June 2017
TABLE OF CONTENTS

ADMINISTRATIVE LAW JUDGE DECISIONS
06-02-17

PINTO VALLEY MINING CORP.

WEST 2016-0729

Page 1209

06-02-17

SEMINOLE COAL RESOURCES,
LLC

WEVA 2016-0621

Page 1213

06-05-17

NALLY & HAMILTON
ENTERPRISES, INC.

KENT 2016-439

Page 1215

06-05-17

BIG RIDGE, INC

LAKE 2009-57

Page 1226

06-08-17

THOMPSON ELECTRIC, INC.

LAKE 2015-596

Page 1228

06-09-17

BUNDY AUGER MINING, INC.

WEVA 2015-1036

Page 1240

06-15-17

THE AMERICAN COAL COMPANY

LAKE 2009-0035

Page 1247

06-21-17

CONSOLIDATION COAL CO. now
THE OHIO COUNTY COAL CO.

WEVA 2016-0123

Page 1271

06-30-17

CONSOL PENNSYLVANIA COAL
COMPANY, LLC

PENN 2014-816

Page 1279

ADMINISTRATIVE LAW JUDGE ORDERS
06-19-17

JASON FARMER v. SPARTAN
MINING CO., LLC, AND ALPHA
NATURAL RESOURCES
HOLDINGS, INC.

i

WEVA 2017-343-D

Page 1301

06-21-17

CONSOL PENNSYLVANIA COAL
COMPANY, LLC

PENN 2015-260

Page 1309

06-28-17

ARGUS ENERGY WV, LLC

WEVA 2017-0158

Page 1317

ii

Review was granted in the following cases during the month of June 2017:
Michael Wilson, et al v. Armstrong Coal Company, Inc. and Brandon Shemwell v. Armstrong
Coal Company, Inc. and Justin Greenwell v. Armstrong Coal Company, Inc., Docket Nos.
KENT 2015-673-D, et al (Judge Lewis, May 9, 2017)
Secretary of Labor v. The American Coal Company, et al, Docket No. LAKE 2011-13 (Judge
Moran, May 2, 2017) (Interlocutory Review)

Review was denied in the following cases during the month of June 2017:
Matthew Bane v. Dennison Mines (USA) Corp., now known as Energy Fuels Resources (USA),
Inc., Docket Nos. WEST 2012-1224 DM (Judge Gill, April 27, 2017)
Secretary of Labor obo Jerry Ramsey v. Vulcan Construction Materials, LLC, Docket No. SE
2016-145-DM (Judge Moran, May 5, 2017)

Previously unpublished in FMSHRC’s Volume 39, No. 5:
Secretary of Labor v. The American Coal Co., Docket No. LAKE 2011-13 (Judge Moran, May
2, 2017)

iii

ADMINISTRATIVE LAW JUDGE DECISIONS

39 FMSHRC Page 1208

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
PHONE: (202) 434-9933 | FAX: (202) 434-9949

June 2, 2017
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 2016-0729
A.C. No. 02-01049-416209

PINTO VALLEY MINING CORP.,
Respondent.

Mine: Pinto Valley Mine

DECISION DENYING SETTLEMENT
Before: Judge Moran
This case is before the Court upon a petition for assessment of a civil penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act” or “Act). On
April 25, 2017, the Secretary filed a motion to approve settlement (“Secretary’s motion” or
“Motion”).
The Court has considered the representations submitted in this case and, applying section
110(k) of the Act, finds the proffered settlement wanting. Two citations are problematic.1 The
two citations for which insufficient information was provided are Citation Nos. 9302206 and
8934146.
Regarding Citation No. 9302206, a section 104(a) citation alleging a violation of 30
C.F.R. § 56.9300(a), the inspector related,
SX Non potable and potable water service tank road access. The berm on the south side
of the circular roadway has sloughed from wet weather leaving a section of road without
a berm. Two traffic cones demarcating the slough have fallen over the edge. Truck tire
tracks are approx.. 2 ft. from the edge. The operator states the road is accessed daily by
pick up [sic] truck for tank measurement. Should normal operations continue, persons
would be exposed to an approx. 40 - 50 ft. rollover hazard down the hillside.
Citation No. 9302206 (emphasis added).
The Secretary’s motion sought a 50% reduction in the penalty amount for this citation.
Although the Respondent asserted plausible mitigating contentions, that “the cited condition was

1

There are four citations at issue in this matter. Two are not discussed here: Citation Nos.
8934539 and 8934544, which the Respondent agreed to pay as assessed with no modification to
either as part of the proposed settlement.

39 FMSHRC Page 1209

not likely to result in an injury because the cited location was wide and infrequently traveled,
there is one truck in the area at a time, and it travels at only 5 mph,” the Secretary offered no
useful comment to those contentions. Motion at 2. Instead, the Secretary stated only that he
“would have presented evidence supporting the citation as written.” Id. (emphasis added). The
Secretary then continues, “nevertheless, without admitting that Respondent’s arguments are
relevant or persuasive, [he] agrees to modify the citation’s gravity designations from Reasonably
Likely to Unlikely and from Significant and Substantial (“S&S”) to Non-S&S, and agrees to
reduce the penalty from $2,398.00 to $1,200.00.” Motion at 2-3.
Accordingly, the Secretary has provided absolutely nothing to support the reduction. To
the contrary, the Secretary did not even concede that the Respondent presented legitimate issues
of fact that can be resolved only by going to hearing. One needs to put this insufficient statement
in further context by appreciating that the Secretary’s offering, if it can be described as such, is
his fallback position. The Secretary’s initial position on settlements remains that he “has
evaluated the value of the compromise, the likelihood of obtaining a still better settlement, the
prospects of coming out better, or worse, after a full trial, and the resources that would need to be
expended in the attempt. The Secretary has determined that the public interest and the effective
enforcement and deterrent purposes of the Mine Act are best served by settling the citations as
indicated above.” Motion at 2.
It is only after announcing his primary position, that the Secretary has determined how
the Mine Act is best served through his settlement, that he acknowledges that the Commission
has issued a “recent decision” finding that the Commission’s procedural rules require support for
settlements.2 Id. (emphasis added). In that context, the Secretary then “presents… information in
support of the penalties agreed to by the parties.” Id. Though the language suggests that
“information in support of the penalties” will then be provided in the motion, the only mitigating
factual assertions come from the Respondent, as the Secretary, with no congruity between the
parties at all, simply announces that he “agrees to modify the citation’s gravity designations from
Reasonably Likely to Unlikely and from Significant and Substantial (“S&S”) to Non-S&S, and
agrees to reduce the penalty from $2,398.00 to $1,200.00.” Motion at 3. Why the Secretary so
agrees to the proposed changes is never explained. In fact, discordantly, the Secretary asserts that
he would have presented evidence supporting the citation as was written, and does not admit that
the reasons advanced by the Respondent are persuasive, or even relevant.
Simply stated, a settlement motion such as this cannot be approved when only the mine
operator advances claimed mitigating factors and the Secretary offers no comment in support of
such claims and exacerbates that shortcoming by taking matters a step further, denying that the
claimed mitigating factors are persuasive or relevant.

2

This presumably refers to The American Coal Company, which reaffirmed that
Congress authorized the Commission to review in detail settlements of contested civil penalties
before approving them. The American Coal Co., 38 FMSHRC 1972 (Aug. 2016) (citing Black
Beauty Coal Co., 34 FMSHRC 1856, 1862 (Aug. 2012)).

39 FMSHRC Page 1210

If one were to try to present such a motion mathematically, it might appear in this
manner:
Mine operator’s representations about facts that may mitigate a violation
– Secretary failure to concede presence of genuine factual dispute regarding operator’s
representations + no additional information from the Secretary about those
representations = invalid settlement.
For the other matter, Citation No. 8934146, the Secretary takes the same approach as he
did in the previous citation, this time seeking a 28% penalty reduction. Though the penalty
reduction is different, the playbook is the same. The citation alleges,
[a] ¾ inch water hose was strung out on the ground level pad on the North side of the
Fine Ore Crushing building in front of the stairway to the Crusher Motor Level. The hose
was elevated off the floor on one end and coiled up in a pile on the other side about three
feet from the bottom of the steps to the Crusher Motor Level. This condition exposed
workers accessing the stairway to a slip, fall hazard that could cause a serious injury.
Citation No. 8934146.

39 FMSHRC Page 1211

After making the condition sound less serious, describing it only as “a hose in front of a
stairway,” the Secretary’s Motion states, the “Respondent would have argued at hearing for
modification of the citation’s gravity designations because, Respondent argues, the hose was
easily visible and did not present a tripping hazard.” Motion at 3. The Court observes that these
are plausible reasons to support a reduced penalty and changes to the gravity determinations
listed by the issuing inspector. However, as just noted, hearing only from one side is insufficient
in matters of proposed settlements. Indeed, the idea behind a settlement often is that the parties
acknowledge some legitimate disputes about the facts. This means that the Court must hear from
both sides. Yet, employing his formulaic response, the Secretary again only recites his routine
statement that he “would have presented evidence supporting the citation as written.” Id.
(emphasis added). Then, as before, the Secretary continues that, “nevertheless, without admitting
that Respondent’s arguments are relevant or persuasive, [he] agrees to modify the citation’s
gravity designations from Reasonably Likely to Unlikely and from S&S to Non-S&S, and agrees
to reduce the penalty from $722.00 to $520.00.” Id. As there is no explanation provided by the
Secretary for the gravity modifications, nor for the penalty reduction, this proposed settlement is
also inadequately supported.
WHEREFORE, the motion for approval of settlement, being deficient, is DENIED.
This matter must now be set for hearing.3

/s/ William B. Moran
William B. Moran
Administrative Law Judge

Distribution:
Ryan L. Pardue, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd.,
Suite 216, Denver, Colorado 80204
Donna V. Pryor, Esq., Husch Blackwell LLP, 1801 Wewatta Street, Suite 1000, Denver,
Colorado 80202
3

Setting a matter for hearing does not foreclose the parties’ option to submit a new,
adequately supported motion for approval of settlement. However, this possibility is an
insufficient basis to postpone establishing a hearing date.

39 FMSHRC Page 1212

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
PHONE: (202) 434-9933 | FAX: (202) 434-9949

June 2, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2016-0621
A.C. No. 46-04236-419753

SEMINOLE COAL RESOURCES, LLC,
Respondent.

Mine: Maple Eagle No. 1

DECISION APPROVING SETTLEMENT
Before: Judge Moran
This case is before the Court upon a petition for assessment of a civil penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977. The Secretary has filed a
motion to approve settlement. The originally assessed amount was $5,338.00, and the proposed
settlement is for $3,737.00. The Secretary also requests that the single citation at issue be
modified, as indicated below.
The Secretary presents the following basis for the proposed changes to Citation No.
9111506, which alleged a violation of 30 C.F.R. § 75.220(a)(1):
The Respondent contends that the Section Foreman examined the working places
and found no issues in the #5 entry. The Respondent also contends that four
reflectors were hung in the crosscut and entry as required by the plan but that the
inspector did not agree with the location of the reflectors. The Respondent would
also argue if this matter went to hearing that it was not reasonably likely that
anyone would travel inby the unsupported roof and, therefore, the citation should
not have been designated as S&S. In light of these arguments and recognizing the
uncertainty of the outcome of these issues, the Secretary agrees to the above
modification and penalty reduction.
Motion at 3.
Again, we see the 30% reduction the Secretary seems to be offering with
frequency. In this instance, the Court will infer that the Secretary is admitting that there
are legitimate questions of fact raised by the Respondent, though for some reason the
Secretary is reticent to admit this frontally, relying instead upon his wording that “[i]n
light of these arguments and recognizing the uncertainty of the outcome of these issues,
the Secretary agrees to the above modification and penalty reduction.” Id.

39 FMSHRC Page 1213

With the comments above in mind, the Court has considered the representations
submitted in this case and, with those, the implicit acknowledgement by the Secretary that the
Respondent’s representations present legitimate issues of fact. Working under that inference, the
Court concludes that the proffered settlement is appropriate under the criteria set forth in section
110(i) of the Act. The settlement amounts are as follows:
Citation No.
9111506

Assessment
$5,338.00

Settlement Amount
$3,737.00

TOTAL:

$5,338.00

$3,737.00

WHEREFORE, the motion for approval of settlement is GRANTED.
It is ORDERED that Citation No. 9111506 be MODIFIED to a section 104(a) citation,
with a high negligence designation.
It is further ORDERED that Respondent pay a penalty of $3,737.00 within 30 days of
this order.1 Upon receipt of payment, this case is DISMISSED.

/s/ William B. Moran
William B. Moran
Administrative Law Judge

Distribution:
Jacob M. Hargraves, Esq., U. S. Department of Labor, 201 12th Street South, Suite 401,
Arlington, VA 22202-5450
Michael Cimino, Esq., Jackson Kelly, PLLC, 500 Lee Street East, P.O. Box 553, Suite 1600,
Charleston, WV 25301-3202

1

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO
63179-0390

39 FMSHRC Page 1214

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19th St. Suite 443
Denver, CO 80202-2500
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

June 5, 2017
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 2016-439
A.C. No. 15-19757-415241

v.
NALLY & HAMILTON ENTERPRISES,
INC.,
Respondent.

Mine: Day Branch
DECISION

Appearances:

Mary Sue Taylor, U.S. Department of Labor, Office of the Solicitor
618 Church Street, Suite 230, Nashville, Tennessee 37219
S. Thomas Hamilton, Nally & Hamilton Enterprises, Inc., 212 East
Stephen Foster Avenue, Bardstown, Kentucky 40004

Before:

Judge Simonton
I. INTRODUCTION

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 Nally & Hamilton
Enterprises, Inc. (“NHE” or “Respondent”), pursuant to the Federal Mine Safety and Health Act
of 1977 (“Mine Act”), 30 U.S.C. §801. This case involves Citation No. 8409739, issued on
December 16, 2016 for an assessed penalty of $634.00. The citation was designated as
significant and substantial (S&S), highly likely to result in lost workdays or restricted duty, and
the result of NHE’s moderate negligence.
The parties presented testimony and documentary evidence at a hearing held in London,
Kentucky on March 2, 2017. MSHA Inspector David Faulkner testified for the Secretary. Day
Branch Mine Foreman Mike Shackleford testified for Nally & Hamilton. After fully considering
the testimony and evidence presented at hearing, I find that the Secretary met his burden in
establishing the violation and gravity as written in the citation. I reduce Nally and Hamilton’s
negligence from moderate to low and assess a penalty of $500.00.

39 FMSHRC Page 1215

II. STIPULATIONS OF FACT
The parties entered the following stipulations of fact into the record at hearing:
1. Nally and Hamilton Enterprises, Inc., extracts and produces coal for resale in interstate
commerce at its Day Branch surface mine. See Tr. 8.
2. Nally and Hamilton Enterprises, Inc., is an operator as defined by the Federal Mine
Safety and Health Act of 1977 and is subject to the jurisdiction of the Federal Mine Safety
and Health Review Commission and its administrative law judges. Id.
3. The Day Branch surface mine reported that it had 33 to 35 employees working 99,823
hours and producing 310,980 tons of coal in 2016. Id.
4. The civil money penalty as assessed will not affect the ability of Nally and Hamilton
Enterprises, Inc., to continue in business. Id.
III. FINDINGS OF FACT AND SUMMARY OF TESTIMONY
On December 16, 2016, MSHA Inspector David Faulkner1 visited Respondent’s Day
Branch Mine (“Mine”) to perform a routine inspection. Tr. 13. Prior to the inspection, Faulkner
reviewed the Mine’s ground control plan, in which the mine operator lists the type of mining, the
seams they will mine, and any provisions the operator will follow at that specific mine. Tr. 14–
15. The provisions at issue in this case (Items 6 and 7) only apply to haul roads, which the plan
defines as roads where coal or mining rock trucks normally operate. See Ex. 3 at 14. Item 6
requires haul roads to have a grade below the manufacturer-recommended maximum for the
trucks using the road. Tr. 28; Ex. 3 at 14. If there is no recommended maximum, then the road
grade must be no greater than 15%. Id. Item 7 requires roads with grades greater than 10% to
have additional safety precautions, including signs warning of steep grades and a reduced speed
limit, runaway ramps, and berms at least two feet tall. Tr. 28–29, 69; Ex. 3 at 14.
Once at the Mine, Faulkner and his supervisor traveled from the parking lot up past the
Creech coal seam and up to a drill bench. Tr. 16–18. On the way up, Faulkner did not see
anything that made him think the road was a haul road, but later noticed that the coal seam had
been mined at some point. Tr. 42, 19–20. The amount of exposed highwall signaled that about a
month’s worth of mining had been completed. Tr. 58–59. Faulkner thought that Respondent had
recently mined the highwall because mine management added the Creech coal seam to the
ground control plan roughly two months prior to Faulkner’s visit. Tr. 26–27. Faulkner testified
that Day Branch Mine Foreman Mike Shackleford “insinuated” that trucks had hauled coal from
the seam using the road, but Faulkner did not include that fact in his notes from that day or in the
1

David Faulkner has worked as a mine inspector for MSHA for over 11 years and
worked in the mining industry for 17 years prior to that. Tr. 11–12. He is licensed as a surface
mine foreman in Kentucky and as an open pit mine foreman in Tennessee. Tr. 12. Faulkner has
also completed all courses required for MSHA inspectors on topics such as accident
investigation, impoundment specialist training, and regular mine inspection. Tr. 13.

39 FMSHRC Page 1216

citation he issued. Tr. 24–25, 31–32, 41. Shackleford later testified at hearing that NHE had
removed between 25 and 30 loads of coal from the Creech seam. Tr. 73.
Faulkner determined that the road was a haul road because of the coal seam’s location
relative to the rest of the equipment. Tr. 35–36. The cited road was the only way he could see to
haul coal out from the seam, and he inferred that Respondent had used the cited road to haul it
out. Tr. 27, 54. However, the only truck that used the road the day of the inspection was the
powder truck, and Faulkner said that Respondent did not haul coal that day. Tr. 50-51.
Returning from the drill bench, Faulkner stopped roughly halfway down the road to take
pictures and measure the road grade. Tr. 20–21. He used an Abney level and a laser rangefinder
to measure the grade from the road’s halfway point to the Creech coal seam at 25%. Tr. 29–31.
Faulkner requested the powder truck’s manufacturer-recommended grade maximum but found
they had not been provided, so the ground control plan’s prescribed 15% maximum applied. Tr.
34–35; Ex. 3 at 14. He did not ask for the coal truck’s recommended maximum because in his
experience the manufacturer normally did not provide it, in which case the 15% maximum would
also apply. Id.
Shackleford testified that he measured the road grade at 13% and that the road grade was
in compliance with the ground control plan when Respondent was hauling coal the week before
the inspection. Tr. 70–71. Shackleford attributed any increase in road grade to a construction
project on the road at the time of the inspection, which pushed materials across the road with a
bull dozer and raised the grade. Tr. 70–71. He told Faulkner that they were widening the road
and reducing the grade by pushing out the material. Tr. 43–44, 66–68. However, Shackleford
later testified that the work they were doing on the road would only change the road’s
appearance and not the grade. Tr. 77. He also testified that the grade of the portion of the road in
Faulkner’s photographs did not change since Respondent used the road to haul coal. Tr. 22, 75–
77. Based on the mountain’s terrain and elevation and how the road was cut into the mountain,
Faulkner believed that the road’s grade had never been compliant. Tr. 27, 55.
In addition to being too steep, Faulkner also alleged that the cited road provided none of
the safety features listed in Item 7. Tr. 33–34. The road did not have a speed limit sign, but did
have a sign at the top of the hill that warned drivers to use lower gears. Tr. 71–72. This sign did
not specifically warn that the road grade was above 10%, and Shackleford did not show it to
Faulkner during the inspection. Id. Shackleford also noted the road had 6-foot berms, which were
three times the required size. Tr. 69. However, Faulkner testified that only some of the berms
measured six feet in height. Tr. 33–34.
Faulkner issued Citation No. 8409739 because Respondent “failed to follow the
parameters of the Ground Control Plan,” a violation of section 30 C.F.R. §77.1000. Ex. 1. He
alleged that Respondent violated Items 6 and 7 of the Mine’s ground control plan and that the
violation was S&S. Id. Using his experience investigating runaway truck accidents, Faulkner
found NHE moderately negligent based on the likelihood that haul truck drivers would lose
control of the truck and cause an accident on the road. Tr. 37–39; Ex. 1. He testified that the dirt
road was not durable enough to provide traction to trucks, which increased the likelihood that a

39 FMSHRC Page 1217

driver could lose control around the curve on the road. Tr. 38–39. Faulkner said this kind of
accident would likely result in lost work days or restricted duty. Tr. 37, Ex. 1.
IV. PARTY ARGUMENTS
A. Secretary’s Argument
The Secretary argues that the Respondent violated Section 77.1000 by failing to follow
the safety provisions set out in Items 6 and 7 of the Mine’s ground control plan. Secretary’s PostHearing Brief (Sec’y Br.) at 11. The Secretary alleges that the Mine used the cited portion of the
road to haul as many as 30 loads from the Creech coal seam. Id. at 8, 10. The Secretary contends
that hauling coal on a road that is not compliant with Items 6 and 7 of the ground control plan
could result in haul truck related accidents, which in turn could lead to lost workdays or injuries.
Id. at 10.
Faulkner found that the grade of the cited portion of the road was greater than the
maximum grade allowed by the ground control plan. Sec’y Br. at 8; Tr. 34–35. The Secretary
argues that Shackleford’s measurement of 13% grade was for the entire roadway, not only the
cited portion. Sec’y Br. at 9. The Secretary alleges that the difference in measurements is due to
the fact that the top portion of the entire roadway (the portion Faulkner cited) is much steeper
than the bottom portion. Id.
Even at a road grade of 13%, the Secretary argues the road should have provided safety
precautions required by Item 7. Id. Although NHE posted a sign warning trucks to use lower
gears at the top of the cited road, Shackleford did not show it to Faulkner, and the Secretary
argues that the sign did not properly warn of the steep grade. Sec’y Br. at 9-10; Tr. 71. The
Secretary also argued that the road’s berms were not high enough and the road did not have a
runaway ramp in case a driver lost control due to the steep grade. Id. at 10.
B. Respondent’s Argument
The Respondent argues that the citation should be vacated because it was brought under a
regulatory section that does not apply to road grades. Respondent’s Post Hearing Brief (Resp.
Br.) at 5, 10. Respondent alleges that the Secretary does not have the authority under the Mine
Act to regulate road grades and improperly does so through their refusal to acknowledge plans
without road grade maximums. Id. at 5–6. Respondent also argues that the Court should vacate
the citation because the road cited was not being used as a haul road and was under construction
to meet the ground control plan’s standards. Id. at 7. Inspector Faulkner did not see any coal
trucks use the road the day he cited the Mine, and he said that the powder truck would not have
merited a violation on its own. Id.
Alternatively, Respondent argues that if the road had been used to haul coal, there was no
violation because the Mine complied with the ground control plan. Resp. Br. at 8. NHE claims
that the Secretary’s photograph exhibits show compliance with berm size and runaway ramp
requirements, and that warning signs were present on the day of the citation and the day they

39 FMSHRC Page 1218

were hauling coal. Id. Respondent contends that Shackleford measured the road grade below
15% and that the road includes safety precautions required by the plan for roads over 10%. Id.
Finally, assuming the violation occurred, the Respondent argues that it was not S&S
because there was no likelihood the road grade would result in injuries. Resp. Br. at 10. There
had been no injuries before the construction and none since because the road was not used while
under construction. Id. at 11. The Respondent also argues that it was not negligent because it was
in the process of improving the road at the time of the citation. Id.
V. ANALYSIS
A. Citation No. 8409739
Inspector Faulkner alleged that Nally and Hamilton violated 30 C.F.R. § 77.1000 because
it failed to maintain the haul road at 15% grade and did not provide adequate safety measures for
the road, as required by its ground control plan. The provision provides in part:
Each operator shall establish and follow a ground control plan for the safe
control of all highwalls, pits, and spoil banks to be developed…which shall
be consistent with prudent engineering design and will insure safe working
conditions.
30 C.F.R. § 77.1000 (emphasis added).
As an initial matter, Respondent argues that MSHA overstepped its authority in issuing
the citation because section 77.1000 applies only to highwalls, pits, and spoil banks, and not to
road grades. Resp. Br. at 5-6. NHE therefore claims that MSHA improperly cited to section
77.1000 to require compliance “in excess of the standards required by the Act and by the
applicable case law.” Id. at 6.
I find that MSHA was within its power to regulate road grades and to issue the citation
for NHE’s failure to follow its ground control plan. The Commission has held that section
77.1000 requires operators of surface coal mines to establish and follow a ground control plan.
RNS Services, Inc., 18 FMSHRC 523, 523 n.1 (Apr. 1996); Revelation Energy, LLC, 36
FMSHRC 1581, 1607 (June 2014) (ALJ) (“[Section 77.1000] simply requires that an operator
follow the ground control plan, and any failure to do so is a violation of the regulation”). In
addition to ensuring the safe control of all highwalls, pits, and spoil banks, the ground control
plan must “insure safe working conditions” at the mine. 30 C.F.R. § 77.1000. Commission
judges have found this additional mandate to extend over and above the items listed in the
provision. See Central Appalachia Mining, LLC, 29 FMSHRC 430, 437 (June 2007) (ALJ)
(Holding that section 77.1000 is applicable to blasting procedures because the provision requires
operators to submit a plan that will insure safe working conditions); Power Operating Services,
16 FMSHRC 2331, 2341 (Nov. 1994) (ALJ) (Accepting that section 77.1000 could regulate
truck dump levels and ramps, but vacating the citation because the operator adequately complied
with the relevant provisions of the ground control plan).

