidenced by the 

extensiveness of the accumulations. 

 I find that MSHA had sufficiently put Peabody on notice of the need for greater 

compliance efforts through the heightened awareness designation issued in 2015, the number of 

prior violations of this standard, and the repeated entries in the examination book indicating an 

ongoing problem. 

 

41 FMSHRC Page 108
(h) Weighing the Factors 

 There is ample evidence to satisfy each of the factors to satisfy the unwarrantable failure 

analysis set forth by the Commission. This was an extraordinary amount of accumulated coal. 

Mine management knew the belt line was dumping coal at an alarming rate. They had known 

this for some time. In the event of continued normal mining operations, the chance of an ignition 

caused by the belt rubbing the structure and the ever-present possibility of the failure of a roller 

was great. For these reasons, I find this violation was the result of an unwarranted failure to 

comply with the mandatory standard. 

D. Order No. 9101767 (Docket No. LAKE 2017-0382) 

1. Findings of Fact

As Vandergriff testified, he reviewed the on-shift/pre-shift examination book for the 4th 

SE belt line prior to going underground. Tr. 168; Ex. S-12. Specifically, he reviewed the entries 

for the day before and the day of the inspection. Tr. 168-70; Ex. S-12, 33- 34. The Conditions 

Observed listed in the book for September 19, 2016, indicated only: “Broom 30 to 40, 47-56, 

Spill Head at 21.” Tr. 170; Ex. S-12, 33-34. Under Actions Taken, the book indicates those areas 

had been cleaned. Tr. 170, Ex. S-12, 33. As stated above, when Vandergriff went underground, 

he saw miners shoveling at the head. Tr. 171. The miners told Vandergriff that they were going 

from head to head cleaning and Vandergriff described the work they were doing as “substantial.” 

Tr. 171. This concerned him because this work had been recorded in the examination book as 

having been completed on September 19, 2016. Tr. 171. In comparing the conditions recorded in 

the examination book with the accumulations he observed and photographed underground, 

Vandergriff stated that he found and recorded 218% more accumulations than what the 

examiners had found and recorded from the previous day. Tr. 208; Ex. S-12, 33. Vandergriff 

confirmed that he had found 83 crosscuts with accumulations while three examiners had found 

38. Tr. 244-45. Vandergriff was under the misapprehension at the time he made the inspection 

that one examiner had made the belt. At trial, he acknowledged that it had been three and stated, 

“if three examiners, three experienced, certified examiners, cannot find 83 [accumulation 

locations] – even half of what a federal man finds, then they’re not doing their job.” Tr. 246. As 

a result of his findings, Vandergriff issued the Order for an inadequate examination in violation 

of a mandatory standard. 

2. The Violation 

 The narrative Condition or Practice section of Order No. 9101767 alleges in part: “The 

operator failed to examine for hazardous conditions and violations of the mandatory health and 

safety standards. Accumulations on the 4th SE belt line in the form of loose coal, float coal dust, 

and belt pressings were observed from the 2nd Main South tail to XC #119.” Ex. S-8. 

 Each of the crosscuts at which accumulations were found were listed in the order, as well 

as the measurements he made of each. The violation was assessed as reasonably likely to result 

in fatal injury to 30 persons, S&S, high negligence, and an unwarrantable failure in violation of 

30 C.F.R. § 75.362(b). Ex. S-8. The Secretary has proposed a civil penalty of $44,546.00. 

41 FMSHRC Page 109
 This regulation mandates: 

During each shift that coal is produced, a certified person shall examine 

for hazardous conditions and violations of the mandatory health or safety 

standards referenced in paragraph (a)(3) of this section along each belt conveyor 

haulageway where a belt conveyor is operated. This examination may be 

conducted at the same time as the preshift examination of belt conveyors and belt 

conveyor haulageways, if the examination is conducted within 3 hours before the 

oncoming shift. 

30 C.F.R. § 75.362(b). 

 Peabody contests the issuance of this Order, arguing that the Secretary has not proven 

that the conditions found by Vandergriff existed at the time the pre-shift examination was done. 

Peabody maintains that production continued after the examination was done and again argues 

that what was found was the result of a “spill” that would have been cleaned during the shift. 

This seems to be a recurrent excuse for the operator and, as discussed at length above, I reject 

these arguments as unpersuasive for the same reasons as previously stated. I also take into 

consideration my findings that the accumulations were not recent, they had existed for some 

time, they represented a condition in the mine that was long standing, they were too extensive to 

represent a spill that had occurred just before the inspector arrived and they were of such 

magnitude that it required a total shutdown in production to abate the condition. I find the 

violation has been proven. 

3. S&S Designation and Gravity 

Respondent contests the S&S designation for the same reasons as the previous Order. I 

therefore find them unfounded for the same reasons as set forth above. 

I find that this violation meets the four elements of the Mathies test and therefore I 

uphold the Secretary’s characterization of the violation as S&S. The first factor is satisfied by my 

finding of the violation of a mandatory safety standard. 

 The second element is satisfied because the inadequate pre-shift examination contributed 

to the dangers of continued accumulations, as well as the ineffective clearing of those 

accumulations. Both of these dangers contributed to the discrete safety hazard of a fire or 

ignition of accumulated coal. 

 The third element is satisfied because, in the event of the hazard, that is, a fire or ignition, 

an injury was reasonably likely. Due to the extent of the coal, it was likely a fire would quickly 

spread through this escapeway, burning those in the passage, as well as causing disorientation, 

confusion, and entrapment preventing evacuation. 

 Finally, the injuries sustained from the reasonably likely event of a fire would be 

extremely serious and likely fatal. Belt fires are probably the single-most feared occurrence in a 

mine and have resulted in catastrophic events. 

41 FMSHRC Page 110
In conclusion, considering all the facts presented by Vandergriff and other witnesses, I 

find the violation satisfies the Mathies test and was properly assessed as significant and 

substantial. I also find the gravity of this violation to be very serious and likely to cause fatal 

injuries to as many as 30 miners. 

4. Negligence and Unwarrantable Failure

 This Order was designated as high negligence and an unwarrantable failure by 

Vandergriff for the same reasons as the previous Order. Respondent contests both assessments 

for the same reasons as the previous order as well. Based upon the same findings of fact and 

analysis of law above, I find that high negligence is supported by a preponderance of the 

evidence. I also find the violation was an unwarrantable failure as stated above and as 

summarized below. 

The hazardous condition was of sufficient duration to pose a substantial threat of an 

explosion or fire. Examiners from Peabody confirmed the conditions had existed at least since 

September 6 or 7, 2016. They were extensive as they ran the course of 1 and a half mile of belt 

line and measured up to 4 feet wide and as much as 4 inches deep – just one half of an inch 

below the bottom of the belt in one area. As such, they were patently obvious and highly 

dangerous as they were present in the primary escapeway for Unit 3 and secondary for the rest of 

the units and could have prevented escape in the event of a fire or explosion propagated by the 

coal. Peabody’s examiners and members of management stated they were aware of the 

conditions and were signing off the examination book which did not accurately reflect either the 

extent of the hazard or that the conditions had not been corrected. The mine was on heightened 

negligence for the hazards and had been cited numerous time for similar violations. The efforts at 

abatement were nil. 

I find the danger posed by the violation in subjecting miners to unknown, uncorrected 

hazardous underground conditions, as well as the operator’s knowledge of these condition to be 

particularly persuasive factors in finding this violation is an unwarrantable failure. 

E. Order No. 9101768 (Docket No. LAKE 2017-0178)

1. The Violation

This Order was issued based upon the same findings as stated above in discussion of 

Order 9101767. Vandergriff stated that he found the pre-shift report dated September 19, 2016 

reported correct actions taken for the 4th SE belt line included “broomed 30 to 40, 47 to 51, 

cleaned head number 8, 21 to 15, and 120 to 122.” Tr. 211; Ex. S-9. However, only 6 of the 30 

crosscuts listed in the pre-shift report had actually been cleaned. Twenty-four remained 

untouched and he found miners shoveling in those areas on September 20, 2016, that were listed 

on the previous day as having been completed. Tr. 211. He explained that, if no actions are taken 

to abate a condition listed in a pre-shift report, the corresponding abatement action cannot be 

listed in the report if it has not been completed. Instead, the condition should be recorded once 

again in the next examination report until it is properly abated. Tr. 247-48. 

41 FMSHRC Page 111
The standard violated is cited as 30 C.F.R. § 75.360(g). Ex. S-9. It is assessed as 

reasonably likely to result in fatal injuries to 30 persons, S&S, high negligence, and an 

unwarrantable failure. The Secretary proposes a civil penalty of $44,546.00. 

This recordkeeping regulation mandates in pertinent part: 

A record of the results of each preshift examination, including a record of 

hazardous conditions and violations of the nine mandatory health or safety 

standards and their locations found by the examiner during each examination shall 

be made on the surface before any persons, other than 

certified persons conducting examinations required by this subpart, enter any 

underground area of the mine. The record shall be made by the 

certified person who made the examination or by a person designated by the 

operator. If the record is made by someone other than the examiner, the examiner 

shall verify the record by initials and date by or at the end of the shift for which 

the examination was made. A record shall also be made by a certified person of 

the action taken to correct hazardous conditions and violations of mandatory 

health or safety standards found during the preshift examination. All preshift and 

corrective action records shall be countersigned by the mine foreman or 

equivalent mine official by the end of the mine foreman's or equivalent mine 

official's next regularly scheduled working shift. 

30 C.F.R. § 75.360(g). 

The Respondent again contests the violation, gravity, negligence, S&S, and 

unwarrantable failure designations with the same arguments as those posed in first Order above. 

Repetition of them is unnecessary and they are rejected for the same reasons as stated in Order 

No. 9101766. I find the violation did occur. 

2. S&S Designation and Gravity

I have found the violation occurred. I also find the failure to maintain an accurate 

recording of the hazards found and corrective action taken in the examination book contributes to 

the discrete safety hazard of a miner being exposed to a fire or explosion from the accumulation 

of coal. Tr. 212. I also find under continued normal mining operations the rapidity with which 

accumulations can amass and dry out while in contact with the belt, rollers or metal structure can 

lead to an ignition making an injury reasonably likely. It is likely a fire would quickly propagate 

through the belt line which serves as an escapeway that would reasonably result in confusion, 

disorientation, and possible entrapment of miners leading to fatalities to as many as 30 miners. 

This violation is very serious and I find it to be S&S. 

3. Negligence and Unwarrantable Failure

 The hazardous conditions, including those not recorded by the examiners, lasted 

anywhere from two days to one week or even to all of the way back to September 6 or 7, 2016. 

Such a lengthy period of insufficient recordkeeping could have catastrophic effects, such as the 

41 FMSHRC Page 112
inability of mine personnel to abate hazards. Out of 30 crosscuts identified by an examiner as 

sufficiently broomed, only 6 of those crosscuts were actually properly broomed, meaning it was 

extensive. The extensiveness and obviousness of coal along the 4th SE belt line could not have 

been ignored by management. The inaccuracy of the record book would be obvious to those in 

management who countersigned the book when compared to the conditions readily observable 

underground. The danger posed by misleading a miner into believing a hazardous condition had 

been corrected is that he would face potentially deadly conditions underground without warning. 

There is no evidence the operator took any measures to abate the situation. In fact, management 

was condoning such practice. 

 While there is evidence of only two prior violations of this standard in the two years prior 

to this violation, such lack of clear notice of greater efforts at compliance is not critical to my 

analysis of an unwarrantable failure here. As the Commission has stated, it is not necessary to 

find all factors are relevant to determine that a violation is unwarrantable. Wolf Run, 35 

FMSHRC at 3520. 

V. PENALTY 

The Commission has reiterated in Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1763-

64 (Aug. 2012): 

 Section 110(i) of the Mine Act grants the Commission the authority to 

assess all civil penalties provided under the Act. 30 U.S.C. § 820(i). It further 

directs that the Commission, in determining penalty amounts, shall consider: 

 The operator’s history of previous violations, the appropriateness of 

such penalty to the size of the business of the operator charged, whether the 

operator was negligent, the effect on the operator’s ability to continue in 

business, the gravity of the violation, and the demonstrated good faith of the 

person charged in attempting to achieve rapid compliance after notification of 

a violation. 

