MAY AND JUNE 2010

COMMISSION ORDERS
05-05-2010
05-06-2010
05-06-2010
05-11-2010
06-03-2010
06-03-2010
06-04-2010
06-10-2010
06-10-2010
06-10-2010
06-10-2010
06-10-2010
06-16-2010
06-23-2010
06-23-2010
06-23-2010
06-23-2010
06-23-2010
06-23-2010
06-23-2010
06-23-2010
06-30-2010
06-30-2010
06-30-2010
06-30-2010
06-30-2010
06-30-2010
06-30-2010

lmerys Clay, Inc.
Swinson Materials, Inc.
Cumberland Coal Resources, LP
Orchard Coal Company, et al.
Cemex, Inc.
Rockhouse Creek Development LLC.
Performance Coal Company
C & P Sand & Gravel, Inc.
Lehigh Cement Company
Rocky Point Rock, Inc.
Miles Sand & Gravel Company
Hanson Aggregates Arizona, Inc.
Pritchard Mining Company, Inc.
Knife River Midwest LLC.
John S. Olynick, Inc.
City Stone, LLC.
Phillips Companies
Aggregates USA LLC.
Asarco, LLC.
Bowie Resources, LLC.
7/11 Materials, Inc.
Ray County Stone Producers, LLC.
Enterprise Mining Company, LLC.
L & S Construction Corporation
DJ Drilling and Blasting, Inc.
General Chemical (Soda Ash) Partners
Elcon Construction, Inc.
Brody Mining, LLC.

2009-717-M
SE
LAKE 2010-355-M
PENN 2008-51-R
PENN 2010-339-E
2010-426-M
SE
WEVA 2010-648
WEVA2010-195
CENT 2010-435-M
PENN 2010-256-M
2010-396-M
SE
WEST 2010-465-M
WEST 2010-573-M
WEVA 2009-1708
CENT 2010-291-M
LAKE 2010-242-M
LAKE 2010-301-M
LAKE 2010-478-M
2010-258-M
SE
WEST 2009-1124-M
WEST 2009-1203
WEST 2010-393-M
CENT 2010-88-M
KENT 2009-1409
LAKE 2010-332-M
SE
2009-807-M
WEST 2009-1201-M
WEST 2009-1204-M
WEVA 2009-1445

Pg.435
Pg.438
Pg.442
Pg.454
Pg.458
Pg.462
Pg.466
Pg. 470
Pg. 473
Pg.476
Pg.480
Pg. 483
Pg.486
Pg.490
Pg. 493
Pg.497
Pg.501
Pg.504
Pg. 508
Pg.512
Pg. 515
Pg.518
Pg.522
Pg.525
Pg.528
Pg. 531
Pg.534
Pg.537

EAJ 2010-01
PENN 2007-151
WEST 2008-1585
KENT 2008-14

Pg.541
Pg.545
Pg.568
Pg.581

CENT 2010-584-D
LAKE 2009-711-R

Pg. 594
Pg.602

WEVA 2010-991-D

Pg.614

WEVA 2010-991-D

Pg. 619

ADMINISTRATIVE LAW JUDGE DECISIONS
05-04-2010
05-13-2010
05-14-2010
05-14-2010
05-18-2010
05-21-2010
06-01-2010
06-03-2010

Abundance Coal, Inc.
Consol Pennsylvania Coal Company
Arch of Wyoming, LLC.
Blue Diamond Coal Company
Sec. Labor o/b/o Christopher Abeyta v.
San Juan Coal Company & its successors
Prairie State Generating Co.
Sec. Labor o/b/o Rickey Joe Strattis
V. ICG Beckley, LLC.
Sec. Labor o/b/o Rickey Joe Strattis
V. ICG Beckley, LLC. (Amended)
i

06-11-2010
06-17-2010
06-17-2010
06-23-2010
06-17-2010
06-18-2010
06-18-2010
06-29-2010
06-30-2010

Sec. Labor o/b/o Rickey Lee Campbell
V. Marfork Coal Company, Inc.
Twentymile Coal Company
Spencer Quarries, Inc.
Spencer Quarries, Inc. (Correcting Order)
Independence Coal Company, Inc.
Black Beauty Coal Company
Coal River Mining, LLC. (On remand)
Shelton Brothers Enterprises (amended DAS)
Manalapan Mining Co., Inc.

WEVA2010-1030-D
WEST 2008-787-R
CENT 2009-334-M
CENT 2009-334-M
WEVA 2009-1067
LAKE 2009-223
WEVA 2006-125-R
KENT 2008-1407
KENT 2008-737

Pg.621
Pg. 628
Pg.644
Pg.652
Pg. 654
Pg.673
Pg.685
Pg.688
Pg.690

LAKE 2010-128-M
YORK2007-74-RM
LAKE 2008-327
WEVA 2009-1445

Pg. 707
Pg. 709
Pg. 714
Pg. 718

SE
2010-295-DM
WEVA 2009-1440
YORK 2009-89-M
WEST 2008-1582-M
WEVA 2007460

Pg. 721
Pg. 726
Pg. 728
Pg. 738
Pg. 742

ADMINISTRATIVE LAW JUDGE ORDERS

05-07-2010
05-26-2010
06-07-2010
06-13-2010
06-15-2010
06/15/2010
06-28-2010
06-30-2010
06-02-2010

Bill Simola emp. by United Taconite
Orica USA, Inc.
Black Beauty Coal Company
Brody Mining, LLC.
Sec. Labor o/b/o Jose Chaparro v.
Comunidad Agricola Bianchi, Inc.
Maple Coal Company
DJB Welding Corporation
Alaska Mechanical Inc.
Performance Coal Company

ii

MAY AND JUNE 2010

Review was granted in the following cases during the months of May and June 2010:
Secretary of Labor, MSHA v. Ames Construction, Inc., WEST 2009-693-M. (Judge Miller, March
23, 2010.)
Secretary of Labor, MSHA v. Black Beauty Coal Company, LAKE 2008-477. (Judge Miller,
March 25, 2010.)
Secretary of Labor, MSHA v. C & W Drilling Inc., SE 2009-794-M. (Judge Lesnick, unpublished
settlement decision, April 5, 2010.)
Prairie State Generating Company, LLC. v. Secretary of Labor, MSHA, LAKE 2009-711-R.
(Judge Miller, May 21, 2010.)
Secretary of Labor, MSHA v. Bill Simola, employed by United Taconite, LLC.,
LAKE 2010-128-M. (Judge Feldman, interlocutory review of April 6, 2010 order.)
Secretary of Labor, MSHA v. Black Beauty Coal Company, LAKE 2008-327. (Judge Miller,
interlocutory review on May 18, 2010 order.)
Secretary of Labor, MSHA v. Performance Coal Company, WEVA 2007-460, et al. (Judge Miller,
June 2, 2010 scheduling order.)

Review was denied in the following case during the months of May and Junel 2010:
Secretary of Labor, MSHA v. Orchard Coal Company, et al., PENN 2010-339-E, etc. Review of a
non-jurisdictional issue.

Eastern Associated Coal LLC. filed a withdrawal of a Petition for Review in., WEVA 2008-1309,
which was granted on May 12, 2010.

iii

COMMISSION DEQSIONS AND ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

May 5, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2009-717-M
A.C. No. 09-00111-181267

v.
IMERYS CLAY, INC.

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On July 17, 2009, the Commission received from Imerys
Clay, Inc. ("Imerys") a letter from the company's safety and health manager seeking to reopen a
penalty assessment that had become a final order of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). fu evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700. l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
32 FMSHRC Page 435

On April 7, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000181267 to Imerys. Imerys states that its
accounts payable department sent a check to MSHA for the penalties that it did not wish to
contest, but that the assessment form indicating the proposed assessments it did wish to, contest
was not included with the payment. Imerys' health and safety manager states that he did not
know about this failure until the company received a delinquency notice from MSHA. In its
letter, Imerys identifies the ten proposed assessments that it seeks to reopen.
The Secretary does not oppose Imerys' request to reopen. She notes that MSHA timely
received payment in the amount of $1,918 from Imerys, but has no record of receiving the
assessment contest form. She urges the operator to take all steps necessary to ensure that future
penalty assessments are properly contested.
Having reviewed Imerys' request and the Secretary's response, in the interests of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R
Part 2700. Consistent with Rule 28, the Secretary shall file a petition for assessment of penalty
within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

·~ .
Robert F. Cohen, Jr., Comrmss1oner

32 FMSHRC Page 436

Distribution:
Grayson J. Upton, CMSP
Safety & Health Mngr., PPN, NA,
Imerys Clays, fuc.,
P.O. Box 471,
Sandersville, GA 31082
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 437

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

May 6, 2010
SECRETARY OF LABOR,
MINE SAFETY AND·HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2010-355-M
A.C. No. 11-03120-200607

v.
SWINSON MATERIALS, JNC.

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On January 19, 2010, the Commission received from
Swinson Materials, Inc. ("Swinson") a letter seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

32 FMSHRC Page 438

On October 15, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Penalty Assessment No. 000200607 to Swinson, proposing civil
penalties for four citations and one order. The operator's counsel states that Swinson did not
receive a copy of the "final order" and was not aware of it until receipt of a fax on December 18,
2009.
The Secretary states that .the proposed penalty assessment was received and signed for by
the operator on October 21, 2009, and provides a Federal Express document to support this
statement. She opposes the request to reopen on the ground that the operator does not explain
why it failed to contest the proposed assessment that it received and makes no showing of any
circumstances that warrant reopening.
Having reviewed Swinson's request to reopen and the Secretary's response, we agree
with the Secretary that Swinson has failed to provide a sufficient explanation for its failure to
timely contest theproposedpenalty assessment. Swinson's conclusory statement that it did not
receive a copy of the final order and was not made aware of the final order until December 18,
2009, does not explain why it failed to contest the proposed assessment that it received on
October 21, 2009, in a timely manner. Thus, the operator has failed to provide the Commission
with an adequate basis to reopen. Accordingly, we deny without prejudice Swinson's request.
See, e.g., BRS Inc., 30 FMSHRC 626, 628 (July 2008); Eastern Associated Coal, LLC, 30
FMSHRC 392, 394 (May2008). 1

1

If Swinson submits another request to reopen the case, it must establish good cause for
not contesting the proposed assessment within 30 days from the date it received the proposed
penalty assessment from MSHA. Under Rule 60(b) of the Federal Rules of Civil Procedure, the
existence of "good cause" may be shown by a number of different factors including mistake,
inadvertence, surprise, or excusable neglect on the part of the party seeking relief, or the
discovery of new evidence, or fraud, misrepresentation, or other misconduct by the adverse party.
Swinson should include a full description of the facts supporting its claim of"good cause,"
including how the mistake or other problem prevented Swinson from responding within the time
limits provided in the Mine Act, as part of its request to reopen the case. Swinson should submit
copies of supporting documents with its request to reopen the case. Finally, Swinson should
clarify which citations and proposed penalties it intends to contest.

32 FMSHR.C Page 439

Any amended or renewed request by Swinson to reopen Assessment No. 000200607 must
be filed within 30 days of the date of this order. Any such request filed after that time will be
denied with prejudice.

'ssioner

Robert F. Cohen, Jr., Commissioner

32 FMSHRC Page 440.

Distribution:
Jim Hursh, Esq.
Law office of Jim Hursh, P.C.
600 South State St., Suite 309
Belvidere, IL 61008
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 441

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

May6,2010

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. PENN 2008-51-R
PENN 2008-52-R
PENN 2008-53-R
PENN 2008-54-R

v.
CUMBERLAND COAL RESOURCES, LP

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners

DECISION
BY: Jordan, Chairman; Young and Cohen, Commissioners

In these contest proceedings arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2006) ("Mine Act"), Judge Michael Zielinski upheld a violation of
30 C.F.R. § 75.363(a) 1 alleged in an order issued to Cumberland Coal Resources, LP
("Cumberland"). 31FMSHRC137, 157-58 (Jan. 2009) (ALJ). Cumberland filed a petition for
discretionary review challenging the Judge's finding of violation, which the Commission
granted. The Secretary of Labor subsequently filed a response acknowledging that the violation
of section 75.363(a) should not be affirmed and requesting that the Commission amend the order

1

30 C.F.R. § 75.363(a) provides in part:
Any hazardous condition found by the mine foreman ... , assistant
mine foreman ... , or other certified persons designated by the
operator for the purpose of conducting examinations ... , shall be
posted with a conspicuous danger sign where anyone entering the
areas would pass. A hazardous condition shall be corrected
immediately or the area shall remain posted until the hazardous
condition is corrected ....
32 FMSHRC Page 442

to allege a violation of30 C.F.R. § 75.360(b). 2 For the reasons that follow, we deny the
Secretary's request, reverse the Judge's finding that Cumberland violated section 75.363(a), and
vacate the order.

I.
Factual and Procedural Background
Cumberland operates the Cumberland Mine, a large underground coal mine in Greene
County, Pennsylvania. Id. at 137. On October 4, 2007, Barry Radolec, an inspector with the
Department of Labor's Mine Safety and Health Administration ("MSHA''), conducted a regular
inspection of the mine. Id. at 138. A few days prior to October 4, a belt move had occurred on
the 8 Butt section of the mine. Tr. 242. Typically during a belt move, the area where the belt
will be installed will be "fling dusted," that is, rock dust will be distributed by a fling duster
placed on a scoop bucket. 31 FMSHRC at 155; Tr. 243. After the belt move, the area will be
bulk dusted. 3 31 FMSHRC at 155; Tr. 241.
When Inspector Radolec arrived at the mine, he reviewed the preshi:ft and onshi:ft report
books for the 8 Butt section of the mine. 31 FMSHRC at 138. He noticed several entries
indicating that areas of the belt entry from crosscuts 25 to 30 and 11to15 needed to be rock
dusted. Id.; Gov't Ex. 5. The inspector traveled to the 8 Butt section. 31 FMSHRC at 138. At
the No. 17.5 crosscut, he observed that the belt had gone out of alignment and that a portion of
the belt was rubbing the belt stand. 4 Id. The belt was immediately taken out of service so that
the alignment could be corrected. Id.
Between crosscuts 25 and 30.5, Inspector Radolec observed accumulations of dry black
float coal dust, coal fines, and loose coal. Id. The loose coal and coal fines were underneath the
belt and between the crosscuts. Id. There was a thin layer of float coal dust on the belt
structures, electric cables, and switches. Id. The float coal dust was deposited on rock dust,
which Radolec considered to be token in amount. Id. Radolec determined that the condition was
highly likely to result in a fire that would cause fatalities because the belt presented a potential
ignition source, and there were electrical cables, boxes,·and switches present. Id. Accordingly,
the inspector issued Citation No. 7025468, alleging a violation of30 C.F.R. § 75.400, for failure

2

30 C.F.R. § 75.360(b) provides in part that "The person conducting the preshi:ft
examination shall examine for hazardous conditions .... "
3

To perform bulk dusting, miners use tanks which blow rock dust through the air. 31
FMSHRC at 141 n.4; Tr. 235.
.
4

Radolec issued Citation No. 7025467, alleging a violation of 30 C.F.R. § 75.l 725(a),
for failure to maintain machinery in a safe condition. Id. at 138 n.l. That citation is not at issue
on review.
32 FMSHRC Page 443

to clean up combustible materials. Id. at 139. The inspector indicated that the violation was
significantand substantial ("S&S")5 and caused by the operator's unwarrantable failure to
comply with the standard.6 Id. at 139. The inspector specified that the violation was to be abated
later that day. Gov't Ex. 4, at 1.
fuspector Radolec also issued Order No. 7025469, alleging an S&S and unwarrantable
violation of section 75.363(a). 31 FMSHRC at 139. The order alleged that Cumberland had
"failed to correct immediately a hazardous condition reported in the pre-shift examination book,"
and identified that condition as that the 8 Butt conveyor belt needed to be rock dusted between
crosscuts 25 and 30. Gov't Ex. 6, at 1.
The operator challenged Citation No. 7025468, which alleged a violation of section
75.400, and Order No. 7025469, which alleged a violation of section 75.363(a), in addition to
other orders not relevant onreview. See Tr; 12-18. The matter proceeded to hearing before
Judge Zielinski.
The Judge vacated the special findings and affirmed the violations of section 75.400 and
75.363(a) alleged in Citation No. 7025468 and Order No. 7025469, respectively. 7 31 FMSHRC
at 140-58. With respect to Citation No. 7025468, the Judge concluded that Cumberland had
violated section 75.400 based on his findings that loose coal and coal fines were present across
nearly the entire width of the belt entry in several locations from the No. 25 to the 30.5 crosscuts,
and that float coal dust existed on some horizontal surfaces. Id. at 142. The Judge also
concluded that the area had not been fling dusted after the belt move, and that bulk rock dusting
had not progressed to the area. Id. He determined that the violation was not S&S, however. Id.
at 143. The Judge reasoned that although the accumulations presented a hazardous condition by
contributing to, or exacerbating, the occurrence of a fire or explosion, the Secretary had failed to
prove a.reasonable.likelihood that the hazard contributed to would result in an injury. Id; He
also concluded that the violation was not unwarrantable based in part on his finding that preshift

5

The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C.
§ 814(d)(l), which distinguishes as more serious any violation that "could significantly and
substantially contribute to the cause and effect of a ... mine safety or health hazard."
6

The unwarrantable failure terminology is taken from section 104(d)(l) of the Act, 30
U.S.C. § 814(d)(l), which establishes more severe sanctions for any violation that is caused by
"an unwarrantable failure of [an] operator to comply with ... mandatory health or safety
standards."
7

Because the Judge vacated the special findings, he modified Order No. 7025469 to a
citation issued under section 104(a) of the Act. 31 FMSHRC at 157-58, 166. We refer to the
enforcement action as an order rather than as a citation only as a matter of convenience to better
distinguish Order No. 7025469 from Citation No. 7025468.

32 FMSHRC Page 444

reports indicating that the area in question needed to be rock dusted did not demonstrate that the
examiners considered the area to be hazardous. Id. at 156-57.
With respect to Order No. 7025469, the Judge determined that the notations in the
preshift reports that areas of the belt entry needed to be rock dusted did not report a hazardous
condition that required immediate correction. Id at 157. Nonetheless, the Judge held that
Cumberland violated section 75.363(a) because the accumulations underlying Citation No.
7025468 were hazardous, and Cumberland should have identified and reported the accumulations
in the preshift reports. Id. at 157-58. The Judge also concluded that Cumberland's violation of
section 75.363(a) was not S&S and was not caused by an unwarrantable failure to comply for the
same reasons that he found that the accumulations violation was not S&S or unwarrantable. Id.
at 158.
Cumberland filed a petition for discretionary review with the Commission, challenging
the Judge's determination that it had violated section 75.363(a), and filed a motion requesting
oral argument. The Commission granted Cumberland's petition and motion and heard oral
argument.
In its petition, Cumberland argues that the Judge erred in finding a violation of section
75.363(a). It asserts that the basis for the Judge's finding of violation, that is, that Cumberland
had failed to identify and report accumulations, was flawed since section 75.363(a) does not
require the identification and reporting of hazardous conditions. C. Br. at 9-11. The operator
also asserts that it was deprived of due process because the Judge determined that there was a
violation on a basis other than what the Secretary alleged, and the parties did not address the
issue of whether the accumulations were a condition that had to be reported as hazardous. Id. at
14-15, 19. Cumberland states that it would have offered other evidence concerning how certified
officials interpret "hazard" if the issue had been presented during the hearing. Id. at 19-20. It
maintains that, in any event, the accumulations were not hazardous. Id. at 20-23.
The Secretary concedes on appeal that the violation of section 75.363(a) should not be
affirmed, but maintains that the order should now be amended to allege a violation of section
75.360(b). S. Br. at 2, 9. She states that under Fed. R. Civ. P. 15(b), absent prejudice to the nonmoving party, pleadings may be conformed to the evidence if the nonpleaded issue was litigated
by express or implied consent of the parties. Id. at 17-18. The Secretary contends that the
factual issues underlying a section 75.360(b) violation were actually litigated in the S&S and
unwarrantable failure determinations in connection with the accumulations violation. Id. at 11,
18. The Secretary dismisses Cumberland's argument that it would have offered different
evidence and arguments if it had known that the adequacy of the preshift examinations was at
issue, maintaining that a party asserting prejudice must do so with specificity. Id. at 18.
Cumberland replies that the Commission should deny the Secretary's request to amend
the order to allege a violation of section 75.360(b). C. Reply Br. at 7. It submits that Rule 15(b)
of the Federal Rules should not be applied to citations and orders because they differ from civil

32 FMSHRC Page 445

pleadings in that they must describe conditions with particularity and they require abatement. Id.
at 3-4. It also asserts that the parties have not litigated the issue of whether Cumberland violated
section 75.360(b), and that granting the Secretary's request would result in significant prejudice
to Cumberland. Id. at 7. Cumberland explains that if it had. defended allegations that it violated
section 75.360(b), it would have presented evidence regarding whether a reasonable mine
examiner would have considered the accumulations to be hazardous such that they required
reporting in a preshift book. Id. at 7-21. Accordingly, Cumberland requests that the Commission
reverse the Judge's finding of violation with respect to Order No. 7024569. Id. at 21.

II.
Disposition
The central question on review is whether we should grant the Secretary's request to
amend Order No. 7025469 to allege a violation of section 75.360(b). We conclude that, even if
the evidence adduced at trial supports a violation of section 75.360(b) as the Secretary asserts,
that was not the violation charged or defended against, and there is no basis to justify amendment
at this stage in the proceedings.
The Secretary is seeking to amend the order after the Judge has issued his decision to
allege that Cumberland had not recorded accumulations in the preshift examination book in
violation of section 75.360(b). However, section 75 .360(b) sets forth requirements that are
different than those set forth in section 75.363(a). While section 75.363(a) requires that a
hazardous condition be immediately corrected or posted, section 75.360(b) essentially requires a
preshift examiner to find and record a hazardous condition in a preshift examination book. See
RAG Cumberland Res., LP, 26 FMSHRC 639, 651, 653 (Aug. 2004); Enlow Fork Mining Co.,
19 FMSHRC 5, 14 (Jan. 1997). If Order No. 7025469 were amended to allege a violation of
section 75.360(b), Cumberland would necessarily rely upon different evidence to defend the
violation. In addition, the operator would be required to take different measures to abate such an
order. Thus, the Secretary is seeking to amend the order to allege a violation of a different
standard based on different underlying facts which would require different abatement action after
Cumberland has defended a violation of section 75.363(a) at hearing.
The Secretary relies_on Federal Rule of Civil Procedure 15(b)(2) to justify an amendment
to the citation. Fed. R. Civ•. P. 15(b)(2). 8 The Commission's procedural rules provide that "[t]he

8

Rule l 5(b)(2) provides:
When an issue not raised by the pleadings is tried by the parties'
express or implied consent, it must be treated in all respects as if
raised in the pleadings. A party may move - at any time, even after
judgment - to amend the pleadings to conform them to the
32 FMSHRC Page 446

Commission and its Judges shall be guided so far as practicable by the Federal Rules of Civil
Procedure and the Federal Rules of Appellate Procedure." 29 C.F.R. § 2700.l The Commission
has previously recognized that although the Commission's procedural rules do not address
amendment of pleadings, the Commission may properly look for guidance to Fed. R. Civ. P. 15
when the Secretary requests leave to amend a citation or order. Cyprus Empire Corp., 12
FMSHRC 911, 916 (May 1990). Accordingly, in our jurisprudence we have considered Rule
15(b) in several contexts. Compare Consolidation Coal Co., 20 FMSHRC 227, 235-37 (Mar.
1998) (concluding that the Secretary could not amend a citation post-hearing to include a new
theory of violation regarding the cited standard because the trial record did not reflect that the
operator understood, or should have understood, that the new theory was being litigated) with
Faith Coal Co., 19 FMSHRC 1357, 1362 (Aug. 1997) (permitting a citation to be amended after
hearing to correct a numbering error by the Secretary because the operator fully understood the
gravamen of the correct standard, knowingly litigated the citation on that basis, and suffered no
prejudice). In this case, we conclude that to the extent that Rule 15(b) permits post-hearing
amendment in some cases, it does not apply to the circumstances here.9
Under Rule l 5(b), amendments are permitted so that pleadings mirror the actual issues
that were tried. 3 James Wm. Moore et al., Moore's Federal Practice if 15.18[1], at 15-73 (3d ed.
2002) ("Moore's"). In permitting a complaint to be amended post-hearing to include an issue
that had not been raised, courts require a showing that the issue was tried with the express or
implied consent of the parties. Id. Implied consent may be found if the opposing party
recognized that a new matter was at issue during the trial and that evidence was introduced to
prove that issue. Id. at 15-75. Courts may not find implied consent ''when evidence supporting
an issue allegedly tried by implied consent is also relevant to other issues actually pleaded and

evidence and to raise an unpleaded issue. But failure to amend
does not affect the result of the trial of that issue.
9

We respectfully disagree with the suggestion of our colleague, Commissioner Duffy,
that after abatement and termination, a citation or order may only be modified "in cases involving
purely technical errors" such as Faith Coal Co., which involved a numbering error. Slip op. at
11. Our precedent has clearly established that the fact of an operator's abatement of a violation
does not prevent it from being modified pursuant to Fed. R. Civ. P. 15 for more than purely
technical purposes, in appropriate circumstances. See Cyprus Empire, 12 FMSHRC at 916
(affirming judge's action permitting the Secretary to modify a citation and holding that "[a]mong
the permissible purposes of such amendments are changes in the nature of the plaintiffs claims
or legal theories"); Wyoming Fuel Co., 14 FMSHRC 1282, 1288-90 (Aug. 1992) (reversing
judge's conclusion that a citation may not be modified to allege a violation under a different
standard after abatement and termination of original citation, holding that modification is
permissible under Fed. R. Civ. P. 15(a), absent legal prejudice to the operator, because "a citation
or order, even though terminated, remains in effect for purposes of subsequent contest and civil
penalty proceedings"), on remand 15 FMSHRC 1107 (June 1993) (AU) (granting modification
since operator failed to show legally recognizable prejudice).
32 FMSHRC Page447

tried." Id.; Acequia, Inc. v. Clinton, 34 F.3d 800, 814 (9th Cir.1994). fu determining implied
consent, courts also consider whether the opposing party had a fair opportunity to defend against
the issue and would be prejudiced in presenting its case. Moore's~ 15.18[1] at 15-76.
The record cannot reasonably be read to support the conclusion that Cumberland
implicitly consented to litigating a violation of section 75.360(b). 10 Similar to the operator in
Consolidation Coal, the trial record does not reflect that Cumberland understood that the
Secretary was litigating a violation of section 7 5.360(b). 11
Rather, it is clear from the record that Cumberland defended Order No. 7025469 on the
basis that it did not violate section 75.363(a). Specifically, Cumberland presented evidence that
the failure to rock-dust was recorded in the preshift examination book as a condition, rather than
as a hazard, 12 and that Cumberland employees were addressing the condition described in the
preshift examination book in a systematic, regular .fashion in accordance with the priority they
accorded such a non-hazardous condition. Tr. 21-22, 228-30, 233-34, 241, 248, 251-52, 254-55,
434; C. Ex. 3; Gov't Ex. 5 at 49, 58, 78.
Cumberland's counsel did not elicit testimony regarding whether the preshift
examinations had been adequate. Indeed, Cumberland's counsel clarified that the operator was
not defending a preshift examination violation by asking Inspector Radolec, "Did you cite
Cumberland for putting inadequate entries in the book?" Tr. 164. Inspector Radolec testified,
"No, I didn't." Tr. 164.
The Secretary seeks to support her unpleaded claim that Cumberland violated section
75.360(b) by relying on evidence that was proffered to prove a pleaded issue, that is, the S&S
and unwarrantable violation of section 75.400 alleged in Citation No. 7025468. The Secretary
specifies that the violation of section 75.360(b) rests on three factual findings that the Judge
made with respect to the special findings associated with the accumulations violation. S. Br. at
11 (stating that the Judge made "three key factual findings ... during the course of his S&S and
unwarrantable failure analyses in connection with the accumulations violation" that are supported

10

It is undisputed that Cillnberland did not expressly consent to litigating a violation of
section 75.360(b ).
11

In her post-hearing brief, the Secretary argued that the operator had violated section
75.363(a) and made no mention of section 75.360(b). S. Post-lli'g Br. at 21-23. fu fact, the
Secretary noted that the notations, "needs dust[ing]," set forth in the preshift examination books
"arguably implicates the adequate preshift provisions of30 C.F.R. § 75.360(a)," not section
75.360(b). Id. at 22 n.3.
12

The preshift books used by Cumberland contain two separate sections. One is entitled
"Violations Observed and Reported/Violation or Condition," and one is for "Dangers and
Hazardous Conditions Observed and Reported." Tr. 100; Gov't Ex. 5.
32 FMSHRC Page 448

by substantial evidence and establish a violation of section 75.360(b)); see also S. Br. at 3. As
noted above, when evidence is relevant to a pleaded issue, it may not be used to support implied
consent to litigate an unpleaded issue. See Pinkley, Inc. v. City ofFrederick, 191 F.3d 394, 401
(4th Cir. 1999), cert. denied, 528 U.S. 1155 (2000) ("'A court will not imply consent to try a
claim merely because evidence relevant to a properly pleaded issue incidentally tends to establish
an unpleaded claim."') (citations omitted).
Basically, Cumberland has had no fair opportunity to defend against an allegation that it
violated section 75.360(b). The Secretary had ample opportunity to move to amend the order
prior to the hearing, during the hearing, or in her post-hearing brief. However, the Secretary did
not move to amend the order until the Secretary filed her response brief on review. S. Br. at 2.
The first time that the Secretary specifically referred to evidence to support her claim that
Cumberland impliedly consented to litigating a violation of section 75.360(b) was during oral
argument before the Commission, after all briefs with the Commission had been filed. Oral Arg.
Tr. at 27-37, 42-50. Amending the order at this stage of the proceedings would be contrary to
concepts of fundamental fairness that require that every litigant receive adequate notice of
charges made against it.
Moreover, Cumberland has adequately demonstrated that it would be prejudiced if the
order were amended to allege a violation of section 75.360(b). Cumberland argues that if the
Secretary had alleged a violation of section 75.360(b), it would have presented different evidence
in its defense. C. Reply Br. at 19. It contends that it would have presented evidence regarding
whether a reasonable mine examiner would have considered the accumulations to be hazardous
such that they required reporting in the preshift book. Id. No preshift examiners gave testimony
at the hearing. In fact, Inspector Radolec acknowledged that he had not questioned a single
preshift examiner about what was intended by the notation "needs dusted." Tr. 164.
As noted, the Secretary agreed with Cumberland that the Judge had, in fact, erred in
finding a violation of section 75.363(a). See S. Br. at 9 ("The Secretary acknowledges that the
ALJ's finding of a violation under section 75.363(a) should not be affirmed."). We suggest that
after making this determination, the Secretary should not have opposed Cumberland's petition
challenging the violation. 13 Accordingly, given the Secretary's concession and our conclusion
that the order should not be amended to allege a violation of section 75.360(b), we reverse the
Judge's determination that Cumberiand violated section 75.363(a) and vacate Order No.
7025469.

13

We are reminded that, "A government lawyer 'is the representative not of an ordinary
party to a controversy, ... but of a sovereignty whose obligation ... is not that it shall win a case,
but that justice shall be done."' Freeport-McMoran Oil & Gas Co. v. FERC, 962 F.2d 45, 47
(D.C. Cir. 1992) (citing Berger v. United States, 295 U.S. 78 (1935)).
32 FMSHRC Page 449

m.
Conclusion
For the foregoing reasons, we deny the Secretary's request to amend Order No. 7025469
to allege a violation of section 75.360(b), reverse the Judge's determination that Cumberland
violated section 75.363(a), and vacate Order No. 7025469.

Robert F. Cohen, Jr., Commissioner

32 FMSHRC Page 450

Commissioner Duffy, concurring:
I, too; would deny the Secretary's request to amend Order No. 7025469, reverse the
Judge's finding of a violation of section 75.363(a), and vacate the order, but I would do so on
more fundamental grounds. The explicit language of section 104(a) of the Mine Act precludes
amendment of the order in these circumstances, so recourse to Federal Rule of Civil Procedure
l 5{b) would be foreclosed in this instance.
As Cumberland asserts, citations and orders issued pursuant to section 104 of the Mine
Act differ in form and function from pleadings filed in civil cases. Section 104(a) requires that a
citation "describe with particularity the nature of the violation, including a reference to the ...
standard ... alleged to have been violated." 30 U.S.C. § 814(a). The purpose of the particularity
requirement in section 104(a) is not only to permit the cited operator to "adequately prepare for a
hearing on the matter," but also to allow it ''to discern what conditions require abatement."
Empire Iron Mining Partnership, 29 FMSHRC 999, 1003 (Dec. 2007) (citations omitted).
fu contrast, in accordance with the notice pleading standards applicable to civil cases,
complaints need only allege a claim for relief in "a short and plain statement." See Fed. R. Civ.
P. 8(a). Thus, while a citation or order requires an operator to abate the alleged violative
condition prior to resolution of the enforcement action, a federal civil complaint does not.

Termination of a citation or order signals that the operator has abated the violative
condition, and that the operator is not subject to a section 104(b) withdrawal order for failure to
abate that citation. Wyoming Fuel Co., 14 FMSHRC 1282, 1288 (Aug. 1992). Consequently,
notwithstanding that the Commission has held that the Secretary may modify a terminated
citation or order in some circumstances, the Secretary may not modify a terminated citation or
order to direct further abatement. Id. at 1289.
Order No. 7025469 alleges a violation of section 75.363(a), and provides in part that the
"operator failed to correct immediately a hazardous condition reported in the preshift
examination book," and that the hazardous condition reported was that the area from crosscut
Nos. 25 to 30 needed to be rock dusted. Gov't Ex. 6. fu order to abate the order, Cumberland's
mine foreman received instruction about immediately correcting or posting off the allegedly
hazardous condition. Id. The order was then terminated on October 4, 2007. Id. Cumberland
defended against the order by presenting evidence to show that the condition reported in the
preshift book (the need for rock-dusting) was not hazardous and did not require immediate
corrective action or posting under section 75.363(a). C. Reply Br. at 20. 1

1

As my colleagues correctly conclude, the record cannot support the Secretary's
assertion that Cumberland impliedly consented to litigating a violation of section 75 .360(b). See
Consolidation Coal Co., 20 FMSHRC 227, 235-37 (Mar. 1998) (concluding that the Secretary
could not amend a citation post-hearing to include a new theory of violation regarding the cited
32 FMSHRC Page 451

Given the Commission's decision in Empire Iron, supra, I am not convinced that the
Secretary or the Commission has much latitude to amend a citation or order once abatement has
been completed and the citation or order has been terminated, much less in the instant case,
where the alleged violation has also already been defended at hearing. The only exception would
be in cases involving purely technical errors. See, e.g., Faith Coal Co., 19 FMSHRC 1357, 1362
(Aug. 1997) (permitting a citation to be amended post-hearing to correct a numbering error by
the Secretary because the operator fully understood the gravamen of the correct standard,
knowingly litigated the citation on that basis, and suffered no prejudice). It may well be that the
requirement of specificity in section 104(a), including citing ''with particularity'' the standard
alleged to have been violate.d, may trump any further leeway to be afforded the Secretary under
the aegis of Rule lS(b). 2
Consequently, in this case the Mine Act provision certainly forecloses the relief the
Secretary seeks under Rule lS(b), and I join with my colleagues in expressing some
consternation with her decision to oppose the petition for review and attempt to have the order
amended so late in the proceeding.

standard because the trial record did not reflect that the operator understood, or should have
understood, that the new theory was being litigated).
2

While my colleagues cite cases in which the Commission has permitted more than a
technical amendment to a citation or order (see slip op. at 6 n.9), in doing so the Commission
was not directly confronted with an operator's claim that amendment meant it had been required
to unnecessarily abate an alleged violation. That claim has been made here (see C. Reply Br. at
20), and, given the importance of abatement under the Mine Act, goes to the heart of the concept
of"prejudice" that courts examine when deciding to permit amendment under Rule 15(b).
32 FMSHRC Page 452

Distribution:

R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222
Edward Waldman, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor West
Arlington, VA 22209-2247
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd.,. Room 2220
Arlington, VA 22209-2296
Myra James,Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA ~2209-3939
Michael Zielinski
Administrative Law Judge
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 453

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

May 11, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2010-339-E
Docket No. PENN 2010-340-E
Docket No. PENN 2010-342-E
Docket No. PENN 2010-343-E

v.
ORCHARD COAL COMPANY,
S & M COAL COMPANY,
ALFRED BROWN COAL COMPANY,
and B & B COAL COMPANY

,•

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER DENYING PETITION FOR DISCRETIONARY REVIEW
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30U.S.C.
§ 801 et seq. (2006) ("Mine Act"). The petition for discretionary review filed in this, matter by
Orchard Coal Company, S&M Coal Company, Alfred Brown Coal Company, and B&B Coal
Company (hereinafter "Anthracite Operators"), 1 states that the Mine Safety and Health
Administration is enforcing Mine Act requirements in a way that has denied the Anthracite
Operators the opportunity to seek modification of the requirements under section 101 (c) of the
Act, 30 U.S.C. § 81 l(c). The Anthracite Operators thus include within their petition for review a
petition for relief under section lOl(c).

1

The petition also was filed on behalf ofRS&W Coal Company, Inc., and purports to
seek review in Docket No. PENN 2010-103-E of RS&W Coal Co., 31FMSHRC1440 (Dec.
2009) (ALJ). Under section 113(d)(2) of the Mine Act, review of that decision could only be
ordered by the Commission, pursuant to petition by RS&W or sua sponte, within 30 days of the
decision's issuance. See 30 U.S.C. § 823(d)(2). Because RS&W did not seek review, and the
Commission did not order review sua sponte, the decision became a final decision of the
Commission 40 days later. See 30 U.S.C. § 823(d)(l ). Accordingly, this order only addresses
the timely petition for review filed by the Anthracite Operators in the remaining cases.
32 FMSHRC Page 454

The Commission is without jurisdiction to entertain a petition for relief under section
lOl(c). The statute clearly states that such petitions are to be directed to the Secretary of Labor,
and the modification process is the sole province of the Secretary or her designee. 2
Consequently, the relief the Anthracite Operators seek under section lOl(c) can only be granted
by the Secretary.

2

Section 101 ( c) provides:
Upon petition by the operator or the representative of
miners, the Secretary may modify the application of any mandatory
safety standard to a coal or other mine if the Secretary determines
that an alternative method of achieving the result of such standard
exists which will at all times guarantee no less than the same
measure of protection afforded the miners of such mine by such
standard, or that the application of such standard to such mine will
result in a diminution of safety to the miners in such mine. Upon
receipt of such petition the Secretary shall publish notice thereof
and give notice to the operator or the representative of miners in
the affected mine, as appropriate, and shall cause such
investigation to be made as he deems appropriate. Such
investigation shall provide an opportunity for a public hearing at
the request of such operator or representative or other interested
party, to enable the operator or the representative of miners in such
mine, or other interested party to present information relating to the
modification of such standard. Before granting any exception to a
mandatory safety standard, the findings of the Secretary or his
authorized representative shall be made public and shall be
available to the representative of the miners at the affected mine.
The Secretary shall issue a decision incorporating his findings of
fact therein, and send a copy thereof to the operator or the
representative of the miners, as appropriate. Any such hearing
shall be ofrecord and shall be subject to section 554 of title 5 of
the United States Code.

30 U.S.C. § 81 l(c).
32 FMSHRC Page 455

No two Commissioners having voted to grant the petition for review on the issues over
which the Commission does have jurisdiction, it is denied.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 456

Distribution
Bradley S. Tupi. Esq.
Kenneth G. Scholtz. Esq.
Tucker Arensburg, PC
1500 One PPG Place
Pittsburgh, PA 15222
Stephen D. Turow, Esq.
Lynny Bowman Dunbar, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Administrative Law Judge Alan Paez
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W.• Suite 9500
Washington, D.C. 20001-2021
Administrative Law Judge Michael Zielinski
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 457

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500

WASHINGTON, DC 20001

June 3, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. SE 2010-426-M
A.C. No. 40-00840-201713

v.

Docket No. SE 2010-427-M
A.C. No. 40-00840-202198

CEMEX, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2006) ("Mine Act"). On February 18, 2010, the Commission received from
Cemex, Inc. ("Cemex") motions made by counsel seeking to reopen two penalty assessments that
had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815{a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a.final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers SE 2010-426-M and SE 2010-427-M, both captioned Cemex, Inc.,
and both involving similar procedural issues. 29 C.F .R. § 2700.12.
32 FMSHRC Page 458

See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530(Sept. 1995).
The record indicates that the two assessments were issued by MSHA within a week of
each other, and received at the Cemex plant in Knoxville, Tennessee, after that plant's health and
safety manager had left Cemex and before a successor had been hired. Consequently, the health
and safety manager of another Cemex plant, after reviewing both assessments, tried to instruct
Cemex staff in Knoxville that certain of the penalties on one of the assessments should be paid,
while other penalties on both assessments should be contested. Cemex staff paid the penalties as
instructed, but neglected to contest the remaining penalties on the two assessments. This error
was discovered by the new Knoxville health and safety manager once delinquency notices from
MSHA were received regarding the assessments, and the motions to reopen were filed soon
thereafter.
The Secretary states that she does not oppose the reopening of the proposed penalty
assessments so that Cemex can contest the unpaid penalties.

32 FMSHRC Page 459

Having reviewed Cemex' s requests and the· Secretary's responses, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

~Nakamura,

32 FMSHRC Page 460

Commissioner

Distribution:
Denise E. Giraudo, Esq.
Ogletree, Deakins, Nash,
Smoak & Stewart, P .C.
2400 N Street NW, 5th Floor
Washington, DC 20037
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra J runes, Chief
Office of Civil Penalty Compliance, MSiIA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 461

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

June 3, 2010
Docket No. WEVA2010-648
A.C. No. 46-08636-206152

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2010-649
A.C. No. 46-08778-206154

v.
Docket No. WEVA 2010-650
A.C. No. 46-09018-206158

ROCKHOUSE CREEK
DEVELOPMENT, LLC

Docket No. WEVA 2010-651
A.C. No. 46-09279-206161

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On February 22, 2010, the Commission received from
Rockhouse Creek Development, LLC ("Rockhouse") four motions made by counsel to reopen
penalty assessments that had become final orders of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEVA 2010-648, WEVA 2010-649, WEVA 2010-650, and WEVA
2010-651, all captioned Rockhouse Creek Development, LLC, and all involving similar
procedural issues. 29 C.F.R. § 2700.12.
32 FMSHRC Page 462

We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under se_ction 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
According to the record, this matter is before the Commission only because the four
contest forms were mailed by Rockhouse on January 22, 2010, to the Department of Labor's
Mine Safety and Health Administration (''MSHA"), when the 30th day was January 21, 2010.
Rockhouse's counsel states that he only received the assessments from his client on January 20,
2010, and was out of the office until two days later. 2
The Secretary of Labor does not oppose reopening.

2

In a footnote in its motion, Rockhouse states that because MSHA mailed the
assessment, Commission Procedural Rule 8(b), 29 C.F.R. § 2700.S(b), should apply and the
operator should have been accorded an additional five days in which to file the notices of contest
Rockhouse is mistaken regarding the applicability of Rule 8(b) to penalty assessments. See The
Banner Co., 31FMSHRC1046, 1047 n.1(Sept.2009).
32 FMSHRC Page 463

Having reviewed Rockhouse's requests and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary ~hall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F;R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

~

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 464

Distribution:
Matthew H. Nelson, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501 .
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 465

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

June 4, 2010

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2010-195
A.C. No. 46-08436-188167

v.
PERFORMANCE COAL COMP ANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2006) ("Mine Act"). On November 6, 2009, the Commission received from
Performance Coal Company ("Performance") a motion to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l{b) {"the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 466

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17FMSHRG1529, 1530 (Sept. 1995).
On June 16, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000188167 to Performance, proposing penalties for
62 violations totaling $95,627. According to its motion, after Performance received the
assessment, its safety director stamped the date on which he personally received the proposed
assessment on the form and forwarded it to Performance's corporate counsel, who mailed the
form to MSHA's Civil Penalty Compliance Office within 30 days of the stamp date.
Performance was notified of the delinquency when it received a notice from MSHA on or about
September 17, 2009, which caused Performance to file its motion to reopen.
The Secretary of Labor, who does not oppose Performance's request, states that MSHA
has no record of receiving the notice of contest. She notes that the 30-day period for filing a
contest begins to run from the date of the operator's actual receipt of the proposed assessment,
not the date on which the operator stamps the form. She also notes that the operator paid the
penalties for this case in full by check dated November 6, 2009. The operator did not respond to
the Secretary's statement that the penalties in this case have been paid.

32 FMSHRC Page 467

Having reviewed Performance's motion and the Secretary's response, we find the request
to reopen to be moot. The operator has paid the penalties in full. Accordingly, this case is
dismissed. See Riverton Investment Corp., 31 FMSHRC 1067 (Oct. 2009).

Robert F. Cohen, Jr., Commissioner

~<==·

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 468

Distribution:
Carol Ann Marunich, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 469

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

June 10, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2010-435-M
A.C. No. 41-03347-196838

v.
C & P SAND & GRAVEL, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On January 20, 2010, the Commission received from
C & P Sand & Gravel, Inc. ("C&P") a letter by counsel to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a). On February 12, 2010, the Commission received a response from the Secretary of
Labor stating that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the pr9posed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 470

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

~

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 471

Distribution:
Pedro P. Garcia, Esq.
C & P Sand & Gravel, Inc.
5350 S. Staples, Suite 308
Corpus Christi, TX 78411
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 472

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
W.ASHINGTON, DC 20001

June 10, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2010-256-M
A.C. No. 36-00185-203701

v.
LEHIGH CEMENT COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On January 15, 2010, the Commission received from Lehigh
Cement Company ("Lehigh") a motion seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify The Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700. l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

32 FMSHRCPage 473

Counsel for the operator states that Lehigh intended to contest the penalties for Citation
Nos. 6538295, 6538296, 6538299, 6538300 set forth on Proposed Assessment No. 000203701,
but that counsel was unaware that Lehigh had included i:he proposed assessment among other
materials forwarded to counsel because the assessment was mis-filed by a temporary clerical
assistant. Counsel inadvertently failed to timely contest the penalties on the operator's behalf,
and the proposed assessment became a final Commission order. When the operator's counsel
realized the mistake by reviewing information on the website of the Department of Labor's Mine
Safety and Health Admillistration ("MSHA"), Lehigh promptly sought re-opening.
Although the Secretary does not oppose the reopening of the proposed penalty, she
strongly urges counsel to take steps to ensure that all penalty contests are timely and properly
filed.
Having reviewed Lehigh's request and the Secretary's response, in the interests ofjustice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

~k

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 474

Distribution:
Michael T. Heenan, Esq.
Ogletree, Deakins, Nash
Smoak & Stewart, P.C.
2400 N Street NW, 5th Floor
Washington, DC 20037
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 475

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

June 10, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. SE 2010-396-M
A.C. No. 40-03223-196479

ROCKY POINT ROCK, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On January 26, 2010, the Commission received from Rocky
Point Rock, Inc. ("Rocky Point") a request to reopen a penalt)r assessment that had become a
final order of the Commission pursuant to section lOS(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

32 FMSHRC Page 476 ,

The Department of Labor's Mine Safety and Health Administration (''MSHA") issued
Proposed Assessment No. 000196479 to Rocky Point on September 9, 2009, for various
citations. Rocky Points states that although MSHA's records reflect that it received the proposed
assessment on September 14, 2009, the operator did not, in fact, receive Proposed Assessment
No. 000196479 until October 13, when it was included in an envelope with Assessment No.
000199808. Rocky Point states that it returned both assessment forms to MSHA on October 19,
2009. The operator states that it subsequently received a delinquency notice from MSHA as to
Proposed Assessment No. 000196479, informing it that the proposed assessment had become a
final Commission order.
The Secretary does not oppose reopening the proposed penalty assessment. However, she
acknowledges that MSHA's records reflect that the operator received Proposed Assessment
No. 000196479 on September 14, 2009. 1

1

It is not entirely clear from the record which proposed penalties Rocky Point wishes to
contest. The citations listed on the cover of the operator's request to reopen do not correspond
with all of the citations checked for contest on the proposed assessment form. In addition, the
operator contends that it wishes to challenge penalties in the amount of $3,088, but the penalties
checked for contest total a sum of$4,003.

32 FMSHRC Page 477

Having reviewed Rocky Point's request and the Secretary's response, in the interests of
justice, we remand this matter to the Chief Administrative Law Judge for a determination of
whether good cause exists for Rocky Point's failure to timely contest the penalties and whether
relief from the final order should be granted. If it is-determined that relief from the final order is
appropriate, this case shall proceed pursuant to th,e Mine Act and the Commission's Procedural
Rules, 29 C.F.R. § 2700.

Robert F. Cohen, Jr., Commissioner

~l-

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 478

Distribution:
Nichelle Young, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlin~on, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 479

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

June 10, 2010
SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2010-465-M
A.C. No. 45-03281-196170

v.
MILES SAND & GRAVEL COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On December 29, 2009, the Commission received from
Miles Sand & Gravel Company ("Miles") a letter seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section lOS(a) of the Mine Act, 30 U.S.C.
§ 815(a). On January 20, 2010, the Commission received a response from the Secretary of Labor
stating that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 480

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circwnstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 481

Distribution:
Kevin Davis
Safety Coordinator
Miles Sand & Gravel·Co.
1220 M St. S. E.
Auburn, WA 98001
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 482

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE; NW
SUITE 9500
WASHINGTON, DC 20001

June 10, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2010-573-M
A.C. No. 02-01222-202231

V.

HANSON AGGREGATES ARIZONA, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On January 22, 2010, the Commission received from
Hanson Aggregates Arizona, Inc. ("Hanson") a letter seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a). On February 18, 2010, the Commission received a response from the Secretary
of Labor stating that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 483

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

~L

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 484

Distribution
Stephanie Colleran, ESH Manager
Hanson Aggregates Arizona, Inc.
4127 E. Van Buren St., Suite 205
Phoenix, AZ 85008
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 485

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

June 16, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)
Docket No. WEVA 2009-1708
A.C. No. 46-08596-168603

v.
PRITCHARD MINING COMPANY, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On July 23, 2009, the Commission received from Pritchard
Mining Company, fuc. ("Pritchard Mining") a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). fu evaluating requests to
reopen final section lOS(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
32 FMSHRC Page 486

On November 12, 2008, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Proposed Assessment No. 000168603 to Pritchard Mining.
MSHA asserts that the proposed assessment was delivered by U.S. Postal Service on November
24, 2008. On February 9, 2009, MSHA sent a delinquency notice to Pritchard Mining. fu its
motion, Pritchard Mining states that it timely contested the underlying citations that are the
subject of the proposed assessment it now seeks to reopen. Pritchard Mining explains that due to
an unspecified "inadvertent error," it did not receive the proposed assessment.
The Secretary opposes the request to reopen and states that the operator has failed to
explain why it did not contest the proposed assessment in a timely manner. She also maintains
that the operator failed to explain the long delay in filing its request to reopen after it had been
notified of the delinquency.
Having reviewed Pritchard Mining's request to reopen and the Secretary's response, we
agree with the Secretary that Pritchard Mining has failed to provide an explanation for its failure
to timely contest the proposed penalty assessment. Pritchard Mining has submitted no
justifications for its failure to contest the proposed penalty within 30 days of receiving it and
therefore has not provided the Commission with an adequate basis to reopen. Accordingly, we
deny without prejudice Pritchard Mining's request. See, e.g., BRS Inc., 30 FMSHRC 626, 628
(July 2008); Eastern Assoc. Coal, LLC, 30 FMSHRC 392, 394 (May 2008). 1 Any amended or

1

The words ''without prejudice" mean Pritchard Mining may submit another request to
reopen the case so that it can contest the citation and penalty assessment. If Pritchard Mining
submits another request to reopen the case, it must establish good cause for not contesting the
proposed assessment within 30 days from the date it received the assessment from MSHA.
Under Rule 60(&) of the Federal Rules of Civil Procedure, the existence of "good cause" may be
shown by a number of different factors including mistake, inadvertence, surprise, or excusable
neglect on the part of the party seeking relief, or the discovery of new evidence, or fraud,
misrepresentation, or other misconduct by the adverse party. Pritchard Mining should include a
full description of the facts supporting its claim of"good cause," including how the mistake or
other problem prevented Pritchard _Mining from responding within the time limits provided in the
Mine Act, as part of its request to reopen. Pritchard Mining should also include copies of all
documents supporting its request to reopen.

In any such request Pritchard Mining must also address why it did not file its request to
reopen until more than five months after the MSHA notice should have alerted it to its
delinquency. In the context of penalty assessments, in considering whether an operator has
unreasonably delayed in filing a motion to reopen, we find relevant the amount of time that has
passed between an operator's receipt of a delinquency notice or other notification from MSHA
and the operator's filing ofits motion to reopen. See, e.g., Left Fork Mining Co., 31 FMSHRC 8,
11(Jan.2009). Since the time Pritchard Mining filed its request, the Commission has held that
any request to reopen filed more than 30 days after the receipt of such a notice is grounds for
32 FMSHRC Page 487

renewed request by Pritchard Mining to reopen Assessment No. 000168603 must be filed within
30 days ofthe date of this order. Any such request filed after that time will be denied with
prejudice.

Robert F. Cohen, Jr., Commissioner

~7

Patrick K. Nakamura, Commissioner

denial of that request. Highland Mining Co., 31 FMSHRC 1313, 1316-17 (Nov. 2009).
fu the contest proceedings related to the proposed assessment Pritchard Mining seeks to
reopen, Docket Nos. WEVA 2009-49-R thru WEVA 2009-65-R, on January 25, 2010, the Chief
Administrative Law Judge issued an Order to Submit fuformation, ordering the contestant to
submit in writing the status of the citations within 20 days of the Judge's order or the cases
would be dismissed. To date, Pritchard Mining has submitted no response. fu addition to
addressing itsfailure to timely contest the proposed assessment and timely act in response to the
delinquency notice, Pritchard Mining must also explain why it failed to respond to the Judge's
order in the related contest proceedings.

32 FMSHRC Page 488

Distribution:
Rebecca J. Oblak, Esq.
Bowles, Rice, McDavid,
Graff & Love, LLP
7000 Hampton Center, Suite K
Morgantown, WV 26505
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 489

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

June 23, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2010-291-M
A.C. No. 13-02184-202271

v.
KNIFE RNER MIDWEST LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On December 23, 2009, the Commission received from Knife .
River Midwest LLC ("Knife River") a motion by counsel seeking to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHR.C 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
32 FMSHRC Page 490

On September 2, 2009, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Citation No. 6154862 to Knife River, which subsequently filed
a notice of contest challenging the citation (Docket No. CENT 2009-800-RM). MSHA issued
the proposed assessment covering that citation on November 10, 2009. Knife River claims that it
mistakenly paid the penalty. It further asserts that its counsel discovered that the penalty had
been erroneously paid on the day the assessment became a final order. Within a week of
discovery, Knife River filed a motion to reopen.
Although the Secretary does not oppose the motion to reopen, she urges the operator to
take all steps necessary to ensure that future penalty assessments are contested in a timely
manner.
Having reviewed Knife River's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 491

Distribution:
Adele L. Abrams, Esq,
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Coinlnission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 492

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

June 23, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)
Docket No. LAKE 2010-242-M
A.C. No. 47-00865-196519

v.
JOHN S. OLYNICK, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On December 24, 2009, the Commission received from
John S. Olynick, Inc. ("Olynick") a motion made by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

32 FMSHRC Page 493

On September 9, 2009, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Proposed Penalty Assessment No. 000196519 to Olynick.
Olynick paid the penalty in a timely fashion. MSHA subsequently informed Olynick that it had
initiated a special investigation against the owner of the company under section 110(c) of the
Mine Act, 30 U.S.C. § 820(c), based on allegations contained in the penalty assessment. Olynick
seeks to reopen the penalty assessment and to·consolidate it with any section l lO(c) proceeding.
It asserts that it was not aware that payment of the penalty could be construed as an admission of
a violation and used as evidence against its agent in subsequent proceedings.
The Secretary opposes reopening and submits that under the doctrine of collateral
estoppel, an operator's failure to contest a proposed penalty does not estop agents of the operator
from litigating any aspect of the underlying violation. The Secretary states that she "traditionally
has not argued that an operator's payment of or failure to contest a proposed assessment estops
agents of the operator from litigating any aspect of the underlying violation in a subsequent
section 110(c) proceeding, and the Secretary will not so argue if a subsequent section 110(c)
proceeding is initiated.here."

32 FMSHRC Page 494

Based on the Secretary's representation that, if a section 110(c) proceeding is initiated,
she will not argue that Olynick's payment of or failure to contest a proposed assessment estops
the owner of the operator from litigating any aspect of the underlying violation, the grounds for
the operator's contentions are unfounded. Accordingly, we hereby deny Olynick's request to
reopen.

Robert F. Cohen, Jr., Commissioner

~

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 495

Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 496

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

June 23, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2010-301-M
A.C. No. 33-04447-193672

v.
CITY STONE, LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On December 30, 2009, the Commission received a request
to reopen a penalty assessment issued to City Stone, LLC ("City Stone") that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify1he Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
t ·
·
·
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evalliating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rtile 60(b) ofthe
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, ·or excusable neglect.
See 29 C.F.R. § 2700.l{b) (''the Commission and its Judges shallbe guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787.
have also observed
that default is a harsh remedy and that, if the defaulting party can make a showjng of good cause
for a failure to timely respond, the case may be reopened and· appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1S29, 1530 (Sept. 1995).

We

32 FMSHRC Page 497

On August 6, 2009, the Department of Labor's Mine Safety and Health Ad.ministration
("MSHA") issued Proposed Assessment No. 000193672 to City Stone, proposing penalties for
various citations. City Stone states that it "did not realize that the necessary paperwork to contest
the citations had not been filed with MSHA" until it received a delinquency notice from MSHA
dated October 28, 2009. 1
The Secretary opposes reopening on the ground that City Stone has failed to make a
showing of the exceptional circumstances that warrant reopening. The Secretary argues that
specific instructions on how to contest the proposed assessment appeared on the proposed
assessment form, and that there is no explanation as to why the operator did not contest the
proposed assessment within 30 days after receipt.
Having reviewed City Stone's request to reopen and the Secretary's response, we
conclude that the operator has not provided a sufficiently detailed explanation for its failure to
timely contest the proposed penalty assessment. The statement that the operator did not realize
that the necessary paperwork had not been filed does not provide the Commission with an
adequate basis to reopen without further elaboration. Furthermore, City Stone has failed to
explain why it delayed approximately two months in responding to the delinquency notice sent
by MSHA. 2 Accordingly, we hereby deny without prejudice City Stone's request. See Petra
Materials, 31 FMSHRC 4 7, 49 (Jan. 2009); Eastern Assoc. Coal, LLC, 30 FMSHRC 392, 394

1

The.request to reopen was filed by James Young, ofCatamount Consulting, who
identifies himself as a representative for City Stone. Commission Procedural Rule 3 provides
that, in order to practice before the Commission, a person must either be an attorney or fall ~to
one of the categories in Rule 3(b), which includes parties, representatives of miners, an "owner,
partner, officer or employee" of certain parties, or "[a]ny other person with the permission of the
presidingjudge or the Commission." 29 C.F.R. § 2700.3(b). It is unclear whether Mr. Young
satisfied the requirements of Rule 3 when he filed the request on behalf of City Stone. We have
determined that, despite this, we will consider the merits of the request in this instance.
However, in any future proceeding before the Commission, including further proceedings in this
case, Mr. Young may represent City Stone only if he demonstrates to the Commission or the
presiding judge that he fits within one of the categories set forth in Rule 3(b)(l)-(3) or seeks
permission to practice before the Commission or the judge pursuant to Rule 3(b)(4). Otherwise,
City Stone mus( be represented by an attorney or by an owner, partner, officer, or employee.
2

In considering whether an operator has unreasonably delayed in filing a motion to
reopen a final Cortlmission order, we find relevant the amount of time that has passed between an
operator's receipt of a delinquency notice and the operator's filing of its motion to reopen. See,
e.g., Left Fork Mining Co., 31FMSHRC8, 10-11(Jan.2009).
32 FMSHRC Page 498

{May 2008). The words ''without prejudice" mean City Stone may submit another request to
3
reopen the case so that it can contest the citations and penalty assessment.
Any amended or renewed request by City Stone to reopen Assessment No. 000193672
must be filed within 30 days of the date of this order. Any such request filed after that time will
be denied with prejudice.

Robert F. Cohen, Jr., Commissioner

<?DL

Patrick K. Nakamura, Commissioner

3

If City Stone submits another request to reopen the case, it must establish good cause
for not contesting the citations and proposed assessment within 30 days from the date it received
the proposed penalty assessment from MSHA. Under Rule 60(b) of the Federal Rules of Civil
Procedure, the existence of "good cause" may be shown by a number of different factors
including mistake, inadvertence, surprise, or excusable neglect on the part of the party seeking
relief, or the discovery of new evidence, or fraud, misrepresentation, or other misconduct by the
adverse party. City Stone should include a full description of the facts supporting its claim of
"good cause," including how the mistake or other problem prevented City Stone from responding
within the time limits provided in the Mine Act, as part of its request to reopen the case. City
Stone should also include copies of all documents supporting its request to reopen the case.

32 FMSHRC Page 499

Distribution:
James E. Young
Catamount Consulting, LLC
17970 Rte. 36
Punxsutawney, PA 15767
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209"'.2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 500

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

June 23, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH .
ADMINISTRATION (MSHA)
Docket No. LAKE 2010-478-M
A.C. No. 33-01603-197050.

v.
PHILLIPS COMPANIES

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On February 23, 2010, the Commission received from
Phillips Companies ("Phillips") a request to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a}ofthe Mine Act, an operator who wishes to contest a proposed
penalty must notify.the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the.operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on.the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

32 FMSHRC Page 501

Phillips states that it requested a conference regarding one of the five citations covered by
the proposed assessment; that it never received the proposed assessment; and that, upon being
informed that it was delinquent, it paid the assessment in full. Phillips requests reopening as to
the penalty for Citation No. 6500213. The Secretary does not oppose reopening, but notes that
the Federal Express delivery of the assessment was signed for by "W. Heathcock" and reminds
the operator that, even though a conference was requested, the operator was also required to
contest the penalty once the assessment issued.
Having reviewed Phillips' request and the Secretary's response, in the interests ofjustice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

...

\.,

,,

't

..

Mic

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 502

Distribution:
Gary L. McDaniels
Phillips Companies
30 Haines Rd.
Xenia, OH 45385
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 503

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

June 23, 2010
SECRETARY OF LABOR,
MINE SAFETY ANDHEALTH
ADMINISTRATION (MSHA)

v.

Docket No. SE 2010-258-M
A.C. No. 09-00038-199644

AGGREGATES USA LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On December 9, 2009, the Commission received from
Aggegrates USA LLC ("Aggregates") a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment: If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments·that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

32 FMSHRC Page 504

On August 31, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Citation No. 6595211 to Aggregates, which timely contested it on
September 2, 2009. Docket No. SE 2009-864-RM. On October 7, 2009, MSHA issued
Proposed Assessment No. 000199644 to Aggregates, proposing civil penalties for several
citations, including Citation 6595211. Aggregates maintains that it filled out the proposed
assessment form indicating that it intended to challenge this citation and its associated penalty in
the sum of$100. Aggregates states that it sent its payment in the amount of$1,409 for the
remaining citations to MSHA's Payment Processing Center in St. Louis, Missouri, however its
accounting office apparently failed to send the contest form to MSHA's Civil Penalty
Compliance Office. The operator learned from MSHA's website that the citation had become a
final order as of November 12, 2009.
The Secretary does not oppose Aggregates' request to reopen the proposed penalty
assessment. She notes that a payment dated October 25, 2009, in the amount of $1,409 was
timely received at MSHA's Payment Processing Center. She also states that MSHA has no
record of receiving the penalty contest form at its Civil Penalty Compliance Office in Arlington,
Virginia.

32 FMSHRC Page 505

Having reviewed Aggregates' request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

~

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 506

Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 507

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

June 23, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEST 2009-1124-M
A.C. No. 02-00135-181707

ASARCO,LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On July 20, 2009, the Commission received from Asarco,
LLC ("Asarco") a request to reopen a penalty assessment that had become a final order of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l{b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

32 FMSHRC Page 508

Asarco states that it returned the assessment form fo the Department of Labor's Mine
Safety and Health Administration ("MSHA") with the citations that it desired to contest noted on
the form, although Asarco does not provide the date on which it returned the form. On July 9,
2009, Asarco received a delinquency notice from MSHA~ On July 15, 2009, the operator
submitted its request to reopen to the Commission.
The Secretary does not oppose reopening the proposed penalty assessment but states that
there is no record of the penalty contest form having been received by MSHA's Civil Penalty
Compliance Office. The Secretary acknowledges that MSHA received a late payment with a
check dated July 15, 2009, in the amount of$28,197, to be applied to penalties in this case.