39 FMSHRC Page 1219

NHE does not dispute that its ground control plan expressly requires it to maintain haul
roads at a prescribed maximum grade and provide adequate safety measures for roads graded
above 10%. See Ex. 3 at 14. It is also quite clear that these haul road provisions insure safe
working conditions around the Creech coal seam. The cited road is the only means of access to
the Creech coal seam and thus must be used to haul coal out of the mine. See Tr. 27. The road’s
maintenance is a necessary component of its safe, efficient, and productive development, and
failure to properly maintain the road in accordance with the ground control plan could result in
unsafe working conditions at and near the Creech coal seam. In acknowledging the ground
control plan, MSHA clearly and justifiably believed that haul road regulations were necessary to
insure safe mining conditions at Day Branch. I therefore find that MSHA possessed the authority
under section 77.1000 to include and enforce the haul road provisions in Respondent’s ground
control plan.
I also reject NHE’s contention that the cited road was not a “haul road” as defined by the
ground control plan. Resp. Br. at 7. NHE’s ground control plan defines a “haul road” as “roads
where coal or mining rock trucks normally operate.” Ex. 3 at 14. Inspector Faulkner admitted at
hearing that NHE was not hauling coal on the day of the inspection, and testified that he issued
the citation based on his observation of the physical condition of the highwall, the presence of
the powder truck at the top of the hill near the drill bench, and because Foreman Shackleford
“insinuated” that NHE hauled coal along the road prior to the inspection. Sec’y Br. at 7.
Respondent is correct to point out that a powder truck does not haul coal or mining rock
and therefore does not prove that the road was a haul road under the ground control plan.
However, Faulkner’s other observations suffice to show that the cited road qualifies as a haul
road. Faulkner credibly testified that the cited road was the only access road to the Creech coal
seam and that the condition of the highwall indicated that coal had been mined and removed
from the area. Tr. 36, 58. Faulkner also noted that extraction from the coal seam must have been
relatively recent because NHE amended its ground control plan to add the Creech coal seam a
mere two months prior to the inspection. Tr. 26-27. Faulkner’s inference was confirmed during
the inspection when Shackleford insinuated to him that NHE previously hauled coal along the
road. Tr. 24-25, 31-32. His inference was reaffirmed at hearing when Shackleford conceded that
NHE used the road to haul 25 to 30 loads of coal out from the Creech coal seam a week or so
prior to the issuance of the citation. Tr. 58, 65, 73. I credit Inspector Faulkner’s observations and
find Shackleford’s admission to carry significant weight regarding NHE’s use of the road. Based
on these facts, I find that the road constitutes a haul road as defined by NHE’s ground control
plan.
Turning now to the violation itself, I find that NHE violated provision 6 of its ground
control plan. Provision 6 requires the maximum grade of any haul road to be either 15% or the
maximum grade recommended by the manufacturer. Ex. 3 at 14. While Faulkner did not ask for
coal truck manufacturer recommendations, NHE did not provide any at that time and
Shackleford testified that none were available. Tr. 35, 73. Thus, the 15% maximum grade applies
to the haul road.
Inspector Faulkner measured the grade of the road from the midpoint to the Creech coal
seam with an Abney level and determined that the upper portion of the road measured at a 25%

39 FMSHRC Page 1220

grade. Tr. 24. He used a laser rangefinder to determine that the steep grade existed for a distance
of 265 feet. Tr. 29; Ex. 1. Though NHE was not hauling coal at the time of his measurement, I
credit Faulkner’s testimony that the slope and elevation of the mountain foreclosed any
possibility that the road’s grade could have changed so drastically since NHE last hauled coal
over it. Tr. 55. The elevation and slope of the mountain, as well as the manner in which the
roadway was cut into the terrain of the mountain, suggested that the grade could not have been
altered to such an extreme degree by the work that NHE was doing. Tr. 27.
NHE argues that Shackleford measured the road at a grade of 13%, well within the
requirements of Provision 6. Resp. Br. at 9; Tr. 43, 65. Shackleford attributed Faulkner’s 25%
measurement to a large, temporary hump that NHE created while working on the road near the
Creech coal seam. Tr. 65. He told Faulkner that NHE was widening the road and reducing the
grade by pushing out material. Tr. 43–44, 66–68. He also noted that NHE did not haul over the
hump because it would have been too steep. Tr. 43, 65.
I find Shackleford’s testimony on this subject to be inconsistent and do not credit this
measurement. Shackleford did not specify when he took the measurement, and testified that his
13% grade measurement considered the entire roadway rather than the cited 265-foot segment.
See Tr. 70-71. It is undisputed that the upper segment of the road was significantly steeper than
the lower portion, and therefore Shackleford’s measurement of the entire road did not accurately
reflect the grade of the cited 265-foot segment. Tr. 47-48. He conceded at hearing that the grade
of the cited segment of road at the time that coal was being hauled was the same as it was in
Faulkner’s photographs, which highlighted only a small portion of the road. Tr. 75-77; Ex. 4.
Thus, I conclude that Shackleford’s 13% measurement was due at least in part to the inclusion of
the portions of the road that were in compliance with the ground control plan and not at issue in
this case.
Furthermore, Shackleford’s claim that the hump significantly altered the road grade
demonstrates that he misunderstood which segment of the road was cited. Faulkner explicitly
testified that the violative segment of road was located well below the hump where NHE was
performing construction. See Tr. 47-48, 53-54. At hearing, Faulkner drew a picture of the road
clearly indicating that the cited segment was some distance from the hump, which was located at
the Creech Coal seam elevation. Tr. 53; Ex. 5. His photographs of the cited area show no
evidence that NHE was working on or near the cited area, as neither the hump nor any
construction equipment are visible in the photographs. Ex. 4.
Even if Faulkner included the hump in his measurement, Shackleford failed to explain
why NHE needed to perform maintenance work on the road if the road grade measured 13%, a
permissible grade under the ground control plan. Additionally, Shackleford failed to address how
pushing out material would somehow nearly double the road’s grade in order to account for
Faulkner’s measurement. As noted above, I find that Respondent’s construction work, as
described by Shackleford, cannot account for the stark increase in grade along the road.
Shackleford acknowledged as much when he testified that the work being done at the hump was
aesthetic and would not change the grade of the road. Tr. 77. Faulkner provided similar
testimony; while he was unsure exactly what the dozers were doing, they were pushing material
straight out on a level area and would not affect the grade of the cited segment of road. Tr. 48,

39 FMSHRC Page 1221

53; Ex. 4. Based on this testimony, it is clear that NHE’s construction did not significantly alter
or affect Faulkner’s measurement of the road grade.
Accordingly, I find that the Secretary established that NHE failed to follow provision 6 of
its ground control plan, in violation of section 77.1000.
The Secretary next alleges that Respondent violated provision 7 of its ground control plan
because it did not provide additional safety measures for the road. Sec’y Br. at 9. Provision 7
states that “[h]aul roads with grades exceeding 10% shall be provided with additional safety
measures such as steep grade warning signs, reduced speed limits, larger berms, straddle berms,
runaway ramps etc.” Ex. 3 at 14. Since the measurements of Shackleford and Faulkner both
indicated that the road’s grade exceeded 10%, the issue is whether Respondent provided
additional safety measures.
NHE argues that it provided oversized berms, a straddle berm, a runaway ramp, and a
sign at the top of the road urging truck operators to use lower gears. Resp. Br. at 8-9. NHE
conceded that it did not bring up the straddle berm and runaway ramp at hearing, and I find that
neither is clearly visible in the photographic evidence. See id. I do not credit the presence of the
straddle berm and runaway ramp, but nonetheless find that NHE provided adequate safety
measures along the road in compliance with provision 7.
The photographic evidence indicates that NHE built berms exceeding the minimum
height along the cited road segment. Ex. 4. The berms are visible in all of Inspector Faulkner’s
photographs and clearly exceed the required minimum, in some areas by multiple feet. See id.
Shackleford testified that NHE also placed a sign near the top of the road that cautioned drivers
to use lower gears. Tr. 71. Though Shackleford did not show Faulkner the sign at the time of the
inspection, the Secretary did not dispute its existence, and I credit Shackleford’s testimony as
such. Id.
I reject the Secretary’s contention that the sign was inadequate because it did not
explicitly warn trucks of the steep grade or to reduce speed along the road. Sec’y Br. at 10. A
warning suggesting that trucks use lower gears signals the driver to proceed slowly and with
caution. Use of lower gears also suggests that a change in grade may occur. I find that the berms
were adequate and the sign appropriately warned operators that the upcoming stretch of road was
steep and that lower speeds were recommended. Tr. 71. Accordingly, NHE did not violate
provision 7 of its ground control plan.
In sum, NHE violated provision 6 of its ground control plan when it failed to properly
maintain the haul road at or below the 15% maximum grade. However, NHE provided adequate
safety measures around the road in compliance with provision 7. The citation is AFFIRMED.
B. Significant & Substantial
A violation is significant and substantial (S&S), “if based upon the particular facts
surrounding the violation there exists a reasonable likelihood that the hazard contributed to will

39 FMSHRC Page 1222

result in an injury or illness of a reasonably serious nature.” Cement Division, National Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981).
In order to uphold a citation as S&S, the Commission has held that the Secretary of Labor
must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard—that is, a measure of danger to safety—contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC
1, 3-4 (Jan. 1984).
The Commission has held that the second element of the Mathies test addresses the extent
to which a violation contributes to a particular hazard. Newtown Energy, Inc., 38 FMSHRC
2033, 2037 (Aug. 2016). Analysis under the second step should thus include the identification of
the hazard created by the violation and a determination of the likelihood of the occurrence of the
hazard that the cited standard is intended to prevent. Id. at 2038. At the third step, the Secretary
must prove there was a reasonable likelihood that the hazard contributed to by the violation will
cause an injury, not a reasonable likelihood that the violation, itself, will cause injury. West
Ridge Resources, Inc., 37 FMSHRC 1061, 1067 (May 2015) (ALJ), citing Musser Eng'g, Inc., 32
FMSHRC 1257, 1280-81 (Oct. 2010). Evaluation of the four factors is made assuming continued
normal mining operations. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984).
I have already found that Nally & Hamilton violated section 77.1000, a mandatory
standard, when it failed to adhere to its ground control plan and maintain the haul road at a 15%
maximum grade. The discrete safety hazard posed by the violation is that the steep grade may
cause a coal truck driver to lose control of the vehicle and collide with a berm or overturn the
vehicle. Given the particular facts surrounding the violation, it is highly likely that the hazard
would occur. The road was 10% steeper than permitted and was the only means of access to the
Creech coal seam and drill bench. Tr. 27. The Mine used the road to haul coal from the highwall.
Tr. 73. Inspector Faulkner testified that the roadway was made out of fresh earthen dirt and not
durable stone, which reduced traction and could affect a haul truck operator’s ability to brake or
maintain control of the vehicle. Tr. 38-39. The road also had a relatively sharp curve, and losing
control of a haul truck while driving along it could exacerbate the likelihood of injury. Tr. 37;
Ex. 4. It is therefore likely that trucks would lose control or crash while hauling coal on a road
with a grade of 25%.
Since the road grade was 10% higher than the prescribed maximum, it is reasonably
likely that a truck operator would lose control and crash, collide, or overturn the vehicle,
resulting in ejections or other serious collision-related injuries. I credit Inspector Faulkner’s
testimony that in his experience, injuries caused by runaway trucks in surface operations are
reasonably likely to be serious. Tr. 37-38. I therefore find that the violation was S&S.
C. Negligence
Under the Mine Act, operators are held to a high standard of care, and “must be on the
alert for conditions and practices in the mine that affect the safety or health of miners and to take
steps necessary to correct or prevent hazardous conditions or practices.” 30 C.F.R. § 100.3(d).

39 FMSHRC Page 1223

The Mine Act defines reckless disregard as conduct which exhibits the absence of the slightest
degree of care, high negligence as actual or constructive knowledge of the violative condition
without mitigating circumstances; moderate negligence as actual or constructive knowledge of
the violative condition with mitigating circumstances; and low negligence as actual or
constructive knowledge of the violative condition with considerable mitigating circumstances. 30
CFR § 100.3: Table X.
I find that NHE’s negligence is low. NHE should have known that the grade of the road
was 10% higher than its ground control plan permitted, but it provided safety measures to
mitigate the risk of an accident and therefore did not violate provision 7 as alleged by the
Secretary. The testimony and photographic evidence prove that Respondent built large berms
along the road and provided a sign urging operators to use lower gears. See Tr. 38-39; Ex. 4.
These safety measures were adequate under Respondent’s ground control plan and resulted in the
vacatur of one portion of the citation, and also mitigated the potential risk of operating on the
road. I also credit Shackleford’s testimony that he measured the grade of the road at some point
before the inspection took place. Tr. 43, 65. Although, as discussed above, Shackleford’s
measurement did not accurately portray the grade of the cited road segment, he nonetheless made
a good faith attempt to comply with the ground control plan. I therefore reduce NHE’s
negligence from moderate to low.
VI. PENALTY
It is well established that Commission administrative law judges have the authority to
assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Company, 5
FMSHRC 287, 291 (March 1983). The Act requires that in assessing civil monetary penalties,
the Commission ALJ shall consider the six statutory penalty criteria:
(1) the operator’s history of previous violations, (2) the appropriateness of such
penalty to the size of the business of the operator charged, (3) whether the
operator was negligent, (4) the effect on the operator’s ability to continue in
business, (5) the gravity of the violation, and (6) the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation.
30 U.S.C. 820(I).
The Secretary proposed a regularly assessed penalty of $634.00. Nally and Hamilton
have no history of violating section 77.1000 in the past two years. The parties stipulated that the
Day Branch Mine produced 310,980 tons of coal and employed between 33 to 35 miners
working 99,823 hours in 2016. Jt. Stip. 3. NHE therefore qualifies as a medium to large sized
operator. See 30 C.F.R. § 100.3. The parties also stipulated that the civil money penalty as
assessed will not affect NHE’s ability to remain in business. Jt. Stip. 4.
I discussed my gravity and negligence findings in greater detail above. NHE violated the
standard, and the violation was S&S and highly likely to result in lost workdays or restricted
duty. I reduced NHE’s negligence from moderate to low because while NHE should have known

39 FMSHRC Page 1224

that the road grade violated provision 6 of its ground control plan, NHE provided adequate safety
measures along the road and did not violate provision 7 as alleged by the Secretary. NHE acted
in good faith to achieve compliance the same day it received the citation. After considering the
statutory criteria, I assess a penalty of $500.00.
VII.

ORDER

Respondent is hereby ORDERED to pay the Secretary of Labor the total sum of
$500.00 within 30 days of this order.2

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge

Distribution: (U.S. First Class Mail)
Mary Sue Taylor, U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite
230, Nashville, Tennessee 37219
S. Thomas Hamilton, Nally & Hamilton Enterprises, Inc., 212 East Stephen Foster Avenue, P.O.
Box 327, Bardstown, Kentucky 40004

2

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO
63179-0390

39 FMSHRC Page 1225

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004

June 5, 2017
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2009-57
A.C. No. 11-03054-163984

v.
BIG RIDGE, INC.,
Respondent.

Mine: Willow Lake Portal

DECISION ON REMAND
AND
ORDER TO PAY
Before: Judge Feldman
This remand matter concerns a Decision by Judge Melick vacating Citation No. 6674618
in Docket No. LAKE 2009-57. 33 FMSHC 2238, 2250 (Sept. 2011) (ALJ). Judge Melick has
since retired. Judge Melick concluded that the underlying safeguard at issue in Citation No.
6674618 was invalid because it failed to provide the mine operator with adequate notice of the
hazard addressed by the safeguard concerning the transportation of men and/or materials. Id.
On appeal, the Commission reinstated the subject safeguard, holding that it provided the
mine operator with adequate notice of the condition covered and the conduct required to satisfy
the underlying notice of safeguard. 37 FMSHRC 213, 216 (Feb. 2015). Consequently, the
Commission remanded this matter for assessment of the appropriate civil penalty.1 Id. at 217.
Action on the Commission’s remand was delayed due to administrative error. This matter was
assigned to me on May 2, 2017, for disposition of the Commission’s remand.

1

The caption in the Commission’s remand also concerned Docket Nos. LAKE 2008-436,
LAKE 2009-58, LAKE 2009-59, and LAKE 2009-378. With the exception of Citation No.
6674618 in Docket No. LAKE 2009-57, for which the parties have not agreed upon payment of a
$1,795.00 civil penalty, Judge Melick ordered that Big Ridge pay a total civil penalty of
$272,961.00 in satisfaction of the all other citations/orders in these five dockets. Big Ridge has
timely paid the $272,961.00 civil penalty.

39 FMSHRC Page 1226

On May 22, 2017, the parties filed a Motion to Approve Penalty that reflects that Big
Ridge has agreed to withdraw its contest of Citation No. 6674618, and pay the Secretary’s
proposed penalty of $1,795.00 in full. Having considered the representations and documentation
submitted in this matter, I conclude that the proffered motion to order payment is appropriate
under the criteria set forth in section 110(i) of the Mine Act.
ORDER
Accordingly, IT IS ORDERED that Big Ridge, Inc. pay the proposed $1,795.00 civil
penalty within 40 days of the date of this Order in satisfaction of the safeguard at issue in
Citation No. 6674618.2 Upon receipt of timely payment, the captioned civil penalty proceeding
in Docket No. LAKE 2009-57 IS DISMISSED.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge

Distribution:
Emily B. Hays, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer Blvd., Suite
216, Denver, CO 80204-3516
Arthur Wolfson, Esq., Jackson Kelly PLLC, Three Gateway Center, 401 Liberty Avenue, Suite
1500, Pittsburgh, PA 15222
/acp

2

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. Please include the
Docket No. and A.C. No. noted in the above caption on the check.

39 FMSHRC Page 1227

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004

June 8, 2017
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
THOMPSON ELECTRIC, INC.,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2015-596
A.C. No. 33-04502-385170
Docket No. LAKE 2015-639
A.C. No. 33-04502-387619
Mine: Sober Sand & Gravel
SUMMARY DECISION

Appearances: Lisa A. Cottle, Esq., U.S. Department of Labor, Office of the Solicitor, Cleveland,
Ohio, on behalf of the Petitioner;
Keith L. Pryatel, Esq., Kastner Westman & Wilkins, LLC, Akron, Ohio, on behalf
of the Respondent.
Before:

Judge Feldman

These consolidated civil penalty proceedings are before me based on petitions for
assessment of civil penalties filed by the Secretary of Labor (“Secretary”) under section 105(d)
of the Federal Mine Safety and Health Act of 1977, as amended (“the Mine Act” or “Act”),
30 U.S.C. § 815(d), against the Respondent, Thompson Electric, Inc. (“Thompson Electric”).
Thompson Electric is an independent contractor that performed electrical services at the Sober
Sand & Gravel mine (“Sober Mine”) in Portage County, Ohio. The Sober Mine, which is owned
and operated by Ray Bertolini Trucking Co., is a facility where a dredge is used to excavate
submerged sand and gravel. The services performed by Thompson Electric consisted of
disconnecting and reconnecting electrical power to a dredge to allow for the movement of the
dredge on mine property.
During the course of an April 29, 2015, Mine Safety and Health Administration
(“MSHA”) inspection of the Sober Mine facility, Thompson Electric was cited for three
violations of the Secretary’s mandatory safety standards: Citation No. 8842392, which alleges
that a Thompson Electric employee failed to use adequate fall protection; Citation No. 8842396,
which alleges a failure to develop and implement a written plan for new miner training; and
Order No. 8842394, which alleges a failure to provide new miner training.
Thompson Electric does not dispute the facts that the Secretary relies on to support the
alleged violations. See Jt. Stip., at 1-4 (Feb. 10, 2017). However, on March 29, 2017, Thompson
Electric filed a Motion for Summary Decision seeking that the violations be vacated based on a

39 FMSHRC Page 1228

lack of Mine Act jurisdiction. See Resp. Br., at 1-2 (Mar. 29, 2017). While the Secretary does not
object to resolving this matter summarily, the Secretary opposes Thompson Electric’s denial of
jurisdiction. See Sec’y Br., at 7 (Apr. 19, 2017). As both parties agree that a summary decision is
appropriate in resolving the issue of Mine Act jurisdiction, I construe the parties’ pleadings as
cross-motions for summary decision.
In furtherance of resolving this matter via summary decision, the parties have filed joint
stipulations of material facts. The parties’ Joint Stipulations provide:
1. The Sober Mine is a surface “mine” as that term is defined in section 3(h) of the
Mine Act. The Sober Mine is owned and operated by Ray Bertolini Trucking Co.
Joseph F. Bertolini is the President of the Sober Mine and Eric Gross is a
Foreman of the Sober Mine.
2. At all material times involved in this case, the commodities of the Sober Mine
(construction sand and gravel) entered commerce, or the operations or products
thereof affected commerce, within the meaning and scope of Section 4 of the
Mine Act.
3. Respondent Thompson Electric is an independent contractor that performed
electrical services on a dredge at the Sober Mine in Portage County, Ohio.
4. Thompson Electric is not an “owner” or “lessee” of the Sober Mine within the
meaning of 30 U.S.C. § 802(d), nor does Thompson Electric “control” or
“supervise” the Sober Mine within the meaning of 30 U.S.C. § 802(d).
5. The only equipment that Thompson Electric’s employees worked on or performed
services on at the Sober Mine was a single dredge owned by the Sober Mine. The
dredge is used to excavate submerged sand and gravel from the mine.
6. The scope of Thompson Electric’s work at the mine was to disconnect the
electrical power to the dredge where it was originally located on the mine
property, and then later once the dredge was relocated by the Sober Mine, reconnect electrical power to the dredge.
7. The new location of the dredge was approximately 1,500 feet from its original
location and 2,500 feet from the entrance to the Sober Mine. At the new location,
the dredge was scheduled to be re-connected to an electrical sectioning cabinet.
8. At the time of the alleged MSHA citations at issue . . . the dredge had already
been moved to its new location by the Sober Mine.
9. Thompson Electric employees were at the Sober Mine property a total of six (6)
days.