30 U.S.C. § 820(i). 

 The Commission and its ALJs are not bound by the penalties proposed by the Secretary, 

nor are they governed by MSHA’s Part 100 regulations, although substantial deviations from the 

proposed penalties must be explained using the § 110(i) criteria. See Am. Coal Co., 38 FMSHRC 

1987, 1992-93 (Aug. 2016); Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983). In 

addition to considering the 110(i) criteria, the judge must provide a sufficient factual basis upon 

which the Commission can perform its review function. See Martin Co. Coal Corp., 28 

FMSHRC 247, 266 (May 2006). 

The Secretary has proposed a Special Assessment (SA) for Order No. 9101931 issued by 

Inspector Seitz. At trial the Secretary offered no additional evidence in support of his proposed 

enhanced penalty. As discussed by the Commission, the Special Assessment Narrative Findings 

(SANF) forms are general in nature and provide no specific reasons for the SA. However, the 

41 FMSHRC Page 113
Secretary does have the burden before the Commission and its judges of providing evidence 

sufficient in the Judge’s discretionary opinion to support the assessment. “When a violation is 

specially assessed that obligation may be considerable.” See American Coal Co., 38 FMSHRC 

1987, 1993 (2016). The Commission underscored the fact that the assessment of penalties is a 

matter addressed de novo by the judge based upon the evidence presented to comport with her 

discretionary opinion. I have considered the gravity, negligence and seriousness of the § 75.200 

violation. I have explained my unwarrantable failure findings and considered that fact that there 

was no injury or imminent danger involved. The mine was not ordered to shut down to abate the 

violation, negligence was high yet not reckless, there were 29 prior violations in two years at the 

mine which is not excessive and I find no particularly aggravating factors involved. I also 

consider the fact that the closely related order issued for an inadequate examination based upon 

the same conditions was not given an enhancement in proposed penalty and the operator was 

given a 10% Good Faith reduction in the calculation of the proposed penalty. Based upon these 

considerations, I find the SA is not warranted and I make an entirely independent assessment of 

the appropriate penalties for all violations herein as set forth below. 

A. Size of Operator; Ability to Continue in Business; Violation History 

The mine is large and the parties have stipulated that the proposed penalties will not 

affect the operator’s ability to continue in business. Joint Ex. 1. 

B. Good Faith 

 

The Secretary credited Peabody with good faith in abating all violations at issue in this 

case except Order No. 910931. Good faith is also reflected in the portion of each citation that 

describes the actions taken to abate the condition and in the testimony regarding the operator’s 

abatement efforts. 

C. Negligence, Gravity and Unwarrantable Failure 

The gravity of each violation and Peabody’s negligence with respect to the violations are 

discussed at length within the body of my decision above. Specific findings as to each factor for 

unwarrantable failure of each violation are discussed within the body of my decision above. 

 

D. Conclusion 

After considering the six statutory penalty criteria, I assess the following penalties for the 

five violations at issue in this case: 

Docket No. LAKE 2017-0178, Order No. 9101931: $6,000.00 

Docket No. LAKE 2017-0178, Order No. 9101766: $69,400.00 

Docket No. LAKE 2017-0178, Order No. 9101768: $45,000.00 

Docket No. LAKE 2017-0382, Order No. 9101767: $45,000.00 

Docket No. LAKE 2016-0421, Order No. 9101933: $5,100.00 

41 FMSHRC Page 114
ORDER 

Peabody Midwest Mining, LLC is hereby ORDERED to pay a total penalty of 

$170,500.00 for the five violations at issue in this docket within thirty (30) days of the date of 

this Decision and Order.8

 /s/ Priscilla M. Rae 

Priscilla M. Rae 

Administrative Law Judge 

Distribution: 

Edward B. Hartman, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South 

Dearborn Street, Room 844, Chicago, Illinois 60604 

Arthur M. Wolfson, Esq., Jackson Kelly PLLC, Three Gateway Center, 401 Liberty Avenue, 

Suite 1500, Pittsburgh, Pennsylvania 15222 

 

8 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.

41 FMSHRC Page 115
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004 

February 19, 2019 

DECISION 

and 

REDACTION ORDER 

Appearances: Jason Wylie, pro se, Bridgeville, Pennsylvania; 

Oscar Hampton III, Regional Solicitor, Andrea Appel, Deputy of the 

Regional Solicitor, Matthew Epstein, Esq., Office of the Solicitor, 

Philadelphia, Pennsylvania for the Secretary of Labor; 

 Patrick Dennison, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania 

for Respondent. 

Before: Judge Feldman 

This case is before me based on a discrimination complaint filed pursuant to section 

105(c)(2) of the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c)(2) 

(the "Act"), by the Secretary of Labor (“the Secretary”) on behalf of Jason Wylie against the 

Allegheny Mineral Corporation (“Allegheny”). Before me is a Settlement and General Release 

Agreement between Wylie and Allegheny that resolves all matters at issue with respect to 

Wylie’s compensatory relief. This proceeding is limited to the issue of Wylie’s entitlement to 

compensatory relief. Both Wylie and the Secretary remain as parties in this case until disposition 

of this matter through settlement or adjudication.1

 Due to the extraordinary circumstances of this 

case in which the Secretary continues to object to the propriety of Wylie’s decision to settle, it is 

necessary to provide the procedural history in this matter. 

The captioned discrimination proceeding in Docket No. PENN 2018-0158-DM was 

initially assigned to Judge Paez. Order of Assignment, unpublished Order (April 5, 2018). 

During Judge Paez's consideration of this matter, on or about August 16, 2018, Judge Paez was 

 1

 Commission Rule 4(a) states, in pertinent part, “[i]n a proceeding instituted by the 

Secretary under section 105(c)(2) of the Act . . . the complainant on whose behalf the Secretary 

has filed the complaint is a party . . . .” 29 C.F.R. § 2700.4(a). 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), on behalf 

 of JASON WYLIE, 

 Petitioner, 

 v. 

ALLEGHENY MINERAL 

 CORPORATION, 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. PENN 2018-0158-DM 

MSHA No. NE MD 2018-01 

Mine Name: Bison Mine 

Mine ID: 36-10107 

41 FMSHRC Page 116
informed by the Secretary that the discrimination case brought by the Secretary on Wylie's 

behalf had settled. Second Amended Notice of Hearing, unpublished Order at 1 (Oct. 3, 2018) 

(ALJ Paez). However, Judge Paez was subsequently informed that the Secretary had withdrawn 

his settlement offer. Id. Judge Paez summarized his understanding of the rationale for the 

withdrawal by noting, “[a]lthough the case [had] settled in all other respects,” the Secretary 

subsequently withdrew his consent to the settlement agreement because “the Secretary object[ed] 

to a confidentiality agreement between Wylie and Allegheny Mineral Corporation that would 

keep confidential Wylie's back-pay settlement amount.” Id. (footnote omitted). 

Shortly after the Secretary advised Judge Paez that the tentative settlement 

agreement resolving the issue of Wylie’s compensatory relief had been withdrawn, Wylie 

communicated to the Commission his continuing desire to settle. Specifically, in an email dated 

September 28, 2018, Wylie advised the Commission: 

 

This settlement proceedings [sic] is getting way out of control 

now. I agreed to a[n] amount [of compensatory relief] and now feel 

like it has stalled out to nothing. I have tried to move on but [it is 

getting] ridiculous. When I agreed to settle I was and am ready to 

move on but have yet to get anywhere as far as finalizing or 

receiving my settlement. I don’t want to go to court and I just want 

to move on. It has been long enough and for the [sic] MSHA to 

fight the court and without my settlement is absurd. Thank you for 

reading my email I just want my thoughts on the matter known. 

Allegheny’s Resp. to Sec’y’s Mot. to Recons., Ex. C at 1, (Nov. 5, 2018) (emphasis added). 

This matter was reassigned to me from Judge Paez on October 11, 2018, after Judge Paez 

contemporaneously recused himself from further deliberations. Order Placing Documents Under 

Seal and Notice of Recusal, unpublished Order (Oct. 11, 2018) (ALJ Paez); Order of 

Reassignment to Judge Feldman, unpublished Order (Oct. 11, 2018). 

Given Wylie’s clearly expressed desire to settle, the captioned discrimination proceeding 

in Docket No. PENN 2018-0158-DM was severed from the Secretary’s civil penalty proceeding 

in the newly created Docket No. PENN 2018-0275. Severance Order 40 FMSHRC ___ Slip. op. 

at 4 (Oct. 23, 2018). The Severance Order noted that the captioned discrimination proceeding in 

Docket No. PENN 2018-0158-DM was solely limited to issues concerning the merits of Wylie’s 

discrimination complaint and his claim for relief. Id. 

The Secretary challenged the procedural basis for severance of the compensatory relief 

and civil penalty issues in a Motion for Reconsideration filed on October 26, 2018. See Sec’y’s 

Mot. to Recons. Severance Order. The Secretary’s Motion to Reconsider the October 23, 2018, 

Severance Order was denied on November 8, 2018. Order Denying the Sec’y’s Mot. for Recons., 

40 FMSHRC, ___ Slip op. at 3. The Secretary’s motion was denied because severance was 

consistent with the Commission’s Rules, the Federal Rules of Civil Procedure, and relevant 

Commission case law. Id. at 2-3. Specifically, Commission Rule 1(b) provides, in pertinent part: 

“on any procedural question not regulated by the Act . . . the Commission and its Judges shall be 

41 FMSHRC Page 117
guided so far as practicable by the Federal Rules of Civil Procedure . . . .” 29 C.F.R. 

§ 2700.1(b). Rule 42 of the Federal Rules of Civil Procedure authorizes a judge to issue orders 

avoiding unnecessary delay or prejudice, or such orders that expedite and/or economize 

proceedings. Fed. R. Civ. P. 42(a)(3), 42(b). 

With respect to case law, the Commission eschews prejudicing a complainant as a 

consequence of actions taken by the Secretary in a 105(c)(2) proceeding. See Sec’y of Labor on 

behalf of Hale v. 4-A Coal Co., 8 FMSHRC 905, 908 (June 1986). Severance enables Wylie to 

expeditiously receive the identical compensatory relief that was tentatively accepted but 

subsequently withdrawn by the Secretary in August, 2018. Moreover, it is inexplicable that the 

impediment to Wylie’s timely receipt of compensatory relief has been based on the Secretary’s 

adamant refusal to accept confidentiality of settlement terms as a quid pro quo for settlement 

despite the Secretary’s history of routine acquiescence to confidentiality of settlement terms that 

resolved 105(c)(2) proceedings. See, e.g., Secretary of Labor o/b/o Pedro Iglesias v. Titan 

Florida, LLC, 39 FMSHRC 1678 (Aug. 2017) (ALJ); Secretary of Labor o/b/o Jerry M. Caudill 

v. Leeco, Inc., 20 FMSHRC 532 (May 1998) (ALJ); Secretary of Labor o/b/o Frank Scott v. 

Leeco, Inc., 18 FMSHRC 648 (April 1996) (ALJ); Secretary of Labor o/b/o Danny Shepherd v. 

Adena Fuels, Inc., 15 FMSHRC 1438 (July 1993) (ALJ). 

Finally, severance is consistent with the Commission’s decision in Sec’y of Labor o/b/o 

Clemmie Callahan v. Hubb Corp., 20 FMSHRC 832 (Aug. 1998) (“Callahan”). In Callahan the 

Commission distinguished a discrimination complainant’s interest in resolving his complaint in a 

105(c)(2) proceeding from the Secretary’s interest in establishing a violation of section 105(c) in 

a pertinent civil penalty proceeding. See Callahan, 20 FMSHRC at 837-39. In other words, 

Wylie’s settlement with Allegheny would not preclude the Secretary from prosecuting his civil 

penalty case. However, consistent with Callahan, Wylie does not need the Secretary’s approval 

to settle his discrimination claim. Id. Moreover, as a party in a 105(c)(2) proceeding, Wylie has 

an unfettered right to settle his discrimination case. 

In support of his opposition to the severance, the Secretary asserts, contrary to Wylie’s 

September 28, 2018, email representations to the Commission, that Wylie “has embraced [the] 

desire to serve the broader public purpose of deterring future discrimination and does not want 

his to be the test case allowing the routine confidential resolution [of] discrimination cases.” 