32 FMSHRC Page 509 ·

Having reviewed Asarco's request andtl1e Secretary's response, in the interests ofjustice,
we remand this matter to the Chief Administrative Law Judge for a determination of whether
good cause exists for Asarco's failure to timely contest the penalty and whether relief from the
final order should be granted. A!) part of this determination, the Judge should ascertain when
Asarco returned the proposed assessment form. If it is determined that relief from the final order
is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. § 2700. 1

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

1

It is not clear which citations were paid and which citations Asarco seeks to reopen.
Thus, ifthe Chief Administrative Law Judge determines that the case should be reopened, he
should also determine which citations are to be included in the reopening.

32 FMSHRC Pag~ 510

Distribution:
Robert Jordan
Senior Safety Supervisor
Asarco, LLC
4201 W. Pima Mine Rd.
Sahuarita, AZ 85629
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRCPage 511

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

June 23, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEST 2009-1203
A.C. No. 05-04591-173779

BOWIE RESOURCES, LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. ·
§ 801 et seq. (2006) ("Mine Act"). On August 5, 2009, the Commission received from Bowie
Resources, LLC ("Bowie") a motion by counsel seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, ·that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits pennitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
32 FMSHRC Page 512

On January 7, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000173 779 to Bowie, proposing civil penalties for
several citations. Bowie maintains that it filled out the proposed assessment form indicating that
it intended to challenge seven of the citations and orders and their associated penalties and sent
the contest to MSHA's Civil Penalty Compliance Office. Bowie states that it sent its payment in
the amount of$3,974 for the remaining citations to MSHA's Payment Processing Center in
St. Louis, Missouri. The operator further states it subsequently learned from MSHA that its
contest of the seven citations/orders at issue was never received.
The Secretary does not oppose Bowie's request to reopen the proposed penalty
assessment. She notes that a payment dated March 13, 2009, in the amount of$3,974 was
received at MSHA's Payment Processing Center. However, the Secretary states that MSHA has
no record of receiving the penalty contest form at its Civil Penalty Compliance Office in
Arlington, Virginia.
Having reviewed Bowie's request and the Secretary's response, in the interests of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

~··Commissioner
Patrick K. Nakamura, Commissioner

32 FMSHRC Page 513

Distribution:

R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty A venue
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 514

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

June 23, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2010-393-M
A.C. No. 04-04777-198717

v.
7/11 MATERIALS, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On December 28, 2009, the Commission received from 7/11
Materials, Inc. ("7 /11 Materials") a request to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 1OS(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 1OS(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

32 FMSHRC Page 515

On July 1, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000189717 to the Hiatt Ready Mix Mine. In its
request, 7111 Materials alleges that it took ownership of the mine on August 1, 2009, and that it
had not received copies of the pertinent citations or the proposed penalty assessment. The
operator asserts that it received a notice of delinquency on September 30, 2009, and contacted
MSHA on numerous occasions to contest the penalty assessments.

The Secretary states that she does not oppose 7/11 Materials' requestto reopen the
assessment and attaches copies of the proposed assessment and citations.
Having reviewed 7/11 Materials' request and the Secretary's response, in the interests of
justice, we hereby reopen this matter. 7/11 Materials shall have 30 days from the date of this
order to submit its contest to MSHA at the address contained on the proposed penalty
assessment. If the penalty assessment is contested, the case shall proceed pursuant to the Mine
Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Michae

Robert F. Cohen, Jr., Commissioner

~l

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 516

Distribution:
Brian Rose
Aggregates Mngr.
7/11 Materials, Inc.
517 Roney Trail
Chico, CA 95973
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 517

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

June 30, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2010-88-M
A.C. No. 23-02274-192621

v.
RAY COUNTY STONE
PRODUCERS, LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act''). On December 30, 2009, Ray County Stone Producers, LLC
("Ray County Stone") renewed its reql!est that the Commission reopen a penalty assessment
issued to the operator that had become a final order of the Commission pursuant to section lOS(a)
of the Mine Act, 30 U.S.C. § 815(a).
Under section I OS(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 518

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
On July 29, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000192621 to Ray County Stone for three citations
MSHA had issued to the operator on June 2, 2009. In ruling upon the original request to reopen,
filed by Ray County Stone on October 28, 2009, the Commission concluded that the operator had
failed to provide a sufficiently detailed explanation for its failure to timely contest the proposed
penalty assessment. Accordingly, the Commission denied the request without prejudice to Ray
County Stone's right to refile another request which specified which penalties it would contest
upon reopening and that included "more specific information regarding why it did not file a
notice of contest on a timely basis, and when it learned of the delinquency." Ray County Stone
Producers, LLC, 31FMSHRC1339, 1340-41 & n.1(Dec.2009).
In renewing its request, Ray County Stone's safety consultant, Earl Wilson, wrote the
Commission a letter in which he identified the two citations the operator seeks to reopen. As for
the reason it did not timely contest those penalties, Ray County Stone states that it was due to
"issues with office staff' and because the operator was not told by the staff of the proposed
assessment. It says it learned of the delinquency when it checked the MSHA web site.
While she did not oppose Ray County Stone's original request to reopen, the Secretary of
Labor now opposes reopening the assessment, on the ground that reason given for the failure to
timely contestthe citations is no more than a conclusory assertion, and that Ray County Stone
has failed to state the date on which it checked the MSHA web site.
Mr. Wilson cannot further represent Ray County Stone in this proceeding until he
complies with Commission Procedural Rule 3(b). As explained in our original order, that rule
provides that, in order to practice before the Commission, a person must either be an attorney or
fall into one of the categories in Rule 3{b), which include parties, representatives of miners, an
"owner, partner, officer or employee" of certain parties, or "[a]ny other person with the
permission of the presiding judge or the Commission." 29 C.F.R. § 2700.3(b). In submitting the
original request on the letterhead "Wilson and Associates," Mr. Wilson stated that he was a
"Safety Consultant." In the renewed request, Mr. Wilson, on identical letterhead, takes the
position that he is an "employee" of Ray County Stone because he has been "hired" to look into
this matter. Given these conflicting accounts of Mr. Wilson's status, he must seek permission to
practice before the Commission or judge pursuant to Rule 3(b)(4) before he can appear again
before the Commission in this or any other case in which Wilson and Associates is not a party.
Ray County Stone can instead be represented by an individual who fits within one of the
categories set forth in Rule 3(b)(l)-(3). Because Mr. Wilson has not established compliance with
Rule 3(b), we deny the operator's request without prejudice.
Having reviewed Ray County Stone's renewed request and the Secretary's response, we
further conclude that the operator has again failed to provide a sufficiently detailed explanation

32 FMSHRC Page 519

for its failure to timely contest the proposed penalty assessment. Because its renewed request
states little more than its original request, we deny without prejudice Ray County Stone's request
for this reason as well. If the operator files a third request to reopen, it must (1) explain in detail
how the assessment, which was delivered to it and signed for by a "J. Dugan," was not timely
contested, (2) identify the date it learned of the delinquency, and (3) describe what it did upon
learning of the delinquency. If the defects identified herein are not cured within 30 days, the
denial oftheoperator's request to reopen the penalty assessment shall become final and
unappealable to the Conimission

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 520

Distribution:
Earl Wilson
Safety Consultant
Wilson & Associates
10737 Miles St.
Rolla, MO 65401
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRGPage 521

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500

WASHINGTON, DC 20001

June 30, 2010
SECRETARY OF LABOR,
MINE SAFETY AND·HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2009-1409
A.C. No. 15-19116-183877

V.

ENTERPRISE MINING COMPANY LLC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 6, 2009, the Commission received a motion by
counsel to reopen a penalty assessment issued to Enterprise Mining Company LLC ("Enteq)rise'')
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815{a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60{b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l{b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

32 FMSHRC Page .522

On April 29, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000183877 to Enterprise, which covered Citation
No. 8315960. Enterprise asserts that its failure to timely file its contest was the result of
confusion as to whether outside counsel or the safety director was going to send the form.
According to Enterprise, its safety director also believed that no contest should be sent until a
conference covering the citation, scheduled for May 6, 2009, was held. Enterprise also points out
that it had already filed a pre-penalty contest of the citation.
The Secretary states that she does not oppose the reopening of the assessment, but notes
that a pre-penalty contest does not alter the deadline or procedure for contesting a proposed
penalty. The Secretary also urges that the operator take all steps to ensure that future penalty
assessments be contested in a timely manner.
Having reviewed Enterprise's motion and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Mary Lu ford~

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 523

Distribution:
R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
MyraJames, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 524

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

June 30, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2010-332-M
A.C. No. 21-03095-198625

v.
L & S CONSTRUCTION CORPORATION

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On January 12, 2010, the Commission received from ·
L & S Construction Corporation ("L&S") a request to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
32 FMSHRC Page 525

The Department of Labor's Mine Safety and Health Administration (''MSHA") issued
Proposed Assessment No. 000198625 to L&S on September 29, 2009, proposing penalties for
nine citations and an order that had been issued to L&s·on August 25, 2009. L&S states that on
October 12, 2009, it sent a letter to the MSHA District Office to contest two of the citations. The
operator further explains that on October 26, 2009, it received correspondence from MSHA
indicating that a conference would be scheduled after L&S sent its contest, which the operator
states that it thought it had done by its October 12 letter. The operator promptly filed its request
to reopen when it discovered its error. The Secretary of Labor does not oppose reopening.
Having reviewed L&S 's request and the Secretary's response, in the interests of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 526

Distribution:
Herb Schefflera, President
L & S Construction Corp.
12226 Knox Ave.
Sanborn, MN 5083
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 527 ..

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

June 30, 2010
SECRETARY OF LABOR.
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2009-807-M
A.C. No. 40-03315-183194 W720

v.
DJ DRILLING AND BLASTING, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 11, 2009, the Commission received from DJ
Drilling and Blasting, fuc. ("DJ Drilling") a letter seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). fu evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
32 FMSHRC Page 528

The Department of Labor's Mine Safety and Health Administration (''MSHA") issued the
proposed assessment on April 22, 2009. DJ Drilling claims that it sent to MSHA a letter and
proposed assessment form contesting the assessment on May 12, 2009. It states that it received a
delinquency notice on July 24, 2009, indicating that the assessment was past due; DJ Drilling
further asserts that it then called MSHA and learned that there was no record of its contest.
According to DJ Drilling, it learned on August 5, 2009, that it needed to contact the Commission
to reopen the penalties. On that same day, DJ Drilling sent a letter seeking reopening. The
Secretary states that she does not oppose the reopening of the proposed penalty assessment.
Having reviewed DJ Drilling's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

~L

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 529

Distribution:
Christy Meredith, Office Mngr.
DJ Drilling & Blasting, Inc.
401 Dick Buchanan St.
La Vergne, TN 3 7086
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson ~lvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert]. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 530

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE; NW
SUITE 9500
WASHINGTON, DC 20001

June 30, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-1201-M
A.C. No. 48-00155-183788

V.

GENERAL CHEMICAL (SODA ASH)
PARTNERS
BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 4, 2009, the Commission received from General
Chemical (Soda Ash) Partners ("General Chemical") a letter seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Conimission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respo11d, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs.. Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
32 FMSHRC Page 531

The Department of Labor's Mine Safety and Health Admiriistration ("MSHA'') issued the
proposed assessment on April 28, 2009. General Chemical claims that it requested a conference
for several citations, including Citation No. 6420307 at issue here, and that it sent the contest
form to MSHA covering the citation at issue. It states that it received a delinquency notice on
July 21, 2009, indicating that the assessments were past due. Within two weeks of the notice,
General Chemical sought reopening before the Commission.
The Secretary states that she does not oppose the reopening of the proposed penalty
assessment, although she has no record of receiving the contest in this case. She also notes that a
request for a conference does not alter the deadline or procedure for contesting a proposed
penalty.
Having reviewed General Chemical's request and the Secretary's response, in the
interests of justice, we hereby reopen this matter and remand it to the Chief Administrative Law
Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural Rules,
29 C.F.R.§ 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for
assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

~l

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 532

Distribution:
Brian Hacker
Safety/Sec. Training Specialist
General Chemical (Soda Ash) Partners
Green River Soda Ash Operation
P.O. Box 551,
Green River, WY 82935-0551
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9SOO
Washington, D.C. 20001-2021

32 FMSHRC Page 533

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

June 30, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-1204-M
A.C. No. 10-00088-166728 L991

V.

ELCON CONSTRUCTION, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 6, 2009, the Commission received from Elcon
Construction, Inc. ("Elcon") a letter seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments·that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section lOS(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

32 FMSHRC Page 534

On October 23, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued the proposed assessment at issue. Elcon claims that it timely mailed the
contest form on November 20, 2008, and did not receive any further correspondence relating to
the assessment until it received a collection notice from the Department of Treasury dated
May 16, 2009. The Secretary asserts that she has no record of receiving the contest and notes
that a delinquency notice was sent to the operator on January 15, 2009, before the case was
referred to the Treasury Department for collection. She does not oppose reopening but urges the
operator to take all steps necessary to ensure that future penalty assessments are contested in a
timely manner and mailed to the appropriate MSHA address.
Having reviewed Elcon's request and the Secretary's response, in the interests of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 535

Distribution:
Mark Lehinger
Elcon Construction Inc.
P.O. Box, 13037
Spokane, WA 99213-3037
W. Christian Schumann, Esq;
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-'2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, YA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New JerseyAvenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 536

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

June 30, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2009-1445
A.C. No. 46-09086-184529

v.
BRODY MINING, LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises underthe Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On May 12, 2010, the Commission received a petition for
discretionary review from Brody Mining, LLC ("Brody'') challenging an order issued by Chief
Administrative Law Judge Robert J. Lesnick on April 9, 2010. In his order, Judge Lesnick
denied a motion to dismiss filed by Brody and accepted an untimely petition for assessment of
penalty filed by the Secretary of Labor.
Under the Mine Act and the Commission's procedural rules, relief from a Judge's final
decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. §§ 2700.69(a), 2700.70(a). Under the Commission's
Procedural Rules, the filing of a petition for discretionary review is effective upon receipt.
29 C.F.R. §§ 2700.5(e)(2), 2700.70(a).
Brody's petition was received by the Commission on May 12, 2010, more than 30 days
after issuance of the Judge's April 9, 2010 order. Accordingly, the petition should be dismissed
as untimely filed. Duval Corp. v. Donovan, 650 F.2d 1051, 1054 (9th Cir. 1981); Sunbeam Coal
Corp., 2 FMSHRC 775 n.l (Apr. 1980).

32 FMSHRC Page 537

For the foregoing reasons, Brody's petition for discretionary review is dismissed as
untimely. 1

Robert F. Cohen, Jr., Commissioner

~

Patrick K. Nakamura, Commissioner

1

We note that even if Brody had timely filed the petition, an independent grounds for
denial exists since the petition seeks review of a Judge's order that is interlocutory, rather than
final, in nature. See 29 C.F.R. § 2700.76.
32 FMSHRC Page 538

Distribution:
Jason M. Nutzman., Esq.
Smith, Moore, Leatherwood
P.O. Box 87
300 E. McBee Avenue, Suite 500
Greenville, SC 29602
Ernie Ross, Jr.
Conference & Litigation Representative
U.S. Department of Labor, MSHA
100 Bluestone Road
Mt. Hope, WV 25880-1000
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. OfLabor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021
Administrative Law Judge William Moran
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
721 191h Street, Suite 443
Denver, CO 80202

32 FMSHRC Page 539

32 FMSHRC Page 540

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N. W., SUITE 9500
WASHINGTON, D.C. 20001

May4, 2010
ABUNDANCE COAL, INC.,
Applicant
v.

SECRETARY OF LABOR,
MINE SAFETY & HEALTH
ADMINISTRATION (MSHA),
Respondent

EQUAL ACCESS TO JUSTICE
PROCEEDING
DOCKET NO. EAJ 2010-01
Formerly KENT 2010-5-R
KENT 2010-6-R
Mine ID 15-18711
No. 1 Mine

DECISION

This case is before me upon an application for fees and expenses filed by Abundance Coal,
Inc., (Abundance) pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504, the "Act'', and the
Commission's implementing regulations at 29 C.F.R. § 2704. Abundance was the prevailing party ·
in an expedited contest proceeding, Abundance Coal, Inc., 31 FMSHRC 1241 (October 2009)(ALJ).
On March 10, 2010, a decision was issued in these proceedings finding that Abundance was
qualified to receive fees and expenses under the Act and that the· Secretary was liable for those fees
and expenses for failing to sustain her burden of proving that her position at trial was substantially
justified. 5 U.S.C. § 504(a)(l); 29 C.F.R. § 2704.105(a).
Abundance failed to support its application for fees and expenses, however, by failing to
provide "a written verification under oath or penalty of perjury that the information provided in the
application is true and correct". 29 C.F.R. § 2704.201(d). Abundance also failed to provide an
itemized statement ofprofessional services in connection with the underlying proceeding. 29 C.F.R.
§ 2704.205. Accordingly Abundance was granted 30 days to comply with the noted regulatory
provisions. 1
.
In response, on April 12, 2010, Abundance filed an affidavit by its president, Ray Slone, to
the effect that the "motion" for attorneys fees and costs was true and correct. The Coimnission'.s
regulation is perfectly clear however that the verification must be specifically directed to the
"information" in the application and not merely to the motion itself This is not a trivial technicality
but is a critical distinction to enable a credibility assessment to be made. The affiant should, of
course, also have firsthand knowledge of the facts affirmed. Abundance also failed in its response
to provide the detailed information required by 29 C.F.R. § 2704.205. It is particularly noted that
Abundance failed to distinguish between time spent on the underlying cases and time .spent on the
consolidated but separate cases involving two imminent danger withdrawal orders (Docket Nos.
KENT 2010-28-R and KENT 2010-29-R). The latter cases are not a part of these equal access of

1

The Secretary was also directed to comply with the provisions of29 C.F.R. §
2704.302(c) but failed to respond.
32 FMSHRC Page 541

justice proceedings and the fees and expenses related to those cases are not compensable in these
proceedings.
The failure of Abundance to have complied with the Commission's regulations could be
grounds for denial of the entire application. However, to the extent that parts of the application are
unopposed or can be reasonably ascertained, a partial award will be granted. Consideration is also
given to a presumption oftruthfulrtess accorded representations by members of the bar.
The Secretary first argues that attorney's fees for Abundance should be limited to a rate of
$125.00 per hour as set forth in 29 C.F.R § 2704.201. Abundance seeks an award ata rate of
$175.00 per hour and cites an increase in the cost of living since the enactment of the 1996 Act and
other special circumstances to justify that rate. See 29 C.F.R. § 2704.20l(b). Abundance cites the
fact that its attorney has a mining engineering degree and has been practicing all aspects of coal mine
law for over 20 years, asserts that it would have been unable to obtain a qualified attorney to handle
the matter for $125.00 an hour and maintains that there are only a very few attorneys in eastern
Kentucy who would represent coal mine operators in MSHA proceedings. Finally, Abundance notes
that the only place eastern Kentucky coal operators can obtain qualified attorneys to defend MSHA
administrativ.e proceedings is in Lexington, Kentucky where most charge more than $175.00 per
hour. Under the circumstances, I find that a rate of $175.00 is appropriate to be awarded in these
proceedings.
The Secretary objects to attorney fees for conversations with the attorney representing mine
operator Consol ofKentucky in the consolidated but separate contest of an "imminent danger'' order.
It is essential to note in this regard that initially four expedited contest proceedings were consolidated
for trial to commence on October 14, 2009. Two challenged "Section 107(a)" imminent danger
withdrawal orders - - one issued against Abundance at its No. 1 Mine and one against Consol of
Kenthcky at its adjacent Jones Fork mine. These two cases involved an alleged common hazard
originating in-the adjacent Jones Fork mine and were resolved by settlement on October 14, 2009.
They are not in themselves within the scope of any claims for fees and expenses under the Act. The
other contests (of Citation No. 8227636 and "Section 104(b)" Order No. 8227637) involved
Abundance's seals separating its No. 1 mine from the Jones Fork mine and involved the same
alleged common hazard originating in the Jones Fork mine. The latter two cases are those
underlying the instant application for fees and expenses. While there was, of necessity, some need
for coordination between counsel this rationale provides only a partial explanation for the charges.
Accordingly an appropriate reduction in fees of25% or $175.00 is warranted ..
The Secretary next takes issue with fees and expenses for attendance at the proceedings on
October 14, 2009. All four consolidated cases were scheduled for trial on October 14, 2009, but at
the suggestion of the undersigned the parties engaged in settlement negotiations. As a result, the
"Section l 07(a)" imminent danger orders issued to both Consol of Kentucky and Abundance were
resolved. As previously noted, since the specific cases (Docket Nos. KENT 2010-5-R and 2010-6R) on which Abundance prevailed (regarding Citation No. 8227636 and Order No. 8227637) were
separate and distinct from the "Section 107(a)" orders which were the primary subject of the
settlement conference on October 14, 2009, (Docket Nos. KENT 2010-28-R and 2010-29-R) the
32 FMSHRC Page 542

time spent on those orders at that conference is not compensable in these proceedings. An
appropriate reduction in fees of 50% or $1,050.00 is therefore taken from the October 14, 2009
billing.
The Secretary also takes issue with the time charged for conferring with MSHA' s district
manager following the completion of the hearing on October 15, 2009. While this meeting was at
the suggestion of the undersigned judge it was not directly related to the underlying cases but rather
for the purpose of avoiding future litigation regarding the mine ventilation plan. It was therefore not
an appropriate charge in these proceedings and a fee reduction of $350.00 from the October 151h
billing is warranted.
.
The Secretary further takes issue with costs associated with obtaining an expedited transcript
of the hearing. Expedited hearings were held in the underlying cases because the Secretary had
ordered the closure of the Abundance mine and miners were out of work. An expedited transcript
was therefore necessary for the parties to prepare expedited briefs. Accordingly the cost for an
expedited transcript was appropriate.
Finally,·the Secretary takes issue with bills for services from Abundance's experts and
consultants. In particular, the Secretary asserts that neither the bill for Alpha Engineering Services,
Inc., in the amount of $900. 00 nor the bill to Sure Tech Systems, Inc., in the amount of $600.00 meet
the specificity required by the Commission's regulations. See 29 C.F.R. § 2704.205. I find the
Secretary correct in this regard and in spite of the opportunity given to Abundance to supplement the
record, it has nevertheless failed to fully comport with the requirements of29 C.F.R. § 2704.205.
It is particularly noted that although some work was devoted by the experts to the "Section 107(a)"
orders not compensable in these proceedings it was included in the fees charged herein.
Accordingly, Abundance's claim for fees for these consultants is accordingly reduced by 50% to
$750.00.
The Secretary.also claims that the Commission's regulations do not permit attorney's fees
for preparing and filing an application for fees and expenses under the Act. I find no such authority
for the Secretary's position and indeed since the preparation of the fee application is an integral part
of these proceedings I find that it is entirely appropriate to include that in the application for
attorney's fees herein. Indeed such fees have been approved in other cases under the Act. See
Schuenemeyer v. U.S., 776 F.2d 329 (Fed. Cir. 1985); Fritz v. Principi, 264 F.3d 1372 {Fed. Cir.
2001); Black Diamond Construction, Inc., 20 FMSHRC 1169(October1998) (ALJ).
Under all the circumstances, I find that Abundance is entitled to fees and expenses of
$11,586.59.

32 FMSHRC Page 543

ORDER
In accordance with29 C.F.R. § 2704.108 the Secretary ofLabor is directed to pay Abundance
Coal Inc., the amount of $11,5 86.59 within 30 days of the date of this decision.

Distribution:(Certified Mail)
Billy R. Shelton, Esq., Jones, W alte~, Turner & Shelton PLLC, 151 N. Eagle Creek Drive, Suite
310, Lexingtol), KY 40509

Mary Sue Taylor, Esq., Office pf the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456
/lh

32 FMSHRC Page 544

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W .. SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9987 I FAX: 202-434-9949

May 13, 2010
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR
MINE SAFETY AND !IEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No~ PENN 2007-151
A.C. No. 36-07416-109800

v.
CONSOL PENNSYLVANIA COAL
COMPANY,
Respondent

Mine: Enlow Fork

DECISION
Appearances: AndreaJ. Appel, Esq., U.S. Department of Labor, Philadelphia, Pennsylvania, for
Petitioner;
Rodger L. Puz, Esq., Dickie, McCamey & Chilcote, P.C., Pittsburgh,
Pennsylvania, for Respondent.
Judge Bulluck

Before:

This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary
of Labor, on behalf of her Mine Safety and Health Administration ("MSHA"), pursuant to
section 105(d) of the Federal Mine Safety and Health Act of 1977 ("Act''), 30 U.S.C. § 815(d),
against Consol Pennsylvania Coal Company ("Consol'} The Secretary seeks civil penalties in
the amount of$19,300.00 for three alleged violations of the Act and her mandatory safety
standards.
A hearing was held in Pittsburgh, Pennsylvania. The issues to be resolved are: 1) whether
Respondent violated 30 C.F.R. § 75.360(f), as alleged in Order No. 7073382, and 30 C.F.R. §
75.400, as alleged in Citation No. 7071787 and Order No. 7073658; 2) whether the violations
were "significant and substantial" ("S&S"); and 3) whether the violations were attributable to
Consol's unwarrantable failure to comply with the standards. 1 The parties' post-

1

The S&S terminology is taken from section I 04(d)(l) of the Act, which distinguishes as
more serious any violation that "could significantly and substantially contribute to the cause and
effect of a ... mine safety or health hazard." 30 U.S.C. § 814(d)(l). The unwarrantable failure
terminology is taken from the same section, and establishes more severe sanctions for any
violation that is caused by "an unwarrantable failure of [an] operator to comply with ...
32 FMSHRC Page 545

hearing briefs are of record. For the reasons set forth below, I AFFIRM the citation and orders,
as AMENDED, and assess penalties against Respondent.

I.

Stipulations
The parties stipulated as follows:
1. Respondent was an "operator" as defined in section 3(d) of the Federal Mine Safety

and Health Act of 1977, as amended, 30 U.S.C. § 803(d), of the Enlow Fork Mine at the time
Citation/Order Nos. 7071787, 7073382 and 7073658 were issued.
2. The operations of Respondent at the aforementioned mine at the time Citation/Order
Nos. 7071787, 7073382 and 7073658 were issued are subject to the jurisdiction of the Mine Act..
3. 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 104
and 113 of the Mine Act.
4. Inspector Barry Radolec was acting in his official capacity and as an authorized
representative of the Secretary of Labor when Citation No. 7071787 was issued.
5. Inspector James Kaczmark was acting in his official capacity and as an authorized
representative of the Secretary of Labor when Order No. 7073382 was issued.
6. Inspector Ronald Rihaley was acting in his official capacity and as an authorized
representative of the Secretary of Labor when Order No. 7073658 was issued.
7. True copies of Citation/Order Nos. 7071787, 7073382, and 7073658 were served on
Respondent and/or its agents, as is required by the.Mine Act.
8. Payment of the total proposed penalty for Citation/Order Nos. 7071787, 7073382, and
7073658 will not affect Respondent's ability to continue in business.
9. The citations contained in Exhibit A attached to the Secretary's petition in the case
docketed as PENN 2007-151, are authentic copies of Citation/Order Nos. 7071787, 7073382, and
7073658 with all the appropriate modifications or abatements, if any.
10. At the time that Citation No. 7071787 was issued, material existed at certain points on
the 3 North Number 1 Main Conveyor Belt, starting at the end of the conveyor belt take-up and
continuing inby to the number 5 Yi crosscut.

mandatory health or safety standards." Id.
32 FMSHRC Page 546

11. At the time that Citation No. 7071787 was issued, the accumulations described in
Request for Admission No. 10 measured from 6 feet wide by 25 feet long and from 1 inch to 12
inches in depth under the bottom conveyor belt and belt rollers, behind the conveyor belt take-up.

12. At the time that Citation No. 7071787 was issued, material existed at certain points on
the inby side of the E-1 belt overcast to the number 5 Yi crosscut.

13. At the time that Citation No. 7071787 was issued, accumulations were in contact with
3 bottom rollers.
14. At the time that Citation No. 7071787 was issued, some of the accumulations
described in the Citation were damp to wet.
15. At the time that Citation No. 7071787 was issued, accumulations existed under certain
bottom rollers between the number 5 Yi crosscut and the E-1 belt overcast.
16. At the time that Citation No. 7071787 was issued, some of the accumulations described
in the Citation required shoveling.
17. Coal is combustible under certain circumstances.
18. Coal fines are combustible under certain circumstances.
19. Coal dust is combustible under certain circumstances.
20. At the time that Order No. 7073382 was issued, there were 14 rib rolls on the E.:..14
belt, which obstruct~d the 24-inches required for the tight side walkway.
21. At the time that Order No. 7073382 was issued, there were two stoppings along the
E-14 belt which contained combustible material.
22. At the time that Order No. 7073382 was issued, the condition described by MSHA as a
roof violation on the wide side of the E-14 belt travelway was not recorded by Respondent in its
pre-shift examination of the E-14 longwall belt.

23. At the time that Order No. 7073382 was issued, there were rollers turning in black coal
fines.
24; At the time that Order No. 7073382 was issued, the condition described in Stipulation
No. 23 was not recorded in Respondent's pre-shift examination of the E-14 longwall belt.
25. At the time that Order No. 7073382 was issued, the take-up pulley at the head of the

32 FMSHRC Page 547

E-14 longwall belt was not fully guarded.
26. At the time that Order No. 7073382 was issued, the condition described in Stipulation
No. 25 was not recorded in Respondent's pre-shift examination of the E-14 longwall belt.
27. At the time that Order No. 7073382 was issued, the E-14 longwall belt was pre-shifted
three times per day by a certified person.
28. At the time that Order No. 7073658 was issued, accumulations of coal and/or coal
fines at certain locations along the No. l main belt conveyor were in contact with roll~ or the
conveyor belt itself.
29. At the time that Order No. 7073658 was issued, in those areas along the No.l main
belt conveyor where rollers or the belt itself were in contact with coal and/or coal fines, some of
those accumulations were wet and some were dry.
30. At the time that Order No. 7073658 was issued, there was coal spillage at certain
locations along the E-14 longwall belt.
31. At the time that Order No. 7073658 was issued, coal dust and/or float coal dust was
deposited onto previouslyrockdusted surfaces at certain locations along the E-14 longwall belt.
32. At the time that Citation/Order Nos. 7071787, 7073382, and 7073658 were issued,
energized equipment was operating in certain discrete locations within each of the cited areas of
the Enlow Fork Mine.

II.

Factual Background

Consol operates the Enlow Fork mine in Washington County, Pennsylvania, which
produced over 11 million tons of coal in 2007 and 2008. It is the largest bituminous coal
producing deep mine in the country. Tr. 187. On August 9, 2006, MSHA sent multiple
irispectors to Enlow Fork to conduct a regular quarterly safety and health inspection. Tr. 30, 192.
This was a saturation type inspection, in that 10 to 12 inspectors were on-site to carry it out.
MSHA Coal Mine Inspector James Kaczmark was assigned to inspect the 1. 7 mile long
E-14 longwall belt. Tr. 290, 580-81. During his inspection, Kaczmark was accompanied by
Enlow Fork safety inspector; Joshua Huth. Tr. 570-71. While traveling the belt, Kaczmark
found nine hazardous conditions that had not been logged in Respondent's pre-shift examination
book. Tr. 291-92. Specifically, Kaczmark found two stoppings with open holes, and three
stoppings that had not been sealed and contained combustible materials, as well as 13 rib rolls
obstructing the 24 inches required for the tight side walkway. Stip. 20, 21; Sec'y. Br. at 20 n.2.
There was a crack in the roof on the wide side of the belt, which is also the travelway, three
rollers were turning in loose, black coal fines, and there was damage to the guarding on the take-

32 FMSHRC Page 548

up pulley atthe head of the E-14 longwall belt. Stip. 22, 23; 25. · There was also energized
equipment operating in the cited area. Stip. 32. As a result of the conditions Kazmarck found,
he issued section 104(d)(l) Order No. 7073382 for a violation of30 C.F.R. § 75.360(f), for
failure to conduct an adequate pre-shift examination. Ex. P-5. This belt was subject to three
pre-shift examinations per day by a certified person. Stip. 27. Kaczmark did not interview the
miner who conducted the pre-shift examination. Tr. 434-36 ..
..

During the same inspection, MSHA fuspector Barry Radolec, who wa.S not regularly
assigned to Enlow Fork, inspected the 3 North Main's number 1 conveyor belt. Tr. 30..,Jl.
Radolec was accompanied by Enlow Fork's safety supervisor, Don Overfield, and MSHA
Supervisory fuspector Robert Newhouse, whose purpose was to evaluate Radolec's inspection.
Tr. 32, 121. During the inspection, Radolec observed coal dust accumulations under the metal
bottom rollers at the number 5 Yz crosscut, which measured 150 feet long by 12to18 inches
wide, and up to 10 inches deep. Tr. 40. The accumulations were dry, powdery, somewhat
compacted, and floated when thrown in the air. Tr. 40. The accumulated dust was also being
rubbed by the bottom moving conveyor belt for a distance of about 150 feet. Tr. 41. One of the·
metal belt stands had been cut in half by the rubbing belt, and belt shavings were found in the
immediate area. Tr. 41. There were identical coal dust accumulations under the bottom rollers at
various locations between the number 5 Yz crosscut and the 1 East belt crossover. Tr. 40. fu one
area of the number 5 Yz crosscut, Radolec observed float coal dust being deposited on the mine
roof ribs, on top of the overcast, on the metal conveyor belt structures, aluminum pipes, electrical
cables along the belt, roof, roof controls, and roof support materials. Tr. 38. The consistency of
these accumulations was dry to damp. Tr. 38. Overall, Radolec inspected somewhere between
550 to 600 feet of beltline over a two hour period. Tr. 80-81. Along that belt span, Radolec
noted three moving rollers in contact with dust accumulations. Tr. 119. Overfield, using aheat
gun, took the temperature of the three rollers and got a reading between 72 and 74 degrees. 2 Tr.
122. Radolec also noted that the belt was rubbing over three inches of the belt structure in two
separate places,' for a distance of about 30 feet. Tr. 122-23. Radolec took the belt out of service
and issued section 104(d)(l) Order No. 7071787 for a violation of 30 C.F.R. § 75.400. Tr. 41;
Ex. P-4. Consol uses fire resistant belts at Enlow Fork. Tr. 118.
MSHA Coal Mine fuspector Ronald Rihaley issued Order No. 7073658, also for violation
of section 75.400, after observing coal dust accumulations at numerous locations along the No. 1
Main belt conveyor over a span of 1,500 feet. Stip. 28; Tr. 217-19. At approximately 1,500 feet
long, this is the shortest main belt in the mine. Tr. 218-19. The accumulations were in contact
with both the rollers and the conveyor belt; some were wet, and some were dry. Stip. 28, 29.
There was also coal spillage along the E-14 longwall belt and coal dust and/orfloat coal dust
deposited onto previously rockdusted surfaces in the same areas, and energized equipment was
operating within the cited area. Stip. 30, 31, 32. At the number 4 Yz crosscut, Rihaley observed
packed coal fines around the rotating bottom roller and the belt rubbing the coal fines. Tr. 219.
He also saw 3 Yz feet of dry float coal dust. Tr. 220. At the number 5 crosscut, there was a stuck
2

All references to temperature herein are according to the Fahrenheit scale.
32 FMSHRC Page 549

bottom roller in contact with the belt, and dry coal fines built up around the roller. Tr. 221.
There were dry coal fines on the tight side of the take-up pulley, approximately three feet long,
two feet wide, and two feet high, being compressed by the large, rotating pulley. Tr. 222.

At the number 8 crosscut, Rihaley observed a bottom roller missing and the belt, which
was out of alignment, rubbing the belt structure. Tr. 222-23. There were coal fines built up
where the belt was rubbing and, inby, a bottom roller turning in coal fines on a two-foot section
of belt that was producing dry, visible dust being suspended in air. Tr. 223. At the number
9· crosscut, there was a stuck bottom roller and three inby rollers turning in coal fines, as well as
the belt rubbing these fines for at least one foot. Tr. 224. At the number 10 Yi crosscut, there
were packed coal fines in contact with a bottom roller and four feet of accumulations that were
dry to the touch and producing visible dust. Tr. 226. Rihaley observed a stuck roller, a broken
roller, and another roller turning in packed coal at the number 13 Yi crosscut, and more bottom
rollers turning in coal at the number 14 and 14 Yi crosscuts. Tr; 228. On the tight side at the
number 14 crosscut, there were accumulations measuring 40 feet long, two to three feet wide,
and six to sixteen inches deep. Tr. 231. Rihaley also observed a bottom roller and eight to ten
feet of belt in contact with dry coal fines producing visible dust at the number 15 crosscut.
Tr. 228-29. During his inspection, he did not see any Consol employees attempting to clean up
the cited accumulations. Tr. 232, 269.
Supervisory Inspector Newhouse testified that MSHA has had numerous discussions with
Enlow Fork management regarding preventative measures for combustible coal accumulations,
including discussions during pre-inspection conferences at the beginning of every quarter, and
close-out conferences at the end of each quarter. Tr. 173. In addition, Newhouse stated that he,
personally; has had discussions about coal accumulations with mine management. Tr. 173.

III.

Findfugs .of Fact and Conclusions of Law

Order No. 7073382
A. Fact of Violation
Inspector Kazmark issued 104(d){l) Order No. 7073382 for a violation of section
75.360(f). He determined that it was highly likely that the violation would result in an injury or
illness involving lost workdays or restricted duty, that the violation was significant and
substantial, that one employee was affected, and that Consol's negligence was high and the result
of its unwarrantable failure to comply with the standard. Ex. P-5, R-lB. Section 75.360, which
governs pre-shift examinations, provides, in pertinent part: ·
(a){l) Except as provided in paragraph (a)(2) of this section, a
certified person designated by the operator must make a pre-shift
examination within 3 hours preceeding the beginning of any 8-hour

32 FMSHRC Page 550

interval during which any person is scheduled to work or travel
underground.
(f) A record of the results of each pre""shifl examination, including
a record of hazardous conditions and their locations found by the
examiner during each examination ... shall be made on the surface
before anypersons, other than certified persons conducting
examinations required by this subpart, enter any underground area
of the mine.

30 C.F.R. § 75.360(a)(l), (f). The citation describes the "Condition or Practice" as follows: .
The operator failed to conduct a[n] adequate pre-shift examination
of the E-14 longwall belt. The hazards and violations regarding
combustible material in stopping, holes in stopping, guards of
storage rollers, roof conditions where persons work and travel,
rollers turning in combustible material, and locations of tight side
rib rolls. [There] were 14 rib rolls not recorded in the mine
examiner pre-shift book which obstructed the 24 inches required
for the tight side walkway, two holes in 2 different stopping, 2
stopping with very visible combustible [material] present. [There]
was one roof violation on the wide side of the belt travel way.
Rollers turning in black coal fines. The take up pulleys [sic] at the
head of the E-14 longwall belt was not fully guarded. This belt is
pre-shifted 3 times a day by certified persons. [There] were 9
citations issued on this belt line.
Ex. R-5.
The pre-shift examination requirement "is of fundamental importance in assuring a safe ·
working environment underground." Buck Creek Coal Co., 17 FMSHRC 8, 15 (Jan. 1995). The
purpose of the pre-shift examination is to "prevent loss of life and injury," resulting from hazards
at the mines. S. Rep. No. 91-411, at 71 (1969), reprinted in Senate Subcomm. on Labor, Comm.
on Human Res., Part I Legislative History of the Federal Coal Mine Health and Safety Act of
1969, at 183 (1975). The examination is intended to prevent hazardous conditions from
developing. Enlow Fork Mine Co., 19 FMSHRC 5, 15 (Jan. 1997).
In the instant case, the pre-shift examination of the E-14 longwall belt occurred from 5 :00
a.m. to 6: 15 a.m. on August 9, 2006, and was conducted by Michael Despot, a certified pre~shift
examiner. Ex. P-7. Approximately six hours after Despot pre-shifted the belt, Kaczmark issued
the Order. Ex. P-5. Although there were hazards noted in the pre-shift report, Kaczmark

32 FMSHRC Page 551

identified nine hazards during his inspection that were not. 3 Tr. 293. The parties have stipulated
to many of the conditions, and that several were not included in the pre-shift examination report
for the E-14 longwall belt. Tr. 15-17; Stip. 20-26. The issue is whether the conditions existed at
the time of Despot's pre-shift examination and, if so, whether they were obvious.
Consol did not present any witnesses to testify to the conditions in the affected areas at
the time of the pre-shift examination. Notably absent was Despot, who had performed the
pre-shift examination, and could have testified regarding what conditions he had encountered and
whether, in his opinion, they were hazardous. On the other hand, Kaczmark testified regarding
each of the conditions listed, and explained why he believed that they had existed at the time of
the pre-shift examination and why they were hazardous.
The first five cited conditions involve two open holes in stoppings along the E-14
longwall belt, and combustible materials in holes in three stoppings. Stoppings are designed to
run dust-filled air out of escapways to the face, in order to decrease the amount of gas and dust
contaminating the mine atmosphere. Tr. 299-300. Holes in stoppings are hazardous because
they divert the direction of unclean air and compromise the efficiency of the ventilation system.
Tr. 299-300. Kaczmark testified that the holes were visible and could be seen just by walking
along the belt. Tr. 307. He believed that the holes could not have developed in the time between
the pre-shift examination and the MSHA inspection because there was one hole, five inches high
and three inches wide, with a hose going through it, and there "might" have been a wench cable
going through the second. Tr. 302-06. In his opinion, the amount of dirt and dust that had
accumulated around the hose indicated that it had been in the hole for "quite awhile." Tr. 306.
This assessment is supported by the fact that mining had ceased between the number 20 and 25
crosscuts where the holes were discovered, and had progressed to the number 31 crosscut, which
would have taken a long period of time. Tr. 301. Former MSHA Conference and Litigation
Representative, Lynn Workley, testifying for Consol, opined that the holes would not have
exposed miners to gas or dust, since the air was vented to the return, and that they "[do not]
significantly reduce the strength or ability of the stopping to resist fire or to prevent the air from
mixing between the belt and the next entry over." Tr. 658. fu light ofWorkley's extensive
background as a mine inspector and ventilation specialist, I credit his testimony, which was
unrebutted by the Secretary.
3

Kazmark issued nine citations: (1) 104(a) Citation No. 7073373 for a stopping with
combustible material at the number 23 crosscut; (2) 104(a) Citation No. 7073374 for a crack in
the roof at the number 23 Yi crosscut; (3) 104(a) Citation No. 7073375 for combustible coal
accumulations under three rollers at the ;number 27 Yi crosscut; (4) 104(a) Citation No. 7073376
for stopping with combu,stible material at the number 25 crosscut; (5) 104(a) Citation No.
7073377 for a hole in the stopping at the number 28 crosscut; (6) 104(a) Citation No. 7073378
for stopping with combustible materialat the number 29 crosscut; (7) 104(a) Citation No.
7073379 for a hole in the stopping at the number 30 crosscut; (8) 104(a) Citation No. 7073380
for rib rolls on the tight side of the belt at 13 locations; and (9) 104(a) Citation No. 7073381 for
rips in the guarding at the take-up pulley at the head of the E-14 belt. Ex. P-8.
32 FMSHRC Page 552

The unsealed combustible materials in three locations in the stoppings included exposed
paper and wood, and a lump of coal. Tr. 308. According to Kaczmark, when combustible
material is in a stopping without a sealant, it compromises the integrity of the stopping and will
be the first thing to catch fire, should heat make contact with it. Tr. 308. Sealant retards the fire
and will prevent it from spreading rapidly for at least an hour. Tr. 308. The combustible
materials appeared to have been present for over a week, because of the amount of dirt that had
accumulated on them and because of the compressed indentations on the wooden wedges, which
would have been installed for stability when the stoppings were put in place. Tr. 310-13.
Kaczmark stated that the scoops are sometimes parked in the crosscuts, and a possible ignition
source could be a battery on a scoop. Tr. 366-67. There was no scoop present in the area during
Kaczmark's inspection. Tr. 367.
Consol contends that the language of section 75.360 only requires that "hazardous
conditions" be recorded in the pre-shift examination report;:not safety or health violations, even
though an operator may choose to record them. It argues that conditions that are unlikely to
cause injury or illness are not hazardous and, because Kaczmark deemed these five underlying
citations as "injury or illness unlikely," the citations cannot support a violation of the standard.
Resp. Br. at 21. Consol proffers Kaczmark's own testimony, in which he states that when an
injury is unlikely to result, the condition is not hazardous. Resp. Br. at 21; Tr. 451-52.
I reject Consol's argument that, because a violation is unlikely to cause an injury or
illness, it is not a hazard. In essence, Consol is arguing that a violation must be at least
reasonably likely to result in an injury or illness in order to constitute a hazardous condition. The
Commission has previously rejected this argument. While examining subpart (b) of this
standard, the Commission has stated that ''the plain language ... of section 75.360(b) does not
specify that hazardous conditions are only those reasonably likely to result in serious injury."
Enlow Fork Mining Co., 19 FMSHRC 5, 14 (Jan. 1997). Section 75.360(f) also makes no such
qualification. Furthermore, although the standard does not define the term "hazardous
condition," the Commission, in discussing section 75.360(b), has held:
[B]ased on its dictionary definition, a "hazard" denotes a measure
of danger to safety or health. The Commission has approved the
definition of "hazard" as "a possible source-of peril, danger,
duress, or difficulty," or "a condition that tends to create or
increase the possibility of loss."

Id. (citations omitted). Therefore, while it may not have been reasonably likely that the
combustible materials in the stoppings would ignite, since there was no identifiable ignition
source in the vicinity, nor that the holes in the stoppings would expose :miners to gas or dust,
since the air was vented to the return without significant compromise to the stoppings, there was
a possibility that these incidents could occur, albeit low. Additionally, because mining had
substantially advanced past the cited areas, and there had been an appreciable build-up of dust
and dirt in the areas, as well as the tightness of the wedges used to secure the stoppings, I am
persuaded that the holes and the unsealed combustible materials in the stoppings existed prior to
32 FMSHRC Page 553

the pre-shift examination. I also find that the conditions were obvious, and that Consol has not
proffered any evidence proving otherwise. Consequently, I conclude that the conditions were
hazardous, obvious,· and should have been recorded in the pre-shift examination report.
Respecting the remaining four conditions, Consol argues that they do not support Order No.
7073382 because they, too, were not hazards. Kaczmark testified that the rib rolls obstructing
the clearance on the tight side of the belt had probably existed for more than a week since lateral
pressure from continued mining puts pressure on the ribs, which, over time, weakens and crushes
the coal, creating a rib roll. Tr. 298 .. According to Kaczmark, this is not a process that could
occur within a matter of hours, because it takes time for the ribs to crush the coal and roll in. He
further stated that the rolls were actually "higher than the belt itself," making them very visible
from the walkway side of the belt. Tr. 298-99. He described the obstructed walkway as slippery
and sitting between a solid block of coal on the one side, and a fast moving belt on the other side.
Tr. 295-98. This was a hazard, in his opinion, because miners have to walk on the tight side of
the belt daily to install monorail and replace rollers. Tr. 294-95, 417.
Consol asserts, to the contrary, that this violation was based on a safeguard issued to the
mine, and was not a hazardous condition, in and of itself. As previously stated, the tight side of
the belt is only traveled when maintenance is needed, and is not a travelway. Additionally; Huth,
testifying to the state of conditions at the time ofKaczmark's inspection, stated that the rib rolls
were not in any areas where monorail was being installed or would be in the near future. Tr. 576.
Monorail is installed a few blocks from the face, which was situated at the last crosscut, number
31 Yi. Tr. 577-78. Although Kaczmark deemed this a hazardous condition, Consol points out
that he gave the company one week to clean it up. Tr. 424-26. The fact that the violation may
have been based on a safeguard does not make the condition any less hazardous. Consol has
offered no evidence indicating that the rib rolls may have occurred after Despot's examination,
nor has it argued that the rolls were somehow concealed or difficult to spot by the pre-shift
examiner. In fact, Kaczmark credibly testified that the rib rolls were very visible from the wide
side of the belt. I find that the condition existed at the time of the pre-shift examination, that it
was obvious, and that the pre-shift examiner should have identified arid recorded it.
Kaczmark also concluded that the three rollers turning in loose, black coal had not
occurred after the pre-shift examination, because the belt had been running during the entire shift
and there were piles of coal fines in various locations along the belt. Tr. 323, 327. The
accumulation under the rollers was 12 inches long and 6-8 eight inches deep. Resp. Ex. R-2.
Additionally, Kaczmark testified that the belt was rubbing the stand with such friction that it
emitted a smell, which was a sign ofbeat. Tr. 323-24. In his opinion, continued heat would have
led to a belt fire. Tr. 324. As a result ofKaczmark's observation, Consol took the belt out of
operation. Tr. 324-25. After the belt was shut down, Kaczmark did not touch the rollers to feel
if they were hot. Tr. 387-88.
Consol argues that this condition could have been missed by any pre-shift examiner.
There are 528 rollers over the 1.5 mile stretch at issue. Out ofthe 528, there were only three
rollers touching accumulations. Tr. 598. Moreover, the condition was present on the tight side

32 FMSHRC Page 554

of the belt where workers only go to perform maintenance, and not the wide side, the travel side.
Tr. 379-380. Huth testified that it is company policy that the men, including the pre-shift
examiners, are not permitted to walk the tight side of the belt. Tr. 620.. To see rollers on the
tight side, Huth stated, one has "to get down on a knee and get low to see across," because the
"belt runs pretty close to the ground." Tr. 592; see also Tr. 381-82. When miners are conducting
pre-shift examinations, they periodically get down on bended knee to look at the tight side of the
belt. Tr. 592-93. Kaczmark admitted that the condition was not visibly apparent and stated that
he smelled the belt rubbing, which is what caused him to look down at the rollers on the tight ·
side. Tr. 389, 391-92. He went on to opine that it is possible that the pre-shift examiner could
have missed the condition because there may have been no smell several hours earlier and, thus,
it would not have caught his attention. Tr. 391-93. On the other hand, Huth testified that during
the inspection, he did not smell anything, nor did Kaczmark mention the smell. Tr. 590-91. As
support, Consol points to Kaczmark's and Huth's notes, neither of which make mention of any
smell. Tr. 388-390, 590-91. Kaczmark also acknowledged that he did not see any smoke. Tr.
388-89.
Although, it is likely that the condition existed at the time of Despot's pre-shift
examination, the record does not establish that the condition was obvious. The condition was on
the side of the belt that is n,ot routinely traveled, and was positioned such that one would have to
kneel down to see it. Kaczmark admitted that it was the smell that prompted his attention.
Although it can be challenging for a pre-shift examiner to identify all hazards, particularly in a
case such as this where the run is long and contains a high number of rollers, and where the
affected ones are operating on the less visible side of the belt, this condition has such potential
for harm that heightened attention must be paid to the examinations. Huth testified that, in
general, pre-shift examiners usually take one to two hours of the three hours allotted to complete
their examinations. Tr. 620-22. Especially in situations such as this, however, where the
condition of rollers on the travel side of the belt suggest that similar conditions may exist on the
tight side, exaniinen; should be more thorough. Therefore, I find that a more thorough
examination was required and, that the condition should have been identified and recorded in the
pre-shift report.
Kaczmark also observed two rips in the guarding at the take-up pulley. He believed that
the condition had existed for more.than one shift because of the blackened rips in the plastic
guard, which color would have been pure white when the ripping initially occurred. Tr; 317,
320-21. Because the miners travel over uneven, slippery bottom along the belt line, they are at
risk for trips and falls into the belt, which is moving at 300-400 feet per minute. Tr. 318, 322.
Consol counters that Kaczmark's contention, that discoloration of the rips is an indicator of how
long the condition existed, is unfounded. The company points out that, in Kaczmark's notes on
this citation, there is no notation of discoloration. Tr. 431--44. Kaczmark also failed to mention
discoloration in his deposition, when discussing how long the hazard had existed. Tr. 431-44.
Huth offered an alternative explanation, stating that the rips could just as well have been
discolored by a detached belt flapper coated with coal, as it flapped along as the belt ran.
Tr. 599-603. This could occur very quickly and could have happened at any time, including after

32 FMSHRC Page 555

the pre-shift examination. Tr. 601-02. I find Huth's explanation just as plausible as Kaczmark's
and, therefore, conclude that, from the evidence as a whole, there is no sure way of determining
when the rips occurred. Because they could have occurred subsequent to the pre-shift
examination, I conclude that this condition does not support the inadequate shift violation.
The final hazardous condition concerns a visible crack in the roof along a travelway.
Tr. 314. The crack was separated from the solid coal by nine inches, and ran 14 feet back into
the stopping in the number 23 Yi crosscut, a portion of which extended along the walkway.
Ex. R-2; Tr. 376-77. Kaczmark testified that the supporting straps were starting to show signs of
stress from the weight of the weakening roof. Tr. 373-74. He believed that the crack existed for
more than one shift, because rockdust had already settled into the crack and covered rock that
would have been shiny if the crack had been new. Tr. 314; Ex. R-2. This condition was
hazardous, the Secretary asserts, because it could have led to a roof fall over a travelway used by
mine examiners and belt shovelers. Tr. 315. Consolcounters that a roof fall was not reasonably
likely to occur because the support straps were still in place and the roof bolts were securely
implanted. Tr. 588-89; Resp. Br. at 21. The company also argues that the existence ofrockdust,
alone, is not sufficient to demonstrate that the condition existed prior to the shift in question. I
fmd that the condition was a hazard, that it was obvious, and that the presence of rockdust,
coupled with visible stress on the roof straps, make it more likely than not that the condition
existed at the time of the pre-shift examination.
I conclude that at the time of the pre-shift examination, there were open holes in
stoppings, holes containing combustible materials in stoppings, and rib rolls on the tight side of
the belt that should have been identified as hazardous conditions and recorded in the pre-shift
report. Likewise, although the rollers turning in coal accumulations on the tight side of the belt
may not have been obvious, and the roof supports may have been holding steady, Consol should
have identified the conditions as hazards and recorded them in the pre-shift report. Therefore, I
find that the Secretary has proven that Consol violated section 75.360(f).

B. Significant and Substantial
ill Mathies Coal Co., 6 FMSHRC 1,3-4 (Jan. 1984), the Commission set forth four
criteria thatthe Secretary must establish in order to prove that a violation is S&S under National
Gypsum: 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. See also Buck Creek Coal, Inc.
v. FMSHRC, 52 F.3d 133; 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861F.2d99,
103-04 (5th Cir, 1988), affg 9 FMSHRC 2015,2021 (Dec. 1987) (approving Mathies criteria).
The fact of the violation has been established. The focus of the S&S analysis here is
whether the violation was reasonably likely to result in an injury producing event. In U. S. Steel
Mining Company, the Commission provided further guidance:

32 FMSHRC Page,556

We have explained that the third element of the Mathies formula
"requires that the Secretary establish a reasonable likelihood that
the hazard contributed to will result in an event in which there is an
injury." We have emphasized that, in accordance with the
language of section 104(d)(l), it is the contribution of a violation
to the cause and effect of a hazard that must be significant and
substantial.

U S. Steel Mining Co., 7 FMSHRC 1125, 1129 (Aug. 1985) (citations omitted). Openings and
combustible materials in stoppings, rib rolls, combustible coal accumulations, and inadequate
roof support over travelways are serious conditions that could result·in injuries ranging from cuts,
bruises, sprains, broken bones and contusions to fatalities. All conditions presented discrete
safety hazards, e.g., slip and fall, the possibility of fire or explosion, and roof fall. If any of these
events were to occur, it is reasonably likely that injuries resulting to miners would be of a
reasonably serious nature.
An evaluation of the reasonable likelihood of injury should be made in the context 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. Elk Run Coal Co., 27 FMSHRC 899, 905
(Dec. 2005); US. Steel Mining Co., 6 FMSHRC 1573(July1984). Moreover, resolution of
whether a violation is S&S must be based "on the particular facts surrounding the violation."
Texasgulf, Inc., 10 FMSHRC 498, 501(April1998); Youghiogheny & Ohio Coal Co.,
9 FMSHRC 2007 (Dec. 1987).
It has been established that injury was unlikely to result from the open holes in the two
stoppings and the three stoppings filled with combustible materials. Furthermore, the three
stoppings with ~ombustible materials were also unlikely to result in injury since there was no
scoop present, nor any other identifiable ignition source. With regard to the rib rolls, I credit
Ruth's testimony andlind that a slip and fall hazard was not reasonably likely to occur because
the tight side of the belt is not regularly traveled, and the rib rolls were not in any areas where
monorail was being installed.
Respecting the rollers tlirning in coal accumulations, the Commission has established that
a coal accumulation violation is S&S where potential ignition sources are posed by, among other
things, frictional contact between belt rollers and accumulations, and the belt rubbing against the
frame. Mid-Continent Res., Inc., 16 FMSHRC 1218, 1222 (June 1994). Understanding that
there are a vast number of rollers along the E-14 longwall belt, some on the less obvious, tight
side, and the challenge this presents to pre-shift examiners, I, nevertheless, cannot overlook the
fact of the rollers that were turning in coal accumulations, and that this frictional contact was a
possible source of ignition. 4 If this condition had been allowed to persist, it is reasonably likely

4

On cross-examination, Kaczmark stated that there was no possibility that the coal
accumulations under the rollers were wet. However, at his deposition, he admitted that he did

32 FMSHRC Page 557

that it would have led to a fire or explosion. fu addition, the belt rubbing the structure could also
have generated a spark, thus, presenting another ignition source.
With regard to the crack in the roof, the "adequacy of particular roof support or other
control must be measured against the test of whether the support or control is what a reasonably
prudent person, familiar with the mining industry and protective purpose of the standard, would
have provided in order to meet the protection intended by the standard." Cannon Coal Co.,
9 FMSHRC 667, 668 (April 1987). As previously indicated, the straps supporting the roof were
showing signs of stress from the weight of the weakening roof. Huth conceded that the straps
''were bent down some from that piece falling," but stated that "that is relatively common for the
side of the strap," and that the straps were still in place, working as intended. Tr. 588:--89. The
bolts were also securely implanted in the roof and, according to Huth, if the supports were not
working, more of the bolts would have been visible. Tr. 589. Consequently, Consol asserts that
there was no reasonable likelihood of a roof fall. I am not persuaded. The extensive crack, along
with the signs of stress on the straps from the weakening roof, were indicative of adverse roof
conditions or, at the least, that the roof was changing, such that adjustments to the roof supports
were warranted. If normal mining operations had continued, uninterrupted, I find that the
condition would have been reasonably likely to result in a roof fall in an area where.miners
worked and traveled.
I conclude that the coal accumulations and the crack in the roof were reasonably likely to
result in injury causing events, and that the resulting injuries would be serious. I find that these
hazards, which Consol failed to adequately identify in its pre-shift examination, support the
Secretary's allegation that Consol's violation was S&S. Accordingly, I affirm the Secretary's
S&S finding.

C. Unwarrantable Failure
Unwarrantable failure is aggravated conduct constituting more than ordinary negligence.
Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is
characterized by such conduct as "reckless disregard," "intentional misconduct," "indifference,"
or a "serious lack of reasonable care." Id. at 2001-04; Rochester & Pittsburgh Coal Co.,
13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 52 F.3d at 136 (approving the
Commissions's unwarrantable failure test). The Commission has recognized the relevance of

not note the moisture level of the accumulations in his notes, and that it was indeed possible that
the accumulations were damp to wet. Tr. 384-85. At hearing, Kaczmark conceded that making
notations of everything he observes is important, because these factors are used in determining
the likelihood of a fire. Tr. 387. I do not find Kaczmark's testimony that the coal fines were dry
credible, because of his conflicting statements and his admission that he did not examine them
for moisture content. fu any event, even if the coal had been wet, the Commission has
recognized that wet coal can dry out and ignite. See Black Diamond Coal Mining Co.,
7 FMSHRC 1117, 1121(Aug.1985).
32 FMSHRC Page 558

several factors in determining whether conduct is "aggravated" in the context of unwarrantable
failure, such as the extensiveness of the violation, the length of time that the violation has
existed, the operator's efforts in eliminating the violative condition and; whether the operator has
been put on notice that greater efforts are necessary for compliance. See Consolidation Coal Co.,
22 FMSHRC 328, 331(Mar.2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb.
1994). The Commission has also considered whether the violative condition is obvious, or poses
a high degree of danger. Windsor Coal Co., 21 FMSHRC 997, I 000 {Sept. 1999) (citing
BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Warren Steen Constr., Inc.,
14 FMSHRC 1125, 1129(July1992); Quin/and Coals, Inc., 10 FMSHRC 705, 709 (June 1988);
Kitt Energy Corp., 6 FMSHRC 1596, 1603(July1984)). Each case must be examined on its
own facts to determine whether an actor's conduct is aggravated, or whether mitigating
circumstances exist. Eagle Energy, Inc., 23 FMSHRC 829, 834 (Aug. 2001) (citing Consol,
22 FMSHRC at 353). Negligence is the failure to meet the standard of care required by the
circumstances.
The Secretary argues that the inadequate pre-shift examination was-the result of Consol's
unwarrantable failure because the hazards missing from the report were extensive, obvious,
posed a high degree of danger, and existed long enough for miners to begin working in the
hazardous areas. Resp. Br. at l 0. The pre-shift examination report was signed by the foreman
and mine manager, putting Consol on notice of the conditions. I find, however, that there are
mitigating factors. The weight of the evidence shows that the coal accumulations on the tight
side of the belt were not obvious. There was no visible smoke to speak of: and fuspector
Kaczmark conceded that there may have been no smell at the time of the pre-shift examination.
It is also clear that, but for the smell of the rollers, Kaczmark, too, would have missed the cited
accumulations. Regarding the roof condition, although the straps were not in optimal condition,
they, and the roof bolts, were securely in place.
Consequently, I find that the Secretary has not met her burden of establishing aggravated
conduct, and that the violation was a result of Consol's moderate negligence, not its
unwarrantable failure to comply with the standard. Accordingly, the Order shall be modified to a
section 104(a) citation.
Citation No. 7071787
Order No. 7071787 was issued byMSHA Inspector Radolec for a violation of30 C.F~R.
§ 75.400 for combustible coal accumulations along the 3 North Number 1 main conveyor belt.
Ex. G-4; Stip.10. Section 75.400 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.