39 FMSHRC Page 1229

10. On the first day (12/24/14), a single Thompson Electric employee disconnected
the dredge power source. That Thompson Electric employee was present for
seven (7) hours at the Sober Mine property. During this work, the dredge was
locked-out from its power source and the Sober Mine was operating.
11. On the second and third days (4/22/15 and 4/23/15), two employees of Thompson
Electric worked on electrical connect components of the dredge at its new
location. Both Thompson Electric employees worked seven (7) hour days. During
this work, the dredge was locked-out from its power source and the Sober Mine
was operating.
12. On April 24 and 27, 2015, four (4) Thompson Electric employees worked on the
electrical connect components of the dredge at its new location for seven (7)
hours each day. During this work, the dredge was locked-out from its power
source and the Sober Mine was operating.
13. April 24, 2015, was the first day that the worker (Pete Aglioti) who committed the
fall protection infraction at issue in Citation No. 8842392 was at the Sober Mine
site during the six (6) day period at issue in the citations.
14. On April 29, 2015, two Thompson Electric employees arrived to work at the
Sober Mine. However, the Sober Mine had not moved the power cable to the new
location. Therefore, two additional Thompson Electric employees were sent to the
Sober Mine to also work on the dredge at its new location.
15. On April 29, 2015, MSHA issued Thompson Electric Citation No. 8842392
because Thompson Electric employee Pete Aglioti failed to utilize fall protection.
At the time, Joe Bertolini of the Sober Mine was handing a power cable for the
dredge to Pete Aglioti who was on the dredge, approximately 13 feet above
ground level, without wearing fall protection. Pete Aglioti had been trained by
Thompson Electric about the need to wear fall protection whenever working from
a surface four or more feet above ground level. Thompson Electric immediately
(i.e. on 4/29/15) sent Pete Aglioti home for disciplinary reasons, and ultimately
issued him a 3-day suspension for failing to wear fall protection as he had been
trained.
16. On April 29, 2015, the dredge was locked-out from its power source and the
Sober Mine was operating.
17. On April 29, 2015, MSHA issued Thompson Electric Order No. 8842394 for
failing to provide four employees with newly hired inexperienced miner training
pursuant to 30 C.F.R. § 46.5(a). Thompson Electric admits that it did not provide
newly hired inexperienced miner training to the four employees.
18. On April 30, 2015, MSHA issued Thompson Electric Citation No. 8842396 for
failure to develop or implement a Part 46 Training Plan. Thompson Electric

39 FMSHRC Page 1230

admits that it did not develop or implement a Part 46 Training Plan. On April 30,
2015, the dredge was locked-out from its power source and the Sober Mine was
operating.
19. Thompson Electric did not complete its work at the Sober Mine. Once the MSHA
officer, on April 29, 2015, informed Thompson Electric of its intention to cite the
Respondent for MSHA violations, Respondent promptly exited the Sober Mine
location and did not return.
20. Thompson Electric timely contested all of the issued MSHA citations.
Jt. Stip., at 1-4.
Thompson Electric seeks to have the subject citations and order vacated on jurisdictional
grounds. As noted, Thompson Electric has stipulated to the facts surrounding the issuance of the
citations and order. If Mine Act jurisdiction is found, the parties have proffered conditional
settlement terms with respect to the issues of significant and substantial (S&S) and degree of
negligence, and the proposed civil penalty for each of the three cited conditions. However, the
parties reserve the right to appeal any adverse finding as a consequence of this Summary
Decision.
Thus, there are two threshold issues to be resolved in this Summary Decision: 1) whether
Thompson Electric is subject to Mine Act jurisdiction; and 2) whether Thompson Electric is
subject to Part 46 training requirements. As discussed below, although I have found that
Thompson Electric is subject to Mine Act jurisdiction, the Part 46 training violations shall be
vacated. Consequently, the parties’ motions for summary decision shall each be granted in part,
in that the Secretary has prevailed on the issue of Mine Act jurisdiction, and Thompson Electric
has prevailed with respect to the inapplicability of Part 46.
I.

Mine Act Jurisdiction
a. Thompson Electric’s Jurisdictional Challenge

Thompson Electric argues that it should not be subject to Mine Act jurisdiction because it
was not “engaged in the extraction process” and because its activities were de minimis in that
they were limited solely to electrical maintenance on a dredge. Resp. Br., at 10. In this regard,
Thompson Electric asserts that it was never present at the Sober Mine for more than five
consecutive work days, and that at all times its employees were performing electrical
maintenance on a dredge that was “locked out from its power source,” was “completely
inoperable,” and “was not excavating any aggregates.” Id. at 5-6; Jt. Stip., at ¶ 9-14. Finally,
Thompson Electric reportedly left the Sober Mine location immediately after being cited for the
alleged violations and has no intention of returning. Id. at 7; Jt. Stip., at ¶ 19.
In support of its motion, Thompson Electric relies on the Fourth Circuit decision in
Old Dominion Power Co. v. Donovan, 772 F.2d 92 (4th Cir. 1985), wherein the court concluded
that a power company that installed, maintained, and took monthly electric meter readings at a

39 FMSHRC Page 1231

substation that was separated from the rest of mine property by a chain link fence was not
“an operator” within the meaning of section 3(d) of the Mine Act, which includes contractors
performing services at a mine. Thompson Electric further relies on N. Illinois Steel Supply Co. v.
Sec’y of Labor, 294 F.3d 844, 848 (7th Cir. 2002) (citations omitted), in which the court stated
“there may be a point … at which an independent contractor’s contact with a mine is so
infrequent or de minimis that it would be difficult to conclude that services were being
performed.” In N. Illinois Steel, the Seventh Circuit held that a company whose employees drove
delivery trucks onto mine property and helped unload those vehicles was not subject to Mine Act
jurisdiction. Id. at 848-49.
Finally, Thompson Electric heavily relies on the recent Sixth Circuit holding in
Maxxim Rebuild Co. v. FMSHRC, 848 F.3d 737 (6th Cir. 2017), which held that a contractor that
repairs mining equipment in a repair shop at an off-site location is not subject to Mine Act
jurisdiction. The distance of the repair shop from a mine site was not specified by the Sixth
Circuit in Maxxim Rebuild as the repair shop serviced the equipment for a number of different
mines. Id. at 737.
The Secretary argues that the electrical contract services provided by Thompson Electric
on the dredge located on Sober Mine property were essential to the sand dredging process and,
thus, are subject to Mine Act jurisdiction, despite the fact that the electrical work was performed
for only six non-consecutive days. Sec’y Br., at 4-5.
b. Statutory Provisions
The jurisdictional question must be resolved based on application of the statutory
definitions of “a mine” and “a mine operator.” Section 3(h)(1) provides, in relevant part, that a
mine is “an area of land from which minerals are extracted … [and] private ways … appurtenant
to such area.” 30 U.S.C. § 802(h)(1). Included within the statutory definition of a mine is
“equipment [and] machines … used in, or to be used in … the work of extracting such minerals
from their natural deposits….” Id. As noted above, the Mine Act’s definition of a mine operator
includes “any independent contractor performing services … at [a] mine.” 30 U.S.C. § 802(d).
c. Otis Elevator Test
In its Otis Elevator cases, the Commission established a two-pronged test for determining
whether an independent contractor shall be considered an “operator” under section 3(d).
11
FMSHRC 1896 (Oct. 1989) (“Otis I”) and 11 FMSHRC 1918 (Oct. 1989) (“Otis II”),
aff’d on other grounds, 921 F.2d 1285 (D.C. Cir. 1990). The first inquiry is the degree of “the
independent contractor’s proximity to the extraction process” and whether its work is
“sufficiently related” to that process. Otis I, 11 FMSHRC at 1902. The Commission has
determined a contractor’s activities are sufficiently related to the extraction process when its
employees are exposed to mining hazards and they have “a direct effect on the safety of
others….” Id. Second, the Commission examines “the extent of [the contractor’s] presence at the
mine.” Id. The Commission has articulated that the essence of this test is whether the
contractor’s “contacts with the … mine were not so rare, infrequent and attenuated as to bring
[the] case within the holding of Old Dominion….” Otis II, 11 FMSHRC at 1922-23; see also Joy

39 FMSHRC Page 1232

Technologies Inc., 99 F.3d 991, 999 (10th Cir. 1996) (expressly rejecting the Old
Dominion approach and adopting the broad jurisdictional reach in Otis Elevator); see also Bulk
Transp. Services Inc., 13 FMSHRC 1354, 1357 (Sept. 1991) (broadly construing section 3(d) in
finding that a coal haulage company was a statutory operator that performed an essential service
on mine property).
In applying the Otis Elevator criteria, we first look to the independent contractor’s
proximity and relationship to the extraction process. Thompson Electric’s reliance on
Old Dominion and Maxxim Rebuild to support its apparent assertion that it was insufficiently
connected to the mining process is misplaced. Unlike this case, both Old Dominion and
Maxxim Rebuild concerned activities that either were performed in an area fenced off from the
active mine, or not performed on mine property. As noted, Old Dominion concerned off-site
meter readings at a substation separated from the rest of mine property by a chain link fence. 772
F.2d at 93. Maxxim Rebuild concerned “repairs [of] mining equipment at a site that is neither
adjacent to nor part of a working mine.” 848 F.3d at 737. In finding a lack of Mine Act
jurisdiction, the court in Maxxim Rebuild focused on the statutory definition of a “coal or other
mine,” which, as previously noted, includes “facilities” and “equipment … used in, or to be used
in … the work of preparing coal or other minerals.” Id. at 740 (citing 30 U.S.C. § 802(h)(1)). In
considering the Mine Act’s statutory definitions, the court stated:
… [C]ontext and perspective are everything. In pulling back the lens, we see
several indications that the power of the Mine Safety and Health Administration
extends only to such facilities and equipment if they are in or adjacent to — in
essence part of — a working mine.
Start with what § 802(h)(1) defines: a “coal or other mine.” The term is locational.
And the location concerns mines. Equipment by itself tells us nothing about
where it is. And a facility by itself does not say anything about whether it is
connected to a mine. As the title of the Act (the Federal Mine Safety and Health
Act) and the title of the pertinent agency (the Mine Safety and Health
Administration) suggest, the definition of “coal or other mine” relates to a place
— land and things in or connected to a mine.
Id. (emphasis original). It is significant that, in finding an absence of jurisdiction, the Sixth
Circuit “pulled back the lens” to focus on the off-site location of the subject repairs — a focus
that Thompson Electric seeks to ignore. Thus, similar to the physically isolated location of the
substation in Old Dominion, it was the off-site location of the repairs that served as the basis for
the Sixth Circuit’s finding of an absence of Mine Act jurisdiction.
With regard to the question of the relationship of the electrical services performed by
Thompson Electric to the extraction process, Thompson Electric relies on the Seventh Circuit’s
holding in N. Illinois Steel, which exempted contractors delivering steel on mine property from
Mine Act jurisdiction. 294 F.3d at 844. The Seventh Circuit held that the independent

39 FMSHRC Page 1233

contractor’s delivery services were “so attenuated [from the mining process] as to remove it from
the jurisdiction of MSHA.” Id. at 848. In this regard, the court stated:
… [T]he work performed by the NIS drivers at the mine can only be described as
de minimis. In fact, there is nothing to distinguish NIS’s deliveries of steel from
deliveries by other vendors or parcel delivery companies of supplies to be used by
the miners.
Id. at 849.
In Otis II, the D.C. Circuit found Mine Act jurisdiction over a contractor who had
conceded that it had performed “limited but necessary” service at mines. 921 F.2d at 1290 n.3.
So too, this case concerns the maintenance of heavy mining equipment, specifically a dredge,
which is indispensable to the sand and gravel dredging process. The delivery and offloading of
steel on mine property in N. Illinois Steel clearly is distinguishable from the maintenance of mine
equipment on mine property — activities that are explicitly regulated by Part 56 of the
Secretary’s mandatory safety standards governing metal and nonmetal surface mines. See 30
C.F.R. Part 56.
In this regard, section 56.14105 specifically requires that repairs and maintenance of
electrical equipment may only be performed when power is off and the equipment is blocked. 30
C.F.R. § 56.14105. To exempt on-site contract employees performing maintenance services on
mine equipment from the protective provisions of section 56.14105 makes no sense. Thompson
Electric’s apparent assertion that maintenance on locked-out de-energized equipment is exempt
from Mine Act jurisdiction due to its inoperable status is a distinction without a difference that
must be rejected. Thus, de-energizing equipment prior to maintenance is a requirement of the
safety standards, rather than a basis for an exemption from them.
The remaining criterion of the Otis Elevator test concerns the extent of the contractor’s
presence at the mine. Thompson Electric asserts that its six-day presence at the Sober Mine was
sufficiently infrequent and de minimis to exempt it from Mine Act jurisdiction. Resp. Br., at 413. Moreover, Thompson Electric reportedly has no intention of performing further services at
the Sober Mine site. Resp. Br., at 7; Jt. Stip., at ¶ 19.
Resolving jurisdiction based on the degree of a contractor’s presence at a mine site must
be based on an analysis of the facts as they existed at the time of the issuance of the citations,
rather than a speculative and self-serving estimation by the contractor regarding the extent of its
future activities, or absence thereof, at a mine site. In other words, Thompson Electric cannot
achieve a self-imposed exemption from the Act’s jurisdiction by simply asserting that it will not
return to the Sober Mine. Therefore, Thompson Electric’s presence at the Sober Mine for only
six days is not dispositive of the jurisdictional question.
Both parties agree that summary decision based on their joint stipulations is the
preferable vehicle for resolving the jurisdictional issue. See Sec’y Br., at 7-8; Resp. Br., at 22.
Commission Rule 67(b) provides that a motion for summary decision shall be granted if there is
no genuine issue as to any material fact, and the moving party is entitled to summary decision as
a matter of law. 29 C.F.R. § 2700.67(b); see also Hanson Aggregates New York, Inc., 29

39 FMSHRC Page 1234

FMSHRC 4, 8-9 (Jan. 2007) (citations omitted). Moreover, in determining if a motion for
summary decision should be granted, the court must construe the undisputed material facts in a
light most favorable to the opposing party.1 Hanson, 29 FMSRHC at 9.
Construing the evidence in a light most favorable to Thompson Electric, there are no
outstanding issues of material fact to conclude that the services performed by Thompson Electric
were so attenuated from the dredging process to warrant an exemption from Mine Act
jurisdiction. Rather, Thompson Electric’s performance of maintenance services on mining
equipment on mine property falls squarely within the statutory reach of the Mine Act.
Consequently, as an “independent contractor performing services” at a mine, Thompson Electric
must be considered a statutory “operator” that is subject to the Act’s jurisdiction. See 30
U.S.C. § 802(d).
II.

Part 46 Training Requirements

As a consequence of MSHA’s April 29, 2015, Sober Mine inspection, Thompson Electric
received two citations alleging violations of Part 46: Citation No. 8842396, which alleges a
failure to develop and implement a written plan for new miner training in violation of 30 C.F.R.
§ 46.3(a)2; and 104(g)(1) withdrawal Order No. 8842394, which alleges a failure to provide new
miner training in violation of 30 C.F.R. § 46.5(a)3,4.
In addressing the validity of the alleged violations of Part 46, it is necessary to
differentiate the statutory term “miner” in section 3(g) of the Mine Act from the regulatory term
“miner” in 30 C.F.R. § 46.2(g). Section 3(g) of the Act broadly defines a “miner” as “any
individual working in a coal or other mine.” 30 U.S.C. § 802(g).
1

Thompson Electric is, in essence, the opposing party to the Secretary’s cross-motion for
summary decision on this jurisdictional question.
2

Section 46.3(a) provides:

[Operators] must develop and implement a written plan, approved by [MSHA] under
either paragraph (b) or (c) of this section, that contains effective programs for
training new miners and newly hired experienced miners, training miners for new tasks,
annual refresher training, and site-specific hazard awareness training.
3

Section 46.5(a) provides, in pertinent part:

… [Operators] must provide each new miner with no less than 24 hours of training….
Miners who have not yet received the full 24 hours of new miner training must work
where an experienced miner can observe that the new miner is performing his or her
work in a safe and healthful manner.
4

Section 104(g)(1) of the Mine Act requires the withdrawal from the mine of miners who
have not received the requisite safety training. 30 U.S.C. § 814(g)(1).

39 FMSHRC Page 1235

On the other hand, Part 46 defines a “miner” as follows:
(1) Miner means: (i) Any person, including any operator or supervisor, who works at a
mine and who is engaged in mining operations. This definition includes independent
contractors and employees of independent contractors who are engaged in mining
operations and (ii) Any construction worker who is exposed to hazards of mining
operations.
30 C.F.R. § 46.2(g). However, not every contractor performing services at a mine is subject to
Part 46. In this regard, section 46.2(g)(2) provides:
The definition of “miner” [in Part 46] does not include … maintenance or service
workers who do not work at a mine site for frequent or extended periods.
30 C.F.R. § 46.2(g)(2).
Thus, the Secretary acknowledges, given the section 46.2(g)(2) exemptions, that a
statutory “miner” under section 3(g) of the Mine Act may not be considered a per se “miner” for
the purposes of Part 46. Rather, it is the frequency and extent of a contract employee’s presence
at a mine that determines whether the contract employee is subject to the training requirements
of Part 46.
The parties have stipulated that Thompson Electric’s employees were present at the Sober
Mine to perform electrical maintenance on a dredge for a total of six days: one day in December
2014 and five work days in April 2015. Jt. Stip., at ¶ 9-14. The Secretary does not dispute that
Thompson Electric’s services were limited in scope, in that they only required disconnecting and
re-connecting power to a dredge to allow for its repositioning. Id. at ¶ 6. Consequently,
Thompson Electric argues that its employees’ infrequent and limited presence at the mine
exempts it from Part 46 training requirements. Resp. Br., at 16-20.
Conversely, the Secretary argues that Thompson Electric’s employees spent significant
time at the mine performing work on a dredge that was integral to the extraction process. Sec’y
Supp. Br., at 2 (May 24, 2017). Moreover, the Secretary notes that, had MSHA’s intervention not
triggered a work stoppage, Thompson Electric would have maintained a continuing presence at
the mine for additional time. Id.
In considering the proper interpretation of the “miner” exemption in section 46.2(g)(2), it
is axiomatic that, to the extent that a regulation is silent or ambiguous on a particular point, the
Commission follows the doctrine of deference established in Bowles v. Seminole Rock and Sand
Co., 325 U.S. 410 (1945), and reaffirmed in Auer v. Robbins, 519 U.S. 452 (1997). Under this
doctrine, the promulgating agency’s interpretation of the regulation is entitled to full deference
(referred to as Auer deference) unless the interpretation is unreasonable, plainly erroneous, or
inconsistent with the regulation, or there is reason to suspect it does not reflect the agency’s fair
and considered judgment on the matter. Drilling & Blasting Sys., Inc., 38 FMSHRC 190, 194
(Feb. 2016) (citations omitted).

39 FMSHRC Page 1236

Here, the Secretary’s application of the operative phrase “for frequent or extended
periods” must be consistent with its plain meaning. Determining the appropriateness of the
Secretary’s application of the Part 46 “miner” exemption requires a qualitative and quantitative
analysis. Qualitatively, although the services provided by Thompson Electric were essential, they
were very limited in scope. Quantitatively, the services only required the presence of its
employees for a short period of time. To permit such a limited presence at a mine site to
overcome the exemption in section 46.2(g)(2) would render the exemption meaningless. Here,
the record reflects that Thompson Electric’s employees were present at the mine for a total of six
days. On balance, I do not view as persuasive the Secretary’s argument that a six day presence
(one day in December 2014 and five work days in April 2015) is sufficient to overcome the
explicit exemption promulgated by the Secretary in section 46.2(g)(2), given the limited scope of
the services rendered.
In apparent recognition that the five days spent on reconnecting the dredge may not have
been sufficient to trigger the Part 46 training requirements, the Secretary asserts that Thompson
Electric’s presence at the mine would have been greater had it not abruptly left the mine after
being informed of MSHA’s jurisdiction.5 Sec’y Supp. Br., at 2. However, given the parties’
stipulations, even if finishing the limited task of reconnecting the dredge’s power supply required
Thompson Electric’s additional presence for a short period of time, the limited scope of the
services performed would still exempt Thompson Electric from the Part 46 training
requirements.
I note that although Thompson Electric has been relieved of its obligation to satisfy
Part 46 training requirements, it is still subject to the Secretary’s mandatory safety and health
standards.6 In fact, Thompson Electric requires its employees to tie down when there is a danger
of falling. See Jt. Stip., at ¶ 15. Nevertheless, the Secretary is seeking to impose the burden of
formulation of a Part 46 training plan on a contractor that has a very limited presence at a mine,
despite the Secretary’s own promulgation of the exception in section 46.2(g)(2).

5

The Secretary refers to MSHA’s Program Policy Manual, which states that the term
“extended” presence in section 46.2(g)(2) means more than five consecutive work days.
Resp. Br., at 18 (citing MSHA Program Policy Manual Vol. III, Part 46 at p. 9 (May 16, 1996)).
Although the stipulations reflect that Thompson Electric was not present at the mine for five
consecutive work days (it was absent on April 28, 2015), nevertheless, as the Secretary is aware,
the Commission is not bound by pronouncements contained in MSHA’s policy statements.
Old Ben Coal Co., 2 FMSHRC 2806, 2809 (1980).
6

While I have found that the employees of Thompson Electric are not “miners” as
contemplated by the definition in section 46.2(g), the provisions of 30 C.F.R. § 46.11
nevertheless require that its employees must be provided site-specific hazard awareness training.
Section 46.11 has not been cited by the Secretary in this matter.

39 FMSHRC Page 1237

In view of the above, the record stipulations reflect that Thompson Electric is exempt
from the training requirements of Part 46 as its presence at the Sober Mine was sufficiently
limited in scope and frequency. Accordingly, Citation No. 8842396 and Order No. 8842394
shall be vacated.
III.

Fall Protection Citation

On April 29, 2015, an MSHA inspector observed a Thompson Electric employee failing
to utilize fall protection when he was reaching for a power cable while standing on a dredge
while located approximately 13 feet above the ground. As a consequence, the MSHA inspector
issued Citation No. 8842392 alleging a violation 30 C.F.R. § 56.15005, which requires that
safety belts be worn when there is a danger of falling.
Thompson Electric has stipulated to the fact of the violation of Citation No. 8842392. Jt.
Stip., at ¶ 15. However, the parties’ proffered settlement terms regarding Citation No. 8842392
reduce the degree of negligence attributable to Thompson Electric from “moderate” to “low,”
with a corresponding proposed penalty reduction from $540.00 to $250.00. The parties’
settlement terms seek to maintain the S&S designation. The reduction in negligence and civil
penalty is supported by the parties’ stipulation that the employee who committed the violation
was suspended immediately by Thompson Electric as he had been trained to wear fall protection.
Jt. Stip., at ¶ 15.
The mitigating circumstances noted above support the parties’ proposed reduction in
negligence and civil penalty. Having determined that Thompson Electric is subject to Mine Act
jurisdiction, I conclude that the proffered settlement is appropriate under the statutory penalty
criteria set forth in section 110(i) of the Mine Act.7 Consequently, the parties’ settlement terms
regarding Citation No. 8842392 shall be approved. As previously noted, the parties’ settlement
terms are contingent on final disposition of these matters. Thus, the parties’ have reserved their
right to appeal the jurisdictional question, as well as any adverse finding regarding Part 46
applicability.

7

30 U.S.C. § 820(i) provides:

In assessing civil monetary penalties, 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.

39 FMSHRC Page 1238

ORDER
In view of the above, Thompson Electric, Inc., as an independent contractor performing
services at a mine, is a statutory “operator” as contemplated by section 3(d) of the Mine Act.
Accordingly, IT IS ORDERED, consistent with the parties’ settlement terms, that Thompson
Electric, Inc. PAY, within 40 days of this Order, a $250.00 civil penalty in satisfaction of
Citation No. 8842392.8
IT IS FURTHER ORDERED that Citation No. 8842396 and 104(g)(1) withdrawal
Order No. 8842394, which concern the training provisions of Part 46, ARE VACATED.
IT IS FURTHER ORDERED that upon timely receipt of the $250.00 civil penalty, the
captioned matters ARE DISMISSED.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge

Distribution:
Lisa Cottle, Esq., U.S. Department of Labor, Office of the Solicitor, 1240 East Ninth Street,
Room 881, Cleveland, OH 44199
Keith L. Pryatel, Esq., Kastner Westman & Wilkins, LLC, 3550 West Market Street, Suite 100,
Akron, OH 44333
/acp

8

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. Please include the
Docket No. and A.C. No. noted in the above caption on the check.

39 FMSHRC Page 1239

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
PHONE: (202) 434-9933 | FAX: (202) 434-9949

June 9, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2015-1036
A.C. No. 46-09415-391343

BUNDY AUGER MINING, INC.,
Respondent.

Mine: Lost Flats Highwall Miner

DECISION APPROVING AMENDED SETTLEMENT MOTION
Before: Judge Moran
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”) and is before the Court upon a petition for assessment of a civil
penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977. On May 25,
2017, the Court issued its Decision Denying Settlement Motion and following that, the case was
set for a hearing scheduled to commence on August 29, 2017. On June 1, 2017, the Secretary
filed a Motion for Reconsideration.1 That Motion for Reconsideration included an Amended
Motion for Decision and Order Approving Settlement, which contained significant additional
information in support of the proposed settlement and, as a consequence, the Court is now able to
approve the settlement.2 Motion for Reconsideration at 16-22. However, while the settlement can
now be approved, the Motion continues to include disconcerting assertions which are antithetical
to the Commission’s Congressionally delegated statutory obligation under 30 U.S.C. § 820(k)
and which require additional comment from the Court.
Background
In the Court’s May 25, 2017 Decision Denying Settlement Motion, it was noted that “2
(two) specially assessed alleged violations of the Mine Act [were in issue]. One is a section
104(d)(1) citation, No. 9082933, and the other is a section 104(d)(1) order, No. 9082935. While
the proposed penalty amounts differ, $2,900 in the case of No. 9082933, with a settlement figure
of $2,030, and $3,400 in the case of 9082935, with a settlement figure of $2,380, both reductions
1

As distinct from the e-CMS filing date, the Motion for Reconsideration and the
accompanying Amended Motion for Decision and Order Approving Settlement are dated May
31, 2017.
2

Because this decision approves the Amended Motion, the previously scheduled
hearing is now CANCELLED.