Sec’y’s Mot. to Recons. Severance Order at 5 (Oct. 26, 2018). The Secretary’s portrayal of 

Wylie as a trailblazing miner who is committed to subordinating his receipt of significant 

compensatory relief to his purported “desire to serve the broader public purpose of deterring 

future discrimination” strains credulity. This is particularly so in view of the frustration 

expressed by Wylie in his September 28, 2018, email regarding the ‘absurdity’ of MSHA (the 

Secretary) interfering with his desire to settle. 

In view of the questionable statements the Secretary has attributed to Wylie, it became 

clear that a telephone conference with Wylie, as well as with all attorneys of record, was 

necessary to ascertain Wylie’s wishes. See Order Scheduling Prehr’g Tel. Conf., 41 FMSHRC 

___ Slip op. (Jan. 9, 2018). Consequently, a recorded conference call was conducted on 

41 FMSHRC Page 118
January 22, 2019, to hear directly from Wylie whether he wished to accept the settlement terms 

proposed by Allegheny, or, whether he wished to pursue his discrimination claim at an 

evidentiary hearing.2 

During the January 22, 2019, telephone conference, Wylie readily and without hesitation 

indicated he wished to agree to the settlement terms, including that the settlement terms remain 

confidential. Tr. 7-9. Wylie stated, “[a]t first the terms were fine” but he did not understand the 

“confidentiality thing.” Tr. 7. Consistent with his September 28, 2018, email, Wylie expressed 

his regret that “[i]t dragged on. I felt like I was pushed into a corner, but it is what it is. I’m going 

to be happy that we can all walk away from this as soon as possible, sir.” Tr. 11. 

To place the divergent interests of Wylie and the Secretary in perspective, it is necessary 

to reconcile Wylie’s September 29, 2018, affidavit submitted to the Commission by the 

Secretary from Wylie’s repeated unequivocal statements made directly to the Commission 

concerning his interest in settlement. The Secretary acknowledges that he does not represent 

Wylie in this proceeding. Tr. 14. Nevertheless, Wylie’s affidavit was submitted as an exhibit to 

the Secretary’s opposition to the settlement motion for the purpose of demonstrating Wylie’s 

strong opposition to confidentiality. Sec’y’s Opp’n to Settlement Mot., Ex. A (Nov. 29, 2018). 

The affidavit is instructive for several reasons. For example, paragraph eight of the affidavit 

avers: 

I understand and agree with the concerns of the Secretary that any 

resolution of this matter without public inclusion of the amount of 

back wages due makes it harder for miners to assert their rights in 

future Mine Act discrimination cases by decreasing awareness of 

successful enforcement actions. 

Sec’y’s Opp’n to Settlement Mot., Ex. A at 4 (Nov. 29, 2018) (emphasis added). 

Paragraph eight is revealing in two respects. First, it is apparent that the Secretary has 

been the driving force behind the demand for public disclosure, as the Secretary’s interest in 

public disclosure preceded Wylie’s. Second, the Secretary’s reliance on paragraph eight to 

evidence Wylie’s overriding concern for public disclosure is an apparent attempt to mask the 

Secretary’s self-serving interest in this unfortunate situation.

3

 

 2

 Transcript references to the January 22, 2019, telephone conference will be cited as 

“Tr.” followed by the page number. 

3

 As discussed herein, I am concerned about the Secretary’s efforts to act in Wylie’s best 

interests. For example, obviously administering the oath encourages truthfulness that is essential 

to the judicial process. Yet the Secretary objected to the fact that Wylie’s statements during the 

telephone conference would be given under oath based on the disconcerting claim that the 

swearing-in process is intimidating. Tr. 5. In fact, it is clear that Wylie did not feel intimidated, 

as he appeared to be relieved that he had the opportunity to “speak freely” during the conference 

call. Tr. 6, 7. 

41 FMSHRC Page 119
The Secretary also relies on paragraph seven of Wylie’s affidavit that states that Wylie 

“understand[s] that [he] ha[s] the right to settle [his] claim for back wages regardless of whether 

the Secretary wishes to do so.” Id. at 3. However, the extent of Wylie’s understanding in this 

regard is suspect as there is no evidence that Wylie was aware that confidentiality terms have 

historically been agreed to by the Secretary in 105(c)(2) proceedings. 

In attempting to insulate himself from Wylie’s expressed frustrations regarding feeling 

“pushed into a corner” and Wylie’s desire to extricate himself from his dilemma “as soon as 

possible,” the Secretary provides a self-serving explanation that seeks to blame the Commission 

for Wylie’s predicament: 

[T]he most important thing that’s occurred thus far is the statement 

by Mr. Wylie that he said he was pushed in the corner. There is 

absolutely no basis either in the current case law that has been 

promulgated by the Commission or any statutory promulgation by 

the United States Congress nor in the rules that allows a court sua 

sponte to impose a settlement on a complainant who is not 

represented. The Callahan case involves a complainant that was 

represented from the beginning of that litigation. Mr. Wylie does 

not have a lawyer as the court indicated in his initial comments to 

Mr. Wylie expressing the concern about Mr. Wylie being 

intimidated, and Mr. Wylie actually stating that he was somewhat 

intimidated by this process. The court has used its authority, I 

believe, inappropriately to get a settlement to force Mr. Wylie into 

a settlement. 

Tr. 14. 

The objections proffered on behalf of the Secretary during the telephone conference are 

noted. Suffice it to say, there is nothing in the procedural history of this matter to support the 

Secretary’s claim that “the court has used its authority . . . to force Mr. Wylie into a settlement.” 

Id. On the contrary, it is significant that, but for the issue of confidentiality, the Secretary 

previously agreed to identical settlement terms with respect to Wylie’s compensatory relief as 

early as August 2018. Second Amended Notice of Hearing, unpublished Order at 1 (Oct. 3, 

2018) (ALJ Paez). It is regrettable that Wylie has yet to receive his compensatory relief during 

this approximate six month intervening period. Finally, I am not aware of, nor has the Secretary 

cited, any case law that supports the proposition that the Commission disfavors confidentiality of 

settlement terms in discrimination cases brought pursuant to section 105(c) of the Act. 

It is the initial November 6, 2017, Complaint Wylie filed with MSHA that serves as the 

predicate for this discrimination proceeding. Compl., Ex. A (Feb 23, 2018). As previously noted, 

as a party, Wylie has the right to settle his discrimination complaint. To hold otherwise would be 

inconsistent with the Commission’s holding in Callahan. Placing the procedural history in this 

proceeding in perspective will be helpful in the event that the Secretary continues 

to believe that severing these matters is unjustified, or, that he is otherwise aggrieved by the 

approval of the subject settlement terms between Wylie and Allegheny. 

41 FMSHRC Page 120
ORDER 

Consistent with Wylie’s eagerness to accept the settlement terms, including 

confidentiality, expressed during the telephone conference, less than 24 hours after the telephone 

conference, Wylie provided the Commission with a signed copy of his Settlement and General 

Release Agreement with Allegheny on January 23, 2019. During the Conference call, counsel for 

Allegheny agreed that the performance of the terms of the settlement with respect to Wylie’s 

compensatory relief would be completed within 30 days of the date of this Decision. Tr. 9. 

The subject settlement terms resolve all matters in issue with respect to Wylie’s relief. 

Consequently, IT IS ORDERED that the Settlement and General Release Agreement between 

Allegheny and Wylie IS APPROVED and that Allegheny provide Wylie with the compensatory 

relief provided for in the settlement agreement within 30 days of the date of this Decision. 

IT IS FURTHER ORDERED that upon confirmation of Wylie’s timely receipt of his 

compensatory relief, the subject discrimination proceeding in Docket No. PENN 2018-0158-DM 

SHALL BE DISMISSED. 

IT IS FURTHER ORDERED that unredacted copies of the settlement terms and the 

January 22, 2019, telephone conference transcript shall be placed under seal. 

IT IS FURTHER ORDERED that a redacted copy of the January 22, 2019, telephone 

conference transcript deleting all references to the amount of Wylie’s compensatory relief will 

not be sealed.4

 

Nothing herein shall preclude the Secretary from pursuing the civil penalty case in 

Docket No. PENN 2018-0275. In this regard, the Secretary has requested a hearing in the civil 

penalty mater in Docket No. PENN 2018-0275. The date and location of the hearing will be 

specified in a subsequent order. 

 /s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

 4

 To preserve the pending issue of confidentiality, the parties were initially advised that 

the transcript of the telephone conference would be placed under seal. Order Scheduling Prehr’g 

Tel. Conf., 41 FMSHRC ___ Slip op. at 2 (Jan 9, 2019). However, the parties were subsequently 

advised that a redacted copy that deletes all references to the amount of the agreed upon 

compensatory relief sufficiently preserves the issue of confidentiality, and thus would not be 

placed under seal. Tr. 3.

41 FMSHRC Page 121
Distribution: 

Oscar L. Hampton III, Regional Solicitor, U.S. Department of Labor, Office of the Solicitor, 

Suite 630E, The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106 

hampton.oscar@dol.gov 

Andrea J. Appel, Deputy of the Regional Solicitor, U.S. Department of Labor, Office of the 

Solicitor, Suite 630E, The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 

19106 appel.andrea@dol.gov 

Matthew R. Epstein, Esq., U.S. Department of Labor, Office of the Solicitor, Suite 630E, 

The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106 

epstein.matthew.r@dol.gov 

Jason Wylie, 604 Vanadium Road, Bridgeville, P A 15017 airborne_ medic12@yahoo.com 

Patrick W. Dennison, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 

401 Liberty Avenue, Pittsburgh, PA 15222 pwdennison@jacksonkelly.com 

/nm 

41 FMSHRC Page 122
ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004 

January 9, 2019 

ORDER SCHEDULING PREHEARING 

TELEPHONE CONFERENCE 

Before: Judge Feldman 

 The captioned matters were severed in an Order that established and severed newly 

created Docket No. PENN 2018-0275 concerning the Secretary’s civil penalty proceeding from 

Docket No. PENN 2018-0158-DM that is limited to issues concerning the merits of Wylie’s 

discrimination complaint and his claim for relief. Severance Order, 40 FMSHRC ___, Slip op. 

at 4, (Oct. 23, 2018). These matters were severed as a consequence of the Secretary’s withdrawal 

from the parties’ verbal settlement agreement that would have resolved the issues of both the 

compensatory relief to be awarded to Wylie and the amount of the civil penalty to be paid in this 

matter. Id. at 2. Currently before me is Allegheny’s Motion to Approve Settlement with Wylie 

that apparently concerns the identical settlement terms with respect to compensatory relief that 

were informally accepted but subsequently rejected by the Secretary. Allegheny’s Agreement 

and Mot. to Approve Settlement at 3-4 (Nov. 21, 2018). 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of JASON WYLIE, 

 Complainant, 

 v. 

ALLEGHENY MINERAL 

 CORPORATION, 

 Respondent. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

ALLEGHENY MINERAL 

 CORPORATION, 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. PENN 2018-0158-DM 

MSHA No. NE MD 2018-01 

Mine: Bison Mine 

Mine ID: 36-10107 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 2018-0275 

Mine: Bison Mine 

Mine ID: 36-10107 

41 FMSHRC Page 123
The record contains conflicting statements concerning whether Wylie has agreed to settle. 

In an email transmitted on September 28, 2018, Wylie unequivocally advised the Commission 

that he agreed to the settlement terms with regard to his monetary relief, and, that he was not 

interested in participating in a hearing. See Order Denying Sec’y’s Mot. for Recon., 40 

FMSHRC ___, Slip op. at 2 (Nov. 8, 2018). Nevertheless, the Secretary now asserts that Wylie 

has rejected the settlement because, “[Wylie] has embraced [the] desire to serve the broader 

public purpose of deterring future discrimination and does not want his to be the test case 

allowing the routine confidential resolution [of] discrimination cases.” Sec’y’s Mot. to Recons. 

Severance Order at 5 (Oct 26, 2018). However, issues concerning deterrence go beyond the 

scope of the discrimination proceeding in Docket No. PENN 2018-0158-DM, which is limited to 

the issue of Wylie’s entitlement to monetary relief. 

Commission Rule 4(a) provides, in pertinent part: 

In a proceeding instituted by the Secretary under section 105(c)(2) 

of the Act, 30 U.S.C. [§] 815(c)(2), the complainant on whose 

behalf the Secretary has filed the complaint is a party . . . .

29 C.F.R. § 2700.4(a); Sec’y of Labor v. Mountain Top Trucking Co., 18 FMSHRC 487, 488 

(April 1996). 