32 FMSHRC Page 559

30 C.F.R. § 75.400. Rodolec determined that the violation was highly likely to result in injury or
illness that would be permanently disabling, that the violation was S&S, that one person was
affected, and that the· operator's negligence was high. Ex. P-4. The Order was issued under·
section 104(d)(l) of the Act, alleging Consol's unwarrantable failure; subsequently, it was
modified to a 104(d)(l) citation. Rodolec described the "Condition or Practice" as follows:

An accumulation of combustible materials consisting of coal, coal
fines and coal dust exist[s] on the 3 North No. 1 Main Conveyor
Belt, starting at the end of the conveyor belt take-up and continuing
inby to number 5 Yz.crosscut. These combustible accumulations
measured from 6 feet wide by 25 feet long and from 1 inch to 12
inches in depth under the bottom conveyor belt and belt rollers,
behind the conveyor belt take-up. Additional accumulations of
combustible material also existed in the inby side of the E-1 belt
overcast to number 5 Yz crosscut. Where the combustible
accumulations contacted the bottom of moving convey[or] belt and
rollers. These combustible accumulations at number 5 Yz crosscut
measured 150 feet long by 12 to 18 inches wide and up to 10
inches deep .. These combustible accumulation[ s] were dry
powdery and somewhat compacted coal dust. Additional
combustible accumulations of coal existed under bottom rollers
that [sic] numerous locations between number 5 Yz crosscut to the
E-1 belt overcast. These combustible accumulations under the
bottom belt and conveyor belt rollers consisted of a shovel full to
needing extensive shoveling to completely remove the combustible
accumulations under numerous conveyor belt roller[s] and bottom
. conveyor belt.
Ex. P-4. Respondent challenges the S&S designation of the citation, as well as the unwarrantable
failure allegation. Resp. Br. at2-7.
A. Significant and Substantial
The fact of the violation has been established. Stip 10-16. The combustible coal
accumulations presented the possibility of a fire or explosion in the cited area. If either event
were to occur; it is reasonably likely that injuries resulting to miners, e.g., burns or smoke
inhalation, would be of a reasonably serious nature. The focus of the S&S analysis here turns on
the third element of the Mathies criteria, i.e., whether the violation was reasonably likely to result
in an injury producing event.
The Secretary argues that several factors support a conclusion that a fire or explosion was
reasonably likely to occur: that the accumulations consisted ofloose, dry coal dust along a belt
line with the belt running on packed and in loose coal; that the belt and rollers were in contact

32 FMSHRC Page 560

with the coal; that the belt was rubbing against the conveyor framework which had been cut in
two; that some of the accumulations were dry; that there were damp to wet accumulations being
dried by the rubbing of the belt and; that there was a friction source present. In support of her
position, the Secretary points to Amax, a case in which the Commission upheld the ALJ's finding
that an extensive accumulation of loose, dry coal and float coal dust along a belt line, with the
belt running on packed, dry coal and in loose coal, was a potential source of ignition and showed
a reasonable likelihood of an injury causing event. Amax Coal Co., 19 FMSHRC 846 (May
1997). As further support, the Secretary cites Mid-Continent, 16 FMSHRC 1218, in which the
Commission vacated the ALJ's finding that 12-inch high, mostly dry coal accumulations, that
were in contact with the belt and the belt rollers, as well as the conveyor framework that was
being rubbed by the belt, were not reasonably likely to result in a fire because the coal was of low
combustibility.
Consol argues that there was no likelihood ofa fire or explosion, and ifthere were, it was
only slight. The accumulations were identified in August, which, because of seasonal warm
weather, is when moisture is prevalent in mines in that region. Resp. Br. at 13-14. The moisture
in the air is absorbed by the coal and accumulations, which makes them less likely to ignite than
dry coal. Resp. Br. 14. Radolec's notes, contrary to his testimony at hearing, confirmed that the
first accumulation consisted of "damp, wet coal fines," and "damp coal dust." Ex. 9, p. 12;
Tr. 106. Consol asserts that this accumulation was 6 Yi to 7 feet below the belt, so there was no
friction to speak of or potential ignition source. Tr. 103. Additionally, with respect to the second
accumulation, the company argues that only three rollers were making contact with
accumulations over the entire 600 feet of inspected belt. Resp. Br. at 15; Tr. 112-13. Although
bearings in rollers can wear over time and produce heat caused by friction, Radolec admitted that
the rollers were not hot. Resp. Br. at 15; Tr. 112-13. The heat gun used by Overfield to gauge
the temperature of the affected rollers indicated that the rollers were only74 degrees,·wherea5
Radolec testified that the temperature of the coal would have to be over 500 degrees to ignite;
according to Workley, 300 degrees is the threshold temperature. Tr. 121-22, 650. Radolec also
conceded that the area where the belt was rubbing the belt structure was not hot from friction.
Tr. 123-24. There was also no possibility of ignition near the third accumulation because neither
the belt nor the rollers were rubbing the accumulations and the rollers were not generating heat.
Tr. 128; Resp. Br. at 16.
When examining the reasonable likelihood of a fire or explosion, the Commission
considers whether a "confluence of factors" was present based on the particular facts surrounding ·
the violation, including the extent of the accumulations and the presence ofpossible ignition
sources. Amax, 19 FMSHRC at 848 (quoting Texasgulf, Inc., 10 FMSHRC 498, 500-03 (Apr.
1988). The Commission also considers whether methane was present, and what type of
equipment was in the area. Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997) (quoting Utah
Power &Light Co., 12 FMSHRC 965, 970-71(May1990)); Texasgulf, 10 FMSHRC at 500-03.

In a factually similar case, the Commission determined that a violation was S&S where
there were "potential ignition sources such as frictional contact between the belt rollers and the
32 FMSHRC Page 561

accumulations, the belt rubbing against the frame, electrical cables for the shark pump, the
electrical devices for the longwall and one area in the longwall that was not being maintained."
Mid-Continent Resources, Inc., 16 FMSHRC at 1222. The Commission further found that it was
immaterial that there was no identifiable hot spot in the accumulations because continued normal
mining operations must be taken into account when evaluating the.circumstances. Id.
I reject Consol's argument that the violation was not S&S because coal is less
combustible during summer months when its moisture content is high. At best, damp to wet coal
may delay combustion but, as the Commission has previously concluded, "even absent a fire,
accumulations of damp or wet coal, if not cleaned up, can eventually dry out and ignite." Black
Diamond Coal Mining Co., 7 FMSHRC 1117, 1121 (Aug. 5, 1985). "A construction of the
standard that excludes loose coal that is wet or that allows accumulations of loose coal mixed
with noncombustible materials, defeats Congress' intent to remove fuel sources from mines and
permits. potentially datigerous conditions to exist." Id. Further, as Consol has done little more
than simply state that fire resistant belts were in use at the mine on August 9, without a more
detailed explanation of their retardant capabilities, I am unable to give this argument significant
weight. Consol has simply failed to support its assertion that the belts were unlikely to catch fire.
I do not believe, however, that there was an ignition source near the first accumulation,
which was situated 6 Yz to 7 feet below the belt. Tr. 103. Radolec conceded that there "was a
slim chance" of these accumulations igniting. Tr. 103-04. The only ignition source would have
been from the belt, itself, catching fire and flames falling onto the accumulations seven feet
below. Tr. 103. With regard to the third accumulation, neither the belt nor the rollers were
rubbing the accumulations, and the Secretary did not allude to any other source of :friction that
might have led to an ignition. Radolec, acknowledged that if a fire started, it was "not likely that
it would start there." Tr. 129; Furthermore, the Secretary asserts that there was energized
equipment in the area. However, the fact that electrical equipment could somehow result in an
ignition is in8ufficient to establish that the violation was S&S. See Amax Coal Co., 18 FMSHRC
1355, 1358-59 (Aug. 1996). Radolec failed to specifically identify any particular piece of
equipment that may have been a potential source of ignition, or any identifiable defects in any
equipment that may have produced a spark that would ignite these particular accumulations.
The second group of accumulations was extensive. Radolec testified that these
accumulations at the number 5 Yz crosscut measured 150 feet long, between 12 and 18 inches
wide, and up to 10 inches deep. Tr. 40, 111. fu other locations, there were accumulations of
float coal dust on the mine roof and ribs, and on top of the overcast, metal conveyor belt
structures, and electrical cables along the belt. Tr. 38. There were also three rollers turning in
the accumulations which were dry, powdery, and compacted, the bottom conveyor belt was
rubbing the coal dust for a distance of 150 feet, and the belt had cut in half one of the metal belt
stands. Tr. 40-41.
I find that the three rollers turning in the second group of accumulations, which were dry,
powdery, and compacted,. were a potential source of ignition. I further find that the bottom
32 FMSHRC Page 562

conveyor belt rubbing the coal and the conveyor belt structure was also a potential ignition
source. Consol's arguments that the rollers were not hot and only measured 72 to 74 degrees,
and that the belt and rollers were not rubbing the,accumulations atthe time ofRadolec's
inspection, do not take into account the likelihood of these conditions worsening, if not
corrected, as normal mining operations continued. The likelihood is further enhanced by virtue
of the float coal dust at the number 5 Yz crosscut, which could propagate a mine fire or explosion.
I find that the accumulations in question were reasonably likely to result in an ignition of a fire,
explosion or propagation thereof. Accordingly, I find that the violation was S&S.
B. Unwarrantable Failure
The Secretary argues that the violation was the result of Consol's unwarrantable failure
because the accumulations were extensive, obvious, and posed a high degree of danger. Resp.
Br. at 10. Additionally, the accumulations had been recorded in the pre-shift examination report
for the shift during which the MSHA inspection was conducted, as well as the report for the day
before, showing that the hazardous condition had existed for sufficient time to support an
unwarrantable failure finding. The pre-shift examinations were signed by the foreman and mine
manager, thereby putting Consol on notice of the condition.
It has already been established that the accumulations were extensive, and that is further
evidenced by the fact that it took six miners four hours to clean up the accumulations before the
conveyor belt could be restarted. Tr. 62. The accumulations were obvious because Radolec
spotted them on both the wide and tight sides of the belt while he was walking the belt line.
Tr. 38. Even if the pre-shift examiner had only spotted the accumulations on the wide side of the
belt, they were so extensive and obvious that he should have anticipated that there could be
. accumulations on the tight side as well, even if not readily visible to him. With regard to the
length of time that the condition existed, the 7th Circuit has concluded that extensive
accumulations that were present at least one shift, and not removed after one pre-shift
examination, provided an adequate basis to establish an unwarrantable failure finding. Buck
Creek Coal, Inc. v. FMSHRC, 52 F.3d 133,136 (7th Cir. 1995); see also Windsor Coal Co.,
21FMSHRC997 (Sept. 1999) (extensive accumulations existing for more than one shift
supported unwarrantable failure finding); Mid Continent Res.,Inc., 16 FMSHRC 1226, 1232
(June 1994) (failure to correct coal.accumulations recorded in pre-shift examination reports over
two days constituted unwarrantable failure). In this case, pre-shift examination reports indicate
that accumulations existed for at least two shifts.
Additionally, in examining an unwarrantable failure finding related to section 75.400, the
Commission has recognized that:
[P]ast discussions with MSHA about an accumulation problem
serve to put an operator on heightened scrutiny that it must increase
its efforts to comply with the standard. Enlow Fork Mining Co., 19
FMSHRC 5, 11-12 (Jan. 1997). Likewise, ahighnumberofpast
32 FMSHRC Page 563

violations of section 75.400 serve to put an operator on notice that
it has a recurring safety problem in need of correction and the
violation history may be relevant in determining the operator's
degree of negligence. Peabody, 14 FMSHRC at 1263-64.
Consolidation Coal Co., 23 FMSHRC 588, 595 (June 2001).
Consol was on notice that greater corrective measures were required to prevent coal dust
accumulations by virtue of the fact that it had engaged in numerous, regular discussions with
MSHA representatives about the issue in the past, several of which Inspector Newhouse testified
to having personally participated in. Furthermore, Consol had been cited for violating section
75.400 seventy-two times during the previous year. Tr. 172; see Consolidation Coal Co.,
23 FMSHRC at 595 (ALJ' s finding of no unwarrantable failure reversed where operator received
previous warning from MSHA regarding "borderline to substandard" clean-up efforts, and had
received 88 citations during the previous two years for violations of section 75.400); Amax Coal
Co., 19 FMSHRC 846, 851(May1997) (ALJ's finding ofunwarrantable failure affirmed where
MSHA had repeated discussions with mine management regarding section 75.400 compliance,
and operator received 98 citations over 10 months for violating section75.400).
The record also supports a finding that Consol was on notice of the violative condition by
virtue of the mine manager's signature on the pre-shift examination reports for August 8 and 9, in
which the conditions had been recorded. Consol admitted that its efforts consisted of only
attempting to clean the wide side of the belt, and not the tight side. Tr. 539, 553. It has also been
established that the violation posed a significant degree of danger, in that accumulations were
reasonably likely to lead to, or propagate a mine fire or explosion. Therefore, I find that
sufficient evidence exists to support a conclusion that the cited conditions were the' result of
Consol's unwarrantable failure.
Order No. 7073658

Order No. 7073658 is factually similar to Citation No. 7071787. The Order was issued
by MSHA Inspector Rihaley for a violation of section 75.400 for combustible coal accumulations
and/or coal fines along the Number 1 main belt conveyor. Stip. 28. Rihaley determined that it
was highly likely that the violation would result in an injury or illness involving lost work days or
restricted duty, that the violation was S&S, that five employees were affected, and that the
operator's negligence was high. The Order also alleges that the violation was the result of
Consol's unwarrantable failure to comply with the standard. Ex. P-6. The "Condition or
Practice" is described as follows:
There was an accumulation of packed coal fines under and
in contact with a bottom roller at 4 Yz crosscut on the # I Main belt
conveyor. Also at this location the bottom of this belt was rubbing
this accumulation for a distance of approximately 3 Yz feet and was
32 FMSHRC Page 564

dry and dusty where it was rubbing.
5 x-cut- stuck bottom roller with dry coal fines built up
around the roller and in contact with the belt.
Take-up pulley - turning in coal tight side, dry, 3 feet in
length, 2 feet width and height.
8 x-cut - half of bottom roller missing with belt rubbing
the structure and coal fines, also the next inby bottom roller was
turning in coal fines and a 2 foot section of belt. The fines were
dry and producing visible dust.
9 x-cut -. 1 stuck bottom roller and 3 inby rollers turning
in coal fines, also the belt was rubbing these fines at each location
for a distance of at least 1 foot.
10 Yz x-cut - packed coal fines in contact with a bottom
roller and 4 feet ofbel~ dry and producing visible dust.
13 Yz x-cut- 1 stuck and broken roller and another
turning in packed coal.
14 x-cut and 14 Yz crosscut-bottom rollers turning in
coal.
15 x-cut-bottom roller and from 8 to 10 feet ofbelt in
contact with dry coal fines, producing visible dust.
14 x-cut - coal spillage tight side, 40 feet in length, 2 to 3
feet width and 6 to 16 inches in depth. This condition also existed
at intermittent locations to inby 16 x-cut.
There was coal dust and coal float dust intermittently
deposited on the previously rockdusted surface of the #1 Main belt
from the head roller to inby 16 x-cut, this was mostly under and on
the tight side in the form of a film.
'
The operator may run this belt to remove the clean-up.
The fact of the violation has been established. Stip. 28-31. Respondent challenges the
S&S designation of the Order, as well as the unwarrantable failure allegation. Resp. Br. at 2-7.
A. Significant and Substantial
The focus here is the third element of the Mathies test, i.e., whether the violation was
reasonably likely to result in an injury producing event. Rihaley' s testimony describes extensive
accumulations along the Number 1 main belt conveyor and likely ignition sources. Tr. 217-31.
The rollers turning in coal accumulations at a minimum of five different locations afong
the belt, the belt rubbing the structure at the number 8 crosscut, and the belt rubbing coal fines at
five different locations, all present potential ignition sources. There were also stuck and broken
rollers which could generate sparks. I find that the accumulations were reasonably likely to result
in an ignition of a fire, explosion, or propagation thereof Accordingly, I find that the violation

32 FMSHRC Page 565 .

wasS&S.

B. Unwarrantable Failure
The accumulations were extensive, and existed at numerous locations along the Number
1 main belt conveyor. Although Rihaley failed to describe the dimensions of each accumulation
in questio~ there were several instances where the accumulations were high enough to reach the
bottom rollers. The accumulations were easily seen by Rihaley as he walked along the belt line
and, therefore, were obvious. Tr. 226. Much like the previous citatio~ several conditions were
recorded in prior pre"".shift examination reports, going back two shifts. For the same reasons
applied to Citation No. 7071787, lfind that sufficient evidence exists to support a finding that
the cited conditions occurred as a result of Consol's unwarrantable failure to comply with the
standard.

IV.

Penalty

While the Secretary has proposed total civil penalties in the amount of $19,300.00 for
these violations, the judge must independently determine the appropriate assessment by proper
consideration of the six penalty criteria set forth in section l lO(i) of the Act, 30 U.S.C. § 820(j).
See Sellersburg Stone Co., 5 FMSHRC 287, 291-92 (Mar. 1993), aff'd, 763F.2d1147 (7th Cir.
1984).
Applying the penalty criteria, I find that Consol is a large operator with a one-year history
of72 violations of30 C.F.R. § 75.400, which lfind to be significant As stipulated by the
parties, the total proposed penalty will not affect Respondent's ability to continue in business.
Stip. 8. I also find that Consol demonstrated good faith in achieving rapid compliance, after
notice of the violations.
The remaining criteria involve consideration of the gravity of the violations and Consol's
negligence in committing them. These factors have been discussed fully, respecting each
citation. Therefore, having considered the six penalty criteria, the penalties are set forth below.

Order No. 7073382
The Secretary proposed a civil penalty of $5,600.00 for this violation. It has been
established that this S&S violation of 30 C.F.R. § 75.360(f) was reasonably likely to cause an
injury that would result in lost workdays' or restricted duty, that it was due to Consol's moderate·
negligence. The Order shall be modified to a citation issued pursuant to section 104(a) of the
Act. Applying the civil penalty criteria, I find that a penalty of $2,500.00 is appropriate.

Citation No. 7071787
The Secretary proposed a civil penalty of $6,200.00 for this violation. It has been

32 FMSHRC Page 566

established that this S&S violation of 30 C.F.R. § 70.400 was highly likely to cause an injury that
would be permanently disabling, that it was due to Consol's high negligence and unwarrantable
failure to comply with the standard, and that it was timely abated. Applying the civil penalty
criteria, I find that a penalty of $6,200.00 is appropriate.

Order No. 7073658
The Secretary proposed a civil penalty of $7,500.00 for this violation. It has been
established that this S&S violation of 30 C.F.R. § 70.400 was highly likely to cause an injury that
would result in lost workdays or restricted duty, that it was due to Consol's high negligence and
unwarrantable failure to comply with the standard~ and that it was timely abated. Applying the
six civil penalty criteria, I find that a penalty of $7 ,500.00 is appropriate.
ORDER
WHEREFORE, Citation No. 7071787 and Order No. 7073658 are AFFIRMED, as
issued, Order No. 7073382 is AFFIRMED, as modified, and it is ORDERED that the Secretary
MODIFY Order No. 7073382 to a citation issued pursuant to section 104(a) of the Act,.
30 U.S.C. § 14(a), and reduce the degree of negligence from "high" to "moderate," and that
Respondent pay a civil penalty of$16,200.00, within 30 days of this decision. Accordingly, this
case is DISMISSED.

/1/~f2.~.

1a~efineR.. Bulluck

Administrative Law Judge
Distribution: (Certified Mail)
Andrea J. Appel, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center,
Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
Rodger L. Puz, Esq., Dickie, McCamey & Chilcote, P.C., Two PPG Place, Suite 400, Pittsburgh,
PA 15222-5402
/sdb

32 FMSHRC Page 567

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19t11 Street, Suite 443
Denver, CO 80202-2500
303-844-3577/FAX 303-844-5268

Mayl4, 2010
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner

Docket No. WEST 2008-1585
A.C. No. 48-01694-162385

v.
Elk Mountain Mine

ARCH OF WYOMING, LLC,
Respondent

DECISION ON CROSS-MOTIONS FOR SUMMARY DECISION
Before:

Judge Manning

This case is before me upon a petition for assessment of civil penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Act").
The Secretary filed a motion for summary decision under Commission Procedural Rule 67, 29
C.F.R. § 2700.67. In response, Arch of Wyoming, LLC ("Arch") filed a cross-motion for
summary decision. Both parties briefed the issues.
On January 10, 2008, Inspector Richard Dickson with the Department of Labor's Mine
Safety and Health Administration ("MSHA") issued Citation No. 7622039 under section 104(a)
of the Act alleging a violation of30 C.F.R. § 77.1605(k). The citation alleges:
The upper and lower drill benches, located in the North Elk Mtn.
Pit area, and being approximately 300' and 200' respectively, were
constructed without necessary berms on the outer edges. The
vertical drop from the top bench to the lower bench was estimated
to be 20'. The vertical drop from the lower bench to the natural
ground was estimated to be 12' tapering to O'. Drillers and blasters
and their vehicles are required to travel these drill benches
extensively and frequently, which exposes them to the hazard of
overtravel and overturning from these benches. Very high wind
conditions and lack of visibility also exist in this pit area.
Inspector Dickson determined that it was reasonably likely that the cited condition would injure a
miner and that the violation was significant and substantial ("S&S"). He also determined that
Arch's negligence was high. The safety standard provides that "[b]erms or guards shall be
provided on the outer bank of elevated roadways." 30 C.F .R. § 77. l 605(k). The Secretary
proposed a penalty of$2,106.00 for the citation.
32 FMSHRC Page 568

Inspector Dickson also issued Citation No. 7622040 alleging a violation of section
n.1713(a) because he believed that the conditions cited in the previous citation "should have
>een noticed and corrected by a certified person during the pre-shift examination of the pit and
mrrounding areas." He determined that it was unlikely that the cited condition would injure a
niner and that the violation was not S&S. He determined that Arch's negligence was high and
he Secretary proposed a penalty of $224. The standard provides that "[a]t least once during each
1Vorking shift ... each active working area and each active surface installation shall be examined
>Y a certified person designated by the operator to conduct such examinations for hazardous
:onditions and any hazardous conditions shall be reported to the operator and shall be corrected
>ytheoperator." 30C.F.R. §77.1713(a).
The parties stipulated to key facts and also introduced other documents as attachments to
heir briefs. The stipulations are as follows:
1.

Respondent Arch of Wyoming, LLC ("Arch") owns the Elk Mountain Mine
(Mine ID 48-01694) (the "Mine'}

2.

Arch is engaged in mining operations in the United States, and its mining
operations affect interstate commerce.

3.

The ALJ has subject matter and personal jurisdiction over the dispute in this case.

4.

Arch is subject to the jurisdiction of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. §§ 801-965.

5.

The Elk Mountain Mine is a surface coal mine.

6.

Elk Mountain utilizes an open pit mining method and uses drill benches to create
blast holes.

7.

The drill benches are constructed using a Caterpillar D-lON bulldozer.

8.

The benches are built to. provide the drill with a safe arid flat working surface on
which to drill.

9.

Once the drill benches are constructed, the shot pattern is then "staked" out in the
field on a grid pattern with each blast hole at the desired "burden and spacing"
(length and width); in this case, on a 25-foot x 25-foot grid.

10.

The shot pattern is designed based on a desired pit width and anticipated length of
shot which is determined by experience of drill pattern time.

32 FMSHRC Page 569

11.

The blast hole drillthen begins drilling out the "gridded" pattern in a logical
sequence that will enable the shooting crew to load each hole with explosives
following the drill.

12.

It is at this time that the shot pattern is barricaded and "signed" so that only
authorized personnel can enter the shot pattern.

13.

The signs read "DANGER - Blasting Area - Authorized Personnel Only."

14.

In order to load these holes, the ANFO truck needs to travel the line of blast holes
to load the ANFO into the hole from an auger-fed tube.

15.

The ANFO truck travels hole to hole at an obvious slow rate of speed since it only
travels 25 feet, stops, loads the hole, and then travels to the next hole.

16.

The shooters walk on the ground and load primers, delays, and shooting cord in
each hole prior to the ANFO loading procedure.

17.

Once a hole is loaded with primers, desired delays, shooting cord and ANFO they
can be backfilled with "stemming" which is usually the drill hole cuttings.

18.

This stemming will fill the remaining hole void once all explosives are in the hole
so that it is filled to the ground surface and no "void" exists.

19.

In most cases, a skidder is used to perform this backfill operation.

20.

This is done in a sequence where there are a logical number of holes to be
.· backfilled at the same time to allow for room for the skidder to work and not
interfere with the drilling or loading operations.

21.

This backfilling is performed so that no loaded blast hole is open at a shift's end.

22.

Once the entire shot pattern is completely loaded it is ready for detonation.

23.

All equipment and personnel, with the exception of the shooting crew, are
removed from the area.

24.

The shooting crew then ties all of the loaded holes together with shooting cord
and delays to blast the desired result.

25.

The entire shot pattern is then detonated from a safe distance.

32 FMSHRC Page 570

26.

The foreman will enter the area at least once each shift during the entire process as
outlined above to check on the drill, shooters, and inspect the area.

27.

The shooters seldom, if ever, enter the area in their vehicle (pick-up truck) since
everything they need is usually in the ANFO truck.

28.

Traffic is kept to a minimum in an active drilling/blasting pattern.

29.

The upper drill bench was approximately 300 feet long; and

30.

The lower drill bench was approximately 200 feet long.

31.

The vertical drop from the upper drill bench to the lower drill bench was
approximately 20 feet tapering to 0 feet.

32.

The vertical drop from the lower drill bench to the natural ground was
approximately 12 feet, tapering down to where the lower drill bench sloped into
the natural ground.

33.

The benches varied in width from 35 feet to 45 feet.

34.

Neither bench had berms at its outer edges.

35.

Arch was responsible for building and maintaining the drill benches at this
location.

36.

~oth the upper drill bench and the lower drill bench were divisions in the coal

seam formed by the process of cutting coal from the earth.
37.

[At] approximately 12:30 p.m. on January 10, 2008, the Mine Safety and Health
Administration ("MSHA") inspected the Mine.

38.

Richard Dickson inspected the Mine for MSHA.

39.

On January 10, 2008, there were two drill benches above the North Elk Mountain
mining pit at the Mine.

40.

MSHA issued Citation No. 7622039 to Arch on January 10, 2008, alleging a
violation of30 C.F.R. § 77.1605(k).

41.

Citation No. 7622039 terminated at 3:13 p.m. on January 10, 2008 after Arch
constructed a berm, approximately 2.5 feet high, along the front edge of both the
upper and lower drill benches.
32 FMSHRC Page 571

42.

MSHA also issued Citation No. 7622040 to Arch on January 20, 2008, alleging a
violation of30 C.F~R. § 77.l 713(a) because the record showing the on-shift
examination did not note the absence ofbenns on the drill benches.

43.

Arch was responsible for conducting the daily on-shift examinations at the Mine's
active working areas.

44.

Arch was also responsible for maintaining the record of the daily on-shift
examinations conducted at the Mine's active working areas.

45.

Citation No. 7622040 terminated at 3:30 p.m.

46.

The parties now dispute whether a drill bench at a surface mine is an "elevated
roadway" under 30 C.F.R. § 77.1605(k).

47.

Arch has never built berms on its drill benches.

48.

MSHA has never previously issued Arch any citations for berms or failing to
identify lack of berms at Elk Mountain.

49.

There has never been a piece of equipment of any kind falling or driving off a drill
bench at Elk Mountain.
II. BRIEF SUMMARY OF THE PARTIES' ARGUMENTS

A. Secretary of Labor.
The Secretary contends that the issue in this case is relatively simple: whether a drill
bench at a surface coal mine is an "elevated roadway" under section 77.1605(k). She maintains
that a drill bench is such an elevated roadway and that, as a consequence, Arch was required to
install berms on the outer banks of the drill benches at the Elk Motintain Mine. The Secretary
argues that the Commission has previously determined that a drill bench is an elevated roadway
under the similar safety standard applicable to metal· and nonmetal mines. El Paso Rock
Quarries, Inc., 3 FMSHRC 35 (Jan. 1981). Several Commission administrative law judges have
reached the same conclusion. The Secretary states that, when she promulgated that safety
standard, she did not exempt drill benches from the scope of the standard. Finally, the Secretary
maintains that her determination that a drill bench is an elevated roadway is reasonable and is
entitled to deference bythe Commission. The fact that Arch's drill benches had not been
previously cited for the lack ofbenns should not affect the validity of the citation.

32 FMSHRC Page 572

B. Arch of Wyomine.
Arch maintains that drill benches are not elevated roadways. The Secretary has not
defined the term "elevated roadway'' in her regulations. MSHA's "Haul Road fuspection
Handbook" defines elevated roadways to include roads used "to transport coal, equipment~ or
personnel." At least one Commission administrative law judge has determined that a bench is
not an elevated roadway provided that no vehicles transport coal, equipment, or personnel on the
bench. Peabody Coal Co., 6 FMSHRC 2530 (Nov. 1984) (ALJ). The drill benches at Arch are
distinguishable from the benches discussed in El Paso Rock Quarries. ·Access to· the benches at
Arch is controlled and limited. Haulage vehicles and through traffic are prohibited. Only the
drill, the explosives truck, and the skidder regularly travel on the drill benches. As a
consequence, the drill benches are working pfaces and not roadways. The Commission should
not defer to the Secretary's interpretation of the safety standard because the plain language of the
standard makes clear that it applies only to roadways and not to working places. Finally, it
argues that the citations should be vacated because the Secretary did not provide adequate notice
of her interpretation of the standard to Arch and other mine operators.

II. ANALYSIS WITH FINDINGS AND CONCLUSIONS
Section 2700.67 of the Commission's Procedural Rules sets forth the grounds for
granting summary decision, as follows:
A motion for summary decision shall be granted only if the entire
record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidaVits, shows:
(l).That there is no genuine issue as to any material fact; and
(~) That the moving party is entitled to summary decision as a
matter oflaw.
I find that there is no genuine issue as to any material fact and that the Secretary is entitled to
summary decision as a matter of law.

A. Citation No. 7622039•.
1. Fact of Violation.
In El Paso Rock Quarries, Inc., an MSHA inspector issued a citation because the operator
had allowed haulage trucks to be driven on a bench before berms were installed. 3 FMSHRC 36.
The judge affirmed the citation and the operator appealed on the basis that a bench is not an
elevated roadway. The Commission affirmed the judge and held that a bench is an elevated
roadway. In another contested citation at issue in the same case, the operator challenged a
citation that was issued on a elevated roadway that provided access to the fop of the quarry wall.
The operator contested the citation because the roadway was not used to haul rock, but was used
32 FMSHRC Page 573

to haul explosives and to provide access to areas which were to be drilled and blasted. The judge
vacated the citation on the ground that the standard only applied to roads used for loading,
hauling, and dumping and that the road was not used for any of those purposes. 1 The
Commission reversed the judge and held that hauling explosive materials is the kind of haulage
contemplated by the safety standard.
Several Commission judges have also determined that benches and the area above a
highwall can be elevated roadways, as that term is used in section 77.1605(k). S. &M.
Constroction, Inc., 19 FMSHRC 566, 576,..77 (March 1997) (AU); Peabody Coal Company, 12
FMSHRC 109, 114-16 (Jan. 1990) (ALJ). More recently, Judge Miller reached the same
conclusion. Black Beauty Coal Company, 32 FMSHRC ~ slip op. at 2-4, LAKE 2008-477
(March 25, 2010) (ALJ) (Pet.for disc. rev. granted by Comm., May 4, 2010).
Arch relies heavily on my decision in Higman Sand & Gravel, Inc., 24 FMSHRC 87,
104-07 (Jan. 2002) (ALJ). The facts in that case, however, differ significantly from the present
case. In Higman, the MSHA inspector cited the operator for not installing a berm along the edge
of a pond in the sand pit. An excavator operated at the edge of the pond to scoop out sand from
the pond, but the inspector determined that a berm was not required for this activity. The
inspector cited the company because a loader was operated in the area. The loader operator
loaded haulage truck~ with the sand that had been excavated from the edge of the pond. The
inspector also testified that he was not concerned with the haulage trucks because they did not
travel near the edge of the pond. He said that berms were required because the loader was
operated in the vicinity of the pond. I determined that the area in which the loader was operated
was not an elevated roadway and that safety standard did not apply. Id. I held that the cited area
was a ''working place," as that term is defined in section 56.2, rather than an elevated roadway.
. The loader worked in the area loading material into dump trucks. This area was not a roadway
but was the working place where material was being extracted from the pond.
Arch also relies on a decision by former Commission Judge John J. Morris in Peabody
Coal Company, 6 FMSHRC 2530, 2540-45 (Nov. 1984) (ALJ). In that case, Judge Morris
distinguished the facts in his case from the facts present in El Paso Rock Quarries and vacated a
citation issued for the operator's failure to install berms on its benches. The facts revealed that
trucks operated within 10 to 12 feet of the edge of the bench at the mine operated by El Paso
Rock Quarries. At Peabody's Black Mesa Mine, on the other hand, the benches were 120 to 140
feet wide and trucks did not operate any closer than 60 feet from the edge of the bench. Id. at
2541. The judge determined that these differences were "crucial." Id. at 2542.

In the present case, the stipulations establish that the benches were used as roadways.
The Elk Mountain Mine, a surface coal mine, uses drilling equipment to create blast holes. The
1

The safety standard for metal and nonmetal mines provides that "[b]erms or guards ·
shall be provided on the outer banks of elevated roadways." § 56.9300 (a). The heading for the
standard is entitled "Loading, hauling, dumping."
32 FMSHRCPage 574

benches are built using a bulldozer to provide the drill with a safe~ flat surface on which to work.
Once a drill bench is constructed, the shot pattern is staked out on a grid pattern with each blast
hole at the desired location. The holes are on a 25-foot by 25-foot grid.
The holes are drilled in a logical sequence and the shooting crew loads the holes with
explosives following the drill. The area is then barricaded and a warning sign is erected so that
only authorized miners can enter the area. The explosive material used, an ammonium nitrate
and fuel oil mixture known as ANFO, is brought onto the drill bench in a truck. The ANFO
truck travels the line of blast holes to load the ANFO into the holes from an auger-fed tube.· This
truck travels at a slow rate ·or speed since it must stop every 25 feet to load the next hole. The
shooting crew walks on the ground and install primers, delays, and shooting cord in each hole
before the ANFO is added. Once the hole is loaded with primers,· delays, shooting cord, and
ANFO, the holes are filled with stemming using a track vehicle called a "skidder." Drill hole
cuttings are typically used to fill each hole to ground level. Once the holes are loaded, all
equipment and personnel, except the shooting crew, leave the area. The shooting crew ties all of
the holes together and then the shot is detonated. Occasionally, the shooting crew uses a pickup
truck to enter the drill bench, but they usually ride in the ANFO truck. The upper drill bench was
about 300 feet long while the lower bench was about 200 feet long. The benches varied in width
from 35 to 45 feet.
I find that Arch's reliance on Higman Sand & Gravel and Peabody Coal to be misplaced
because they present significantly different factual situations from· the present case~ Arch points
out that at the Elk Mountain Mine vehicles do not travel along the benches to get from one area
of the mine to another nor do these vehicles transport material out of the area. In my decision in
Higman, I relied on a number of factors when reaching the conclusion that the area cited was not
an elevated roadway. The fact that vehicles did not use the area adjacenHo the pond to travel
from one area of the mine to another or that the loader did not transport material out of the area
were two factors I considered. They key fact, however, that differentiates that case from the
present case is that the cited area in Higman was clearly a working place, not a roadway. It was a
loading area for dump trucks. It is instructive to note that the MSHA inspector who issued the
citation at Higman did not believe that berms were necessary to protect the excavator or trucks
operating in the same area. He only required berms for the loader operator. ·
I am not bound by Judge Morris's decision in Peabody Coal and the facts there are quite
different as well. The judge credited evidence that vehicles did not travel anywhere near the edge
of the benches in that case.
Ill the present case, a drill, the ANFO truck, and the skidder travel along on the bench. A
pickup truck is driven on the bench in some instances. The fact that they do not transport
material out of the area is not determinative. These vehicles travel along the bench to drill holes
and load ANFO. The evidence establishes that the benches are 35 to 45 feet wide, are used as
roadways, and are elevated. It is well established that the safety standard is not limited to
roadways that are used by haulage vehicles that transport coal, equipment, or personnel. El Paso

32 FMSHRC Page 575

Rock Quarries, at 36. The record in the present case establishes that all the vehicles described
above enter the benches when drilling commences and that this same equipment is removed from
the benches before detonation of the explosives. When on the benches, the vehicles travel along
these benches as the holes are loaded. While it is true that the vehicles travel at a low rate of
speed and access to the benches is limited, those factors do not affect the status of the benches as
elevated roadways.

Arch also argues that the .citation should be vacated because it was not provided with
adequate notice of the Secretary's interpretation of the safety standard. I reject this argument.
The Secretary's intent has been clear since 1981. The language of the berm standard applicable
to metal and nonmetal mines is identical to that applied to coal mines. Commission judges have
accepted the Secretary's interpretation that the standard applies to benches, except in very limited
circumstances. The Secretary has provided the mining community with adequate notice of the
requirements of the standard. MSHA's "Haul Road Inspection Handbook" provides that the
cited safety standard "is appli<;able to all elevated roadways on mine property, including roads to
transport coal, equipment, or personnel, and regardless of the size, location, or characterization of
the roadways." (Sec'y Br. Ex. 5). Although this provision does not mention benches, it certainly
does not support Arch's interpretation that only "haulage roads" are covered by the standard.
Arch has never been cited for a violation of this standard on its drill benches at the Elk Mountain
Mine. I have considered this fact when evaluating the negligence of Arch.
Based on the discussion above, I find that the Secretary established a violation of section
77. l 605(k). The benches were elevated roadways and the outer banks of these roadways were
not provided with berms ..

2. Sipificantand Substantial Nature of the Violation; Gravity.
The Secretary argues that the violation was serious and S&S. She relies on the fact that
the large vehicles that must operate on the benches are required to maneuver in tight spaces. She
states that the types of vehicles operated on the bench were of special concern to Inspector
Dickson. Visibility is restricted from the cab of the bulldozer used to build the benches. (Sec'y
Br. Ex. 1, Declaration of Dickson ii 19). The ANFO truck is problematic because it is large and
has less room to maneuver than the other trucks on the benches. (Dickson ii 22). Inspector
Dickson believes that skidders are susceptible to tipping over on uneven terrain, and icy and
muddy conditions make them difficult to control. (Dickson ii 25). The mine is in Wyoming and
the ground can freeze and ice over in the winter. (Dickson ii 26).

An S&S violation is described in section 104(d)(l) of the 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." 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 ).

32 FMSHRC Page 576

The Commission has explained that:

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.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999}; Austin Power, Inc. v. Secretary ofLabor, 861
F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987)
(approving Mathies criteria).

In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985),the Commission
provided additional guidance:
We have explained further that the third element of the Mathies
formula ''requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in
which there is an injury." U.S. Steel Mining Co., Inc., 6 FMSHRC
1834, 1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d){l ), it is the .
contribution of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining Co., Inc., 6
FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc.,
6 FMS_HRC 1573, 1574-75(July1984).
This evaluation is made in terms of"continued normal mining operations." U.S. Sieel,
6 FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
I find that the Secretary established that the violation was S&S. The bench was rather
narrow. Large vehicles traveled along the bench. Given the environmental hazards present and
the types of vehicles that travel on the bench, it was reasonably likely that the hazard contributed
to by the violation would result in an injury of a reasonably serious nature. Although the vehicles
do not travel at a high rate of speed, they must maneuver in tight spaces in all types of weather.
Even a slight operator error could result in a vehicle tipping over the edge of a bench. The height
of the benches varied, but they ranged up to 20 feet. A very serious or fatal injury would likely
result if a vehicle went over the edge of a bench. Although no vehicle had ever slipped off the
32 FMSHRC Page 577

edge of a bench at the Elk Mountain Mine, the conditions presented a serious risk that such an
accident would occur assuming continuing mining operations. The violation was serious.

The inspector determined that Arch was highly negligent with respect to this violation. I
fmd that the operator's negligence should be reduced. I base this finding on the fact that the
mine has been in existence for several· years and it has been inspected by MSHA many times.
MSHA never previously issued a citation to Arch for a violation of this standard on its benches
and MSHA never otherwise advised the company that berms were required. Although the
Secretary is not required to advise mine operators what conditions violate her safety and health
standards, Arch reasonably relied on the fact that citations had never been issued at this mine or
at other surface coal mines owned by Arch Coal, Inc., for failing to have a berm on the outer
bank of a drill bench. See e.g. Dix River Stone, Inc.,· 29 FMSHRC 186, 203 (March 2007) (ALJ).
In addition, the Secretary's written interpretations do not address the question whether benches
are elevated roadways requiring berms. The failure of Arch to provide a berm was the result of
its moderate to low negligence.

B. Citation No. 7622039.
In this citation, Inspector Dickson alleged that the lack of berms on the outer edges of the
drill benches was "a safety hazard" and this hazard "should have been noticed and corrected by a
certified person during the pre-shift examination of the pit and surrounding areas." The safety
standard at section 77.l 713(a) provides that "[a]t least once during each working shift ... each
active working area and each active surface installation shall be examined by a certified person
designed by the operator to conduct such examinations for hazardous conditions and any
hazardous conditions shall be reported to the operator and shall be corrected by the operator." 30
C.F.R. § 77.1713(a).

It is clear that the safety standard requires that "hazardous conditions" be reported and
corrected. Such hazardous conditions are not limited to those conditions that violate MSHA' s
safety and health standards. In the present case, there is no allegation that an examination was
not conducted or that the certified person who conducted the examination was not competent to
conduct examinations for hazardous conditions. The only allegation is that the lack of berms on
the outer edge of the drill benches created a safety hazard and the examiner did not report this
condition to the mine operator and the condition was therefore never corrected.
The parties' arguments on this citation are rather superficial. The Secretary argues that
Arch properly examinedall other areas of the mine with the result that the rest of the mine was
hazard-free at the time of the inspection, but that the examiner should have noted the lack of
berms in the mine's examination records and steps should have been taken to install a berm.
Arch argues that, because the drill benches are not elevated roadways, a berm was not required to

32 FMSHRC Page 578

be installed at that location and no hazardous condition existed. It contends that the citation
should be vacated.
The real issue here is whether a citation for failure to conduct a competent pre-shift
examination should be affirmed in a situation in which the mine operator believed that the
condition was not hazardous based, in part, on the Secretary's lack of enforcement of the
underlying safety standard at the mine. I affirmed the berm citation and found that the failure to
install benns on the edge of the drill benches created a serious safety hazard. Despite previous
MSHA inspections, however, the condition had never been cited by MSHA. I have previously
vacated citations issued under section 56.18002, a similar metal/nonmetal standard, when the
Secretary simply relied on other citations issued during the same inspection to support the
citation alleging a violation of the examination standard. In these cases, the Secretary is unable
to establish that examinations were not being performed by a certified person, but she is trying to
prove that the examinations were inadequate based in the fact that the MSHA inspector issued
other citations at the mine. See Dumbarton Quarry Associates, 21 FMSHRC 1132, 1134-36
(Oct. 1999) (ALJ). Other judges have vacated examination citations in similar circumstances.
See Lopke Quarries, Inc., 22 FMSHRC 899, 911-12 (July 2000) (ALJ). In one case, I affirmed
an examination citation where the hazards cited by the MSHA inspector were "so obvious that I
[could] only conclude that the workplace examinations were rather cursory and superficial."
Clayton's Calcium Inc., 29 FMSHRC 230, 244 (March 2007) (ALJ).

In the present case, the lack ofbenns along the outer edge of the drill benches was
obvious. This condition had never been recorded by certified persons during pre-shift exams at
the mine because berms had never been present on benches. If an operator genuinely believes
that berms are not required on benches and genuinely believes that the lack of berms in that
location does not create a safety hazard, the qualified person cannot be expected to report this
condition where, as in this case, the operator has never been cited by MSHA for the condition.
Information at MSHA's website indicates that the mine has been operating since April 2006.
Arch states that MSHA has never required benns on drill benches at any of the other surface coal
mines owned and operated by Arch Coal, fuc. (Arch Br. 13).
Based on the above, I find that the citation should be vacated. The Secretary did not
establish that the qualified person failed to perform a competent examination of the active
working areas and each active surface installation at the mine, including an examination of the
drill benches.
III. APPROPRIATE CIVIL PENALTY
Section 1 lO(i) of the Mine Act sets out six criteria to be considered in determining
appropriate civil penalties. 30 U.S.C. § l IO(i). The mine was not issued any citations in the 24
months preceding January 10, 2008. (S. Br. 16; Ex. 8). In 2007, 10,555 tons of coal was
produced at the mine and Arch Coal, fuc., produced more than 10,000,000 tons of coal at all of
its mines in 2007. Arch Coal, Inc. is a large operator. The penalty assessed in this decision will
not affect the operator's ability to continue in business. The violation was abated in good faith.

32 FMSHRC Page 579

My findings on gravity and negligence are set forth above. Based on the penalty criteria, I find
that the Secretary's proposed penalty of $1,600.00 for Citation No. 7622039 is appropriate.
IV. ORDER
The motion for summary decision filed by the Secretary is GRANTED, in part. The
motion for summary decision filed by Arch ofWyoming, LLC, is DENIED, in part. Citation
No. 7622039 is AFFIRMED in all respects except the negligence attributed to·the operator is
reduced. Citation No. 7622040 is VACATED. ·Arch of Wyoming, Inc., is ORDERED TO
PAY the Secretary of Labor the sum of$1,600.00 within 40 days of the date of this decision. 2

Richard W. Manning
Administrative Law Judge

Distribution:
Matthew B. Finnigan, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, C0-80202 (Certified Mail)
Laura E. Beverage, Esq., and Christopher G. Peterson, Esq., Jackson Kelly PLLC, 1099 181h
Street, Suite 2150; Denver, CO 80202-1958 (Certified Mail)

RWM

2

PayI1lent should be sent to Mine Safety & Health Administration, U.S. Department of
Labor, Payment Office, P .0. Box 790390, St. Louis, MO 63179-0390.
32 FMSHRC Page 580

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, DC 20001

202-434-9981/tele 202-434-9949/fax

May 14, 2010
CNIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. KENT 2008-14
A~c. No. 15-09636-125440

v.
BLUE DIAMOND COAL COMPANY,
Respondent

Mine No. 77

DECISION
Appearances: Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, on behalf of the Secretary of Labor;
Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC,
Lexington, Kentucky, on behalf of Blue Diamond Coal Company.
Before:

Judge Zielinski

This case is before me on a Petition for Assessment of Civil Penalties filed by the
Secretary of Labor pursuant to section· 105 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815. The Petition alleges thatBlue Diamond Coal Company is liable for two
violations of the Secretary's Mandatory Safety Standards for Underground Coal Mines, and
proposes the imposition of civil penalties in the total amount of$21,200.00~ A hearing was held
in Hazard, Kentllcky, and the parties filed briefs after receipt of the transcript. At the hearing, the
parties advised that th.ey had reached a settlement agreement as to one of the alleged violations.
A motion seeking approval of the settlement has been filed, and will be granted. For the reasons
set forth below, I find that Blue Diamond committed the remaining violation, but that it was not
significant and substantial or the result of an unwarrantable failure, and impose a civil penalty in
the amount of$4,000.00.
Findings ofFact- Conclusions of Law
Robert Ashworth, an MSHA inspector, began an inspection of Blue Diamond's No. 77
mine, located in Perry County, Kentucky, on April 4, 2007. On April 5, he and fellow inspector,
Patrick Stanfield, returned to the mine to abate citations previously issued, and to conduct an
inspection in response to a phoned-fa safety complaint raising a number of issues, including
illicit drug use by miners, non-compliance with ventilation requirements, and roof control
violations. They traveled into the mine with Charles Williams, the mine superintendent They
reached the 011 Mechanized Mining Unit during the second shift, and gathered the miners so that
a search could be conducted for smoking materials and other contraband. None was found.
32 FMSHRGPage 581

During their travel through the section, they observed conditions that they determined violated
various safety standards. Citations and orders were issued for roof control violations, and failure
to comply with the approved ventilation plan.
Stanfield and Ashworth left the section shortly after midnight, in the early morning hours
of April 6. They walked inby along the belt entry, intending to terminate violations issued
several days earlier. The 011 section had just moved to a new panel, which was adjacent to the
previously mined panel. When Stanfield and Ashworth had traveled about five breaks, they were
in the area of the previously mined panel, and observed that there was no permanent stopping
separating the belt entry from the return in one of the old panel's entries. Stanfield issued Order
No. 7521760, alleging a violation of the applicable standard. Blue Diamond timely contested the
Order and the proposed penalty.
Order No. 7521760
Order No. 7521760 alleges a violation of30 C.F.R. § 75.333(b)(2), which requires that
permanent stoppings or other permanent ventilation control devices bebuilt and maintained to
"separate belt conveyor haulageways from return air courses."
The violation was described in the "Condition and Practice" section of the Order as
follows:
The# 11 conveyor belt (alternate escapeway off the 011/MMU) is not
being separated from the return. One crosscut inby SP:AD #3699, a permanent
stopping has not been installed to separate the # 11 conveyor belt from the return.
The next stoppinginby, where the old#l2 belt was located, has sealant applied on
the n<?n-pressure side. The ilexttwo stoppings inby marked crosscut #13 and #14
do not have sealant applied to either side or to cover the wood products used in
the construction of the stoppings. -The permanent return stopping marked as the
15th has the personnel door open.
Order #4220150 is issued for failure to comply with the approved
ventilation plan on the 011/MMU (failure to maintain the required 9,000 cfin at
the last open crosscut). The approved roof control plan requires only two open
crosscuts to be maintained. This mine is currently on a 103(i) spot inspection for
methane liberation. This condition has existed for a significant amount of time.
The 011/MMU was moved on or about 04/02/2007.
Ex. G-1.
Stanfield determined thatitwas highly likely that the violation would result in a fatal
injury, that the violation was significant and substantial ("S&S"), that eight persons were
affected, and that the operator's negligence was high. The Order was issued pursuant to section
104(d)(2) of the Act, and alleged thatthe violation was the result of the operator's unwarrantable

32 FMSHRC Page 582

failure to comply with the mandatory standard. 1 A specially assessed civil penalty, in the amount
of$19,000.00, was proposed for. this violation.
The Violation
As noted in the Order, the 011 section had been moved about three days prior to the
phone-complaint inspection. The old panel, consisted of seven.entries, and was just outby the
new panel. Both panels were mined at right angles to entries referred to as the "Daugherty
Mains" (DM). As depicted on the mine map, when facing inby and counting from left to right,
the first two entries of the DM were returns, entries #3 and #4 were neutrals, and entries #5, #6
and #7 were intakes. 2 The intake entries were designated as the primary escapeway, and the
neutral entries were designated as the secondary escapeway. The belt was located in entry #4.
Permanent stoppings were required to separate the intake entries from the neutral entries, and the
neutral entries from the return entries.
The entries of the new panel, like the old one, were mined off the #1 DM return entry, at
right angles to it. At the time of the inspection, six entries on the new panel had been started~ and
mining of the first crosscut had commenced with a right tum from entries #1 through #5. None
of the crosscuts had been cut through. Therefore, the #1 DM entry was the last open crosscut
(LOCC) for the new panel. When Stanfield and Ashworth arrived on the section it was not in
production. A shuttle car had broken down on a cable at the feeder, and the second shuttle car
had ben loaded and was awaiting access to the feeder. An electrician had traveled in with the
inspection party in order to repair the shuttle car.
The continuous miner was in the #1 entry. As Ashworth approached that entry to gather
miners for the search, he observed the continuous miner operator in the LOCC and a significant
amount of what.appeared to be dust suspended in the air in the intersection. When the miner
operator saw Ashworth, he started back into the #1 entry, ostensibly to hang line curtain.
Ashworth became concerned about inadequate ventilation, which was one of the allegations of
the phoned-in complaint. He instructed the miner to get his jacket and lunch bucket.and proceed
to the area near the feeder, where the smoke/drug search and a safety meeting were to be
conducted. The foreman searched the assembled miners, and Williams searched the foreman.
No smoking articles or drugs were found.
Ashworth and Stanfield then conducted an imminent danger run. Stanfield went inby to
the #6 entry and Ashworth started at the #4 entry and worked outby. Ashworth took an air
1

The parties stipulated that the predicate section 104(d)(l) order, Order No. 7550843,
issued on June 3, 2005, was in paid status, and that there had not been an intervening "clean" .
inspection of the mine. Tr. 8-9.
2

Air in the neutral/belt entries flowed inby. However, it could not be used to ventilate
the face, and was routed to the retrims, in part, through a tied-open man.door, which was being
used temporarily as a regulator.
32 FMSHRC Page 583

reading in the #1 DM entry. He testified that he took the measlirement between the #1 and #2
entries of the new panel. Tr. 145-47. However, his field notes report-that the reading was taken
between the #2 and #3 entries. Ex. G-4 at 9. He calculated that 7,611 cubic-feet-per-minute
(din) of air was moving through the entry, less than the 9,000 din required in the LOCC under
Blue Diamond's approved ventilation plan. Tr. 148, 165-66; Ex. G-4 at 9. As his notes reflect,
he repeated the measurement at 9:45 p.m. "at the same location," and it againwas inadequate.
Ex. G-4 at 9. Efforts were made to improve ventilation, and the third reading, taken at
10:00 p.m., was 9;648 c:fm, which was satisfactory. Ex. G-4 at 15. However, mining could not
proceed because the ventilation plan's required volume of 5,500 cfin on the return side of the
curtain in the # 1 entry could not be obtained. A measurement taken at 11 :00 p.m. yielded an air
flow of only 2,066 cfm at that location. Ex. G-4 at 15. Ashworth wrote an order based upon
those violations of the ventilation plan. That order is not at issue in this proceeding.

In the early morning hours of April 6, Stanfield and Ashworth traveled out of the mine by
walking the belt entry, the #4 DM entry. They intended to check on progress that had been made
to abate violations that had been written several days earlier during an electrical inspection,
including the presence of accumulations of coal near the #10 and #11 belts. Tr. 53-55. They
were accompanied by mine foreman Burley Adams, who had replaced Williams. It was during
this exit trip that Stanfield observed that there was no permanent stopping separating the #3 DM
neutral entry from the #2 DM return entry in the crosscut that was the extension of entry #3 of the
old panel. Stanfield issued Order No. 7521760, citing the missing stopping and two adjacent
stoppings that were inadequately sealed. Adams confirmed that the stopping was missing and
that other stoppings were improperly "plastered," as Stanfield noted in the order.
Blue Diamond concedes that there was no permanent stopping at the required location
and that the standard was violated. It challenges the S&S and unwarrantable failure designations.
Significant and Substantial

An S&S violation is described in section 104(d)(l) of the 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." 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'! Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:

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

32 FMSHRC Page 584

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. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary ofLabor, 861
F.2d 99, 103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021(Dec.1987)
(approving Mathies criteria).
In US. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission
provided additional guidance:
We have explained further that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood thatthe hazard contributed to
will result in an event in which there is an injury." US. Steel Mining Co., Inc.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(l ), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. US. Steel
Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); US; Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
This evaluation is made in terms of "continued normal mining operations." US. Steel,
6 FMSHRC at 1574. The question of whether a particular violation is significant and substantial
must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC
498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec~ 1987).
The fact of the violation has been established. A measure of danger to safety was
contributed to by the failure to install a permanent stopping. 3 The Secretary contends that the
missing stopping could have resulted in a methane explosion, failure to detect a fire, and
exposure to respirable dust. There is little question that a fire, explosion or serious dust exposure
could reasonably have been expected to result in fatalities or serious injuries. As is often the
case, the primary issue in the S&S analysis is whether the violation was reasonably likely to
result in an injury causing event, i.e., an explosion, failure to detect a fire, or significant exposure
to respirable dust.
The Secretary advances two arguments on the gravity of the violation. She maintains that
the missing stopping created a shortage of air at the working faces, creating a possibility of an

3

The effect of the conditions identified in the Order was to allow air to "short circuit"
from the neutral entries to the return entries, which is the primary thrust of the Secretary's
arguments on gravity and negligence. By far, the most significant contributor to that effect was
the missing stopping. While the inadequate sealing of the two adjoining stoppings contributed
some small component to that effect, the discussion herein is framed in terms of the missing
stopping.
32 FMSHRC Page 585 .

ignition or explosion and subjecting miners to respirable dust. Recognizing that there are
questions about the accuracy of Ashworth's air flow measurements, she asserts that "it is clear
that the air was cut off from the working section by this condition [the missing stopping]."
Sec'y. Br. at 7. She also argues that, since belt air was allowed to short circuit to the return, the
flow of air to the carbon monoxide ("CO") monitor at the tailpiece of the belt was reduced to an
extent that detection of a fire in that entry would have been delayed, resulting in serious injuries.
I find neither argument persuasive.
While a serious shortage of air flow at the working faces of the section could have lead to
accumulations of methane or other noxious gases and dust, the missing stopping did not have a
significant adverse effect on face ventilation. 4 Face ventilation for the 011 section was supplied
by intake air coursing inby in the #5, #6 and #7 DM entries. Fresh air also flowed inby in the
neutral entries, the #3 and #4 DM entries. However, it could not be used to ventilate the faces,
and was channeled directly into the return air courses, partially through the open mandoor that
was temporarily being used as a regulator. Although, the missing stopping allowed some of the
neutral air to short circuit into the returns, it did not reduce the flow of intake air to the faces. 5
Stanfield and Ashworth testified that the missing stopping would tend to lessen the pressure
differential between the intake and the return entries, reducing air flow to the faces. Tr. 112-14,
160-61. However, they made no attempt to quantify the supposed impact and, because of the
overall air flow pattern, it is highly unlikely that there was any significant reduction in face
ventilation attributable to the missing stopping.
The lack of adverse impact is evident from face air flow measurements taken while the
stopping was missing. When the old panel was being mined, several of its entries had to be open
to allow for ventilation and belt haulage. When the old panel was abandoned, permanent
4

While the #77 mine was subject to 15-day spot inspections, pursuant to section 103(i)
of the Act, because it had liberated over 250,000 cubic feet of methane in a 24-hour period,
methane was not prevalent in the mine around the time of the inspection. The 103(i) designation
had been made by the MSHA district manager on the basis of the results of testing that had been
done months earlier. Tr. 225. Williams testified that the mine had not liberated that quantity of
methane in the past 8-10 months, and that requests to remove the spot inspection designation had
been denied. Bottle samples taken by Ashworth on April 4 had contained 0.06% methane in the
#11 MMU and 0.0% in the #12 MMU. Tr. 162-64; Ex. R-5. The only methane found on
April 5, was 0.5% in the #1 entry of the new panel. Tr. 175. Methane is explosive at
concentrations between 5% and 15%. Other than that reading, preshift reports reflect that no
methane was found in any of the headings for examinations conducted on April 4 and 5.
Ex. R-8.
5

There was a relatively small leak in one of the stoppings separating the intake entries
from the neutral entries. A block was missing from a stopping, and a plastic bag had been placed
over the hole. Tr. 68-69, 112-14. A separate citation was written for th.at violation. The
Secretary does not argue that that condition adversely affected face ventilation with respect to
this violation.
32 FMSHRC Page 586

stoppings had to be built in the old panel entries between the #2 and #3 DM entries in order to
separate the neutral entries of the new panel from the return entries. Blue Diamond failed to
construct a permanent stopping separating the neutral DM entries from the return DM entries in
what had been the #3 entry of the old panel. Because the stopping was never built, all air
measurements on the new panel on April 4 and 5, were taken while the stopping was missing.
The preshift reports for that period show that air flow in the LOCC was measured at 14,375 cfm
to 15,400 c:fm, well above the required 9,000 c:fm. Ex. R-8. It was not until the suspect
measurements taken by Ashworth late on the second shift on April 5 that the flow dropped below
9,000 cfm. Tellingly, Ashworth, himself, had measured the air flow in the LOCC of the new
panel on April 4, and found it to be 14,706 cfm~ Tr. 139, 162-64. The stopping was missing at
that time. Yet the ventilation volume substantially exceeded the required 9,000 cfin, as it had for
several other measurements. If there was restricted ventilation at the face late on April 5, it was
not due to the missing stopping.
Blue Diamond contends that Ashworth's air readings are unreliable because he took them
in the wrong location, i.e., between the #2 and #3 entries on the new paneL They point out that
placement of ventilation controls allowed return air to flow through both the #1 and #2 DM
return entries at that point. Consequently, measurements of air flow in the #1 DM entry would
reflect only a portion of the return air flow. It points to the fact that Ashworth's notes report that
his measurements were taken between the #2 and #3 entries, and that a contrary indication was
not placed on his notes until his deposition was taken in December of 2008. Tr. 170-71.
Ashworth was adamant that he took the measurements between the #1 and #2 entries, and that
his notes are erroneous. Tr. 166-69. There is also conflicting testimony on whether the error was
called to his attention. Williams testified that he told Ashworth he was taking his measurement
in the wrong location. Tr. 245-46. Ashworth testified that no one told him he was measuring in
the wrong place. Tr. 152.
Ashworth is_an experienced inspector and had 18 years of mining experience prior to
joining MSHA. Tr. 132. He should have known the correct location to take the air reading, and
it is unlikely that he would have taken it in the wrong location, although the fact that the section
was in the initial stages of development created the potential for confusion .. Tr. 148-49.
However, his notes, made contemporaneously with the inspection some three years ago, clearly
state that the measurements were t*en between the #2 and #3 entries, which'would have yielded
inaccurately low measurements. The marked difference between Ashworth's April 5 readings
and the numerous readings in the range of 14,000-15,000 cfm on April 4 and 5, including
Ashworth's own reading of April 4, cannot be explained by the fact that the stopping was
missing. On this record, the only explanation for the discrepancy is that the :readings were not
taken in the correct location.
The Secretary also makes more than can reasonably be made of the evidence regarding air
flow at the CO monitor at the end of the belt. She argues that the missing stopping allowed belt
air to short circuit and not pass by the CO monitor at the belt tailpiece, thereby significantly ·
impairing the monitor's ability to detect a fire. Sec'y. Br. at 8. The missing stopping certainly
allowed some amount of air from the neutral entries to short circuit into the return. However,
32 FMSHRC Page 587

there is no evidence that it resulted in an inadequate flow of air at the CO monitor. Stanfield
took no air readings at that location, and did not know ifthe required 50 feet-per-minute of flow
was provided, or if air was short circuiting at the CO monitor. Tr. 102. Ashworth could not
recall observing any problems with the CO monitoring system. Tr. 175-76. If there were a
serious question about the volume of air flow at the CO monitor, it is reasonable to expect that
measurements or some enforcement action would have been taken, as with other perceived
violations. The Secretary also argues that the open mandoor, being used as a regulator, was
"similar" to a condition that existed during a belt fire at the mine around 2006. Sec'y. Br. at 8.
However, that is not the case. In the 2006 fire, which apparently did not result in any injuries, a
mandoor had been left open near a head drive, allowing air to bypass a CO monitor. Tr. 7 4-77.
Here, the mandoor/regulator was on the section at the tailpiece of the belt, in or near a location
where.a regulator was supposed to be located; to allow neutral air to flow into the return without
going to the face. Tr. 102-03. While a mandoor is not supposed to be used as a regulator, there
is no evidence that it did not effectively function as such.
The Secretary's CO monitor argument on gravity is predicated on a fire occurring in the
belt entry. She points to the fact that the mine had experienced belt fires in 2001 and 2006, and
that citations had been issued for accumulations along the belt and at the feeder, and for a
defective cable near the feeder, creating the potential for a fire. However, she fails to address the
fact that the inspectors determined that those violations were unlikely to result in injuries, and
that there is no evidence that the potential ignition source was in proximity to the accumulations.
Tr. 58-59, 92-94. In addition. Stanfield testified that, while an uninsulated cable may arc if it is
grounded, it is not "real common." Tr. 58-59. Assuming the fact of a belt fire, itself an unlikely
event, there is no evidence that the ability of the CO monitoring system to detect a fire was
impaired to any appreciable degree, or that an injury was reasonably likely to result.
Upon consideration of all of the above, I find that the Secretary has not met her burden of
proving that the·violation was S&S. I find that the violation was unlikely to result in lost work
days or restricted duty injuries.
Unwarrantable Failure - Negligence
In Lopke Quarries; Inc., 23 FMSHRC 705, 711 (July 2001 ), the Commission reiterated
the law applicable to determining whether a violation is the result of an unwarrantable failure:
The unwarrantable failure terminology is taken from section 104(d) of the
Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in
connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec.
1987), the Commission determined that unwarrantable failure is aggravated
conduct constitutingmore than ordinary negligence. Id. at 2001. Unwarrantable
failure is characterized by such conduct as "reckless disregard," "intentional
misconduct," "indifference," or a "serious lackofreasonable care." Id. at
2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991)

32 FMSHRC Page 588

("R&P"); see also Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir.
1995)] (approving Commission's unwarrantable failure test).
Whether conduct is "aggravated" in the context of an unwarrantable
failure analysis is determined by looking at all the facts and circumstances of each
case to see if any aggravating factors exist, such as the length of time that the
violation has existc;id; the extent of the violative condition, whether the operator
has been placed on notice that greater efforts are necessary for compliance, the
operator's efforts in abating the violative condition, whether the violation is
obvious or poses a high degree of danger, and the operator's knowledge of the
existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353
(Mar. 2000) ... ; Cyprus Emerald Res. Corp., 20 FMSHR.C 790, 813 (Aug.
1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material
Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC
192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261(Aug.1992);
BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quin/and
Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts and
circumstances of each case must be examined to determine if an actor's conduct is
aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at
353. Because supervisors are held to a high standard of care, another important
factor supporting an unwarrantable failure determination is the involvement of a
supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar.
1998).
The Secretary argues that the violation was the result of Blue Diamond's unwarrantable
failure because it was obvious, had existed for several shifts, should have been discovered by
several mine ex~ers, and posed a high degree of danger. Blue Diamond counters that the
condition was not obvious, it had no actual knowledge of it, it existed only for one full shift and.
portions of two others, and it did not pose a danger to miners.
Production commenced on the second shift on April 4, and the stopping was required to
be in place at that time. Production also occurred on the first and second shifts on April 5. Blue
Diamond argues that the violation existed only for one shift, and portions of two others. While
correct, that is a significant period of time.
The move to the new panel started on April 2, and production resumed on the second
shift on April 4. Mine foreman Adams supervised the second shift on April 3, during which
some of the required stoppings were built, and material for other stoppings was distributed. He
instructed the oncoming midnight shift that the remaining stoppings needed to be built. Adams
substituted as section foreman on the second shift on April 4. He did not personally verify that
the stoppings had been built, and no one told him that they had been built. Tr. 214-15. He
believed that the required permanent stoppings had been constructed because he had advised the
previous midnight shift to do so, and the first shift had run production. He measured air flow of
approximately 15,000 cfin in the LOCC, and he did not observe any other problems. Tr. 206.
32 FMSHRC Page 589

He later conducted the preshift examination for the oncoming third shift between the hours of
8:30 and 9:30 p.m., and measured 15,310 cfin of air flow in the #1 DM entry, just outbythe #1
entry of the new panel. Tr. 201-04~ Ex. R-8. He also found no methane in any of the new panel
headings. Ex. R-8.
Stanfield believed that "numerous" examiners had failed to discover the. condition.
Tr. 81. The belt was required to be examined on every production shift, and an examination of
the return was required weekly. Consequently, the condition was not discovered by the belt
examiner on the second shift on April 4, or the belt examiners on the first and second shifts on
April 5. Stanfield believed that the outby examiner, inspecting the return, should have made sure
to check the stoppings because of the recent move. Tr. 81. He believed that he had seen a
notation in the outby exam book that the exam had been conducted on April 5. Tr. 95. However,
he could not recall when he had seen the book, and he had not listed the outby exam book among
the records that he reviewed in conjunction with the inspection. Tr. 95-97. He conceded that he
could not be sure that an outby examination had been conducted in the area of the violative
condition while it existed. Tr. 96.
The belt line had to be examined on every production shift, i.e., on the first and second
shifts. Examinations were performed on the second shift on April 4 and the first shift on April 5.
It is unclear whether the belt exam for the second shift on April 5 had been conducted prior to the
inspection. Charles Hensley was the belt foreman on the day shift. Hensley's first post-panelmove examination of the #11 belt occurred on April 5. The brattice line, the line of permanent
stoppings, was between the #2 and #3 DM entries. The belt was in the #4 DM entry.
Consequently, the location where the stopping was supposed to have been constructed was about
100 feet away from where Hensley traveled. Tr. 183-84. It was dark where the stoppings were
supposed to be located, and there was gob piled up to within about one foot of the mine roof in
some of the entries of the old panel, between the #4 and #3 DM entries. Tr. 184-86. Hensley
could not see, all of the stoppings and did not notice any missing stoppings or any of the other
defects noted in the order. He believed that it was the section foremen's responsibility to make
sure that the required stoppings were in place before starting to mine. Tr. 190.
George Abner, who no longer worked for Blue Diamond when he testified, was the mine
examiner during the pertinent period, and performed weekly inspections of all outby areas. He
typically would travel long distances in a "buggy" and, in the area of the violation, would have
traveled in the #1 DM entry, next to the "wall," because he had to inspect seals at various points.
He did not recall when he performed the weekly inspection in the area of the missing stopping.
The outby book, where the inspections would have been recorded, was unavailable at the
hearing. 6 He believed that if he had failed to note a missing stopping during an examination and

6

The book was apparently destroyed in the normal course of business. Because the
book was not maintained by Blue Diamond, the Secretary urges that an adverse inference be
drawn on the issue of whether the outby examination was conducted while the section was in
production and the stopping was missing. For the reasons advanced by Blue Diamond, I decline
32 FMSHRC Page 590

a citation or order was issued, Williams would have reprimanded or disciplined him, and he did
not recall any such incident. Tr. 122-23. Abner also believed that it was the section foreman's
responsibility to install required stoppings and to assure that that was done. Tr. 126. Williams
testified that, other than weekly examinations by the outby foreman, no one traveled the return.
He recalled looking at the outby book with Abner shortly after the Order had been issued, and
believed that Abner's examination had been conducted earlier in the week, before the move had
been completed. He con.finned that he would have _disciplined or "consulted" Abner, had he
failed to notice that a required stopping was not in place, and he did not do so. Tr. 222-23.
The Secretary contends that the violation was obvious, which it would have been to
anyone standing at that location. However, it was not obvious to the section foremen, who were
not in a position to have seen it, and who did not suspect a problem because there was ample
ventilation at the faces. The belt examiners, at least two of whom made examinations on
production shifts while the violation existed, did not see the missing stopping. It was not
obvious from the belt examiners' route of travel. The Secretary argues that the violation was
obvious because Stanfield observed it while walking along the belt while his mind was on other
things. Sec'y. Br. at 12-13. However, Stanfield testified that he maywell have been specifically
looking for the stoppings because he was aware of the recent panel move and the inadequate air
flow readings, and questioned whether a missing stopping could have caused the problem.
Tr. 61.
As evidenced by the S&S discussion, the violation did not pose a high degree of danger to
miners. It did not significantly affect ventilation on the working section. Blue Diamond had no
direct knowledge of the violation, and had not been put on notice that greater efforts were needed
for compliance. The violation was promptly abated.
Considering all of these factors, I find that the violation was not the result of Blue
Diamond's unwarrantable failure to comply with the mandatory safety standard. While Blue
Diamond did not have direct knowledge of the violation, it should have known ofit. Placement
of critical ventilation controls in conjunction with a move of a section is ari important task, the
completion of which should have been verified. Because placement of such controls is required
prior to commencing production, the section foreman initiating production on the new panel
should have personally made sure that the stopping was in place, as several witnesses opined.
It is not apparent that Blue Diamond had assigned that responsibility directly, or whether the
assigned person failed to discharge the responsibility. In either case, Blue Diamond's negligence
was high.
The Appropriate Civil Penalties
Blue Diamond is a medium-sized operator, with a large controlling entity. The
assessment data reflects that it averaged 2.0-2. l violations per inspection day during the relevant

to draw such an inference. Resp. Br. at 7 n.4; Resp. Rply. Br. at 2-3.
32 FMSHRC Page 591

period, a relatively high incidence of violations. Blue Diamond does not contend that payment of
the proposed penalty will affect its ability to continue in business. The violation was promptly
abated.
Order No. 7521760 is affirmed. However, the gravity of the violation was found to be
less serious than alleged, including that it was not S&S. In addition, the violation was not the
result of Respondent's unwarrantable failure. Rather, its negligence was high. A specially
assessed civil penalty of $19,000.00 was proposed by the Secretary. The lowering of the levels
of negligence and gravity justify a reduction in the proposed penalty. I impose a penalty in the
amount of$4,000.00, upon consideration of the above and the factors enumerated in section
11 O(i) of the Act.
The Settlement
The parties have moved for approval of a settlement agreement as to Citation
No. 7553882. It is proposed that the penalty be reduced from $2,200.00 to $1,540.00. I have
considered the representations and evidence submitted and conclude that the proffered settlement
is appropriate under the criteria set forth in section 11 O(i) of the Act.