39 FMSHRC Page 1240

amount to the ubiquitous 30% penalty reduction that has appeared in other cases.”3 Decision
Denying Settlement at 1.
The section 104(d)(1) citation, No. 9082933, involved 30 C.F.R. § 77.1004(b), titled
“Ground control; inspection and maintenance; general,” which provides at subsection (b) that
“Overhanging highwalls and banks shall be taken down and other unsafe ground conditions shall
be corrected promptly, or the area shall be posted.” 30 C.F.R. § 77.1104(b). The Court noted that
“[t]he entire text of the 57 words offered as ‘justification’ for the 30% reduction regarding the
(d)(1) Citation, No. 9082933 state[d], ‘Respondent presented evidence that it relied upon the
representations of the owner Operator that it was only required to set the miner back 20 feet in
order to be in compliance with the ground control plan. In consideration of this evidence and the
risks inherent in proceeding to trial, the Secretary agreed to the reduction in penalty.’” Motion at
3.
However, once boilerplate language was removed, the essence of the justification offered
was that the Respondent relied upon the representations of the owner Operator that it was only
required to set the miner back 20 feet in order to be in compliance with the ground control plan.
Id. The Court then explained that the Motion was insufficient because the standard does not
speak at all in such terms. Rather,
[i]t deals only with unsafe ground conditions, requiring that they “shall be
corrected promptly, or the area shall be posted.” 30 C.F.R. § 77.1004(b). The
standard makes no mention of ground control plans [and it] offers nothing to
explain how the claim that Bundy Auger Mining was allegedly told by the “owner
Operator,” that “it was only required to set the miner back 20 feet in order to be in
compliance with the ground control plan,” applies to the requirements of the
standard. [Further, the Motion offered] no explanation of the relationship between
Bundy Auger and the unnamed ‘owner Operator,’ nor how that relationship would
absolve Bundy from compliance with the standard or reduce the amount of its
penalty liability [nor did the Motion explain] the asserted relevance of the claim
that, if the miner was set back 20 feet . . .
Id. at 4-5.
Problems of the same ilk existed for the other matter, the section 104(d)(1) order, No.
9082935. That involved standard 30 C.F.R. § 77.1713(a), titled, “Daily inspection of surface coal
mine; certified person; reports of inspection,” which provides that,
[a]t least once during each working shift, or more often if necessary for safety,
each active working area and each active surface installation shall be examined by
a certified person designated by the operator to conduct such examinations for
hazardous conditions and any hazardous conditions noted during such

3

The originally assessed total amount was $6,300.00, and the proposed settlement total is
for $4,410.00.

39 FMSHRC Page 1241

examinations shall be reported to the operator and shall be corrected by the
operator.
30 C.F.R. § 77.1713(a).
The Order alleged that “[t]he operator failed to conduct an adequate on-shift examination
to identify hazardous conditions in the active working area at the Taylor Highwall Mine, Pit
#001.” Decision Denying Settlement Motion at 5.
As set forth in more detail in the Decision Denying Settlement Motion, effectively only
17 words were offered to support the penalty reduction and those words were simply an echo of
the justification presented for the other matter, Citation No. 9082933. As the Court noted, the
justification was empty, being “devoid of any meritorious explanation for the proposed
reduction.” Id. at n.3.
The Secretary’s Motion for Reconsideration
In conjunction with the Secretary’s “Motion for Reconsideration,” (“Reconsideration”)
the Secretary provided an “Amended Settlement Motion with additional factual support.”
(“Amended Motion”). Reconsideration at 1 (emphasis added).
Near the end of its lengthy resubmission, most of which is a regurgitation of material
previously submitted, the Secretary finally offers in its Amended Motion for Citation No.
9082933 that
[t]he subject violations were issued in the course of a technical compliance
investigation of the Ground Control Plan submitted on March 9, 2015 for the
Moran Coal Company’s4 Taylor Highwall Mine owned by ARJ Construction Co.
("owner Operator"). Bundy Auger is the independent contractor retained by ARJ
to mine the Taylor Highwall. ARJ was also issued citation No. 9082934 and
Order No. 9082936 for violations of the same standard. Those violations were
accepted as issued. In reaching this settlement, the Secretary considered evidence
gathered during a related 110(c) investigation that revealed that when similar
over-steepened spoils were cited on March 26, 2015, Bundy Auger's foreman was
instructed by the owner-operator that the only remedial effort required was
moving the miner 20 feet back from the highwall. Respondent presented evidence
that its agents were never instructed to develop or maintain berms along the base
of the low wall. In addition, the contracting agreement between ARJ and Bundy
4

There is no “Moran Coal Company.” The Secretary acknowledged this in an email
response to the Court’s inquiry about this, advising, “References to Moran Coal were made in
error. The Taylor Highwall Mine (ID No. 1800794) is owned by ARJ Construction. The related
violations which were issued to ARJ, copies of which are attached, were not contested and
accepted as issued. Citation 9082934 was assessed a penalty of $5,200 and Order 9082936 was
assessed a penalty of $6,100. Both penalties have been paid in full.” June 6, 2017 email to the
Court from Solicitor’s Office Attorney Helga Spencer

39 FMSHRC Page 1242

provided that the responsibility of maintaining the pit rested solely with ARJ.
After the miner was relocated, Bundy auger resumed mining of the highwall as it
understood that this had been approved by MSHA per representations made by
agents of the owner-operator. The Operator contends, and the issuing Inspector
does not dispute that there was probable confusion concerning Bundy's
understanding of what was required of it after similar conditions were cited by
him on March 26.The evidence presented tended to indicate that Bundy Auger's
agents were acting in good faith and with the understanding, albeit mistaken, that
its actions were in compliance with MSHA and Inspector Jones' instructions.
Therefore, the Secretary believes Respondent's negligence, while high was
somewhat less than originally assessed and that the reduction of the assessed
penalty in this particular case is consistent with his enforcement responsibility
under the Mine Act.
Amended Motion at 4-5 (emphasis added).
The Amended Motion also provided, with regard to Order No. 9082935, that
[e]vidence presented by Respondent and gathered during the course of MSHA's
investigation indicate that in the week preceding the issuance of the subject
violations, Bundy Auger's foreman had been conducting the requisite
examinations and recording conditions in the pit, including instances of oversteepened spoils. Respondent presented evidence indicating, however, that it did
not have the authority or the equipment necessary to lower the height of the low
wall or expand the width of the pit and that such authority rested solely with ARJ.
Additionally, the evidence presented indicated Bundy Auger's agents were acting
in good faith and with the understanding that its actions were in compliance with
MSHA and Inspector Jones' instructions. Therefore, the Secretary believes that
the reduction of the assessed penalty in this particular case is consistent with his
enforcement responsibility under the Mine Act.
Amended Motion at 6-7.
Accordingly, with this new submission, the Secretary now has provided facts sufficient to
support the proposed penalty reduction and on that basis, the settlement is now approved.
However, more must be expressed about persistent disconcerting elements in the amended
settlement motion.
Although this Court has already provided in a number of its previous orders denying
insufficiently supported settlements several examples from the Secretary’s own submissions
which contain the kind of facts needed in order to justify penalty reductions for proposed
settlements, by the Amended Motion in this very case, the Secretary has again demonstrated that
he fully knows how to provide the kind of supporting information required for the Commission
to perform its statutory responsibilities under section 110(k) of the Mine Act and that it is neither
burdensome nor difficult to provide this information.

39 FMSHRC Page 1243

Yet, before ultimately providing the needed supporting information, and then only in the
context of its Amended Motion, the Secretary begins once again with his new formulation,
which is an undisguised attempt to avoid presenting violation-related facts to support the reduced
penalties.
Thus, the Secretary now routinely offers up, in place of useful information, the following
language:
In reaching the settlement, the Solicitor's Office reviewed Citations, the
inspector's notes, and discussed at length, with the issuing inspector and other
MSHA personnel, the positions between the parties during the course of
negotiations. . . . In this case, the mine operator and the Secretary reached a
compromise to resolve a docket of 2 contested violations and proposed the terms
of the settlement agreement in a motion to the Court. [with the motion often
adding that] [u]nder the proposed settlement, [mine operator’s name inserted
here] agreed to accept the violations as issued by the MSHA inspector, including
the levels of gravity and negligence alleged [and the operator] also agreed to pay
[some percentage of the original] penalty proposed by MSHA. . . . In reaching this
settlement, the Secretary has evaluated the value of the compromise, the
likelihood of obtaining a better settlement, and the prospects of coming out better
or worse after a trial. In deciding that such a compromise is appropriate, the
Secretary has not given weight to the costs of going to trial as compared to the
possible monetary results that would flow from securing a higher penalty total. He
has, however, considered the fact that he is maximizing his prosecutorial impact
in settling this case on appropriate terms and in litigating other cases in which
settlement is not appropriate. The Secretary believes that maximizing his
prosecutorial impact in such a manner serves a valid enforcement purpose. Even
if the Secretary were to substantially prevail at trial, and to obtain a monetary
judgment similar to or even exceeding the amount of the settlement, it would not
necessarily be a better outcome from the enforcement perspective than the
settlement, in which all alleged violations are resolved and violations that are
accepted can be used as a basis for future enforcement actions. A resolution of
this matter in which all violations are resolved is of significant value to the
Secretary and advances the purposes of the Act. Thus, the Secretary requests that
Court (sic) to reconsider rejection of the proposed settlement agreement.
Reconsideration at 2-3.
It must therefore be directly called out that what is going on here is a power struggle. As
the language quoted above now appears routinely in the Secretary’s settlement motions, it was
not created by some maverick attorney within the Solicitor’s Office but rather obviously
originated at some higher level. But this is not a power struggle over some ambiguous provision
of the Mine Act, the language for which it can be claimed equally by the Commission and the
Secretary of Labor as containing unclear or indefinite terms. Rather, the terms of section 110(k)
could not be more clear, providing, without ambiguity on the subject of “Compromise,
mitigation, and settlement of penalty,” that “[n]o proposed penalty which has been contested

39 FMSHRC Page 1244

before the Commission under section 815(a) of this title shall be compromised, mitigated, or
settled except with the approval of the Commission.” 30 U.S.C. § 820(k) (emphasis added).
Although the words in the provision could not be clearer, the legislative history also confirms the
statutory terms and the Commission has made note of this fact in its decisions on this issue. Yet,
the Secretary has treated the words in that Congressionally-expressed legislative history as “old,”
as if they had an expiration date. It should also be noted that one will not find the words “The
Secretary” anywhere in section 110(k) and Congress certainly knew how to refer to the
“Secretary of Labor” when it wanted to, as it defined “Secretary” in the Mine Act to mean the
“Secretary of Labor” and then proceeded to refer to the Secretary of Labor hundreds of times in
that Act, but with no such reference to the Secretary in section 110(k).
As the Court noted in its May 2, 2017 Order Denying Settlement Motion
in the larger picture, if this formulation were to be accepted by the Court, apart
from the failure to meet 110(k)’s language, every case the Secretary submitted for
settlement hereafter could adopt essentially the same language presented here. In
that way, though it failed to prevail before this Court, and then failed again before
the Commission and, effectively, failed for a third time, after he decided to
withdraw his appeal before the United States Court of Appeals for the District of
Columbia of those prior denials, this non-factually based language in his present
motion, if accepted, would enable the Secretary to achieve his original goal of
unfettered, unreviewable settlement offerings before the Commission.
Order Denying Settlement at 6-7.
Emphasis about this point was made in the Court’s May 19, 2017 Order Denying
Secretary’s Motion to Certify May 2, 2017 Order for Interlocutory Review, in The American
Coal Company (“Interloc Denial”) where it was observed that if the Secretary’s position were
accepted that
[b]ased on the calculations above of litigation risk, a 30 percent reduction is
reasonable from the Secretary's perspective in exchange for a guarantee that none
of the violations will be set aside or modified.… Because the violations are all
being admitted, an across-the-board reduction in penalties is reasonable,” then “all
dockets for which all violations are admitted, could form the justification for a
30% reduction. But that is not all. As just mentioned, applying the same
reasoning, if the principle were to be accepted, it could be applied to justify any
other across-the-board percentage figure that the Secretary tossed out.
2017 WL 2306332 at *5 (emphasis omitted).
Restated, the Court also noted that
if the Secretary’s expression was deemed sufficient here, then in future cases, the
Commission could not logically assert any section 110(k) considerations where all
violations were admitted. Such a result would effectively neuter the

39 FMSHRC Page 1245

Commission’s review authority under section 110(k). Beyond ignoring the plain
language of that section, the Commission could not reasonably object to a higher
percentage reduction. Accordingly, if the Secretary’s position were adopted, a 40
or 50 percent reduction, or more, would also fit within the Secretary’s authority.
Id. (emphasis omitted).
WHEREFORE, with the above-described chronic problems identified, the amended
motion for approval of settlement having provided legitimate factual grounds in support of the
reduced penalties, the Motion is now hereby GRANTED.
Within 30 days of the date of this Order, Respondent shall send a check in the amount of
$4,410 made payable to "U.S. Department of Labor/MSHA", to P.O. Box 790390, St. Louis, MO
63179-0390. Upon receipt of payment, the case is dismissed.
SO ORDERED.

/s/ William B. Moran
William B. Moran
Administrative Law Judge

Distribution:
Joseph G. Jacobs, Bundy Auger Mining, Inc., PO BOX 249, Stanville, KY 41569
Helga P. Spencer, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 170 S.
Independence Mall West, Suite 700 East, Philadelphia, PA 19106-3306

39 FMSHRC Page 1246

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

June 15, 2017
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 2009-0035
A.C. No. 11-02752-164722

v.
THE AMERICAN COAL COMPANY,
Respondent

Mine: Galatia Mine

DECISION AND ORDER ON REMAND
Appearances:

Travis W. Gosselin, Esq., Office of the Solicitor, U.S. Department of
Labor, Chicago, Illinois, for Petitioner
Jason W. Hardin, Esq., & Mark E. Kittrell, Esq., Salt Lake City, Utah, for
Respondent

Before:

Judge McCarthy

This case is before me upon a Petition for the Assessment of Civil Penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d) (“the Mine Act”
or “the Act”). This docket involves two section 104(d)(2) orders issued to Respondent, American
Coal Company (“Respondent”), for violations of 30 C.F.R. § 75.400 at Respondent’s Galatia
Mine.1 For both Order No. 7490584 and Order No. 7490599, the Petitioner proposed the
assessment of “flagrant” penalties under the “repeated failure” provision of section 110(b)(2) of
the Act.

1

30 C.F.R. § 75.400 governs accumulations of combustible materials in underground
coal mines. The regulation provides that “coal dust, including float coal dust deposited on rockdusted surfaces, and other combustible materials, shall be cleaned up immediately and not be
permitted to accumulate in active workings, or on diesel-powered and electrical equipment
therein.”

39 FMSHRC Page 1247

I. STATEMENT OF THE CASE ON REMAND
A hearing was held in Henderson, Kentucky on August 23-24, 2011. During the hearing,
the parties offered testimony and documentary evidence.2 Witnesses were sequestered. I issued
my initial Decision and Order on July 30, 2013. American Coal Co., 35 FMSHRC 2208
(July 2013) (ALJ).3 For Order No. 7490584, I affirmed the Secretary’s significant and substantial
(S&S), unwarrantable failure, and flagrant designations. Id. at 2226-30, 2240-41, 2264-65. I
modified Order No. 7490584 to reduce the likelihood of injury or illness from “highly likely” to
“reasonably likely,” and to reduce the injury that could reasonably be expected to occur from
“fatal” to “lost workdays or restricted duty.” Id. at 2226-30. I assessed a civil penalty of
$101,475. Id. at 2266-68. For Order No. 7490599, I also affirmed the Secretary’s S&S,
unwarrantable failure, and flagrant designations. Id. at 2230-31, 2240-41, 2264-65. I modified
Order No. 7490599 to reduce the level of negligence from “high” to “moderate” and to reduce
the likelihood of injury or illness from “highly likely” to “reasonably likely.” Id. at 2230-31,
2241. I assessed a civil penalty of $77,737. Id. at 2266-68.
Both the Secretary and Respondent filed Petitions for Discretionary Review, which the
Commission granted on September 4, 2013. The parties submitted briefs, and the Commission
held an open meeting on June 3, 2015. The Commission issued its decision on August 30, 2016.
American Coal Co., 38 FMSHRC 2062 (Aug. 2016).
The Commission affirmed all of my holdings regarding Order No. 7490584. For Order
No. 7490599, the Commission affirmed my gravity and unwarrantable failure findings, and
vacated, in part, my determinations regarding both Respondent’s negligence and the Secretary’s
flagrant designation. Specifically, then-Chairman Jordan, Commissioner Nakamura, and
Commissioner Cohen found that substantial evidence supported my determination that the
accumulations presented a smoke hazard that could reasonably be expected to cause death or
serious bodily injury. Id. at 2078-29. Commissioner Young disagreed, and, joined by
Commissioner Althen, wrote separately to recommend that that issue be remanded to me for
further findings of fact in the first instance. Id. at 2079 n.22. Commissioners Young and Cohen
also found that my determination regarding Respondent’s knowledge of the accumulations cited
in Order No. 7490599 was not supported by substantial evidence. Id. at 2080. Commissioner
Althen joined in that finding, but wrote separately to argue that section 110(b)(2) requires actual
knowledge, and not merely constructive knowledge. Id. at 2081 n.27; see infra pp. 19-20. ThenChairman Jordan and Commissioner Nakamura dissented from the majority on the issue of
Respondent’s knowledge, and wrote separately to affirm my finding that Respondent had
2

In this decision, “Tr.I-#” and “Tr. II-#” refer to the first and second volumes of hearing
transcripts, “P. Ex. #” refers to the Petitioner’s exhibits, and “R. Ex. #” refers to the
Respondent’s exhibits. Petitioner’s Exhibit Nos. 1-31 and Respondent’s Exhibit Nos. 1-43 were
received into evidence at the hearing.
3

This docket was stayed during the Commission’s interlocutory review of Wolf Run
Mining Co., in which the Commission considered whether an operator’s past violation history
can be used to support allegations of “repeated” flagrant violations under section 110(b)(2).
American Coal Co., 35 FMSHRC at 2209; see also Wolf Run Mining Co., 35 FMSHRC 536
(Mar. 2013).

39 FMSHRC Page 1248

knowledge of the cited accumulations. 38 FMSHRC at 2080 n.25. Although Commissioner
Cohen concurred with all parts of the majority opinion, he wrote separately to state his view
concerning the broad interpretation of section 110(b)(2). Commissioner Young joined this
concurring opinion. 38 FMSHRC at 2086.
In sum, a majority of the Commission remanded this docket to me for further
consideration of three issues: (1) whether the Secretary established that Order No. 7490599 was
a flagrant violation; (2) the level of Respondent’s negligence in connection with the violation;
and, if necessary, (3) reassessment of the civil penalty in accordance with my findings on
remand. American Coal Co., 38 FMSHRC at 2085 (Jordan, Chairman; Cohen, Young,
Nakamura, Althen, Comm’rs). After reconsideration of these issues on remand, I affirm the
Secretary’s original high negligence and flagrant designations for Order No. 7490599. I assess a
civil penalty of $112,380.
II. PRINCIPLES OF LAW
A. “Repeated Flagrant” Designations under Section 110(b)(2) of the Act
Section 110(b)(2) of the Mine Act provides:
Violations under this section that are deemed to be flagrant may be assessed a
civil penalty of not more than $220,000. For purposes of the preceding sentence,
the term “flagrant” with respect to a violation means a reckless or repeated failure
to make reasonable efforts to eliminate a known violation of a mandatory health
or safety standard that substantially and proximately caused, or reasonably could
have been expected to cause, death or serious bodily injury.
30 U.S.C. § 820(b)(2).4 In light of the statutory language, the Commission has determined that
there are five elements the Secretary must establish to uphold a flagrant designation: (1) there
was a condition that constituted a violation of a mandatory health or safety standard; (2) the
violation was “known” by the operator; (3) the violation either (a) substantially caused death or
serious bodily injury, or (b) reasonably could have been expected to cause death or serious
bodily injury; (4) there was a failure on the part of the operator to make reasonable efforts to
eliminate the violation; and (5) that failure was either “reckless” or “repeated.” American Coal,

4

Section 110(b)(2) was added to the Mine Act with the passage of the Mine
Improvement and New Emergency Response Act of 2006 (the MINER Act), which Congress
passed on August 17, 2006, following the Aracoma and Sago mine disasters. Mine Improvement
& New Emergency Response Act of 2006, Pub. L. No. 109-236, sec. 8(a)(2), § 110(b)(2), 120
Stat. 493, 501 (June 15, 2006).

39 FMSHRC Page 1249

38 FMSHRC at 2066.5 Thus, all violations designated as flagrant fall into one of two categories:
they are either “reckless” flagrant violations, or “repeated” flagrant violations. In the instant
case, the Secretary alleged that Order No. 7490599 was a “repeated” flagrant violation, rather
than a “reckless” flagrant violation.
The Commission has recognized that the Secretary can prove repeated flagrant violations
under either a “broad” or a “narrow” interpretation of section 110(b)(2). The Commission has
described “broad” repeated flagrant violations as “recurrent-type violation[s].” Wolf Run Mining
Co., 35 FMSHRC at 543 n.15. Under the broad interpretation, the Secretary may introduce an
operator’s history of violations to show that the alleged violation was “repeated.” The Secretary
therefore establishes a “broad” repeated flagrant violation where he shows that the operator
“failed to make reasonable efforts to eliminate at least one previous known violation that
substantially and proximately caused, or reasonably could have been expected to cause, death or
serious bodily injury, prior to failing to make reasonable efforts to eliminate the known violation
alleged to be flagrant.” 35 FMSHRC at 2248.
At hearing in the instant matter, the Secretary argued that both Order No. 7490584 and
Order No. 7490599 were repeated flagrant violations by virtue of Respondent’s past history of
similar section 75.400 violations. 35 FMSHRC at 2254-55. In essence, the Secretary adopted the
broadest possible interpretation of section 110(b)(2), taking the position that the mere existence
of one or more prior similar violations may be sufficient to support a flagrant designation under
the broad interpretation of “repeated.” 35 FMSHRC at 2247. I noted that in addition to
advancing “constantly evolving interpretations of section 110(b)(2) in litigation before the
Commission and its judges,” the Secretary failed to engage in substantive notice and comment
rulemaking regarding the flagrant provision’s meaning. I therefore declined to defer to the
Secretary’s interpretation.6 35 FMSHRC at 2253-58; see also Chevron U.S.A., Inc. v. Nat. Res.
Def. Council, 467 U.S. 837 (1984); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945).
Although the Commission’s decision in Wolf Run established that an operator’s history of
violations is relevant to proving a “repeated” flagrant violation, the precise contours of the broad
interpretation remain unsettled. See 38 FMSHRC at 2100 n.4 (Comm’r Althen, dissenting); see,
e.g., Blue Diamond Coal Co., 36 FMSHRC 541, 550 (Feb. 2014) (ALJ) (“[T]he narrow,
5

In my initial Decision and Order, I found that the Secretary must prove the following
elements in order to establish a repeated flagrant violation: (1) a repeated failure, (2) to make
reasonable efforts to eliminate, (3) a known violation of a mandatory health or safety standard,
(4) that substantially and proximately caused or reasonably could have been expected to cause,
(5) death or serious injury. 35 FMSHRC at 2258 (citing Wolf Run Mining Co., 35 FMSHRC 734,
735 (Mar. 2013) (ALJ); Wolf Run Mining Co., 34 FMSHRC 337, 345 (Jan. 2012) (ALJ);
Stillhouse Mining LLC, 33 FMSHRC 778, 802 (Mar. 2011) (ALJ)).
6

In their concurring opinion, Commissioners Cohen and Young also declined to extend
Chevron deference to the Secretary’s broad interpretation of section 110(b)(2). They found that
the Secretary’s formulation “offered no principled basis for making the determination” regarding
whether and when a prior violation would be sufficient to support a finding that a subsequent
violation amounted to a repeated flagrant violation. They thus concluded that the Secretary’s
formulation “lacks practical utility for Commission judges.” 38 FMSHRC at 2087-88.