 As a party, Wylie does not require the Secretary’s approval for his agreement to settle 

the issue of his monetary relief. Consequently, a telephone conference with Wylie, opposing 

counsel for Allegheny, and the Secretary will be scheduled so I can hear directly from Wylie 

whether he accepts the settlement terms with respect to the amount of his compensatory relief, 

or, whether Wylie chooses to pursue his claim of alleged discrimination through an evidentiary 

hearing. The telephone conference will be limited solely to the motion to approve settlement 

between Allegheny and Wylie in Docket No. PENN 2018-0158-DM. The telephone conference 

will not address the issues concerning deterrence-related sanctions that are the subject of 

Docket No. PENN 2018-0275. 

The telephone conference will be recorded and transcribed. To preserve the pending 

nature of Allegheny’s request for confidentiality, the transcript of the telephone conference will 

be placed under seal. 

 

41 FMSHRC Page 124
ORDER 

Consequently, consistent with the above, IT IS ORDERED that the captioned parties 

participate in a conference call scheduled for 2:00 p.m. on Tuesday, January 22, 2019. The 

parties will receive an email containing the information required to participate in the conference 

call. 

 Any procedural questions concerning the matters discussed herein should be directed to 

my Law Clerk, Noah Meyer, at nmeyer@fmshrc.gov or (202) 233-4010. 

 /s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

Distribution (by regular and certified mail): 

Oscar L. Hampton III, Regional Solicitor, U.S. Department of Labor, Office of the Solicitor, 

Suite 630E, The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106 

hampton.oscar@dol.gov 

Matthew R. Epstein, Esq., U.S. Department of Labor, Office of the Solicitor, Suite 630E, 

The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106 

epstein.matthew.r@dol.gov 

Jason Wylie, 604 Vanadium Road, Bridgeville, PA 15017 airborne_medic12@yahoo.com 

Patrick W. Dennison, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 

401 Liberty Avenue, Pittsburgh, PA 15222 pwdennison@jacksonkelly.com 

/nm 

41 FMSHRC Page 125
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE N. W., SUITE 520N 

WASHINGTON, D.C. 20004-1710 

Telephone No.: 202-434-9933 

Telecopier No.: 202-434-9949 

January 18, 2019 

ORDER DENYING RESPONDENT’S MOTION TO DISMISS OR IN THE 

ALTERNATIVE MOTION TO STAY, RECUSE, AND REINVESTIGATE 

Before: Judge William B. Moran 

 Before the Court is Respondent Huber Carbonates, LLC’s Motion to Dismiss or in the 

Alternative Motion to Stay, Recuse, and Reinvestigate. (“Motion”). The Secretary filed an 

Opposition to the Motion (“Opposition”). For the reasons which follow, the Court denies the 

Motion to Dismiss and also denies the Alternative Motion because the Court does not have the 

authority to order a stay, recusal or reinvestigation in connection with an Application for 

Temporary Reinstatement. 

Huber’s Motion seeks an order “dismissing the Secretary’s Application for Temporary 

Reinstatement or, in the alternative, an Order staying the Secretary’s Application for Temporary 

Reinstatement until such time as the Mine Safety and Health Administration (“MSHA”) has 

recused the individuals involved in investigating Delbert Leimbach’s (“Leimbach”) Section 

105(c) discrimination complaint and completing a new investigation into the merits of 

Leimbach’s allegations by MSHA representatives who have not seen the email correspondence 

described in this motion.”1 Motion at 1. 

 1 On December 26, 2018, following a hearing held on December 19, 2018, the Court 

issued an Order, granting the Secretary’s Application for the Temporary Reinstatement of 

Delbert Leimbach, finding that the Application was not frivolously brought. Subsequently, on 

January 8, 2019, the parties filed a joint motion seeking to amend that Order granting temporary 

reinstatement to economically reinstate Leimbach as of December 26, 2018. The Court 

GRANTED the joint motion on January 11, 2019. 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), ON 

BEHALF OF DELBERT LEIMBACH, 

 Applicant 

 v. 

HUBER CARBONATES, LLC 

 Respondent 

 DISCRIMINATION PROCEEDING 

Docket No. LAKE 2019-0106-DM 

No. NC-MD-19-01 

Mine: Quincy Plant 

Mine ID: 11-02627 

41 FMSHRC Page 126
Background 

The heart of the controversy precipitating the Motion may be concisely stated. On August 

8, 2018, outside counsel for Huber sent what it contends was an attorney-client privileged and 

confidential email to Huber. The email was addressed to Huber’s in-house counsel and members 

of management. According to Huber’s Counsel, the email contained legal advice about a 

separate temporary reinstatement proceeding (Docket Number LAKE 2018-0343), before a 

different administrative law judge, and involving a different employee, although it also included 

legal advice regarding Leimbach. Motion at 2. Subsequently, according to the Motion, a Huber 

management member sent the email to another Huber employee, an EH&S [Environmental 

Health and Safety] Coordinator. That EH&S employee then forwarded the email to Leimbach, an 

act Huber characterizes as inappropriate and without authorization. Id. at 3. Leimbach then, 

again according to the Motion, forwarded the email to an MSHA special investigator and 

Leimbach filed a section 105(c) discrimination complaint under the Mine Act. The text of 

Leimbach’s complaint asserted that his firing was based on forwarding the email to MSHA. 

Huber’s Counsel endeavored to have the email returned and asserted that an attorney for 

the Secretary acknowledged in September 2018 “that the email ‘contained exchanges between 

management and counsel that meet the requirements of attorney-client communications.’” Id. 

at 4. Huber also asserts that the email also contains attorney work product, and as such, that is 

also privileged. Id. Later in September Huber fired Leimbach, asserting that the action was taken 

for violating company policies including sharing the email created by Huber’s Counsel. 

Subsequently, the Secretary’s Counsel and Huber’s Counsel attempted to reach an accord about 

the disposition of the email but they were unable to come to an agreement. 

The impact of the email was not limited to the Leimbach complaint. As noted, it was also 

connected with another discrimination complaint brought by a different individual, whose 

complaint was investigated by a different special investigator for MSHA and which case was 

before a different administrative law judge, in Docket No. LAKE 2018-0387-DM. In that 

separate discrimination proceeding, Huber’s Counsel filed a motion similar in intent to the 

Motion currently before this Court. The administrative law judge assigned to that case dealt with 

the attorney-client privilege assertion by referring the question to another administrative law 

judge. That “referral judge” concluded that the email was subject to the attorney-client privilege 

being claimed. Motion at 5, Exhibit 2. 

The Motion then turns to the Application for Leimbach’s temporary reinstatement. 

Respondent observes that the four corners of Leimbach’s complaint speak only to his actions 

regarding sharing the email with MSHA. As the Court noted in its Order of temporary 

reinstatement, the basis of a discrimination complaint is not limited to words in the complaint but 

includes MSHA’s interview of the individual making the complaint. Order Granting Temporary 

Reinstatement at 4, citing Hatfield v. Colquest Energy, 13 FMSHRC 544 (Apr. 1991). The 

reason for this inclusion is plain – a person filing a discrimination complaint is not necessarily 

savvy about expressing all the possible bases for the complaint and therefore the MSHA 

interview and investigation are deemed to be part of the charging document. 

41 FMSHRC Page 127
Respondent’s Contentions/Arguments 

Huber begins its argument by noting that the requirements for a complaint include “a 

short and plain statement of the facts, setting forth the alleged discharge, discrimination or 

interference, and a statement of the relief requested.” Motion at 6, citing 29 C.F.R. § 2700.42. 

Huber also contends that “the doctrine of collateral estoppel applies to ‘preclude the relitigation 

in a subsequent suit of any issues actually litigated and determined in the prior suit.’” Id. 

(internal citations omitted). Focusing on the latter point, Huber asserts that Leimbach’s 

Application for Temporary Reinstatement must be dismissed, because it is based on the email 

claimed to be within the attorney-client privilege, which Leimbach was not entitled to possess, 

and because the administrative law judge in that other discrimination case, which matter did not 

involve Leimbach, determined that the email was within the attorney-client privilege. Id. 

 From this, Huber contends that any use of the email is unwarranted and, since it cannot 

form the basis of any discrimination complaint filed by Leimbach, his Application and 

Complaint should be dismissed. Huber then stakes out its alternative requested relief if the 

Application is not dismissed. The alternative is that the Application be stayed until MSHA both 

recuses the individuals involved in investigating Leimbach’s Section 105(c) discrimination 

complaint and undertakes and completes a new investigation into the merits of Leimbach’s 

allegations, performed by new MSHA representatives, with those individuals being untainted by 

knowledge of the information in the Huber email. Id. at 7. 

The Secretary’s Opposition to Huber’s Motion 

At the outset the Secretary, in his Opposition, contends that Huber’s Motion fails “to 

provide any reason to delay any temporary reinstatement hearing.” Opposition at 1. As the 

temporary reinstatement hearing occurred before the Court had an opportunity to review the 

Secretary’s Opposition and the Court, as noted above, granted the application, reinstating 

Leimbach, that aspect is now moot and the Court treats the Motion as a motion to reconsider 

whether the application was frivolously brought. Since the Court’s determination of frivolity was 

not based on the email issue at all, but rather on separate and independent grounds of 

discrimination, the determination of reinstatement stands. 

The Secretary also contends that “[t]his Court should also deny Huber’s motion because 

the Court is not bound by Judge Rae’s decision,2

 and because collateral estoppel does not apply 

in this case.” Id. Instead, the Secretary asserts that Huber’s filing is simply a motion in limine

seeking to exclude potential evidence. Granting such a motion, excluding the email, “would be 

manifestly unfair to [the] Complainant.” Id. 

 2 The Secretary notes, and it is not disputed, that there are two separate discrimination 

cases involving different complainants and that those matters are before different administrative 

law judges. What the cases have in common is the question of the August 8, 2018 email between 

Huber and its legal counsel. They are: Secretary on behalf of Justin Hickman v. Huber 

Carbonates, LLC, Docket No. LAKE 2018-0387, which is before Judge Rae and Secretary on 

behalf of Delbert Leimbach v. Huber Carbonates, LLC, Docket No. LAKE 2019-0106, before 

this Court. 

41 FMSHRC Page 128
The Secretary acknowledges that Leimbach’s temporary reinstatement application was 

based, in part, on information he learned through an August 8, 2018 email “between respondent, 

respondent’s counsel, and a non-management level employee.” Id. at 3. However, the Court 

takes note that the temporary reinstatement application was not based solely upon the August 8, 

2018 email. In fact, at the temporary reinstatement proceeding, the Court’s subsequent 

determination that the application was not frivolously brought was based entirely on information 

apart from that email. See, this Court’s Order Granting Temporary Reinstatement, December 26, 

2018, at 3 n.1. 

 Importantly, the Secretary announced that his decision to proceed with evidence apart 

from the August 8, 2018 email at the temporary reinstatement proceeding, did not constitute a 

concession that the email is not relevant nor that it would be improper to consider the email in a 

discrimination case on the merits. Opposition at 3. 

 In the argument section of the Secretary’s Opposition, the Secretary asserts that Huber 

“seeks to dismiss the entire Leimbach TR Application because it disagrees with one of the 

Secretary’s theories of the case.” Id. at 4. (emphasis in original). In this regard the Opposition 

notes that the Secretary’s Leimbach TR Application, [ ] was accompanied by an affidavit from 

Special Investigator David Schwab, [and that it] sets forth multiple instances of protected 

activities, including Mr. Leimbach’s communications with MSHA and his safety-related 

complaints made directly to Huber.” Id. at 5. The Secretary also challenges Huber’s reliance on 

29 C.F.R. § 2700.42, and Administrative Law Judge Miller’s decision in Secretary o/b/o Eric 

Greathouse et al v. Monongalia County Coal Co. et al., 37 FMSHRC 2892 (Dec. 2015) 

(ALJ)(“Greathouse”), because “[t]he pleading and evidentiary standards are different for 

temporary reinstatement proceedings than they are for merits proceedings.”3 Opposition at 5-6. 

The Court agrees. Greathouse was not a temporary reinstatement proceeding. 

 The Secretary also addresses whether the Court is bound by the decision of Judge Rae 

regarding the August 8, 2018 email and whether collateral estoppel applies, arguing that neither 

so limits this Court. Noting that the determination of an administrative law judge is not binding 

on another judge, the Secretary points to 29 C.F.R. part 2700.69(d) and Big Ridge, Inc. v. 