ORDER
WHEREFORE, the motion for approval of settlement is GRANTED, and it is
ORDERED that Respondent pay a penalty of$1,540.00for Citation No. 7553882.
Order No. 7521760 is modified to a citation issued pursuant to section 104(a) of the
Act, and is AFFIRMED, as so modified, and Respondent is ORDERED to pay a civil penalty
in the amount of $4,000 .00 for that violation.
Respondent's payment of civil penalties in the total amount of $5,540.00 for the settled
and contested violations shall be made within 30 days.

32 FMSHRC Page 592

Distribution (Certified Mail):
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219-2440
Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 2333 Alumini Park
Plaza, Suite 310, Lexington, KY 40517

32 FMSHRC Page 593

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington. D.C. 20001

May 18, 2010
SECRETARY OF LABOR,
MlNE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on behalf :
of CHRISTOPHER L. ABEYTA,
Complainant

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. CENT 2010-584-D
Denv-CD 2010-08

v.
SAN WAN COAL COMPANY,
AND ITS SUCCESSORS
Respondent

MlNEID 29-02170
San Juan Mine 1

DECISION
AND
ORDER OF TEMPORARY REINSTATEMENT
Appearances: Michael D. Schoen, Esq., Office of the Solicitor, U.S. Department of Labor,
Dallas, Texas, for Applicant;
Brian K. Nichols, Esq., Modrall Sperling Roehl Harris & Sisk, P.A.,
Albuquerque, New Mexico, for Respondent.
Before:

Judge Hodgdon

This q1se is before me on an Application for Temporary Reinstatement brought by the
Secretary of Labor, on behalf of Christopher L. Abeyta, under section 105(c) of the Federal Mine
Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c). The application seeks
reinstatement of Mr. Abeyta as an employee of the Respondent, San Juan Coal Company,
pending final disposition of the discrimination complaint he has filed with the Mine Safety and
Health Administration (MSHA) against the company. 1 A hearing on the application was held on
April 21, 2010, in Farmington, New Mexico. For the reasons set forth below, I grant the
application and order Mr. Abeyta's temporary reinstatement.

Summary of the Evidence
On March 2, 2010, Abeyta filed a discrimination complaint with MSHA stating that he
had been discharged from San Juan on February 23, 2010, and alleging that the discharge was

1

It does not appear that the Secretary has completed investigation of Mr. Abeyta's
complaint. Accordingly, there is no Complaint of Discrimination before the Commission.
32 FMSHRC Page 594

"retaliation for issuing complaint to MSHA on Feb. 11, 2010 ...." (Govt. Ex. 1.) At the
hearing, he testified that he began working for San Juan as an Electrical Projects Engineer on
September 8, 2009. (Tr. 43, 45.)
Abeyta further testified that at a February 8, 2010, meeting with Chuck Wilson, his
immediate supervisor, Marilyn King, a Labor Relations Advisor from Human Resources, and
Steve Pierro, the Belt Coordinator, he informed them of a problem with "arcing" at the power
centers and the "inappropriate" use of capacitors on the long wall. (Tr. 60-61.) At the end of the
meeting, it was determined that Abeyta would be "[h]eld out of service pending further
investigation." (Tr. 66, Govt. Ex. 8.) Abeyta was subsequently informed that he was to attend
another meeting at the company's Farmington office on February 11. (Tr. 68.) As a
consequence, he sent an e-mail to Marilyn King on February 10, which stated:
I am still waiting for a meeting agenda for tomorrow's meeting.
I also informed you of my concerns for the lack of safety,
professionalism and harassment of Chuck Wilson and Mike Fidel,
not only to me but to the whole department.
The resolution I have requested is to work for someone who has
electrical engineering competence and has the company's interest
of safety and professionalism.
As I'm sure you are aware we are in one of the most dangerous
occupation [sic] and safety should be our primary goal not
production. We are subject to spontaneous combustion in our
underground coal mine. There has been a history of arcing fa our.
underground switch houses and power centers. I gave you a copy
of a root cause analysis for PC-20 with my recommendation with
feedback from SMC. This is just one major example of Chuck
Wilson's disregard for safety by doing nothing. As recent as last
saturday [sic] night a mechanic smelled something burning around
East Mains SW4, SW-4 had been arcing. If my recommendations
had been implemented we would have detected this and not
potentially start our mine on fire.
Chuck is also having the apprentices doing inspections and having
Ed Neff sign them off If audited by MSHA do you believed Ed
can be in so many places at once?
We as a company need to review what Chuck has been aware of
and has chose [sic] to do nothing for the High Voltage monthly
breaker checks for the last year. MSHA could potentially shut us
down by us not doing this as per our requirements of
permissibility.
Another example of the disregard for safety by Chuck Wilson is
the inappropriate use of the capacitor banks for the long wall. I
have this documented with recommendations which were
32 FMSHRC Page 595

presented to Chuck.
These are very serious safety issues described above and need to be
included in our agenda when we meet.
Please reply back with the agenda of tomorrow's meeting. If you need
more time to present an agenda please reschedule tomorrow's meeting, it
is imperative that the next meeting we will be addressing all the
appropriate issues to include recommendations of the ERP requirements of
Mine Radio and miner location and GVB CH4 flows and control.
If you do not take action to resolve these issues I no longer want to
work for BHP and want a severance package thru [sic] July 2010.
(Govt. Ex. 3.) (Paragraphs not indented in original.)
Abeyta sent another e-mail to King that night. It stated:
It is 10:00 PM and I haven't received a meeting agenda for
tomorrows [sic] meeting to assure all my concerns are going to be
addressed. At this point I don't feel comfortable to meet with BHP
without legal council [sic] present. I will let you know when I
have chosen my legal council [sic]. I received a call this evening at
home and was told today that Chuck Wilson stated he terminated
me for insubordination.. I would caution Chuck for legalities for
Defamation of Character [sic].
I would advise someone from legal to contact me to discuss.
(Govt. Ex. 4.) Abeyta did not attend the February 11 meeting. {Tr. 69.) He did, however, file a
103(g) compfaint, 30 U.S.C. § 813(g), with MSHA on that date. 2 {Tr. 84, Govt. Ex. 1.)
Abeyta did attend a meeting with Chuck Wilson, Mike Fidel and Marilyn King on
February 12, 2010. He testified that he again brought up the four safety concerns set out in his email to Marilyn King and brought up an additional safety concern "about the accumulation of
coal dust inside of the load centers." {Tr. 71.) He said he also informed them that he had filed a
complaint with MSHA. (Tr. 84-:85.)
On February 23, 2010, Abeyta was terminated by San Juan. The reasons for his
termination, set out in his letter of termination, were given as follows:

2

Section 103(g)(l) provides, in pertinent part, that: "Whenever ... a miner ... has
reasonable grounds to believe that a violation of this Act or a mandatory health or safety standard
exists, or an imminent danger exists, such miner ... shall have a right to obtain an immediate
inspection by giving notice to the Secretary or his authorized representative of such violation or
danger."
32 FMSHRC Page 596

Effective immediately you are terminated for the following
infractions of San Juan Coal Company's (SJCC) General Rules of
Conduct (GRC), provided to you during your employment
orientation.
GRC Basic Principles #land 2 and GRC rule #10y ou admitted to seeing combustible material inside an
electrical load center, left the material in the center and did not
report the material's presence for several days or longer. This is a
knowing violation of safety rules, which are part of your job duties.
GRC Basic Principle # 1 and 2 and GRC rule #3 On numerous occasions you failed to perform your job
duties and responsibilities by refusing to perform specific job
assignments and violating your immediate supervisor's
instructions, Chuck Wilson. These multiple, and in some cases ongoing, infractions date at least to November, 2009. Perhaps the
most egregious example is your failure to perform tasks necessary
for the Emergency Response Plan. You also refused to perfonn a
writtenjob plan related to this job duty;
GRC Basic Principle #2 and GRC rule #1 and 3
On February 4, 2010, you were found working without
wearing your hearing aids while having a conversation with certain
persons. As such, you were not fit for duty and failed to perform
your job duties. Alternatively; you made an excuse to, or lied to,
Mr. Wilson for failing to follow his direction.
GRC Basic Principle #2 and GRC Rule #6 and 17
On February 4, 2010, you left the work site without
attending a meeting scheduled by your supervisor and then refused
to return to work to .attend that scheduled meeting.
On February 11, 2010, you did not report to work on a
scheduled work day and on that day failed to attend a meeting
to discuss these infractions.
GRC Basic Principle #3
On several occasions you alleged serious misconduct by coworkers, including Chuck Wilson.. You raised these allegations to
other SJCC employees, including myself. As described in· the
Code of Business Conduct, also provided to you at your

32 FMSHRC Page 597

employment orientation, SJCC would not, and may not, discipline
an employee for raising bona fide concerns about misconduct or
safety issues. However, you raised many serious allegations
without any investigation yourself Your allegations, upon
investigation, are without any factual basis. The number of
allegations you raised, the manner in which you did so, and the
lack of any factual basis, leads me to conclude that you are not
treating your co-workers with the dignity and fairness required as a
condition of your employment.

(Govt. Ex. 11.)
The company presented four witnesses, Jimmy Stewart, the MSHA fuvestigator
investigating Abeyta's complaint; Steve Pierro, Conveyance Coordinator; Charles Wilson,
Electrical Coordinator; and Mike Fidel, Maintenance Manager. In addition, I sustained an
objection to the testimony of Steven Ellsbury as being irrelevant. (Tr. 208-09.) The company's
position can be summed up as follows: {l) Abeyta's safety concerns were frivolous in that they
had no basis in fact; (2) All but one of Abeyta's safety complaints occurred in the fall of 2009,
but he did not report them until February2010, because he was saving them as a defense against
being disciplined;3 (3) Some of the safety complaints were very. serious, and if true, it was
unconscionable for an electrical engineer to wait four months before reporting them; (4) Most of
Abeyta's complaints were not observed by him, but were based on hearsay; and (5) Abeyta
should not be returned to work because he was a danger to the mine.

Fin dines of Fact and Conclusions of Law
Sectio,n 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2) provides, in pertinent part, that the
Secretary shall investigate a discrimination complaint "and if the.Secretary finds that such
complaint was not frivolously brought, the Commission, on an expedited basis upon application
of the Secretary, shall order immediate reinstatement of the miner pending final order on the
complaint." When the operator contests temporary reinstatement, the Commission has
established a procedure for making this determination with Commission Rule 45, 29 C.F.R.
§ 2700.45.
Rule 45(d), 29 C.F.R. § 2700.45(d), states that:
The scope of a hearing on an application for temporary
3

Steve Pierro testified that when Abeyta was given a disciplinary notice at the February 8
meeting, Abeyta responded by saying, "I told you not to go this way, and if you are going to go
this way, then basically you're going to regret it. And then he started talking about problems with
one of the power centers underground." {Tr. 180.) Abeyta denied making such a statement. {Tr.
105.)
32 FMSHRC Page 598

reinstatement is limited to a determination as to whether the
miner's complaint was frivolously brought. The burden of proof
shall be upon the Secretary to establish that the complaint was not.
frivolously brought. In support of his application for temporary
reinstatement, the Secretary may limit his presentation to the
testimony of the complainant. The respondent shall have an
opportunity to cross-examine any witnesses called by the Secretary
and may present testimony and documentary evidence in support of
its position that the complaint was frivolously brought.
With regard to the hearing, in its most recent decision on temporary reinstatement, the
Commission stated that it
has repeatedly recognized that the "scope of a temporary
reinstatement hearing is narrow, being limited to a determination
by the judge as to whether a miner's discrimination complaint is
frivolously brought." See Sec '.Y ofLabor on behalf of Price v. Jim
Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920
F.2d 738 (11th Cir.1990).

Sec '.Y ofLabor on behalfofLige Williamson v. Cam Mining, LLC, 31 FMSHRC l 085, 1088
(Oct.· 2009).

In adopting section 105(c), Congress indicated that a complaint is not frivolously brought,
if it "appears to have merit." S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess.,
Legislative His~ory ofthe Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In
addition to Congress'·"appears to have merit" standard, the Commission and the courts have also
equated "not frivolously brought" to "reasonable cause to believe" and "not insubstantial." Jim
Walter Resources, Inc., 920 F.2d at 747 & n.9; Secretary ofLabor on behalf ofPrice, 9
FMSHRC at 1306.
In order to establish aprimafacie case.ofdiscrimination under section 105(c) of the Act,
a complaining miner must establish (1) that he engaged in protected activity and (2) that the
adverse action complained of was motivated in any part by that activity. Secretary on behalf of
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev'd on other grounds sub
nom. Consolidation Coal Co. v. Marshall, 663 F2d 1211 (3rd Cir.1981); Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981 ).
In this case, Abeyta testified that he made safety complaints to Chuck Wilson, and
possibly Mike Fidel, in October and November of 2009, (Tr. 97-99), as well as making them on
February 8, 11 and 12, 2010. He was terminated on February 23 and his termination letter
referred to his making safety allegations, which the company concluded were unfounded. Thus,

32 FMSHRC Page 599

if Abeyta' s claims are found to be credible, he has established that he engaged in protected
activity, by making safety complaints, and that he was terminated in close proximity to making
those complaints. There is no doubt that the company had knowledge of the protected activity as
it was referred to in the termination letter.
San Juan's evidence indicates that it may have a valid defense to Abeyta's complaint, but,
as set out above, the purpose of a temporary reinstatement proceeding is to determine whether the
evidence presented by the Complainant establishes that his complaint is not frivolous, not to
determine ''whether there is sufficient evidence of discrimination to justify permanent
reinstatement." Jim Walter Resources, Inc., 920 F.2d at 744. Consequently, the focus of the
hearing is clearly on the evidence presented by the Complainant and the evidence presented by
the Respondent is relevant only to the extent it demonstrates that the claim is frivolous. In
deciding the case, it is "not the judge's duty ... to resolve conflict[s] in testimony" or to make
"credibility determinations in evaluating the Secretary's" case. Cam Mining, 31 FMSHRC at
1089; Secretary ofLabor on behalfofAlbu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July
1999).
The evidence does not demonstrate that Abeyta's testimony was inherently incredible.
Indeed, to find in San Juan's favor would require me to make credibility findings and to resolve
conflicts in the testimony. The main thrust of its case is that Abeyta's complaints were
unfounded and frivolous. The Commission held in Cam Mining: ·"Whether· [the Complainant]
was correct in his belief that the continuous miners were operating simultaneously is irrelevant to
whether he made the safety complaint to his supervisor." 31 FMSHRC at 1089 n.2. Likewise,
whether Abeyta was correct in his belief that safety violations had occurred is irrelevant to
whether he made safety complaints to his supervisors.
Finally, in a temporary reinstatement proceeding, Congress intended that the benefit of
the doubt should be with the employee, rather than the employer, because the employer stands to
suffer a lesser loss in the event of an erroneous decision since the .employer retains the services of
the employee until a final decision on the merits is rendered. Jim Walter Resources, Inc., 920
F.2d at 748 n.11. Finally, if San Juan believes that the Complainant is a danger to the mine, there
are ways to solve that problem within the context of this decision. However, making a
determination as to whether he is a danger or not is clearly beyond the purview of this
proceeding.
Accordingly, finding that Abeyta' s complaint is not without merit, I conclude that his
discrimination complaint has not been frivolously brought.