39 FMSHRC Page 1250

interlocutory nature of the Commission’s Wolf Run decision leaves open the level of similarity
and or pervasiveness necessary for past conduct to prove a present violation as a repeated failure
under section 110(b)(2) of the Mine Act.”). I determined in my initial Decision and Order that
the broad interpretation requires the Secretary to show that the prior violation or violations
introduced as part of an operator’s past violation history must have been “known” to the operator
and either killed or seriously injured a miner, or reasonably could have been expected to kill or
seriously injure a miner. 35 FMSHRC at 2248-49. I suggested that the Secretary could
demonstrate an operator’s knowledge of a prior violation through “a high negligence stipulation
or proof of knowledge in the unwarrantable failure analysis.” Id. at 2249. Likewise, the Secretary
could demonstrate the requisite gravity by showing that a prior violation was designated as
“permanently disabling” or “fatal,” i.e., the violation reasonably could have been expected to
cause death or serious bodily injury. Id.
The majority of the Commission, perhaps failing to reach a consensus, did not address the
approach to the broad interpretation that I detailed in my initial Decision and Order. Instead, the
majority directed that I fashion my own broad interpretation “which permits the Secretary to
establish a violation as flagrant by taking the operator’s history of previous accumulations
violations into account.” 38 FMSHRC at 2082. Although the Commission majority declined to
provide guidance relating to the broad interpretation, three Commissioners wrote separately to
provide their views on the broad interpretation. Commissioner Cohen, joined in his concurring
opinion by Commissioner Young, recognized that “the essence of a repeated violation is a
condition which threatens miners with serious bodily injury or death and which has been ignored
or disregarded often enough to demonstrate intolerable irresponsibility.” 38 FMSHRC at 2087
(Cohen & Young, Commr’s, concurring). Commissioners Cohen and Young found my
characterization of the broad interpretation to be too narrow, and disagreed that the Secretary
must prove the knowledge element for each prior citation or order introduced into the record to
support the flagrant designation at issue. Id. Thus, “while a mere listing of violations of the same
standard may be insufficient to establish repetition, evidence of a large number of substantially
similar violations arising from general practices or neglect, or a smaller number of violations that
may be shown to share a common cause that was known and disregarded, may meet the statutory
criteria.” Id.
Although Commissioners Jordan and Nakamura did not directly address the broad
interpretation, they stated that they nevertheless felt “constrained to comment on the substance of
[Commissioner Cohen’s and Commissioner Young’s] suggested approach” because it “raises as
many questions as it strives to answer.” Id. at 2095 (Chairman, Jordan and Comm’r, Nakamura,
concurring and dissenting). They noted, for example, that their colleagues’ guidance did not
clearly delineate how the Secretary would prove that prior violations amounted to a “known
pattern” or were “substantially similar” to the subsequent violation, and they wondered whether
the Secretary would be compelled to produce specific evidence on all of the prior violations. In
other words, they seemed skeptical of an approach that would require the Secretary to litigate
aspects of prior violations. Despite this apparent skepticism, Chairman Jordan and Commissioner
Nakamura did not explicitly opine on whether a known history of similar violations, without
more, could be enough to support a repeated flagrant finding. Id. at 2096.

39 FMSHRC Page 1251

Then-Commissioner Althen (now Acting Chairman Althen) also addressed the broad
interpretation in his concurring and dissenting opinion.7 He made two arguments: first, the plain
language of section 110(b)(2) refers to a single, specific violation, id. at 2108-09 (Althen,
Comm’r, concurring in part and dissenting in part); and second, the practical application of the
Commission’s interpretation of section 110(b)(2), as presented in its Wolf Run decision, raises
insurmountable procedural concerns relating to fair notice and due process. Id. at 2111-12. As a
result, Commissioner Althen concluded that an operator’s history of prior violations is not
relevant to a flagrant determination, and only single, continuing violations may be designated as
flagrant. Id. at 2108.
Commissioner Althen argues first that the plain language of section 110(b)(2) refers to “a
single, specific violation—“a known violation.”” Id. at 2108. This plain language construction is
supported by “the uniqueness of a flagrant violation” in the Mine Act’s enforcement scheme:
Congress has established a scheme of “increasingly severe sanctions for
increasingly serious violations of operator behavior.” At the far end, those
progressive sanctions apply to violations resulting from [the] highest levels of
negligence—that is, gross negligence or reckless disregard (unwarrantable
failures) and violations that could contribute significantly and substantially to the
likelihood of serious injuries (S&S violations). For unwarrantable failure
violations, the progressive discipline culminates in a difficult to break chain of
withdrawal orders under section 104(d). For S&S violations, the progressive
discipline culminates in a perhaps more difficult to break chain of withdrawal
orders under section 104(e). Such violations carry a maximum civil penalty of
slightly less than $70,000.
38 FMSHRC at 2101 (internal citations omitted).
Recognizing that the MINER Act was passed in direct response to serious mine disasters,
Commissioner Althen argues that section 110(b)(2) was enacted to “penalize severely any
violations where operator conduct goes substantially beyond violations previously established in
the Mine Act.” Id. at 2105. Thus, the gravity aspect for flagrant violations (death or serious
bodily injury) goes beyond the gravity required for S&S violations (reasonably likely to result in
a reasonably serious injury). Id. at 2105. Likewise, “[a] flagrant violation . . . goes beyond the
level of extreme negligence or reckless disregard already dealt with as unwarrantable failures
and the requirement of reasonable expectation of death or serious bodily injury essentially
reaches the gravity level necessary for an imminent danger.” Id. at 2105. Commissioner Althen
recognizes that “clearly, a uniquely violative circumstance is at the heart of a ‘flagrant’
violation[:] … failing repeatedly to correct a specific violation of which the operator has
knowledge and is so serious that it creates a reasonable expectation of death or serious injury.”
Id. at 2109. Commissioner Althen therefore argues that allowing the use of an operator’s history
of violations renders section 110(b)(2) a duplicative enforcement mechanism to those contained
in sections 104(e) and 110(b)(1), both of which deal with an operator’s failure to abate already7

Acting Chairman Althen did not join the Commission until August of 2013, and
therefore did not participate in the Commission’s Wolf Run decision. 35 FMSHRC 536 (Mar.
2013).

39 FMSHRC Page 1252

cited conditions.8 Unlike section 104(e) and section 110(b)(1), Commissioner Althen argues that
the plain language of section 110(b)(2) does not require that the “known violation” must be a
violation which has already been cited. 38 FMSHRC at 2110 n.9 (Althen, Comm’r, concurring
and dissenting). Thus, when viewed as part of the Mine Act’s progressively severe enforcement
scheme, the plain language of Section 110(b)(2) does not permit the consideration of an
operator’s past violation history, in Commissioner Althen’s view.
While Commissioner Cohen and Commissioner Young argue that an operator’s history of
violations may be introduced to show a pattern of neglect or a common, disregarded cause of
similar violations, Commissioner Althen recognizes that using an operator’s history of violations
for this purpose presents concerns regarding fair notice and due process. As the Commission has
acknowledged, its broad interpretation of section 110(b)(2) provides no notice to operators
regarding the “number, type, or similarity of prior violations that would be necessary for prior
violations to sustain a flagrant penalty.” Id. at 2111. Commissioner Althen also observed (as I
did in my initial Decision and Order) that
a new violation could only “repeat” a prior violation if such prior violation and
the new violation share the same fundamental elements. Here, that means that in
the prior violation the operator (1) failed to eliminate a known violation that (2)
could reasonably be expected to cause death or serious injury. . . . [T]he vast
majority of prior violations do not demonstrate either that the operator had
8

Section 104(e)(1) provides:

If an operator has a pattern of violations of mandatory health or safety standards
in the coal or other mine which are of such nature as could have significantly and
substantially contributed to the cause and effect of coal or other mine health or
safety hazards, he shall be given written notice that such pattern exists. If, upon
any inspection within 90 days after the issuance of such notice, an authorized
representative of the Secretary finds any violation of a mandatory health or safety
standard which could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard, the authorized representative
shall issue an order requiring the operator to cause all persons in the area affected
by such violation, except those persons referred to in subsection (c) of this
section, to be withdrawn from, and to be prohibited from entering, such area until
an authorized representative of the Secretary determines that such violation has
been abated.
30 U.S.C. § 814(e)(1). Section 110(b)(1) provides:
Any operator who fails to correct a violation for which a citation has been issued
under section 814(a) of this title within the period permitted for its correction may
be assessed a civil penalty of not more than $7,500 for each day during which
such failure or violation continues.
30 U.S.C. § 820(b)(1).

39 FMSHRC Page 1253

knowledge of the violation or that the prior violation created a reasonable
expectation of death or serious bodily injury.
Id. at 2114; see also 35 FMSHRC at 2249. As Commissioner Althen argues, the mere occurrence
of a prior violation, “standing alone,” does not demonstrate the requisite negligence and gravity
elements required for a flagrant violation, i.e., an S&S violation need not necessarily be expected
to cause “death or serious bodily injury,” and an unwarrantable failure designation does not
necessarily require that the violation was “known” to the operator. See 38 FMSHRC at 2115.
Consequently, the “vast majority of prior violations do not demonstrate either that the operator
had knowledge of the violation or that the prior violation created a reasonable expectation of
death or serious bodily injury.” Id. at 2114. Commissioner Althen therefore concludes that “the
clear purpose of section 110(b)(2) is to incentivize operators strongly to eliminate known
violations reasonably expected to cause serious injury without waiting for an inspector to
discover the violative condition.” Id. at 2110.
I find Commissioner Althen’s reasoning to be clear, sensible, and highly persuasive. He
additionally noted that Judge Barbour and Judge Feldman have also persuasively explained that
“the plain statutory language in section 110(b)(2) with respect to ‘repeated conduct’ refers to a
single known violation, rather than a series of recurring violations.” Id. at 2109 (citing Conshor
Mining, LLC, 33 FMSHRC 2917, 2927-28 (Nov. 2011) (ALJ Feldman)); see also Wolf Run
Mining Co., 34 FMSHRC 337, 346 (Jan. 2012) (ALJ Barbour), rev’d, 35 FMSHRC 536 (Mar.
2013). After reconsideration of this issue, and after considering the Commissioners’ separate
comments on the broad interpretation, including several Commissioners’ rejection of my efforts
to fashion a broad interpretation consistent with the statutory language of section 110(b)(2) after
Wolf Run, I decline to address the broad interpretation.9
As an alternative to the “broad” interpretation, the Commission adopted my
characterization of the second approach to establishing repeated flagrant violations as the
“narrow” interpretation of section 110(b)(2). Under that interpretation, the Secretary is
required to show that the cited and assessed violation, discreetly [sic] and without
reference to the operator’s past violation history . . . was a single, continuing
violation serious in nature that the operator could or should have become aware of
at some point, i.e. known, such that it had multiple opportunities to address the
condition, but did not avail itself of those opportunities (repeated failure to take
reasonable steps to eliminate).
American Coal Co., 38 FMSHRC 2063, 2065 (Aug. 2016); see also Wolf Run Mining Co.,
35 FMSHRC 536, 543 n.14 (Mar. 2013). In other words, the broad interpretation involves
multiple, separate instances of recurring violations, whereas the narrow interpretation involves
only a single, ongoing violation.

9

If I were writing on a clean slate, I would be inclined to concur with the well-reasoned
opinions of Commissioner Althen, Judge Feldman, and Judge Barbour that a series of separate,
recurring violations should not constitute the basis for a finding of a repeated flagrant violation.

39 FMSHRC Page 1254

B. Negligence Principles
Negligence is not defined in the Mine Act. The Commission has found that “[e]ach
mandatory standard thus carries with it an accompanying duty of care to avoid violations of the
standard, and an operator’s failure to satisfy the appropriate duty can lead to a finding of
negligence if a violation of the standard occurred.” A.H. Smith Stone Co., 5 FMSHRC 13, 15
(Jan. 1983) (citations omitted). In determining whether an operator meets its duty of care under
the cited standard, the Commission considers what actions would have been taken under the
same or similar circumstances by a reasonably prudent person familiar with the mining industry,
the relevant facts, and the protective purpose of the regulation. See generally U.S. Steel Corp.,
6 FMSHRC 1908, 1910 (Aug. 1984); see also Jim Walter Res., Inc., 36 FMSHRC 1972, 1975-77
(Aug. 2014) (requiring Secretary to show that operator failed to take specific action required by
the standard violated); Spartan Mining Co., 30 FMSHRC 669, 708 (Aug. 2008) (negligence
inquiry is circumscribed by the scope of duties imposed by the regulation violated). In this
regard, the gravamen of high negligence is “an aggravated lack of care that is more than ordinary
negligence.” Brody Mining, LLC, 37 FMSHRC 1687, 1701 (Aug. 2015) (citing Topper Coal Co.,
20 FMSHRC 344, 350 (Apr. 1998)).
Commission judges are not required to apply the level-of-negligence definitions in the
Part 100 penalty regulations and may evaluate negligence from the starting point of a traditional
negligence analysis rather than from the Part 100 definitions. Brody Mining, 37 FMSHRC at
1701; accord Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1263-64 (D.C. Cir. 2016).
Thus, in making a negligence determination, a Commission judge is not limited to an evaluation
of alleged mitigating circumstances, but may consider the totality of the circumstances
holistically. Under such an analysis, an operator is negligent if it fails to meet the requisite high
standard of care under the Mine Act. Brody Mining, 37 FMSHRC at 1701.
C. Penalty Assessment Principles
Under the Mine Act’s bifurcated penalty assessment process, the Secretary initially
proposes a penalty. 30 U.S.C. § 815(a). The operator has the right to contest the Secretary’s
proposed penalty assessment. Id. This contest results in a penalty proceeding before the
Commission. There is no requirement in the Mine Act or its regulations mandating that the
Secretary explain the basis for his proposed penalty when he makes the discretionary decision to
specially assess a penalty. 30 C.F.R. § 100.5.
An Administrative Law Judge has the independent authority to assess all penalties.
30 U.S.C. § 820(i). In so doing, he or she must consider the six statutory criteria set forth in
section 110(i) and the deterrent purpose of the Mine Act. The six statutory criteria are: 1) the
operator’s history of previous violations; 2) the appropriateness of the penalty to the size of the
business; 3) the operator’s negligence; 4) the operator’s ability to stay in business; 5) the gravity
of the violation; and 6) any good-faith compliance after notice of the violation. See e.g., Douglas
R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000); 30 U.S.C. § 820(i). Equal weight
need not be given to each criterion. Spartan Mining, 30 FMSHRC at 723.
Commission Judges are not bound by the Secretary’s proposed assessment or by his Part
100 regulations governing the penalty proposal process. American Coal Co., 38 FMSHRC 1987,
1993-94 (Aug. 2016) (citing Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1150-51 (7th

39 FMSHRC Page 1255

Cir. 1984)); Mach Mining, LLC, 809 F.3d 1259, 1263-64 (D.C. Cir. 2016) (MSHA Part 100
regulations are not in any way binding in Commission proceedings). The Judge must provide an
explanation for a substantial divergence between the Secretary’s proposed penalty and the
Judge’s assessed penalty. Sellersburg Stone Co., 5 FMSHRC 287, 290-94 (Mar. 1983). The
Commission reviews a Judge’s civil penalty assessment under an abuse of discretion standard.
Douglas R. Rushford Trucking, 22 FMSHRC at 601.
In another recent American Coal decision, the majority of Commissioners (Young,
Cohen and Althen), observed that
[f]or either regular or special assessments, the Secretary’s proposal is not a
baseline from which the Judge’s consideration of the appropriate penalty must
start. The Judge’s assessment is made independently, and, regardless of the
Secretary’s proposal, the Judge must support the assessment based on the penalty
criteria and the record.
38 FMSHRC 1987, 1995 (Aug. 2016). In that decision, MSHA issued a special assessment
without explaining the basis for the special assessment in its Narrative Findings. Id. at 1996. The
majority noted that the Secretary bears the burden of “providing evidence sufficient in the
Judge’s discretionary opinion to support the proposed assessment under the penalty criteria.” Id.
at 1993. “When a violation is specially assessed, that obligation may be considerable.” Id. While
the Secretary may provide an explanatory narrative to support the special assessment sought,
Judges must “be attentive to the rationale and facts and circumstances supporting the decision to
seek a special assessment, so that the ultimate assessed penalty conforms to the Judge’s findings
and conclusions.” Id.
III. FINDINGS OF FACTS, ANALYSIS, AND CONCLUSIONS OF LAW ON REMAND
MSHA inspector Steven Miller issued Order No. 7490599 on September 23, 2007,
alleging a violation of 30 C.F.R. § 75.400 based on the following condition:
Float coal dust, a distinct black in color, and loose coal were allowed to
accumulate under and around the energized tail roller of the Flannigan Tailgate
conveyor belt. The accumulations measured approximately 6 inches to 14 inches
in depth. Loose coal and coal float dust also extended outby the tail roller
approximately 450 feet as well. The area was black and the turning tail roller was
suspending float coal dust into the atmosphere. The bottom belt and bottom
rollers were in contact with these accumulations.
P. Ex. 3. As noted above, I found in my initial Decision and Order that the cited accumulations
constituted a violation of the mandatory safety standard at § 75.400. I found the violation to be
S&S and reasonably likely to result in serious and possibly fatal injuries, including injuries from
smoke inhalation, carbon monoxide poisoning, burns, or entrapment, to the six miners working
inby the hazard. I further found that the violation constituted an unwarrantable failure to comply
with the cited standard. These findings were not disturbed on appeal.

39 FMSHRC Page 1256

The sole matters I must address on remand are the “flagrant” designation, the operator’s
degree of negligence, and the penalty. 38 FMSHRC at 2085.
A. The Violation in Order No. 7490599 Reasonably Could Have Been Expected to Cause
Death or Serious Bodily Injury
In my initial Decision and Order, I found that the accumulations at the pony belt and
Flannigan tailgate intersection were reasonably likely to contribute to a mine fire that would
result in serious and possibly fatal injuries to the six miners on the working section inby the
belts:
In the condition cited in Order No. 7490599, the accumulations were much closer
inby [than the conditions cited in Order No. 7490584], only a few crosscuts
removed from the working section. Tr. I-121. There appears to be no stoppings
that would isolate escaping miners from the effects of a fire. See R. Ex. 4, at 5. As
the miners would be exposed to an unmitigated smoke hazard, I affirm Miller’s
determination that any injuries that were to occur from a fire could reasonably be
expected to result in serious, possibly fatal injuries. In addition, based on Miller’s
uncontroverted testimony that only the miners working inby the Flannigan
Tailgate would be exposed to the hazardous condition, I find that the number of
miners affected is six. Tr. I-121.
35 FMSHRC at 2231.
Respondent challenged my findings, arguing on appeal that substantial evidence did not
support my determination. Respondent specifically argued that Respondent’s Exhibit 4, a mine
map used to illustrate witness testimony at trial, was not prepared for use as evidence regarding
the existence and location of stoppings, and that I therefore erred in relying on that exhibit to
support my finding that there were no stoppings isolating miners from the potential ignition
source at the belt intersection. 38 FMSHRC at 2078.10
In its decision on appeal, the Commission majority of then-Chairman Jordan,
Commissioner Nakamura, and Commissioner Cohen accepted Respondent’s argument regarding
Respondent’s Exhibit 4, without critique, and found that my possible misuse of the mine map

10

Absent a limited proffer or stipulation that has been received into evidence, I am aware
of no evidentiary principle that restricts an Administrative Law Judge from interpreting a
document consistent with its markings and witness testimony, as I did here with the testimony of
foreman Raney. See Tr. II-20-46, 101-102. Respondent made no such limited proffer at hearing
regarding the use of Respondent’s Exhibit 4, nor did the Secretary and Respondent offer any
agreed-upon stipulations regarding any of the exhibits received into evidence at the hearing. Tr.
I-28-33. I also note that the Federal Rules of Evidence do not directly apply to Commission
proceedings. Leeco, Inc., 38 FMSHRC 1634, 1639 (July 2016).

39 FMSHRC Page 1257

constituted harmless error.11 The Commission majority concluded that substantial evidence
supported my findings regarding the section crew’s exposure to the possible smoke hazard.
38 FMSHRC at 2078-79.12
11

Commissioner Young dissented, and took issue with the majority’s decision (at the
Secretary’s request) to make a discrete “finding in support of their conclusion that death or
serious injury to miners could reasonably be expected to result from the accumulations [at issue]
here.” 38 FMSHRC at 2092. He argued that “where the Judge errs in failing to understand the
evidence presented . . . our standard practice is to remand the case to him to make the necessary
findings of fact in the first instance, using a correct understanding of the evidence.” Id. (citing
Wolf Run Mining Co., 32 FMSHRC 1669, 1676-77 (Dec. 2010) (vacating Judge’s affirmance of
citation and remanding for factual determination and to address operator’s argument erroneously
unaddressed)). Commissioner Young further stated that “remand on the issue of the gravity [of
the violation in Order No. 7490599] was clearly necessary” since my findings rested on “clear
error.” Id. Commissioner Althen joined in Commissioner Young’s partial dissent on this issue.
Id. at 2079 n.22.
12

The majority opinion also stated that “[t]he Secretary concedes that the Judge
misconstrued the evidence and that there were in fact stoppings between the primary and
secondary escapeways on the Flannigan Tailgate belt.” 38 FMSHRC at 2078 (citing S. Br. at 21,
Tr. II-37-46; R. Ex. 4 at 5). That is an overstatement. In his Response Brief on appeal, the
Secretary stated, in full:
American Coal asserts that the ALJ erroneously relied on a “demonstrative
exhibit” to find that there were no stoppings that would isolate escaping miners
from the smoke generated by a fire. R. Br. at 49-52. That finding, American Coal
contends, is “wholly inconsistent with testimony and other evidence adduced at
trial on this very issue.” Id. at 49. The Secretary does not dispute that stoppings
isolated the belt entry from the primary and secondary escapeways in the
Flannigan Tailgate. The pony belt, however, was not located in the Flannigan
Tailgate, but rather was located in the set-up area for the longwall panel. Tr. II37-42; R. Ex. 4 at 5. The pony belt intersected the belt in the Flannigan Tailgate at
a 90 degree angle. Id.; see also Tr. I-356; R. Ex. 4. at 5. In testifying that
stoppings isolated the belt entry in the Flannigan Tailgate from the primary and
secondary escapeways in the Flannigan Tailgate, Section Foreman Rocky Raney
specifically emphasized that he was not talking about the pony belt. Tr. II-101102. Raney’s testimony is consistent with the “demonstrative exhibit” the ALJ
relied on in finding no stoppings isolating the pony belt entry from the adjacent
entry where the crew was working in the longwall set-up area. R. Ex. 5. Raney’s
testimony is also consistent with American Coal’s approved ventilation plan,
which required stoppings separating intake and return air courses “up to an[d]
including fourth connecting crosscut outby the working faces.” R. Ex. 18 at
TACC001635. Under that plan, stoppings were not required between the pony
belt entry in the longwall panel set-up area and the adjacent entry in which the
crew was working at the face, which was approximately six cross-cuts inby the
(continued…)

39 FMSHRC Page 1258

In any event, Respondent is enjoined by the law of the case as set forth in the
Commission majority opinion from re-litigating this issue on any appeal from this Decision and
Order on Remand. Nevertheless, given the split Commission and the expiration of
Commissioner Nakamura’s term, I write briefly here to clarify my factual findings.
In my initial Decision and Order, I stated that “[t]here appear to be no stoppings to isolate
escaping miners from the effects of a fire. See R. Ex. 4 at 5.” 35 FMSHRC at 2231. Having
reviewed the record on remand, I recognize that that statement was perhaps overbroad. As the
Respondent argued, the record demonstrates that stoppings do isolate the primary and secondary
escapeways from the potential ignition point at the Flannigan Tailgate and pony belt intersection.
R. Ex. 5 at 1-2; R Ex. 4 at 5. The primary and secondary escapeways, however, are located outby
the belt intersection where the accumulations were discovered. R. Ex. 4, at 5. The section crews
were working inby the ignition point at the belt intersection, no more than two or three crosscuts
outby the working face. R. Ex. 20 at 33, 35, 37, 39, 41, and 43; R. Ex. 5 at 1-2; R. Ex. 4 at 5.
While the stoppings separating the primary and secondary escapeways would have isolated
evacuating miners from smoke once they passed outby the belt intersection, there were no
stoppings inby that point. Respondent’s “approved ventilation plan only required
stoppings separating [the] intake and return air course[s] up to and including the fourth
connecting cross-cut outby the working faces.” 38 FMSHRC at 2078 (citing R. Ex. 18 at 7).
While evacuating miners would have been isolated from the effects of a fire once they reached
the primary or secondary escapeway, they would have been exposed to the effects of a fire until
they reached the escapeways.
I therefore conclude, as did the majority of Commissioners, that “the evidence
demonstrates that the pony belt entry, which ran from its intersection with the Flannigan Tailgate
to the set-up area for the longwall panel[,] lacked stoppings,” and therefore the miners working
inby the pony belt and Flannigan Tailgate belt intersection would be exposed to smoke in the
event of an ignition resulting from the accumulations at issue in Order No. 7490599.
38 FMSHRC at 2078; see Tr. II-42, R. Ex. 4 at 5. In these circumstances, I reaffirm my finding
that the smoke to which the miners were reasonably likely to be exposed in the event of an
ignition could reasonably have been expected to cause death or serious bodily injury.
30 U.S.C. § 820(b)(2).