FMSHRC, 715 F.3d 631, 640 (7th Cir. 2013) , which expressly address the subject of precedence. 

As to the collateral estoppel assertion, the Secretary argues that the email issue cannot be 

described as having been “determined,” because Judge Rae’s decision is not final and there is no 

 3 The Secretary similarly dismisses Huber’s contentions that Leimbach inappropriately 

retained the August 8, 2018 email, that he admitted sharing the email with others, and that he 

was fired for violating several company policies and breaching his confidentiality agreement, 

because those contentions are not evidence, but rather arguments by Huber’s Counsel. Further, at 

the temporary reinstatement stage, the Secretary argues that it is outside the judge’s duty to 

resolve conflicts in testimony or to entertain the operator’s rebuttal or affirmative defenses. Such 

proceeding is only to determine whether the application has been frivolously brought. 

Opposition at 6-7. 

41 FMSHRC Page 129
established identity of issue.4

 Beyond those issues, in the temporary application case before her, 

as Judge Rae temporarily reinstated Mr. Hickman a month before Huber’s motion for 

declaratory judgment, the email determination could not be deemed as necessary to her 

temporary reinstatement decision. Opposition at 8-9. 

 Last, the Secretary contends that “Huber’s demand for this Court to ‘stay, recuse, and 

reinvestigate’ this matter must be rejected because the requested remedies are outside the scope 

of Commission authority to grant.” Id. at 9. In this regard, the Secretary asserts that the 

Commission is without authority to issue “a declaratory order granting such relief.”5 Id. 

Discussion 

After receiving the Motion and the Opposition, the Court held a conference call with the 

parties, procedurally addressing the logistics of addressing the Motion and whether its order on 

the Motion could include a ruling on whether the email is within the attorney-client privilege 

claim and, if so, whether it was waived in any event. The Court was initially inclined to address 

those issues in this Order, but as a result of the conference call, it reconsidered that approach and 

directs that those issues now be addressed by a separate motion.

6

 

 Nevertheless, speaking to the Motion at hand in a limited fashion, Huber asserts that the 

emails in issue constitute attorney-client privileged communications and they also contain 

attorney work product, which is also privileged. It is true that, in a distinct Mine Act 

discrimination case, involving a different miner, and before a different administrative law judge, 

the same Huber emails were determined to be within the attorney-client privilege. Huber’s 

Counsel seeks the same outcome regarding those emails in this case. 

 4 There are problems with collateral estoppel claim in that it may be questioned whether 

the two cases involve the same parties, but perhaps more significantly, whether there has been a 

final adjudication on the merits. The latter seems not to have occurred. Further, the issue of 

waiver of the attorney-client claim has clearly not been determined in that other matter. Compare

with Sec. v. Southwest Quarry and Materials, 2003 WL 145588 at *2-3 (Jan. 2003) (ALJ).

5 On the issue of declaratory orders, among other authority cited, the Secretary states that 

“declaratory orders are ‘noncoercive declarations of rights rather than orders imposing penalties 

or liabilities’ ... [and that] [t]he only difference between declaratory orders or judgments and 

other orders and judgments is presence or absence of the element of coercion.” Opposition at 10, 

citing Administrative Declaratory Orders, 13 Stan. L. Rev. 307, 307 (1961); Kenneth Culp 

Davis, Administrative Law Treatise § 4.10 at 268 (1958). The Secretary comments that “this 

constraint is appropriate to ensure the agency is limited to adjudicating only the specific types of 

claims it is authorized to hear, rather than functioning more like a court of general jurisdiction.” 

Id. 

6 Thus the Secretary and Huber will have a separate opportunity to flesh out the email 

issues. “To flesh out something is to give it substance, or to make it fuller or more nearly 

complete. ...To flush out something is to cause it to leave a hiding place.” Flesh Out, MerriamWebster’s Collegiate Dictionary (11th ed. 2003). 

41 FMSHRC Page 130
 As described above, Huber asserts that, as it prevailed in the distinct discrimination 

matter before a different judge, collateral estoppel controls the attorney-client contention in this 

case as well. From that premise, it contends that since Leimbach’s complaint rests on that 

privileged material and it may not be considered, his complaint and consequently the application 

must fail. 

 Huber’s Motion must fail because the Secretary’s Application for Leimbach did not in 

fact rest solely upon the email, nor did the Court’s December 26, 2019 Order Granting 

Temporary Reinstatement rely at all upon the email material. In addition, the Court agrees with 

the arguments advanced by the Secretary of Labor that collateral estoppel is not applicable to this 

matter. Accordingly, Huber’s Motion to Dismiss is DENIED. 

 As to Huber’s alternative motion to stay, recuse and reinvestigate Leimbach’s 

discrimination complaint anew, with no part of such reinvestigation involving the Huber emails 

and that it be performed by individuals who have not been exposed to those emails, that is also 

DENIED. Motion at 7-8. In making this argument, Huber simply repeats the points it made in 

seeking its Motion to Dismiss. Key in the Court’s denial of Huber’s alternative motion is no 

prior decision by the Commission is cited to show that the Court has the authority to order 

reinvestigation by the Secretary. When presented with an Application for Temporary 

Reinstatement, the Court is faced with a single issue – whether the Application was frivolously 

brought. In its December 26, 2018 Order granting the temporary reinstatement application for 

Delbert Leimbach, the Court, relying only on testimony and exhibits apart from the challenged 

emails, found that the application was not frivolous. 7 

 The Court, now in possession of the Huber email, which was provided by Respondent’s 

Counsel, at the Court’s direction, for its in camera review, awaits further arguments on the issues 

of whether the email is within the attorney-client privilege claim and, if so, whether it was 

waived in any event. The parties are advised that the Court is receptive to a conference call, if 

there are questions regarding how to proceed on those issues. 

 /s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

 

 7 Huber’s Motion refers to its motion seeking declaratory relief in the Hickman matter 

before Judge Rae, but the Motion here does not seek such relief. Although declaratory relief may 

be available before the Commission in some instances, Huber has neither asserted, nor 

articulated, the basis for such relief here. See, e.g., North American Drillers, LLC, 34 FMSHRC 

352, 356 (Feb. 2012). 

41 FMSHRC Page 131
Distribution: 

Jason Nutzman, Dinsmore & Shohl LLP, 707 Virginia Street East, Suite 1300, Charleston, WV 

25301 

R. Jason Patterson, Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn Street, 

Rm. 844, Chicago, IL 60604 

Delbert Ted Leimbach, 3208 Lindell Avenue, Quincy, IL 62301 

41 FMSHRC Page 132
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 

February 6, 2019 

ORDER TO COMPLAINANT TO SHOW CAUSE 

This case is before me on a pro se Complaint of Discrimination pursuant to Section 

105(c)(3) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”) filed on December 

12, 2018 with the Commission. Respondent filed a Motion to Dismiss on January 8, 2019. The 

case was assigned to the undersigned on January 24, 2019. 

Complainant’s claim of discrimination stems from an incident alleged to have occurred at 

the Respondent’s main office on April 21, 2017. On May 22, 2017, Complainant e-mailed the 

Mine Health and Safety Administration’s (MSHA) Albany Field Office supervisor recounting 

the alleged incident. At that time, Complainant did not raise any issue of protected activity under 

the Mine Act, but did assert that he was terminated because of his age, and that a physical 

altercation with Respondent’s representatives occurred after he was terminated by the 

Respondent. Less than four hours later, MSHA’s supervisor responded to Complainant’s e-mail 

by asserting that he “was sorry to hear about this very unfortunate incident,” that MSHA lacked 

jurisdiction over an incident that occurred at Respondent’s main office, and that “there is nothing 

that MSHA can do to assist in the matter.” The MSHA supervisor’s reply email further stated 

that Respondent’s “main office would fall under VOSHA [Vermont OSHA] jurisdiction and they 

should be made aware of the incident,” that age discrimination is a violation of the Age 

Discrimination in Employment Act (ADEA), and “[i]f you seek legal counsel on this matter, they 

should be well versed in the laws that have been violated.” 

Complainant subsequently sought redress of his alleged improper termination claim with 

the Office of Administrative Hearings at the Department of Labor for the State of Vermont. 

Complainant’s claim has been active in the Vermont administrative adjudication system and the 

state courts1

 through at least October 30, 2018.

1

Deuso v. Vermont Department of Labor, No. 2017-425, 2018 WL 2100366 (Vt. May 4, 

2018) (unpub. mem.) (reversed and remanded for further proceedings). 

MICHAEL DEUSO, 

 Petitioner 

v. 

SHELBURNE LIMESTONE CORP., 

 Respondent 

DISCRIMINATION PROCEEDING 

Docket No. YORK 2019-0015-DM 

Mine: SLC Swanton Div. 

Mine ID: 43-00030 

41 FMSHRC Page 133
 On December 12, 2018, almost 19 months after his e-mail conversation with MSHA, the 

Complainant filed a discrimination claim with the Commission alleging he was discharged for 

activity protected under the Mine Act. Complainant alleged, in pertinent part, his “belief that for 

the past couple of years the owners were looking for ways to force me to quit because I was a 

highly paid employee and by making my job unbearable that they would push me out the door.” 

Complainant further avers, for the first time, that on the week of April 17, 2017, the owners 

came to the mine and “made adjustments on the primary and secondary feeders and the system 

[was] running at 100 percent capacity using the conveyor belt amp meters as guides[.] [I]t had 

rained and the stone was flowing faster through the feeder pans and the belt amps were starting 

to run past the amp setting that they had the feeders set at so I tweaked the setting on the stone 

crusher to maintain the belt amperage.” Complainant further alleges that after the owners came 

out of a meeting, one of them asked why he had adjusted the feeder knob. Complainant 

explained, and was told by the owner to “set the dial on 100 percent no matter what happened.” 

Complainant then turned the dial back to 100 percent and gave the owner a brochure of a belt 

speed sensor and asked him to install it on the conveyor belt. The owner left with the brochure. 

Complainant alleges that a couple of days later, he was called down to the main office to be fired 

for touching the feeder dial. 

 On January 8, 2019, Respondent filed a Motion to Dismiss arguing that Complainant 

filed a Section 105(c)(1) complaint with MSHA on May 22, 2017, that MSHA denied the 

complaint that same day, and that Complainant did not timely file a Section 105(c)(3) complaint 

within 30 days of MSHA’s denial. In addition, Respondent argues that the acts complained of 

took place at the Respondent’s main office, which is not under MSHA jurisdiction, and age 

discrimination is not covered by the Mine Act. Finally, Respondent relies on and attaches 

Vermont administrative decisions finding that Complainant was terminated for insubordination 

and failure to obey a direct order.2

 

Section 105(c)(1) of the Mine Act provides, in pertinent part, that: 

No person shall discharge or in any manner discriminate against . . . or otherwise 

interfere with the exercise of the statutory rights of any miner . . . in any coal or other 

mine subject to this Act 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 such 

miner . . . instituted or caused to be instituted any proceeding under or related to this Act 

or has testified or is about to testify in any such proceeding, or because of the exercise by 

such miner . . . on behalf of himself or others of any statutory right afforded by this Act. 

Section 105(c)(2) of the Mine Act provides, in pertinent part, that: 

Any miner . . . who believes that he has been discharged, interfered with, or otherwise 

discriminated against by any person in violation of this subsection may, within 60 days 

after such violation occurs, file a complaint with the Secretary alleging such 

discrimination. Upon receipt of such complaint, the Secretary shall forward a copy of the 

 2 See note 2, supra. 

41 FMSHRC Page 134
complaint to the respondent and shall cause such investigation to be made as he deems 

appropriate. . . . 

Section 105(c)(3) of the Mine Act provides, in pertinent part, that: 

Within 90 days of the receipt of a complaint filed under paragraph (2), the Secretary shall 

notify, in writing, the miner . . . of his determination whether a violation has occurred. If 

the Secretary, upon investigation, determines that the provisions of this subsection have 

not been violated, the complainant shall have the right, within 30 days of notice of the 

Secretary's determination, to file an action in his own behalf before the Commission, 

charging discrimination or interference in violation of paragraph (1) . . . .

 Under Section 105(c)(3) of the Mine Act, assuming arguendo that MSHA’s e-mail 

communication on May 22, 2017 is considered a determination after investigation that no 

violation of the Mine Act occurred, Complainant had 30 days to file his 105(c)(3) action with the 

Commission. As noted, Complainant filed with the Commission almost 19 months later. 