32 FMSHRC Page 600

Order
Christopher L. Abeyta's Application for Temporary Reinstatement is GRANTED. San
Juan Coal Company is ORDERED TO REINSTATE Mr. Abeyta to the position that he held on
February 23, 2010, or to a similar position, at the same rate of pay and benefits,
IMMEDIATELY ON RECEIPT OF THIS DECISION. In addition, San Juan is ORDERED
4
TO PAY Mr. Abeyta his pay and benefits retroactive to APRIL 28, 2010.

~~~

Senior Administrative Law Judge.

Distribution:
Michael Schoen, Esq., Tina D. Juarez, Esq., Office of the Solicitor, U.S. Department of Labor,
525 South Griffin Street, Suite 501, Dallas, TX 75202
Brian K. Nichols, Esq., Modrall Sperling, Bank of America Centre, 500 Street N.W., Suite 1000,
Albuquerque, NM 87102
Christopher L. Abeyta, 6410 Red Rock Ct., Farmington, NM 87402

/tps

4

Under normal circumstances this decision would have been issued on April 28, 2010, in
accordance with Commission Rule 45(e), 29 U.S.C. § 2700.45(~). However, on April 27, the
parties advised that a settlement was being negotiated and requested thatthe decision not be
issued. In a telephone conference call between the parties and the judge on May 18, 2010,
counsel for the Secretary advised that a written agreement had not been entered into and that Mr.
Abeyta no longer wished to settle the case. Over the opposition of counsel for the Respondent,
who wanted the oral agreement enforced, the Secretary requested that a decision on temporary
reinstatement be issued. I find that as the agreement had not been reduced to writing, there was
no agreement, and, in any event, that enforcement of an oral agreement is beyond the scope of
my authority.
·
32 FMSHRC Page 601

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
72119th STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5267/FAX 303-844-5268

PRAIRIE STATE GENERATING CO.,
Contestant

May21, 2010
CONTEST PROCEEDINGS
Docket No. LAKE 2009-711-R
Citation No. 6680548;09/17/2009
Docket No. LAKE 2009-712-R
Citation No. 6680549;09/17/2009

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent

Lively Grove Mine
Mine ID 11-03193

DECISION

Appearances:

R. Henry Moore, Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for
Contestant;
Peter Nessen, Office of the Solicitor, U.S. Department of Labor, Chicago,
Illinois, for Respondent.

Before:

Judge Miller
Thes~ cases are before me upon Contestant's request for a hearing to challenge citation

numbers 6680548 and 6680549 issued pursuant to section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Act" or "Mine Act"). The citations allege that
Prairie State Generating Company, LLC ("PSGC") was operating its mine with an unapproved
ventilation plan in violation of 30 C.F.R § 75.370(d) and an unapproved roof control plan in
violation of 30 C.F.R. § 75.220(a)(l). The cited standards require, in essence, that the mine
operator develop and follow a ventilation and roof control plan approved by the Secretary.

On August 28, 2009, PSGC re-submitted a ventilation and roof control plan dated July
31, 2009, to the Mine Safety and Health Administration ("MSHA"). The parties entered into
negotiations and discussed various plan provisions. In September 2009, PSGC communicated its
intent to implement the unapproved plan in order to bring this contest. By agreement between
MSHA and the Contestant the mine began operation without an approved ventilation plan or
approved roof control plan in place. Subsequently, on September 17, 2009, MSHA issued two
citations signed by Inspector Keith Roberts. In addition, MSHA sent deficiency letters to PSGC
that addressed the points at issue in each plan. Ex. M-3 (letter on ventilation plan); Ex. M-4
(letter on roof control plan). The letters and the citations list the specific items that are in dispute
in both the roof control arid ventilation plans. The parties stipulated at hearing to certain items
listed in the citations. Specifically, the parties agreed that a number of items listed on the
32 FMSHRC Page 602

operator's "contested issues" list are no longer in contention. Further, any item listed as "not in
contention" has been withdrawn from the contest in this matter and will notbe addressed in this
decision.
MSHA argues that the items set forth in the deficiency letters that were not eliminated
prior to hearing should be included in the specific plans in a manner that meets MSHA's goals of
providing safe and effective ventilation and roof control plans for the mine. PSGC argues that
the plans it proposes are safe and mine specific. One of the primary issues is the use of extended
cuts; that is, instead of using the normal 20-foot cut by the continuous mining machine, the mine
seeks to use an extended cut of 40 feet. MSHA seeks to impose a performance method at the
mine which would first use 20-foot cuts, be evaluated for effectiveness, and then move to a 30foot cut and eventually to a 40;.foot cut. A secondary and related issue in both plans is the use of
wider than normal entries.
PSGC's Lively Grove mine is newly opened and the plans at issue are the first plans to
be put in place. Therefore, any issue regarding the suitability of a plan that is already in place is
not raised here. Instead the Secretary must prove that the district manager did not abuse his
discretion in determining that the plans proposed by MSHA are suitable to the Lively Grove
mine. The Secretary argues that the district manager, with the assistance of others at MSHA,
reviewed all factors and reached a reasonable conclusion regarding the plans. In this case, the
assistance of others includes direction from the national office regarding the use of extended cut
mining and wide entries. Lively Grove on the other hand argues that the district manager did
abuse his discretion, did not consider all of the data available to him, and used an "across-theboard" policy regarding the use of extended cuts.
The first contested citation, Citation No. 6680548, alleges a violation of 30 C.F .R. §
75.370(d), which states that "[n]o proposed ventilation plan shall be implemented before it is
approved by the district manager." In deciding whether to approve a proposed ventilation plan
MSHA looks to.§ 75.370(a), which provides in pertinent part that "[t]he operator shall develop
and follow a ventilation plan approved by the district manager [and] [t]he plan shall be designed
to control methane and respirable dust and shall be suitable to the conditions and mining system
at the mine." 30 C.F.R. § 75.370(a).
The second contested citation, Citation No. 6680549, alleges a violation of30 C.F.R. §
75 .220(c), which states that "[eJach mine operator shall develop and follow a roof control plan,
approved by the District Manager, that is suitable to the prevailing geological conditions, and the
mining system to be used at the mine."
As a general matter, the Commission has held that plan formulation under the Mine Act
requires MSHA and the operator to negotiate in good faith for a reasonable period of time
concerning disputed plan provisions. Carbon County Coal Co., 7 FMSHRC 1367, 1371 (Sept.
1985). "Two key elements of good faith consultation are giving notice of a party's position and
adequate discussion of disputed provisions." C. W. Mining Co., 18 FMSHRC 1740, 1747 (Oct.
1996). In this proceeding the parties have stipulated that they have negotiated in good faith.

32 FMSHRC Page 603

For reason8 that follow below, I affirm Citation No. 6680548 and Citation No. 6680549
and dismiss PSGC's contest proceedings.

I~

FINDINGS OF FACT

Lively Grove is an underground coal mine that will exclusively serve a new 1,600
megawatt generating facility that is under construction·adjacent to the mine. Stip. ,, 2, 3. PSGC
is an operator within the meaning of the Act, and is subject to the jurisdiction of the Mine Act.
Stip. ,~ 6, 7.
The dispute in this case centers on whether 40-foot cuts and extra wide entries, without
previous testing or evaluation, are a suitable part of the ventilation and roof control plans,. given
the conditions at the mine.
Inspector Keith Roberts, who has more than 30 years of mining experience, testified that
he reviewed the ventilation plan at issue and drafted the deficiency letter. (Tr. 40, 43); Ex. M-3.
Roberts explained the review process and the use of a checklist to ascertain whether each issue
had been covered in the proposed plan. (Tr. 44-45); Ex. M-5. Roberts reviewed the ventilation
plan dated August 28; 2009, Ex. M-1, and, after consultation with the district manager and armed
with information from MSHA and the mine, drafted the list of deficiencies contained in the
letter. (Tr. 47); Ex. M-3.
The mine plan called for the use of extended cuts, i.e., 40-foot cuts. The agency's
position is that the mine must start with a standard 20-foot cut plan and use a performance-based
approach to verify that the methane and respirable dust control standards could be met before a
30-foot cut could then be tested. If30-foot cuts were then tested and found to meet the
standards, then 40-foot cuts could be evaluated. (Tr. 49). Roberts, and subsequently district
manager Robert Phillips, relied upon a procedural instruction letter (''PIL") that outlines the
procedures for evaluating a request for extended cuts. (Tr. 50); Exs. M-13, M-14. Roberts is
aware that mines in this area of Illinois can experience significant amounts of methane liberation
and a significant number of roof falls. In order to avoid these at the outset, Phillips determined
that cuts beyond the standard 20-foot cut should be evaluated.prior to moving to longer cuts.
Shorter cuts allow for better methane and roof control according to Roberts. (Tr. 53-55).
Section 75.330 sets the standard cut at 10 feet, however, over the years it has become an
accepted practice to begin with cuts of20 feet. (Tr. 55-56). It is the opinion of Roberts that
"talcing a deeper cut is never safer than taking a shorter cut." (Tr. 60). Many of the other issues
addressed in the ventilation plan are based upon the 40-foot cut requested and, therefore, hinge
on the approval of the depth of the cut. (Tr. 68"'.69).
Mark Odum, the roof control specialist for District 8, has more than 25 years of mining
experience. He has a bachelor's degree in mining engineering, has worked in coal mines, and·
began work as a mine inspector with MSHA in 1991. Odum was responsible for reviewing the
PSGC roof control plan, evaluating the plan, and drafting the deficiency letter. (Tr. 144-146);
Exs. M-4, M-2. Odum described exhibit M-6 as the checklist used for a roof control plan
32 FMSHRC Page 604

review, and acknowiedged that the list was used as a guideline when he reviewed the plan at
issue. Odum also· agreed that a shorter cut, in terms of roof control, is always the safer option.
Robert Phillips, the MSHA district manager in Vincennes, Indiana at the time ofthis
dispute, has been in the mining industry in various positions since 1960 and was employed by
MSHA for 27 years. (TL 207-208). Phillips arrived in District 8 in the fall of2007, and upon
his arrival learned that the district had the largest number of unintentional roof falls and the
largest number of respirable dust over-exposures of all the MSHA districts. He was instructed
that part of his mission was to reduce these figures. (Tr. 217). Phillips, as a part of his efforts to
reduce the overall roof falls in the district, asked the administrator for coal and the chief of
health from MSHA to make presentations to the mine operators in District 8 regarding extended
cuts.
In addition, Phillips changed the parameters in the roof and ventilation plans of the mines
in District 8. {Tr. 229) The respirable dust levels had increased from 2006 to 2007 and into
2008. The same was true for the number of roof falls. In 2009, both numbers began to decline.

When Phillips arrived in District 8, the PSGC Lively Grove mine was just being
developed and neither ventilation nor roof control plans had yet been approved for the mine. As
is true of all plans, the assistants to the district manager began the process of meeting with the
mine and reviewing conditions and information submitted by the mine. {Tr. 212).
Phillips explained that each district has its own procedure for processing and approving
ventilation plans. Lively Grove's proposed ventilation plan, Ex. M-1, and the proposed roof
control plan dated July, 31, 2009, Ex. M-2, went through the same process as any other plans for
newly opened mines in the district. (Tr. l 05). After much discussion and review, the district
manager rejected both plans on September 17, 2009. (Tr. 212). Phillips relied on his roof
control specialist, his ventilation specialist and guidance from the MSHA national office. In
addition, he paid particular attention to the PIL addressing extended cut mining at new mines.
He understood that the PIL directed him to evaluate extended cuts to "ensure compliance with
[the Secretary's] 30 CFR standards." {Tr. 213).

a. Use ofextended cuts, i.e., 40-foot cuts as opposed to 20-foot cuts, in Citation Nos.
6680548 and 6680549

The issue of the depth of cuts is found throughout both the ventilation plan and the roof
control plan. There was obviously much discussion and disagreement about the safety of the
extended cuts and the expert witness for PSGC made it clear that the use of extended cuts is an
issue not only ill District 8, but across the country. There is a dispute as to whether extended
cuts are more or less safe in terms of dust control and in terms of roof support. The use of
extended cuts makes production more efficient.
MSHA authored a PIL dated June 3, 2008 regarding extended cuts. Ex. M-14. This
letter was circulated to mine operators and used by MSHA as guidance in evaluating PSGC's
request to use 40-foot cuts. The operator asserts that Phillips uses the PIL for all mines and that
32 FMSHRC Page 605

this "across the board" policy takes away from the mine-specific character of the plan
negotiating process. Inspector Roberts explained that he uses the policy with all new mine
operators and that his office would look at 20-foot cuts and, pending evaluation and compliance
with applicable standards, would allow an operator to apply for approval to t~e 30-foot cuts,
and, again, pending evaluation and compliance with the applicable standards, then allow
application for 40-foot cuts. (Tr. 100). Phillips described this as a performance-based approach.
(Tr. 100, 222).
MSHA's arguments with regard to extended cuts focus on the possibility of a greater
number of roof falls with longer cuts and the presence of respirable dust. The MSHA roof
contro1 specialist, Odum, believes that the mine can better control the roof with 20-foot cuts as
opposed to 40-foot cuts. (Tr. 162). PSGC argues that there are no issues regarding roof control
that need to be addressed because its data, although not provided to the district manager,
supports its position that the roof is good. Gary Hartsog,. one of the experts who testified on
behalf of PSGC, opined that it is ''unlikely that roof conditions will be adverse." (Tr. 445-6).
However, no one could testify that 20 foot-cuts are an imprudent way to proceed. The mine did
point out that an extended cut generates less respirable dust, since a majority of the dust is
generated at start-up and fewer start-ups are required for a longer cut.
b. Use of20- foot wide entries as opposed to 18- foot wide entries in roof control and
ventilation plans
Roberts believes that both entries are suitable for moving equipment, and, like the
extended cuts, thewide entries maybe approved based upon performance. (Tr. 113). The
Secretary also believes that the wider the entry, the more difficult it is to control the roof.
{Tr.152) William Jankousky, the mine's safety manager, explained his view that it is easier to
maneuver in a wider entry, i.e., that the two additional feet make a difference in the ability of the
equipment to maneuver a tum. {Tr. 374).
c. Use of 64 :total diagonalfeet at intersection, as opposed to the 68 feet sought by the mine
operator in-the roof control plan
This issue is related to the wider entries sought by the mine and, again, the district
manager seeks to implement a performance based evaluation before wider intersections are used.
(Tr. 153-154). Odum testified that, based upon information he reviewed in exhibit M-16, wider
intersections presented more roof control issues than narrower ones. He testified that
intersections are one of the main areas that roof falls occur and, therefore, it is best to keep them
as narrow as possible. {Tr. 154-156), Phillips relied on information from Casey Sears, an
MSHA roof control authority, regarding large diagonals at the intersection and testified in
support of Odum' s position. {Tr. 216). PSGC points out that the information relied upon by the
district manager may not be thorough or reliable and there is other information regarding roof
control that the district manager should have reviewed and relied upon.
d. Air velocities in last open crosscut

32 FMSHRC Page 606

The issue involves how much air is needed to assure compliance with air velocities as the air
reaches the continuous miner and additional working places. PSGC argues that the lower · ·
ventilation quantities it seeks are appropriate for the "fishtail" ventilation system designed at the
mine. PSGC asserts that MSHA imposes higher quantities of air no matter what kind of
ventilation system is utilized by the mine. Victor Daiber, the engineering manager at the mine,
testified on behalf of PSGC that he used information from other mines to determine that 9,000
and 12,000 cfin would be adequate for the fishtail ventilation and would work at this mine. (Tr.
301). Roberts, however, stated that there are plans in the district that include lower velocities
but, in reality, they use greater air quantities because they don't sufficiently address the levels of
respirable dust. (Tr. 84;.85). Roberts points out that since the mine has three open crosscuts and
a line curtain in the fourth, it is typical to require more air in the last open crosscut as a means to
ensure adequate ventilation. (Tr. 87)~ If the mine uses the lower velocities they seek, they will
not meet the respirable dust standards according to Roberts. (Tr. 125). Phillips agrees that
unless the mine uses 25,000 cfm, it will not have the necessary air throughout the system.

e. Red zone issues in the roof control plan
The red zone issues relate to the persons working and moving cable in the area around
the miner. (Tr. 74). PSGC, through Jankousky, indicates it would prefer to not address red zone
issues in the roof control plan. Instead, the mine argues that it can handle safety policies for the
red zone through internal programs and policies and, hence, did not include it in the roof control
plan. (Tr. 361;, 383). The mine also raises the red zone issues in terms of the 20-foot cuts and
explains that less moving of the machine means fewer accidents. However, according to
Roberts, it is the method chosen to move the equipment, not the number of times you do it,
which is of critical importance.

f

Limit to turn no more than two turns in the crosscuts

If the mine wishes to turn the cross-cuts from both sides, then, according to MSHA, it
needs to depict such on a sketch submitted with the plan. (Tr. 82). Odum relied upon an MSHA
document showing the best practices for turning crosscuts with remote control continuous
mining machines. (Tr. 163-164); M-15. Taking a limited number of turns helps limit the ·
number of overly large intersections and, consequently, is a factor in roof control. The mine
argues that it is a ventilation issue. Daiber, the engineering manager for PSGC, believes that
more than two turns are necessary for ventilation control. (Tr. 289).

g. Curtain setback
The mine suggests a setback of five feet greater than the depth of the approved cut, i.e., a
25-foot setback. Jankousky testified that the miner operator can see the cut better at 25 feet than
at 20 feet because the curtain does not get in the way. (Tr. 379) MSHA counters that seethrough curtains may be used to improve visibility; however, the mine rejects that solution. (Tr.
381).

h. Using mesh in-cycle in roof control plan

32 FMSHRC Page 607

The Secretary requests that the mine install mesh in certain areas of the roof to avoid roof
falls. PSGC argues that loose materials accumulate in the mesh and, when it comes time to
remove the mesh, it is difficult to do it safely. (Tr.278). MSHA argues that the mesh prevents
unplanned falls of roof and rock that may injure miners working or traveling in the area. · (Tr.
168). Odum suggests that the safety benefits are ''tremendous." Phillips agrees that placing the
mesh during the roof bolting cycle provides additional safety from roof falls.
There are many competing safety issues at a mine, and those issues must be weighed
against one another in making decisions about the best plan. There are a number of other related
issues raised by PSGC that are set forth in the Contested Issues submitted by the mine and.a
number of the items will need to be clarified or revised as the mine moves to longer cuts. (Tr.
93-94). The district manager has replied, ably, to each of those issues in the deficiency letter.
That reply has been supplemented by the testimony of Roberts and Odum. (See e.g., Tr. 160162). I rely on those factors in determining that the deficiencies cited by MSHA are reasonable,
based on relevant information, and contain a rational connection between the facts found and the
choice made by the district manager.

II. CONCLUSIONS OF LAW
While plan contests are based on consultations between the Secretary and the operator,
the Commission has recognized that "the Secretary is [not] in the same position as a private
party conducting arm's length negotiations in a free market." C. W. Mining Co., 18 FMSHRC
1740, 1746 (Oct. 1996). As one court has noted, "the Secretary must independently exercise
[her] judgment with respect to the content of ... plans in connection with final approval of the
plan." UMWA v. Dole, 870 F.2d 662, 669 n. 10 (D.C. Cir. 1989), quoting S. Rep. No. 95-181, at
25 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res.,Legislative History
of the Federal Mine Safety and Health Act of 1977, at 613 (1978).
The framework for resolution of a plan dispute has been established by the Commission
in a number of cases. See Twentymile Coal Co., 30 FMSHRC 736, 748 (Aug. 2008). The
Commission has held that "absent bad faith or arbitrary action, the Secretary retains the
discretion to insist upon the inclusion of specific provisions as a condition of the plan's
approval." C. W. Mining Co., 18 FMSHRC at 1746. At issue here is whether the Secretary
properly exercised her discretion and judgment in the plan approval process. The standard of
review incorporates an element of reasonableness. See Monterey Coal, 5 FMSHRC 1010, 1019
(June 1983). I must therefore, look at the issue of suitability in terms of the discretion of the
district manager.

a. Unsuitability of the current PSGC plan
The Lively Grove mine is a new mine that has been in the development stage for a period
of time, but has now reached the point of mining coal and, therefore, has submitted proposals for
both the ventilation and roof control plans. The plans at issue in this case are the initial plans of
the mine, with no former plan to review for unsuitability.

32 FMSHRC Page 608

b. Suitability ofthe MSHA plan
The Secretary must show that the district manager did not abuse his discretion in
determining that the MSHA-proposed ventilation and roof control plans are suitable to the
conditions at the Lively Grove mine. More specifically, the Secretary must show that the actions
of the district manager were not arbitrary and capricious in his review and decision-making
regarding the plans and their suitability. The Commission has defined "suitable'' as '"matching
or correspondent,' 'adapted to a use or purpose: fit,' 'appropriate from the view point of ...
convenience, or fitness: proper, right,' 'having the necessary qualifications: meeting ·
requirements."' See Peabody Coal Company 18 FMSHRC 686, 690 (May 1996)(omission in
original), quoting Webster's Third New International Dictionary 2286 (1986), aff'd 111 F.3d
963 (D.C. Cir. 1997). The plans proposed by the Secretary, including the performance-based
evaluation of the extended cuts and wide entries, must be suitable to this mine.
In examining suitability in this matter the primary focus is on the use ofextended-cut
mining, which encompasses wider entries and wider diagonals at intersections. Since PSGC is a
start up mine, the district manger proposed that the mine start with shorter cuts of 20 feet, test
them, and then move into longer cuts if the conditions prove to be appropriate. The district
manager did this using national policy and guidelines regarding the use of extended cuts. Use of
a guideline does not per se make it suitable or unsuitable to a plan, nor does "across the board"
use of a policy automatically make it unsuitable for this particular mine. It is the position of
PSGC that instead of using the national policy the district manager slrould have relied on studies
conducted by the mine and general studies regarding roof and ventilation. Either way, the
district manager is expected to rely on documents and information· generated by the Mine Safety
and Health Administration as a part of his review.

The mine argues first, that there are a number of studies to show that extended cuts are
no more dangerous than 20-foot cuts. Daiber reviewed studies about extended cuts and reached
the conclusion that there is no difference as to the ventilation of a 40-foot cut as opposed to a 20foot cut. (Tr. 315). ·He testified that, based on the studies, there is "no significant difference" in
respirable dust control between a 20-foot cut and a 40-foot cut. However', when pressed, both
Daiber and another PSGC expert, Hartsog agreed that the roof conditions may be affected by
extended cuts as the conditions are an unknown until mining actually begins. Although
engineering and technical methods give the mine a good indication of what roof conditions it
may encounter, it is by no means fool-proof, and the mine may encounter unexpected conditions.
(Tr. 346, 445-446). Daiber essentially agreed that mining the area is the best way to determine
the conditions at the mine and, therefore, taking smaller cuts in the beginning and evaluating
them is a more prudent way to proceed. (Tr. 341, 346).
The evidence presented by the Secretary clearly demonstrates that the MSHA proposal is
suitable as it relates to the Lively Grove Mine. First, I credit both Robert's and Odum's
testimony far more than the generalization made by Hartsog, PSGC's expert. Hartsog is a selfemployed mining engineer, who came into the case to support PSGC's stance after the citations
were issued by the Secretary. (Tr. 418-423). Hartsog, like Daiber, testified that there is
minimal, if any, difference between a 20-foot cut and a 40-foot cut as far as ventilation is
concerned. (Tr. 431, 433-435). While the parties agree that the ventilation differences are
32 FMSHRC Page 609

minimal, Hartsog insists that the potential for injury is higher with 20-foot cuts, than with longer,
because the equipment is moved more frequently in a short cut than in a long. Hartsog however,
does not address the safety of the roof in an extended cut in his initial support of the concept, but
later admits that he can think of roof issues that would make a 40-foot cut less safe than a 20foot cut. (Tr.:439, 441).
The district manager, in making his determinations about the suitability of ventilation and
roof control plans, takes direction and guidance from MSHA experience and studies. The
operator suggests that the directives used by the district manager somehow limit his discretion or
take away from the suitability of the plan to this mine. I am not persuaded by the argument. The
directives regarding the extended cuts, the wide entries, and the diagonals of the entries are
directives used to determine what is suitable to the mine. The evidence presented by the
Secretary regarding the use of extended cuts bears out the district manager's decision to evaluate
their use prior to total approval. That can only be done by taking one step at a time, testing the
effectiveness of the system, and then moving on. A conservative, careful approach, even if
based on a PIL, on the part of the district manager does not undermine the prospect of what is
suitable to this mine; in fact, the step-by-step approach enhances it

c. Decision. of the district manager
The Commission in Twentymile Coal applied the following guidance in determining if
the actions of the district manager are arbitrary and capricious:
The scope of review under the "arbitrary and capricious" standard
is narrow and a court is not to substitute its judgment for that of the
agency. Nevertheless, the agency must examine the relevant data
and articulate a sa,tisfactory explanation for its action including a
"rational connection between the facts found and the choice
made." In reviewing the explanation, we must "consider whether
the decision was based on a consideration of the relevant factors
and whether there .has been a clear error of judgment." Normally,
an agency rule would be arbitrary and capricious if the agency has
relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not
be ascribed to a difference in view or the product of agency
expertise.
30 FMSHRC at 754-755, quoting Motor Vehicle Mfr 's Ass 'n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983).
I find that the district manager in this case met the requirements of examining relevant
data by seeking out data, information, and opinions from a number of highly qualified people.
He articulated a reasonable explanation for his finding that the provisions sought by MSHA are

32 FMSHRC Page 610

suitable. I find that the district manager made reasonable decisions and did not abuse his
discretion in making those decisions.
PSGC argues that the arbitrary and capricious standard applies only to ERP (emergency
response plan) cases, yet the arbitrary and capricious standard was upheld by the Commission in
addressing the roof control plan in the C. W Mining case cited by PSGC. In determining the
applicability of the arbitrary and capricious standard to this case, I agree with PSGC, that some
element of reasonableness must be apparent in the decisions made by the district manager.
While there are disagreements about what provisions are best for the mine, the district manager
has balanced the conflicting ideas and articulated a rational connection between the facts shown
and the choices he made. While not the plan the mine would like to see, it remainS a reasonable
one given all of the evidence.
Lively Grove raises two primary issues with regard to the alleged arbitrary and capricious
nature of Phillips decisions regarding the plans. First, PSGC argues that Phillips should not have
used the PIL in making his decision regarding the mine. Specifically, PSGC argues that the use
of the PIL is arbitrary because it is tantamount to using it as a binding rule, without the benefit of
rulemaking. PSGC agrees that the PIL is not a rule, but argues it was used as such here. PSGC
Br. 22. The fact that Phillips applied the PIL to the new mines in his district does not
automatically render his decisions any less reasonable. The PIL guidance assists MSHA's
district managers iri determining how to best address a request for extended cuts, and, at a new
mine such as was the case here, allows MSHA and the operator to evaluate the plan at each step.
Phillips did not rule out the extended cuts, he simply wanted more information, based upon
experience at this mine, in order to make a detennillation. I find Phillips' approach extremely
reasonable. The Commission recognizes that while mine plans must be tailOred to the specific
conditions of a mine, they can include certain universal provisions. Carbon County Coal Co., 7
FMSHRC 1367 (Sept. 1985). Much like a ''universal provision'', the PIL is based on MSHA
experience and knowledge. It is a nationwide policy that a district manager has available for his
consideration, and its purpose is to assist the district manager in reviewing plans.
The second argument that PSGC raises is that the district manager did not review all the
relevant available data in making a decision about allowing the use of extended cuts at this mine.
I disagree; the Secretary demonstrated that the.district manager did consider all relevant facts,
even if he did not review every document the mine suggests he should have reviewed. First, it is
pure speculation on the part of the mine that the district manager did not review all relevant
information or as the mine put it, all information that he "had readily available to him." I am
aware that the parties rely on their knowledge and information from other sources when
developing mine plans and that the information is often gathered from other mines and sources
within MSHA. The parties don't start anew each time but, rather, start with time-tested practices
and data gathered over time. I do not accept, however, that in determining whether the district
manager abused his discretion, I must examine whether he found and reviewed every single
piece of information that may be related, particularly when that information is not brought to his
attention by the mine operator.
Next, it is not an abuse of discretion to rely on information he had available and in front
of him, rather than on the information presented for the first time at the hearing. PSGC had a
32 FMSHRC Page 611

number of experts testify regarding the two plans, including Hartsog concerning ventilation and
Gadde about roof control. Neither of them was involved in the plan development or presentation
of the plans to the district manager. The information put together by the experts was created
after the plans were found deficient and solely for the purpose of hearing. Even so, the mine did
not take the information back to the district manager for re-consideration. Respondent agrees
that the evidence presented by Hartsog and Gadde was not presented to the district manager;
however, PSGC wants to assume that the district manager had knowledge of the studies used by
both and would have me agree that it is an abuse of his discretion not to have found it on his own
and used it in his evaluation.
I agree with the Secretary that the "[d]istrict manager's decision is entitled deference
under the arbitrary and capricious standard if he takes into account the statutory and regulatory
elements of suitability, makes a full appraisal of the relevant and available facts, and is
reasonable in his conclusions." Sec'y Br. 5. While MSHA agrees with PSGC that extended cuts
and wider entries may be appropriate after study, MSHA seeks to take the safer route of testing
before taking the larger step. I find that the district manager was not arbitrary and capricious in
making the determination regarding the plans.
·

d. Other matters
During the course of the hearing, PSGC attempted to introduce evidence concerning the
ventilation and roof control plans at other mines, specifically mines that are using extended cuts.
I refused to allow that evidence primarily because it is not relevant to the decision regarding the
circumstances and suitability of the plan to this mine. While I understand that many plans are .
based upon the experience at other mines, it is unlikely that two underground coal mines would
present exactly the same factual situation and the same needs in their ventilation plan.
Since I must examine whether the actions of the district manager are arbitrary and
capricious, I Il,lUSt look at how he made his decision, what he had before him at the time, and
what information he used. Any document generated after that time is not relevant and will not
assist me in making an informed decision in this matter. Therefore, a number of those
documents were excluded from evidence as having no relevance.
I conclude that the Secretary has met her burden of proving that the district manager did
not abuse his discretion. Accor4ingly, Citation No. 6680548 and Citation No. 6680549 are
affirmed and Contest Proceedings, Docket Nos. LAKE 2009-711-R and LAKE 2009-712-R are
hereby dismissed.

32 FMSHRC Page 612

Distribution:
Peter Nessen, Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn Street,
Suite 844, Chicago, IL 60604-1502

R. Henry Moore, Jackson Kelly, PLLC, Three Gateway Center, Suite 1340
401 Liberty Avenue, Pittsburgh, PA 15222

32 FMSHRC Page 613

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N.W., SUITE 9500
WASHINGTON, D.C. 20001
(202) 43~9950
June 1, 2010
SECRETARY OF LABOR, MINE SAFETY :
AND HEALTH ADMINISTRATION,
on behalf of RICKEY JOE STRATIIS,
Applicant

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEVA 2010-991-D
HOPE CD 2010-06

v.
Beckley Pocahontas Plant
Mine ID 46-09216

ICG BECKLEY, LLC,
Respondent

ORDER ON TEMPORARY REINSTATEMENT
Appearances:
Jessica R. Hughes, Esq., U.S. Department of Labor, Arlington, Virginia, on behalf of the
Applicant;
R. Henry Moore, Esq., Pittsburgh, Pennsylvania, on behalf of the Respondent.
Before: Judge Moran
Pursuant to Section 105(c) of the Federal Mine Safety and Health Act of 1977 (the "Mine
Act"), 30 U.S.C. § ~15, et seq., as amended, and 29 C.F.R. § 2700.45, this matter is before the
Court on an Application for Temporary Reinstatement filed by the Secretary of Labor
("Secretary'') on behalf of Rickey Joe Strattis, Applicant. The Application seeks to have Mr.
Strattis reinstated to his former position as a dozer operator at Respondent's facility. 1 A hearing
on the Application, made at the request of the Respondent, was held in Charleston, West Virginia
on May 24, 2010. The Court considered the evidence at the hearing, the closing statements
offered by the parties and the post-hearing briefs in making its determination.

1

The parties agreed that, should the Court make a finding that Mr. Strattis' Application
was not frivolously brought, (and as reflected in the body of this Order, it does so find that the
Application is not frivolous) the reinstatement will be an economic reinstatement, which is to
include Mr. Strattis' benefits and which does not diminish his status as the miners'
representative.
32 FMSHRC Page 614 ·

The law is well-established on the issue of temporary reinstatement under the Mine Act.
Section 105(c)(2) of the Act provides, in pertinent part, that the Secretary shall investigate a
discrimination complaint, "and if the Secretary finds that such complaint was not frivolously
brought, the Commission, on an expedited basis upon application of the Secretary, shall order the
immediate reinstatement of the miner pending final order on the complaint." The Commission
has established a procedure for making this determination. Commission Rule 45(d), 29 C.F. R §
2700.45(d) states: ''The scope of a hearing on an application for temporary reinstatement is
limited to a determination as to whether the complaint was frivolously brought. The burden of
proof shall be upon the Secretary to establish that the complaint was not frivolously brought.
In support of [her] application for temporary reinstatement, the Secretary may limit [her]
presentation to the testimony of the complainant. The respondent shall have an opportunity to
examine any witness called by the Secretary and may present testimony and documentary
evidence in support of its position that the complaint was not :frivolously brought."
Accordingly, the scope of a temporary reinstatement hearing is narrow, being limited to a
determination by the judge as to whether a miner's complaint was frivolously brought. Sec'y of
Labor on behalf ofPrice v. Jim Walter Resources, Inc., 9 FMSHRC 1305, 1306 (August 1987);
affd sub nom. Jim Walter Resources, Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990).
In adopting section 105(c), Congress indicated that a complaint is not :frivolously brought
ifit "appears to have merit." S. Rep. No. 181, 95 th Cong. pt Sess. 36-37 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources , 95th Cong. 2nd Sess.,
Legislative History of Federal Mine Safety and Health Act of 1977, at6240625 (1978). The "not
frivolously brought" standard has been equated to the "reasonable cause to believe" standard
applied in other contexts. Jim Walter Resources, Inc. v. FMSHRC, 920 F.2d at 747; Sec'y of
Labor on behalfofBussanich v. Centralia Mining Co., 22FMSHRC153, 157 (February 2000).

Although ~ application for temporary reinstatement need not prove a prima-facie case of
discrimination, the el~ments of a discrimination claim are noted here as part of the context in
which it is assessed whether the evidence meets the non-frivolous test. Commission case law has
set forth the essential elements of an action under Section 105(c) of the Act, by articulating that a
complaining miner bears the burden of establishing: (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.
Sec'y ofLabor on behalf ofPaula v. Consolidation Coal Co., 2 FMSHRC 2786 (October 1980),
rev'd on other grounds sub nom.; Consolidation Coal Co. v. Marshall, 773 F.2d 1211 (3rd. Cir.
1981 ); Sec'y ofLabor on behalf ofRobinette v. United Castle Coal Co., 3 FMSHRC 803 (April
1981); Sec'y ofLabor on behalf ofJenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842 (August
1984); Sec'y ofLabor on behalfof Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (November
1981), rev'd on other grounds sub nom; Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir.
1983).
The Commission has frequently acknowledged the difficulty of establishing "a
motivational nexus between protected activity and that adverse action that is the subject of the

32 FMSHRC Page 615

complaint." See, e.g., Sec'y on behalfofBaier v. Durango Gravel, 21 FMSHRC 953 (September
1999). Consequently, the Commission has held that, "(l) knowledge of protected activity; (2)
hostility or animus towards the protected activity; and (3) coincidence in time between the.
protected activity and the adverse action" are all indications of discriminatory intent. Id. at 957.
These examples are not in the conjunctive. Consequently, the coincidence in time between the
protected activity and Strattis' discharge by itself can be a basis upon which to infer an illegal
motive on ICG Beckley's part. See: Durango Gravel, 21 FMSHRC at 957.
The Court has determined that the evidence here establishes that Mr. Strattis' Application
was not frivolously brought. The Secretary established that Mr. Strattis, by filing a 105 (c)
complaint in November 2009, engaged in protected activity. The Secretary maintains that
Mr. Strattis' subsequent discharge was motivated, at least in part, by that protective activity.
MSHA investigator Mr. KellyAcord testified that he requested information from the Respondent
in connection with his investigation of the complaint on April 9, 2010. The Applicant was
discharged on April 14, 2010. In this regard the Secretary notes the close temporal connection
between the date on which MSHA sought additional information from the Respondent and Mr.
Strattis' discharge, which occurred only three business days after that. Mr. Strattis testified that
ICG Beckley's General Manager told him on the date of his discharge that MSHA had made a
document request in connection with his discrimination claim and that he characterized Strattis
as a "nuisance."2 On this record it is clear that Mr. Strattis had no knowledge that MSHA had
asked ICG Beckley for additional information in connection with its on-going investigation of his
claim of discrimination. Although the Applicant filed his discrimination claim in November of
the previous year, there had been no prior discipline meted out; he had not been suspended nor
discharged until shortly after the MSHA request for additional information.
The Court also concurs with the Secretary's point that decisions, such as the
Commission: s recent issuance in CAM Mining LLC, 31 FMSHRC 1085, October 22, 2009, 2009
WL 3802726, enunciate the proper test and that the test in a temporary reinstatement proceeding
is not about making credibility determinations between competing versions of the events, but
rather whether the claim is frivolous. 3 For that reason, contentions raised in the Respondent's
post-hearing brief, such as whether the Applicant was constantly confronting others, whether he
misused his equipment, and whether the real genesis of the discrimination claim was the
Applicant's desire to work a day shift, are all matters for the subsequent full proceeding on the

2

To be clear, the Court does not make a credibility determination that Mr. Strattis' ·version
of the events on the date of his discharge represent what transpired. Rather, the Applicant's
testimony is assessed only in terms of deciding whether the claim is frivolous.
3

Having noted the limited inquiry which is made in a temporary reinstatement proceeding,
that limited determination in no way foreshadows the outcome of the full hearing on the
discrimination claim because, in that setting, a court must often make credibility determinations
among competing versions of the events.
32 FMSHRC Page 616

4

claim of discrimination, as distinct from this temporary reinstatement matter. Instead, the
Court's task is to "evaluate[] the evidence of the Secretary's prima facie case and determine[]
whether the miner's complaint of discrimination 'appear[s] to have merit." CAM Mining at1089.
It is undisputed that Mr. Strattis engaged in protected activity and suffered the adverse
action of discharge and that, for purposes of temporary reinstatement, the claim is not frivolously
brought. Accordingly, for the reasons articulated above, Respondent is ORDERED to
economically reinstate Mr. Strattis to the position he held on April 14, 2010, at the same rate of
pay and with the same benefits to which he was then entitled. Mr. Strattis' reinstatement will be
deemed effective as of the date of his discharge. 5

William B. Moran
Administrative Law Judge

4Thus the Secretary's point 1s well-taken that the presence of supporting and detracting
evidence of protected activity in the record is not ripe for resolution now, as that would move
away from the limited determination of whether the claim is frivolous.
5

In its cover letter to the post-hearing brief, Respondent's Counsel requests that, if
reinstatement is ordered, the Secretary be directed to comply with the time requirements of
Section 105 (c) (3), providing that it provide the miner of the results of the investigation within
90 days of the filing of the complaint. Although not jurisdictional, reinstatement is not openended and the Secretary does have an obligation to complete its investigation promptly. Should
there be a protracted delay in this regard, the Court trusts that the Respondent will so advise the
Court with an appropriate motion.
32 FMSHRC Page 617

Distribution,;_
Jessica R. Hughes, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor, Arlington, VA 22209-2247
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Avenue, Suite
1340, Pittsburgh, PA 15222

wm

32 FMSHRC Page 618

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N.W., SUITE 9500
W ASIDNGTON, D.C. 20001
(202) 434-9950
June 3, 2010
SECRETARY OF LABOR, MINE SAFETY :
AND HEALTH ADMINISTRATION,
on behalf of RICKEY JOE STRATTIS,
Applicant

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEYA 2010-991-D
HOPE CD 2010-06

V.

ICG BECKLEY, LLC,

Beckley Pocahontas Plant
Mine ID 46-09216

Respondent

ORDER MODIFYING TERMS OF TEMPORARY REINSTATEMENT
Appearances:
JessicaR. Hughes, Esq., U.S. Department of Labor, Arlington, Virginia, on behalfofthe
Applicant;
R. Henry Moore, Esq., Pittsburgh, Pennsylvania, on behalf of the Respondent.
Before: Judge Moran
The Court's Order of June I, 2010 is modified to correct the Court's misstatement that
Mr. Strattis' reinstatement was "deemed effective as of the date of his discharge.'' June 1, 2010
Order at 4. Obviously the Court should have stated that the reinstatement was effective as of the
date of the June 1st Order. To state otherwise would make the subsequent discrimination
proceeding pointless on the question of back pay. The Court apologizes for the confusion it
created by misstating the date of reinstatement. All other aspects of the Court's June 1st Order
remain unchanged. Accordingly, Mr. Strattis' reinstatement is deemed effective as of
June 1, 2010.

William B. Moran
Administrative Law Judge

32 FMSHRC Page 619

Distribution:
Jessica R. Hughes, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor, Arlington, VA 22209-2247
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Avenue, Suite
1340, Pittsburgh, PA 15222
wm

32 FMSHRC Page 620

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

June 11, 2010
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on
behalf of RICKY LEE CAMPBELL,
Complainant,

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEVA 2010-1030-D
HOPE-CD 2010-09

v.
MARFORK COAL COMPANY, INC.,
Respondent

Slip Ridge Cedar Grove Mine
Mine ID 46-09048

DECISION AND ORDER
REINSTATING RICKY LEE CAMPBELL
Appearances: Samuel Lord, Esq., U.S. Department of Labor, Arlington, Virginia, for
Complainant and Secretary of Labor, Jonathan W. Price, Esq., The Bell Law Firm,
PPLC of Charleston, West Virginia, for Complainant, Ricky Lee Campbell,
Thomas S. Kleeh, Esq. and J. A. Curia, Esq., Steptoe and Johnson, PLLC,
Charleston, West Virginia, for Respondent.
Before: Judge L. Zane Gill
This matter is before me on an Application for Temporary Reinstatement filed by the
Secretary on behalf of Ricky Lee Campbell, pursuant to section 105(c)(2) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2). Campbell filed a complaint with the
Secretary's Mine Safety and Health Administration (MSHA) alleging that his April 23, 2010
termination was motivated by his protected activity. The Secretary contends that Campbell's
complaint was not frivolous, and s~eks an order requiring the employing entity, Marfork Coal
Company ("Marfork"), to reinstate Campbell to his former position as a general laborer at the
Slip Ridge Cedar Grove Mine ("Slip Ridge"), pending the completion of an investigation and
final decision on the merits of his discrimination complaint. 1 An expedited hearing on the

The Secretary's original Application for Temporary Reinstatement ofMay 17, 2010,
included an allegation in paragraph 10 that Campbell had provided information in a federal
investigation while he was employed at Slip Ridge. The Secretary provisionally withdrew this
allegation prior to the June 4, 2010 hearing.
i

32 FMSHRC Page 621

application was held in Beckley, West Virginia, on June 4, 2010. 2
For the reasons that follow, I grant the application and order Campbell's temporary
reinstatement.

SUMMARY OF THE EVIDENCE
The parties stipulated that Campbell is a "miner" under the Mine Act and that this court
has jurisdiction to hear this case. (Tr.8.)
Campbell worked at various times relevant to this case as a shuttle car operator and bolter
for several mines operated by subsidiaries of Massey Energy Company ("Massey''), including
Parker Peerless Mine ("Parker Peerless) and Slip Ridge, both operated by Marfork Coal
Company ("Marfork"), and the Upper Big Branch-South Mine (''Upper Big Branch"), operated
by Performance Coal Company. (Tr. 17-18.)
Campbell began working for Marfork at Parker Peerless, in November of2009. (Tr. 17.)
He worked there for approximately three months before he was transferred to Upper Big Branch,
where he worked for approximately four months. (Tr. 18.) Campbell returned to Parker Peerless
for three days before starting work at Slip Ridge. (Id.)
On April 5, 2010, Campbell started to work at Slip Ridge. {Tr. 8.) According to
Campbell's testimony, he immediately voiced safety issues concerning the shuttles he was
operating. {Tr. 19, 38-39.) Campbell stated that each of the three shuttles he operated had
maintenance issues, including brakes and tram pedal malfunctions. (Id.) Campbell testified that
he had to take his hand and pull the tram pedal so he could slow two of the shuttles down. (Id.)
Campbell testified that he repeatedly reported the problem to employees of Slip Ridge, including
his immediate supervisor, the chief electrician, the mine foreman, the superintendent, and others
mentioned in his testimony without names. {Tr. 20.) In addition, Campbell stated that he shut
down a shuttle due to safety issues, but was ordered by supervisors to continue operating the
shuttle. (Tr. 43-44.)

On April 5, 2010, the day Campbell began working at Slip Ridge, the Upper Big BranchSouth Mine exploded, killing 29 miners. The tragic incident has received extensive media
coverage.
On April 7, 2010, Campbell returned to Upper Big Branch to pick up his last paycheck
and was approached by a Pittsburgh reporter who was accompanied by a television camera. (Tr.
2

The only witness examined at the hearing was Ricky Lee Campbell, although counsel
for the Respondent made an offer of proof of additional witness evidence that was excluded in
response to objections made by counsel for the Secretary.

32 FMSHRC Page 622

22.) The interview was printed in the Pittsburgh Post-Gazette, and the video was posted on the
newspaper's website. (Ex. R.4.) A DVD copy and a transcript of the television interview were
admitted into evidence. (Ex.Gland G2.)
On April 8, 2010, Slip Ridge management gave Campbell a written warning. (Tr. 58, 92.)
He was issued the warning after he severed a continuous miner power cable with a shuttle; (Id.)
Campbell testified that this was the first time he ran the "left side buggy," and he did not know
that the brakes were malfunctioning; (Id.) The continuous miner was out of operation for about
an hour and a quarter while repairs were performed. (Tr. 59.)
Shortly before Campbell was terminated (date uncertain), he shut down the mine
equipment he was working with because he believed it to be unsafe. Campbell testified that the
mine foreman, Jeremy Hall, instructed him to continue to work with the equipment nonetheless.
Campbell believed that the foreman's tone was loud and animated. The equipment in question
was out of service for about 30 minutes. (Tr. 84.)
On April 14, 2010, Slip Ridge management suspended Campbell from his duties. On
April 23, 2010, Campbell was terminated. (Tr. 8.) The Secretary alleges that Campbell's
dismissal was motivated by the safety complaints he voiced while working at Slip Ridge and by
his on-camera interview with a Pittsburgh media outlet, during which he criticized the safety
conditions and practices at the Upper Big Branch Mine, where he worked prior to Slip Ridge.
(Ex. R3 at 3; Ex. GI.)
During the April 14, 2010 meeting in which Campbell was notified of his suspension,
mine superintendent Tim Shea used coarse and hostile language when speaking to Campbell.
(Tr. 71.) Campbell did not ask for, nor did anyone else volunteer a reason for the suspension.
(Tr. 73.)
During the termination meeting on April 23, 2010, the tone was neutral, not hostile. No
one on the management side mentioned the media coverage. (Tr. 81.) No one told Campbell that
his termination had anything to do with his complaints about equipment safety. (Tr. 77.)
On May 18, 2010, the Commission received the Application for Temporary
Reinstatement brought by the Secretary of Labor on behalf of Campbell. On May 24, 201 O
Respondent Marfork requested a hearing on the Application for Temporary Reinstatement. On
May 27, 2010, I conducted a telephone conference call with the parties to discuss procedural
issues and to set a hearing schedule. During the conference call Mr. Lord made an oral motion in:
limine on behalf of the Secretary to exclude certain evidence. On May 28, 2010, I issued an
order denying the Secretary's oral motion for in limine. On June 3, 2010, the Secretary filed a
motion for reconsideration of the aforementioned Motion in Limine. The motion for
reconsideration was denied at the hearing on June 4, 2010, in Beckley, West Virginia.

32 FMSHRC Page 623

DISCUSSION OF RELEVANT LAW
Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any
protected right under the Mine Act. The purpose of the protection is to encourage miners "to
play an active part in the enforcement of the [Mine] Act" recognizing that, "if miners are to be
encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation.'~ S. Rep. No.
181, 95th Cong., 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 623 (1978).
When a person covered by the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
815(c)(2) notifies the Secretary that he/she believes discrimination has occurred, the Secretary is
obligated by Section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2) to investigate, "and if the
Secretary finds that such complaint was not frivolously brought, the Commission, on an
expedited basis [... ], shall order the immediate reinstatement of the miner pending final order on
the complaint."
The Commission has established a procedure for making the reinstatement decision.
Commission Rule 45(d), 29 C.F.R. § 2700.45(d) states:
The scope of a hearing on an application for temporary reinstatement
is limited to a determination as to whether the complaint was
frivolously brought. The burden of proof is upon the Secretary to
establish that the complaint was not frivolously brought. fu support
of [her] application for temporary reinstatement, the Secretary may
limit [her] presentation to the testimony of the complainant. The
respondent shall have an opportunity to examine any witness called
by the Secretary and may present testimony and documentary
evidence in support of its position that the complaint was not
frivolously brought.
29 C.F.R. § 2700.45(d)
As the above makes clear, and as I noted at the hearing on June 4, 2010, the scope of a
temporary reinstatement hearing is narrow, being limited to a determination by the judge as to
whether a miner's complaint was frivolously brought. Sec '.Y ofLabor on behalfofPrice v. Jim
Walter Resources, Inc., 9 FMSHRC 1305, 1306 (August 1987); aff'd sub nom. Jim Walter
Resources, Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990). It is "notthe judge's duty, nor is it
the Commission's, to resolve the conflict in testimony at this preliminary stage of the
proceedings." Sec'y ofLabor on behalfofAlbu v. Chicopee Coal Co., 21FMSHRC717, 719
(July 1999). fu reviewing a judge's temporary reinstatement order, the Commission has applied

32 FMSHRC Page 624

he substantial evidence standard. 3 See id. at 719; Sec'y ofLabor on behalf ofPeters v. Thunder
Basin Coal Co;, 15 FMSHRC 2425, 2426 (Dec. 1993).
The legislative history for section 105(c) reveals that Congress discussed the term
"frivolous" with the understanding that a complaint is not frivolous if it "appears to have merit."
S. Rep. No. 181, 95th Cong. 1st Sess. 36-37 (1977), reprinted in Senate Subcommittee on
Labor, Committee on Human Resources , 95th Cong. 2nd Sess., Legislative History of Federal
Mine Safety and Health Act of 1977, at 6240625 (1978). The "not frivolously brought" standard
has also been equated to the "reasonable cause to believe'; standard applied in other contexts. Jim
Walter Resources, Inc., 920 F.2d at 747; Sec '.Y of Laboron behalf of Bussanich v. Centralia
Mining Co., 22 FMSHRC 153, 157 (February 2000).
Under section 105(c) of the Act, the Secretary bears the burden of establishing: (1) that the
miner engaged in protected activity, and (2) that the adverse action complained of was motivated
in any part by that activity. Sec '.Y ofLabor on behalf ofPaula v. Consolidation Coal Co., 2
FMSHRC 2786(October1980), rev'd on other grounds sub nom.; Consolidation Coal Co. v.
Marshall, 773 F.2d 1211 (3rd. Cir. 1981); Secy ofLabor on behalf ofRobinette v. United Castle
Coal Co., 3 FMSHRC 803 (April 1981 ); Sec '.Y ofLabor on· behalfofJenkins v. Hecla-Day Mines
Corp., 6 FMSHRC 1842 {August 1984); Sec '.Y ofLabor on behalf of Chacon v. Phelps Dodge
Corp., 3 FMSHRC 2508(November1981), rev'd on other grounds sub nom.; Donovan v. Phelps
Dodge Corp., 109 F.2d 86 (D.C. Cir. 1983).
Thus, an applicant for temporary reinstatement need not prove a prima facie case of
discrimination with the attendant requirement of proving all necessary elements at a higher
evidentiary standard, as would be required in a trial on the merits. But the applicant must provide
evidence of sufficient quality and quantity (substantial evidence) to allow the judge to find by
application of the ''reasonable cause to believe" standard that: (1) the applicant engaged in
protected activity-, and (2) that there is sufficient showing of a nexus between the protected
activity and the alleged discrimination, to support a conclusion that the complaint of
discrimination is not frivolous.
Regarding the nexus requirement, other judges and the Commission have adopted
elements of the full prima facie case to create an analytical framework that comports with the
strictures of the limited evidentiary scope of the temporary reinstatement process yet is useful in

3

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. §
823(d)(2)(A)(ii)(l). "Substantial evidence" means '"such relevant evidence as a reasonable mind
might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh Coal Co.,
11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305U.S. 197,
229 (1938)).

32 FMSHRC Page 625

bridging the sometimes difficult gap between alleged actions and the intentions behind them. In
recognition of the fact that direct evidence of intent or motivation is rarely found, the Commission
has identified several circumstantial indicia of discriminatory intent: (1) hostility or animus
toward the protected activity, (2) knowledge of the protected activity, and (3) coincidence in time
between the protected activity and adverse action. Secretary ofLabor, Mine Safety and Health
Administration (MSHA) on.behalf ofLige·Williamson v. CAM Mining, LLC, 31FMSHRC1085,
1089 2009 WL 3802726, (F.M.S.H.R.C.), October22, 2009, KENT 2009-1428-D.

APPLICATION OF LAW TO THE EVIDENCE
The Secretary has established by the standards set out above that Campbell engaged in
protected activity. 4 Campbell testified that he immediately and repeatedly brought what he
believed to be complaints about faulty equipment to the attention of appropriate management
individuals. He also shut down equipment he was working with due to his concern that it was
unsafe. There is no question that Campbell's complaints about faulty mine equipment are enough
to invoke the miner protections in section 105(c) of the Mine Act. 5
The Secretary has also established by the standards set out above that there is sufficient
nexus between Campbell's protected activity and the adverse action, i.e., his suspension and
ultimate termination. The Secretary's evidence is sufficient to establish that mine management
knew or should have known that Campbell was complaining about faulty equipment. Campbell
expressed concern about the safety of the equipment he was operating clearly and frequently
enough to bring it to the attention of his superiors. There is also sufficient evidence in the record
to establish the temporal proximity between the protected activity and the adverse action. The
short period of time between Campbell's.transfer to the Slip Ridge facility, his safety complaints
to management, and his ultimate termination underscore this point. The coincidence in time
between the protected activity and Campbell's termination can be a basis on which to infer an
illegal motive on CAB's part. Durango Gravel, 21 FMSHRC at 957.
The evidence of animus on the part of the employing mine is less clear though still
sufficient. The evidence of the timing and tone of management actions is sufficient for a person
reviewing these facts to reasonably believe that management's actions were, at least in part, a
reaction to Campbell's safety complaints. 6 In· addition to the short time periods discussed above,

4

It is not necessary to decide if Campbell's statements to the press constitute protected
activity. His complaints to persons tasked with mine management about the safety of the
equipment he operated satisfy that portion of section 105 (c) of the Act.
5

Counsel for the mine operator conceded that Campbell's complaints about perceived
equipment safety constitute protected activity. (Tr. 23)
6

As mentioned above, the events related to the Upper Big Branch disaster and
Campbell's involvement with media coverage are not taken into account in this decision.
32 FMSHRC Page 626

the evidence of hostile, coarse, and abrupt tone on the part of management is sufficient to sustain
a reasonable conclusion of animus. Accordingly, I conclude that this element of the nexus
analysis is also satisfied to the level required by the law discussed above.

In summary, all elements of the analytical :framework discussed above are satisfied to the
level required by the relevant statutes, rules, and case law precedents. The Secretary has carried
her burden of adducing substantial evidence to support a reasonable cause to believe that
Campbell engaged in protected activity, and that there is a nexus between the protected activity
and the adverse action of suspension and termination. I conclude that the complaint of
discrimination was not frivolously brought.
ORDER
For these reasons, Marfork Coal is ORDERED to reinstate Campbell to the position he
held on April 14, 2010, or to an equivalent position, at the same rate of pay and with the same
hours and benefits to which he was then entitled.
Campbell's reinstatement is not open-ended. It will end upon a final order on Campbell's
complaint. 30 U.S.C. § 815 (c)(2). Therefore, it is incumbent on the Secretary to determine
promptly whether or not she will file a complaint with the Commission under section 105(c)(2)
of the Act based on Campbell's May 4, 2010, complaint to MSHA. Accordingly, the Secretary is
ORDERED to advise counsel for Marfork Coal and the court of her decision by July 26, 2010,
and, if a decision has not been made by that date, I will entertain a motion to terminate the
reinstatement.

.Zane Gill
Administrative Law Judge

Distribution: (Electronic Transmission and U.S. Mail)
Samuel Lord, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22m1 Floor
West, Arlington, VA 22209-2247
Ricky Lee Campbell, 1100 Dixie Avenue, Beckley, WV 25801
Jonathan W. Price, Esq., The Bell Law Firm, PLLC, 30 Capital St., P.O. Box 1723, Charleston, WV
25326
.
Thomas S. Kleeb, Esq., Steptoe & Johnson, PLLC, Chase Tower, Eighth Floor, P.O. Box 1588,
·
Charleston, WV 25326

led
32 FMSHRC Page 627

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19111 STREET, SUITE 443
DENVER, CO 80202-2500
303-844-35n/FAX 303-844-5268

June 17, 2010
CONTEST PROCEEDING

TWENTYMILE COAL COMPANY,
Contestant

Docket No. WEST 2008-787-R.
Order No. 7610956; 03/12/2008

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent

Foidel Creek Mfue
Mine ID: 05-03836

CIVIL PENALTY PROCEEDINGS

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner

Docket No. WEST 2008-352
A.C. No. 05-03836-134666

v.

Docket No. WEST 2008-1321
A.C. No. 05-03836-155287-01
Docket No. WEST 2008-1576
A.C. No. 05-03836-161331

TWENTYMILE COAL COMPANY,
Respondent

Foidel Creek Mine

DECISION
Appearances:

R. Henry Moore, Esq., Jackson Kelly PLLC, Pittsburgh,
Pennsylvania, for Twentymile Coal Company;
Kristi L. Henes, Esq., Office of the Solicitor, U.S. Department
of Labor, -Denver, Colorado, and Larry R. Ramey, Conference &
Litigation Representative, Mine Safety ana Health Administration,
Denver, Colorado, for the Secretary of Labor.

Before:

Judge Manning

These cases are before me on a notice of contest filed by Twentymile Coal Company
(''Twentymile") and petitions for assessment of civil penalty filed by the Secretary of Labor,
acting through the Mine Safety and Health Administration ("MSHA") pursuant to sections 105
and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the

32 FMSHRC Page 628

"Mine Act"). The parties introduced testimony and documentary evidence at a hearing held in
Steamboat Springs, Colorado.
Twentymile operates the Foidel Creek Mine, a large underground coal mine in Routt
County, Colorado. Tue mine extracts coal in panels using a longwall system. As discussed
below, the parties settled most of the citations at the start of the hearing, so only Order No.
7622519 and Citation No'. 7622452 were adjudicated.
·

I. ORDER No. 7622519; WEST 2008-1576

A. Backiround
On July 8, 2008, Inspector Carol Miller issued Order No. 7622519 under section
104(d)(2) of the Mine Act, alleging a violation of 30 C.F.R. § 75.380(d)(7)(iv) as follows, in
part:
The lifeline in the escapeway of 22 Right at crosscut 62+50 in the
No. 1 entry, crosscut 71+25 to crosscut 75+00 in theNo. 2 entry
was not located in such a manner for miners to use effectively to
escape. The lifeline was covered by a pump cable in the No. 1
entry. fu the No. 2 entry, the lifeline at crosscut 65+00 was
covered by a communication cable. From 71 +50 to crosscut 75+67
in two locations the lifeline was cut in half and tied to the mesh
with 6 feet and 2.5 feet of continuous cable not intact plus the
cable was hung from the roof with a snap link, cable hangers, and
hooked in the roofing mesh throughout this location.
(Ex. G-1 ). The 'inspector determined than an injury was unlikely but that any injury would result
in lost workdays or restricted duty. She determined that the violation was not significant and
substantial ("S&S") and that the company's negligence was high. The unwarrantable failure
determination was based, in part, on the fact that the mine was issued a citation on July 3, 2008,
for a similar violation. Section 75.380(d)(7)(iv) provides that "[e]ach escapeway shall be- ...
(7) [p]rovided with a continuous, durable directional lifeline or equivalent device that shall be ... (iv) [l]ocated in such a manner for miners to use effectively to escape." The Secretary
proposes a penalty of $4,000.00 for this order.
Inspector Miller testified that as she inspected the mine she followed the route of the
primacy escapeway for the 22 Right longwall section. While traveling the route, she encountered
two areas where the lifeline had been severed as well as other areas where the lifeline was not
accessible to miners who may have needed it in the event of an emergency. {Tr. 13). The lifeline
had been lifted up to the roof and hooked to the roof mesh by an assortment of snap links and
high voltage cable hangers. {Tr. 13-14, 33). She testified that because the roof was nine feet
high, the lifeline could not be reached by miners in those areas where it was hanging from the

32 FMSHRC Page 629

roof. (Tr. 15). Inspector Miller further testified that pump cables and communication cables
were also hung from the roof and crossed under the lifeline with the result being that a miner
might not be able to pull down the lifeline during an emergency. (Tr. 14). Finally, she testified
that the lifeline had been cut in two areas and the ends had been tied to the roof mesh creating a
gap of six feet and another gap of two and.a half feet in the lifeline. (Tr. 13-14, 21-22).
Inspector Miller testified that the violative conditions existed in several locations over
about 1,300 feet of the iifeline. The lifeline was either not continuous or was not located in an
area where it could be reached by miners. · She testified that lifelines are designed to allow miners
to use their hands to find their way out of the mine in the event of an emergency. (Tr. 39). The
lifeline and attached cones provide a visual and tactile means of conveying the route and
direction of the escapeway. (Tr. 41). In a smoke-filled environment, miners are trained to locate
and follow the lifeline out of the mine as quickly as possible. (Tr. 17);
Rob Coop worked in Twentymile's safety department at the time of the inspection. Coop
testified that the cited conditions existed because there had been a power move during the
previous (graveyard) shift. A power move generally involves turning off and locking out power
to the belts, disconnecting hydraulic equipment, removing the water lines from the pumps,
disconnecting the power, moving the power train and pumps, moving the cables, and then
reconnecting everything back together. (Tr. 48-49). He testified that snap links and cable
hangers were used to put the lifeline up near the ceiling during the power move so that the
equipment would not snag or cut the lifeline. (Tr. 51 ). Mr. Coop testified that, more than likely,
the lifeline had been cut so that the hoses and cables could be dropped down during the power
move. (Tr. 50). Coop assumed that the lifeline was not fixed after the power move because the
crew "got busy and did not get back to it." Id. He did not believe that it was necessary for the
crew to cut the lifeline during a power move but that the crew probably did not want to
disconnect the power cables because they are large, heavy, and difficult to move. (Tr. 59-62).
He stated that the cable connectors weigh between 90 and 100 pounds. (Tr. 62). Coop could not
explain why the preshift examiner did not observe the conditions cited by Inspector Miller. (Tr.
59).
Tuck Timothy Walker was a scoop operator who was functioning as a step-up lead: man
for the outby areas at the time the order was issued. (Tr. 64). Walker testified that he conducted
a preshift examination of the subject area on July 8, while Scott Simpson, the longwall foreman,
conducted the preshift examination of the longwall face area. (Tr. 67-69). He testified that his
shift started at 6:00 a.m. on July 8 and that he would have reached the cited area during his
examination between 6:45 a.m. and 7:00 a.m. (Tr. 71-72). Walker said that he was not sure if he
had traveled through the cited area before the order was issued by Inspector Miller, but that he
would definitely have examined it at some point during his preshift on July 8. (Tr. 74).
Inspector Miller testified that on July 3, 2008, five days before the issuance of the subject
order, she issued Citation No. 7622518 for a violation of the same safety standard. (Tr. 18-19;
Ex. G-3). Miller cited a lifeline that had been rendered inaccessible because various cables

32 FMSHRC Page 630

crossed under the lifeline and would have prevented miners from pulling the_ lifeline down from
the roof and using it to guide them out of the mine. She said that a crew had completed a power
move eight days before the citation was issued and it appeared that the condition had not been
corrected during that time. (Tr. 36). Inspector Miller testified that she discussed the violation
and what she perceived as a developing pattern of lifeline violations at the mine with Richard
Conkle, Twentymile' s safety manager, at the closeout conference during the July 3 inspection.
(Tr. 20). His usual practice after receiving a citation is to make copies of the citation, place the
copies in the supervisors' office, and then review the citation with these supervisors. (Tr. 85-86).
The supervisors then review the citations with the crews before they go underground~ Conkle
was fairly certain that these steps were taken after the July 3 citation was issued. (Tr. 86).
Conkle testified that it was very unlikely that there would be so much smoke in an escapeway
that a miner would have to use a lifeline. {Tr. 87). Coop testified that he was aware of the July 3
citation. (Tr. 55).
Inspector Miller testified that she based her high negligence and unwarrantable failure
finding on a number of factors. She said that she discovered the violation when she came to the
mine to terminate the citation she issued on July 3 for a violation of the same standard. (Tr. 16,
25). Miller believed that the previous citation, as well as several other prior citations for similar
conditions, put Twentymile on notice regarding the seriousness of the violation and that it needed
to take greater efforts to comply with the lifeline standards. {Tr. 19-20, 23;.24). She testified
that at the time she arrived on July 8, coal was being mined but no efforts were being made to
correct the violative condition. The crew had been in the mine for a little over an hour at the
time she discovered the violation.
Inspector Miller also testified that the cited condition should have been detected during
the preshift examination. (Tr. 16). The inspector did not talk to Walker, but she did talk to
Simpson who told her that the area would have been preshifted by Walker. Inspector Miller
recognized that while a preshift examiner should be looking for immediate hazards, such as.
dangerous rib conditions or methane accumulations, he should also be concerned with other
conditions, such as the condition of the lifeline because it is important and easy to observe. {Tr.
43-44). Miller testified that the cited area was preshifted every eight hours and that, with a shift
coming on after the power move, a foreman should have been aware of the condition. (Tr. 16).
The inspector testified that the power move was made on the previous shift and the
miners who moved the power center and the foreman in charge of the move should have made it
a priority to make sure that the lifeline was available for use after completion of the move. {Tr.
17, 18, 22). Further, ifthe mine was going to hang the lifeline from the roof, breakable ties
should have been used that would have allowed miners to pull down the lifeline for use in the
event of an emergency. {Tr. 33-34). Miller testified that the cited conditions were very obvious.
(Tr. 17). She also believed that the violative condition was extensive because it was not isolated
to a single area but existed over a distance of about 1,300 feet of the lifeline. (Tr. 17, 21 ). Miller
acknowledged that there was a second escapeway that went inby the longwall and that this
escapeway was completely isolated from the cited escapeway. (Tr. 29.,.30).

32 FMSHRC Page 631

B. Summary of the Parties' Areuments.
The Secretary argues that the order should be affirmed as written. The Secretary contends
that the unwarrantable failure and negligence findings are supported by the evidence. Inspector
Miller issued an almost identical citation five days earlier and that citation put Twentymile on
notice as to what was required. In spite of this notice, Twentymile created this condition on the
previous shift and did not immediately correct it after the power move. The condition was
extremely obvious, yet it was not recognized during the preshift or onshift examinations and it
was not corrected. The condition was also rather extensive as it existed over about 1,300 feet of
the lifeline.
Twentymile contends that the Secretary did not establish that the violation was the result
of its unwarrantable failure to comply with the safety standard. A move of the longwall power
center during the prior shift necessitated severing the lifeline in two areas and hanging the lifeline
near the roof. These steps were taken to protect the lifeline from damage during the move of the
power center. This condition lasted for a short period of time. Although the 8-hour cycle
preshift examination for the day shift had begun, the examiner had not reached the area cited by
Inspector Miller. The condition was not extensive and it was limited to a small area of the
lifeline that extended through thousands of feet of escapeway. Further, the issuance of the
citation for a similar violation on July 3 is not dispositive of an unwarrantable failure finding.

C. Analysis.
The plain language of the safety standard provides that a lifeline must be (1)
"continuous," and (2) "located in such a manner for miners to use effectively to escape." See
Jim Walter Resources, Inc., 31FMSHRC1208 (Oct. 2009) (ALJ); Cumberland Coal Resources,
31FMSHRC1147 (Sept. 2009 (ALJ) (Pet. for disc. rev. granted by Comm. on Oct. 15, 2009). In
the present,case, the lifeline had.been cut in half in two places and it was covered by a pump
cable and by a communication cable in other locations. Thus, I find that Twentymile violated
both of the requirements set forth in the standard. The lifeline was not continuous in several
locations and it was not located where miners could use it for escape in other locations. 1
fu.Lopke Quarries, Inc.,_23 FMSHRC 705, 711 (July2001), the Commission restated the
law applicable to determining whether a violation is the result of an unwarrantable failure:

The unwarrantable failure terminology is taken from
section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more
1

Twentymile frequently hangs the lifeline from the roof with hangers so that it is not down on
the ground and it can be easily reached by miners. In the case at hand, the lifeline was pulled up ·
to the roof, or close to the roof, during the power move. In this state, miners might not be able to
reach it. Because it was above power and communication cables, miners would also not be able
to easily pull it down even if they could reach it.
32 FMSHRC Page 632

serious conduct by an operator in connection with a violation. In
Emery Mining Corp., 9 FMSHRC 1997 ·(Dec.1987), the
Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Id. at 2001.
Unwarrantable failure is characterized by such conduct as "reckless
disregard," "intentional misconduct," "indifference," or a "serious
lack of reasonable care." Id. at 2003-04; Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189, 194 (Feb. 199l)("R&P"); see also
Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir.
1995)] (approving Commission's unwarrantable failure test).
Whether conduct is "aggravated" in the context of an
unwarrantable failure analysis is determined by looking at all the
facts and circumstances of each case to see if any aggravating
factors exist, such as the length of time that the violation has
existed, the extent of the violative condition, whether the operator
has been placed on notice that greater efforts are necessary for
compliance, the operator's efforts in abating the violative
condition, whether the violation is obvious or poses a high degree
of danger, and the operator's knowledge of the existence ofthe
violation. See Consolidation Coal Co., 22 FMSHRC 340, 353
(Mar. 2000) ... ; Cyprus Emerald Res. Corp., 20 FMSHRC 790,
813 (Aug. 1998),rev'd on other grounds, 195 F.3d 42 (D~C. Cir.
1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997);
Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994);
Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992);
BethEnergyMines, Inc., 14 FMSHRC 1232, 1243-44 (Aug.1992);
Quin/and Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of
the relevant facts and circumstances of each case must be
examined to determine if an actor's conduct is aggravated, or
whether mitigating circumstances exist. Consol, 22 FMSHRC at
353. Because supervisors are held to a high standard of care,
another important factor supporting an unwarrantable failure
determination is the involvement of a supervisor in the violation.
REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998).
I find that the Secretary established that this violation was the result ofTwentymile's
unwarrantable failure to comply with the safety standard. The first aggravating factor to be
addressed is the length of time that the violative condition existed. It appears that the violative
condition first existed during the graveyard shift that began on July 7, 2008, during which a
power move was conducted. The lifeline was severed and raised to the roof in order to prevent
tearing the lifeline with the equipment that was being moved. It is not clear what time on July 7

32 FMSHRC Page 633

the power move crew created the condition but, more than likely, it was one of the first tasks they
completed. The condition was not abated until about 8:25 a.m. on July 8, 2008.
Twentymile asserts that the short duration of the violative condition necessitates a finding
that the violation "cannot properly be considered an unwarrantable failure." (Twentymile Br. 2).
Although the condition existed for less than a full shift, it was a condition that was knowingly
created by the shift conducting the power move. This crew neglected to fix the condition upon
the completion of the move or to make sure that the oncoming crew corrected the condition at the
start of the following shift. Instead, Twentymile began mining coal the following shift without
taking steps to repair the lifeline. Twentymile argues that the condition would have been
discovered by Mr. Walker during his preshift. Assuming that to be true, it must be remembered
that the purpose of a preshift examination is to look for hazardous conditions, not to make sure
that work crews are doing their job. Twentymile should not rely on preshift examinations to
make sure that lifelines are repaired after power moves. It should have been part of the crew's
job to fix the lifeline after the power station was moved or, if the crew ran out of time, to take
steps to ensure that it was repaired at the start of the following shift.
The second aggravating factor that must be looked at is the extent of the violative
condition. Inspector Miller testified that this was not an isolated violation. Rather, it existed for
approximately 1,300 feet of the lifeline. The lifeline had been severed in two places and was
inaccessible to miners for an extended length. Twentymile argues that the violative condition
only existed for a small portion ofthe total lifeline that extended for thousands· of feet through
the mine. This argument is troubling. A severed, inaccessible lifeline serves very little purpose
in a smoke-filled environment, which is exactly the kind of environment that lifelines are
designed to address. Inspector Miller found that 20 people were affected by the violative
condition. An interruption in, or inaccessible portion of, a lifeline has the potential to render
useless the remaining length of the lifeline that exists outby the violative condition. If a miner
inby the violative condition begins to utilize the lifeline and comes upon an interruption or
inaccessible portion, they may never have the chance to find and utilize the remainder of the
lifeline that exists on the other side of the interrupted or inaccessible portion.
The third aggravating factor that must be addressed is whether the operator has been
placed on notice that greater efforts are necessary for compliance. On July 3, 2008, Inspector
Miller issued a citation for violation of the same standard that is the subject of the order in
question. Twentymile argues that the citation issued on July 3, 2008, cannot be independently
dispositive of the unwarrantable failure issue. That is true, but it is one of the factors that must
be considered. The Commission has recently stated that, in addressing whether a violation is the
result of an unwarrantable failure, "[w ]hile an administrative law judge may determine, in his
discretion, that some factors are not relevant, or may determine that some factors are much less
important than other factors under the circumstances, all of the factors must be taken into
consideration and at least noted by the judge." IO Coal Co., Inc., 31FMSHRC1346, 1351 (Dec.
2009). The July 3ro citation was issued for cables and hoses passing under the lifeline, thereby
making the lifeline inaccessible to miners who may have needed it in the event of an emergency.

32 FMSHRC Page 634

The subject order was issued in an area described as "some distance" from the area that was the
subject of the earlier citation. Be that as it may, the violative conditions are very similar.
Inspector Miller spoke with Conkle during a closeout conference for the July 3rd citation and
expressed her concern regarding a series of lifeline citations that had been issued. Conkle
indicated that, generally, copies of citations are posted for all miners to see, placed in the
supervisor's office, and reviewed and discussed with supervisors who then do the same with their
crews. Coop indicated that he was aware of this violation. I find that Twentymile was on notice
that greater efforts were necessary for compliance with the lifeline standard.
The fourth aggravating factor that must be addressed is the operator's effort in abating the
violative condition. As discussed above, Twentymile was not in the process of eliminating the
hazard when Inspector Miller encountered the condition and·it had not been entered in the
company's examination books. If the outby crew were in the process of repairing the lifeline
when Inspector Miller arrived, then it could be said that the operator was attempting to .correct
the condition.
The fifth aggravating factor that must be addressed is whether the violation was obvious
or posed a high degree of danger. According to Inspector Miller, the condition was very obvious.
Coop testified that he observed the condition at the same time Miller did, but he was unable to
offer an explanation as to why the condition was not recognized by a preshift or onshift
examiner, or the foreman in charge of the power move on the July 7. Given the importance of
lifelines in the event of an emergency, the fact that lifelines are designed with reflective tape to
make them easily visible, and the fact that both Miller and Coop noticed the condition, I find that