12

(…continued)

site of the violation and approximately four cross-cuts inby the feeder for the
pony belt. Tr. II-42; R. Ex. 4 at 5.
S. Resp. Br. at 21 (footnotes omitted). In my opinion, this is not a concession by the Secretary
that I misconstrued the evidence, but an argument that the operator has misconstrued my
findings. While the Secretary agrees that stoppings separated the escapeways at the Flannigan
Tailgate, he argues that the evidence supports my determination that there were no stoppings
isolating the working miners from the cited accumulations and potential ignition sources at the
pony belt. I therefore respectfully disagree with the Commission majority’s characterization of
the Secretary’s argument as a concession that I misconstrued the evidence.

39 FMSHRC Page 1259

B. The Violation in Order No. 7490599 Resulted from Respondent’s Repeated Failure to
Make Reasonable Efforts to Eliminate a Known Violation
Commissioners Young, Cohen, and Althen, writing for the Commission majority, also
remanded the issue of whether Respondent repeatedly failed to make reasonable efforts to
eliminate a known violation. In my initial Decision and Order, I credited inspector Miller’s
testimony that the accumulations existed for at least two shifts. Tr. I-108; 35 FMSHRC at 2236.
In addition, I relied on Respondent’s printed production and delay (“P&D”) reports and
testimony from section foreman Rocky Raney to infer that Respondent had constructive
knowledge of the cited accumulations for at least two shifts prior to the Order’s issuance, but
nevertheless failed to address them. 35 FMSHRC at 2239, 2259, and 2265; see also Tr. II-66-68.
The printed P&D reports document the electrical issues with the pony belt that caused it to
intermittently start and stop during the five shifts preceding the issuance of Order No. 7490599.
R. Ex. 21. Raney testified that the pony belt’s starting and stopping problems could cause
spillage and float coal dust accumulations around the belt. Tr. II-66-69. Based on the pony belt’s
documented electrical issues and Raney’s acknowledgment that such issues can cause
accumulations, I concluded that Respondent “knew or should have known that the violation
existed for at least two shifts.” 35 FMSHRC at 2265.
The Commission majority found that my “analysis of the evidence of [Respondent’s]
knowledge of the accumulations was insufficient.”13 38 FMSHRC at 2080. The Commission
majority characterized my reliance on Respondent’s printed P&D reports as “problematic,”
because, in contrast to the handwritten P&D reports created by the section foremen during their
shifts, the printed P&D reports were not “printed until the morning of September 24, the day
after [Respondent] was cited for the accumulations.” Id. at 2080; see also R. Exs. 20
(handwritten P&D reports) & 21. In addition, the Commission majority noted that the cited
accumulations were not recorded in the pre-shift and on-shift examination books. See R. Ex. 25.
The Commission recognized that inspector Miller did not “issue a citation or order to
[Respondent] for having failed to conduct a proper examination of the belts during the preceding
shifts,” despite his opinion regarding the duration of the accumulations and the lack of any
record of them in the belt examination books. 38 FMSHRC at 2080. Although I credited Miller’s
testimony regarding the duration of the violation and consequently inferred from the P&D
reports and Raney’s testimony that Respondent “knew or should have known” about them prior
to the issuance of Order No. 7490599, the Commission majority concluded that it could not
determine whether my inference was reasonable because I did not give consideration to possible
alternative conclusions regarding why Miller failed to cite Respondent for an inadequate belt
exam. Therefore, in addition to reviewing the record evidence to “determine at what point, prior
13

Chairman Jordan and Commissioner Nakamura dissented from this holding, and wrote
separately to affirm the flagrant determination for Order No. 7490599. They found that
“substantial evidence supports [my] decision regarding the extent to which AmCoal was or
should have been aware of the accumulations.” American Coal Co., 38 FMSHRC at 2093
(Jordan, Chairman & Nakamura, Comm’r, dissenting). Commissioner Althen joined in the
majority decision to remand the issue, but also wrote separately to express his opinion that the
plain language of section 110(b)(2) requires that the operator have actual knowledge (rather than
constructive knowledge) of the violation. 38 FMSHRC at 2099 (Althen, Comm’r, concurring and
dissenting).

39 FMSHRC Page 1260

to Miller’s discovery of the accumulations, [Respondent] should have become aware of the
accumulations,” the Commission majority directed that I also consider: (1) whether the
accumulations were not included in the belt examination records because they did not exist at the
time the exams were conducted, or (2) whether “Miller, exercising his discretion, decided not to
cite [Respondent] for failure to conduct a proper belt examination.” 38 FMSHRC at 2080-81.
I begin my review of the record with the handwritten P&D reports. Both the printed and
the handwritten P&D reports generally identify the same delays, but the handwritten P&D
reports contain the exact start and stop times for each delay (e.g., from 1:15 a.m. to 1:45 a.m.),
while the printed P&D reports record only the length of the delay (e.g., 30 minutes). See R. Exs.
20 & 21. The handwritten P&D reports also contain additional information, including the time
the crew arrived and departed the section, when and where each cut was made, and when the first
and last shuttle cars of coal were loaded onto the belt. See, e.g. R. Ex. 20 at 32.
Galatia North mine operated three shifts: foreman Jim Gass’s shift from 12:00 a.m. to
8:00 a.m., foreman Randy Robertson’s shift from 8:00 a.m. to 4:00 p.m., and foreman Rocky
Raney’s shift from 4:00 p.m. to 12:00 a.m. Although the shifts began at 12:00 a.m., 8:00 a.m.,
and 4:00 p.m., respectively, the crews were “hot-seating” each shift, meaning the working crew
would wait on the section until replaced by the next crew. Due to the hour-long travel time from
the mine portal to the working section, the shift crews would change at approximately1:00 a.m.,
9:00 a.m., and 5:00 p.m., respectively. See R. Ex. 20; Tr. II-303-04. Respondent entered into the
record handwritten P&D reports for the five shifts preceding the issuance of Order No. 7490599,
and for the shift during which Miller issued Order No. 7490599. I summarize the relevant
information for each shift below.
The handwritten reports indicate that the pony belt was already experiencing electrical
issues when foreman Jim Gass arrived on the section with his crew at 1:15 a.m. on September
22, 2007. There were four pony belt delays (resulting in a total of 122 minutes of downtime for
the pony belt) during Gass’s eight-hour shift. The belt was down for 30 minutes from 1:15 a.m.
until 1:45 a.m., for another 30 minutes from 1:46 a.m. to 2:16 a.m., for 55 minutes from 4:10
a.m. to 5:05 a.m., and for seven minutes from 8:23 a.m. until 8:30 a.m. The notation recorded
next to the 55-minute delay explains that the “unit pony belt would not stay running,” indicating
that the belt may have been subject to additional starts and stops beyond the four recorded. Gass
and his crew left the section at 9:15 a.m. R. Ex. 20 at 32.
The pre-shift examination for the shift following Gass’s (headed by section foreman
Randy Robertson) was conducted concurrently with the last part of Gass’s shift from 4:00 a.m. to
8:00 a.m. on September 22, 2007. R. Ex. 25 at 1. The pre-shift examiner noted that the head area
of the Flannigan Tailgate belt was “sloppy.” Id. The subsequent on-shift examination report
indicates that the belt head area was cleaned by Robertson and his section crew during the
subsequent shift. R. Ex. 25 at 2. This entry, made more than 36 hours before Miller issued Order
No. 7490599, is the only indication that accumulations existed around the belt area prior to the
issuance of Order No. 7490599.
The P&D reports show that there were two pony belt outages totaling 80 minutes of
downtime during the shift following Gass’s. Robertson and his section crew arrived on the

39 FMSHRC Page 1261

section at 9:15 a.m., indicating that Gass’s crew waited until Robertson’s crew arrived before
leaving the working section.14 The first pony belt stoppage lasted for 50 minutes, from 1:50 p.m.
until 2:40 p.m. The second stoppage lasted for 30 minutes, from 4:20 p.m. until 4:50 p.m.
Robertson’s crew dumped the last shuttle car of coal onto the belt at 5:05 p.m. and departed the
section at 5:10 p.m. R. Ex. 20 at 34.
The P&D report for the final shift on September 22, 2007 also shows two pony belt
outages. Raney’s crew arrived on the section at 5:15 p.m., and the first pony belt outage occurred
about two hours and forty-five minutes later from 8:00 p.m. until 8:30 p.m. due to a problem
with the pony belt’s ground fault. See R. Ex. 21 at 2; R. Ex. 20 at 36. The second outage began at
11:50 p.m. and continued until the end of the shift when Raney’s crew left the section at 1:00
a.m. R. Ex. 20 at 36.
On September 23, 2007, the day Order No. 7490599 was issued, the handwritten P&D
reports show that there were a total of four pony belt outages equaling a total of 195 minutes of
belt downtime during Jim Gass’s shift.15 Gass and his crew arrived on the section at 1:15 a.m.,
15 minutes after Raney’s crew departed the section. The first three outages, totaling 75 minutes
of downtime, occurred as a result of problems with the “pony belt ground fault.” Those outages
occurred from 2:00 a.m. to 2:25 a.m., from 4:00 a.m. to 4:30 a.m., and from 5:15 a.m. to 5:35
a.m. During the remaining 120 minutes of outage, which occurred from 7:00 a.m. until 9:00 a.m.,
the “pony belt would not run for more than 2-3 min[utes] and [then] kick [the] breaker.” R. Ex.
20 at 38. Gass also included a notation in the handwritten P&D report that the section crew
“scooped and dusted and serviced equip[ment] during [the] downtime.”16 Id. Gass and his crew
left the section at 9:15 a.m. Id. Inspector Miller testified that the accumulations existed at least as
early as this shift. Tr. I-108.
14

Robertson appears to have been misidentified as section foreman Rocky Raney in the
printed P&D report for the second shift on September 22, 2007. R. Ex. 21 at 2. The handwritten
report, however, indicates that Robertson, and not Raney, was the section foreman for that shift.
R. Ex. 20 at 34. Since the handwritten reports were prepared by the section foreman over the
course of the shift, I rely on the handwritten P&D report.
15

The printed P&D report for Gass’s shift on September 23 consolidates the first three
outages into one entry indicating a 75-minute outage, but otherwise corroborates the information
contained in the handwritten report. R. Ex. 21 at 2.
16

Gass’s crew “scooped & dusted & serviced equip[ment]” during the two-hour delay
that occurred from 7:00 a.m. to 9:00 a.m. on September 23. This notation is included in the P&D
report section titled “Explanation of Delays.” R. Ex. 20 at 38. Immediately above that section, in
the “Comments” section for the entries to “Mining Details,” Gass made the following notation:
“Dusted Unit, Scooped Unit, Serviced Equipment During [Down] Time.” (Instead of the word
“down,” the actual notation contains an arrow pointing down. I interpret the arrow to mean
“down.”) Id. I infer that “unit” refers to “mechanized mining unit,” or MMU, a commonly-used
mining term. I therefore conclude that “unit” refers to the MMU, or the equipment at the working
face, rather than the pony belt and Flannigan Tailgate belt intersection outby the working section.

39 FMSHRC Page 1262

Robertson and his crew arrived on the section at 9:15 a.m. on September 23, 2007. His
handwritten P&D report shows two pony belt delays: a 30-minute delay from 9:15 a.m. to 9:45
a.m. resulting from a bad ground monitor card, and a 30-minute delay from 12:50 p.m. to 1:20
p.m. resulting from an issue with the AMR, a type of electrical card. R. Ex. 20 at 40; Tr. II-65.
Raney testified that Robertson’s shift “found the problem” and fixed the pony belt electrical
issue. Tr. II-65. Neither the handwritten nor the printed P&D reports show ongoing issues with
the pony belt after Robertson and his crew left the section at 5:15 p.m. on September 23, 2007.
Raney also confirmed that the P&D reports (both handwritten and printed) do not reflect any
pony belt issues after he and his crew arrived on the section at 5:15 p.m. R. Ex. 20 at 42; R. Ex.
21 at 3; Tr. II-66. As noted above, Order No. 7490599 was issued at 6:45 p.m. on September
23rd, about an hour and a half after Raney arrived on the section with his crew.
The handwritten and printed P&D reports demonstrate that mine management was wellaware that the pony belt was having significant electrical and operational issues during the five
shifts preceding issuance of Order No. 7490599. These electrical problems led to multiple
instances where the pony belt was starting and stopping intermittently over the course of each
shift. R. Exs. 20, 21. Foreman Jim Gass’s September 22 shift experienced four pony belt delays,
which resulted in 122 minutes of downtime. Foreman Randy Robertson’s September 22 shift
experienced two delays, which resulted in 80 minutes of downtime. Foreman Raney’s
September 22 shift experienced two delays, which resulted in 140 minutes of downtime. On
September 23, Gass’s shift experienced four delays, which resulted in 195 minutes of downtime,
and Robertson’s shift experienced two delays, resulting in 60 minutes of downtime. R. Ex. 20 at
32-42, R. Ex. 21 at 8-10. As then-Chairman Jordan and Commissioner Nakamura emphasized in
their dissenting opinion, “the daily reports indicate electrical and breaker problems with the belt
during all three shifts on September 22nd, which grew worse during the first two shifts on
September 23rd, before repairs were made on the second shift.” 38 FMSHRC at 2094 (citing
Tr. II-61-66, R. Ex. 20 at 8-10).
Foreman Raney admitted that the recurrent stopping and starting that characterized the
pony belt delays on September 22 and 23 could cause spillage from the pony belt and float coal
dust accumulations around the belt, especially if the coal had been sitting on the belt for an
extended period of time and had consequently dried out. Tr. II-68, 70. As the handwritten P&D
reports show, there was, in fact, coal sitting on the belt during the production delays. See R. Ex.
20 at 38-43. During Robertson’s September 23rd shift (the shift before Miller and Meyer
observed the accumulations), the crew dumped 18 shuttle cars of coal prior to 4:00 p.m., despite
the two separate pony belt delays from 9:15 a.m. to 9:45 a.m. and from 12:50 p.m. to 1:20 p.m.
R. Ex. 20 at 41. During Gass’s shift on September 23 (the shift identified by Miller as the latest
point in time when the accumulations would have been present), the crew loaded ten shuttle cars
of coal onto the belt between 6:00 a.m. and 7:00 a.m. The belt then went down for two hours and
the crew was subsequently unable to get the belt to run for more than two to three minutes at a
time. R. Ex. 20 at 39.
Raney also testified that the feeder, if not manually turned off during belt stoppages,
would continue to grind the coal stalled on the belt, creating float coal dust that would be
suspended in the air once the belt was turned back on and coal was transferred from the pony belt

39 FMSHRC Page 1263

to the Flannigan Tailgate belt. Tr. 68-69.17 Although there was no specific testimony regarding
whether Respondent had a policy or practice of turning off the feeder during belt delays, Miller
observed loose coal and float coal dust extending 450 feet outby the tail roller. P. Ex. 3. In
addition, Miller found that the bottom belt and bottom rollers of the pony belt were in contact
with the accumulations, and determined that “the tail roller was suspending float coal dust into
the atmosphere,” which would take at least more than one shift to occur. P. Ex. 3; Tr. I-206-07.
Given the frequency of belt delays during the five shifts preceding Order No. 7490599 and the
fact that Miller observed rollers in contact with accumulations, I find that the manual feeder was
grinding coal during the pony belt production delays over several shifts, which likely contributed
to the extensive float coal dust cited in Order No. 7490599.
Despite the progressively worsening problems with the pony belt documented in the
handwritten P&D reports, the pre-shift and on-shift examination reports from September 22 and
September 23 make no mention of accumulations around the intersection of the Flannigan
Tailgate belt and the nearby pony belt. R. Ex. 25. The only notation regarding accumulations
contained in those records is from the pre-shift examination conducted from 4:00 a.m. to 8:00
a.m. on September 22nd, which states that the Flannigan Tailgate head area was “sloppy.” R. Ex.
25 at 1. The pre-shift notation regarding the sloppy head area on the Flannigan Tailgate belt
coincides with the 55-minute production delay because the “pony belt would not stay running,”
as documented in Gass’s September 22 P&D report. R. Ex. 20 at 32. The following on-shift
examination record indicated that the belt head area had been cleaned. R. Ex. 25 at 2. Thereafter,
there are no references to accumulations near the pony belt or Flannigan Tailgate belt in the preshift or on-shift examination records for the final two shifts on September 22, or in the
examination records from the first two shifts prior to the issuance of Order No. 7490599 on
September 23. R. Ex. 25 at 2-10.
In order for the lack of notations regarding the accumulations in the September 23 preshift and on-shift examination records to be accurate, the accumulations must have occurred after
the last examinations were conducted, i.e., between the time the examiners signed off on the
examination record books and when the accumulations were discovered by inspector Miller.
Respondent’s examination records state that the last on-shift examination before Miller issued
Order No. 7490599 was conducted by Raney over the course of eight hours from 4:00 p.m. on
September 23 to 12:00 a.m. on September 24. In that on-shift examination, Raney described the
Flannigan Tailgate belt area as “safe.” R. Ex. 25 at 10. However, the on-shift examination
records do not indicate the exact time that Raney examined the Flannigan Tailgate. Since the
accumulations were discovered at 6:50 p.m. (about three hours after Raney started his on-shift
examination), it is possible that Raney examined the Flannigan Tailgate after he and his crew
cleaned up the accumulations and abated the violation. If such was the case, then Raney’s “safe”
notation would be accurate.
17

Raney testified that the feeder has a water spray that normally keeps the coal wet as it
is loaded into the feeder, moves past the choke breaker, and onto the belt. Tr. II-69. However, the
spray normally operates only when the belt is “completely full of coal.” If there are interruptions
in the coal being fed through the feeder, the spray will turn off and on. Tr. II-69-70. Coal that is
sitting on the stagnant belt may dry out if the belt is down for a long enough period of time.
Tr. II-70.

39 FMSHRC Page 1264

The last pre-shift examination before the discovery of the accumulations was conducted
from 12:00 p.m. to 4:00 p.m. R. Ex. 25 at 9. The pre-shift mine examiner signed off on the
examination records at 3:47 p.m. on September 23, about three hours before Miller discovered
the accumulations. Id. The record for that pre-shift examination makes no mention of any
accumulations near the Flannigan Tailgate and pony belt intersection. In order for that
examination record to be accurate, the accumulations must have occurred within the brief threehour window between when the pre-shift examiner signed the records at 3:47 p.m. and when
Miller discovered the accumulations at 6:50 p.m.
I find it unlikely that the accumulations occurred in the short, three-hour window between
the last pre-shift examination and the issuance of Order No. 7490599. When asked why the
examinations records might not reflect accumulations that existed at the time the examinations
were conducted, inspector Miller stated that each examiner reported hazardous conditions
differently, and that examiners exercise some level of discretion when conducting their
examinations. Tr. I-358-59. Miller also opined that the accumulations had existed for at least two
shifts. R. Ex. 25 at 1-2; Tr. I-108, 314. Miller emphasized that the loose coal accumulations were
a “distinct black in color,” or “jet black,” rather than the “red-brown” or “shiny,” “glaze[d]”
color of fresh coal.18 Tr. I-108, 314-15; P. Ex. 4 at 8. Miller also testified that there was float coal
dust on top of the accumulations. He testified that as float coal dust settles on rock-dusted
surfaces, those surfaces change from white, to gray, to black. Tr. I-71-72, 315. In addition,
Respondent’s safety director, Joseph Myers, who accompanied Miller on his inspection, testified
that the conditions were “obvious,” and that he was “upset at the conditions that [they] found.”
Myers “immediately shut down the pony belt to correct the situation” after Miller issued Order
No. 7490599. Tr. II-143-44.
Based on the printed and handwritten P&D reports and the testimony of Miller, Raney,
and Myers, I find that the accumulations existed for at least two shifts, and Respondent knew or
should have become aware of the accumulations no later than foreman Gass’s 12:00 a.m. to
8:00 a.m. shift the morning of September 23. I also conclude that Miller exercised discretion
when he failed to cite Respondent for the inadequate belt examinations on September 23. As
noted above, Raney admitted that the belt’s intermittent starting and stopping could cause
accumulations, and the section foremen (including Raney) were aware of the progressively
serious pony belt delays occurring on September 22 and 23, since the shift foremen themselves
were responsible for creating the handwritten P&D reports. Tr. II-461-62; see R. Ex. 20. As thenChairman Jordan and Commission Nakamura noted in their dissenting opinion, “[a] knowing
violation occurs when an individual ‘in a position to protect employee safety and health fails to
act on the basis of information that gives him knowledge or reason to know of the existence of a
violative condition.’” 38 FMSHRC at 2095 (citing Cougar Coal Co., 25 FMSHRC 513, 517
(Sept. 2003) (quoting Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff’d on other grounds,
689 F.2d 632 (6th Cir. 1982), cert. denied 461 U.S. 928 (1983)). In addition, and apart from
troubleshooting the electrical issues with the pony belt, both Gass’s and Robertson’s section
18

Miller also testified that float coal dust is usually black, and that a “reddish-brown”
cast to the float coal dust indicates that the dust “has been there for quite some time.” Tr. I-64,
206. In contrast, newly-mined loose coal on the belt is “reddish-brown” in color or has a shiny,
glazed cast to it because it has been sprayed with water as it travels through the feeder and onto
the belt. Tr. I-314-15.

39 FMSHRC Page 1265

crews were actively mining in the Nos. 1, 2, and 3 entries on September 23, only five cross cuts
inby the belt intersection where the accumulations were found. R. Ex. 20 at 37, 39. As noted in
my initial Decision and Order, “given the scope of the condition cited, it seems difficult to
believe that reasonably attentive on-shift examiners would not have reported this condition.”
35 FMSHRC at 2239.
The accumulations at issue here existed for more than two shifts. During those shifts,
multiple belt examinations were conducted, and mine foreman were traveling past the
accumulations with their section crews as they traveled to and from the working face.
Respondent clearly had multiple opportunities to discover, document, and correct the violative
conditions, but nonetheless failed to take action. I therefore conclude that the accumulations
resulted from Respondent’s repeated failure to make reasonable efforts to eliminate a known
violation that existed for at least two shifts.
Although the Commission’s majority decision declined to address whether constructive
knowledge is sufficient for a flagrant designation, then-Chairman Jordan and Commissioner
Nakamura found that Respondent had actual knowledge of the violation. 38 FMSHRC at 2093
(Chairman, Jordan, and Nakamura, Comm’r, concurring and dissenting). Commissioner Althen,
in his dissent, thoughtfully discusses the Commission’s jurisprudence regarding negligence,
unwarrantable failures, and the standard of knowledge required under the plain language of
section 110(b)(2). He notes the subtle difference between actual implied knowledge and
constructive knowledge, and concludes that the plain language of Section 110(b) requires actual
knowledge on the part of the operator:
The notion of constructive knowledge comprehends the notion of a “legal” duty to
make an inquiry. If an actor has a duty to undertake an inspection for example, the
actor may have constructive knowledge of an event he should have discovered by
performing his duty. In such instance, the actor “should have known” certain facts
but did not know those facts because of his failure to meet a legal duty of
care. . . . . The notion of implied actual knowledge, on the other hand, is a factual
construct based upon information of which the actor actually was aware. Thus, if
an actor performing an inspection actually detects facts (former facts) that would
have led a reasonable actor to learn of a specific problem (latter facts), a court
may infer actual knowledge of the latter facts due to the actor’s express
knowledge of the former facts.
38 FMSHRC at 2104 n.7 (Althen, Comm’r, concurring and dissenting).
While recognizing the difference between actual implied and constructive knowledge in
the abstract, I note that the practical application of these definitions to the facts at issue here
yields the same substantive outcome: the mine foremen knew that the pony belt delay could
cause accumulations, and therefore had a duty to inspect and determine whether accumulations
had occurred; or, alternatively, the mine foremen knew that the pony belt was experiencing
delays, knew that the such delays might cause accumulations (former facts), and therefore a
reasonable foreman would have learned of the accumulations (latter facts). Either way, the
Respondent knew (had actual implied knowledge) or should have known (had constructive