The Commission has held however, that a claim may be considered despite untimely filing due 

to “justifiable circumstances, including ignorance, mistake, inadvertence and excusable neglect.” 

Perry v. Phelps Dodge Morenci, Inc., 18 FMSHRC 1918, 1921-22 (Nov. 1996). There is no 

evidence in the record that the Secretary’s May 22, 2017 determination that the Mine Act had not 

been violated was based upon any investigation of the conveyor belt incident raised for the first 

time in the Complainant’s filing with the Commission. Cf. Hatfield v. Colquist Energy, Inc., 13 

FMSHRC 544 (Apr. 1991). 

 In light of the foregoing, the Complainant is directed to SHOW CAUSE why his claim 

should not be dismissed as untimely filed, or dismissed because the matters contained in his 

Commission filing were not investigated by the Secretary such that the statutory prerequisites for 

a complaint pursuant to Section 105(c)(3) have not been satisfied. 

 Complainant is directed to respond within two weeks of receipt of this order. Respondent 

will have two weeks from the filing of Complainant’s response to submit a reply to Complaint’s 

response. 

 /s/ Thomas P. McCarthy 

Thomas P. McCarthy 

 Acting Chief Administrative Law Judge 

41 FMSHRC Page 135
Distribution: 

Michael Deuso, 236 N. Main Street, East Berkshire, VT 05447 

Joseph Cahill, Cahill, Gawne, Miller & Manahan, P.O. Box 810, St. Albans, VT 05478 

/BFP 

41 FMSHRC Page 136
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004 

February 13, 2019 

ORDER DENYING RESPONDENTS’ MOTION 

FOR SUMMARY DECISION 

Before: Judge Feldman 

The captioned discrimination proceeding is before me based on a discrimination 

complaint filed pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 

as amended, 30 U.S.C. § 815(c)(3) (the "Act"), by Gabriel Silva against Rockwell Mining, LLC, 

Blackhawk Mining, LLC, and Black Oak Mining, LLC (collectively, “Respondents”). The 

record reflects that Silva was employed at all relevant times as a utility man by Black Oak Mine, 

LLC (“Black Oak”) at its facility located in Wharton, West Virginia. Compl. at 1. Silva alleges, 

in essence, that his three day suspension that followed his refusal to mix a Quikrete dry sealant 

because of his concern regarding the adequacy of the inhalation protection provided to him by 

Black Oak violates the antidiscrimination provisions of section 105(c)(1) of the Act.1 Compl. at 

2-4. On December 7, 2018, the Respondents filed a Motion for Summary Decision

(“Respondents’ Motion”) seeking the dismissal of Silva’s complaint. Silva filed an opposition to

the Respondents’ Motion on December 19, 2018 (“Complainant’s Opposition”). The United

Mine Workers of America (“UMWA”) represents Silva in this matter. Id. at 4.

I. Background

Silva asserts that he refused to mix water with powdered dry sealant because of his 

concern that the product is a lung irritant. Compl. at 2-3. Silva alleges that his refusal was due to 

his concern that the inhalation protection provided by the paper Moldex 2300N95 respirator, 

supplied by Black Oak, was inadequate. Id. at 3. Silva further alleges that his request for a 3M 

filtered respirator that contained a rubber seal, that he believed would provide better inhalation 

protection, was denied by Black Oak. Compl. Opp., Ex. A at 2-3. In contrast, Black Oak alleges

1 Section 105(c)(1) provides in pertinent part, “No person shall discharge or in any 

manner discriminate against [a miner] . . . because such miner . . . made a safety complaint 

related to this Act.” 30 U.S.C § 815(c)(1). 

GABRIEL SILVA, 

 Complainant, 

v. 

ROCKWELL MINING, LLC, 

 BLACKHAWK MINING, LLC, 

 BLACK OAK MINING, LLC, 

 Respondents. 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 2018-0565-D 

MSHA No. HOPE-DC-2018-02 

Mine: Black Oak Mine 

Mine ID: 46-09152 

41 FMSHRC Page 137
that the inhalation protection provided by the paper Moldex 2300N95 respirator was sufficient 

because it was the respirator recommended by Quikrete, the manufacturer of the powdered 

sealant. Resp’t Mot. at 1-2. 

II. Analysis

a. Prima Facie Case

Section 105(c)(1) of the Act prohibits a mine operator from discriminating against a 

miner because the miner has engaged in safety-related protected activity. 30 U.S.C. §815(c)(1). 

To establish a prima facie case under section 105(c)(1) of the Act, it must be shown, by a 

preponderance of the evidence, that the complainant engaged in safety-related protected activity, 

and, that the claimant was the victim of adverse action that was motivated, at least in part, by that 

activity. Jeffrey Pappas v. Calportland Co. and Riverside Cement Co., 40 FMSHRC 664, 668 

(May 2018) (citing Turner v. Nat’l Cement Coal Co. of California, 33 FMSHRC 1059, 1064-67 

(May 2011); Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 

2799 (Oct. 1980); Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 

803, 817-18 (Apr. 1981). 

b. Protected Work Refusal

The Commission has addressed the evidentiary criteria for determining whether a work 

refusal is protected activity as contemplated by section 105(c)(1) of the Act: 

The Mine Act grants miners the right to complain of a safety or

health danger or violation, but does not expressly state that miners 

have the right to refuse to work under such circumstances. 

Nevertheless, the Commission and the courts have recognized the 

right to refuse to work in the face of such perceived danger. See

Price, 12 FMSHRC at 1514; Cooley, 6 FMSHRC at 520. In order 

to be protected, work refusals must be based upon the miner's 

“good faith, reasonable belief in a hazardous condition.” Robinette, 

3 FMSHRC at 812; accord Gilbert v. FMSHRC, 866 F.2d 1433, 

1439 (D.C. Cir. 1989). A good faith belief “simply means honest

belief that a hazard exists.” Robinette, 3 FMSHRC at 810. 

Consistent with the requirement that the complainant establish a 

good faith, reasonable belief in a hazard, “a miner refusing work 

should ordinarily communicate, or at least attempt to 

communicate, to some representative of the operator his belief in 

the safety or health hazard at issue.” Secretary of Labor on behalf 

of Dunmire v. Northern Coal Co., 4 FMSHRC 126, 133 (Feb. 

1982). 

Once it is determined that a miner has expressed a good faith, 

reasonable concern about safety, the analysis shifts to an 

evaluation of whether the operator addressed the miner's concern 

41 FMSHRC Page 138
“in a way that his fears reasonably should have been quelled.” 

Gilbert, 866 F.2d at 1441; see also Secretary of Labor on behalf of 

Bush v. Union Carbide Co., 5 FMSHRC 993, 998-99 (June 1983); 

Thurman v. Queen Anne Coal Co., 10 FMSHRC 131, 135 (Feb. 

1988), aff'd mem., 866 F.2d 431 (6th Cir. 1989). A miner's 

continuing refusal to work may be deemed unreasonable after an 

operator has taken reasonable steps to dissipate fears or ensure the 

safety of the challenged task or condition. See Bush, 5 FMSHRC at 

998-99. 

Bryce Dolan v. F & E Erection Co., 22 FMSHRC 171, 177 (Feb. 2000). 

c. Summary Decision 

Commission Procedural Rule 67(b), which tracks the provisions of summary judgment 

Rule 56(a) of the Federal Rules of Civil Procedure, provides: 

A motion for summary decision shall be granted only if the entire 

record, including the pleadings, depositions, answers to 

interrogatories, admissions, and affidavits, shows: (1) That there is 

no genuine issue as to any material fact; and (2) That the moving 

party is entitled to summary decision as a matter of law. 

29 C.F.R. § 2700.67(b); see Fed. R. Civ. P. 56(a). 

The Commission has cautioned against the broad approval of motions for summary 

decision, noting that, “[s]ummary decision is an extraordinary procedure. If used improperly it 

denies litigants their right to be heard.” Missouri Gravel Co., 3 FMSRC 2470, 2471 (Nov. 1981) 

(footnote omitted). The Respondents, as the parties moving for summary decision, bear the 

burden of demonstrating there are no genuine disputes as to material facts. See Kenamerican 

Res., Inc., 38 FMSHRC 1943, 1946 (Aug. 2016) (citing Celotex Corp v. Catrett, 477 U.S. 317, 

323 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). If the Respondents satisfy 

their burden, the focus shifts to whether Silva, as the non-movant party, has established a 

genuine dispute as to material fact. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 

(1986); Scott v. Harris, 550 U.S. 372, 380 (2007); Matsushita Elec. Indus. Co. v. Zenith Radio 

Corp., 475 U.S. 574, 586-587 (1986)). The inferences to be drawn from the underlying facts 

allegedly supporting the motion must be viewed in the light most favorable to the party opposing 

the motion. Id. (citing U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962)). 

Disposition of the Respondents’ Motion for Summary Decision requires identification of 

several outstanding issues of material fact that must be viewed in the light most favorable to 

Silva. Namely: (1) whether Silva’s work refusal was based on a reasonable good faith belief that 

the respiratory protection provided by Black Oak did not adequately protect him from the 

potentially toxic inhalation hazard posed by the mixing of the powdered dry sealant; (2) whether 

Silva adequately communicated his inhalation concerns to Black Oak; and (3) whether Black 

Oak responded to Silva in a manner that should have adequately quelled Silva’s fears. Given 

41 FMSHRC Page 139
unresolved nature of these outstanding questions of material fact, the Respondents’ Motion for 

Summary Decision must be denied. 

d. Proper Parties in this Matter 

The record reflects that Blackhawk Mining, LLC, is the parent company of Rockwell 

Mining, LLC, and Black Oak Mining, LLC. Compl. Opp., Ex. C at 1. The Respondents assert, in 

essence, that Blackhawk Mining, LLC, and/or Rockwell Mining, LLC, are not proper parties as 

they do not operate the Black Oak Mine, and are not Silva’s employer. Resp’t Mot. at 2, n. 1. I 

construe the Respondents’ assertion as a motion to strike Black Hawk Mining, LLC, and/or 

Rockwell Mining, LLC, as Respondents in this proceeding. The proper inquiry in a 

discrimination proceeding is whether a named respondent has the ability to make a complaining 

miner whole. See Sec’y of Labor o/b/o Shemwell v. Armstrong Coal Co., Inc., et al., 34 

FMSHRC 894, 898-99 (April 2012) (ALJ) (Noting that the “legislative history of the Mine Act 

reflects Congress’ concern that effective relief must be afforded to victims of discrimination.”). 

It is doubtful that Black Oak Mining, LLC, is incapable of providing the relief sought by Silva, 

namely the reimbursement of lost pay as a consequence of Silva’s three day suspension. 

However, the issue of whether Black Oak Mining, LLC, should be the sole Respondent in this 

proceeding shall be held in abeyance to afford the parties an opportunity to address this issue in 

their post-hearing briefs. 

ORDER 

In view of the above, IT IS ORDERED that the Respondents’ Motion for Summary 

Decision IS DENIED and that this matter shall be scheduled for hearing. The hearing date and 

location will be specified in a subsequent order. 

IT IS FURTHER ORDERED that the Motion to Strike Black Hawk Mining, LLC, 

and/or Rockwell Mining, LLC, at this early phase of this proceeding IS DENIED. 

 /s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

41 FMSHRC Page 140
Distribution: 

Gabriel Silva, P.O. Box 111, Danville, WV 25053 

Laura P. Karr, Esq., United Mine Workers of America, 18354 Quantico Gateway Drive, Suite 

200, Triangle, VA 22172 lkarr@umwa.org 

Jonathan R. Ellis, Esq., Steptoe & Johnson, PLLC, Eighth Floor, Chase Tower, P.O. Box 1588, 

Charleston, WV 25326 jonathan.ellis@steptoe-johnson.com 

/nm 

41 FMSHRC Page 141
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9900 / FAX: 202-434-9949 

February 25, 2019 

ORDER GRANTING TEMPORARY REINSTATEMENT

Before: Judge McCarthy 

This matter is before me on the Secretary of Labor’s Application for Temporary 

Reinstatement filed on behalf of miner James Dee Terry pursuant to Section 105(c) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seq., as amended (“Mine Act”), 

and 29 C.F.R. § 2700.45. The Secretary seeks an order temporarily reinstating Terry to his 

former position with Prospect Mining & Development Co., LLC, pending the investigation and 

disposition of a Complaint of Discrimination under Section 105(c) of the Act. 