the violation was "obvious." As Miller noted, miners should always be conscious of the
condition of the lifeline, which in some cases may be their only means of finding a way to safety.
The sixtp, and final, aggravating factor that must be considered is the operator's
knowledge of the existence of the violation. There is no dispute that the lifeline was severed and·
raised to the roof by the crew that conducted the power shift. It is clear that Twentymile's
employees was aware of the cited conditions because they created them. The conditions were not
remedied because the crew got busy and did not get back to it. Thus, Twentymile was aware of
the condition, but it decided to not fix it and instead concerned itself with resuming production.
The above analysis of aggravating factors, combined with the lack of substantive
mitigating factors, demonstrates that Twentymile engaged in aggravated conduct constituting
more than ordinary negligence. In this particular case, the aggravated conduct is most accurately
characterized as "indifference" or "a serious lack of reasonable care" on the part of Twentymile.
The cited condition was created in order to more easily conduct the power move. Further, the
violative condition was not timely addressed after the power move was completed. For the same

32 FMSHRC Page 635

reasons, Inspector Miller's finding of high negligence is appropriate. 2 I find that a penalty of
$5,000.00 is appropriate for this violation.

II. CITATION No. 7622452; WEST 2008-1321

A. Back2found
On April 11, 2008, Inspector Art C. Gore issued Citation No. 7622452 under section
104(a) of the Mine Act, alleging a violation of 30 C.F.R. § 75.380(d)(2) as follows:

Each escapeway in the mine shall be clearly marked to show the
route and direction of travel to the surface. The red reflectors in
the alternate escapeway located in 20. Right #3 entry from crosscut
15+00 outby were completely covered with dust and could not be
seen.
(Ex. G-5). The inspector determined than an injury was unlikely but that any injury would result
in lost workdays or restricted duty. He determined that the violation was not S&S and that the
company's negligence was moderate. Section 7,5.380(d)(2) provides that "[e]ach escapeway
shall be- ... (2) [c]learlymarked to show the route and direction of travel to the surface." The
Secretary proposes a penalty of $946.00 for this citation.
While at the mine, Inspector Gore traveled through the 20 Right No. 1 entry.3 He noticed
that there was dust on the reflectors hanging from wires attached to the center of roof The mine
uses reflectors to mark ecapeways and different colors are .used to designate different escape
routes. Inspector Gore testified that the red reflectors in the entry used as the alternate escape
route were cfil,ced with a combination of rock dust and coal dust. {Tr. 95, 100). He stated that no
reflective material could be seen on the reflectors when a light was shined down the entry
because they were covered with dust. Gore testified that it is crucial for mine operators to keep .
reflectors clean so that miners will know where to go in the event of an emergency that requires
escape from the mine. He further testified that the Secretary's safety standard requires.
escapeways to be clearly marked and that the reflectors in the present entry were too dirty to
provide guidance to miners in the event of an emergency. This condition existed for about 1,000

2

Twentymile also argues that the gravity of the violation was improperly evaluated under the
assumption that an emergency had occurred and the lifeline needed to be used. Inspector Miller
determined that an accident or injury was unlikely and that the violation was not S&S. She
determined that, if there were an injury, it would likelyresult in lost workdays or restricted duty.
She determined that 20 people were affected by the violation based on the number of people on
the longwall crew. I find that the inspector's gravity determination is supported by the evidence.
3

At the hearing, Inspector Gore admitted that the reference in the citation to the No. 3 entry was
incorrect and that the condition he cited was actually in the No. 1 entry. (Tr. 93).
32 FMSHRC Page 636

feet in the alternate escapeway, which is the tailgate entry for the longwall section and is a return
air course. (Tr. 95, 97, 102).
Gore acknowledged that, otherwise, the escapeway was well maintained, the miners were
well trained, and the operator has effective training policies for underground escape routes. (Tr.
96-97). He noted that he has previously issued similar citations to Twentymile. (Tr. 99-100).
Inspector Gore testified that the reflectors were cleaned during the weekly examination and that
six days had passed since the last examination. (Tr. 101). He said that six days would have
allowed enough time for dust to build up on the reflectors but it was not enough time for a person
to become aware of it. Id. Loren Young, a former Twentyrnile employee, testified that he would
regularly clean off the reflectors during his weekly examinations of the escapeways. (Tr. 114).
Gore acknowledged that he believed that there was a lifeline in the alternative escapeway,
but he did not know whether the lifeline was color coded in order to distinguish the alternate
escapeway from the primary escapeway. (Tr. 102, 109). Gore was accompanied by an MSHA
trainee inspector. His notes reflect that a lifeline was present in the escapeway. (Tr. 102.:..103).
Inspector Gore stated that lifelines are to be used in combination with reflectors and not to
replace them. (Tr. 106).
Dick Conkle testified that there was a lifeline in the cited escapeway and that it met all of
the requirements of the cited safety standard. (Tr. 121). He testified that the lifeline had
reflective material on the directional cones and that these cones clearly marked the escapeway.
(Tr. 123).
B. Summary of the Parties' Ar&uments.
The SeC!etary argues that Twentymile violated section 75.380(d)(2) when it failed to
maintain a clearly marked escapeway which would show the route and direction of travel to the
surface. Specifically,. the Secretary asserts that the dust-covered reflectors were too dirty to
clearly mark the alternate escapeway. (Tr. 129). The Secretary argues that, in evaluating
whether there is a violation of the cited escapeway standard, the judge must assume the existence
of an emergency. (Tr. 128).
The Secretary argues that the issuing inspector, as well as other MSHA inspectors, had
cited this condition on multiple occasions prior to the issuance of the citation in question, thereby
placing Twentymile on notice of what was required for compliance. (Tr. 129). Further, the
Secretary contends that the presence of a lifeline, which may satisfy lifeline standards added by
the 2006 MINER Act, does not satisfy the cited standard and Twentymile must still maintain the
reflectors in the escapeway. (Tr. 128-130) (citing Spartan Mining Co., 30 FMSHRC 699 (Aug.
2008)).
Twentyrnile argues that the citation should be vacated given that the lifeline clearly
marked the alternate escapeway. There is little to no guidance regarding what "clearly marked"

32 FMSHRC Page 637

means within the cited standard. {Tr. 132). Further, reflectors are not required, nor are they the
only means of"clearly marking" an escapeway. {Tr. 132). The cited standard is general and
utilizes vague language. {Tr. 133). On the other hand, the lifeline standard at Section
75.380(d)(7) is specific and necessarily satisfies the more general standard that the Secretary
alleges was violated. {Tr. 133; Twentymile Br. 2). Where two associated standards exist, the
rules of statutory interpretation dictate that the more specific standard controls the more general.
{Tr. 133; Twentymile Br. 3 (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384
(1992)).
Reflectors, while beneficial in marking a smoke-free escapeway, provide little assistance
in a smoke-filled escapeway and don't provide a directional component, regardless of whether
they are covered in dust. (Tr. 133). A lifeline with reflective materials and directional cones ·
clearly marks the escapeway in a smoke-free environment in addition to providing tactile
directional input to a miner in a smoke-filled environment. (Tr. 133).

C. Analysis
Neither the Commission nor its ALJs have directly addressed the issue of what is required
to "clearly mark" an escapeway such that it shows the "route and direction of travel to the
surface." There is no direct guidance regarding the use of a lifeline to satisfy the cited standard's
requirement that escapeways be "[c]Iearly marked to show .the route and direction of travel to the
surface." The Secretary contends that the presence of a lifeline does not satisfy the cited
standard. Moreover, she argues that the two standards, i.e., 75.380(d)(2) and 75.380(d)(7), are
not duplicative requirements and, therefore, require different means of satisfaction. As support
for her argument she references Spartan Mining Co., 30 FMSHRC 699 (Aug. 2008). The
Spartan case cited by the Secretary addresses the issue of whether two citations are duplicative of
each other, thereby punishing the operator twice for the same violation. That is not the issue
here. Here, the issue is whether a lifeline is capable of "clearly marking" an escapeway ''to show
the route and direction of travel to the surface." Only one citation was issued in this instance
and, therefore, duplication is not an issue. The lifeline was not cited nor was it referenced in the
citation as a possible way of marking the escapeway. Nevertheless, Inspector Gore
acknowledged that reflectors were not the only way of marking an escapeway and, further, that a
lifeline is capable of marking an escapeway. (Tr. 103-105). For that reason, an analysis must be
undertaken that asks whether the particular lifeline present in the alternate escapeway at the
Foidel Creek Mine "[c]learly marked (the escapeway] to show the route and direction of travel to
the surface."

In Phelps Dodge Tyrone, Inc., 30 FMSHRC 646, 651-652 (2008), the Commission
outlined the means of interpretation of a regulatory term as follows:
Where the language of a regulatory provision is clear, the
terms of that provision must be enforced as they are written unless
the regulator clearly intended the words to have a different

32 FMSHRC Page 638

meaning or unless such a meaning would lead to absurd results.
Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987)
(citations omitted); see also Utah Power & Light Co., 11
FMSHRC1926, 1930 (Oct. 1989) (citations omitted);
Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). If,
however, a standard is ambiguous, courts have deferred to the
Secretary's reasonable interpretation of the regulation. See Energy
West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994);
accord Sec '.Y ofLabor v .. Western Fuels-Utah, Inc., 900 F .2d 318,
321 (D.C. Cir. 1990) ("agency's interpretation ... is 'of controlling
weight unless it is plainly erroneous or inconsistent with the
regulation' ")(quoting Bowles v. Seminole Rock & Sand Co.,325
U.S. 410, 414 (1945) (other citations omitted)).
The "language of a regulation ... is the starting point for its
interpretation." Dyer [v. United States], 832 F.2d at 1066 (citing
Consumer Prod. Safety Comm.'n v. GTE Sylvania, Inc., 447 U.S.
102, 108 (1980)). In the absence of a regulatory definition or
technical usage of a word, the Commission would normally apply
the ordinary meaning of the word. See Bluestone Coal Corp., 19
FMSHRC 1025, 1029 (June 1997); Peabody Coal Co., 18
FMSHRC 686, 690 (May1996), affd, 111F.3d963 (D.C. Cir.
1997) (table).
(Footnote omitted). The cited standard is somewhat ambiguous. The plain meaning of the
language is instructive. "Clear," the adverb form of the adjective in question, is defined as
"easily visible : PLAIN [,] ... free from obscurity or ambiguity : easily understood :
UNMISTAKABLE," Webster's New Collegiate Dictionary 205 (1979). "Marked" is defined a8
"having an identifying mark." Id. at 697. "Mark" is defined as "a conspicuous object serving as
a guide for travelers." Id. Based on the plain meaning of these words, the cited standard requires
that escapeways be equipped with easily visible or understood, conspicuous objects, that show·
the route and direction of travel to the surface.
Inspector Gore agreed that a lifeline is capable of marking an escapeway. (Tr. 103, 105).
When presented with a sample of a lifeline at the hearing, Inspector Gore also agreed that it
included reflectors and that the lifeline with cones installed would mark the escapeway. (Tr.
103-105; Ex. G-2, Ex. TM-3). The inspector agreed that the safety standard does not required
reflectors, it only requires that escapeways be clearly marked. (Tr. 104).
There is no pertinent legislative history that discusses either the regulatory or statutory
language that requires escapeways to be "properly" or "clearly" marked. However, given the
facts of this case, and the argument raised by the operator regarding lifelines, the legislative
history of the 2006 MINER Act and its requirement that lifelines be installed in escapeways may

32 FMSHRC Page 639

be helpful. A Senate Report on the MINER Act included the following language regarding
lifelines:
Providing underground personnel with assistance in locating and
following escape routes, particularly in circumstances of
diminished visibility, is an important feature in any emergency
plan. Flame-resistant directional lifelines are likely the most
common method for achieving this end, and are the most
reasonably calculated to remain usable in a post-accident setting.
S. REP. No. 109-365 (2006).

There is little to no dispute regarding the facts in this matter. The dust-covered reflectors
were not easily visible. Coal and rock dust were caked on the reflectors hanging from the roof
such that, when a light was shined down the entry, no reflective material could be seen.
Inspector Gore testified that, while it was obvious to him that the round, dust-covered objects
hanging from the roof were reflectors designed to mark the escapeway, the reflectors were
nevertheless difficult to see.. (Tr. 106-107). Further, both parties acknowledged that, in a
smoke-filled entry, the dust-covered reflectors would be nearly impossible to see. In an
emergency, a miner should not have to spend too much effort searching for his escapeway.
Operators must take more than general precautions to ensure that miners can quickly and safely
exit the mine in an emergency. The plain meaning of the cited standard requires that escapeways
be equipped with easily visible or understood, conspicuous objects, that show the route and
direction of travel to the surface.
Inspector Gore testified that reflectors were not the only means of marking an escapeway.
Gore acknowledged that white signs with black lettering were capable of marking escapeways.
Further, he acknowledged that lifelines were capable of marking escapeways. He qualified that
statement by saying that lifelines should only be used to "enhance" the reflectors, yet he could
not point to any formal guidance or policy that indicated such. I see no reason why a lifeline
should per se be incapable of satisfying the cited standard. To say that something is incapable of
satisfying one standard because it satisfies another standard defies logic and finds no support
within Commission case law. Therefore, it becomes necessary to analyze whether the lifeline in
the alternate escapeway at the Foidel Creek Mine satisfied the cited standard.
Gore testified that he thought there was a lifeline in the escapeway. MSHA trainee
Paulson's notes indicate that there was a lifeline. Gore offered no testimony that the lifeline in
the alternate escapeway failed to "clearly mark" the escapeway. The testimony of Inspector Gore
and Conkle indicates that the lifeline had reflective material attached, as well as directional cones
with reflective material on them. No testimony was offered to contradict this testimony or to
establish that the lifeline was obscured or otherwise rendered ineffective by the dust. The lifeline
was a continuous line with directional cones to lead miners from the section, through the

32 FMSHRC Page 640

escapeway, and out to the surface. The lifeline provided an easily understood or visible,
conspicuous object, that showed the route and direction of travel to the surface.
In addition, a lifeline, in many situations, may provide an even better means of "clearly
marking" the escapeway than reflectors hung from the roof. First, once a lifeline is found, either
by sight or feel, a miner need only locate a directional cone and follow the line to the surface.
Once located, the lifeline and attached cones provide the direction and route to the surface, and
require little of the miner beyond holding on to the line and continuing to move. This, in turn,
allows the miner to direct more of his attention to avoiding trip and fall or other hazards. On the
other hand, reflectors, or other purely sight-driven means of identifying the escapeway, hanging
from the roof of the entry require a miner to continually scan the roof as he makes his way to the
surface. This, in turn, takes the miner's eyes off of the floor, thereby making him more
susceptible to potential trip-and-fall or other hazards.
Second, in a smoke-filled environment reflective materials provide little to no assistance.
On the other hand, lifelines may be located by touch/feel in a smoke filled environment, and
would provide a direction and route out of the mine.
Third, in a smoke-free environment the lifeline appears to provide just as clear a marking
of the escapeway as clean reflectors would. Nothing in the record indicates that the lifeline
would be any less visible in a smoke-free environment. All of these factors, combined with
Inspector Gore's testimony that the miners at this mine are well trained and that the operator had
effective escapeway policies, lead me to believe that the lifeline clearly marked the route and
direction of travel to the surface, thereby satisfying the cited standard in spite of the fact that the
roof reflectors may not have done so.
Based on the above, I find that this citation should be vacated.

ID. SETTLED CITATIONS
At the hearing, the parties proposed to settle the remaining citations in these cases. In
WEST 2008-352, the parties propose to settle Citation No. 7621461. (Tr. 137). The parties
propose that the penalty be reduced to $5,390.00 and that the negligence remain "high." The
penalty was originally specially assessed under 30 C.F.R § 100.5. In WEST 2008-1576, the
parties seek to reduce the level of negligence in Citation No. 7610949 and to reduce the gravity
in Citation Nos. 7610950 and 7610952. (Tr. 136-138). They also propose modifying Order No.
7610956 to a section 104(a) moderate negligence citation. Id. They propose that the total
penalty be reduced to $36,818.00 for these citations. I have considered the representations and
documentation presented andlconclude that the proposed settlement is appropriate under the
criteria set forth in Section l lO(i) of the Act. The motion to approve settlement is GRANTED. 4
4

At the hearing, the Secretary also agreed to vacate Citation No. 7621738 in WEST 2008-0989
and Citation No. 7621766 in WEST 2008-1124, which were also noticed for hearing. {Tr. 5-6).
I granted the motion and these cases were dismissed by my written order dated April 7, 201 O.
32 FMSHRC Page 641

IV. APPROPRIATE CIVIL PENALTIES
Section 1 lO(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. The record shows that Twentymile had about 502 paid violations at the
Foidel Creek Mine during the two years preceding July 8, 2008. (Attachment to Stipulations).
Twentymile is a large mine operator as is Twentymile's parent company, Peabody Energy. The
violations were abated in good faith. The penalties assessed in this decision will not have an
adverse effect on Twentymile's ability to continue in business. The gravity and negligence are
discussed above.
V.ORDER
Based on the criteria in section 1 lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
Citation/Order No.

30C.F.R. §

Penalty

75.400

$5,390.00

75.380(d)(2)

Vacated

75.403
75.517
75.503
75.503
75.512
75.380(d)(7)(iv)
75.380(d)(l)

1,111.00
4,690.00
4,690.00
7,000.00
18,742.00
5,000.00
585.00

TOTAL PENALTY

47,208.00

WEST 2008-0352
7621461
WEST 2008-1321
7622452
WEST 2008-1576 & WEST 2008-0787-R
7284492
7610949
7610950
7610952
7610956
7622519
7622520

For the reasons set forth above, Order No. 7622519 is AFFIRMED and Citation No.
7622452 is VACATED as set forth above. The settlement of the remaining citations is
APPROVED. Twentymile Coal Company is ORDERED TO PAY the Secretary of Labor the

32 FMSHRC Page 642

sum of$47,208.00 within 30 days of the date of this decision. 5 Upon payment of the penalty,
these proceedings are DISMISSED.

Richard W. Manning
Administrative Law Judge

Distribution:
R. Herny Moore, Esq., Jackson Kelly PLLC, 3 Gateway Center, Suite 1340, 401 Liberty Ave.,
Pittsburgh, PA 15222 (Certified Mail)

Kristi L. Henes, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202 (Certified Mail)

Larry Ramey, Conference & Litigation Representative, Mine Safety and Health Administratio~
P.O. Box 25367, Denver, CO 80225-0367

RWM

Payment should be s~nt to the Mine Safety and Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
5

32 FMSHRC Page 643

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 1gU> Street, Suite 443
Denver, CO 80202-2500
303-844-3577/FAX 303-844-5268

June 17, 2010
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner ·

Docket No. CENT 2009-334-M
A.C. No. 39-00024-178265

v.

Spencer Quarries, Inc.

SPENCER QUARRIES, INC.,
Respondent
DECISION

Appearances:

Ronald S. Goldade, Conference and Litigation Representative, Mine
Safety and Health Administration, Denver, Colorado, for Petitioner;
Jeffrey A. Sar, Esq.; Baron, Sar, Goodwin, Gill & Lohr, Sioux City, Iowa;
for Respondent.

Before:

Judge Manning

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration ("MSHA"), against Spencer
Quarries, Inc., ("Spencer") pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The case involves two citations
issued at the quartzite quarry operated by Spencer in Hanson County, South Dakota. An
evidentiary hearing was held in Sioux Falls, South Dakota, and the parties introduced testimony
and documentary evidence.
I. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW

A. Citation No. 6328706
1. Summary of the Evidence.

On January 27, 2009, Inspector Daniel Scherer issued Citation No. 6328706 under section
104(a) of the Mine Act, alleging a violation of30 C.F.R. § 56.11016 as follows, in part:
The elevated walkway located along the surge feed belt had not
been sanded, salted, or cleared of snow or ice prior to miners
traveling it. This elevated walkway is on a grade of approximately
32 FMSHRC Page 644

28% and is approximately 200 feet long. Tracks were visible
where a miner had slid down the length of the walkway. This
walkway is accessed daily at various times. A miner sliding down
this walkway is exposed to injuries ·....
The inspector determined that an injury was reasonably likely to occur and that any injury
would likely be fatal. He determined that the violation was of a significant and substantial nature
("S&S")and that the company's negligence was moderate. Section 56.11016 provides that
"[r]egularly used walkways and travelways shall be sanded, salted, or cleared of snow and ice as
soon as practicable." 30 C.F .R. § 56.11016. The Secretary proposes a penalty of $334.00 for
this citation.
Inspector Scherer testified that Spencer employs approximately 20 employees. (Tr. 12).
When he first arrived at the quarry he met with the woman who was the scale operator. Jim
Zens, another Spencer employee, joined them a few minutes later. The inspector was advised
that the scale operator and Mr. Zens were the only two people working at the quarry that day
be<?ause the remaining employees were getting their annual ·MSHA-required training that day at
an off-site location. (Tr. 14). The inspector testified that it was his understanding that Zens was
the assistant superintendent but that he primarily worked in the loadout area and the stockpile
area. (Tr. 17). The quarry had operated the previous day, but it was not operating on January 27.
Indeed, the gate on the fence that surrounds the perimeter of the pit and plant was locked on
January 27 and Zens had to unlock it for Inspector Scherer. (Tr. 57).
Inspector Scherer testified that there was snow on the ground when he arrived at the
quarry on the morning of January 27. (Tr. 20). He issued Citation No. 6328706 because he was
concerned about some snow and ice that had built up on the walkway located alongside the surge
feed belt. He stepped up onto the walkway and quickly determined that it was slippery. (Tr. 23).
The inspector observed two tracks on the walkway that came from the top and went to the bottom
in "one continuous slide." Id. He determined that the walkway was about 200 feet long and was
at a grade of about 28 percent. The photograph that the inspector took shows the two tracks on
the walkway. (Tr. 25; Ex. G-2 p. 5). Based on these tracks, Inspector Scherer concluded that
someone had slid down the entire length of the walkway on the ice and snow that had·
accumulated there. Id. (Tr. 62, 67). The inspector did not observe anyone on the walkway and
he did not talk to anyone who saw or heard that a miner slid down the walkway. (Tr. 53, 55).
Scherer testified that Zens told him that someone had probably walked along the walkway
at the end of the shift on January 26 to clean up or do some light maintenance. (Tr. 27). Zens
told him that it was company policy to clean off ice and snow at the beginning of every shift.
Inspector Scherer testified that he based his gravity and S&S determinations on the fact that the
walkway is used everyday, there were tracks on the walkway, the slick conditions, and the angle
of the walkway. (Tr. 29-30). In addition, Inspector Scherer testified that he talked to some
miners the following day and that one miner told him that the walkway can be "real nasty"
because it is so steep. (Tr. 34). The citation was abated after the walkway was cleared of ice and

32 FMSHRC Page 645

snow and Spencer agreed that it would clear the walkway "as frequently as necessary as
conditions warranted throughout the course of any shift." {Tr. 31, 60). When he arrived at the
plant on January 28, the walkway had already been salted and cleared of snow. (Tr. 59-60).
Spencer uses salt and sand as part of the process of keeping the walkway clear. Scherer testified
that he was told that, before the citation was issued, Spencer only cleared the walkway at the
beginning of each day. (Tr. 32).
Mark Sedlacek, the crusher operator, testified for Spencer. He said that he worked at the
crusher on January 26, the day before the citation was issued. (Tr. 87). He said that he swept the
cited walkway with a broom that day. There were about two inches ofloose snow on the.
walkway. This walkway was in good shape on the morning of January 26, but it started snowing
during the afternoon. (Tr. 88). He testified that he decided to clean off the walkway before he
left work that day. · He swept the walkway but did not salt it because the crusher would not be
operating the following day. (Tr. 88, 91 ). The idea was that the sun might melt any remaining
snow on January 27 and that it would be salted the morning of January 28, if needed. Id. He
estimated that he cleaned off the snow at about 3:30 p.m. on January 26. He said that no other
person went up the walkway that day after he cleared it. Sedlacek testified that the two tracks
that Inspector Scherer observed on the walkway on the morning of January 27 were the tracks he
made when he was cleaning off the walkway on January 26. He did not slide down the walkway,
he simply shuffled his feet as he walked back down the walkway. (Tr. 90). He said that he was
not out of control when he walked down the walkway on January 26. (Tr. 91 ). He also said that
he was holding onto the handrail with one hand and sweeping with the other. (Tr. 97). He
testified that the walkway was in good shape at the end of the workday on January 26 and that no
other employee traveled on the walkway that day. The temperature dropped over the night of
January 26-27, so it is not surprising that the walkway was slippery the morning of January 27.
{Tr. 93, 103-04). In addition, it may have continued snowing overnight. (Tr. 93). Sedlacek
testified that Spencer employees cleaned walkways of ice and snow whenever it was needed, not
just at the beginning of the shift. (Tr. 100).
Dennis Ruden is the jaw operator for Spencer. He said that he observed Mr. Sedlacek
sweeping the walkway. (Tr. 106, 109). Mr. Sedlacek was the last person to walk on the
walkway until the MSHA inspector observed the walkway the next day. Moreover, he testified
that on January 27, .the day of ~Spector Scherer's inspection, most of Spencer's employees were
in Mitchell, South Dakota, for eight-hour MSHA-required annual refresher training. (Tr. 107).
When Ruden returned to work on January 28, he salted the walkway at 7:00 a.m. that morning as
one of his first tasks. (Tr. 108-109). He was not told to salt the walkway; he just did it prior to
the start of production as part of his ordinary job duties.
Ward Tuttle, Spencer's production foreman, testified about the annual refresher training.
He testified that there was no production at the mine on January 27. (Tr. 135). The quarry and
plant were behind a locked fence that day. {Tr. 138). Someone unlocked the gate on the
morning of January 27 so that Inspector Scherer could conduct his inspection. He said that all
but two employees were at the offsite annual training. (Ex. R-1 ). The only employees working

32 FMSHRC Page 646

that day were an employee in the scale house and Jim Zens, who normally works in the quality
control laboratory, but who also uses a loader to load customer trucks with product, when
necessary. (Tr. 128, 146-147). Zens does not work in the production area ofthe mine and would
have little knowledge of Spencer's practices or policies in the production areas. {Tr. 129).
Tuttle testified that the quarry was only open for the purpose of allowing customers to obtain
material from existing stockpiles. {Tr. 146). When the quarry was operating, Zens would not
normally enter the area of the pit and plant. {Tr. 155). He would go into the plant area once a
month to check the fire extinguishers. Id. Neither Zens nor the employees in the scale house
would have any reason to walk up the cited walkway. {Tr. 156).
Tuttle testified that it was company policy to keep the walkway at the surge feed belt
clean. (Tr. 133). The area would be swept as needed and salted as needed. (Tn 134). He
testified that Spencer did not change its policy with respect to cleaning and salting the walkway
following the issuance of the subject citation. Id. Tuttle testified that it is possible someone
could slip or fall when walking down the cited walkway. (Tr. 150). He also admitted that the
photographs that Inspector Scherer took of the walkway show snow and ice. {Tr. 161).
Richard W aldera, Spencer's general manager, testified that it has always been the
company's policy to clean snow-covered walkways whenever it is necessary. (Tr. 167-168). The
company did not change its policy after it received this citatiOn. (Tr. 168, 175).

2. Analysis.
I find that the Secretary did not establish a violation. The quarry was closed on January
27 and the evidence clearly and unequivocally shows that nobody would have walked up the
cited walkway on that date. Inspector Scherer inspected the walkway the morning of January 27.
I cannot assume that the conditions he saw were the same as Sedlacek experienced when he
cleared the walkway at 3:30 p.m. on January 26. For example, additional snow could have fallen
and the walkway could have frosted over during the night. When Ruden arrived on the morning
of January 28, he immediately salted the walkway without being told to do so. There is no
evidence to show that he salted the walkway in order to abate the citation.
The evidence establishes th_at Spencer complied with the requirements of the safety
standard. Although the subject walkway was not used all that frequently, I find that it was
"regularly used" as that term is used in the safety standard. Sedlacek cleared the snow on the
afternoon of January 26 near the end of the shift. There is absolutely no evidence that anyone
was on the walkway after it was cleared that day. There is evidence that the quarry was
experiencing snow flurries on the afternoon of January 26. Spencer·salted the walkway first
thing in the morning the next business day. I credit the testimony of Spencer's witnesses with
respect to the events of January 26 through January 28. The evidence demonstrates that, at all
pertinent times, the walkway was "sanded, salted, or cleared of snow and ice as soon as
practicable." See e.g. Empire Iron Mining Partnership; 19 FMSHRC 1912, 1922 (Dec. 1997)
(ALJ). There was no need to sand, salt, or clear the snow on the morning of January 27 because

32 FMSHRC Page 647

the plant was shut down for the day. Neither Zens nor anyone working in the scale house would
have entered the production areas of the quarry that day and, even if they did, they certainly
would never have traveled up the walkway alongside the surge feed belt.
A number of extraneous issues were raised at the hearing. The Secretary contends that,
before the citation was issued, Spencer's employees only cleaned off the walkways in the
morning, even if snow and ice developed later in the day. That issue is not on point here because
the evidence establishes that the subject walkway was cleared near the end of the shift on January
26 and again at the start of the shift on January 28, thereby meeting the requirements of the safety
standard. In addition, I credit Spencer's witnesses that the walkways were cleaned more
frequently than once a day when conditions warranted. Another issue that was raised concerned
whether the decking used on the walkway was appropriate for that application given the grade of
the walkway. The surface of the cited walkway is what is called "tread plate," "diamond plate;"
or "deck plate." {Tr. 42). That issue is not before me. Citation No. 6328706 is hereby vacated.

B. Citation No. 6328712
1. Summary of the Evidence.
On January 28, 2009, Inspector Scherer issued Citation No. 6328712 under section 104(a)
of the Mine Act, alleging a violation of30 C.F.R. § 46.12(a)(2) as follows, in part:
The mine operator failed to provide the independent contractor
whose employees were working at the mine site of the contractor's
obligations to comply with MSHA regulations including the
requirements of Part 46of30 CFR. The contractor has been doing
construction of mine facilities at the mine site for approximately
one year and had employed up to 11 new miners. These miners
were exposed to mine hazards and none of these employees had
received their new miner training.
The inspector determined that an injury was reasonably likely to occur and that any injury
would likely be fatal. He determined that the violation was S&S and that the company's
negligence was moderate. Section 46.12(a)(2) provides that "[e]ach production-operator must
provide information to each independent contractor who employs a person at the mine on sitespecific mine hazards and the obligation C>f the contractor to comply with our regulations,
including the requirements of thi~ part." 30 C.F.R. §46.12(a)(2). The Secretary proposes a
penalty of $1,304.00 for this citation.
Spencer admitted that the citation states a violation of the regulation. {Tr. 217). It
contends that the violation was not S&S. Inspector Scherer testified that Spencer did provide the
independent contractor with a list of the mine-specific hazards .. {Tr. 181). Records of this
training were maintained. Spencer failed to make sure that the contractor and its employees were
32 FMSHRC Page 648

aware ofMSHA's safety standards and training requirements. (Tr. 182). The contractor, 0.L.
Bussmus Construction, Inc., was building a new screen wash plant and other mine facilities. The
construction project had begun during the spring of2008. Bussmus had up to eleven employees
at the site. These employees were exposed to the hazards that are generally found at surface
mines. (Tr. 183). One Bussmus employee was injured on the job at the quarry in July 2008
when some material fell from a flat-bed truck. The inspector testified that an untrained miner is a
hazard to himself and to other miners working at the quarry.
Inspector Scherer determined that the violation was serious and S&S because the
condition created a discrete hazard and it was reasonably likely to result in an injury of a
reasonably serious nature. (Tr. 185). The inspector testified that Mr. Waldera thought that he
had complied with MSHA training requirements when Spencer gave them a list of site-specific
hazards. (Tr. 185-186). Inspector Scherer also issued several citations to Bussmus. (Tr. 187;
Ex. G-11 ). Scherer said that Mr. Bussmus told him that he would have gladly complied with
MSHA's regulations had he known about them. (Tr. 188).
Mr. Waldera testified that Spencer provided site-specific training to the Bussmus
employees. (Tr. 200; Ex. R-8). The training forms used by Spencer lists the typical hazards
encountered by vendors, salesmen, delivery men, and repair men. (Ex. R-8). W aldera admitted
that new miner training is different from site-specific hazard training. (Tr. 205). He also
admitted that, if a contractor is unaware ofMSHA's training requirements, it would be unable to
develop a training plan for its employees.

2. Analysis
An S&S violation is described in section 104(d)(l) of the Act as a violation "of such
nature as could ~ignificantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard." 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'! Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:
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.

32 FMSHRC Page 649

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary ofLabor, 861
F.2d 99, 101-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987)
(approving Mathies criteria).
In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission
provided additional guidance:
We have explained further that the third element of the Mathies
formula "requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in
which there is an injury." U.S. Steel Mining Co., Inc., 6 FMSHRC
1834, 1836 (August 1984). We have emphasized that, in
accordance with the language of section· 104(d)(l ), it is the
contribution of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining Co., Inc., 6
FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc.,
6 FMSHRC 1573, 1574-75 (July 1984).
This evaluation is made in terms of "continued normal mining operations." ·u.s. Steel,
6 FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
I find that the Secretary established that this violation was S&S. The Secretary
established all four elements of the S&S test. Although it is true that many of the hazards that
the contractor's employees faced would not be substantially different from the hazards they
normally face on construction projects, the mining environment presents challenges that are not
typically present at other construction sites. As stated above, the third element of the S&S test
requires that the secretary establish a reasonable likelihood that the hazard contributed to will
result in an event in which there is an injury. Spencer did not advise Bussmus that it had to have
a training plan in place so that its employees could receive new miner training. As a
consequence, the employees of Bussmus had not completed MSHA-required training while they
worked at the quarry. Bussmus apparently knew nothing about MSHA or its regulatory
requirements. Based on the evidence presented at the hearing, I find that, if the violative
condition had not been abated, there was a reasonable likelihood that it would have contributed
to an injury of a reasonably serious nature. I also affirm the inspector's gravity and negligence
determinations. As Inspector Scherer stated, an untrained miner is a hazard to himself and to
others. The training regulations are a key part of the mine safety program established by the
Mine Act.

32 FMSHRC Page 650

II. APPROPRIATE CIVIL PENALTY
Section l lO(i) of the Mine Act sets forth the criteria to be considered in detennining an
appropriate civil penalty. The record shows that Spencer had five paid violations at this quarry
during the two years preceding this inspection. (Ex. G-13). Only one of these violations was
S&S. The mine worked about 41,375 employee-hours in 2008 and 41,250 employee-hours in
2009, making it a relatively small operation. The violation was abated in good faith. No
evidence was presented to show that the penalty assessed in this decision will have an adverse
effect on Spencer's ability to continue in business. The violation was serious and Spencer's
negligence was moderate. Based on the penalty criteria, I find that the Secretary's penalty of
$1,304.00 is appropriate.
III. ORDER
For the reasons set forth above, Citation No. 6328706 is VACATED and Citation No.
6328712 is AFFIRMED. Spencer Quarries, Inc., is ORDERED TO PAY the Secretary of
Labor the sum of $1,304.00 within 30 days of the date of this decision. 1 Upon payment of the
penalty, this case is DISMISSED.

Distribution:

Ronald S. Goldade, Conference & Litigation Representative, Mine Safety and Health
Administration, P.O. Box 25367, Denver, CO 80225-0367 (Certified Mail)
Jeffrey A. Sar, Esq., Baron, Sar, Godwin, Gill & Lohr, PO Box 717, Sioux City, IA 51102
(Certified Mail)

RWM

1

Payment should be sentto the Mine Safety and Health Administration, U.S.
Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
32 FMSHRC Page 651

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
72119"' Street, Suite 443
Denver, CO 80202-2500
303-844-3577/FAX 303-844-5268

June 23, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION; (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 2009-334-M
A.C. No. 39-00024-178265

v.
Spencer Quarries, Inc.

SPENCER QUARRIES, INC.,
Respondent

ORDER CORRECTING DECISION
This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration (''MSHA''), against Spencer
Quarries, Inc., ("Spencer") pursuant to sections 105 and 110 ofthe Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The case involves four
citations. Citation Nos. 6328706 and 6328712 were adjudicated at a hearing held on April 13,
2010 and Spencer agreed to pay the Secretary's proposed penalties for Citation Nos. 6328708
and 6328711. On June 17, 2010, I issued my decision on the two adjudicated citations but I
inadvertently did not include in the decision a discussion of the other two citations. Citation No.
6328708 alleges a violation of section 56.11012 ofMSHA's safety standards and the Secretary
proposed a penalty of $100.00 for the citation. Citation No. 6328711 alleges a violation of
section 56.14100(d) ofMSHA's safety standards and the Secretary proposed a penalty of
$100.00 for fu.e citation. I find that these proposed penalties are appropriate under the criteria set
forth in Section 11 O(i) of the Act.
Consequently, Citation Nos. 6328708 and 6328711 are AFFIRMED and my order in
Section ID of my June 17, 2010, decision is CORRECTED to show that Spencer Quarries, Inc.,
is ORDERED TO PAY the Secretary of Labor the sum of$1,504.00 within 30 days of the date
of this order. 1

Richard W. Manning
Administrative Law Judge

1

Payment should be sent to the Mine Safety and Health Administration, U.S.
Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
32 FMSHRC Page 652

Distribution:

Ronald S. Goldade, Conference & Litigation Representative, Mine Safety and Health
Administration, P.O. Box 25367, Denver, CO 80225-0367 (E-mail and First Class Mail)
Jeffrey A. Sar, Esq., Baron, Sar, Godwin, Gill & Lohr, PO Box 717, Sioux City, IA 51102 {EMail and First Class Mail)
RWM

32 FMSHRCPage 653

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
72119th STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5267/FAX 303-844-5268

June 17, 2010
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY ANDHEALTH
ADMINISTRATION (MSHA),
Petitioner,

Docket No. WEVA 2009-1067
A.C. No. 46-07273-178983-01

v.
INDEPENDENCE COAL COMPANY, INC.,
Respondent.

Mine: Justice #1

DECISION

Appearances:

Ben Chaykin, Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Petitioner;
Carol Marunich, Dinsmore Shohl LLP, Charleston, West Virginia, for
Respondent.

Before:

Judge Miller

This case is before me on a petition for assessment of civil penalty filed by the Secretary of
Labor, acting through the Mine Safety and Health Administration, against Independence Coal
Company Inc., ("Independence") pursuant to sections 105 and 110 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act" or "Act"). The case involves
one citation issued by MSHA under section 104(d) of the Mine Act at the Justice #1 mine
operated by Independence Coal Company, Inc. The parties presented testimony and
documentary evidence at the hearing held in Charleston, West Virginia on May 5, 2010. At the
conclusion of the hearing, the parties made oral arguments, and a decision was rendered from the
bench. This decision incorporates the decision issued from the bench, and adds to that decision.
There is some minor editing of transcript pages 226 through 249, which is incorporated into this
decision and set out below. For the reasons stated on the record, and as further explained below,
Citation No. 8073156 is affirmed as issued and Independence Coal is ordered to pay the
proposed penalty of$63,000.00.
The parties entered into certain stipulations that were accepted by the Court and entered as
Exhibit 1 in the case.

32 FMSHRC Page 654

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Independence Coal Company, Inc., operates the Justice #1 Mine (the "mine"), an
underground, bituminous, coal mine in Boone County, West Virginia. The mine is subject to
regular inspections by the Secretary's Mine Safety and Health Administration ("MSHA")
pursuant to section 103(a) of the Act. 30 U.S.C. § 813(a). The parties stipulated that
Independence is an operator as defined by the Act, and is subject to the jurisdiction of the
Federal Mine Safety and Health Review Commission. Ct. Ex. 1.
In the matter of Independence Coal Company, Docket
WEVA 2009-1067, I will enter the following order:
This case is before me on a Petition for Assessment of
Civil Penalty filed by the Secretary of Labor against Independence
Coal pursuant to Sections 105 and 110 of the Federal Mine Safety
and Health Act of 1977, the Mine Act. The case involves one
citation issued by MSHA U.nder Section 104(d) of the Mine Act at
the Justice No. 1 Mine operated by fudependence Coal. The
parties presented testimony and evidence at a hearing held in
Charleston, West Virginia, on May 5th, 2010.
At the beginning of the hearing, the parties introduced
certain stipulations that were accepted by the Court and entered as
Court Exhibit 1, which will be made a part of the file. These
stipulations relate primarily to the jurisdictional issues in this case.
Independence Coal Company operates an underground bituminous
coal mine, the Justice No. 1 Mine[, located in] ... Boone County,
West Virginia. The mine is subject to regular inspections by the
Secretary's Mine Safety and Health Administration pursuant to
Section 103(a) of the Act. As I mentioned, the parties stipulated
that Independence is an operator as defined by the Act and is
subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission.
(Tr. 227-228).

· On January 20, 2009, John Crawford, an MSHA inspector, conducted a methane spot
inspection at the Justice No. 1 mine. The mine is on a five day spot inspection due to high
liberation of methane. Crawford was accompanied during most ofhis inspection by Greg Neil,
the mine foreman. While at the mine, Crawford issued the (d)(l) citation at issue.

a.

Citation No. 8073156

32 FMSHRC Page 655

Inspector Crawford issued Citation No. 8073156 to Independence for a violation of
Section 75.380(d)(l) of the Secretary's regulations. The citation alleges that:
[t]he secondary escapeway on the no. 9 track at Break 18 is not
maintained in a safe condition to assure passage of anyone
including disabled persons. Water covers the entry for
approximately 150 feet (modified to 332 feet), rib to rib, and was
measured 15 inches deep in one area. The water is dark and cloudy
in color and not transparent. The track, ties, loose rock and coal
under the water make travel perilous. This condition is obvious,
extensive, has existed for numerous shifts and was known by the
foreman and examiners, who recorded it as ''water on track".
Water marks on the mine ribs measure more than 12 inches above
the current water levels. This is more than ordinary negligence
and the operator displayed aggravated conduct in allowing persons
to work with only one escape way. This is unwarrantable failure
to comply with a mandatory standard. Persons were in the area to
examine, set pumps and check the pumps. Crews were removed
from the mine until two travelable escape ways were provided.
The inspector found that a fatal injury was reasonably likely to occur, that the violation was
significant and substantial, that forty persons would be affected, and that the violation was the
result of reckless disregard on the part of the operator. The Secretary has proposed a civil
penalty in the amount of $63,000.00.
1.

The Violation

John Crawford, an MSHA mine inspector since April 2007, has worked in the mining
industry since 1974. Crawford is an inspector in the Madisonville MSHA office.
Inspector Crawford testified that on January 20, 2009, prior to going underground, he
was reviewing records of the Justice #1 mine when he overheard comments by Greg Neil, a mine
foreman, about water in the escapeway. The primary escapeway in this mine is a great distance
from the secondary and is very narrow, steep and wet. The second escapeway, the subject of the
citation at issue, contains a track for travel along the escapeway.
When Crawford arrived at #9 headgate, he looked outby and observed water covering the
escapeway from rib to rib. The water was cloudy, dark and non-transparent, obscuring the
bottom. This particular entry is a track entry with an uneven bottom. The entry floor has rails,
ties, and blocks to level the track, as well as loose coal and rock. Crawford credibly testified that
he measured the depth of the water to be 15 inches, but that it got deeper as the escapeway
progressed. He felt it was not safe to go on traveling through the water because he couldn't see
what he was walking on. He originally estimated that the water went on for 150 feet, but later
learned that it extended for more than 300 feet. There were higher water marks on the wall, i.e.,

32 FMSHRC Page 656

at one point a water mark was more than 12 inches above the actual water level at the time of the
inspection.
Crawford explained that it was not only unsafe to walk in that escapeway. it was also not
safe to drive anything in that depth of water since the water could enter into the electrical part of
the man-trip, cause a short, and result in miners being stranded in even deeper water while the
vehicle blocked the passage of other miners behind it.
Once the citation was abated, and the water removed, Crawford was better able to
observe the area. He observed the condition of the roadway and could see blocking of track,
track ties and the uneven mine bottom. Further, he recalled areas that had an eight-inch ledge
and blocked the outside rails. The escapeway sloped downhill after passing the area where he
took the 15-inch water depth measurement and then gradually sloped back uphill. Crawford
could see that the downhill portion was deeper than the 15 inches he measured. Neil explained
that the deeper area is where water is pumped from and, in some instances, held when pumping
from other parts of the mine.
The Respondent argues that there is no violation because miners would use a mantrip to
get out of this area and would not have to walk on the uneven bottom. Further, it argues that
there is another escapeway, and that the condition was not as bad as Crawford described. Neil
testified that he could walk the area without stumbling or falling. Neil also testified that miners
are trained in an emergency to move slowly and not panic and, therefore, they could pass
through this area.
I credit Crawford's testimony that the area was not passable, especially in an emergency.
Since miners would need to move quickly through the area, the water and obstructions would
cause miners, especially stretcher bearers or others assisting disabled persons, to slow their
egress, to slip and fall, or drop the stretcher, thereby hindering their ability to escape at all. I find
that the escapeway was not maintained in a safe condition and that it would be difficult for
miners, particularly disabled miners, to travel the escapeway. For those reasons, and reasons
that follow, I find that a violation is established. At hearing, I read the following findings into
the record:
On January 20th, 2009, Inspector John Crawford conducted
a methane spot inspection at the mine. This was a five-day spot
inspection, which is the highest level due to the methane emissions
at the Justice No. 1 Mine. He was accompanied during his
inspection by Greg Neil, the mine foreman. While at the mine,
Crawford issued the (d)(l) citation at issue here. which is Citation
No. 8073156. Inspector Crawford issued the citation to
Independence Coal Company for a violation of75.380(d)(l) of the
Secretary's regulations.

32 FMSHRC Page 657

The citation alleges that the secondary escapeway on the
No. 9 track at break 18 is not maintained in a safe condition to
assure passage of anyone, including disabled persons. The
inspector goes on to explain and testified that the water covered
the entry for approximately 100 feet as he could initially see it.
Later when he was able to measure it, he determined that it
covered the entry for 332 feet, approximately, rib to rib and was
measured 15 inches deep in one area. The water was dark and
cloudy in color, not transparent. The track, ties, loose rock, and
coal under the water made travel perilous. The condition is
obvious, extensive, has existed for numerous shifts, and was
known by the foreman and examiners who recorded it as ''water on
track." Watermarks on the mine ribs measured more than 12
inches above the current water levels.
This is more than ordinary negligence, and the operator
displayed aggravated conduct in allowing persons to work with
only one escapeway. This is an unwarrantable failure to comply
with the mandatory standard. Persons were in the area to set
pumps, examine, and check the pumps. Crews were removed from
the mine until two travelable escapeways were provided.
The inspector found that a fatal injury was reasonably
likely to occur, that the violation was significant and substantial,
that 40 persons would be affected, and that the violation was the
result of reckless disregard on the part of the operator. The
Secretary initially proposed a civil penalty in the amount of
$63,000.
Mr. Crawford testified that he has been a mine inspector
since April 2007. He worked in the mines since 1974. He's
worked in various positions in underground coal mines and for a
time was an EMT and paramedic.
Inspector· Crawford testified that he went to the mine on
January 20th, 2009. While he was looking at the books or the
records, he overheard Mr. Neil talking about water in the
escapeway. He talked a little bit about how narrow the primary
escapeway is, that it's wet and steep. The area he issued a citation
is the secondary escapeway.
Mr. Neil and Inspector Crawford went to the No. 9
headgate area, and as he looked outby, he saw water rib to rib -Inspector Crawford did. The water was cloudy, dark, not

32 FMSHRC Page 658

transparent. He could not see the bottom. This is a track entry, so
it has rails, ties, blocks to level the track, coal, rock, and an uneven
bottom.
He credibly testified that the depth was 15 inches in some
places. He walked into the water until he thought it was no longer
safe to go on. He measured it with a ruler and measured it to be 15
inches. He couldn't see under the water that was murky, so he
decided to turn around and that it was not safe to go on through the
escapeway at that time; He estimated the water to extend for about
150 feet, and, as I said, he later modified thatto 332 feet when he
had a chance to actually measure it. At one point, he noted a
watermark on the wall that indicated the water level had at one
time been approximately 12 inches higher than it was ... [at the
time of his inspection.]
Inspector Crawford testified that it was not safe to take
anything into the water, to not walk in it, or to take the mantrip, as
the water could enter into the electrical parts of the mantrip and
cause a short, thereby causing the mantrip not to work and become
stuck in the escapeway.
Inspector Crawford noticed that there was no action taken
to remove the water, so he removed the crews from the mine. The
fire boss shut off the water feeding the area and went to get a pump
or a different pump. It took about four hours to remove the water
from the entryway. At that point, he returned to the area and
measured it to be 332 feet.
. He observed the condition on the roadway and
could see
-- once the water was gone, he again observed the condition of the
roadway, and he could see blocking of track, track ties, the mine
rough bottom, and remembers in areas that there had been an 8inch ledge blocking.outside of the rails. The area went downhill at
a location past where he took the 15-inch measurement, and then it
went back uphill. At the downhill point, it was deeper than the 15
inches where there is a low spot.
The water accumulations created a tripping and stumbling
hazard. If anyone had traveled the area, they could get .fractures
from falling, dislocation. If they struck their head, they could
become unconscious and it would be fatal. If they were carrying
an injured miner on a stretcher, that would multiply the risk.
Inspector Crawford testified that the mine operator is required to

32 FMSHRC Page 659

maintain the escapeway for travel of all persons and considered
this to be a violation. He .determined that it was unsafe to travel
through the escapeway. 75.380(d)(l) requires that each escapeway
shall be maintained in a safe condition to always assure passage of
anyone, including disabled persons.
Inspector Crawford looked at the water, at the color. He
couldn't see the bottom. He understood there were drop-offs, that
there were rock, coal, tracks, and a number of tripping hazards
under the water that could not be seen by walking in the water.
The type of the bottom was rough, and it extended over a long
area. This is.an area where the roof is about 6 to 7 feet high. The
water was rib to rib in many areas. Stumbling and falling is the
primary hazard. Carrying. a stretcher multiplies the hazard, and
escaping in smoke and fire in an emergency, this would be a
difficult place to travel. It's not safe for persons during an
emergency evacuation.
As Inspector Crawford testified, the slip-and-fall hazard
precluded swift passage. It would be difficult at best to negotiate
the slippery, rocky bottom with the tracks carrying a stretcher.
During an emergency, miners would likely need to move quickly
through the area in order to seek safe passage away from what
could be a dangerous underground environment. This would slow
down the evacuation, if not prevent it altogether. So I credit the
testimony of Inspector Crawford and find that there is a violation
as he cited and for the reasons that he cited.
[The mine argues] ... that there is not a violation because
there is no hazard, that Mr. Neil traveled the area and didn't see a
hazard . . . . He could walk through it, as he did after leaving the
inspector. I disagree with Mr. Neil and, based on the testimony of
Inspector Crawford, find that the conditions clearly presented a
hazard in the escapeway.
There was a lot of testimony about methane behind the
seals, ignition sources, and the fact that no other citations were
issued that day that contributed to this hazard. However, I'm not
required to find that there was the possibility of a methane or other
mine fire, because this is an emergency situation and I look to the
fact that the. standard goes to an emergency, and I look at the
emergency conditions in that case.

32 FMSHRC Page 660

I also relied upon several cases that are very similar to this:
Maple Creek Mining, 27 FMSHRC 555 (August 2005), and Eagle
Energy, Inc., 23 FMSHRC 829 (August 2001). Both are very
similar to this case, and in both cases the Commission upheld the
violation, the significant and substantial nature of the violation,
and the unwarrantable failure. Although, obviously, I base it on
the facts of this case, I do rely on the legal conclusions of the
Commission in those two cases.
I would also mention with regard to the hazard that there
was some discussion about evacuation during an emergency, and I
certainly -- I understood Mr. Neil's testimony that he had been, in
his experience, especially as an EMT -- had to negotiate difficult
passages. However, I credit Inspector Crawford's testimony that,
in reality, these miners try to escape quickly. If there's smoke in
the area, they're disoriented by the smoke.
(Tr. 228-234).
30 C.F.R. § 75.380(d)(l) requires that "[e]ach escapewayshall be ... [m]aintained in a
safe condition to always assure passage of anyone, including disabled persons."
In American Coal Company, 29 FMSHRC 941 (Dec. 2007), the Commission held that an
operator violates the requirements of Section 75.380(b)(l) to "provide" escapeways when its
miners are "substantially hindered or impeded from accessing designated escapeways." In
reaching this conclusion, the Commission stated the following regarding the purpose and
legislative history of escapeways which is equally applicable to the case here:
There is no disputing that escapeways are needed for miners to
quickly exit an underground mine and that impediments to a
designated escapeway may prevent miners from being able to do
so. The legislative history of the escapeway standard states that
the purpose of requiring escapeways is "to allow persons to escape
quickly to the surface in the event of an emergency." S.Rep No.
91-411, at 83, Legis.Hist., at 209 (1975).
29 FMSHRC at 948.
This case is very similar to Maple Creek Mining Inc., 27 FMSHRC 555 (Aug. 2005), and
Eagle Energy Inc., 23 FMSHRC 829 (Aug. 2001), in which the Commission found a violation of
30 C.F.R. § 75.380, where it was demonstrated that miners could not quickly and safely exit the
mine in the case of an emergency.
In an enforcement proceeding under the Act, the Secretary has the burden of proving all
elements of an alleged violation by a preponderance of the evidence. In re: Contests of

32 FMSHRC Page 661

Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), ajfd, Sec'y
ofLaborv. Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998); ASARCO Mining Co.,
15 FMSHRC 1303, 1307 (July 1993); Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152
(Nov. 1989). The Secretary has met her burden of proving that, on the day of inspection, the
escapeway was not maintained in safe condition. I find that the Secretary has established a
violation.
2.

Significant and Substantial Violation

A significant and substantial ("S&S") violation is described in section 104(d)(l) of the
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'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:
[i]n 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.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861F.2d99,
103-04 (5th Cir. 1988), ajfg Austin Power, Inc., 9 FMSHRC 2015, 2021(Dec.1987) (approving
Mathies criteria).
·
As noted above, I find that there is a violation of the mandatory safety standard as alleged
by the Secretary. Second, I find that a discrete safety hazard existed as a result of the violations,
i.e., the danger associated with persons not being able to evacuate the area safely and quickly
during an emergency. Third, I find that, in addition to the risks associated with not being able to
safely and quickly evacuate the mine, there is also a slip-and-fall hazard, which can create
injuries for anyone walking in the area. Fourth, I find that it is reasonably likely that any injury
resulting from the aforementioned hazards would be serious or even fatal.
The difficulty with finding a violation S&S normally comes with the third element of the
Mathies formula. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the
Commission provided additional guidance:

32 FMSHRC Page 662

We have explained further that the third element of the Mathies
formula "requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in
which there is an injury." U.S. Steel Mining Co., Inc., 6 FMSHRC
1834, 1836(August1984). We have emphasized that, in
accordance with the language of section 104(d)(l ), it is the
contribution of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining Co., Inc., 6
FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc.,
6FMSHRC 1573, 1574-75(July1984).
This evaluation is 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. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc.,
6 FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
In this case, the significant and substantial element must be considered in terms of an
emergency. If there were a fire, smoke would be present, visibility would be poor, dust would
be in the air and all lights would more than likely be out. Smoke causes miners to become
disoriented and panic. Crawford, who has been in a mine accident, explained that, in an
emergency, it is easy to forget the things you have been previously taught to do. When a miner's
sense of sight is rendered useless during an emergency, it is reasonably likely that the condition
of the subject escapeway would prevent escape. Miners would be left standing in cold water as
the water level became higher and higher. This, in turn, may force the miners to look for another
way out and be further hindered in their escape.
I credit Crawford's testimony regarding the likelihood of the slip-and-fall hazard that
precluded swift passage out of the mine. The area would be difficult to negotiate given the
slippery, rocky bottom, especially when carrying a stretcher. Neil testified on behalf of the
operator that the area was passable, and that he had seen worse as an EMT. However, the
evidence established that during an emergency, miners would likely need to move quickly
through the area in order to seek safe passage away from what could be a dangerous
underground environment. The condition of the escapeway, as cited by Crawford, would slow
down the evacuation, if not prevent it. At hearing, I read the following findings into the record:
I find that the Secretary has met the burden of proving all
elements of the alleged violation by a preponderance of the
evidence in this case, so I will now address the significant and
substantial nature, and I have already addressed some of the
factors I've relied on in finding that this violation is significant and
substantial.

32 FMSHRC Page 663

A significant and substantial violation is described, in
Section 104(d)(l) of the Act, as a violation of such a nature as
could significantly and substantially contribute to the cause and
effect of the coal or other mine safety or health hazard. A
violation is designated S & S if, based upon the particular facts
surrounding that violation, there exists a reasonable likelihood that
the hazard contributed to or resulted in injury or illness of a
reasonably serious nature, and that's the National Gypsum case ...
. [T]he Commission set out a four-part testin the Mathies case
which I rely on here.
First, in order to establish the violation -- to establish S &
S, I must find that there is a violation, and I have already done that
in this case. Second, I must find that there is a discreet safety
hazard, a measure of danger to safety contributed to by the
violation, and as I have discussed above, I do find that there is a
discreet safety hazard that existed as a result of this violation, the
danger of persons not being able to evacuate the area safely and
quickly during an emergency. In addition to that, I find that there
is a slip-and-fall hazard separate and apart [from] ... an
emergency that is a hazard to anyone walking in the area.
The third part of Mathies is a reasonable likelihood that the
hazard contributed to or resulted in an injury, and the hazards
described by Inspector Crawford, the slip-and-fall hazard, the
hitting-of-his-head hazard, and the failure [of] ... being able to .
escape adequately during an emergency will result not only in an
injury from the slip and fall, which would be a broken bone, or
from a head injury, but could result in a fatal injury if the miners
are not able to escape during an emergency, and tied together with
that is a reasonable likelihood that the injury will be serious, and I
think rve addressed that. It is very serious. The injuries would be
very senous.
I understand that Mr. Neil testified that he thought it might
be a -- the only injury he could see would be a twisted ankle or
getting wet, but I credit Inspector Crawford's testimony that it's far
more serious than that and that it could lead to a fatality, especially
if there is an emergency evacuation and miners cannot get through
this escapeway. Or even if they're slowed down getting through
the escapeway, that's enough to cause a fatality.

The evaluation I have made is made with the consideration
of the length of the time that the condition existed prior to the

32 FMSHRC Page 664

citation, which was ... five shifts and several days. And if it had
continued to exist in normal miningoperations,·and I think it
would have -- given the testimony of Mr. Neil that 15 inches he
didn't consider a hazard, that it was routine for the mine, this
would have [remained] ... unabated unless Inspector Crawford
had stepped in and done something about it.
I'm going to address the number of persons affected.
Inspector Crawford relied on Mr. Neil to tell him how many
miners were at the mine that day, and I understand that that
number was 40 working underground. Inspector Crawford relied
on that number, and I agree it's ... accurate. l understand that the
mine' s argument is that not all 40 of them were working in the
area, or maybe not all 40 of them would have used that escapeway.
However, if there were a mine emergency and the primary
escapeway was blocked, which is one of the reasons for a
secondary escapeway, all of the miners would have had to
maneuver through the secondary escapeway, and I agree with
[Crawford] that 40 people would have been affected by that
condition.
I think the fact that Inspector Crawford stepped into the
water and decided that it was not safe to walk any further certainly
shows that it was a serious hazard. I know that Mr. Neil said he
did walk through it and that he wasn't injured; however, the case
law does not require me to find that an accident has occurred,
based on someone's actions on that day.
_ Crawford testified that the slip and falls in the muck could
result in broken bones, leg and back injuries, and, of course, I've
already addressed the injuries associated with the not being able to
escape during an emergency. Any delay in miners evacuating the
mine in an emergency increase the dangers posed by the
emergency, and a delay would prevent miners from getting out
alive.
·
There were at least two fires at this mine, one in 2008 and
another in 2009. There is methane at this mine, as it is on a fiveday spot inspection, and there are ignition sources in the mine. At
the same time, on the same day, there was a citation issued in this
same area.for a lifeline violation, which also would have been
related to anyone who was trying to escape at that time.

32 FMSHRC Page 665

I find that the preponderance of the evidence establishes
that it was reasonably likely that the hazards present in the area
cited would contribute to an injury in the event of an emergency
evacuation, and even without an emergency evacuation, the slipand-fall hazard would be there. I rely on the testimony of
Inspector Crawford in reaching this conclusion. He believed that
the hazards present were tripping and falling and not being able to
escape during an emergency. [The various injuries would be the
direct result of having to walk in 15, or more, inches of water on
·uncertain terrain filled with many hazards.] I credit his testimony
that if the man-trip were used, it is not reliable, would stop if water
reached the electrical parts of the man-trip. It would stall and
further block the escapeway.
I have taken into consideration the ability of the miners to
transport an injured miner out of the mine as the safety standard
requires. And ifl didn't mention that, I will mention that the safety
standards require that I consider disabled persons, including the
ability of someone to escape on a stretcher, and I think I addressed
that. But given the uneven footing, the hidden obstructions, the
murky water, it would make it reasonably likely that someone -even more reasonably likely that someone carrying a stretCher
would.trip and fall and hinder the evacuation process.
Now, the evacuation process may be mitigated by the
exercise of caution, the ability to walk cautiously on the part of
miners, but the Mathies formula does not require me to evaluate
the ability of the miners to walk cautiously, and rm not sure they
could do it, and if they could, this area would still slow them down
if they had to stop and walk cautiously;
In addition, I credit Crawford's testimony that it is not
likely, in an emergency situation, that someone can walk
cautiously through smoke avoiding the necessary hazards. So I
find that the Secretary has satisfied the four Mathies criteria and
established the violation as S & S.
{Tr. 235-241)
I find that the preponderance of the evidence establishes that it was reasonably likely that
the hazards present in the subject area would contribute to an injury in the event of an emergency
evacuation. I rely on the testimony of Inspector Crawford in reaching this conclusion. I have
taken into consideration the ability of the miners to transport an injured miner out of the mine, as
the safety standard requires. The uneven footing, the hidden obstructions, the murky water; all

32 FMSHRC Page 666 ·

these factors make it reasonably likely that a trip/fall would occur, and, during an evacuation,
would result in slowing down or halting the exit of miners. Further, as mentioned previously, it
is reasonably likely that these hazards would result in injuries of a reasonably serious nature.
3.

Unwarrantable Failure

The term "unwarrantable failure" is defined as aggravated conduct constituting more than
ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable
failure is characterized by such conduct as "reckless disregard," "intentional misconduct,"
"indifference," or the "serious lack of reasonable care." Id. at 2004-04; Rochester & Pittsburgh
Coal Co., 13 FMSHRC at 193-94. Aggravating factors include the length of time that the
violation has existed, the extent of the violative condition, whether the operator has been placed
on notice that greater efforts were necessary for compliance, the operator's efforts in abating the
violative condition, whether the violation was obvious or posed a high degree of danger and the
operator's knowledge of the existence of the violation. See Consolidation Coal Co., 22
FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994);
Windsor Coal Co., 21FMSHRC997, 1000 (Sept. 1999); Consolidation Coal Co., 23 FMSHRC
588, 593 (June 2001). All of the relevant facts and circumstances of each case must be
examined to determine if an actor's conduct is aggravated, or whether mitigating circumstances
exist. Consol, 22 FMSHRC at 353.
The day the subject citation was issued, Crawford described the condition as extensive,
obvious and as existing for an extended period of time. He designated the negligence level as
"reckless disregard" and found the violation to be an unwarrantable failure to comply with the
mandatory standard. Crawford talked to management and learned that they knew that the
escapeway was full of water and that it had been in that condition for some period of time.
Crawford credibly testified to each and every factor used to determine unwarrantability. The
violation was present for at least five shifts and little action was taken to abate the condition.
Neil testified that he had requested that some pumping be done but that he had a limited number
of pumps. This action was not enough. Neil agreed that the condition was obvious and
extensive, but disagrees that it was unsafe. He agreed that the condition was known for several
shifts but insisted that the mine was actively attempting to remedy it and, therefore, was the
result of ordinary negligence, and not reckless disregard.
Based upon the preshift and onshift reports, and the testimony of all witnesses that the
accumulation existed on January 18, 19 and into the 20th when the inspector arrived, I find that
the mine did not approach the problem with the seriousness it demanded. While some records
show "pumping" as a result of the water, others show no action at all. Ex. 3, 4.
This mine had been issued previous violations for accumulation of water in escapeways.
Three citations in the three months prior to this one were issued for escapeways; one in
December, one in November and one in October. In addition, prior to August 2008, the mine
had received 25 escapeway violations in a little over a year. Ex. 14.

32 FMSHRC Page 667

The term ''unwarrantable failure" is defined.as aggravated conduct
constituting more than ordinary negligence. That's the Emery
Mining Corporation, 9 FMSHRC 1997 and again in 2004.
Unwarrantable failure is characterized by such conduct as reckless
disregard, intentional misconduct, indifference, or a serious lack of
reasonable care. Aggravating factors include the length of time the
violation existed, the extent of the violative condition, whether the
operator had been placed on notice that greater efforts were
necessary for compliance, the operator's efforts in abating the
violative condition, whether the condition was obvious, proposed a
high degree of danger, and the operator's knowledge of the
existence of the violation. All of the relevant facts-and
circumstances of each case must be examined to determine if an
actor's conduct is aggravated or whether mitigating factors exist.
fu this case, ... the mine has met all of the factors for
unwarrantable failure. The length of time the condition exists was
days. The extent of the violation was very extensive. I think Mr.
Neil and Mr. Crawford agree on that point. Whether the operator
had been placed on notice that greater efforts were necessary for
compliance, I will address the history of violations that show that
there have been many violations for escapeway issues. The
operator's efforts in abating the violative condition, I understand
that there was testimony that the mine tried to pump some of the
water out, but I don't think it was enough. The efforts were not
enough. Whether the violation was obvious, I don't think there is
any question about that. Everyone agrees that it was obvious and
extensive and posed a high degree of danger. I understand that Mr.
· Neil and that the mine operator disagree with the inspector's
characterization as to the high degree of danger, and ... I've
already addressed that I credit the inspector's testimony that there
was a high degree of danger, and the knowledge of the existence of
the violation, which is borne out by the preshift and onshift reports
in this case.

The day the subject citation was issued, Mr. Crawford
described the condition as extensive, obvious, and existing for a
period of time and marked the citation as reckless disregard. . ..
When he first walked into the area, he saw that the problem was
obvious. He had talked with Mr. Neil who clearly knew about the
problem. It had been in the preshift books for a number of shifts,
and although some of the preshift books mentioned that someone
was working on it, given the depth of the water and the number of

32 FMSHRC Page 668

times it continued to be in the preshift books, not much was being
done about it.
The danger posed by this condition is found and is similar
to the S & S findings, the slip-and-fall hazard posed by the
condition, the consequences of an emergency, a stretcher team
having to navigate through the escapeway. The stretcher team
would be subject to the same slip-and-fall hazard, and, in addition,
would unduly delay the provision of critical medical treatment to
an injured miner and would delay the evacuation of the mine and
endanger everyone, all 40 miners. Impeded, the evacuation could
lead to the death of more than one miner and certainly could lead
to the death of many miners.
Inspector Crawford found no mitigating circumstances, and
I understand the mine's position that they could not have done
more, that they were working on pumping the water, but my
concern is this -- and I credit Inspector Crawford's testimony in
this regard. The mine may have had some pumps in the area, and I
think that was routine, and the fact, number one, that they thought
15 inches of water is routine and shouldn't really have much done ,
with it causes me to think they were indifferent to the problem, to
the problem of the water in the escapeway and the hazards that
were caused by it, the fact that it was in the preshift and onshift for
a number of shifts, that the preshift and onshift reports and the
testimony of all witnesses that the accumulation existed on January
18th, 19th, and on the 20th when the inspector arrived. The
company did not approach the problem with the seriousness it
deserved. They had full knowledge of the condition and were not
doing anything to make the escapeway safe. It had been that way
for several shifts, andit was their decision not to stop what they
were doing, tum off the water, and pump the area as they did once
the inspector arrived. A number of the preshifts showed no action
taken, but some did show some action was taken later, but it
certainly wasn't enough, and it was taken seriously. The water
was obvious and extensive. Everyone knew about it, and it had
been known for several shifts.
The evidence shows that in the three months prior to this
citation, there had been a citation issued each month that related to
an escapeway, and 25 escapeway violations in a little more than a
year prior to August 2008. That should put the mine on notice that
they have issues with their escapeway and maybe it should be
taken more seriously than they did in this case. Given their history

32 FMSHRC Page 669

of methane and the fires that were reported in the mine, it's even
more obvious in this case.
There were pumps in place. When they went down, did
they replace them in a reasonable time? I think given the fact that
once they stopped what they were doing, put the pumps in place,
and turned the water off, it only took a few hours to abate the
violation. It could have been much sooner, and the mine did not
pay enough attention to get it done like they should have. There is
really no excuse for waiting such a long time to make that
escapeway travelable.
Mr. Neil did not convince me that he was diligently
working on the water problem and getting it done or that he took
the issue seriously. He said it was not a hazard and he could walk
through it. I fmd that there are a lot of excuses at this mine about
why something isn't done, but this seems like a simple thing that
was known about and should have been done.
fu addition, I find it curious that Mr. Neil agreed that there
was a violation of safeguard, but had not done anything to correct
that violation that he had believed was also there. It just
contributes to the indifference that I saw at this mine.
The mine argues, of course, that they would use a mantrip
and not walk through, that the mine is pumping and getting water
out, and that these are mitigating circumstances, that they were
doing all that they could. However, it's not borne out by the fact
· that once they focused on the job, it took only several hours to get
it done, and that given the evidence, the water had reached a much
higher level than it was at the time the ·inspector was there, and it
still seemed not to concern anyone.
This case is very similar, as I said, to the Maple Creek
Mining case where the Commission considered the obviousness
and the danger posed by the blocked escapeway and the previous
citations as aggravated factors in determining that the violation
was unwarrantable. I find that the violation was unwarrantable,
and I find that the facts [as stated in the citation] and the citation as
issued by the inspector is correct, and I will uphold that citation ...
[as written and uphold all findings made by the inspector].
(Tr. 241- 247)

32 FMSHRC Page 670

This case is nearly identical to Maple Creek Mining Inc., 27 FMSHRC 555 (Aug. 2005)
and Eagle Energy Inc. 23 FMSHRC 829 (Aug. 2001) with regard to the unwarrantable failure
findings. fu those cases, the Commission considered the obviousness of the condition, the
danger posed by the water in the escapeway, and the previous citations as aggravating factors.
Those same factors, and more, are present here.

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 11 O(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 Act delegates the duty of proposing
penalties to the Secretary. 30 U.S.C. §§ 815(a) and 820(a). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess
the penalty. 29 C.F.R.§ 2700.28. The Act requires that, "in assessing civil monetary penalties,
the Commission [ALJ] shall consider" six statutory penalty criteria:
[1] the operator's history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator's ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
J:].Otification of a violation. 30 U.S.C. § 820(i).
In keeping with this statutory requirement, the Commission has held that "findings of
fact on the statutory penalty criteria must be made" by its judges. Sellersburg Stone Co., 5
FMSHRC 287, 292 (Mar. 1983), ajf'd, 736 F.2d 1147 (7th Cir. 1984). Once findings on the
statutory criteria have been made, a judge's penalty assessment for a particular violation is an
exercise of discretion, which is ''bounded by proper consideration of the statutory criteria and the
deterrent purpose[s] ... [of] the Act. Id. at 294; Cantera Green, 22 FMSHRC 616, 620 (May
2000).

I accept the stipulation of the parties that the penalties proposed are appropriate to this
operator's size (large operator) and ability to continue in business. The violation was abated in
good faith, and no evidence has been presented to the contrary. The history shows a number of
escapeway violations in the months prior to this order, including the violations discussed above.
I find that the Secretary has established that the negligence amounted to reckless disregard for
the violation and that the gravity determined in the order is accurate. The total proposed penalty
of $63,000.00 is appropriate in this case, given the statutory criteria.

32 FMSHRC Page 671

III.ORDER
Based on the criteria in section 1 lO(i) of the Mine Act, 30 U.S.C. § 820(i), lassess a
penalty of $63,000.00 for this violation. Independence Coal Company is ORDERED TO PAY
the Secretary of Labor the sum of $63,000.00 within 30 days of the date of this decision.

\'5\~~
~~ative
Law Judge

Distribution:
Ben Chaykin, Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd. 22nd Floor,
West, Arlington, VA 22209-2247
Carol Marunich, Sarah Korwan, Dinsmore & Shohl LLP, 215 Don Knotts Blvd. Suite 310,
Morgantown, WV 26501

/MM

32 FMSHRC Page 672

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
721 19th STREET, SUITE 443
DENVER, CO 80202·2500
303-844-5267/FAX 303-844-5268

June 18, 2010
CNIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

Docket No. LAKE 2009-223
A.C. No. 12-02010-171751-01

v.
Mine: Air Quality #1

BLACK BEAUTY COAL COMPANY,
Respondent
DECISION

Appearances:

R. Peter Nessen, Office of the Solicitor, U.S. Department of Labor,
Chicago, Illinois, for Petitioner;
·
R. Henry Moore, Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for
· ·Respondent.

Before:

Judge Miller

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor ("Secretary''), acting through the Mine Safety and Health Administration ("MSHA"),
against Black Beauty _Coal Company ("Black Beauty"), pursuant to sections 105 and 110 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act" or
"Act"). The case involves twenty violations, including one 104(d)(2) order issued by MSHA