39 FMSHRC Page 1266

knowledge) of the accumulations. Although I found in my initial Decision and Order that
Respondent had constructive knowledge of the accumulations, see 35 FMSHRC at 2239 (“[T]he
Secretary has shown that Respondent knew or should have known of the accumulation
problem.”), my review of the record on remand leads me to conclude that Respondent also had
actual implied knowledge of the accumulations for at least two shifts.
As I have concluded as a matter of law that the violative conditions in Order No.
7490599 satisfy the requirements of the “narrow” interpretation of section 110(b)(2)’s repeated
flagrant designation, I decline to address whether the violative conditions were also “flagrant”
under the broad interpretation of section 110(b)(2).
C. The Violation in Order No. 7490599 was the Result of Respondent’s High Negligence
In determining whether an operator meets its duty of care under the cited standard, I
consider what actions would have been taken under the same or similar circumstances by a
reasonably prudent person familiar with the mining industry, the relevant facts, and the
protective purpose of the regulation. See generally U.S. Steel Corp., 6 FMSHRC 1908, 1910
(Aug. 1984); see also Jim Walter Res., Inc., 36 FMSHRC 1972, 1975-77 (Aug. 2014) (requiring
the Secretary to show that the operator failed to take specific action required by the standard
violated); Spartan Mining, 30 FMSHRC 669, 708 (Aug. 2008) (negligence inquiry
circumscribed by scope of duties imposed by regulation violated). In this regard, the gravamen of
high negligence is “an aggravated lack of care that is more than ordinary negligence.” Brody
Mining, LLC, 37 FMSHRC 1687, 1701 (Aug. 2015) (citing Topper Coal Co., 20 FMSHRC 344,
350 (Apr. 1998)).
In my initial Decision and Order, I found that the cited accumulations were not reported
in the examination record books by the mine examiners, who are the agents charged with
responsibility for identifying hazardous conditions and ensuring that they are addressed in a
timely manner. Thus, the accumulations were not reported to mine management through the
normal channels by which such conditions would be identified and addressed. I viewed this as a
mitigating factor. Accordingly, I reduced the negligence designation from “high” to “moderate.”
35 FMSHRC at 2241.
On appeal, the Commission took issue with my finding that the presence of a mitigating
factor reduced the negligence, and instructed me to reevaluate the degree of negligence “from the
starting point of a traditional negligence analysis.” 38 FMSHRC at 2083. The Commission also
pointed out that the negligence of a mine examiner is imputable to the mine operator. Id.
Accordingly, I reevaluate Respondent’s degree of negligence, taking into account the culpability
of Respondent’s shift examiners regarding their knowledge of the violative accumulations.
38 FMSHRC at 2083.
I also found in my initial Decision and Order that Order No. 7490599 was the result of
Respondent’s unwarrantable failure to comply with section 75.400. Unwarrantable failure is
aggravated conduct characterized by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference,” or a “serious lack of reasonable care.” 35 FMSHRC at 2240, 2231
(citing Emery Mining Corp., 9 FMSHRC 1997, 2003-04 (Dec. 1987)). I found that the six-to-

39 FMSHRC Page 1267

fourteen-inch-deep accumulations of loose coal around the tailgate roller and the 450 feet of
loose coal and float coal dust extending outby the tailgate were extensive, obvious, and
dangerous. 35 FMSHRC at 2231. I noted that “the size and location of the accumulations, in
addition to the fact that the area was not isolated from active workings, contributed to the likely
risk of a serious and possibly fatal injury to miners working inby.” 35 FMSHRC at 2238. I have
credited Miller’s testimony that the accumulations were present for at least two shifts. As stated
in my initial Decision and Order, “given the scope of the condition cited, it seems difficult to
believe that reasonably attentive on-shift examiners would not have reported this condition.”
35 FMSHRC at 2239. The Commission has long recognized that mine foremen, who conduct
pre-shift and on-shift examinations, are agents of the mine operator. See, e.g., Southern Ohio
Coal Co., 4 FMSHRC 1459, 1463–64 (Aug. 1982) (“It is well established that the negligent
actions of an operator’s foremen, supervisors, and managers may be imputed to the operator in
determining the amount of a civil penalty.”). In addition, I found that mine management had both
actual implied knowledge and constructive knowledge of the accumulations and repeatedly
failed to make reasonable efforts to eliminate them over the course of at least two shifts.
Respondent was also on notice that greater efforts were necessary in order to comply with
section 75.400. I found in my initial Decision and Order that “the record establishes that
Respondent was warned repeatedly through meetings, training sessions, and prior citations [and]
orders[] about belt accumulation problems . . . .” 35 FMSHRC at 2237 (citing Tr. I-86-90, 123).
In addition, I noted Respondent’s efforts to abate belt accumulation violations:
[A] group of MSHA employees came from Beckley, West Virginia to train Respondent’s
examiners; [] Respondent held special safety talks and manager meetings; [] changes
were made in the work force allocation to increase belt examinations; and [] Respondent
created PowerPoint training guidelines on July 7, 2007.
35 FMSHRC at 2240 (citing Tr. I-123, 448-49, 455-56; R. Ex. 16). Despite these efforts,
Respondent repeatedly continued to violate section 75.400. Id. at 2237. Respondent violated
section 75.400 approximately 162 times in the fifteen months preceding Order No. 7490599.
MSHA Mine Data Retrieval System, available at
https://arlweb.msha.gov/drs/ASP/MineAction.asp (last accessed Mar. 6, 2017); see also
35 FMSHRC at 2267. Moreover, out of the 361 violations of section 75.400 that Respondent
received in the twenty-four months preceding the issuance of Order No. 7490599, seventy-seven
of the violations were designated as S&S, and eleven of the violations were designated as
unwarrantable failures to comply with section 75.400. P. Ex. 1; see also 35 FMSHC at 2211.
For the reasons stated above, I find that the violation in Order No. 7490599 was the result
of Respondent’s high negligence.
D. Penalty Assessment
The Secretary has proposed a specially assessed penalty of $164,700 for the violation
alleged in Order No. 7490599. Because the Secretary has proposed a penalty substantially higher
than would have been proposed under the regular assessment system, I look to the record to
determine whether the Secretary introduced evidence to support an elevated assessment under

39 FMSHRC Page 1268

the rationale and facts supporting the Secretary’s decision to seek a special assessment. I then
assess the penalty independently in light of my findings of fact, analysis, and conclusions of law
on remand about the record evidence concerning Section 110(i) criteria and the deterrent
purposes of the Act.
The Secretary’s narrative findings for the special assessment contain terse support for the
specially-assessed proposed penalty. The Secretary states that the violation was “flagrant” and
that the gravity was “serious.” Narrative Findings for a Special Assessment, Petition for the
Assessment of Civil Penalties, Docket No. LAKE 2009-0035. After my review of the record on
remand, I have affirmed these findings.19 Respondent is a large operator, and mined seven
million tons of coal in 2007. MSHA Mine Data Retrieval System, available at
https://arlweb.msha.gov/drs/ASP/MineAction.asp (last accessed Mar. 6, 2017). The parties
stipulated that the proposed special assessment will not affect Respondent’s ability to stay in
business. The parties made no stipulation regarding good faith abatement, but the record
demonstrates that the violation was abated in good faith. See also 35 FMSHRC at 2267.
I have found that the violation in Order No. 7490599 was S&S, an unwarrantable failure
resulting from Respondent’s high negligence, and a repeated flagrant violation. In addition, as
noted in my initial Decision and Order,
[i]n the twelve months preceding the issuance of Order No. 7490599, Respondent
was issued twenty-seven citations/orders for alleged violations of [section] 75.400
involving accumulations of coal, lump coal, coal dust, float coal dust, and coal
fines on and around conveyor belts and belt structures in the Galatia Mine. P. Exs.
5-31. Nineteen of the aforementioned citations/orders were issued as S&S
violations. P. Ex. 5, 8, 10-12, 14, 15-18, 20, 22, 25-31. In the twenty-four months
preceding [Order No. 7490599], Respondent was cited for violations a total of
361 times. P. Ex. 1. Among those 361 citations and orders, seventy-seven were
issued as S&S violations and eleven were issued as unwarrantable failure
violations under Section 104(d) of the Mine Act. P. Ex. 1.
35 FMSHC at 2211.
Given Respondent’s repeated and extensive violation history under section 75.400, it
cannot be gainsaid that non-flagrant civil penalty assessments under the progressive enforcement
scheme of the Mine Act, including 77 penalties for S&S violations and 11 penalties for
unwarrantable failures, have not deterred Respondent from continuing to violate the cited
standard. In Order No. 7490599, the Secretary demonstrated that the Respondent repeatedly
failed for at least two shifts to make reasonable efforts to eliminate known accumulations which
19

The Secretary originally designated the accumulations as contributing to a hazard that
was highly likely to lead to a reasonably serious injury. P. Ex. 3. In my initial Decision and
Order, I affirmed the Secretary’s S&S designation for Order No. 7490599, but found that the
accumulations contributed a hazard that was reasonably likely and not highly likely to lead to an
injury of a reasonably serious nature. 35 FMSHRC at 2225; see Mathies Coal Co.,
6 FMSHRC 1, 3-4 (Jan. 1984). The Commission did not disturb that finding when remanding
this matter.

39 FMSHRC Page 1269

could reasonably be expected to cause death or serious bodily injury to six miners. As
Commissioners Cohen and Young recognized, “the essence of a repeated violation is a condition
which threatens miners with serious bodily injury or death and which has been ignored or
disregarded often enough to demonstrate intolerable irresponsibility.” 38 FMSHRC at 2087
(Cohen & Young, Comm’rs, concurring). As Commissioner Althen concluded, “the clear
purpose of section 110(b)(2) is to incentivize operators strongly to eliminate known violations
reasonably expected to cause serious injury without waiting for an inspector to discover the
violative condition.” 38 FMSHRC at 2110 (Althen, Comm’r, concurring and dissenting). Based
upon my consideration of the section 110(i) penalty criteria and the deterrent purposes of the
Act, a “repeated flagrant” penalty assessment is warranted here under the Mine Act’s progressive
enforcement scheme. I assess a penalty of $112,380.
IV. ORDER
Order No. 7490599 is AFFIRMED, including the S&S, high negligence, unwarrantable
failure, and flagrant designations. Respondent American Coal Company is ORDERED to pay a
total civil penalty of $112,380 within thirty days of this Decision and Order on Remand.20

/s/ Thomas P. McCarthy
Thomas P. McCarthy
Administrative Law Judge

Distribution:
Travis W. Gosselin, U.S. Department of Labor, Office of the Solicitor, 230 S. Dearborn Street,
Room 844, Chicago, IL 60604
Jason W. Hardin, Mark E. Kittrell, Fabian & Clendenin, 215 S. State St., Ste. 1200, Salt Lake
City, UT 84111-2323
/ccc

20

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

39 FMSHRC Page 1270

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
PHONE: (202) 434-9933 | FAX: (202) 434-9949

June 21, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2016-0123
A.C. No. 46-01436-396817

CONSOLIDATION COAL CO. now
THE OHIO COUNTY COAL CO.,
Respondent.

Mine: Shoemaker Mine

DECISION DENYING SETTLEMENT MOTION
Before: Judge Moran
This case is before the Court upon a petition for assessment of a civil penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977. The docket involves 5 (five)
citations for which the Secretary has filed a motion to approve settlement (“Motion”). The
originally assessed amount for the five citations was $72,500.00, and the proposed settlement is
for $39,875.00. The Secretary also requests that two of the citations be modified, as described
below. For the reasons which follow, the motion must be denied.
Citation No. 9083154: The Court begins with the one citation which, per the settlement,
is to be paid in full and without any modifications. This involved 104(a) Citation No. 9083154,
citing 30 C.F.R. §75.223(a)(1),1 for which the negligence was marked as “high,” and which was
marked as “Significant and Substantial,” with the gravity listed as “reasonably likely,”
“permanently disabling,” with one person affected. The issuing inspector described the following
condition or practice:
The mine operator failed to propose revisions of the roof control plan. Mine
conditions indicate the currently approved roof control plan is not suitable to
control the mine ribs. The consistency of the rock binder has changed since the
roof control plan was approved. The binder ranges between 5 and 18 inches in
thickness. The binder begins to deteriorate in 2-3 shifts after an area has been
mined allowing large pieces of coal/rock to fall out above and below the binder.
The binder has also fallen out in large pieces. Numerous citations for failure to
adequately support the ribs have been issued to the mine operator. Additionally,
the mine operator has been placed on notice that the existing roof control plan is
1

30 C.F.R. § 75.223, titled, “Evaluation and revision of roof control plan,” provides at
subsection (a)(1), “Revisions of the roof control plan shall be proposed by the operator - (1)
When conditions indicate that the plan is not suitable for controlling the roof, face, ribs, or coal
or rock bursts.” 30 C.F.R. § 75.223.

39 FMSHRC Page 1271

not adequate to address current mining conditions on June 11, 2015 and July 6,
2015. Mine management recognizes the adverse conditions as evidenced by an
internal written standard operating procedure (email) mandating the installation
of rib support. However, based on the observation of mining conditions, the
installation of rib supports has been sporadic and intermittent, and miners
continue to be exposed to the hazard of inadequately supported ribs.
Citation No. 9083154 (emphasis added).2
It is against this backdrop that the Secretary presented the following bases for the
proposed reductions and modifications of the four other citations in this case. The reader should
be mindful that when presenting his rationale for these significant reductions, about half (i.e.
50%) of each rationale offered by the Secretary repeats essentially the same mantra, that “[i]n
consideration of this evidence, which slightly mitigates the negligence, and the risks inherent in
proceeding to a hearing, the Secretary agreed to reduce the penalty.” Motion at 3.
For Citation No. 9083151, involving a 104(a) citation, invoking § 75.202(a) (failure to
adequately control rib), and which was marked as S&S, Reasonably Likely, Permanently
Disabling, with 1 Affected, Moderate Negligence, and with a proposed penalty of $11,500.00,
the settlement amount is $6,513.00, representing a 43% reduction in the penalty.
The Citation identified 8 (eight) areas where
[t]he mine ribs where persons work or travel are not being adequately controlled
to protect persons from falling coal and rock on the 4 West TG Section in the
following locations: 1) 4 WEST TG Track switch on left rib measuring 53 ̎ wide
by 70 ̎ high and 8 ̎ thick [;] 2) 8S2-29 wall, #4-5 crosscut right rib measuring 24 ̎
2

Further evidencing the seriousness of this citation invoking 30 C.F.R. §75.223(a)(1),
five “subsequent actions,” dated August 28, 2015 through September 4, 2015, informed:
“Extended to allow time for a geologist from Murray Energy and MSHA to determine the
appropriate method to support mine ribs and submit a revised roof control plan. As part of this
extension the operator agreed to conduct a safety meeting with all employees before going
underground on heightened rib awareness to support and scale ribs down where men are required
to work or travel.” Subsequent Action August 27, 2015. Following that, the next continuation
data for the citation informed that, “[t]he operator has submitted an action plan which will take
effect until a revision can be made to the approved roof control plan. The action plan will place
an additional certified foreman on each producing section to monitor rib conditions in all entries
and scale down as needed. The results of all scaled ribs will be recorded in the section
examination book.” Subsequent Action August 28, 2015. Another Subsequent Action/
Continuation Data noted progress in the revision of the roof control plan, while remarking that
the August 28, 2015 action plan remained in place until such plan was approved. Subsequent
Action, August 31, 2015. This process continued, as reflected in Subsequent Action dated
September 1, 2015, with the same proviso that the August 28, 2015 action plan remained in
effect until a revised roof control plan was approved. Three days later, the revised plan was
approved. Subsequent Action September 4, 2015.

39 FMSHRC Page 1272

wide by 32 ̎ high by 7 ̎ [;] 3) 8S2-28 wall, #5-6 crosscut right rib measuring 18’
long by 3-5’ high and 6 ̎ thick [;] 4) 8S2-28 wall, #7-8 crosscut, left inby corner
measuring 45 ̎ wide by 58 ̎ high by 8 ̎ thick and 2 ˈ wide by 4 ˈ high and 8 ̎
thick. [;] 5) 4 WEST TG #5 entry inby #8 entry of the Mains measuring 24 ̎ wide
by 5 ˈ high and 5 ̎ thick [;] 6) 4 West TG #4 entry just inby 0 + 08 on left rib
measuring 8 ˈ long 5 ˈ high by 8 ̎ thick [;] 7) 4 West TG # 2 entry just inby 0 +08
right rib measuring 3ˈ long by 4ˈ high and 7 ̎ thick [;] 8) 4 West TG # 1 entry just
outby 0 + 08 right rib measuring 5 ˈ long by 4 ˈ high and 6 inches thick and left
rib measuring 5 ˈ long by 2 ˈ wide and 6 ̎ thick.
Citation No. 9083151.
Notably, the Citation then added, “Standard 75.202(a) [the standard violated] was cited
90 [ninety] times in two years at mine 4601436 (90 to the operator, 0 to a contractor.)” Id.
Employing an economy of words, a trait this Court has noted before in the Secretary’s
settlement motions, the rationale states, in full,
[t]hough there was visible deterioration to the ribs, Respondent presented
evidence that this condition did not exist for an extended period of time. In
consideration of this evidence, which slightly mitigates negligence, and the risks
inherent in proceeding to a hearing, the Secretary agreed to reduce the penalty.
Motion at 3.
Thus, though providing no details, and informing only that the “Respondent presented
evidence that this condition did not exist for an extended period of time,” (though the eight areas
are described singularly as a “condition,” not conditions,) the Secretary’s rationale must
necessarily suggest that all eight areas did not exist for an “extended” period of time, a decidedly
unusual situation.
Further, what the Secretary means by an “extended period” is not amplified. Beyond that
is the more fundamental issue of whether the Secretary’s declaring that the Respondent presented
evidence that this condition did not exist for an extended period of time is sufficient. This is
because telling the Commission that the Respondent presented evidence is simply an
uninformative declaration, as contrasted with the presentation of facts, disputed or agreed upon.
If such a declaration suffices, and the Commission is presented with nothing more, then the
Secretary will have, as a practical matter, succeeded with his original stance in settlement
submissions, that he need not provide the Commission with any real information. Such an
outcome would be essentially no different, substantively, than his repeated expression that “[i]n

39 FMSHRC Page 1273

consideration of this evidence,3 which slightly mitigates negligence, and the risks inherent in
proceeding to a hearing, the Secretary agreed to reduce the penalty.” Motion at 3 (emphasis
added).
For Citation No. 9083289, involving a 104(a) citation, which also invoked § 75.202(a)
(another failure to adequately control ribs), and which was also marked as S&S, and Reasonably
Likely, but “Fatal,” instead of Permanently Disabling, and again with 1 Affected, Moderate
Negligence, and with a proposed penalty of $12,900.00, a 75% reduction was presented, the
settlement amount being $3,225.00. To justify this very large reduction, the Secretary advised
that the “Respondent presented evidence that, based on their size, consistency, and location, the
cited ribs would not have caused fatal injuries.” Motion at 3. For the expectation of a
“permanently disabling” injury which, though not fatal, at least to the Court does not seem to be
a trifling injury, and for no other basis, the Secretary seeks the 75% penalty reduction.
By the Court’s reading of the Citation which, under the settlement, is not challenged,
except as to the fatal versus permanently disabling injury issue, the areas cited seem extensive.
The citation declared,
[t]he operator failed to adequately support or otherwise control the ribs in the # 2
entry (track) of 2- East. Hazardous rib conditions were observed in the following
locations gapped/separated and were easily pried down: – Between 71 and 72
block on the belt side rib, the loose rib measured 10.5 feet long, up to 3 feet wide,
and 8 inches thick. The binder in this area measured 2 feet thick[.] Between 76
and 77 block on the belt side rib, the loose rib measured 8 feet long, 6 feet wide,
and 4 inches thick. The binder in this area measured 2 inches thick. This is a
highly traveled area as miners walk past these conditions to get from the end of
the track to the longwall face. Some areas on this section have been rib bolted and
some areas have not been. The areas that are rib bolted do not slough and fall out
in big pieces like the areas that have not been supported. The cited location[s]
were along a rib line that was not supported. Standard 75.202(a) was cited 83
times in two years at mine 4601436 (83 to the operator, 0 to a contractor.
Citation No. 9083289.
The rationale provides no information as to the basis for the claim that the “size,
consistency and location” of the cited ribs would not cause a fatal injury but the settlement
concedes that a permanently disabling injury would occur and that it was reasonably likely to
3

To be clear, the Court does not consider an unadorned assertion that the “Respondent
presented evidence that this condition did not exist for an extended period of time,” standing
alone, as useful information. In numerous settlement motions before this Court the Secretary has
provided more information, at least as asserted from the perspective of a Respondent, to support
a proposed penalty reduction based on the contention that a condition had not existed for long. In
such cases, typically the settlement motion would then acknowledge that, in light of the
particular facts asserted by the Respondent, those asserted facts present legitimate questions of
fact which could only be resolved by way of a hearing.

39 FMSHRC Page 1274

result. Motion at 3. Nor does the Secretary concede, in any manner, that the size, consistency and
location claim creates legitimate factual disputes which could only be resolved through a
hearing. The citation, it should be recalled, referred to “big pieces” and noted that it was “a
highly traveled area.” Citation No. 9083289.
For Citation No. 9083153, involving a 104(a) citation, which again invoked § 75.202(a)
(another failure to adequately control rib), and which was also marked as S&S, and Reasonably
Likely, Permanently Disabling, and again with 1 Affected, Moderate Negligence, and with a
proposed penalty of $11,500.00, a 43% reduction reappears, with the settlement amount being
$6,513.00. To justify this very large reduction, the Secretary advised, in a reprise of its
justification for Citation No. 9083151, that the “[t]hough the cited condition was in a traveled
area, Respondent presented evidence that this condition did not exist for an extended period of
time.” Motion at 3.
The Citation stated that “[t]he mine ribs where persons work or travel are not being
adequately controlled to protect persons from falling coal and rock on the 8 South Mains track
entry left rib from 8S2-49 to 8S3-01 a piece of rib was scaled down with little to no effort
measuring 12ˈ long by 5ˈ high and 9 ̎ thick.” Citation No. 9083153.
The Secretary’s rationale for the 43% reduction provides in its entirety,
Though the cited condition was in a traveled area, Respondent presented evidence
that this condition did not exist for an extended period of time. In consideration of
this evidence, which slightly mitigates the negligence, and the risks inherent in
proceeding to a hearing, the Secretary agreed to reduce the penalty.
Motion at 3.
It should be recognized that, reduced to its essence, the rationale offers 15 (fifteen)
words: “Respondent presented evidence that this condition did not exist for an extended period
of time.” Id.
Accordingly, the Court notes the same deficiencies for Citation No. 9083153 as it
highlighted for Citation No. 9083151. If section 110(k) is to be meaningful, it is patently
insufficient for the Secretary to merely state that the Respondent presented evidence that this
condition did not exist for an extended period of time. Some basis for the Respondent’s claim
must accompany such an assertion.

39 FMSHRC Page 1275

For Citation No. 9083292, once again involving a 104(a) citation, and which also
invoked § 75.202(a) (another failure to adequately control rib), and which was also marked as
S&S, Reasonably Likely, and “Fatal,” with 1 Affected, Moderate Negligence, and with a
proposed penalty of $17,300.00, a 75% reduction was presented, the settlement amount being
$4,324.00. To justify this very large reduction, the Secretary advised that the
Respondent presented evidence that, based on its size and consistency, the cited
rib would not have caused fatal injuries. Respondent also presented evidence that
this condition did not exist for an extended period of time. In consideration of this
evidence and the risk inherent in proceeding to a hearing, the Secretary agreed to
modify the type of injury and reduce the penalty.
Motion at 4.
The citation asserted that,
[t]he operator failed to adequately support or otherwise control the ribs in the belt
entry of the 2-East Longwall. Between 77 and 76 block, a piece of rib is
gapped/separated and was easily pried down on the walk side of the belt. The void
in the rib after the area was scaled down measured 4 feet long, up to 3 feet wide,
and up to 8 inches thick. The loose rib was at the top portion of the rib line. The
bottom half of the rib had already had already sloughed and fallen out prior to
the condition being found. A miner was working beside the belt with his back to
the rib when the condition was found. No rib bolts were installed in this area.
Standard 75.202(a) was cited 93 times in two years at mine 4601436 (93 to the
operator, 0 to a contractor).
Citation No. 9083292 (emphasis added).
Again, in what the Court considers a jaw-dropping justification for a 75% reduction, the
settlement rests on the idea that a merely permanently disabling injury warrants such a reduction.
Notably, the Secretary dropped the “size, consistency, and location” description utilized in
Citation No. 9083289 (uninformative as it is), leaving “size and consistency,” without including
“location,” in support of the reduction. Motion at 3-4. This was not surprising, given that the
citation noted that “[a] miner was working beside the belt with his back to the rib when the
condition was found [and that] [n]o rib bolts were installed in this area.” Citation No. 9083292.
As he did for Citation Nos. 9083151 and 9083153, the Secretary again asserted the
unilluminating claim that the “Respondent also presented evidence that this condition did not
exist for an extended period of time,” but without any information about the nature of that
evidence. Motion at 4 (emphasis added).
When the above-articulated deficiencies in these rationales are considered in the context
of the one matter that was entirely conceded in the settlement, Citation No. 9083154, it strikes
the Court that the enormous penalty reductions for the other citations are unexplained anomalies.
Given the fully admitted conditions identified in Citation No. 9083154, and the concession that
the proposed penalty for that citation should remain intact, the other citations require substantial

39 FMSHRC Page 1276

justification to support reductions of this order. 4 After all, that fully-admitted violation, Citation
No. 9083154, describes a rib stability issue of long and known duration, with numerous citations
for failure to adequately support the ribs issued to the operator.
As noted at the outset of this decision, that citation informs,
the mine operator has been placed on notice that the existing roof control plan is
not adequate to address current mining conditions on June 11, 2015 and July 6,
2015. Mine management recognizes the adverse conditions as evidenced by an
internal written standard operating procedure (email) mandating the installation of
rib support. However, based on the observation of mining conditions, the
installation of rib supports has been sporadic and intermittent, and miners
continue to be exposed to the hazard of inadequately supported ribs.
Citation No. 9083154.
Accordingly, based on the foregoing reasons, and because merely asserting that a
respondent has “presented evidence,” is insufficient, the Secretary’s Motion for Decision and
Order Approving Settlement, being inadequate under Section 110(k), is DENIED. This case is
now to be set for a prompt hearing.
SO ORDERED.