I. Statement of the Case

Terry was a miner within the meaning of the Mine Act for Prospect Mining & 

Development beginning in December 2016 when Prospect Mining acquired Terry’s previous 

employer. Terry was employed as Manager of Special Projects and Safety Compliance from 

approximately the summer 2017 until September 2018. The Secretary of Labor, on behalf of 

Terry, alleged that on August 29, 2018, Terry filed a safety complaint with the Mine Safety & 

Health Administration (“MSHA”) regarding conditions at the mine, pursuant to which MSHA 

conducted an inspection. The Secretary alleges that on September 10, 2018, Terry was 

reassigned to a position taking inventory of equipment at the Mine and the duties of his previous 

position were assigned to other employees. The Secretary further alleges that in early November 

2018, Terry communicated additional safety concerns to Respondent. 

On November 28, 2018, Terry’s employment was terminated by the Respondent. Terry 

filed a discrimination complaint with MSHA on December 3, 2018. On January 23, 2019, after 

an investigation conducted by MSHA special investigator Freddie N. Fugate, the Secretary filed 

an application (“Application”) for temporary reinstatement with the Commission. The Secretary 

requested in its Application that the Commission issue an order “directing the Respondent to 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) on behalf of 

JAMES DEE TERRY 

 Complainant 

v. 

PROSPECT MINING & DEVELOPMENT 

CO., LLC, 

 Respondent 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. SE 2019-0071-D 

MSHA Case No. BARB-CD-2019-1 

Mine: Carbon Hill Mine 

Mine ID: 01-03389 

41 FMSHRC Page 142
reinstate James Dee Terry to the position he held immediately prior to the reduction in his job 

duties on or about September 10, 2018, or to a similar position at the same rate of pay, with the 

same benefits, and with the same or equivalent duties assigned to him.” Application at 3. 

On February 1, 2019, Respondent filed a formal request for a hearing on the temporary 

reinstatement matter. On February 5, 2019, a conference call was held to set a hearing date for 

this matter. The hearing was scheduled for February 11, 2019. However, Respondent withdrew 

its request for a hearing on February 8, 2019. In the same document as the withdrawal of the 

request for a hearing, Respondent moved for issuance of an order economically reinstating Terry 

in lieu of physical reinstatement. See Withdrawal of Request for Hearing and Motion for 

Temporary Economic Reinstatement (“Motion”). In the Motion, the Respondent alleged that 

Terry’s job responsibilities “evolved over time given his inability to work with others and 

continued, unsatisfactory job performance.” Motion at ¶ 5. The Respondent further claimed that 

“Terry exhibited an abrasive attitude to all individuals with whom he worked, including 

employees, contractors, and MSHA personnel,” and that “[s]ince his discharge, Prospect Mining 

has received threats made by contract miners towards Terry if he were to return to the mine 

property.” Id. Respondent also alleged that Terry refused to return filing cabinets, furniture, and 

a personal computer that all belonged to Respondent, and that Respondent “has also uncovered 

some troubling activity Terry was engaged in during his employment related to the 

administration of certain workers’ compensation claims.” Motion at ¶ 6. Respondent added in a 

footnote that it was “ready to support these statements with affidavits if necessary or requested 

by the Court.” Motion at ¶ 6 n.1. 

During a February 8, 2019 conference call with the parties to discuss Respondent’s 

Motion, Terry indicated that he objected to Respondent’s motion and wished to be temporarily 

reinstated to his former position at Carbon Hill Mine, pending disposition of his discrimination 

complaint. Terry also indicated that he would submit his own reply (“Reply”) to the allegations 

contained in Respondent’s Motion. 

On February 12, 2019, the Secretary, the Respondent, and Terry conferred to discuss a 

possible settlement agreement to temporarily economically reinstate Terry. The following day, 

the Secretary represented to the undersigned that the parties had reached an agreement in 

principle as to economic reinstatement. In the early evening on Thursday, February 14, 2019, 

however, the Secretary informed the undersigned that “[i]n discussing the terms of the potential 

agreement today, it has become clear that the parties do not have an agreement.” During a 

conference call on the morning of Friday, February 15, 2019, Respondent confirmed that 

although the parties had failed to reach agreement on the specific terms of temporary economic 

reinstatement, Respondent’s withdrawal of a hearing request was unconditional. 

On February 15, 2019, Terry, on his own behalf, filed his Reply to Respondent’s Motion. 

In his Reply, Terry stated that he did not receive notice about the change to his job title, any 

dissatisfaction with his job performance, or complaints by others about him or his work. Reply 

at ¶ 3-5. Terry also asserted that he “did not administer any workers’ compensation claims for 

Prospect Mining,” only removed items from the Carbon Hill Mine that belonged to him, and that 

the only threat Terry received was from Prospect Mining CEO Robert Schneid threatening to 

break his legs should Terry return to the property. Reply at ¶ 6-10. Terry requested that the 

41 FMSHRC Page 143
undersigned either order temporary physical reinstatement, or in the alternative, order temporary 

economic reinstatement with “the unconditional right to obtain other employment.” Reply at ¶ 

13. 

On February 15, 2019, after Terry filed his Reply, Respondent filed a supplemental 

evidentiary submission (“Supplement”) in support of its motion for temporary economic 

reinstatement. The Supplement included four exhibits. The first, a declaration from CEO Robert 

Schneid, stated that Terry was removed from his original position due to “his confrontational 

attitude toward parties working on the project and his inability to get tasks completed on time 

and on schedule.” Supplement Exhibit A, Declaration of Robert Schneid, at ¶ 8. Schneid also 

asserted that Respondent was unable to provide training records for certain employees to MSHA 

because Terry, who had previously been in charge of maintaining training records, could not 

produce them for Respondent. Id. at ¶ 15. The second exhibit was a description of the key 

responsibilities of Terry’s prior position as Manager of Special Projects and Safety Compliance. 

The third exhibit was an e-mail communication sent on August 15, 2018 between GMS Mine 

Repair and Maintenance (“GMS”) in which GMS employees expressed concern regarding 

Terry’s attitude towards GMS. The final exhibit was a communication dated November 7, 2018 

between Schneid and Terry regarding Terry’s job responsibilities as of September/October 2018. 

On February 19, 2019, Terry filed a second reply (“Second Reply”) with the Commission 

disputing the Supplement. Specifically, Terry alleged that he made safety complaints directly to 

CEO Robert Schneid in August and November. Second Reply at ¶ 1-2. Terry submitted exhibits 

that he alleges prove that Schneid was aware of safety violations committed by GMS1

 and the 

Respondent. Second Reply, Exhibits A-B. Terry reproduced an e-mail communication with 

MSHA from December 12, 2018, after his termination, where he denied withholding training 

records from Respondent. Second Reply, Exhibit D. Finally, Terry reiterated his request to be 

temporarily physically reinstated or temporarily economically reinstated with an unconditional 

right to seek alternative employment. 

On February 19, 2019, after Terry submitted his Second Reply, the Secretary submitted 

his own response. The Secretary declined to take a position on the content of the Operator and 

Terry’s filings while the Secretary’s investigation remained pending, but instead the Secretary 

argued that I lack the authority under the Mine Act and the Commission’s Procedural Rules to 

grant the Respondent’s motion for temporary economic reinstatement over Terry’s objections. 

II. Legal Principles and Analysis 

Section 105(c)(2) of the Mine Act provides that, as to claims of discrimination, “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.” Commission Procedural Rule 45(d) states that 

“[t]he scope of a hearing for temporary reinstatement is limited to a determination as to whether 

the miner’s complaint was frivolously brought.” 

 1

 Based on the e-mail communications provided in Exhibit C of the Supplement and 

Exhibit A of Terry’s Second Reply, it appears that GMS and Z&J are independent contractors, 

and not subsidiaries of Prospect Mining and Development Co., LLC. 

41 FMSHRC Page 144
The elements of a discrimination claim provide a useful framework to assess whether an 

allegation is frivolous. Secretary of Labor on behalf of Williamson v. CAM Mining, LLC, 

31 FMSHRC 1085, 1088 (Oct. 2009). To establish a prima facie case of discrimination under 

section 105(c) of the Act, a complainant must establish (1) that he or she engaged in protected 

activity and (2) that the adverse action complained of was motivated in any part by that activity. 

Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 

(Oct. 1980), rev’d on other grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary of Labor on behalf 

of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981). 

For a temporary reinstatement proceeding, the Secretary need not prove a causal nexus 

exists between the protected activity and the adverse action; the Secretary need only demonstrate 

that there is a non-frivolous issue as to the causal nexus. As explained by Judge Manning, a 

Commission judge should determine the issue of causal nexus was not frivolously brought if 

“evidence was presented to show that the adverse actions could have been motivated at least in 

part by the protected activity.” Secretary of Labor on behalf of Bradley v. Climax Molybdenum 

Co., 34 FMSHRC 2808, 2821 (Oct. 2012) (ALJ). The Commission has recognized that direct 

evidence of motivation is rarely encountered and often, the only available evidence is indirect. 

See, e.g., Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 

2510 (Nov. 1981)., rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983). The Commission has 

identified the following indicia of discriminatory intent to establish a nexus between the 

protected activity and the alleged discrimination: (1) hostility or animus toward the protected 

activity, (2) knowledge of the protected activity, and (3) coincidence in time between the 

protected activity and adverse action. Id. 

The Secretary has sufficiently demonstrated that the Application was not frivolously 

brought as to the issue of protected activity. The Secretary’s Application states that Terry made 

safety complaints on two separate occasions. The first was made on or about August 29, 2019. 

Application at ¶ 6. The second complaint was made in early November 2018 directly to the 

Respondent. Application at ¶ 9. Making a safety complaint to MSHA or an operator is 

indisputably protected activity. 30 U.S.C. § 815(c)(1) (“[n]o person shall discharge or in any 

other manner discriminate against...because such miner...has filed or made a complaint under or 

relating to this Act, including a complaint notifying the operator or the operator’s agent...of an 

alleged danger or safety or health violation”). 

The Secretary has sufficiently demonstrated that the Application was not frivolously 

brought as to the issue of adverse action. The Secretary’s Application states that on September 

10, 2018, Terry’s work responsibilities were reassigned to other individuals and Terry was given 

another job. Application at ¶ 7. Reassignment to a different position can be considered an 

adverse action. Moses v. Whitley Development Corp., 4 FMSHRC 1475, 1478 (Aug. 1982). On 

or about November 16, 2018, Terry was denied continued use of a certain company truck that he 

had previously used. Application at ¶ 9. An operator’s revocation of certain benefits related to 

the performance of job duties can be considered an adverse action if “materially adverse to a 

reasonable employee.” Secretary of Labor on behalf of Pendley v. Highland Mining Company, 

34 FMSHRC 1919 (Aug. 2012), citing Burlington Northern & Santa Fe Ry. Co. v. White, 548 

U.S. 53, 57 (2006). On November 28, 2018, Terry’s employment was terminated. Application 

41 FMSHRC Page 145
at ¶ 9. It cannot be gainsaid that termination is also an adverse action per the plain meaning of 

Section 105(c)(1) when motivated by protected activity. Moses, 4 FMSHRC at 1479-80.

I further find that the Secretary’s Application alleging discriminatory reassignment, loss 

of benefits, and discharge establishes a sufficient nexus between the protected activity and the 

adverse action such that it was not frivolously brought. Terry complained directly to Schneid 

regarding “training violations” at the Carbon Hill Prep Plant owned by Respondent, to which 

MSHA issued citations to Respondent, GMS, and Z&J. Second Reply at ¶ 2. This, if true, 

would be sufficient to show Respondent was aware that Terry engaged in protected activity by 

making a safety complaint. Terry was reassigned to another position less than two weeks after 

Terry made this safety complaint to MSHA. Application at ¶ 6. After communicating additional 

safety concerns to Prospect Mining in November 2018, Terry lost the continued use of a 

company truck, and was terminated less than a month later. Application at ¶ 9. I therefore find 

that the Secretary has shown that the adverse action could have been motivated at least in part by 

the protected activity, and therefore the Application is not frivolously brought. 

The Respondent elected not to dispute any of the allegations described above at a 

hearing. As the Respondent has elected not to contest whether the Secretary’s application on 

behalf of Terry was frivolously brought, the only question remaining for me to decide at this 

stage of the proceedings is the manner of temporary reinstatement. As previously discussed, the 

Respondent seeks an order granting temporary economic reinstatement, but Terry objects to the 

terms of Respondent’s apparent offer. 