under section 104(d) of the Mine Act.at the Air Quality #1 Mine operated by Black Beauty. The
parties presented testimony and documentary evidence on Order No. 6672489 at a hearing held
in Evansville, Indiana on March 31, 2010. The remaining 19 violations were settled on the
record at hearing.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
At all pertinent times Black Beauty operated the Air Quality #1 Mine (the "mine"), an
underground coal mine near Gibson, Indiana. The Air Quality #1 Mine mined coal and/or coal
byproducts which affected commerce. The mine is subject to regular inspections by the Mine
Safety and Health Administration pursuant to section 103(a) of the Act. 30 U.S.C. § 813(a).
The parties stipulated that Black Beauty is an operator as defined by the Act, and is subject to the
jurisdiction of the Federal Mine Safety and Health Review Commission. Stip. ifif 1-3.
32 FMSHRC Page 673

a.

Order No; 6672489

On March 4, 2008, Johnny Moore, an MSHA inspector, issued Order No. 6672489 to
Black Beauty for a violation of Section 75.l 722(c) of the Secretary's regulations. Moore
determined that the violation was the result of an unwarrantable failure to comply with the cited
standard.

The citation alleges that:
[t]he guards for the 2 Main West conveyor belt tail piece have not
been secured in place during equipment operation. The guards
have been hung by belt chains, tie-wire and loosely fastened
together with tie-wire. Accumulation of coal fines and mud
approximately 3 feet deep has created openings up to 19 inches
wide in the guards. The guards will separate with little pressure
and swing in several directions. The condition is obvious,
extensive and existed for a significant amount of time. This
violation is an unwarrantable failure to comply with the mandatory
standard.
The inspector found that a permanently disabling injury was highly likely to occur, that the
violation was significant and substantial, that one person would be affected, and that the
violation was the result of high negligence on the part of the operator. The Secretary has
proposed a civil penalty in the amount of$60,000.00.
I.

The Violation

Johnny Lee Moore has been an MSHA mme inspector since September 2005. (Tr. 72).
Moore has worked as a regular inspector and, as recently as seven months prior to hearing, held
the title of Field Office Supervisor for the Vincennes, Indiana MSHA office. (Tr. 40-41).
Moore is currently the acting ventilation supervisor in MSHA District 8. (Tr. 39). Prior to
working for MSHA, Moore was employed in the mining industry as an engineer. (41-42). He
has a mining engineering degree from the University of Kentucky, and extensive MSHA training
on guarding. (Tr. 42-43).
·
On March 4, 2008, Inspector Moore traveled to the Air Quality #1 Mine to conduct an
inspection. Terry Courtney, the shift manager, accompanied Moore during the inspection. (Tr.
110). After inspecting one conveyor belt, Courtney drove ahead on the mantrip while Moore
began to inspect the tail piece of the two main west ("2MW") conveyor. (Tr. 53). Moore
described the area near the tail piece as "muddy'' and noted that there were slip, trip and fall
hazards along with a semi-buried water line that was slick. (Tr. 59). Further, he stated that the
ribs were "kind of bad.'' (Tr. 59).

32 FMSHRC Page 674

The 2MW conveyor tail piece is protected by three guards. Two of the guards hang on
the sides of the tail piece, while the third guard is suspended at the end of the tail piece. 1 A large
sump is located at the end of the conveyor. {Tr. 56). Moore testified that that the sump was
filled with mud and coal fines approximately three and one half feet deep, and that a pile of the
same material had accumulated below the tail roller and was pushing the guards apart such·that a
19 inch gap in the guarding had developed. (Tr. 56, 60-61); Gov. Ex. 3 p. 16-17 of3/4/08 notes.
According to Moore, there was limited to no walkway around the end of the sump, i.e.,
approximately 9-10 inches wide at most. (Tr. 56). Further, Moore testified that, had he not
utilized a sounding rod to probe the depth of the sump as he carefully traveled around the end of
the tail piece, he very well could have "stepped off into [the sump] and grabbed a guard" as he
fell. (Tr. 61). Moore observed that the guards had been hung like curtains around the tail piece
using a combination of rusty tie wire2 and chains3• (Tr. 57-58, 60). According to Moore, while
tie wire may be properly used to fasten comers, it should never be used to hang guards and,
instead, the guards should be attached with studs or some type of metal fastener. (Tr. 74). Del
Culbertson, an examiner at the mine, testified that he was aware that Moore had in the past
recommended that guards be attached by bolts in order to properly secure them. (Tr. 107).
Moore noted that some of the tie wire being used to hang the guards was barely hooked at the
connection points and had not been locked. {Tr. 58). Further, he determined that the guards
were not secure and could be easily pushed or swung with the application of minimal pressure.
{Tr. 63).
According to Moore, while there is little reason for a day-to-day miner to be in the
subject area, miners would still need to come to this area to conduct preshift examinations and
service the equipment. (Tr. 57). Moore testified that in order to adequately inspect the end of
the conveyor it would be necessary to carefully hang on to one. of the side guards so that you
could lean around and observe the rear guard. (Tr. 56-57). hi the alternative, one could walk
around to the far end of the sump, however, according to Moore, that would not give a very go·od ·
view of the tail piece or surrounding guards. {Tr. 56-57).
Culbertson testified that it was unlikely that anyone would slip and fall into the sump
because most people would not walk around the sump, and rather would just use the crossover
approximately 20 feet from the tail piece. (Tr. 101). However, he also testified that during an
examination it was common for him to walk around the sump atthe 2MW tail piece. (Tr. 97).
Culbertson indicated that the guarding arrangement on the tail piece had not been changed in the
past six to seven years, and that he conducted the examination of the 2MW belt on March 3rd;

1

Moore testified that small pieces of guarding were attached to the bottom of the three guards surrounding the tail
pieces. These small additional guards were buried in the mud and were not discovered by Moore until the area was
cleaned. (Tr. 58).
·
2
According to Moore, tie wire can be different gauges, but the particular wire u8ed on the subje~t guards was similar
to the thickness of a clothing hanger and was very flexible. (Tr. 68-69). Generally tie wire is used to tie up cable.
Moore indicated that, although tie wire is generally coated in rubber, it begins to rust quickly in the corrosive mine
environment if the rubber wears off. {Tr. 68-69). According to Terry Courtney, tie wire is not as strong as a chain.
(Tr. 118).
3
Moore testified that the use of chains to hang the guards is satisfactory. (Tr. 74).

32 FMSHRC Page 675

and found no deficiencies, including no buildup of accumulations at the tail end of the conveyor.
(Tr. 99, 106).
Terrance Kiefer, also a mine examiner, conducted the examination of the subject belt the
day the order was issued, i.e., March 4th. (Tr. 137). Kiefer testified that he used the.crossover to
examine the tail piece from each side so that he didn't have to go around the sump. (Tr. 137,
138). Kiefer could not remember any problems with the guards on March 4th, and, if there had
been any problems he would have put them in his notes. (Tr. 139). He further testified that, on
March 4th, he did not see any accumulations of mud or dirt pushing the guards out at the tail end.
(Tr. 142).
Moore testified that the condition was obvious and that the "poor construction [of the
guards] was immediate and very noticeable right off the bat." (Tr. 53, 60). He instructed
Culbertson to shut down the conveyor. {Tr. 53, 60, 100). Moore issued order number 6672489
as a 104(d)(2) order for a violation of 30 C.F.R. § 75.l 722(c). {Tr. 45); Gov. Ex. 2.
Shortly after the belt was stopped and the order issued, Terry Courtney returned to the
area of the 2MW tail piece. {Tr. 54, 111-112). As Courtney traveled around the tail piece, he
slipped and, while falling into the sump, grabbed on to the end of one of the guards that was
hung by a chain. (Tr. 57, 113). Moore did not see Courtney grab the guard, but he heard him
fall into the sump. {Tr. 67-68). According to Moore, Courtney told him that he had grabbed the
guard. {Tr. 67-68). Courtney testified that the guard did not fail when he grabbed it and he did
not come in to contact with the tail roller. (Tr. 113).
Moore testified that the alleged violative condition was abated by cleaning the area,
including the sump, so.that the.guards were accessible, fabricating one guard to replace the end
guard which was in very poor condition and, finally, securely attaching the guards with
mechanical f(,lsteners. (Tr. 67); Ex. G-2. According to Moore, the cleaning and repairing of the
guards took approximately five hours. (Tr. 65)
The Commission has recognized that "[t]he purpose of section 75. l 722(c) is to prevent
accidents in the use of equipment." Arch ofKentucky, Inc., 13 FMSHRC 753, 758(May1991),
affg 12 FMSHRC 536 (Mar. 16, 1990) (AU). The regulation requires that "[e]xcept when testing
the machinery, guards shall be securely in place while machinery is being operated." 30 C.F.R.
§ 75.l 722(c)(emphasis added). The Secretary's regulations do not define what it means for a
guard to be "securely in place." The Commission has held that in the absence of a regulatory
definition of a word, the ordinary meaning of that word may be applied. See Bluestone Coal
Corp., 19 FMSHRC 1025, 1029 (June 1997); Peabody Coal Co., 18 FMSHRC 686, 690(May1996),
ajj'd, 111 F.3d 963 (D.C. Cir. 1997). If, however, a standard is ambiguous, courts have deferred to
the Secretary's reasonable interpretation of the regulation. See Energy West Mining Co. v. FMSHRC,
40 F.3d 457, 463 (D.C. Cir. 1994); accord Sec'y a/Labor v. Western Fuels-Utah, Inc., 900 F.2d 318,
321 (D.C. Cir: 1990) ("agency's interpretation ... is 'of controlling weight unless it is plainly
erroneous or inconsistent with the regulation' ")(quoting Bowles v. Seminole Rock & Sand Co., 325
U.S. 410, 414 (1945) (other citations omitted)). The Secretary's interpretation of a regulation is
reasonable where it is "logically consistent with the language of the regulation[] and ... serves a
32 FMSHRC Page 676

permissible regulatory function." General Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995)
(citation omitted).
The ordinary meaning of "secure," the verb form of the adverb in question, is instructive.
Webster's defines "secure" as "to make fast." Webster's New Collegiate Dictionary 1037
(1979). Webster's goes on to define "fast" as "l a: firmly fixed ... c: adhering firmly ... d: not
easily freed ... e: [stable]." Id. at 413. Relying upon the ordinary meaning of these words, the
Secretary's regulation seems to require that guards be firmly fixed in place such that they are not
easily moved while machinery is in operation. The Secretary's interpretation of the cited
standard, set forth in the MSHA Program Policy Manual ("PPM"), seems to echo the ordinary
meaning. The PPM, for purposes of this particular analysis, states that "[g]uards installed to ·
prevent contact with moving parts of machinery shall ... [b]e firmly bolted or otherwise
installed in a stationary position." V MSHA, U.S. Dep't of Labor, Program Policy Manual, Part
75.1722 ("PPM'). Based on the above analysis, the cited mandatory standard requires guards to be
firmly fixed in a stationary position.
I credit Inspector Moore's testimony that the poor condition of the guards was easily noticed
and that the guards could be easily pushed or moved with the application of minimal pressure. I
find that the guards, specifically those guards hanging by the rusty tie wire, were not fastened in
a manner that could be described as "firmly fixed" or "in a: stationary manner." In fact, the
guards were so loose that they were being pushed away from the tail piece by accumulations of ·
materials that had built up in the sump and under the tail piece, thereby creating a large gap in
the guarding. I question whether Culbert or Keifer were conducting adequate exams given that
they failed to notice these accumulations. The guards were not "securely" in place, as required
by the cited standard. The belt was running at the time Moore began his inspection·of the tail
piece, and no evidence has been presented that any sort of testing was underway. For those
reasons, I find that Black Beauty violated the cited standard.

Black Beauty argues that the guards were secure, as evidenced by Courtney falling and
grabbing the guard which prevented him from coming into contact with the tail pulley. However, I
credit Inspector Moore's testimony that it was only by chance that Courtney happened to grab the
end of a guard that was hung by a chain, as opposed to rusty tie wire. I further credit Moore's
testimony that, had Courtney grabbed the end of a guard hung by tie wire, the inadequate securing of
the guard would not have prevented contact with the pulley. For those reasons, I reject Black
Beauty's argument.
Black Beauty also argues that the 19 inch gap in the guarding is not a violation of the
standard at issue and, in addition, need not be guarded because there is no "reasonable possibility
of contact and injury," as required by Commission case law. BB Br. 11 (citing Thompson
Brothers Coal, 6 FMSHRC 2094, 2097 (Sept. 1994)). Again, I reject Black Beauty's argument.
While I need not reach the question of whether the gap in the guard is a violation of the cited
standard, I take note of the fact that the gap was caused in large part by the unsecure nature of
the guards, which allowed the guards to be pushed outwards by accumulations which had built
up underneath the tail piece. Nevertheless, I credit Inspector Moore and his drawings which
indicate that the gap spanned 19 inches at the widest point. While the gap may not be 19 inches
32 FMSHRC Page 677

at the top, it is a gap nonetheless, and provides an opening where a miner may come in contact
with the pulley at a distance much less than 30 inches. Based on Courtney's fall, the mine
cannot dispute that it is easy for a miner to slip and fall into the guarding. When that happens, it
is reactionary to grab onto, or attempt to grab onto, anything in reach. I find that the gap in the
case, whether it was 19 inches or narrower, was a direct result of the guards not being "securely''
in place.

In an enforcement proceeding under the Act, the Secretary has the burden of proving all
elements of an alleged violation by a preponderance of the evidence. In re: Contests of
Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), affd, Sec'y
ofLabor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998); ASARCO Mining Co.,
15 FMSHRC 1303, 1307(July1993); Garden Creek Pocahontas Co., 11FMSHRC2148, 2152.
The Secretary has met her burden of proving that, on the day of inspection, the mine failed to
comply with the cited standard. I find that the Secretary has established a violation.
2.

Significant and Substantial Violation and Gravity

A significant and substantial ("S&S") violation is described in section 104(d)(l) of the
Act as a violation "of such nature as could significantly and substantially contribute to the cause
and effect ofa 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'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:
[i]n 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 ofa
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. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861F.2d99,
103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving
Mathies criteria).
First, as noted above, I find that there is a violation of the mandatory safety standard as
alleged bythe Secretary. Second, I find that a discrete safety hazard existed as a result of the
violation. The guards were capable of being ea.Sily moved by the application oflimited pressure.
The guards were loosely hung by tie wire and had been pushed away from the tail piece by
accumulations of coal and mud, thereby exposing an area where a miner could have gotten
caught in the conveyor or a pinch point on the conveyor belt.

32 FMSHRC Page 678

The difficulty with finding a violation S&S normally comes with the third element of the
Mathies formula. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the
Commission provided additional guidance:
We have explained further that the third element of the Mathies
formula "requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in
which there is an injury." U.S. Steel Mining Co., Inc., 6 FMSHRC
1834, 1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d)(l), it is the
contribution of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining Co., Inc., 6
FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc.,
6 FMSHRC 1573, 1574-75 (July 1984).
This evaluation is made in consideration of the length of time thatthe violative· condition
existed prior to the citation and the time it would have existed if normal mining operations had
continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co;,/nc.,
6 FMSHRC at 1574. The question of whether a particular violation is S&S'must be based on the
.
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
Third, I find that there is more than a reasonable likelihood that the hazard described will
result in an injury. As discussed above, the guards were-inadequately secured, with some of the
guards having been loosely hung by rusty tie wire, as opposed to chains; The danger in such a
situation is that a miner could fall into the unsecured guards which, given their unsecure nature, ·.
would not prevent the miner from coming into contact with moving machinery of the tail piece.
If a miner were to come into contact with the moving machinery, in this case a tail pulley or
moving conveyor belt, they could be caught in the conveyor or a pinch point on the conveyor
belt. While improperly secured guards may in some instances present all that is needed to find a
violation to be S&S, here, the situation is exacerbated by the condition ofthe area in which the
inadequate guards were located. The mud and coal accumulations, slick water line, and narrow
walkway around the sump presented a serious slip and fall hazard.
I credit Inspector Moore's testimony that, had he not utilized a sounding rod to probe the
depth of the sump as he carefully traveled around the end of the tail piece during his inspection,·
he very well could have "stepped o_ff into [the sump] and grabbed a guard" as he fell. (Tr. 61).
As further evidence of the slip and fall hazard and the likelihood of injury, I note Courtney's fall
into the sump. Courtney, a shift manager at the time the order was issued and an individual who
would presumably have knowledge of the sump at the end of the conveyor in question, slipped
while traveling around the tail piece and, while falling into the sump, grabbed the end of one of
the guards that happened to be hung by a chain. Had he grabbed an end that was hung by rusty
tie wire, the tie wire would not have held his weight and he would have fallen into the tail pulley
machinery. While the conveyor was off at the time Courtney fell, assuming normal mining

32 FMSHRC Page 679

operations, the conveyor would have been on when other miners were examining or passing
through the area. Even if the area was not frequented by a large number of miners per day, the
hazardous conditions presented by slip, trip and fall hazards made it highly likely that any
individual traveling around the tail piece would fall into the unsecured guarding and, in turn,
come in contact with the moving machinery of the tail piece. I further credit Inspector Moore's
testimony that the ribbed tail roller increases the hazard and potential for injury. (Tr. 61-61).
According to Moore, ribbed rollers, as opposed to smooth rollers, are much more difficult to
break free from once an individual becomes entangled.
Fourth, I find that it is reasonably likely that an injury sustained as a result of the hazard
presented would be of a reasonably serious nature. I credit Moore's testimony that accidents in
which miners are caught in the pinch points of machinery often result in the loss of fingers, arms
or other appendages, and can result in the death of a miner. (Tr. 61).
Moore testified that, in his experience, the subject violation was certainly S&S. Black
Beauty argues that it is unlikely that a miner will be in a position to get caught in the conveyor.
Specifically, it argues that belt examiners are the only individuals who would be in the area
while the belt was in operation, and the only other miners likely to be in the area, maintenance.
people, would de-energiz~ the conveyor before beginning work near the tail piece. While there
may be limited exposure, I credit the inspector's testimony and find that the unsecure guarding,
combined with the trip and fall hazard and the fact that examiners would be in the area at least
once per shift, make it more than reasonably likely that an injury would occur and that the injury
would of a reasonably serious nature. Further, I find that only one person would be affected by
this condition, given that it is unlikely that. two people would be in the area and fall in into the
conveyor simultaneously. For the above reasons, I affirm the citation as written with regard to
the Secretary's S&S and gravity findings.
3.

Unwarrantable Failure and Negligence

The term "unwarrantable failure" is defined as aggravated conduct constituting more than
ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable
failure is characterized by such conduct as "reckless disregard," "intentional misconduct,"
"indifference," or the "serious lack of reasonable care." Id. at 2004-04; Rochester & Pittsburgh
Coal Co., 13 FMSHRC at 193-94. Aggravating factors include the length of time that the ·
violation has existed, the extent of the violative condition, whether the operator has been placed
on notice that greater efforts were necessary for compliance, the operator's efforts in abating the
violative condition, whether the violation was obvious or posed a high degree of danger and the
operator's knowledge of the existence of the violation. See Consolidation Coal Co., 22
FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994);
Windsor Coal Co., 21FMSHRC997, 1000 (Sept. 1999); Consolidation Coal Co., 23 FMSHRC
588, 593 (June 2001 ). All of the relevant facts and circumstances of each case must be
examined to determine if an actor's conduct is aggravated, or whether mitigating circumstances
exist. Consol, 22 FMSHRC at 353.

In order to conduct an appropriate analysis of the aggravating factors, it is important to
consider the context in which the order was issued, specifically those events that occurred prior
32 FMSHRC Page 680

to the date the order was issued. Moore testified that in January of 2008 he traveled to Black
Beauty's Air Quality #1 Mine to conduct a routine inspection. (Tr. 44). During the course of the
inspection, Moore issued a number of citations for conveyor belt guarding violations, including
violations for unsecure guards. (Tr. 47). On January 28, 2008, Moore informed Marty Wade, a
Black Beauty employee, that many of the conveyor guards were unacceptable and could
contribute to miners being injured. (Tr. 48). The following day, Moore had additional
discussions concerning the guarding with Ro~ Madlem, Rick Kerry, Gary Campbell, Terry
Courtney, Brandon Flath; and Chris Robinson. (Tr. 48-50). At some point during the days
following the discussions, Moore and members of Black Beauty management created a list of the
conveyors at the mine. (Tr. 49). Moore testified that he struck an agreement with Black Beauty
management that the mine would, at the rate of one conveyor per day, examine and make
necessary repairs to the guards on each of the 25 to 26 conveyor belts at the mine. (Tr. 49-50).
Courtney testified that he was aware of the list of belts that required guarding repairs, but he was
not aware that the use of tie wire was problematic. (Tr. 117). According to Moore, Brandon
Flath, who was in charge of the belt crew, told Moore that after the meeting he, along with a
group of other Black Beauty employees, had examined the belts and prioritized the conveyor
drives that needed the most work on their guarding. (Tr. 50-51 ). Flath testified that the belts
were not addressed in order of priority, but rather by starting in one area and then working across
the mine. (Tr. 129). Flath testified each drive had approximately 17 sheets of guarding, and that
to redo the guarding on a drive he would have to fabricate components and build new hangers.
(Tr. 122-123).
Flath testified that he was aware of the list and that Moore didn't want to see tie wire
attached anywhere on the guards; however he never informed the belt examiners of Moore's
problem with tie wire. (Tr. 120-121, 130-131). Kiefer, an examiner, testified that he was not
aware of the list, but that he had heard that Inspector Moore had a problem with the way the
guarding was affixed to the conveyors. (Tr. 141). Ronald Madlem, a safety supervisor at the
mine, testified that he was aware of the list and fuspector Moore's concern with using tie wire.
(Tr. 145). Flath further testified that, in spite of the list, he never committed to
examining/repairing one conveyor per day. (Tr. 123). When questioned regarding his response
to Moore's proposed plan Flath stated "I didn't say I couldn't do it. ... I didn't think it was
possible, ... (but] I didn't say, no, that's impossible, we can't do that. I'm not going to do that.
I just-you know, okay." (Tr. 130). Flath testified that he only committed to doing his best.
(Tr. 123).
Moore noted in his testimony that many of the conveyors did not need actual work or
repairs, and could have easily been checked off after a quick examination. (Tr. 49). However,
he noted, while many of the guards were well constructed, it was the method of hanging and
securing those guards that was unacceptable and needed to be addressed. (Tr. 49-50).
Specifically, Moore cited the unacceptability of using tie wire to hang guards. (Tr. 50). Moore
testified that in the weeks and days following the meeting he noticed that the agreed to
examination/repair schedule was not being adhered to. (Tr. 52). According to Flath, the
guarding of only five or six belts had been examined/repaired as of March 4th, the day the subject
order was issued. (Tr. 124). Moore testified that on March 61\ two days after the order was

32 FMSHRC Page 681

issued, he spoke to Brandon Flath, who told Moore that the mine was working on the guarding
but that they had fallen behind schedule. (Tr. 78).
I credit Moore's testimony with regard to the agreement that was reached and Black
Beauty's subsequent failure to abide by that agreement. Further, I find that the agreement not
only put Black Beauty on notice that greater efforts were required for compliance, but also
expressly set out what was required for compliance. fo spite of that notice, Black Beauty failed
to make a reasonable effort to repair the guards which, in turn, resulted in the subject order.

fo addition, I find that the violative condition existed for an extended period of time and,
while some effort was made to abate the violation, it was minimal at best. The condition existed
during Moore's January 28th inspection, and had not been abated prior to the March 4t1t
inspection during which the order was issued. The mine had indicated to the inspector that it
would repair the guards on one conveyor each day. I was not persuaded by Flath's testimony
that he was diligently working on the guards or that he did not commit to repairing one conveyor
per day. I credit Moore's testimony that Black Beauty was not fulfilling its end of the bargain,
and, in doing so, allowed the violative condition, which I have found to be of an S&S nature, to
exist for over a month. The violative condition took five hours to abate. That time included
cleaning the area, fabricating the appropriate guarding, and securely attaching the guarding. .
This particular drive required a great deal more work than many of the other drives, yet its
condition was corrected in approximately five hours: 25 to 26 days was more than enough time
to repair the guarding on the conveyors at the mine, regardless of any agreed to schedule, yet
Black Beauty failed to do so. In fact, the only step taken by Black Beauty to abate the violative
condition was to place the 2MW belt on the list of belts that needed to be examined.
I find that the violative condition was obvious. I credit fospector Moore's testimony that
the condition was obvious and immediately noticeable when he entered the area. The guards
were hung at ,Some points by rusty tie wire, which was described as being approximately the
same thickness as a clothing hanger. fo addition, the guards were capable of being easily moved
with the application of minimal pressure. Further, the guards had been pushed away from the
tail piece by a pile of accumulations. Such conditions are very obvious and should have been
easily noticed by Black Beauty's examiners.
Black Beauty avers that it has used the same guarding practices for years without issue.
While this may be true, it stands to reason that guarding systems deteriorate over time and must
be repaired. fo this case, it appears that stop-gap repairs were made in lieu of more permanent
fixes. As mentioned above, the condition was obvious, and therefore should have been addressed
by Black Beauty regardless of whether it had been cited in the past.
Moore testified that the mine had received approximately 33 violations related to
guarding since May 2006 and he, personally, had issued 17 violations for guarding since July
2007. Management was notified in several meetings with Moore that there was a serious
problem with the guarding systems. Ample time was given to the belt boss and the shift
managers to conduct the inspections and make corrections. The mine had a recent history of
guarding violations, and was on notice of the need to comply. Jn spite of that, the serious lack

32 FMSHRC Page 682

of reasonable care exhibited by management resulted in continued guarding violations, including
the one at issue, and clearly amounts to aggravated conduct constituting more than ordinary
negligence. For the above reasons, I find that Black Beauty has unwarrantably failed to comply
with the mandatory standard and I affirm the Secretary's high negligence finding.

b. Remaining nineteen citations.
The parties entered into a stipulation at hearing regarding the remaining 19 violations in
this docket. The Secretary agreed to modify Citation Nos. 4263729, 4263730, 6669996,
6670742, 6670747, 6681052, 6681084, 6681086 and 6682005 to non-S&S violations and to
remove the unwarrantable designation from Citation No. 6678358. The parties agteed that the
Respondent will pay the penalty as assessed for Citation Nos. 6669994 and 6682100 and that the
Secretary will reduce the remaining violations, primarily be modifying the level of negligence.
The entire docket was originally assessed at $317,405.00 with $60,000.00 of that amount
assessed to the Order that was tried, leaving $257,405.00 for the citations that are settled. The
Respondent has agreed to pay $71,518.00 of that amount.
There was a discussion on the record about the settlement and the details of the
modification of each alleged violation are set forth in the transcript. The discussfon revolved
around the reasons for this particular settlement and other recent settlement motions that have ·
been filed concerning this mine operator. I am reluctant to approve a settlement that has such a·
drastic reduction in penalty and so many modifications to the citations. However, given the
representations of the parties and a review of the file, I find that the proposed settlement is
appropriate and the Motion to Approve the Settlement is GRANTED.
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 11 O(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 Act delegates the duty of proposing
penalties to the Secretary. 30 U.S.C. §§ 815(a) and 820(a). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess
the penalty. 29 C.F.R.§ 2700.28. The Act requires that, "in assessing civil monetary penalties,
the Commission [ALJ] shall consider" six statutory penalty criteria:
[I] the operator's history of previOus violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator's ability to continue in business, [ 5] the
gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation. 30 U.S.C. § 820(i).

32 FMSHRC Page 683

In keeping with this statutory requirement, the Commission has held that "findings of
fact on the statutory penalty criteria must be made" by its judges. Sellersburg Stone Co., 5
FMSHRC 287, 292 (Mar. 1983), ajf'd, 736 F.2d 1147 (7th Cir. 1984). Once findings on the
statutory criteria have been made, a judge's penalty assessment for a particular violation is an
exercise of discretion, which is "bounded by proper consideration of the statutory criteria and the
deterrent purpose[s] ... [of] the Act. Id. at 294; Cantera Green, 22 FMSHRC 616, 620 (May
2000).

I accept the stipulation of the parties that the penalties proposed are appropriate to this
operator's size and ability to continue in business. The violations were abated in good faith, and
no evidence has been presented to the contrary. The history shows a number of violations for
guarding in the 15 months prior to this order, including the violations discussed above. I find
that the Secretary has established that the negligence is high for the violation and that the gravity
determined in the order is accurate. The total proposed penalty of$60,000.00 is appropriate in
this case, given the statutory criteria.

Ill.ORDER
Based on the criteria in section 1 lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess a
penalty of $60,000.00 for the contested order, and ORDER Black Beauty Coal Company to pay
the Secretary ofLabor the sum of$131,518.00 within 30 days of the date of this decision.

Distribution:

R. Peter Nessen, Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn Street,
Suite 844, Chicago, IL 60604
R. Henry Moore, Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Avenue,
Pittsbur~ PA 15222
/ksv

32 FMSHRC Page 684

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

June 18, 2010
·

COAL RIVER MINING, LLC,
Contestant,

CONTEST PROCEEDINGS
Docket No. WEVA 2006-125-R
Citation No. 7249165; 01/30/2006

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent.

Docket No. WEVA 2006-126-R
Order No. 7249166; 01130/2006
Docket No. WEVA 2006-127-R
Order No. 7249167; 01/30/2006
Docket No. WEVA 2006-128-R
Order No. 7249168; 01/30/2006
Tiny Creek No. 2
Mine ID: 46-08835

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2007:.196
A.C. No. 46-08835-103740

v.
COAL RIVER MINING, LLC,
Respondent.

Tiny Creek No. 2 Mine

DECISION ON REMAND
The Commission remands this matter for reconsideration of whether the violation of 30
C.F.R. §75.340(a), set forth in Citation No. 7249165, was the result of an unwarrantable failure
on the part of Coal River Mining, LLC ("Coal River"). The Commission also orders
reconsideration of Coal River's level of negligence and of the penalty assessed for the violation.
32 FMSHRC 82 (February, 2010).
The Commission's decision is pointed and detailed. The Commission explains the
concept of unwarrantable failure and the relevant factors a judge must consider when

32 FMSHRC Page 685

determining the issue. 32 FMSHRC 88-89. The Commission instructs me to reconsider the
unwarrantable failure issue in light of the factors.
Following the remand, I ordered counsels to explore settlement of the matter. If they
could not agree to a settlement, I ordered them to submit briefs addressing the unwarrantable
issue. The settlement discussions proved futile, and the briefs were received. 1 In view of the
Commission's instructions, I find that the violation was the result of Coal River's unwarrantable
failure to comply with the standard.

In the underlying decision, I concluded that the violation of section 75.340(a) occurred
because, as the Secretary charged, the scoop charger located at Spad No.1965 was neither
provided with a fire suppression system nor housed in a proper area. It was the practice at the
mine to meet the standard's requirements either by charging a scoop's batteries on the scoop or,
if batteries are charged off of the scoop, by applying Pryo-Chem to the ribs of the area were the
batteries were charged. In this particular instance, the scoop's batteries were charged on the
floor, off of the scoop, and Pyro-Chem was not applied to the ribs. Therefore, I found that the
company violated section 75.340(a). 31 FMSHRC at 206-206.
Although I concluded that the company intended to apply Pyro Chem to the ribs, the
procedure was not carried out, despite the instructions of the Superintendent. 37 FMSRHC at
207. The Secretary points out that it was the practice at the mine, if batteries were charged on the
ground, to Pyro-Chem the ribs. Mine managers knew this. They also knew Pyro-Chem had not
been applied to the ribs because the Pyro-Chem was stored on the surface and, because it was
January, the Pyro-Chem was frozen. Management did not take any action to provide other PyroChem or to make sure batteries were not charged on the ground. In order words, management
knew of the violation but did not prevent it.

In addition, the record establishes that the violation existed long enough that it should
have been reported by the pre-shift examiners, and it was not. Although the application of rock
dust to the walls made the lack of Pyro-Chem difficult to detect (see 31 FMSHRC at 208), a
proper examination would have revealed that it was missing.
Moreover, given the fact that the lack of fire proofing on the walls of the charging station
could have resulted in the fire endangering eight or nine miners (31 FMSHRC 206-207), mine
management was under a heightened standard of care to prevent such a hazard. Management did
not meet this duty.

1

Counsel for Coal River also filed an unsolicited Supplemental Decision. Counsel for the
Secretary moved to strike the Supplemental Decision on the grounds that it was neither requested nor was
permission given to file it. Counsel for the Secretary is right on both counts, and the motion IS
GRANTED. In reaching this Decision on Remand the Supplemental Decision has not been considered.

32 FMSHRC Page 686

Given these factors and given the Commission's explicit and implicit instructions, I
conclude the violation of section 75.340(a) set forth in Citation No. 7249165 was the result of the
company's unwarrantable failure to comply with the standard. I further find the violation was the
result of the company's high negligence. Managers knew the walls were not coated with PyroChem and they did not ensure the defect was correct even in view of the serious hazard posed by
the violation. In view of findings I made with regard to other applicable civil penalty criteri~
findings that were not disturbed on review, I conclude that a civil penalty of$4,000.00 is
appropriate and Coal River IS ORDERED to pay this amount for the violation. 2
Upon compliance with the Order set forth at 31 FMSHRC 2117-218 as modified in n. 2,
infr~ these proceedings ARE DISMISSED.

__j)vv; cl£tfu /,

DavidF. Bar~~
Administrative Law Judge

Distribution: (Certified)
Ronald Gurka, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Boulevard,
22°d Floor, Arlington, VA 22209
F. Thomas Rubenstein, Esq., Dinsmore & Shohl LLP, 215 Don Knotts Boulevard, Suite 310,
Morgantown, WV 26501

/crp

2

Since the only parts of the underlying decision vacated on review were the unwarrantable
failure and negligence findings made in connection with Citation No. 7249165 and the civil penalty
assessed for the violation (27 FMSRHC at 99), the Order entered in the underlying decision is modified
to increase the total civil penalty due for all of the violations to $14,000.00 and to delete the instruction
to the Secretary to modify the inspector's negligence finding on Citation No. 7249165 from "high" to
"moderate."

32 FMSHRC Page 687

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

June 29, 2010
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH.
ADMINISTRATION (MSHA),
Petitioner
v.

Docket No. KENT 2008-1407
A.C. No. 15-15978-148474

SHELTON BROTHERS ENTERPRISES,
Respondent

Martin Plant

AMENDED DECISION APPROVING SETTLEMENT

Before: Judge Feldman
The captioned matter is before me based upon a petition for assessment of civil penalty
filed pursuant to section 105(d) of the Federal Mine Safety and Health Act of 197T(the Act).
30 U.S.C. § 815(b). The Secretary filed a motion to approve a settlement agreement and to
dismiss this civil penalty proceeding. A Decision approving the parties' settlement terms was
issued on April 22, 2010. The settlement terms included the respondent's agreement to pay a
reduced civil penalty of $1,050.00 instead of the $1,500.00 initially proposed. The Decision
Approving Settlement required the respondent to pay the civil penalty within 30 days.
On or about May 24, 2010, when the 30 day period after the Decision approving
settlement had expired, the respondent telephoned my law clerk to request a twelve month
payment schedule for the $1,050.00. It is unclear whether the respondent's telephone request
occurred several days before or several days after May 24, 2010, as the date of the telephone
contact was not recorded. What is clear is that the respondent had telephoned my secretary with
a similar request several days prior to telephoning my law clerk. After speaking to my law clerk,
the respondent was requested to submit its request in writing. The respondent's request for a
twelve month payment schedule was filed by facsimile on June 1, 2010.
Upon receiving the respondent's request, my law clerk telephoned counsel for the
Secretary to .determine if there was any opposition. On June 17, 2010, the Secretary filed a
motion to oppose the respondent's motion for a payment schedule. The Secretary's opposition is
based on her assertion that my Decision ordering the respondent to pay the entire $1,050.00
penalty within 30 days has become final thirty days after its issuance.

32 FMSHRC Page 68.8

As a threshold matter, the April 22, 2010, Decision Approving Settlement noted that this
case would not be dismissed until timely payment of the entire $1,050.00 civil penalty was
received. Consequently, I still retain jurisdiction in this matter. Moreover, the respondent's
initial contact with my secretary occurred less than 30 days after the settlement decision was .
issued, and the telephone contact with my law clerk occurred shortly thereafter. Accordingly, the
retention of my jurisdiction notwithstanding, the respondent's motion to reopen is timely even if
the April 22, 2010, Decision were to become final after 30 days.
Finally, the request to pay the civil penalty in monthly installments rather than in its
entirety is procedural rather than substantive. Consequently, approving the twelve month
payment schedule does not substantively alter the terms of the parties' settlement agreement.
Significantly, the Secretary does not contend that the respondent's proffered twelve month
payment schedule is unreasonable.
In view of the above, the respondent's motion to pay the $1,050.00 civil penalty in twelve
monthly installments IS GRANTED. Consequently, IT IS ORDERED that the respondent pay
$87.50 per month, for a total of twelve (12) months until the total proposed penalty of$1,050.00
is received. Payment is to be made on the first of each month for twelve consecutive months
beginning on September l, 2010. IT IS FURTHER ORDERED, that if anyone of the
respondent's monthly payments is more than ten days late, the remaining sum of the initially
proposed $1,500.00 civil penalty shall become immediately due and payable. Upon timely
receipt of the $1,050.00 civil penalty, the captioned civil penalty proceeding IS DISMISSED.

<"~$

J

Jerold Feldman
Administrative Law Judge
Distribution:
Jennifer D. Booth, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219
Steve Shelton, Owner, Shelton Brothers Enterprises, Inc., 137 Thompson Drive,
Prestonsburg, KY 41653
/rps

32 FMSHRC Page 689

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, DC 20001

June 30, 2010

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 2008-737
A.C. No. 15-18267-144079

V.

MANALAPAN MINING CO., INC.,
Respondent

RB No. 10 Mine

DECISION
Appearances: Uche N. Egemonye, Esq., Carmen L. Alexander, Esq., Office of the Solicitor,
U.S. Department of Labor, MSHA, Atlanta, Georgia, for the Petitioner;
John M. Williams, Esq., Rajkovich, Williams, Kilpatrick & True
Lexington, Kentucky, for the Respondent.
Before:

Judge Feldman

This civil penalty proceeding concerns a Petition for the Assessment of Civil Penalty filed
on May 15, 2008, pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977
("Mine Act"), 30 U.S.C. § 820(a), by the Secretary of Labor against the respondent, Manalapan
Mining Company, Inc. ("Manalapan"). The petition initially sought to impose a total civil
penalty of $833,600.00 for four alleged "flagrant" violations of the mandatory safety standard
contained in section 75.400,30 C.F.R. § 75.400, of the Secretary's regulations. 1 Section 75.400
prohibits accumulations of combustible coal dust and loose coal in active workings in
underground coal mines. The violations were cited as a result of an October 2, 2007, mine
inspection.
1

Section 110(4)(b)(1) of the Mine Act as amended by the Mine Improvement and New
Emergency Response Act of2006 ("MINER Act"), 30 U.S.C. § 820(4)(b)(l), provides that a
mine operator committing a violation deemed to be "flagrant" may be assessed a civil penalty of
not more than $220,000. Section l 10(4)(b)(l) defines "flagrant" as" ... a reckless or repeated
failure to make reasonable efforts to eliminate a known violation of a mandatory safety or health
standard that substantially and proximately caused, or reasonably could have been expected to
cause, death or serious bodily injury."
32 FMSHRC Page 690

On November 3, 2009, the Secretary filed what I construe as an amendment to the
May 15, 2008, civil penalty petition removing the "flagrant or reckless disregard" charge for the
104(d) citation and three 104(d) orders that are the subject of this proceeding. In addition,
the Secretary reduced the total proposed penalty from $833,600.00 to $240,000.00 to conform
with the maximum civil penalty of $60,000.00 for each of the four alleged combustible
accumulation violations that the Secretary asserts is attributable to Manalapan's unwarrantable
failure. (Letter from Dana L. Ferguson, Esq., to John M. Williams, Esq., October 30, 2009).

This matter was heard on January 12 and January 13, 2010, in Richmond, Kentucky.
The parties' post-hearing briefs and replies are of record and have been considered in this
disposition.

I. Statement of the Case
Manalapan's RB No. 10 mine, currently inactive, is an extremely wet underground coal
mine. Consequently, mine floor conditions in October 2007 were unusually muddy. This matter
concerns a combination of coal accumulations and mud, not well defined by the Secretary, along
a series of four underground conveyor belts. The extracted material was transferred, in turn,
from the No. 4 belt at the face to the No. 1 belt nearest the surface. The extracted material,
consisted of approximately thirty percent coal and seventy percent rock and clay.
The material carried on the belts was extremely wet and muddy for several reasons.
The primary reason was the pan on the continuous miner scooped mud from the mine floor and
transferred the mud, along with the extracted material,·to the belt haulage system. Water from
dust suppression sprays at the face also progressively accumulated as the water was transferred
from the head drive to the tailpiece of each belt. Thus, the material on, and the accumulations
around, each beJt became more diluted as the material was conveyed outby.
Consequently, although the accumulations were extensive in nature, they were
predominantly a slurry mixture of coal and muddy clay, particularly as the material was carried
outby from the No. 2 belt for transfer to the No. 1 belt. As a result, the combustible hazard posed
· by the cited accumulations was greater closer to the face and dissipated by way of dilution as the
material was transported outby from belt to belt. For example, the issuing inspector considered
the cited conditions along the No. 2 belt to be a "borderline" violation, and the accumulations
along the No. 1 belt were so muddy that they could not be handled because they ran through the
fingers. Accordingly, the 104(d) citation and three 104(d) orders in issue shall be affirmed,
modified or vacated based upon the proximity of the cited conditions to the working face.

II. Findinus of Fact
On October 2, 2007, Mine Safety and Health Administration ("MSHA") Coal Mine
Inspector Dannie Lewis inspected Manalapan's RB No. 10 underground mine located in
Pathfork, Kentucky. The mine had one production day shift that began at 6:00 a.m. and

32 FMSHRC Page 691

ended at 4:00 p.m. (Tr. 320). There was no second shift after production ceased at 4:00 p.m.
(Tr. 315). The third shift was a maintenance shift that operated from 9:00 p.m. until 5:00 a.m.
(Tr. 320). Mining operations began in 2000 and continued until the mine was closed in 2008.
(Tr. 222, 248). The coal seam height underground varied from approximately 5Yz to 3Yz feet.
(Tr. 79-80). Coal was extracted from the working face by a continuous miner. (Tr. 54-55). The
material extracted from the working face consisted of approximately seventy percent rock and
clay and thirty percent coal. (Tr. 232). After extraction, the coal along with the extraneous
material was loaded onto a series of conveyor belts designed to transport it to the surface.

In October 2007 there were four belts that conveyed the extracted material from the face
to the surface totaling approximately 2,300 feet. (Resp. Ex. 6; Tr. 223). There were a total of
approximately 400 top rollers and 200 bottom rollers on the four belts. (Tr. 223). A crawler
system on wheels acted as a bridge that connected the belt on the continuous miner to the No. 4
"face" belt. (Tr. 36, 54-55, 323-25). The No. 3 belt, that received the extracted material from the
No. 4 belt, dumped the material onto the No. 2 belt which, in turn, transferred the material to the
No. 1 belt. The No. 1 belt transferred the coal outside the mine to a stacker belt on the surface.
(Tr. 223).
At the time of the inspection, the RB No. 10 mine was extremelywet with pools of water
that routinely collected at various locations. (Tr. 226-29). Water entered the mine through
old works. (Tr. 228-29). In addition, water percolated through the mine floor. (Tr. 226-27).
This resulted in substantial quantities of mud as the mine floor consisted of a soft shale known
as "fireclay." (Tr. 230). Additional water accumulated from sprays at the working face.
(Tr. 228, 335-36). Consequently, despite having water pumps at various locations, the water
was never completely removed and the mine floor remained muddy at all times. (Tr. 316-17).
The Secretary admits that it was difficult to control the water in the RB No. 10 mine.
(Tr. 88-89).
The muddy-mine floor adversely affected the consistency of the material on the belts.
David Partin, Manalapan's operations manager, explained, without contradiction, that mud and
water on the fireclay mine floor accumulated in the pan located beneath the continuous miner as
the miner was trammed. · (Tr. 229-31 ). This muddy material was transferred from the pan to the
continuous miner belt system, and, ultimately to the haulage belts. (Tr. 231 ). Lewis conceded
there was mud on the belt line. (Tr. 153). The wet and muddy conditions worsened from belt to
belt as the material was transported outby. (Tr. 91, 144, 150, 337). This is because the mud from
the mine floor, and water from dust suppression sprays at the working face, accumulated at the
head drive and tailpiece of each belt as the extracted material was dumped at the transfer point.
(Tr. 59, 74, 76, 77, 189, 228, 231, 323; Resp. Ex. 11).
At approximately 9:00 a.m. on the morning of October 2, 2007, Lewis began an
inspection of the RB No. 10 mine. Initially, Lewis reviewed the preshift and onshift examination
books. Before beginning his inspection, Lewis observed notations entered from August 30
through October 2, 2007, that, as a general matter, reflected wet and muddy conditions on a daily
basis along the Nos. 1, 2, 3 and 4 belts. (Resp. Ex. 7). The books noted ''working on" and
"shoveling" as actions taken to correct the conditions. Id.
32 FMSHRC Page 692

Lewis entered the mine. He was accompanied by Mine SuperintendentJoseph Miniard
and Timothy Carter, an MSHA inspector in training. (Tr. 51 ). The mine had been producing
coal for approximately two to three hours prior to the beginning of the inspection. {Tr. 318).
Lewis began his inspection by traveling with Miniard to the working face. (Tr. 317-18).
After completing his inspection of the face, Lewis traveled outby the conveyor belt entry to
inspect the belts. The inspection occurred prior to Miniard' s onshift examination when coal had
been carried on the belts for approximately two to three hours prior to Lewis' arrival on the
section. (Tr. 318). At that time, four men were assigned to work on the beltline concentrating on
the conveyor head drives where water and mud had accumulated. (Tr. 329).
Upon completing his examination of the belts, Lewis traveled to the surface whereupon
he telephoned his supervisor Jim Langley at the Barbourville office. After consulting with
Langley, Lewis issued 104(d)(l) Citation No. 7511467 (No. 4 Belt) as well as 104(d)(l}
Order Nos. 7511472 (No. 3 Belt), 7511478 (No. 2 Belt), arid 7511479 (No. 1 Belt) for violations
of the mandatory safety standard in section 75.400, 30 C.F.R § 75.400. Lewis designated the
cited violations as significant and substantial and attributable to Manalapan's unwarrantable
failure. 2 3
As justification for the unwarrantable failure for all four of the cited violations, Lewis
noted that Manalapan had been cited for approximately 27 violations of section 75.400 during the
preceding fifteen months. (Gov. Exs. 1-4). The MSHA Mine Data Retrieval records re.fleet that
Manalapan was cited for 28 violations of section 75.400 during the 24 months preceding
Lewis' October 2007 inspection. (Gov. Ex. 8 ). The records also reflect that 11 of the
28 previous violations were designated as non-significant and substantial. Id. Although the data
retrieval records proffered by the Secretary do not contain the proposed civil penalty for each
violation, the information on MSHA's web site reflects the assessed civil penalties ranged from
$60.00 to $6,06?.00. Only one of the previous 28 combustible material violations was
attributable to Manalapan's unwarrantable failure. The penalty proposed by the Secretary for
this violation was $4,800.00.
Section 75.400, the cited mandatory standard, states:
Coal dust, including float 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 electrical equipment
therein.

2

Generally speaking, a violation is S&S if it is reasonably likely that the hazard contributed
to by the violation will result in an accident causing serious injury. Cement Division,
National Gypsum, 3 FMSHRC 822, 825 (Apr. 1981).
·
3

A violation of a mandatory safety standard is unwarrantable when the actions of the mine
operator that resulted in the violation constitute more than ordinary negligence. Emery Mining
Corp., 9 FMSHRC 1997, 2001 (Dec. 1987).
32 FMSHRC Page 693

III. Case Law and Statutory Framework
A. Significant and Substantial
As a general proposition, a violation is properly designated as significant and substantial
("S&S") in nature if, based on the particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to by the violation will result in an injury or an
illness of a reasonably serious nature. Cement Division, National Gypsum, 3 FMSHRC at 825.
In Mathies Coal Co,, 6 FMSHRC 1(Jan.1984), the Commission explained:
Jn 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 (by the violation] will result in an injury; and
(4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.

Id. at 3-4; see also Austin Power Inc,, v. Secy ofLabor, 861F.2d99, 103-04 (5th Cir. 1988),
affg 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). With rt}spect to the
third element of Mathies, a significant and substatitial finding requires a determination that
the violation contributes significantly and substantially to the cause and effect of a hazard.
U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (Aug. 1984) (emphasis in original).
Resolution of whether a particular violation of a mandatory standard is S&S in
nature must be made assuming continued normal mining operations. U.S. Steel Mining Co.,
7 FMSHRC 1125, 1130 (Aug. 1985). Thus, consideration must be given to both the time frame
that a violative condition existed prior to the issuance of a citation, and the time that it would
have existed if normal mining operations had continued. Bellefonte Lime Co., 20 FMSHRC
1250 (Nov. 1998); Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986).
B. Unwarrantable Failure
The elements of unwarrantable conduct are well settled. The Commission has
determined that unwarrantable failure is aggravated conduct constituting more than ordinary
negligence. Emery Mining, 9 FMSHRC at 2001. Unwarrantable failure is characterized by such
conduct as "reckless disregard," "intentional misconduct," "indifference," or a "serious lack of
reasonable care." Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-194
(Feb. 1991); see also Buck Creek Coal, 52 F.3d 133, 135-36 (71h Cir. 1995) (approving the
Commission's unwarrantable failure test).

32 FMSHRC Page 694

The Commission examines various factors in detennining whether a violation is ·
unwarrantable, including the magnitude of a violative condition, the length of time that it has
existed, whether the violation is obvious, whether the violation poses a high degree of danger,
whether the operator has been placed on notice that greater efforts ate necessary for compliance,
and the operator's compliance efforts made prior to the issuance of the citation or order.
EnlowForkMiningCo., 19FMSHRCat 11-12, 17;Mullins&SonsCoalCo., 16FMSHRC 192,
195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quin/and Coals,
Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603(July1984).
Repeated similar violations may be relevant to an unwarrantable failure determination to the
extent that they serve to put an operator on notice that greater efforts are necessary for
compliance with a standard. Peabody, 14 FMSHRC at 1263-64.
C. Statutory Civil Penalty Criteria
The statutory civil penalty criteria are set forth in section l lO(i) of the Act, 30 U.S.C.
§ 820(i). In determining the appropriate civil penalty to be assessed, section 11 O(i) provides, in
pertinent part:
the Commission 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.
The Commission has noted that the de novo assessment of civil penalties by the
administrative lc;iw jutlge does not require "that equal weight must be assigned to each of the
penalty assessment criteria." Thunder Basin Coal Co., 19 FMSHR.:C 1495, 1503 {Sept. 1997).
Rather, the judge must qualitatively analyze each of the penalty criteria to determine the
appropriate civil penalty to be assessed. Cantera Green, 22 FMSHRC 616, 625-26 (May 2000).

IV. Further Findin&s and Conclusions
A. 104(d)(l) Citation No. 7511467 (No. 4 Belt)
As previously noted, the first belt Lewis observed was the No. 4 belt that received the
face material from the continuous miner via the crawler system. (Tr. 54, 58). The approximate
dimensions of the No. 4 belt were 600 feet long, 4 to 5 feet wide, and, 44 inches above the
ground. (Tr. 68, 70, 85, 327). The belt entry was 18 to 20 feet wide. (Tr. 67). Facing in an
inby direction, the right rib was approximately 2Yz to 3 feet to the right of the belt. (Tr. 67).
The distance from the left rib to the belt varied between 6 and 10 feet. This area to the left of the
belt served as a travelway. {Tr. 67, 68).

32 FMSHRC Page 695

Lewis testified that the material on the No. 4 belt was the driest of the four belts. {Tr. 83,
87, 337). In this regard, Lewis estimated that sixty to seventy percent of the belt material was
dry. {Tr. 59). Lewis explained that the wettest conditions on the No. 4 belt existed outby the
face where the head drive of the No. 4 belt dumped onto the tailpiece of the No. 3 belt. (Tr. 59,
189, 323). As noted, the water on the belts accumulated at the transfer points between the
head drives and tailpieces as the material was dumped outby from belt to belt as it was conveyed
to the surface. (Tr. 59, 74, 76, 231; Resp. Ex. 6).
Lewis observed loose coal and float dust accumulations underneath, along the side, and
on the structure of the No. 4 belt. {Tr. 55, 59). The accumulations extended from underneath the
belt to approximately one foot on each side. The accumulations continued along the entire length
of the belt. (Tr. 66; Gov. Ex. 1). Using a ruler, Lewis detennined that the accumulations ranged
from one to eight inches in depth. (Tr. 69, 74).
Lewis observed at least ten bottom rollers on the No. 4 belt turning in coal fines.
(Tr. 55, 328). These fines contacted the bottom rollers, which are approximately two to six
inches off the floor. (Tr. 55, 73). Lewis testified that a few of the rollers were so immersed in
the coal fines that they could hardly be seen. (Tr. 73, 263). Lewis noted that there were locations
where the accumulations were rubbing against the bottom belt drying the coal and causing it
change to a reddish gray color. (Tr. 55, 59, 60, 131).
Miniard conceded that the No. 4 Belt had dry accumulations and he saw rollers turning in
these accumulations. (Tr. 352). Specifically, Miniard described accumulations that had fallen
off the No. 4 belt near the face where the bridge dumped the extracted material from the
continuous miner onto the tailpiece. (Tr. 325). In terms of the magnitude of the spillage,
Miniard admitted to four areas of accumulations that were six to eight inches in depth and
approximately three feet in diameter. (Tr. 327). Brummett also admitted there were areas of coal
spillage in the vicinity of the tailpiece of the No. 4 belt. {Tr. 258). With respect to
accumulations in proximity to rollers, Miniard recalled "a couple of rollers" near the face that
were turning in coal and a couple ofrollers further outby that were turning in mud. (Tr. 328).
As a result of his observations Lewis issued 104(d)(l) Citation No. 7511467. This
citation states:
Loose coal and float coal dust has been allowed to accumulate along side and
underneath the #4 conveyor belt. When checked these coal accumulations are
observed to be 1 to 8 inches in depth and extend throughout the entire length of
this # 4 conveyor belt line. At least 10 bottom rollers are observed to be turning
in the accumulations. Also the bottom belt is observed rubbing these
accumulations in various locations along this belt. This condition is oblivious
[sic] and has been allowed to exist for at least several shifts. These coal
accumulations are observed to be black and gray in color. According to the mine
access data base this standard has been cited 27 times at the mine in the previous

32 FMSHRC Page 696

15 months. The mine operator has engaged in aggravated conduct by not talcing
corrective action to prevent accumulations of this severity. This violation is an
unwarrantable failure to comply with the mandatory standard.
(Gov. Ex. 1).

1. Fact of Violation and S&S
Section 75.400 prohibits coal dust, including float coal dust, and loose coal from
accumulating in active workings. This mandatory standard seeks to remove the hazard.of
combustible accumulations fueling or propagating an explosion. Although Miniard and
Brummett admitted thatthere were areas of dry coal accumulations along the No. 4 belt, the
Commission has determined that even wet coal accumulations are prohibited by section 75.400
because they can dry out in a mine fire and ignite. Utah Power & Light Co., 12 FMSHRC 965,
968-69(May1990) citing Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1120-21
(Aug. 1985). Moreover, the preshift and onshift books reflect that these accumulations had
existed for at least several shifts. Consequently, it is clear that the nature and extent of the
accumulations observed by Lewis along the N~. 4 belt constitute a violation of section 75.400.
With respect to the issue of S&S, as previously noted, resolution of whether a particular
violation of a mandatory standard is S&S must be made assuming continued normal mining
operations. U.S. Steel Mining, 7 FMSHRC at 1130. Thus, the degree of hazard caused by the
cited violation must be evaluated based on the time the violation existed prior to the issuance of
the citation as well as the time it would have continued to exist if normal mining operations had
continued.
The essence of an S&S violation is whether it is reasonably likely that the hazard
contributed to by the violation will result in an event in which there are serious or fatal injuries.
The Commission, as well as Congress, has recognized that accumulations of combustible
materials constitute hazardous conditions, as any combustible material, when placed in
suspension, can propagate an explosion. Enlow Fork, 19 FMSHRC at 14, citing S. Rep. No. 411,
91st Cong., lst, Sess. 65 (1969), reprinted in Senate Subcommittee on Labor, Committee on
Labor and Public Welfare, 94th Cong., 1st Sess., Part I Legislative History ofthe Federal Coal
Mine Health and Safety Act of 1969, at 191 (1975). The Sago Mine and Upper Big Branch Mine
tragedies in West Virginia are evidence of the tragic consequences of explosions in underground
mmes.
The accumulations observed by Lewis can ignite ifthe bearings on the No. 4 rollers
malfunctioned. In addition, Lewis observed that a 480 volt cable near the No. 4 belt was a
possible source of ignition because the cable did not have a stress clamp or bushing. (Tr. 109).
The cited accumulations could also propagate an explosion if there was an ignition in another
area of the mine; In either event, it is reasonably likely that a fire or explosion will result in
serious or fatal injuries. Therefore, the cited violation of section 75.400 in 104(d)(l)
Citation No. 7511467 is properly designated as S&S.

32 FMSHRC Page 697

2. Unwarrantable Failure
As noted, an unwarrantable determination requires an analysis of the magnitude of a
violative condition, the length of time that it has existed, whether the violation is obvious,
whether the violation poses a high degree of danger, whether the operator has been placed on
notice that greater efforts are necessary for compliance, and the operator's compliance efforts
made prior to the issuance of the citation or order. The obviousness and magnitude of the
accumulations along the entire length of the No. 4 belt, the repeated reference to accumulations,
albeit muddy, in the preshift and onshift books, and the history ofManalapan's previous
accumulation violations, are aggravating factors. However, these and all other relevant factors
must be viewed in the context of the factual circumstances of this case and all material facts and
circumstances must be examined to determine if a mine operator's negligence is mitigated.
Consolidated Coal Co., 22 FMSHRC 340, 353 (Mar. 2000).
I am cognizant that the accumulations cited by Lewis were extensive. Miniard testified
that it took a whole crew of men, fifteen or eighteen, to clean up the accumulations for the entire
belt system. (Tr. 346-47, 365). Moreover, the abatement activities were conducted for two
shifts. (Tr. 347-48). However, the analysis does not stop there. Although extensive in
magnitude, this case presents the dilemma of distinguishing the nature and extent of combustible
accumulations at each belt from the totality of accumulations that included significant
accumulations of inert muddy material. fu other words, while damp or wet coal is considered
combustible, the concentration of coal in a puddle of water, or, in a muddy suspension, must be
great enough to constitute a combustible hazard. ·
Thus, resolving the unwarrantable failure issue is a matter of degree. Namely, to what
extent were the accumulations observed by Lewis at the No. 4 belt combustible in that they posed
a high degree of danger that warranted a greater standard of care. Significantly, corroborating
Lewis' testimony, both Miniard and Brummett concede that there were dry accumulations of coal
near the tailpiece of the No. 4 belt. Moreover, Miniard admits that there were at least several
bottom rollers turning in dry coal. With respect to wet coal accumulations, on balance, the
evidence reflects that the significant concentrations of coal, even if wet, posed a high degree of
danger because the coal deposits could dry out in a mine fire and ignite. Utah Power & Light,
12 FMSHRC at 968-69.
When viewed in the context of continuing mining operations, dry combustible
accumulations in proximity to potential sources of ignition if rollers were to malfunction
pose a high degree of danger. This conclusion is further supported by the propagation hazard
posed by these accumulations that can easily be put in suspension by moving belts and rollers.
Texasgulf, Inc., 10 FMSHRC 498, 501(Apr.1988). Thus, onbalance, the Secretary has satisfied
her burden of demonstrating that the nature, extent and duration of the prohibited dry
combustible coal accumulations, and the discrete wet accumulations of coal, along the No. 4 belt
were attributable to at least a high degree of negligence evidencing an unwarrantable failure.

32 FMSHRC Page 698

3. Civil Penalty
Manalapan is a large mine operator and it has not been contended that the imposition of
the civil penalties proposed in this matter will effect its ability to continue in business. While the
history of violations may be viewed as an aggravating factor, and the cited condition is serious in
gravity, one must not lose sight of the extremely wet mining environment at Manalapan's
RB No. 10 mine. In this regard, the liquid conditions on the belt, as well as on the mine floor,
are a mitigating circumstance with respect to the maintenance difficulty of cleaning muddy
conditions around belts caused by chronic spillover to the extremely wet mine floor below.
Nevertheless, in the final analysis, Manalapan remains responsible for preventing combustible
accumulations. The Secretary proposes a civil penalty of $60,000.00. In recognition of the
muddy conditions as a mitigating factor, a civil penalty of $20,000.00 shall be imposed for
104(d)(l) Citation No. 7511467.

B. 104(d)(l) Order No. 7511472 (No. 3 Belt)
The head drive of the No. 4 belt dumps onto the tailpiece of the No. 3 belt. The No. 3
belt was approximately 400 feet long. (Tr. 86). After observing the No. 3 belt and consulting
with his supervisor atthe Barbourville office, Lewis issued 104(d)(l) Order No. 7511472 stating:
Loose coal and float coal dust has been allowed to accumulate along side and
underneath the # 3 conveyor belt. These accumulations are observed to be 1 to 9
inches in depth and extending the entire length of the # 3 conveyor belt. At least
20 bottom rollers are observed turning in these accumulations and the bottom belt
is observed rubbing these accumulations in various locations. According to the
mine access data base this standard has been cited 27 times during the previous 15
months at this mine. This condition is obvious and has existed for at least several
shifts. This violation is an unwarrantable failure to comply with a mandatory
standard.
(Gov. Ex. 2). (Emphasis added).

1. Fact of Violation and S&S
The rub in this case is the term "these accumulations" noted by Lewis in the subject
104(d)(l) orders. Although the testimony supports significant discrete, dry accumulations along
the No. 4 belt, the distinction between combustible accumulations and mud becomes
progressively less clear with regard to the No. 3, No. 2 and No. 1 belts. This is because the
testimony reflects that increasingly significant amounts of mud and water were transferred
from the head drive of each belt to the tailpiece of the next belt as the material, which was only
thirty percent coal, was being conveyed to the surface.

32 FMSHRC Page 699

Although 104(d)(l) Order No. 7511472 implies that there was "[l]oose coal and float
dust" extending along the entire length of the No. 3 belt, the record testimony is, at best,
equivocal. Miniard characterized the conditions on and along the side of the No. 3 belt as wet
and muddy. (Tr. 336). In this regard, Miniard testified that there were no dry areas along the belt
and that the only material along the belt was the mud and water typical of this mine. (Tr. 336).
Kevin Daniels, a Manalapan belt man, who cleaned up the accumulations to abate the subject
citation and orders, corroborated Miniard' s testimony. (Tr. 406). Specifically, he characterized
the conditions at the No. 3 belt as ''wet, muddy and nasty." (Tr. 406). He saw no dry coal along
the belt. (Tr. 406). Daniels stated that the accumulations were so wet and muddy that they could
not be shoveled. (Tr. 407). Photographs taken in this area clearly depict extensive areas of mud.
(Gov. Ex. 6, photos 085 and 086).
On the other hand, Lewis' testimony, which the Secretary must rely on to satisfy
her burden of proof, was contradictory. Lewis initially admitted the No. 3 belt was
"somewhat wetter" than the No. 4 belt. (Tr. 87). However, Lewis later was reticent to admit that
the conditions at the No. 3 belt were wet and muddy. He initially admitted that the conditions
were muddy, but denied that the conditions werewet. (Tr. 153). However, at his deposition
Lewis stated there was a lot of water on the belt. (Tr. 152-54). Lewis initially denied the area
along the No. 3 belt was wet and slippery. (Tr. 155). However, he ultimately conceded that there
was enough water on the belt line to make walking difficult. (Tr. 155-56). Finally, Lewis
admitted that the belt line was covered in mud, water and rock. (Tr. 153-56). Lewis opined that
although the ''No. 2 [belt] was borderline, No. 3 was not. No. 3 was combustible enough to cite."
(Tr. 150).
In sum, although the evidence and photographic exhibits reflect that numerous bottom
rollers were turning in a liquid mixture, it is difficult to·discern the concentration of combustible
material contacting the rollers. What is clear is that the areas surrounding the belts became
progressively'wetter as the material was conveyed outby from the No. 4 belt to the No. 1 belt
for conveyance to the surface. Section 75.400 requires a mine operator to promptly clean and
remove combustible materials in active workings. The preshift and onshift books reflect that the
material surrounding the bottom rollers was present for at least several shifts. Although this
material was wetter than the material along the No. 4 belt, the testimony supports the conclusion
that there were sufficient areas of combustible coal accumulations, even if they were wet or
damp, to constitute a violation of section 75.400.
With respect to the S&S issue, the considerations regarding the S&S nature of the
combustible accumulations discussed above with respect to the No. 4 belt are incorporated by
reference. Having concluded that there was sufficient combustible materials to constitute a
violation, despite the wet conditions, these accumulations could dry out in the event of a mine
fire and provide additional fuel for the propagation of an explosion. Utah Power & Light,
12 FMSHRC at 968-69. In such an event, it is reasonably likely that serious or fatal injuries
will occur. Consequently, the cited violation in 104(d)(l) Order No. 7511472 was properly
designated as S&S.

32 FMSHRC Page 700

2. Unwarrantable Failure
The testimony, preshift and onshift books reflect the accumulations along the No. 3 belt
were present for several shifts, extensive, and contacting numerous rollers. However, it is
significant that, although the examination books reflect the duration of the accumulations was at
least several shifts, the accumulations are described as ''wet and muddy'' rather than
accumulations of coal. (Gov. Ex 7). Thus, the extent to which these references refer to
combustible accumulations is unclear in that the wet and muddy description accurately describes
the mine conditions articulated by the witnesses.
What is clear is that the rollers were turning in a muddy mixture that should have been
promptly cleaned to maintain proper operation of the rollers: Although the Secretary has been
given the benefit of the doubt that this muddy composition contained sufficient combustible
material to warrant a violation of section 75.400, combustible accumulation violations are not
per se unwarrantable. Given the equivocal nature of Lewis' testimony, the evidence is
insufficient to demonstrate that this muddy mixture posed the requisite high degree of danger to
justify unwarrantable failure :findings in this case. In other words, the extremely muddy nature of
the accumulations is a mitigating factor. Consequently, the failure to promptly remove these
accumulations does not rise to the level of aggravated conduct.
In addition, the Secretary relies on the history of 27 violations as an aggravating factor.
However, forty percent of these violations were designated as non-S&S in nature. Moreover,
with respect to the issue of notice that greater belt cleanup· efforts were required, not all of these
accumulation violations concerned conveyor belts. For example, several violations concerned
float coal dust on electrical boxes and coal dust on a roof bolting machine. 4 This history of
violations, alone, particularly in light of the cited predominantly wet and muddy accumulations
due to adverse mining conditions, does not provide an adequate basis for an unwarrantable
failure.
Although the negligence attributable to Manalapan is moderate to high, Manalapan's
conduct is not sufficiently aggravated or unjustified to warrant an unwarrantable failure.
Accordingly, 104(d)(l) Order No. 7511472 shall be modified to a 104(a) citation.

4

I reach this conclusion from copies of citations issued for section 75.400 violations during the
relevant 24 month period provided by the Secretary to Manalapan in response to an interrogatory
request. Although not admitted as exhibits, these documents have probative value as they are
official records of the Secretary.
32 FMSHRC Page 701

3. Civil Penalty

AB a general matter, application of the facts in this case to section l lO(i) has been
discussed above with respect to the No. 4 belt. The Secretary proposes a civil penalty of
$60,000.00. Given the modification of the 104(d)(l) order to a 104(a) citation reflecting that
Manalapan's conduct was not unwarrantable, and, in view of the muddy conditions as a
mitigating circumstance, a civil penalty of $12,000.00 shall be imposed for 104(a) Citation
No. 7511472.
C. 104(d)(l) Order No. 7511478 (No. 2 Belt)
The head drive of the No. 3 belt dumps onto the tailpiece of the No. 2 belt. The No. 2
belt was approximately 500 feet long. (Tr. 86). After observing the No. 2 belt and consulting
with his supervisor at the Barbourville office, Lewis issued 104(d)(l) Order No. 7511478 stating:
Loose coal and float coal dust has been allowed to accumulate
along side and underneath the # 2 conveyor belt. These
accumulations are observed to be 1to12 inches in depth and
extending the entire length of the # 2 conveyor belt. At least 10
bottom rollers are observed turning in these accumulations and the
bottom belt is observed rubbing these accumulations in various
locations. According to the mine access data base this standard has
been cited 27 times during the previous 15 months at this·mine.
This condition is obvious and has existed for at least several shifts.
This violation is an unwarrantable failure to comply with a
mandatory standard.
(Gov.' Ex._ 3). (Emphasis added).
1. Fact of Violation and S&S
Once again the narrative in the 104(d)(l) order is not as it seems. Although 104(d)(l)
Order No. 7511478 implies that there was "[l]oose coal and float dust" extending along the entire
length of the No. 2 belt, Lewis admitted there were areas along the No. 2 belt that were ''wet and
muddy." (Tr. 144). The uncontradicted testimony is that the No. 2 belt was wetter than either
the No. 4 or No. 3 belts. (Tr. 91, 144, 337). Despite using essentially the same language in the
citation and orders to describe the conditions at the No. 2, No. 3 and No. 4 belts, at trial Lewis
admitted the conditions along the No. 2 belt were so wet and muddy that they constituted a
''borderline situation" as far as a violation was concerned. (Tr. 150-52).

32 FMSHRC Page 702

The conclusion that the conditions along the No. 2 belt were wet and muddy is further
supported by the testimony ofManalapan's witnesses. Miniard testified that there was no
spillage or piles of coal along the No. 2 belt. {Tr. 337). Stephan Cantrell, a crawler operator
who worked on the clean up to abate the citations, described the material along the belt as brown
in color and "pure water and mud." {Tr. 387-88). Cantrell testified the consistency of the
material on the mine floor was so liquid that it was removed by collecting the material in a
bucket and dumping the contents onto the No. 2 belt. (Tr. 388). Cantrell's testimony was
corroborated by Daniels who also cleaned up the No. 2 and No. 3 belts. Daniels testified
that the material on the No. 2 belt was so runny that it could not be shoveled. {Tr. 409).
Consistent with the testimony of Cantrell and Daniels, Brummett testified he did not see
any dry material along the No. 2 belt. {Tr. 265). Contemporaneous photographs of the area
depict a wet, soupy mixture of mud and water. (Res. Ex; 9)~ Finally, even Lewis admitted that
he had never seen a fire caused by the wet conditions he observed at the No. 2 belt. (Tr. 189).
The Secretary has the burden of proving all elements of a cited violation. Garden Creek
Pocahontas Co., 11FMSHRC2148, 2152 (Nov. 1989). I am cognizant ofManalapan's
assertion that the concentration of coal accumulations was diluted as the conditions on and
around the belts became progressively more wet and muddy. However, on balance, Lewis'
testimony, as well as the entries in the preshift.and onshift books, provide an adequate basis for
concluding there was sufficient combustible accumulations, although extremely wet, to constitute
a violation of section 75.400.
Having concluded a violation occurred, the focus shifts to the question of S&S.
Lewis testified the violation was at best "borderline." Moreover, Lewis conceded that it was
unlikely given the degree of wetness and mud, that the cited conditions could cause or contribute
to a fire or explosion. Thus, the evidence reflects that the hazard posed by this condition is not
likely to contribute to an event that will cause serious injury. Consequently, the S&S designation
shall be deleted.
2. Unwarrantable Failure ·
Having concluded that the cited condition is not S&S in nature, the muddy conditions did
not pose a high degree of danger tha:t would warrant a higher degree of care. The Secretary's
assertion that the violation is attributable to aggravated or unjustifiable conduct is inconsistent
with Lewis' testimony of a ''borderline" violation and his concession that the condition was
unlikely to contribute to a fire. Rather, the evidence reflects no more than a moderate degree of
negligence. Accordingly, the evidence does not support an unwarrantable failure. Consequently,
104(d)(l) Order No. 7511478 is modified to a 104(a) citation to reflect that the cited violation is
non-S&S in nature and not attributable to an unwarrantable failure.

32 FMSHRC Page 703

3. Civil Penalty
As noted, the penalty criteria in section 11 O(i) has been discussed above. The Secretary
proposes a civil penalty of$60,000.00. Given the modification of the 104(d)(l) order to reflect
that the conditions along the No. 2 belt were neither S&S in nature nor attributable to
Manalapan's unwarrantable failure, a civil penalty of $4,000.00 shall be assessed for 104(a)
Citation No. 7511478 ..
D. 104(d)(l) Order No. 7511479 (No. 1 Belt)
The head drive of the No. 2 belt dumps onto the tailpiece of the No. 1 belt. The No. 1
belt was approximately 400 feet long. (Tr. 91).· After observing the No. 1 belt and consulting
with his supervisor at the Barbourville office, Lewis issued 104(d)(l) Order No. 7511479.
Once again, using the one size fits all approach, 104(d)(l) Order No. 7511479 states:
Loose coal and float coal dust has been allowed to accumulate along side and
underneath the # 1 conveyor belt. These accumulations are observed to be l to 15
inches in depth and extending the entire length of the # 1 conveyor belt. At least 5
bottom rollers are observed turning in these accumulations and the bottom belt is
observed rubbing these accumulations in various locations. According to the
mine access data base this standard has been cited 27 times during the previous 15
months at this mine. This condition is obvious and has existed for at least several
shifts. This violation is an unwarrantable failure to comply with a mandatory
standard.
(Gov. Ex. 4). (Emphasis added).
1.. Fact of Violation
Although the conditions around the No. 1 belt were the wettest, Lewis' narrative
description of the alleged violative conditions at the No. 1 belt was essentially the same as his
narrative descriptions for the areas surrounding the No. 2, No. 3 and No. 4 belts. Although
104(d)(l) Order No. 7511479 implies that there was "[l]oose coal and float dust" extending
along the entire length of the No. 1 belt, at trial, Lewis conceded the cited accumulations were·
wet and soupy in nature. Moreover, Lewis admitted that the cited material was incapable of
being handled because the material ran through the fingers. {Tr. 142-44).
On cross-examination, when pressed for why he cited the No. 1 belt given the degree of
wetness and mud,.Lewis, for the first time, asserted that there were "hundreds or thousands of
blocks of coal" at the tailpiece that the belt was running in. (Tr. 134-35). Lewis described these
blocks as the size of small stones that measured one inch by one inch. (Tr. 136). However,
Lewis admitted these "blocks" of coal were not noted in 104(d)(l) Order No. 7511479, or, in his
contemporaneous notes taken during the inspection. {Tr. 136-38; Gov. Ex. 5, p.11).
32 FMSHRC Page 704

Miniard testified that Lewis did not express any concerns about the conditions around the
tailpiece of the No. 1 belt. (Tr. 339). To rebut Lewis' recollection of ''blocks" of coal at the
tailpiece, both Miniard and Cantrell testified that the area around the tailpiece cannot be seen
from the travelway. (Tr. 339, 387). The only way the tailpiece can be observed is by climbing
over the belt. (Tr. 387). However, the No. 1 belt was operating at the time of Lewis' inspection.
(Tr. 184-85). Finally, although Lewis expressed concern about these small blocks of coal
catching fire, at the trial, Lewis admitted he did not know of any wet conditions comparable to
those existing at the No. 1 belt ever causing a fire. (Tr. 142-44, 189).
Lewis' belated testimony regarding small blocks of coal at the tailpiece are not
corroborated by his description of the alleged violative conditions in 104(d)(l) Order
No. 7511479, or in his contemporaneous inspection notes. The absence of any relevant
references in the order and notes supports Miniard' s testimony that Lewis did not express any
concern about the conditions at the tailpiece during the inspection. Thus, Lewis' testimony
concerning hazardous combustible material at the tailpiece can be given very little weight.
Lewis' admissions that the wet and muddy accumulations along the No. l belt were so
liquid that they were incapable of being handled, and, that the accumulations were unlikely to
catch fire, undermine the Secretary's alleged section 75.400 violation. If the conditions at the
No. 2 belt constituted no more than a "borderline" violation, the conditions at the No. 1 belt,
where even more water and mud had spilled from the belt to the mine floor, did not rise to the
level of a section 75.400 violation. Accordingly, 104(d)(l) Order No. 7511479 shall be vacated.

ORDER
Consiste,nt with this Decision, IT IS ORDERED that 104(d)(l) Citation No. 7511467
(No. 4 Belt) IS AFFIRMED.
IT IS FURTHER ORDERED that 104(d)(l) Order No. 7511472 (No. 3 Belt)
IS MODIFIED to a 104(a) citation.
IT IS FURTHER ORDERED that 104(d)(l) Order No. 7511478 (No. 2 Belt)
IS MODIFIED to a 104(a) citation, and, that the significant and substantial designation for the
cited violative condition IS DELETED.