My legal authority to order economic reinstatement in lieu of physical reinstatement over 

the objection of a party is tenuous, absent agreement of the parties. As a default rule, 

Commission judges have ordered the physical reinstatement of the complainant to his or her 

former position at the mine, and the parties may subsequently negotiate terms of economic 

reinstatement in lieu of the complainant’s actual return to mine site.2

 Although the Commission 

has yet to squarely address the question of whether a judge can unilaterally order economic 

reinstatement, the Commission held in North Fork Coal Corporation, 33 FMSHRC 589 (Mar. 

2011), rev’d on other grounds, 691 F.3d 735 (6th Cir. 2012) that a judge lacks the authority to 

unilaterally modify the terms of an existing economic reinstatement agreement. Specifically, the 

Commission noted “[u]nlike back pay awards, Commission judges do not decide the terms of 

economic reinstatement agreements.” Id. at 593. Multiple Commission judges have interpreted 

North Fork Coal to severely limit the ability of a judge to order economic reinstatement without 

a clear agreement between the parties. In Secretary of Labor on behalf of Riordan v. Knox Creek 

Coal Corporation, 36 FMSHRC 1050 (Apr. 2014) (ALJ), Judge Moran rejected a motion by the 

respondent to order temporary economic reinstatement with a provision offsetting the 

respondent’s payments to the complainant for services rendered elsewhere. He reasoned that 

“[u]ntil the parties reach an agreement on the terms of any economic reinstatement, the Court’s 

involvement is foreclosed.” Id. at 1053. Judge Simonton reached a similar conclusion in 

Secretary of Labor on behalf of Garcia v. Veris Gold U.S.A., 36 FMSHRC 1883 (July 2014) 

(ALJ) (“Veris Gold I”). Judge Gill also rejected the argument that a Commission judge could 

issue an order granting temporary economic reinstatement without a previous agreement between 

 2 See, e.g., Sec’y of Labor on behalf of York v. BR&D Enterprises, Inc., 23 FMSHRC 386 

(Apr. 2001). 

41 FMSHRC Page 146
the parties. Secretary of Labor on behalf of Wilder v. Private Investigation & Counter 

Intelligence Services, Inc., 33 FMSHRC 2031, 2032 (Apr. 2011) (ALJ) (“the parties have no 

right to require or impose on each other, nor does the Court have authority to impose, economic 

reinstatement terms that have not been negotiated and agreed to.”) (internal citations omitted). 

Commission judges, however, have not entirely foreclosed the possibility of ordering 

temporary economic reinstatement without an agreement between all parties after particular facts 

have been established. For example, on reconsideration of his decision in Veris Gold I, Judge 

Simonton opined that an order granting temporary economic reinstatement might be permissible 

“when presented with a clear showing of extreme circumstances that would render temporary 

physical reinstatement an objectively meaningless remedy.” Secretary of Labor on behalf of 

Garcia v. Veris Gold U.S.A., 36 FMSHRC 2365, 2368-69 (Aug. 2014) (ALJ) (“Veris Gold II”). 

In reaching this conclusion, Judge Simonton considered Judge Melick’s decision in Secretary of 

Labor on behalf of Pruitt v. Grand Eagle Mining, Inc., 33 FMSHRC 1738 (July 2011) (ALJ). In 

that case, Judge Melick ordered temporary economic reinstatement over the objection of the 

complainant where the complainant “represent[ed] a safety hazard to himself and others and 

present[ed] a potential financial liability to Grand Eagle if he were to be returned to his former 

job through temporary reinstatement.” Id. at 1738-39. Judge Melick found particularly 

persuasive uncontroverted evidence presented at a temporary reinstatement hearing that the 

complainant damaged a $30,000.00 piece of equipment while on the job just three months prior 

to his discharge, and violated a mandatory safety standard by working at least 20 feet above 

ground without fall protection. Id. 

After careful consideration of the foregoing cases and temporary reinstatement principles, 

although decisions by other Commission Judges are not binding on me pursuant to Commission 

Procedural Rule 69(d), I find the reasoning of the Commission in North Fork Coal and the 

reasoning of Judges Moran, Gill, and Simonton to be persuasive on the issue before me. In the 

absence of an agreement between the Secretary, on behalf of Terry, and the Respondent, my 

order granting temporary economic reinstatement would by definition impose terms on which the 

parties could not reach agreement. Respondent’s counsel has made it clear that any right to 

obtain other employment in a temporary economic reinstatement agreement is conditioned on the 

work “not occur[ing] at Prospect Mining’s mine sites or directly relat[ing] to Prospect’s mining 

activities.” E-mail from Respondent’s attorney to this tribunal (Feb. 19, 2019, 10:09 EST). In 

his Reply, Terry says that he would accept temporary economic reinstatement only with “the 

unconditional right to obtain other employment.” Reply at ¶ 13. Therefore, the parties do not 

agree on the terms of economic reinstatement, and I cannot by adjudicative fiat form a complete 

economic reinstatement agreement for the parties. Doing so would be contrary to the plain 

meaning of North Fork Coal, which by implication contemplates temporary economic 

reinstatement as an alternative remedy created solely by agreement between the parties. 

Respondent argues that the alleged facts submitted in paragraphs five and six of its 

Motion justify ordering temporary economic reinstatement over Terry’s objection. Specifically, 

the Respondent alleged that Terry “exhibited an abrasive attitude to all individuals with whom he 

worked, including employees, contractors, and MSHA personnel.” Motion at ¶ 5. The 

Respondent further alleged that Terry removed property, including “filing cabinets, furniture, 

and a personal computer on which he performed company business” and failed to provide the 

41 FMSHRC Page 147
Respondent with an inventory of the items he removed. Motion at ¶ 6. Finally, the Respondent 

alleged that it had uncovered some “troubling activity” involving the administration of certain 

workers’ compensation claims it argues Terry handled. Id. All of these allegations, the 

Respondent concludes, are sufficient to justify ordering temporary economic reinstatement over 

Terry’s objection. 

In advancing its arguments, Respondent relies on Judge Melick’s decision in Pruitt. 

Given the posture of this case, however, I decline to adopt Judge Melick’s approach in Pruitt for 

several reasons. First, I do not read Section 105(c)(2) to grant Commission judges broad 

authority to craft temporary reinstatement agreements. I conclude that the broad remedies 

contemplated by Section 105(c)(2) of the Mine Act as cited by Judge Melick apply only to 

discrimination proceedings. The Mine Act states in relevant part that “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.” The Mine Act then proceeds to describe the process for adjudicating a 

discrimination complaint on the merits before reaching the “to take such affirmative action to 

abate the violation as the Commission deems appropriate” language cited by Judge Melick. 

From this, I conclude that the plain language of the Mine Act does not empower Commission 

Judges to issue remedies beyond reinstatement without an agreement between the parties. I 

agree with Judge Simonton’s analysis of Section 105(c)(2) in Veris Gold II, where he noted that 

the language quoted by Judge Melick “applies only after the Commission has provided an 

‘opportunity for a hearing,’ found that a ‘person commit[ed] a violation of this subsection’ and 

issued an order ‘based upon findings of fact.’” Veris Gold II, 36 FMSHRC at 2368. Although 

the Respondent was provided an opportunity for a hearing on the issue of temporary 

reinstatement, Respondent withdrew its request unconditionally. I cannot find at this stage of the 

proceedings that the Respondent has or has not violated Section 105(c), nor can I issue findings 

of fact with regard to Terry’s alleged misconduct. Accordingly, I conclude that my authority to 

order temporary economic reinstatement is considerably more limited than Judge Melick 

expressed in Pruitt. 

Second, unlike the operator in Pruitt, the Respondent does not cite any mandatory health 

or safety standard that Terry violated, or that Respondent would be liable for, should Terry return 

to work. That there may be hard feelings between Terry and management, or between Terry and 

other miners, is by itself insufficient to override Terry’s statutory right to be reinstated to his 

position while his claim of discrimination is adjudicated on the merits, particularly where Terry 

himself wishes to return to work. While it may be true that maintaining a hostile work 

environment can give rise to a claim of discrimination under Section 105(c) of the Mine Act,3

 the 

hostile work environment must interfere with the exercise of activities protected by the Mine 

 3 See, e.g., Sec’y of Labor on behalf of Bowling v. Mountain Top Trucking Co., 21 

FMSHRC 265 (Mar. 1999), citing Sec’y of Labor on behalf of Nantz v. Nally & Hamilton 

Enters., Inc., 16 FMSHRC 2208, 2210 (Nov. 1994). 

41 FMSHRC Page 148
Act,4

 and any such allegation of a hostile work environment in this case must be weighed against 

the fact that it was the Respondent who initially sought temporary economic reinstatement, and 

that it was Terry, through the Secretary, who insisted on physical reinstatement after awareness 

of Respondent’s allegations. 

Third, the facts that Judge Melick relied on in Pruitt to justify unilaterally ordering 

temporary economic reinstatement were undisputed by the parties. Pruitt, 33 FMSHRC at 1738-

39. In this case, Terry disputes all of the allegations that Respondent sets forth in paragraph six 

of its Motion. Additionally, Terry filed a Second Reply subsequent to Respondent’s Supplement 

in which he reiterated his factual disagreement with Respondent regarding the circumstances of 

his termination. The undersigned is foreclosed from making credibility determinations in 

evaluating the Secretary’s application for temporary reinstatement.5

 Even if the Respondent 

could establish an affirmative defense in the underlying discrimination proceeding based on the 

information provided in the Motion and Supplement,6 a determination without hearing at this 

stage of the proceedings that Respondent’s allegations are sufficient to justify temporary 

economic reinstatement over Terry’s objections would necessarily require me to credit the 

Respondent’s version of events over Terry’s version. Therefore, I find that the facts that Judge 

Melick relied upon in Pruitt are not sufficiently analogous to the mere allegations present in this 

case to justify imposing temporary economic reinstatement, absent agreement of the parties. 

III. Order 

For the foregoing reasons, Respondent Prospect Mining & Development Co., LLC is 

ORDERED to immediately reinstate James Dee Terry to the position he held immediately prior 

to the reduction in his job duties on or about September 10, 2018, or to a substantially equivalent 

position at the same rate of pay, with the same benefits, and with the same or equivalent duties 

assigned to him.7

 Should the parties subsequently come to a complete and full agreement on the 

terms of economic reinstatement, the parties may jointly file a motion to modify this Order to 

economically reinstate Terry in lieu of actual, physical reinstatement. 

 4 See, e.g., Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 2544 (Dec. 1990) (“the 

Commission does not sit as a super grievance board to judge the industrial merits, fairness, 

reasonableness, or wisdom of an operator’s employment policies except insofar as those policies 

may conflict with rights granted under section 105(c) of the Mine Act.”) (internal citations 

omitted). 

5 Williamson, 31 FMSHRC at 1089. 

6

 Commission judges have the authority to make credibility determinations and factual 

findings in underlying discrimination proceedings that they lack in temporary reinstatement 

proceedings. 

7

 As the change in job responsibilities is one of the non-frivolous adverse actions 

established by the Secretary’s Application, reinstatement to the position previously held by Terry 

prior to the change in responsibilities is more consistent with the Mine Act’s intent to place the 

miner in as close a position as possible prior to the alleged discrimination while the Secretary 

completes his investigation. See, e.g. Bradley, 34 FMSHRC at 2825. 

41 FMSHRC Page 149
This Order of Temporary Reinstatement is not open-ended. It will end upon final order 

on the underlying discrimination complaint as set forth in Section 105(c)(2) of the Act. 30 

U.S.C. § 815(c)(2). Therefore, the Secretary must promptly determine whether or not he will file 

a complaint with the Commission under Section 105(c)(2) of the Act and so advise Terry, the 

Respondent, and this administrative tribunal. 

 /s/ Thomas P. McCarthy 

Thomas P. McCarthy 

 Administrative Law Judge 

Distribution: 

Christopher Smith, Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 

230, Nashville, TN 37219 

John B. Holmes III, Maynard Cooper & Gale, P.C., 1901 Sixth Avenue North, Regions Harbert 

Plaza Suite 2400, Birmingham, AL 35203 

James Dee Terry, 300 Regal Street, Winfield, AL 35594 

41 FMSHRC Page 150