IT IS FURTHER ORDERED that 104(d)(l) Order No. 7511479 (No. 1 Belt)
IS VACATED.

32 FMSHRC Page 705

IT IS FURTHER ORDERED that Manalapan Mining Company, Inc., shall pay,
within 40 days of the date of this decision, a total civil penalty of $36,000.00 in satisfaction of
104(d)(l) Citation No. 7511467 (No. 4 Belt), 104(a) Citation No. 7511472 (No. 3 Belt), and
104(a) Citation No. 7511478 (No. 2 Belt). Upon receipt of timely payment, IT IS ORDERED
that the civil penalty proceeding in KENT 2008-737 IS DISMISSED.

Jerold Feldman
Administrative Law Judge·
Distribution:
Uche N. Egemonye, Esq., Carmen L. Alexander, Esq., Office of the Solicitor,
U.S. Department of Labor, 61 Forsyth Street SW, Room TrtO, Atlanta, GA 30303
John M. Williams, Esq., Rajkovich, Williams, Kilpatrick, & True, PLLC,
2333 Alumni Park Plaza, Lexington, KY 40517
/rps

32 FMSHRC Page 706

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, DC 20001

May7, 2010
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner

Docket No. LAKE 2010-128-M
A.C. No. 21-03404-201338 A

v.
United Plant
Mine ID 21-03404

BILL SIMOLA, employed by
UNITED TACONITE, LLC,
Respondent

ORDER GRANTING RESPONDENT'S MOTION FOR CERTIFICATION OF
INTERLOCUTORY RULING
The captioned civil penalty proceeding concerns a i 04(d) citation and a 104(d) order
issued pursuant to section 1 lO(c) of the Federal Mine Safety and Health Act of 1977
(the Mine Act), 30 U.S.C. § 820(c), to Bill Simola, as an agent of United Taconite, LLC
(United Taconite). Section 11 O(c) of the Mine Act provides, in pertinent part:
Whenever a corporate operator violates a mandatory health or safety
standard ... , any director, officer, or agent ofsuch corporation who
knowingly authorized, ordered or carried out such violation, ... shall be
sµbject to the same civil penalties, fines, and imprisonment that may be
imposed upon a person under subsections (a) and (d) of this section.
30 U.S.C. § 820(c) (emphasis added).
United Taconite is not a traditional corporation. Rather it is a limited liability company
(LLC) that is organized under the laws of the state of Delaware. It is authorized to operate as a
business entity based on a Certificate of Formation filed with the Office of the Delaware
Secretary of State in the Division of Corporation. As a general proposition, a limited liability
company is a business entity that is taxed as a partnership while benefitting from the personal
liability protection afforded to the assets of corporate officers.
Simola moved to dismiss this proceeding on jurisdictional grounds asserting that an agent
of a limited liability company is not subject to the personal liability provisions of section 110(c).
The Secretary opposed Simola's motion. Simola's motion was denied on April 6, 2010.
32FMSHRC

32 FMSHRC Page 707

On April 23, 2009 Simola filed a motion for certification of the April 6, 2010,
interlocutory ruling. On May 5, 2010, the Secretary filed a motion in opposition to Simola's
motion for interlocutory review. The Secretary asserts immediate review will not materially
advance the final disposition of this proceeding.
Commission Rule 76(a)(l){i) provides that, upon motion of a party, a judge shall
certify his interlocutory ruling to the Commission if the ruling involves a controlling question
oflaw and immediate review will materially advance the final disposition of the proceeding.
29 C.F.R. § 2700.76(a)(l){i). Simola's motion for an interlocutory ruling involves a novel
controlling question oflaw. Moreover, contrary to the Secretary's assertion, an expeditious
resolution of this jurisdictional question may materially advance the final disposition of this
matter. In this regard, interlocutory review may obviate the need for adjudication if it is
determined that Simola is not subject to the personal liability provisions of section 110(c) of the
Mine Act. Consequently, Simola's certification request shall be granted.

ORDER
In view of the above, Bill Simola's Motion for Certification under Commission Rule 76
IS GRANTED. Accordingly, IT IS ORDERED that the question of the applicability of the
personal liability provisions of section 110(c) to an agent of a mine operator doing business as a
limited liability company IS CERTIFIED for Commission review.

Jerold Feldman
Administrative Law Judge
u1smout1on: (Certified Mail)
Emelda Medrano, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn Street,
Room 844, Chicago, IL 60604
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Ave.,
Pittsburgh, PA 15222
/rps

32 FMSHRC Page 708

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, D.C. 20001

May26, 2010
CONTEST PROCEEDING

ORICA USA, INC.,
Contestant

Docket No. YORK 2007-74-RM
Citation No. 6046560; 06/04/2007

V.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Mine ID 30-00025 4QM
CIVIL PENALTY PROCEEDING
Docket No. YORK 2008-59-M
A.C. No.30-00025-125567

v.
ORICA USA, INC.,
Respondent

Mine: Pattersonville Plant #61

ORDER DENYING MOTION TO DISMISS OR FOR SUMMARY DECISION

Before: Judge Lesnick
Background and Procedural History

This case arises out of an accident causing injury that occurred on May 4, 2007, and the
citation issued as a result of the accident. In the civil penalty case, the Secretary of Labor
("Secretary") is petitioning to assess Orica USA, Inc. ("Orica") a civil penalty of $8,209 for an
alleged violation of 30 C.F.R. §56.6306(±)(3), a mandatory safety standard requiring that access
routes to a blast area be guarded or barricaded. 1 The alleged violation is set forth in Citation No.
6046560, which was issued on June 4, 2007, and contested by Orica. In addition to alleging the
violation, the Secretary also alleges the violation was a significant and substantial ("S&S")
contribution to a mine safety hazard and was the result of Orica' s high negligence.
1

· 30 C.F.R. §56.6306(±): before firing a blast --

(3) All access routes to the blast area shall be guarded or barricaded to
prevent the passage of persons or vehicles.
32 FMSHRC Page 709

Citation No. 6046560 states, in part, as follows:
On May 4, 2007, the blasting contractor set off a production shot
in the quarry that resulted in flyrock traveling approximately 526
feet onto the New York State Thruway 1-90, striking three
vehicles and resulting in two injuries. The section ofl-90 adjacent
to the blast site was within the "blast area" and was not guarded
or barricaded to prevent the passage of persons or vehicles. The
blaster in charge of the shot engaged in aggravated conduct
constituting more than ordinary negligence. He knew or had.
reason to know that conditions including loose rock and minimal
stemming in drill holes at the blast site created a significant
hazard or flyrock throughout the blast area. However, he did not
correct these conditions, stop traffic from passing through the
blast area, or modify the blast design to reduce the hazard.
According to MSHA' s Investigation Report, Callanan Industries, Inc. ("Callanan") owns the
Pattersonville Plant #61, which is a surface crushed stone operation located in Pattersonville, New
York. Callanan contracted with Orica to design, load, and detonate the blast. On May 4, 2007, the
shot was laid out by Orica and drilled by Archibald Drilling. Flyrock from the blast traveled
approximately 526 feet onto the New York State Thruway, I-90, striking three separate vehicles. A
charter bus traveling west was struck by a rock measuring approximately 16-inches by ~2-inches and
weighing approximately 100 pounds. The flyrock passed through the roof of the bus and struck a
teenage passenger. A passenger car traveling east was struck in the driver's side windshield, striking
the operator in the abdomen. A third vehicle received a broken windshield and dents to the hood.
On June 16, 2009, counsel for Orica filed a Motion to Dismiss or for Summary Decision.
The Secretar}r filed her Opposition on October 2, 2009, and Orica thereafter filed its Reply to the
Secretary's opposition on October 23, 2009. 2

Discussion
Disrajssal is proper und~r FED.R.CIV.P. 12(b)(6) ifthe pleadings fail ''to state a claim upon
which relief can be granted."3 Under Commission Rule 67(b), 29 C.F .R. § 2700.67(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 oflaw.
2

By letter dated October 7, 2009, counsel for Orica notified the Chief Judge that it
conferred with counsel for the Secretary of Labor and was authorized to represent that the
Secretary consented to Orica filling a response to the Secretary's opposition by October 23, 2009.
3
"On any procedural question not regulated by [the Commission• s] Procedural Rules ... the
Commission and its Judges shall be guided so far as practicable by the Federal Rules of Civil
Procedure ... " 29 C.F.R. §2700.l(b).
32 FMSHRC Page 710

Regarding the Secretary, if a non-moving party fails to establish sufficient evidence of an
essential element to its claim, on which it bears the burden of proof, there is no genuine issue of
material fact and the moving party is entitled to summary decision. Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). However, summary judgment should not be granted unless it is clearly
shown that a trial is unnecessary. Id. The court is required, in reviewing all of the evidence on the
record, to draw all reasonable inferences from the underlying facts in the light most favorable to the
non-moving party. Reves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 135 (2000).
Based on my reasons outlined below, I conclude that the case is not entitled to dismissal and
Orica is not entitled to summary decision as a matter oflaw.
Orica contends that MSHA does not have jurisdiction to issue the citation atissue because
the New York State Thruway, on which the accident occurred, is not a "mine" as defined within the
Federal Mine Safety and Health Act of 1977 ("Mine Act"). Orica argues that MSHA has no
authority to issue a citation because the access route in question, the New York State Thruway, is
"public" and not ''private" in that it is owned in the name of the State of New York, and it is
unlawful for a private person to shut down the Thruway. See Orica USA fuc.' s Motion to Dismiss
or for Summary Decision ("Motion to Dismiss"), at 8. Orica also claims that the New York State
Thruway is not "appurtenant" to the mine because it is not dedicated exclusively to the mine' s use,
it lacks the property interest relationship, and it is neither annexed to nor legally belongs to the mine.
See Motion to Dismiss at9. Additionally, Orica argues that it did not receive "fair notice required
by the Due Process Clause of the Fifth Amendment to the Constitution that it would be expected to
guard or barricade the New York State Thruway." See Motion to Dismiss at 10.
The Secretary responds that MSHA's authority to issue the citation does not stem from the ·
fact that the :flyrock struck several vehicles on a "private way[] [or] road appurtenant to" the "area
ofland from whlch minerals are extracted," but, rather, from the fact that Orica controlled the extent
and contours of the ''blast area" where flyrock from the blast would land. See Secretary of Labor's
Opposition to Respondent's Motion to Dismiss or for Summary Decision ("Secretary's Opposition"),
at 2. Orica's failure to take appropriate actions to prevent persons or vehicles from entering the area
used as a mine while flyrock was present constituted a violation of the Mine Act. See Secretary's
Opposition at 3. The Secretary further responds that Orica did receive fair notice based on the fact
that the Mine Act is sufficiently clear on its face. See Secretary's Opposition at 11.
The Mine Act provides, in pertinent part, that a mine "means... an area of land from which
minerals are extracted in nonliquid form ... [and] private ways and roads appurtenant to such area ..."
30 U.S.C. §802(h)(l) (2008). Additionally, "[b]efore firing a blast ... [a]ll access routes to the blast
area shall be guarded or barricaded to prevent the passage of person or vehicles." 30 C.F.R.
§56.6306(f)(3). The term "blast area" is defined as "the area in which... flying material...may cause
injury to persons" and is determined by considering various factors. See 30 C.F.R. §56.2.

32 FMSHRC Page 711

Orica relies on Secretary ofLabor v. Natl. Cement Co. of California, Inc., 494 F.3d 1066
(2007), to interpret the meaning of "mine" with respect to roadways, and, ultimately, MSHA's
authority to issue the citation in this case. However, in that case, the mine was cited for failing to
install berms or guardrails on an access road. Id. at 1071. The citation stemmed from the company's
failure to keep the mine in compliance with appropriate regulations regarding the access roadway
conditions. Id. at 1066. The parties disagreed as to whether the road was a "mine" subject to
MSHA's jurisdiction. fu the case at hand, Orica was cited for failure to keep the mine conditions
in compliance with appropriate regulations regarding blasting. The reason for the citation stems
from the conditions at the blast site, which was at the mine, and not from the property ownership or
conditions at the site of injury where the flyrock landed. The land at the blast site was being used
in the work of extracting minerals from their natural deposits and therefore, a mine within the
definition as set forth in the Mine Act. See 30 U.S.C. §802(h)(l)(c) (2008). Because the blast site
is a "mine," MSHA jurisdiction is appropriate.
I agree with the Secretary's reasonable interpretation that Orica is not absolved of its duty
to protect people in the blast area from injury merely because the blast area extended beyond the
legal property line of the Pattersonville mine. To only include flyrock injuries on roadways that are
"private" and/or "appurtenant to" a mine would allow blasting operators to escape liability for
violations of section 56.6306 that result in injuries simply because the injuries occur off ofthe mine
property. Accordingly, I find that MSHA's authority and jurisdiction are proper in this case.
I further find that Orica did receive fair notice as required by Due Process because, as
discussed above, it is undisputed that the land at the blast site was being used to extract minerals and
is a "mine" as defined in the Mine Act. Therefore, Orica could reasonably expect that MSHA would
have jurisdiction over the activities, specifically, blasting, that occur at the mine. The language of
section 56.6306 is clear and .therefore, Orica had notice of the regulation's blasting requirements.
For all the foregoing reasons, I find that Orica is not entitled to summary decision as a matter
oflaw. Accordingly, the Motion to Dismiss is denied. Moreover, because all of the material facts
pertaining to the factors considered in determining the boundaries of the blasting area .and whether
Orica considered and employed these factors have not been deemed admitted, nor discussed, there
are genuine factual issues left to be resolved.

ORDER
Th=fore, Ori~'s Motion ro llismIBs or f~=I

:•

T_~

Robert J. Lesnick
Chief Administrative Law Judge

32 FMSHRC Page 712

Distribution:
Suzanne Demitrio, Esq., Office of the Solicitor, U.S. Department of Labor, 201 Varick Street,
Room 983, New York, New York, 10014
James A. Lastowka, Esq. & Arthur G. Sapper, Esq., McDermott Will & Emery LLP, 600 13th
Street, N.W., Washington, DC 20005-3096
lac

32 FMSHRC Page 713

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
U.S. CUSTOM HOUSE
72119TH STREET, SUITE443
DENVER, CO 80202-2500
303-844-5267/FAX 303-844-5268

June 7, 2010
CNIL PENALTY PROCEEDlNGS

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

Docket No. LAKE 2008-327
A.C. No. 12-02010-143641

v.

Docket No. LAKE 2008-590
A.C. No. 12-02010-157123-01
Docket No. LAKE 2009-224
A.C. No. 12-02010-171751-02

BLACK BEAUTY COAL COMPANY,
Respondent

Mine: Air Quality #1

ORDER GRANTING THE SECRETARY'S UNOPPOSED MOTION FOR
CERTIFICATION FOR INTERLOCUTORY REVIEW,
ORDER GRANTING THE SECRETARY'S UNOPPOSED MOTION FOR
CONTINUANCE OF HEARING,
AND ORDER STAYING PROCEEDINGS
These cases are before me on petitions for assessment of civil penalty filed by the
Secretary of Labor ("Secretary"), acting through the Mine Safety and Health Administration
("MSHA"), pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et. seq., (the "Act"). On February 1, 2010, the Secretary filed Motions to Approve
Settlement and Dismiss Proceedings in Docket Nos. LAKE 2008-327 and LAKE 2008-590. On
March 16, 2010, I issued two orders denying the Secretary's request to settle the respective
dockets based upon the lack of adequate information necessary to address the six penalty criteria
and because the drastically reduced penalties proposed by the Secretary would not adequately
effectuate the deterrent purpose underlying the act. Subsequently, the Secretary filed a Motion
for Reconsideration, as well as an Amended Motion for Reconsideration, for each of the two
dockets. On May 7, 2010, I issued an order denying the Motion for Reconsideration and
Amended Motion for Reconsideration in both dockets and restated that the proposed settlement
motions contained insufficient evidence to determine what penalty should be appropriately
assessed. In addition, on April 19, 2010, the Secretary filed a Motion to Approve Settlement and
Dismiss Proceedings in Docket No. LAKE 2009-224. I subsequently denied the Secretary's
settlement motion on the basis that there was not enough evidence to justify the penalties as
proposed for settlement; in this case a reduction in penalty by more than 80% of the original
32 FMSHRC Page 714

proposal. On May 26, 2010, the Secretary filed an Unopposed Motion for Certification for
Interlocutory Review and for Continuance of Hearing ("Sec'y First Mot.") for all three dockets.
The three captioned dockets are currently set for hearing on June 16, 2010 on the issue of the
appropriate penalty to be assessed in each case: For reasons set forth below, I GRANT the
Secretary's Motion for Certification for Interlocutory Review. Further I GRANT the
Secretary's Motion for Continuance of Hearing and STAY these matters until further notice.
The Commission's ProceduralRules state that "[i]nterlocutory review by the
Commission shall not be a matter of right but of the sound discretion of the Commission." 29
C.F.R. § 2700.76(a). Interlocutory review "cannot be granted unless ... [t]he Judge has
certified, upon ... the motion of a party, that [her] interlocutory ruling involves a controlling
question oflaw and that in [her] opinion immediate review will materially advance the final
disposition of the proceeding." Id. at§ 2700.76(a)(l)(i).
The Secretary, with little elaboration, alleges that the denial of the settlement motions
involves a controlling question of law and immediate review will materially advance the final
disposition of the proceeding. I agree that there is little~ if any, legal authority regarding the
denial of a settlement agreement, and particularly authority that relates to the requirements an
administrative law judge may impose on parties in reviewing a proposed settlement, and
therefore a controlling question of law is raised. I further find that an immediate review will
materially advance the final disposition of the proceeding.
The Secretary makes the same argument for certification in all three dockets and asserts
the following three controlling questions of law:
(i) [W]hether, in a settlement context just as in an enforcement
context, the Secretary has unreviewable prosecutorial discretion to
Ip.odify: (a) a citation from "significant and substantial" ("S&S")
to non-S&S, and (b) a Section 104(d) citation or order to a Section
104(a) citation or order;
(ii) whether, in considering a proposed settlement agreement under
Section 11 O(k), an ALJ may require the Secretary to submit factual
findings and documentation addressing the six factors listed in
Section 11 O(i) for assessing a penalty, even though Section 11 O(i)
expressly states that the Secretary "shall not be required to make
findings of fact" concerning those six factors; and
(iii) whether the ALJ impennissibly relied on her finding that the
proposed settlement would encourage operators to contest future
citations, orders, and penalty assessments.
Sec'y First Mot. 2; Sec'y Second Mot. 2. Further, the Secretary asserts that Commission review
of the three controlling questions of law will materially advance the disposition of these
proceedings by rendering the scheduled hearing unnecessary ifthe Commission were to·reverse
my denial of the settlement motions in the respective dockets. Id.

32 FMSHRC Page 715

I agree that there is a controlling question oflaw, but I do not agree to the questions as
posed by the Secretary. Instead, the issue before me is whether or not the Secretary must
provide sufficient facts and information to justify the proposed penalty in the context of a
settlement and in terms of the six statutory criteria found at section 11 O(i) of the Act. Since the
Mine Act requires the Commission to assess all penalties and in doing so, consider the six
criteria, it follows that the Commission must have the information needed to make the
assessment. The Secretary argues that she is not required to submit such information to the
Commission and therefore appeals the order issued requiring the submission of facts that relate
to the penalty criteria. Whether the Secretary must provide information is a controlling question
oflaw in resolving the many cases that are proposed for settlement and is an important matter to
resolve before going forward in the three cases at issue here.
Next, I disagree with the Secretary's assertion that, in two of the settlement denials, I
impermissibly relied upon a finding that the proposed settlements would encourage operators to
contest future violations and the associated proposed penalties. The argument goes beyond the
notion of future contests and instead relates to the deterrent purposes of the Act. Pursuant to
Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983), discretion in assessing penalties is
bounded by not only the factors set forth in section 11 O(i), but also by the "deterrent purposes
underlying the Act's penalty assessment scheme;" The question of whether an administrative
law judge may extend the six penalty criteria to a discussion of deterrence is a controlling issue
in these settlement proposals.
The Secretary is charged with enforcement of the Mine Act. For that reason, I
understand the importance to her in resolving these controlling questions of law. Based upon my
review of Commission precedent, these cases present issues of first impression. I find that these
are controlling questions of law which, if granted review, will materially advance the final
disposition of these cases. Should the Commission grant review and reverse my denial of the
settlement motions, the June 16, 2010 hearing would likely become unnecessary and the cases
could be easily disposed of without the expenditure of further resources from either party. If, on
the other hand, theCommission does not reverse the denial, the hearings on the issue of the
evidence required to support a penalty assessment in a settlement will be guided by the
Commission's ruling on the matter.
At the heart of this certification order is the authority of Commission Administrative
Law Judges to address proposed settlements. Given that the just over two weeks remain before
the scheduled June 16th hearing, I find it is appropriateto continue the hearing and stay these
matters pending the resolution of this issue before the Commission. The operator has not taken a
position on the settlement agreements and has expressed no opposition to this motion.

·ORDER
For the foregoing reasons, the Secretary's Unopposed Motions for Certification for
Interlocutory Review are GRANTED for the three above captioned matters. Accordingly, it is
ORDERED that the question of what requirements if any, an administrative law judge may
32 FMSHRC Page 716

impose upon the Secretary to demonstrate the six penalty criteria as they relate to a modified
penalty in a settlement context is CERTIFIED for review. Related to that question, is whether
an administrative law judge may consider the "deterrent purposes" that underlay the penalty
scheme in reviewing a settlement proposal. Further, the Secretary's Motions for Continuance of
Hearing are GRANTED and these matters are STAYED pending further notice.

Distribution:
Rafael Alvarez, Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn Street,
Suite 844, Chicago, IL 60604
R. Henry Moore, Jackson Kelly, PLLC, Three Gateway Center, Suite 1340
401 Liberty Avenue, Pittsburgh, PA 15222
!MM

32 FMSHRC Page 717

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N. W., SUITE 9500
WASHINGTON, D.C. 20001
(202) 577-6809

June 13, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner
v.
BRODY MlNING, LLC.,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2009-1445
A.C. No. 46-09086-184529

Brody Mine No. 1

ORDER ON RESPONDENT'S MOTION FOR CERTIFICATION OF
INTERLOCUTORY RULING

Before the Court is Respondent, Brody Mining, LLC's, Motion for Certification of
Interlocutory Ruling. ("Motion") 1 Respondent maintains that interlocutory review of the Order
Accepting Late Filing and Order Denying Motion to Dismiss, issued by Chief Administrative
Law Judge Robert J. Lesnick on April 9, 2010, is appropriate on the grounds that a controlling
question of law is involved and that immediate review will materially advance the final
disposition of this civil penalty proceeding. For the reasons which follow, Respondent's Motion
is DENIED.
futerlocutory review is addressed at 29 C.F.R. Section 2700. 76 of the Procedural Rules
("Rules") for the Federal Mine Safety and Health Review Commission. ("Commission"). That
Section notes that interlocutory review is not a matter of right, but rather one within the sound
discretion of the Commission. There are different routes for a motion for interlocutory review to
arrive before the Commission so that it may decide in its discretion whether such review is
warranted. The presiding judge· may certify on his own initiation that the twin criteria (i.e.
controlling question of law and immediate review would materially advance final disposition)

1

Respondent took two avenues, nearly simultaneously, to seek review of the same issue
raised in its Motion for futerlocutory Ruling. It did so by filing a Petition for Discretionary
Review of the same issue on May 12, 2010. Its Motion for Interlocutory Ruling was filed on
May 11th but was not received by the Commission until May 17th. ( Petitions for Discretionary
Review have an effective date of filing upon receipt, whereas filing of a motion for interlocutory
review, among other subjects, is deemed effective upon mailing.) Therefore, the two efforts to
obtain review were essentially taken at the same time.
32 FMSHRC Page 718

exist or the judge may agree with a party's motion, asserting the appropriateness of such review.
29 C.F.R Section 2700.76{a){l){i). Neither obtains here, as the Court is not acting on its own
motion and does not subscribe to Respondent's contention that the criteria are met. 2
Procedurally, Respondent had sought to have the civil penalty assessment dismissed on
account of the Secretary's late filing, filing a motion seeking such relief on December 18, 2009.
The Secretary opposed the motion, asserting that the high rate of contests and staffing shortage
explained the delay in her filing. 3 The Chief Administrative Law Judge then issued his ruling, on
April 9, 2010, denying the motion. Respondent cites the Chief Judge's observation in that Order
that the preference is to resolve such cases on the merits rather than on procedural shortcomings·
and that the 45 day filing requirement was not intended to be a procedural straitjacket. Not
mentioned by the Respondent, but noted by the Chief Judge, is "the unprecedented number of
cases currently before the Commission, as well as the unprecedented number of penalty petitions .. · ·
pending before the Secretary ... " Order at 2. fu light of those facts, the Chief Judge described
"strict adherence to the 45-day time line [as] unrealistic." Id.
Reduced to its essence, Respondent contends now that as the Secretary of Labor failed to
file its petition for assessment of civil penalty within 45 days of receipt of its contest of those
penalties, per Section 2700.28{a) of the Rules, and did not otherwise justify its failure to meet
that filing time period, but instead did not file its petition until 135 days had elapsed beyond the
due date, "Brody suffered prejudice because it was unable to resolve the citations at issue ... so
as to expose itself to a potential pattern of violation notice." Motion at 2.
Respondent elaborates on its contention that this matter should be dismissed, arguing that
the Chief Judge failed to consider whether adequate cause for the 135 day delay was established
and did not consider the ''prejudice alleged by Brody [Mining]." Id. at 4.
Upon consideration, the Court concludes that there is no controlling question of law
involved here. The notion that a 135 day delay can perforce prejudice Respondent is hollow.
Similarly, the claim Respondent has exposed itself to a potential pattern of violation notice is
speculative, at best. A host of cases have recognized both that Section 105(a) of the Mine Act
"does not establish a limitations period within which the Secretary must issue penalty proposals."
Paiute Aggregates Inc., 24 FMSHRC 950, 951(October2002), citing (among other cases) Steele
Branch Mining, 18 FMSHRC 6, (Jan. 1996) and Rhone-Poulenc of Wyoming Co., 15 FMSHRC
2089, 2092-93 (October 1993), ajf'd 57 F.3d 982 (10th Cir. 1995). Further, it is noted that in

2

Unfortunately, the Secretary of Labor has not provided any response to Respondent's
Motion. As a significant period of time had elapsed since the Motion was filed, and therefore,
barring an extension, the time for filing of an opposition had elapsed, the Court decided to issue
its ruling without the benefit of the Secretary's input.
3

Indirectly, the Secretary demonstrated its staffing shortage as its opposition to
Respondent's motion was itself out of time.
32 FMSHRC Page 719

Steele Branch the Commission took "official notice" that the Secretary had an unusually high
case load and determined that provided adequate reason for the delay. Certainly the high case
load explanation, fully warranted in the past, is even more compelling today. Official notice of
this fact is appropriate and the Court, as has Congress, takes such notice of the enormous
caseload which exists today.
Finally, the Court notes that in the civil penalty proceeding which may ensue, the
Respondent will not be precluded from contending that the delay worked to its prejudice in the
defense to the 19 violations alleged, nor will it be precluded from establishing that some or all of
the violations alleged to be "significant and substantial" were not in fact of that character.
Accordingly, for the foregoing reasons, Respondent's Motion for Certification of
Interlocutory Ruling is DENIED.4 ·

William B. Moran
Administrative Law Judge

4

Per 29 C.F.R. Section 2700.76(a)(l)(ii), Respondent must file with the Commission a
petition for interlocutory review within 30 days ofthe Court's denial of such motion for
certification.
32 FMSHRC Page 720

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE. N.W., SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-99 / FAX: 202-434-9949

June 15, 2010
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADl\.1INISTRA.TIO:N(l\.1SHA),on
behalf of JOSE A. CHAPARRO ,
Complainant,

TEMPORARY RElNSTATEl\.1E:NT
PROCEEDI:NG
Docket :No. SE 2010-:295-Dl\.1

v.
COMUNIDAD AGRICOLA
BIANCHI, lNC.,
Respondent

l\.1ine ID 54-00350
CAB Aggregates

DENIAL OF MOTION TO ISSUE ORDER TO SHOW CAUSE
In December 2009, the Secretary of Labor, appearing on behalf of Jose A. Chaparro, filed
an application to reinstate Mr. Chaparro to the position he held with Comunidad Agricola
Bianchi, Inc. (CAB), as of the date the Secretary alleged Mr. Chaparro was illegally laid off.
Following a hearing, I granted the application and issued a decision and order reinstating Mr.
Chaparro to ''the position he held on August 14, 2009, or to an equivalent position, at the same
rate of pay and with the same benefits to which he was then entitled." 32 Fl\.1SHRC 206,' 211
(February 2010). Although the order and decision settled the issues raised in the application, I
retained jurisdiction over the reinstatement. Subsequently, the Secretary filed a complaint of
discrimination on Mr. Chaparro's behalf (SE 2010-434.:.Dl\.1). Counsels and I agreed that a
hearing on the merits of the discrimination complaint would begin on August 10, 2010.
On April 30, 2010, t4e Secretary filed a motion in the temporary reinstatement case
(Docket :No. SE 295-Dl\.1) requesting that I iSsue an order requiring CAB to show cause why Mr.
Chaparro had not been remstated consistent with the February 22, 2010 Order. The Secretary
pointed out that at the reinstatement hearing, Mr. Chaparro testified that he worked in heavy
equipment maintenance and that his duties were "[c]heck[ingJ the oil on the machinery, oil and
filter changes, greasing the machinery" and ''washing [the equipment] with the ... pressure
washer." (l\.1.ot. 2, citing Tr. 16.) ·Tue Secretary also pointed out that the company administrator,
Reynat Jimenez, testified that Mr. Chaparro's duties included being "in charge of cleaning floors,
the workshop, the tools, maintaining all the heavy equipment, cleaning the green areas, collecting
used oil, washing heavy equipment, and everything related to maintenance at ... CAB." {Tr.
32 Fl\.1SHRC Page 721

74.) Reynat Jimenez also testified that Chaparro had to provide maintenance to a sand screener,
a piece of equipment that was not in the shop, but rather "in the field" and to a drag line, another
piece of equipment that was "in the field." {Tr. 96.)
The Secretary asserted that although CAB had reinstated Mr. Chaparro, his duties were
inconsistent with those described at the hearing. (Mot. 2.) The Secretary attached to the motion
a signed declaration ofMSHA Inspector Isaac E. Villahermosa in which the inspector declared
that upon receiving a complaint (presumably from Mr. Chaparro), the inspector visited CAB' s
facility in April 2010. The inspector stated that he found:
a)
b)

c)

CAB had reinstated Mr. Chaparro to a position other than that which he
held on August 14, 2009 or its equivalent.
Mr. Chaparro's duties and responsibilities as of April 28, 2010 differed
from those he performed on August 14, 2009, and were performed
under arduous conditions.
As of April 28, 2010 CAB was selectively enforcing work rules against
Mr. Chaparro.

Villahermosa Deel. 2.
Following receipt of the motion, counsels and I conferred via a conferenced telephone
call, and counsel for CAB expressed his opiri.ion that the duties to which Mr. Chaparro was
assigned were not outside his prior maintenance duties. He also requested additional time to
respond to the motion, a request that was granted with the concurrence of counsels for the
Secretary.
Counsel for CAB responded on May 10. He noted that the motion "does not state the
specific actions that ... [CAB] has taken or failed to take in relation to the ... order." (Reply 2.)
He went on to state that the mine is small in terms of manpower, and in terms of product (sand)
sold and delivered to clients' trucks. Mr. Chaparro is one of five employees who work at the
mine: three heavy equipment operators, one chief mechanic and Mr. Chaparro who works in
general maintenance, which "includes the mecharilc shop and the surroundings." (Reply 3.)
According to counsel, Mr. Chaparro "is doing what he had done during the 45 days that he
worked with ... [CAB] before he was notified his employment [was] terminated" and that he "is
only doing the functions that he was doing prior to August 14, 2010." Id. Further, "even though
all other employees have to do their primary works [sic.] every employee, works where he is
needed, [and] if the heavy equipment operato~ have to work in the mechanic shop because the
mechanic did [notl show up for work, if he has the knowledge that employee will perform those
duties." ·Id. at 3-4. CAB maintains that in fact, "Mr. Chaparro is doing less work than the other
employees and only performing the duties that were stated or testified in the hearing of this case
on February 2, 2010." Id. at 4.
·
CAB attached to its response sworn statements from Frankie Rosado Perez, a CAB
32 FMSHRC Page 722

mechanic and machine operator, Israel Gonzalez Tirado, an apparent employee of CAB, Jose
Heriberto Rodriguez Valentin, a heavy equipment operator, Hipolito Polanco Ramirez, a loader
operator and Reynat Jimenez, the administrator of CAB. In general the statements maintain that .
none of the persons have seen Mr. Chaparro abused or treated with disrespect. In addition,
Reynat Jimenez states that ''usually [Mr. Chaparro] stays cleaning in the shop, that [the shop is]
in a covered area[,] while the other employees work in the sun", but that "[i]fhe is required to
leave the shop it would be an exception, and the work required should be done in a couple of
hours." (Jimenez Sworn Statement 2.) Reynat Jimenez goes on to state that if Mr. Chaparro is
not available to work, other employees must perform his duties. Id.
CAB also supplemented its response by submitted a sworn statement from Manuel
Menendez-Marin, the president of CAB. Mr. Menendez-Marin stated that low production due to
dramatically declining sales has resulted in "everyone lending a hand to the other employee if he
or she cannot work or for some reason, the others have to help." (Menendez-Mariri Sworn .
Statement 1-2.) He further stated that Mr. Chaparro "isn't the only employee in the mine, there
are five other employees who have to cover for those who do not show up for work or are doing
other tasks. Mr. Chaparro['s] primary job is maintenance of the [machines] and green areas. He
usually works in the shop [and] all others employees work under the stin. When he is reqµired to
perform work in other areas it's for a short time." Id. at 3.

On the same day the Commission received Menendez-Marin's sworn statement, Counsel
for the Secretary objected to the statements and complained that they did not address "the ·
Secretary's underlying allegations ... that Mr. Chaparro has been reinstated to work exclusively
on tasks that are different and more arduous than those which he performed prior to
reinstatement" and that because the statements were written in English and the persons making
the statements were primarily or solely conversant in Spanish, the statements should be given no
weight. (Sec'y Letter in Response to Resp't Reply to Mot. for Order to Show Cause (May 11,
2010).)
'
RULING ON MOTION
The Secretary asks that I issue an order requiring CAB to show why Mr. Chaparro has not
been reinstated consistent with the terms of my order of February 22, 2010, (Motion for Order to
Show Cause at 3), which required that he be reinstated "to the position he held on August 14,
2009, or to an equivalent position, at the same rate of pay and with the same hours and benefits to
which he was then entitled." 23 FMSHRC at 211. The Secretary is not asserting CAB has failed
to reinstate Mr. Chaparro. He is back at work and CAB has complied with that part of the order.
Rather, the Secretary is asserting Mr. Chaparro has not returned to the same or to an equivalent
position because he has not been given the same duties he held previously. See Villahermosa
Deel. at 2.
As noted above, the record at the reinstatement proceeding revealed that Mr. Chaparro's
position on August 14, 2009, was that of a maintenance worker. I conclude from the statements

32 FMSHRC Page 723

submitted by CAB that he has been reinstated to that position. It is really the specific duties to
which he has been assigned that are the subject of the motion. The problem with the motion is
that it asks the Commission to venture into an area and to make judgements on an issue the
Commission is particularly ill equipped to decide at this point in this proceeding - the validity of
specific work a8signments given to Mr. Chaparro in his capacity as a maintenance worker for
CAB.
It is true that the company has lost some of its freedom to direct its work force consistent
with its business needs, in that it has been required to reinstate Mr. Chaparro and to return him to
the same position he held as of August 14, 2009. However, the company has met this
requirement. The question of whether or not the duties he is assigned are consistent with the
position to which he has been returned must be tested not only against the duties he held prior to
August 14, 2009, but also against the current duties required of all maintenance workers, because
the company has not lost its freedom to direct its workforce consistent with its needs as they have
evolved since Chaparro' s reinstatement.

the Secretary essentially maintains that the duties are different and are performed under
arduous conditions. CAB essentially maintains that Chaparro is continuing to work as he did
prior to August 14, 2009, with the caveat that ifhe is required to do .other duties, they are those
required of other maintenance workers given the evolving state of its business and workforce.
The Commission's judges cannot act as uber-:managers of a company by substituting their
business judgements for those of a company's managers with regard to every work assignment
given to an employee. The company has been ordered to reinstate Mr. Chaparro to the same ot to
an equivalent position, and it has done so. If in fact the duties Mr. Chaparro has been required to
undertake are more arduous and less desirable than those assigned other maintenance workers,
and if they have been given because Mr. Chaparro engaged in activity protected under the Act,
they may, as the Secretary points out, give rise to a claim of discrimination. .See Secy's Letter
(May 11, 2010). They do not, however, serve as a basis for issuing an order requiring the
company to show cause why it is not complying with a previously issued order.
For these reasons, the Motion for an Order to Show Cause IS DENIED.

j;)~d..6~
David Barbour
Administrative Law Judge

32 FMSHRC Page 724

Distribution:
Rafael Sanchez Hernandez, Esq., First Bank Building, Suite 320, 1519 Ponce de Leon Ave, San
Juan, PR 00909
Jose A. Chaparro, HC-03, Box 32560, Aguada, PR 00602
Allison L. Bowles, Esq., Marc G. Sheris, Esq., U.S. Department of Labor, Office of the Solicitor,
201 Varick Street, Room 983, New York, NY 10014
cp

32 FMSHRC Page 725

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9958 I FAX: 202-434-9949

June 15, 2010
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2009-1440
A.C. No. 46-04236-184740

v.
MAPLE COAL COMPANY,
Respondent

Maple Eagle No. 1 Mine

ORDER ACCEPTING LATE FILING
ORDER DENYING MOTION TO DISMISS
The Secretary of Labor, Mine Safety and Health Administration ("Secretary") filed her
penalty petition on November 17, 2009. 1 On December 14, 2009, Respondent Maple Coal
Company ("Maple Coal") filed its motion to dismiss for the Secretary's failure to timely file the
penalty petition, accompanied by its answer. Maple Coal alleges that it was prejudiced by the
delay.
On January 29, 2010, the Secretary filed an Opposition to Respondent's Motion to
Dismiss and Request for Acceptance of Petition Out-of-Time, in which it is alleged that the high
rate of contests, coupled with limited staff, accounted for the delay.
On February 6, 2010, Maple Coal filed a Reply to the Secretary's Opposition, in which it
further outlined its passionate arguments in favor of dismissal.
Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d)
("Mine Act"), states that a mine operator wishing to contest a citation or an order or a
notification of proposed assessment of penalty must notify the Secretary of Labor ("Secretary'')
of its desire to do so within 30 days of receipt of the citation or order or proposed assessment, at
which time the Secretary immediately shall notify the Commission, and the Commission shall
afford an opportunity for hearing. Commission Rule 28(a) provides that ''within 45 days of
receipt of a timely contest of a proposed penalty assessment, the Secretary shall file with the
Commission a petition for assessment of penalty." 29 C.F.R. § 2700.28(a).
1

In future proceedings, the Secretary should also file a Motion to File the Petition Out of Time in
accordance with 29 C.F .R § 2700.9.

32 FMSHRC Page 726

Maple Coal filed its notice of contest in the above-captioned docket on May 13, 2009.
Accordingly, under Section 2700.28(a), the Secretary's petition for assessment of civil penalty
should have been filed by June 29, 2009.
While I take cognizance of the Maple Coal's passionate arguments, case law
demonstrates the Commission's preference toward resolving cases on the merits rather than
based on procedural defects. See M.M. Sundt Constr. Co., 8 FMSHRC 1269, 1271(Sept.1986)
and Coal Prep. Services, 1nc., 17 FMSHRC 1529, 1530 (Sept.1995). It is well-settled that the
late filing of a civil penalty petition is not jurisdictional. See Salt Lake County Road Dept., 3
FMSHRC 1714, 1716 (July 1981). While the Secretary should adhere to the 45-day time limit,
the Commission has made clear that neither the term "immediately'' contained in Section 105(d)
of the Mine Act nor the time limit should be construed as a "procedural straitjacket[ J." Id. at
1716.
Furthermore, given the unprecedented number of cases currently before the Commission,
as well as the unprecedented number of penalty petitions pending before the Secretary, strict
adherence to the 45-day tim~ line is unrealistic. See Solar Energy, 31FMSHRC729, 730 (June
2009) (ALJ Feldman).
In light of all of the foregoing, it is ORDERED that the Secretary's late-filed penalty
petition is ACCEPTED. Accordingly, Maple Coal's motion to dismiss is DENIED.

~c.J.~
·

Robe~n\k

Chief Administrative Law Judge

Distribution:
Richard D. Hosch, Conference & Litigation Representative, U.S. Department of Labor, MSHA,
100 Bluestone Road, Mt. Hope, WV 25880-1000
Robert H. Beatty, Jr., Esq., Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Suite 310,
Morgantown, WV 26501
/meh

32 FMSHRC Page 727

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001

June 28, 2010
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS
Docket No. YORK 2009-89"-M
A.C. No. 28-00547-174965-DDH

V.

DJB WELDING CORPORATION,
Respondent.

Mine: Jackson Plant

ORDER DENYING RESPONDENT'S MOTION FOR SUMMARY DECISION
This case is before me upon a petition for assessment of civil penalty filed on April 28,
2009 by the Secretary of Labor ("Secretary'') against DJB Welding Corporation (''the
Respondent"), pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977
("the Mine Act" or "the Act"), 30 U.S.C. § 815(d). The Secretary issued eleven citations
alleging violations of health and safety standards pursuant to the Secretary's regulations
applicable to surface metal and nonmetal mines. See 30 C.F.R. pt. 56. The Respondent,
appearing pro se, contests the validity of th~ citations, alleging that an inspector for the Mine
Safety and Health Administration ("MSHA") denied the Respondent's right to accompany the
inspector during the physical inspection of the mine pursuant to section 103(.f) of the Mine Act,
30 u.s.c. § 813(.f).
During a conference call with both counsel for the Secretary and the Respondent's
representative, I determined, and the parties agreed, that there was no genuine issue of material
fact surrounding the alleged denial of Respondent's "walkaround rights" under section 103(.f) of
the Act. As this issue can be resolved as a matter oflaw, on February 2, 2010, I ordered
Respondent to submit a written brief setting forth the undisputed material facts and an
explanation as to why the Respondent believes that his rights under section 103(.f) of the Act
were violated. The Respondent complied and raised other issues, in addition to the alleged
violation of section 103(.f), in his brief to support dismissal of this case. I construe the
Respondent's brief to be the equivalent of a motion for summary decision. The Secretary filed a
response in opposition to the Respondent's brief. For the reasons discussed below, I find that no
genuine issue of material fact exists and that the Respondent is not entitled to summary decision
as a matter oflaw. The Respondent was given an opportunity to exercise his walkaround rights
in accordance with section 103(.f) of the Act. Accordingly, the citations will not be vacated and
this matter will be set for a hearing on the merits.

32 FMSHRC Page 728

FINDINGS OF FACT
On October 15, 2008, Ralph Bennett, a mine inspector employed by MSHA, went to
Clayton Sand Company's Jackson plant site to inspect the mining operation and contractors
working on the site. (Bennett Deel. if 1-2.) The Respondent is a contractor registered with
MSHA and has worked for Clayton Sand Company at the Jackson plant site since 1975. (Resp't
Aff. if 1-2.) The inspector informed Thomas Jameson, the plant manager, that he intended to
inspect any contractors working on the mine site. (Bennett Deel. if 3.) On the day of the
inspection, Daniel Black, the owner ofDJB Welding Corporation, was not at the Jackson site.
(See Resp't Aff if 4.) Black was in New York City for a doctor's appointment with his
oncologist, approximately 65 miles away from the mine site. (Resp't Aff. if 4, 6.) Jameson told
Inspector Bennett that Black was unavailable and that Black's employees had left the mine site
earlier that morning to perform work at another site. (Bennett Deel. if 4.) Bennett instructed
Jameson to contact Black to see if he wanted to designate one of his workers to accompany
Bennett during the inspection ofDJB's work area, the Nord Building. (Bennett Deel.~ 7.)
Jameson called Black and told him that an MSHA inspector was at the Jackson site and needed
DJB's contractor identification number. (Resp't Aff. if 4.) Black told Jameson that he was still
at his doctor's appointment and was unable to return to the Jackson plant until 6:00 a.m. the
following day. (Resp't Aff. if 9.)
Bennett waited until the end of his inspection of the mining operation before he
commenced his inspection ofthe Nord Building used by the Respondent. (Bennett Deel. , 9 .)
Again, Inspector Bennett asked Jameson when Black would be back on site. (Jameson Aff. if 4;)
Jameson called Black and informed him that the inspection of the Nord Building had begun and
that Inspector Bennett was searching the parked welding truck that belonged to the Respondent
(Resp't Aff if 5.) Black reiterated thathe would not be on site until 6:00 a.m. the next day. Id.
At that time, Jameson informed Inspector Bennett that he was unsure whether any of the
Respondent's employees were returning to the site to accompany Bennett on his inspection.
(Bennett Deel. if 11.) ·Consequently, Jameson accompanied Bennett during the inspection of the
Nord Building. Id. Jameson told Inspector Bennett that the Respondent operated and controlled
the equipment and activities within the Nord Building. (Bennett DecL if 14.) Jameson assured
Bennett that only Black's employees used the Nord Building and, as such, he had no knowledge
of any hazardous conditions. (Bennett Deel. if 13-14.) During the course of the inspection,
Bennett issued eleven citations against the Respondent. (See Sec'y Ex. A.) The Respondent
asserts that five of the citations issued were for violations discovered in buildings or on
equipment that it neither owns nor controls, (Resp't Aff if 7.) Respondent contests the validity
of all citations issued and urges the court to vacate all eleven citations based on the alleged denial
ofwalkaround rights under section 103(f) of the Act. (See Resp't Br. at 5-7.)

32 FMSHRC Page 729

GENERAL PRINCIPLES OF LAW
Section 103(f) of the Mine Act states in pertinent part:
Subject to regulations issued by the Secretary, a representative of the operator and
a representative authorized by his miners shall be given an opportunity to
accompany the Secretary or his authorized representative during the physical
inspection of any coal or other mine made pursuant to the provisions of subsection
(a), for the purpose of aiding such inspection and to participate in pre- or postinspection conferences held at the mine.
30 U.S.C. § 813(f) (emphasis added). The Act defines an "operator" as "any owner;Jessee, or
other person who operates, controls, or supervises a coal or other mine or any independent
contractor performing services or construction at such mine." 30 U.S.C. § 802(d). The right of a
mine operator to accompany an inspector has been "consistently recognized by the Commission
and the courts." Secy ofLabor v. Consolidation Coal Co., 16 FMSHRC 713, 719 (Apr. 1994).

DISCUSSION
The Respondent contends that Inspector Bennett abused his discretion by arbitrarily
denying the Respondent his right to accompany Bennett during his inspection pursuant to section
103(f) of the Act. The Respondent argues that he had no notice of the inspection, and because he
was 65 miles away from the mine site, there was no feasible way he could have exercised his
walkaround rights on October 15,2008. The Respondent further argues that it was unreasonable
for Bennett to proceed with the inspection because Bennett was going to be at the site the next
day and could have easily delayed the inspection until the following morning when Black would
be present to accompany Bennett on the inspection of the Nord Building.

Advance notic:e of an inspection is not required under the Act and is unwarranted by public
policy_ and safety concerns
The Respondent misconstrues the law concerning whether an inspector is required to give
notice to a mine operator prior to an inspection. Section 103(a) of the Act explicitly confers
upon MSHA inspectors the right to enter any mine without any advance notice of an inspection.
30 U.S.C. § 813(a). Furthermore, the Supreme Court of the United States has also recognized
that section 103(a) of the Act grants MSHA inspectors the right to conduct warrantless
inspections of any mine to ensure compliance with mandatory health and safety standards. See
Donovan v. Dewey, 452 U.S. 594, 596 (1986). I recognize the vital role that unannounced
inspections play in overseeing the mining regulatory scheme. If mine operators had advance
notice of an inspection, they could easily conceal any hazardous conditions prior to the arrival of
the inspector. This would certainly circumvent the purpose of section 103 of the Act and render
inspections meaningless. In Topper Coal Company, the Commission concluded that a mine
operator violated section 103(a)'s prohibition against advance notice when the operator warned
two underground miners that MSHA inspectors were coming. Secy ofLabor v. Topper Coal
32 FMSHRC Page 730

Co., 20 FMSHRC 344, 348-49 (Apr. 1998). When the inspectors went underground, they found
the two miners cleaning up accumulations of coal around the conveyor belt. Id. at 346. This is
precisely the type of behavior that section 103(a) seeks to prevent.
Although it is undisputed here that neither the Respondent nor any. of his employees were
on the mine site that day, had the inspector agreed to delay the inspection it is possible they could
have made efforts to clean up any violations before the inspector arrived on site the following
day. I find that Respondent's request to delay the inspection to the following day was made in
good faith. Nevertheless, exceptions cannot be carved out from a statutory mandate that
explicitly states "no advance notice of an inspection shall be provided to any person." 30 U.S;C
§ 813(a). Moreover, I understand Black's plea that it would have been simple for the inspector to
delay the inspection as Bennett was already planning on returning to the site the next morning.
However, the question is not whether it was burdensome to postpone the inspection. Regardless
of the circumstances, an inspector is prohibited from providing a mine operator with advance ·
notice of an inspection. Had Inspector Bennett agreed to delay the inspection until the next
morning, it could be interpreted as advance notice and be a potential violation of section ·103(a)
of the Act. See, e.g., Topper Coal Co., 20 FMSHRC at 348-49. In sum, I conclude that the
public interest of promoting safety at mines outweighs the inconvenience of unannounced
inspections.

The Supreme Court has authorized warrantless inspections of mines as constitutional under
the Fourth Amendment
The Respondent also asserts that his Fourth Amendment rights were violated when
Inspector Bennett searched the contents of Respondent's welding truck without notice or
pennission. The Supreme Court created an exception to.the warrant requirement for certain ·
industries that are pervasively regulated by the federal government. See, e.g., New York v.
Burger, 482 U.S. 691, 707 (1987) (authorizing warrantless inspections of automobile junkyards
as constitutionally permissible); Donovan v. Dewey, 452 U.S. at 605 (1981) (finding the mining
industry to be a closely regulated business that allows warrantless inspections by federal mine
inspectors); United States v. Biswell, 406 U.S. 311, 315-16 (1972) (holding that inspections of
firearms dealers without warrants are reasonable under the Fourth Amendment); Colonnade
Catering Corp. v. United States, 397 U.S. 72, 76 (1970) (finding warrantless inspections of
liquor licensees to be constitutional). As noted above, in Donovan, the Supreme Court
specifically held that section 103(a) of the Mine Act authorizes warrantless inspections of mines
without violating the Fourth Amendment. Donovan, 452 U.S. at 605. Because of the dangerous
nature of mining, the field has a long history of being heavily regulated by the government to
ensure compliance with health and safety standards. Id. at 603. Consequently, all mine owners
and operators must be,aware and even expect continuous and frequent inspections without a
warrant or probable cause. Id.
Furthermore, section 103(a) confers upon MSHA inspectors a right of entry to, through,
or upon any coal or other mine for the purpose of conducting an inspection. 30 U.S.C. § 813(a).
The "right of entry'' encompasses more than merely giving an inspector the right to physically
32 FMSHRC Page 731

enter the mine. "It includes the right to use any investigatory technique reasonably related to the
discovery of violations, so long as it is employed within reasonable limits and in a reasonable
manner." Sec'y ofLabor v. Cougar Coal Co., 17 FMSHRC 628 (Apr. 1995)(ALJ) (citing
Donovan v. Enter. Foundry Inc., 751F.2d30, 36 (1st Cir. 1984)). Here, the Respondent's
welding truck was a work vehicle and could have potentially presented hazardous safety
conditions on the Jackson plant site. Therefore, I find that Inspector Bennett's search of the
Respondent's parked welding truck was an acceptable investigatory technique that was
reasonably related to the discovery of violations of health and safety standards.

In light of SCP Investments
The Respondent relies on the Commission's recent decision in SCP Investments to
support the claim that its walkaround rights were denied and, as such, that all citations should be
vacated. Sec'y ofLabor v. SCP Invs., LLC, 31 FMSHRC 821 (Aug. 2009). In SCP Investments,
a businessman purchased a rock crushing quarry with no prior background or experience in
mining. Id. at 823. This owner-operator was unfamiliar with MSHA and was unaware of the
legal requirements of the Act. Id. Approximately three months after the owner's purchase, a
federal mine inspector arrived at the quarry to inspect its operations. Id. Theinspector quickly
learned that the quarry had no MSHA identification number and asked the owner whether his
employees were properly trained in accordance with MSHA's training regulations for new
miners. Id. at 823-24. The owner replied that he had no knowledge of any training requirements.
Id. at 824. The inspector immediately escorted the owner off the premises and directed him to
remove his employees from the premises. Id. The inspector then informed the mine owner that
he was going to inspect the quarry. Id; The owner asked the inspector if he could accompany
him during the inspection, but the inspector refused because the owner had not completed
twenty-four (24) hours of new miner training, id., required by regulations set forth in the Act, see
30 C.F.R. §§ 46.5(a), 46.11.
The Cominission concluded that the owner's walkaround rights under section 103(f) were
arbitrarily denied. Id. at 827. The Commission found that section 46.5 which requires new
miner training, and section 46.11 which requires site-specific hazard training for any non-miners
present at the mine site, were not sufficient justifications to exclude the mine owner from being
present during the inspection. Id. at 829-31. As noted by the Commission, section 46.5 is a
requirement new miners must fulfill prior to working in a mine and is unrelated to inspections of
mines. Id. at 830; 30 C.F.R. § 46.5(a). The Commission further noted it previously held that
non-miners, with no mining training or experience, may be appointed as representatives of
miners and permitted to participate in an inspection under section 103(f) of the Act. Id.; see
Emery Mining Corp. v. Sec'y ofLabor, 10 FMSHRC 276 (Mar. 1988), ajf'd in pertinent part and
rev'd on other grounds sub. nom. Utah Power &Light Co. v. Sec'y ofLabor, 897 F.2d 447 (10th
Cir. 1990). Next, the Commission addressed the fact that site-specific hazard training under
section 46.l l(f) is not required for non-miners who are accompanied by an "experienced miner"
who is familiar with the hazards of the mine site. Id. at830; 30 C.F.R. § 46.1 l(f). The
Commission reasoned that the inspector qualified as an "experienced miner" who was aware of

32 FMSHRC Page 732

the hazards and safety issues of the mine. Id. Thus, the owner should have been allowed to
accompany the inspector during his inspection of the quarry.
Nevertheless, the Commission remanded the case because it concluded that the judge
erred in using the denial ofwalkaround rights as a basis to vacate the citations issued by the
inspector. 1 Id. at 834. On remand, the judge explained that the citations were originally vacated
based on the inspector's abuse of discretion, not solely on the fact that the owner was denied his
walkaround rights. Sec'yofLaborv. SCP Invs., LLC, 32FMSHRCl19, 2010 WL 390288, *1
(Jan. 5, 2010) (ALJ). Judge Feldman went on to clarify his original position stated in his initial
decision:
Section 103(f) does not mandate that an inspector must be accompanied by a mine
operator during an inspection. Thus, I am cognizant that the failure of a mine
operator to accompany an inspector is not a jurisdictional bar to the issuance of
citations for violations of the Secretary's mandatory safety standards observed.
during the inspection. However, section 103(f) provides the "opportunity" for the
mine operator to exercise its right to be present during an inspection. This right
cannot arbitrarily be denied.

Secy ofLabor v. SCP Invs., LLC, 30 FMSHRC 544, 548 n.3 (June 2008) (ALJ) (internal
citations omitted). The facts of the case at hand are distinguishable from the factual scenario
presented in SCP Investments.
Ultimate Findings and Conclusions
I recognize the right of a mine operator to be present and accompany an inspector as a
fundamental right. However, this fundamental right under section 103(f) is not the right to be
present for every inspection. Rather, it is the right to be given an opportunity to be present
during an inspection. I determine that Black was given an adequate opportunity to exercise his
walkaround rights pursuant to section 103(f) of the Act. DJB Welding is a small contractor run
by Black. I understand the hardship involved and acknowledge it would have been nearly
impossible for Black to leave his doctor's office in New York City and travel over ninety minutes
to the Jackson mine site in time to accompany Bennett on the inspection. Even so, Black could
have designated one of his employees to accompany Bennett as a representative ofDJB Welding.
While the Act prohibits advance notice of inspections, Black knew he would be off-site that day
and was also aware that random mine inspections could occur at any time. Unlike the mine
owner in SCP Investments who was unaware ofMSHA's legal requirements, Black has been a
contractor registered with MSHA since 1975. Moreover, Black has been subject to periodic
1

The last sentence of section 103(f) specifically states that enforcement actions, which
are otherwise valid, cannot be vacated as a result of the inspector's failure to comply with the
requirements of section 103(f) of the Act. SCP lnvs., 31 FMSHRC at 834. "Compliance with
this subsection shall not be a jurisdictional prerequisite to the enforcement of any provision of
this Act." 30 U.S.C. § 813(f).
·
.
32 FMSHRC Page 733

safety inspections at the Jackson mine site for over thirty-five years. In Black's own affidavit, he
admitted to being "inspected by MSHA many times over the years." (Resp't
2.)
Therefore, it is reasonable to expect such an experienced contractor to plan accordingly for such
events, knowing that he would be unavailable on that day if an inspector arrived.

Aff.,

More importantly,; there is a crucial distinction between a mine operator's unavailability
or decision not to participate, and an MSHA inspector's outright refusal to allow an operator to
participate. The Commission itself, in SCP Investments, discussed the substantive difference
when it explained that an operator's absence from an inspection is generally inconsequential, yet
an arbitrary refusal of a ready and willing operator to accompany an inspector is a statutory
violation of the operator's walkaround rights under 103(t) of the Act. See SCP Invs., 31
FMSHRC at 827, 829, 830-31, 838. This distinction is what yields a different outcome here than
the one reached in SCP Investments. In the case before me, Respondent was not denied an
opportunity to exercise his 103(t) walkaround rights. In fact, Inspector Bennett made more than
one request of Jameson to call Respondent. This call was not meant to ensure that the contractor
would be present; rather, it was to ensure that Respondent had an opportunity to be present either
in person or through a designated representative. Indeed, no evidence was presented (and none
supports the argument) that, had the Respondent been present at the Jackson site, Bennett would
have refused to allow the Respondent to accompany Bennett on the inspection, as the inspector
had in SCP Investments.

In fact, I find that the opposite conclusion can be drawn from the facts. Inspector Bennett
waited until the end of his inspection of the mining operation before commencing the inspection
of the building used by the Respondent. Inspector Bennett made reasonable efforts to give the
Respondent an opportunity to accompany Bennett or send a representative to accompany him on
the inspection of the Nord Building. In the end, Jameson, as plant manager of the Jackson site,
did accompany Bennett on the inspection of the Nord building used by the Respondent. Thus, I
conclude that the Respondent was given an adequate opportunity to exercise his right to
accompany Bennett during the inspection of the Nord Building on October 15, 2008. The
Respondent's inability to be present at the time of inspection, and his failure to designate a
representative to participate in the inspection does not constitute a violation of the Respondent's
walkaround rights and does not warrant vacating the citations issued.
An abuse of discretion must be·present to vacate citations
Assuming arguendo that the Respondent's walkaround rights under section 103(t) were
violated, vacating the citations issued during the inspection is not an automatic remedy. There is
an additional step of analysis necessary to determine whether such a harsh sanction is
appropriate. The Commission discussed this principle, which is further illustrated by the
legislative history surrounding section 103(t) of the Act. The Senate Committee explained that
section 103(f) requires "that representatives of the operator and miners be permitted to
accompany inspectors in order to assist in conducting a full inspection. It is not intended,
however, that the absence of such participation vitiate any citations and penalties issued as a
result of an inspection." SCP Invs., 31 FMSHRC 821, 831 (citing S. Rep No. 95-181, at 28
32 FMSHRC Page 734

(1977), reprinted in S. Subcomm. on Labor, Comm. on Human Res., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 616 (1978). The next step is to determine
whether the denial of walkaround rights was an abuse of discretion. The Commission has
previously found that "an abuse of discretion has occurred when there is no evidence to support
the decisionor if the decision is based on an improper understanding of the law." Sec'y ofLabor
v. Energy West Mining Co., 18 FMSHRC 565, 569 (Apr. 1996) (internal citation omitted). If a
violation of walkaround rights occurred because of an abuse of discretion, then such a finding
provides a sufficient basis for vacating the citations.
The Respondent alleges that Inspector Bennett abused his discretion in denying
Respondent his walkaround rights because of Inspector Bennett's bias against contractors. The
Respondent attempts to bolster this assertion by furnishing evidence that Bennett commenced the
inspection of another contractor working on the Jackson site without waiting the two hours
necessary for the contractor's representative to return to the site. The Respondent asserts that
Bennett was at the mine site to specifically target contractors and further alleges that Inspector
Bennett made disparaging comments about the Respondent, characterizing him as a "fly-bynight" contractor to his employer and several others.
Although the facts support a finding that Bennett was concerned about contractors' noncompliance with MSHA safety regulations; he does not recall making any disparaging remarks
concerning Respondent's reputation: (See Bennett Deel.if 16-19.) This dispute is not materialto
the disposition of this matter. However, federal inspectors should refrain from making any
judgments or comments about the character of an operator or contractor without personal
knowledge of such things, and any complaints about an inspector's conduct should be raised with
the District Manager. Moreover, the facts before me indicate that the Respondent is a qualified
and experienced contractor who has a history of compliance with MSHA regulations and has
maintained a strong business relationship with the same employer for over thirty-five years. (See
Resp't Aff. if 1"3.)
While it is true that an MSHA inspector must make every reasonable effort to give a mine
operator an opportunity to exercise his or her walkaround rights, it is also true that inspectors are
given broad discretion to handle the different scenarios that may arise in the course of an
inspection. Id. An inspector's decision not to delay an inspection or wait for a representative is
not a perse abuse of such discretion. The Interpretive Bulletin clarifying the scope of section
103(.f) of the Act states:
While every reasonable effort will be made in a given situation, to provide
opportunity for full participation in an inspection by a representative of miners, it
must be borne in mind that the inspection itself always takes precedence. . . . The
inspector cannot allow inordinate delays in commencing or conducting an
inspection because of the unavailability of or confusion surrounding the
identification or selection of a representative of miners.
43 Fed. Reg. 17,546, 17,546 (Apr. 25 1978).
32 FMSHRC Page 735

Inspector Bennett was not obligated to delay the inspection or even to wait longer than
the inspector found reasonable for a representative to arrive. In F.R. Carroll, Inc., an MSHA
inspector arrived to inspect a sand and gravel facility. Sec y ofLabor v. F.R. Carroll, Inc., 26
FMSHRC 97, 98 (Feb. 2004) (ALJ). The mine operator told the inspector that he had scheduled
appointments that morning and was unable to accompany the inspector during the site inspection.
Id. at 99. The operator asked the inspector if he could delay the inspection until 1:00 p.m. (five
hours later) because he was too busy to walkaround with the inspector. Id. Judge Feldman found
the operator's request to delay the inspection by five hours unreasonable. Id. at 102. Judge
Feldman further explained that ifthe operator was "too busy" to accompany the inspector, then it
was his responsibility to designate another representative available to accompany the inspector.
Id. I find Judge Feldman's rationale inF.R. Carroll instructive. Consequently, I conclude that
Bennett's decision to proceed with the inspection was a reasonable course of action and not an
abuse of discretion.
Lastly, the Respondent argues that the citations should be vacated because five of the
eleven citations were issued for violations discovered in buildings or on equipment that was
neither owned nor controlled by the Respondent. The Respondent incorrectly assumes that an
MSHA inspector can only cite either the owner or the contractor, but not both. This is simply not
true. Even assuming that the Respondent was available on Octqber 15, 2008 to accompany
Inspector Bennett through the inspection of the Nord Building, if a question of ownership was
disputed, Bennett would have had the authority to issue the same citations to both the owner and
the contractor. "Since passage of the Mine Act, the Commission and courts have consistently
recognized that, in instances of multiple operators, the Secretary generally may proceed against
an owner-operator, an independent contractor, .or both, for violations by the independent
contractor." Secy ofLabor v. Twentymile Coal Co., 27 FMSHRC 260, 263 (citing Republic
Steel Corp., 1FMSHRC5, 9-11, n.13 (Apr. 1979); Bituminous Coal Operators' Ass'n, Inc. v.
Secy ofInterior, 547 F.2d 240, 246-47 (4th Cir. 1977)). Furthermore, I agree with the
Secretary's counsel that any disputes regarding ownership can be resolved during a hearing and
that the Respondent's ability to raise any affirmative defenses is not impaired by his absence
during the inspection.
For all the reasons explained above, I conclude that the Respondent was not arbitrarily
denied an opportuIDty to accompany Inspector Bennett on the inspection of the Nord Building in
accordance with section 103(f) of the Mine Act. Therefore, the Respondent is not entitled to
judgment as a matter oflaw.

32 FMSHRC Page 736

ORDER

In light of the foregoing, IT IS ORDERED that theRespondent's motion for summary
decision IS DENIED. This case will be scheduled for a hearing on the merits of the citations
issued.

~G~
~
Alan G. Paez
Administrative Law Judge

Distribution: (Via Facsimile & U.S. Mail)
Suzanne L. Demitrio, ESQ., Office of Solicitor, U.S. Department of Labor, 201 Varick Street,
Room 983, New Yor, NY 10014 (Fax: 646-264-3660)
Daniel J. Black, President, DJB Welding Corp., 1461 Toms River Road, Jackson~ NJ 08527
(Fax:732-657-6605)

/aw

32 FMSHRC Page 737

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF THE ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W .• SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9958 I FAX: 202-434-9949

June 30, 2010

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 2008-1582-M
A.C. No. 50-01850-159018LWI

v.
ALASKA MECHANICAL,
INCORPORATED,
Repondent

ALASKA MECHANICAL,
INCORPORATED,
Contestant

CONTEST PROCEEDINGS
Docket No. WEST 2008-152-RM
Citation No. 6398234; 10/04/2007

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. WEST 2008-153-RM
Citation No. 6398235; 10/04/2007
Mine ID 50-01850 LWI
Nome Operations

ORDER DENYING MOTION TO APPROVE SETTLEMENT

Before:

Judge Lesnick

This case is before me upon a petition for assessment of civil penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Act" or
''Mine Act''). The Secretary of Labor ("Secretary") and Alaska Mechanical, Incorporated
("AMI'') filed a joint motion to approve settlement dated March 12, 2010. The case involves two
violations issued by the Secretary under section 104 of the Act following an accident at AMI' s
Nome Operations that, on July 19, 2007, claimed the lives of two miners when a manlift they
were operating tipped over.

32 FMSHRC Page 738

The Secretary proposed that a total penalty $115,000 be assessed against AMI. After
entering into settlement negotiations, the parties now move for approval of their settlement
agreement in which AMI agrees to pay a total penalty of$80,000. For Citation No. 6398235
alleging a violation of 30 C.F.R. § 56.14205, AMI agrees to pay the full proposed penalty of
$60,000. For Citation No. 6398234 alleging a violation of 30 C.F.R. § 48,27a, AMI agrees to
pay a penalty of $20,000, which is $35,000 less than the Secretary's initial proposed penalty of
$55,000, a decrease in amount of approximately 64 percent.
The authority of Commission judges to review settlement agreements filed by the
Secretary and mine operators is found at section 11 O(k) of the Act, which provides in relevant ·
part: ''No proposed penalty which has been contested before the Commission under section
105(a) shall be compromised, mitigated, or settled except with the approval of the Commission."
30 U.S.C. § 820(k). The Commission has held that section l lO(k) "directs the Commission and
its judges to protect the public interest by ensuring that all settlements of contested penalties are
consistent with the Mine Act's objectives." Knox County Stone Co., 3 FMSHRC 2478, 2479
(Nov. 1981).

In Knox County, the Commission further explained the role of its judges in reviewing
settlements:
The judges' front line oversight of the settlement process is an adjudicative
function that necessarily involves wide discretion. While the scope of this
discretion may elude detailed description, it is not unlimited and at least some of
its outer boundaries are clear.
. . . [We] reject the notion ... that Commission judges are bound to
endorse all proposed settlements of contested penalties. However, settlements are
not in disfavor under the Mine Act, and a judge is not free to reject them
arbitrarily. . . .. Rejections, as well as approvals, should be based on principled .·
reasons. Therefore, we [have] held that if a judge's settlement approval or
rejection is "fully supported" by the record before him, is consistent with the
statutory penalty criteria,[1] and is not otherwise improper, it will not be disturbed.

1

Under section 11 O(i), the Commission and its ALJs "shall consider" the following six
penalty criteria in assessing any penalty, and by extension, any settlement agreement under which
an operator agrees to pay a civil penalty: "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). In its Knox County
decision, the Commission noted that its Procedural Rule 31 implementing section 11 O(k) ''was
revised in 1980 to delete the reqllirement ... that the judge 'consider' and 'discuss' the six
statutory penalty criteria in orders approving settlements" in order to enhance the '":flexibility of
32 FMSHRC Page 739

In reviewing such cases, abuses of discretion or plain errors are not immune from
reversal.

Id. at 2479-80. The Commission went on to vacate the judge's rejection of the settlement motion
in Knox County because it was not "fully supported" by the record and was inconsistent with the
penalty criteria. Id. at 2481.
Here, the parties represent that the penalty amounts upon which they agreed "take into
account those factors required to be considered by Section 11 O(i)," and that findings set forth by
the Secretary in her petition for assessment of civil penalty as to gravity and negligence "are
supportable," Mot. at 2. The Secretary's petition alleges that the violation cited in Citation No.
6398234 resulted from "moderate" negligence, and that the violation cited in Citation No.
6398235 resulted from "high" negligence. Pet. at [10]., The petition alleges the gravity of both
violations was "serious," and "contributed to the cause of a fatal machinery accident." Id. The
parties state that AMI's history of previous violations "is as set forth in ... the Petition." Mot.
at 2. Finally, the parties state that the company "exercised good faith in abating the cited
conditions," and that the agreed to penalty would not affect AMI's ability to remain in business.
Id. at 2-3. Neither of these representations is inconsistent with the Secretary's petition. Aside
from several other general representations, the parties fail to identify and explain any particular
facts that would support a reduction of the penalty for Citation No. 6398234 by well more than
half.
In other words, the parties have said that although the Secretary's penalty petition is fully
supportable, they have concluded that the significantly reduced penalty AMI has agreed to pay is
"fair and reasonable and serve[s] the enforcement goals of the Act," and is "in the public interest
and will further the intent and purpose of the Act," simply because they say so. Justice William
0. Douglas once had occasion to cite Humpty Dumpty's pronouncement to Alice in Through the
Looking-Glass that "When I use a word ... , it meansjust what I choose it to mean - neither more
nor less." Zschernig v. Miller, 389 U.S. 429, 435 n.6 (1968). Here, the Secretary has no such
authority, and when she says that a penalty is "fair" and "reasonable" and "in the public interest,"
the Mine Act and Commission precedent requires her and other parties to a settlement to provide
more than mere empty words to justify their agreement. Otherwise, section 11 O(k) would be
meaningless, and the authority of Commission judges to review settlements would be reduced to
providing the proverbial rubber stamp.

the judges to approve the settlements,"' though also noting that the rule "does not sanction
settlement decisions inconsistent with the statutory penalty criteria." 3 FMSHRC at 2480 n.3.
Rule 31 further states that a settlement motion "shall include ... [f]acts in support of the penalty
agreed to by the parties." 29 C.F .R. § 2700.31.
32 FMSHRC Page 740

I therefore conclude that the reduced penalty agreed to by the parties for Citation No.
6398234 lacks the factual basis necessary for me to deterinine whether the penalty would
adequately effectuate the deterrent purpose underlying the Act's penalty assessment scheme.
Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983), ajf'd, 736 F.2d 1147 (7th Cir. 1984).
The motion to approve settlement is DENIED.

~~LJ~
Robert J. Lesnick
Chief Administrative Law Judge

Distribution:
Bruce L. Brown, Esq., Office of the Solicitor, U.S. Department of Labor, 1111 Third Avenue,
Suite 945, Seattle, WA 98101-3212
Cole A. Wist, Esq., Ogletree, Deakins, Nash, Smoak, & Stewart, P.C., 1600 Broadway, Suite
1940, Denver, CO 80202

32 FMSHRC Page 741

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
72119th STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5267/FAX 303-8.44-5268

June 2, 2010

CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. WEVA 2007-460
A.C. No. 46-08436-100698

Petitioner
DocketNo. WEVA2007-470
A.C. No. 46-08436-093158
Docket No. WEVA 2008-889
A.C. No. 46-08436-143554-02

v.
Docket No. WEVA 2008~890
A.C. No. 46-08436-143554-03
Docket No. WEVA 2008-S91
A.C. No. 46-08436-143554-04
Docket No. WEVA 2008-892
A.C. No. 46-08436-143554-05
PERFORMANCE COAL COMPANY,
Respondent

Mine: Upper Big Branch - South

SCHEDULING ORDER

Respondent requested a hearing on the citation(s)/order(s) contained in this docket(s) and
the proposed penalty in accordance with the provisions of section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (Mine Act) and 29 C.F.R. 2700.50 et seq.
A hearing is scheduled for August 30, 2010 at 8:30 a.m., in Charleston, West Virginia at a
location to be determined. A prehearing conference was held in Washington D.C. on May 20,
2010 and the prehearing and scheduling requirements were discussed at that time, and had also
been set forth in an earlier notice of hearing. The motion to stay this docket filed by the
Secretary was also addressed at the prehearing conference and has been denied.
The case(s) will be heard pursuant to section 105(d) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. 815(d), and the issues include, but are not limited to, whether
Respondent committed the violation(s) as alleged in the citation(s)/order(s) and the appropriate
penalty to be assessed. Any person planning to attend this hearing who requires special

32 FMSHRC Page 742

accessibility features and/or any auxiliary aids, such as sign language interpreters, must inform
the commission in advance of these needs. This provision is subject to the limitations of29
C.F.R. 2706.lSO(a) and 160(d).
These dockets are set for a trailing docket call and each party should be prepared to proceed·
at 8:30 a.m. on the day listed herein. If the case is not heard during the week of August 9, 2010,
it will automatically move to the next date, September 21, 2010. No case will be rescheduled
and all cases will be heard in the order of the dates of the citations/orders, commencing with the
docket containing the earliest date. If there are cases that should be heard together or in a certain
order, the parties must notify the Court of that fact at the preheating conference. Every effort
will be made to accommodate the witnesses for each docket. Absent good cause shown, no
hearing will be continued, and no hearing will be cancelled unless a written settlement motion is
filed with the Court.
On or before July 30, 2010, the parties shall provide to one another a list of persons with
knowledge of each violation and a brief summary of the information they possess and provide
copies of all documents created by or in the possession either of the Secretary of the respondent,
including photographs, diagrams, maps, pre-shift, on-shift or foundation records, witness
statements that are not privileged under the Commission Rule 61, supervisor's or examiner's
notes, compilations or summaries of the notes taken by inspectors or respondent's personnel,
production reports, walk-around reports, rebuttal forms that are maintained by respondent, and
other no-privileged documents whether in hard copy or electronically stored. The Respondent
has indicated that an MSHA investigation team has taken the books from the mine, but the
operator retained a copy of each and those shall be provided for the one week period prior to and
the day of the date of each citation. Each party shall prepare and provide a list of all documents
in their possession or control that may be relevant to the inspection but is being withheld, along
with an explanation for withholding the document. Any discovery beyond the disclosures will
be limited. As required by Commission Rule 2700.lO(c), the parties will confer in good faith
before the filing, of any motion with the Court. The parties are encouraged to schedule a
conference call and resolve issues without the necessity of filing a formal motion.
The parties shall provide to one another, on or before July 30, 2010, the name, address
and telephone number of any expert witness who may be called to testify, along with
information about the expert's background and any reports generated by the expert. Each party
is limited to one expert for each issue contained in the docket, i.e. one roof control expert, one
ventilation expert etc. The parties may take depositions by agreement but the depositions are
limited to expert witnesses and fact witnesses regarding any finding of unwarrantable failure,
failure to abate, imminent danger, or other matter outside of a 104(a) citation with moderate
negligence. The parties may discuss settlement at any time and as many times as they deem
appropriate, not only for purposes of settling but for purposes of narrowing the issues for trial.
The parties are encouraged to narrow the issues for trial and provide a list of specific matters to
be decided at hearing. The parties may be notified that certain matters will be decided on the
record and will be given the opportunity to present case law or preheating statements prior to or
at the hearing.

32 FMSHRC Page 743

If the cases do not settle on or before August 20, 2010, the parties, by that date, shall send
to each other.and to me, a list of witnesses who may testify (subject to the limitations contained
in 29 C.F.R 2700.62, a miner witness), along with their address and position and a brief synopsis
of their testimony, a list of expert witnesses and their area of expertise and expected testimony, a
list of exhibits which may be introduced, and matters to which the parties
can stipulate at hearing. Petitioner shall label exhibits numerically and Respondent,
alphabetically.

Distribution:
Lucy Chiu, Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.
2200 Floor West, Arlington, VA 22209-2247
Carol Ann Marunich, Dinsmore & Shohl, LLP, 215 Don Knotts Blvd. Suite 310
Morgantown, WV 26501

/ate

32 FMSHRC Page 744

G:D' U.S. GOVERNMENT PRINTING OFFICE: 2010---358-021/83803