/s/ William B. Moran
William B. Moran
Administrative Law Judge

4

As noted, each of these involved 30 C.F.R. §75.202(a) violations. Three of these were
found on August 26, 2015, (Citation Nos. 9083151, 9083289, and 9083153, at 5:05 p.m., 5:25
p.m., and 9:00 p.m., respectively.) Thus, the three citations found on August 26, 2015
precipitated the issuance of Citation No. 9083154, as reflected by that citation’s issuance at the
end of that day. The fourth § 75.202(a) violation, Citation No. 9083292, was issued two days
later, on August 28, 2015.

39 FMSHRC Page 1277

Distribution:
Jane Hwang, Office of the Solicitor, U.S. Department of Labor, Suite 630E, The Curtis Center,
170 S. Independence Mall West, Philadelphia, Pennsylvania, 19106
Jason Hardin, Fabian and Clendenin, 215 S. State Street, Suite 1200, Salt Lake City, Utah 84111
Artemis Vamianakis, Fabian and Clendenin, 215 S. State Street, Suite 1200, Salt Lake City, Utah
84111

39 FMSHRC Page 1278

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER, SUITE 290
875 GREENTREE ROAD
PITTSBURGH, PA 15220
TELEPHONE: 412-920-7240 / FAX: 412-928-8689

June 30, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 2014-816
A.C. No. 36-07230-346706

v.
CONSOL PENNSYLVANIA COAL
COMPANY, LLC,
Respondent

Mine: Bailey Mine

DECISION AND ORDER
Appearances:

Jennifer Gold, Esq., Office of the Solicitor, U.S. Department of Labor,
Representing the Petitioner
James P. McHugh, Hardy Pence, PLLC, Representing the Respondent

Before:
I.

Judge Lewis
Statement of the Case

This case is before me upon a petition for assessment of a civil penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act” or “Act”), 30 U.S.C. §
815(d). On May 29, 2014, the Secretary filed an Assessment of a Civil Penalty for Citation No.
7076747 for an alleged violation of 30 C.F.R. § 50.10(b) to Consol Pennsylvania Coal Company,
LLC (“Respondent”) at Bailey Mine. On July 2, 2014, Respondent filed an answer contesting
Citation No. 7076747 and the negligence findings. This case was assigned to the undersigned on
April 28, 2016. On December 13, 2016, a hearing was scheduled to take place on March 8, 2017,
in Pittsburgh, PA. The parties presented testimony and documentary evidence, filed post-hearing
briefs, and reply briefs.

39 FMSHRC Page 1279

II.

Joint Stipulations1
The parties have stipulated to the following facts:
1. The Respondent was an "operator" as defined in § 3(d) of the Federal Mine
Safety and Health Act of 1977, as amended (hereinafter "the Mine Act"), 30
U.S.C. §§ 802(d) and 803, at the mine at which the Citation(s)/Order(s) at issue in
this proceeding were issued.
2. Operations of the Respondent at the mine at which the Citation(s)/Order(s)
were issued are subject to the jurisdiction of the Mine Act.
3. Bailey Mine is operated by the Respondent.
4. Payment of the total proposed penalty of $5,000.00 in this matter will not affect
the Respondent’s ability to continue in business.
5. The individual whose name appears in Block 22 of the Citation(s)/Order(s) in
contest was acting in an official capacity and as an authorized representative of
the Secretary of Labor when the Citation(s)/Order(s) were issued.
6. The Citation contained in Docket No. PENN 2014-816 was issued and served
by a duly authorized representative of the Secretary of Labor upon an agent of
Respondent at the date, time, and place stated in the Citations, as required by the
Act.
7. Exhibit “A” attached to the Secretary’s Petition in Docket No. PENN 2014-816
contains true and authentic copies of Citation No. 7076747 with all modifications
or abatements, if any.
8. The R-17 Certified Assessed Violation History Report is an authentic copy and
may be admitted as a certified business record of the Mine Safety and Health
Administration.

(JX-1).

1

The Joint Stipulations were submitted at hearing as Joint Exhibit 1 (JX-1). Each
stipulation will hereinafter be cited to as J.S. followed by the stipulation number. The Secretary’s
exhibits will be cited to as GX followed by its number and Respondent’s exhibits will be cited to
as RX followed by its number.

39 FMSHRC Page 1280

III.

Summary of Testimony

Thomas Bochna
Thomas Bochna investigated the accident at issue on August 12, 2013.2 (Tr. 38).3 Bochna
had first learned of the Bailey Mine accident at issue here on August 12, 2013, shortly after he
arrived for work at 5:30 a.m. (Tr. 38). He had inspected Respondent’s mine “many times” in the
past. (Tr. 43).
On August 12, 2013, Bochna had reduced to writing the initial 103(j) order to a 103(k)
order which was terminated that day. (Tr. 45-48; GX-2). Bochna had initially interviewed
witnesses at Bailey Mine on the day of the accident, later interviewing the victim, Robert Stern,
at Health South Rehab facility. (Tr. 49). As a result of his investigation, Bochna eventually
issued his 104(a) citation, Citation No. 7076747, on September 23, 2013. (GX-1).
According to the MSHA Escalation Report, GX-3, Respondent’s safety supervisor at
Bailey Mine, Michael Tennant, first notified MSHA of the accident at 5:09 a.m. (and 55
seconds). (Tr. 51). Bochna’s investigation had established that the accident had taken place at
around 3:15 a.m. (Tr. 52). Bochna did not know why the escalation report had given 4:45 a.m. as
the accident time. (Tr. 52).
Respondent had indicated according to the report that the “types of injuries” sustained
were “unknown.” (Tr. 53; GX-3).
In his preliminary report of the accident, GX-1, Bochna described the accident as a GMS
Repair Employee being injured when he became caught between the bucket of a battery scoop
and a supply car. (Tr. 56). Referring to his Accident Investigation-Data Report, Bochna found
the “root cause” of the accident to be the employee positioning himself in a “pinch point red
zone area” between the scoop bucket and the rail car. (Tr. 57; GX-1).
After conducting both individual and ground interviews at Bailey Mine, Bochna ended
his questioning at 10:25 a.m. (Tr. 62-63). He learned that the accident had come about because
Mr. Stern had entered the area between the scoop and the end of the rail car to determine why the
scoop was stuck. (Tr. 66-67). Due to some slack in a safety chain and drifting forward of a rail
car, Stern became crushed between the scoop and the end of the rail car. (Tr. 68-71). Both the
scoop and rail car were large objects weighing 5-10 tons. (Tr. 69).
2

He had worked as a supervisory coal health and safety inspector for three years, first
beginning work as a regular coal health inspector in 2008. (Tr. 36). His coal mine inspector
duties involved conducting E01 and spot inspections, issuing citations, and performing accident
investigations. (Tr. 37). Prior to joining MSHA, Bochna had worked for 30 years as a coal miner.
(Tr. 37). His positions included continuous miner operator and fire boss. (Tr. 37). Possessing a 2year degree from Penn State in mine engineering, Bochna had a total of 39 years of experience in
coal mining. (Tr. 36-37).
3

References to the hearing transcript will be cited as Tr. followed by the page number.

39 FMSHRC Page 1281

Bochna reviewed his inspection notes at hearing. He had interviewed Daniel Greathouse,
who operated the scoop when the accident had taken place and who had participated in a recreation of the accident. (Tr. 77, 82). Greathouse reported that Stern stated that it felt like his
“guts were coming out of his penis.” (Tr. 83).
Bochna also interviewed two GMS “red hats,” Travis Barber and Garret Scales, who
were working with Stern at the time of the accident. (Tr. 78-80). Although neither Barber nor
Scales had actually witnessed the accident take place, they heard and saw Stern immediately
thereafter. (Tr. 79). Both Barber and Scales recalled Stern stating that he was hurt “real bad,”
was in some pain, and felt like something was coming out of his penis. (Tr. 81).
Travis Stillwell was also interviewed. (Tr. 84). Stillwell was at the scene at the time of
the accident and heard Greathouse say, “scoop stuck” and then Stern say, “help me.” (Tr. 85).
When Stillwell approached Stern—the victim was laying on the ground, complaining that his
stomach hurt and that he could not feel his legs. (Tr. 85).
Bochna also reviewed his interview of John McDonald, section foreman at Bailey Mine.
(Tr. 85). McDonald had been notified about the accident at approximately 3:25 a.m. (Tr. 86). He
issued instructions to Colby Watson to bring a gurney and EMT kits to the accident site. (Tr. 85).
McDonald had called the bunker, stating that a Life Flight would be needed. (Tr. 86). Life Flight
was a helicopter brought in when there was a serious injury and speedy transportation to a
hospital was necessary. (Tr. 86). McDonald noticed that Stern was experiencing stomach
swelling and was in extreme pain. (Tr. 86).
Bochna had also interviewed Shannon Smith, an EMT, who gave treatment to Stern at the
scene. (Tr. 86). Smith found Watson, Greathouse, and McDonald attempting to put Stern on a
backboard. (Tr. 87). Stern’s head was being held up because no neck brace was available. (Tr.
87). His visible injuries included abrasions on the right side around the waist area, a little
(amount of) blood on the right hip area, and bruising around the hip area. (Tr. 87). Stern could
not move his left leg and had no feeling in his right leg. (Tr. 87). No oxygen was available at the
scene and was only given by EMS when Stern was transported to the surface on a mantrip. (Tr.
87, 88).
Smith related that Stern had never lost consciousness. (Tr. 88). Smith spoke with Stern on
the mantrip all the way to the surface. (Tr. 88). Haulage had been cleared all the way out.4 (Tr.
88).
Bochna interviewed Stern at a rehab facility on September 4, 2013. (Tr. 89). Stern had a
plate inserted into his hip area. (Tr. 89). Bochna’s review of hospital records disclosed that after
Stern’s internal bleeding had stopped, surgery on the pelvis was performed on August 12, 2013.
(Tr. 90). Stern was reported to have a crushing injury to his spine/pelvis. (Tr. 90).

4

There was a call on the mine radio to signal that all equipment traffic should be stopped
so as to make way for Stern’s mantrip transport to the surface. (Tr. 88).

39 FMSHRC Page 1282

Bochna had also spoken with Roy Cumberledge, coordinator for GMS at Enlow and
Bailey Mines, who had been at the hospital when Stern had been admitted. (Tr. 91).
Cumberledge had been unable to view the injuries well, except for an abrasion on Stern’s right
hip. (Tr. 91). The doctor at the hospital predicted Stern’s bleeding would stop in one to one and a
half hours, which it did, without the necessity for surgery to prevent further bleeding. (Tr. 91).
Surgery on the pelvis was performed at around 1:00 p.m. (Tr. 91).
Documentary Evidence Regarding the Nature of the Accident
At hearing, the Secretary offered into evidence GX-12A, MSHA’s Accident Prevention
Program Safety Idea, Proper Blocking, in order to establish that failing to block against
hazardous motion was one of the most frequently cited regulations when investigating serious
accidents and fatalities. 5 (Tr. 95).
The Secretary also introduced into evidence, MSHA’s Accident Prevention Program
Safety Idea: Blocking against Motion. (GX-12B). This document disclosed that “in the past
years, seven miners died…[because] safety props [were] not available and block was either not
used or ineffective.” (Tr. 102). This exhibit also reported the case of a miner who was crushed
between the bucket lift arms and front-end loading frame because the loader was not effectively
secured from movement. (Tr. 102-03)6.
Another MSHA Accident Prevention Program Safety Idea, Stay Seen - Stay Alive was
offered by the Secretary. (GX-12C). In this report, MSHA announced that during the period
spanning January 2000-July 2011, there had been 76 fatalities due to miners being struck by
surface and underground equipment. 7 (Tr. 103).
The Secretary also offered an MSHA Accident Prevention Program/Miner’s Tip—work
experience around machinery. (GX-12E). This Bulletin, dated April 30, 2002, included the
5

Over objections of Respondent, this Court allowed the admission of said document and
similar documents as being relevant evidence regarding the “nature of the accident.” As
discussed intra this Court holds that the proper test for determining a violation of §50.10(b) is
whether, considering the totality of the circumstances, including the nature of the accident, an
operator knew or should have known that the injury/injuries sustained by the miner had a
reasonable potential to cause death. This Court specifically rejects any argument advanced by
Respondent that this test is limited to assessing signs and symptoms associated with the miner’s
injury. (See also Parties’ arguments regarding such at Tr. 94-100).
6

For the same reasons above referenced, this Court also allowed admission of such, over
objection, into the record.
7

Given that Stern also had been struck/crushed between large pieces of equipment, this
Court once again, over objections of Respondent, allowed this exhibit’s admission. This Court,
as noted intra, found such evidence relevant in considering the “nature of the accident” vis-à-vis
the reasonable potential for fatal injury and Respondent’s at least constructive knowledge of its
duty to immediately notify MSHA under such circumstances.

39 FMSHRC Page 1283

specific advice: “Do not get between two pieces of mobile equipment. They could crush you.”
(Tr. 105).
Also admitted into evidence, over objection of Respondent8, were a series of fatalgrams,
all of which involved miners being killed when pinned or crushed between heavy machinery and
a coal rib. (GX-13B, 13C).
Based inter alia upon Bochna’s interviews with Bailey Mine, Consol Corporate, and
GMS personnel, his personal investigation of the accident, Stern’s complaints voiced at the
scene, the observations of Stern by on-the-scene witnesses, the calls to clear haulage and for a
Life Flight, and the treatment rendered, Bochna concluded that Respondent had violated
§50.10(b). (Tr. 111-12).
Cross Examination of Bochna
On cross examination, Bochna was asked to explain why it had taken 43 days for him to
conclude that Respondent had failed to call MSHA within 15 minutes of learning of the accident.
(Tr. 114). Bochna explained that it had taken this period to fully complete his investigation. (Tr.
115). He had conducted ten or more accident investigations in the past. (Tr. 115).
As far as Stern’s injuries were concerned, Bochna did not know what was actually told to
John McDonald by the “red hats.” (Tr. 118). Neither did Bochna know what Greathouse,
Stillwell, or Tennant had actually relayed to McDonald. (Tr. 119).
Bochna had not spoken to EMS personnel regarding Stern’s injuries. (Tr. 120). He had
been informed that a doctor at the hospital had opined that Stern’s bleeding would “stop on its
own.” (Tr. 121). Bochna did not know the circumstances under which Respondent might call for
Life Flight. (Tr. 122).
During his interview of John McDonald, Bochna was informed that subsequent to the
accident Stern had not lost consciousness, was speaking, and was answering questions. (Tr. 12324). Bochna had been further informed that no CPR was given. (Tr. 124). Bochna had never
asked McDonald if McDonald thought Stern’s injuries had a reasonable potential to cause death.
(Tr. 125). Nor did he pose this question to anyone else. (Tr. 125). Bochna had not called any
medical professional at the hospital to determine whether there was any surgery for internal
bleeding. (Tr. 128).
Bochna acknowledged that he had commended Respondent for its speedy treatment of
Stern. (Tr. 131).
Given that the accident involved two very heavy pieces of equipment crushing an
individual, the victim’s stomach distention and inability to move his legs, Bochna reiterated that
8

As in the foregoing instances, this Court allowed the admission of the fatalgrams to
establish that Respondent had been put on notice of the potentially fatal nature of crush injuries.

39 FMSHRC Page 1284

Respondent should have been “pretty quickly” aware that Stern’s injuries required immediate
MSHA notification. (Tr. 133).
Shannon Smith
At hearing, Shannon Smith, the fire boss mine examiner at Bailey Mine, testified that he
had worked in such position since 2009.9 (Tr. 163-64). Smith had first learned via a radio call at
Bailey Mine that “there was a man crushed.” (Tr. 165). Together with a fellow fire boss, Donald
Wolf, Smith arrived at the accident site within 12 minutes of the call. (Tr. 166). When he first
arrived upon the scene, Smith found John McDonald, Danny Greathouse, and some contractors.
(Tr. 167). Stern was lying on his side. (Tr. 169). He had a bend to his knee—“like his leg’s
broken.” (Tr. 170). Stern complained of being in pain. (Tr. 171). He was unable to move one of
his legs. (Tr. 171). Don Wolf applied a “C spine,” which holds the neck straight. (Tr. 171).
Stern’s stomach “felt like it was getting hard,” and it was distended. (Tr. 172). Smith
acknowledged that this could be a sign of internal bleeding. (Tr. 172). There was a “little dab” of
blood on his leg. (Tr. 173).
Stern further complained that he felt like something was coming out of his penis. (Tr.
173). Upon examining Stern, Smith, however, did not see “anything coming out.” (Tr. 173).
Stern further asked Smith that if something happened to him, to tell Stern’s wife and
family that he loved them. (Tr. 174).
Smith characterized Stern’s injury as “pretty bad” and traumatic, Stern’s accident being
the worst he had ever been involved with. (Tr. 174).
Smith himself had never called for Life Flight, nor has Life Flight been called since the
accident at issue. (Tr. 175). However, Smith had heard that it had been called in the past. (Tr.
175).
Smith had not administered oxygen—because none was available at the scene, and Smith
did not want to stop as he wanted to get Stern outside as quickly as possible. (Tr. 176-77). Smith
did not take Stern’s blood pressure because he did not have a cuff with him. (Tr. 177).
Smith called the bunker in order to have Life Flight contacted. (Tr. 179). In calling for
Life Flight, Smith “wanted to err on the side of caution” because Stern might have possible
internal bleeding that could lead to death. (Tr. 180).

9

Smith was also a licensed and certified EMT. (Tr. 164). He had previously worked in
mining as a bolter operator and bolter helper. (Tr. 165).

39 FMSHRC Page 1285

Cross Examination of Smith
On Cross Examination, Smith said he had utilized an assessment phase called
DCABPTLS10 in examining Stern. (Tr. 183). Once he had gone through the assessment, Smith
knew he “had to get him (Stern) out of the mine…fairly quickly.” (Tr. 183).
Stern did not lose consciousness at the scene and was able to understand questions. (Tr.
184). He did not have any problems with his pulse. (Tr. 184). There was a “bruising-type thing”
across Stern’s belly11. (Tr.185). There was no evidence of head injury. (Tr. 186). Stern was able
to answer “sample questions.” (Tr. 187). Smith noted no change in Stern’s condition when he
was handed-off to the paramedics. (Tr. 188).
John Henry McDonald, Jr.
John McDonald, Jr., a section supervisor at Bailey Mine since 2007 appeared and
testified at hearing.12 (Tr. 192-93). McDonald first learned of Stern’s accident from Stern’s
fellow GMS worker, Garret Scales. (Tr. 194). It was approximately quarter after 3:00 a.m. when
McDonald was first contacted. (Tr. 195). He was approximately 900 feet from Stern’s accident
site. (Tr. 195). Three to four minutes elapsed before McDonald arrived at the scene. (Tr. 195).
McDonald found Stern lying on his side, saying he had gotten “pinched” and was in a lot of pain.
(Tr. 196). McDonald called the bunker to contact 9-1-1 to get an ambulance. (Tr. 196).
McDonald called MSHA with the same bell phone13 that he had used to call the bunker. (Tr.
196).
McDonald had called Shannon Smith on the radio to come to the scene. (Tr. 198). All
McDonald understood as to the nature of the accident was that Stern “got pinched between the
scoop and the [rail] car.” (Tr. 200). Initially, McDonald thought Stern had sustained a femur
injury; but after talking to Stern, Smith thought it was higher up in the hip area. (Tr. 201).
McDonald had noticed “a lump” in Stern’s stomach and felt “hardness” on his stomach.
(Tr. 201). Colby Watson had accompanied McDonald to the scene and had been instructed by
McDonald to get a gurney and EMT kits. (Tr. 202).
Daniel Greathouse had informed McDonald that he had backed the scoop up in order to
let Stern free. (Tr. 202). Stern was unable to move his legs and could only feel a pinch in one of
10

This acronym stands for: deformities, contusions, abrasions, punctures, bruising/burns,
tenderness, lacerations, and swelling.
11

In pointing to where the bruising was located on Stern’s body, Smith placed his hand a
little above his belt. (See also Tr. 185-86).
12

McDonald had also worked at Bailey Mine as a foreman trainee. (Tr. 193). He had
received an associate degree in mining technology at Penn State University. (Tr. 193). McDonald
had at least 15 years of total mining experience. (Tr. 194).
13

Bell phones can be used to call outside lines. (Tr. 196).

39 FMSHRC Page 1286

his legs. (Tr. 203). When Stern’s legs were moved, he screamed in extreme pain. (Tr. 203).
McDonald had requested haulage be cleared for Stern’s exit.14 (Tr. 204). It took approximately
40 minutes for Stern to be taken out. (Tr. 204). Once Stern was placed in the ambulance,
McDonald did not know where Stern was headed. (Tr. 204).
McDonald testified he was familiar with a document entitled Immediately Reportable
Accident as contained in GX-8. (Tr. 206-07). This document was posted on the bulletin board in
the shift foreman’s office and on bulletin boards around Bailey Mine. (Tr. 207). This document
had at one time also been in McDonald’s locker. (Tr. 206).
McDonald testified that during his years at Consol, he had never been given specific
instruction as to how to interpret the reportable event: “an injury to an individual at a mine which
has a reasonable potential to cause death.” (Tr. 208; GX-8). McDonald was acquainted with GX7—a Bailey Mine document entitled Reportable Incident Guidelines. (Tr. 209). McDonald also
acknowledged that GX-10 was a Consol Energy safety presentation regarding “Pinch Points/Red
Zones” that described the Bailey Mine Incident at issue as being one which “had a high potential
for a fatal accident.” (Tr. 213).
GX-9 contained another Consol Energy safety talk entitled “proper blocking,” dated June
20, 2011. (Tr. 2014-15). McDonald agreed with the first sentence of the presentation, which
read: “one of the most frequently cited regulations when serious accidents and fatalities are
investigated is the failure to block equipment against motion.” (Tr. 215).
McDonald was an unlicensed EMT at the time of the instant accident. (Tr. 217).
McDonald had called the bunker to contact an ambulance. (Tr. 219). It had taken Shannon Smith
8 to 10 minutes to arrive at the accident site. (Tr. 218). Stern was on the ground, was in pain, and
could not move his leg. (Tr. 218). He could speak and answer questions intelligibly. (Tr. 219).
He did not exhibit any breathing problems. (Tr. 219). He did not appear to a have head injury or
to be in shock. (Tr. 220). McDonald could not detect any deterioration in Stern’s condition from
when he first observed Stern until Stern was handed off to the EMTs. (Tr. 220).
Based upon his observations of Stern, McDonald had concluded that his injuries did not
have a reasonable potential to cause death. (Tr. 222). McDonald did not have specific
responsible person training as to immediate reportable accidents. (Tr. 224; See also GX-8). But
he had participated in a group presentation when he had received his foreman papers. (Tr. 224).
Red zone training was given because of all the tight areas and mobile equipment at Bailey Mine,
red zone violations being particularly dangerous. (Tr. 224).

14

Haulage was cleared anytime someone became sick or needed to leave the mine. (Tr.

222).

39 FMSHRC Page 1287

On redirect examination15 McDonald stated that Life Flight had been called for on the
ride out “for precaution” because “when we felt his stomach, we got nervous.” (Tr. 225).
Testifying that he and Shannon Smith tried to hide their conversation about Stern’s stomach
hardening from Stern, McDonald explained that stomach swelling could indicate internal
bleeding and internal bleeding had a reasonable potential to cause death. (Tr. 225).
Michael Tennant
Michael Tennant had been safety supervisor at Bailey Mine since September 2008.16 (Tr.
231). Tennant had first learned of Stern’s accident when he had been called by Eric Cecil from
the bunker at approximately 3:30-3:45 a.m. (Tr. 233). Tennant had been advised that Stern “was
pinched between two cars and EMTs were on their way.” (Tr. 233). Tennant was at his home at
the time, and during his drive to the mine, he received a second call in which he was informed
that Life Flight had been called. (Tr. 234). Stern’s injuries were described as involving “a broken
leg, dislocated hip or some lower-type pelvis-type incident…” (Tr. 234). Stern was reported to
be conscious and alert. (Tr. 234). Tennant did not make any calls from his car regarding the
accident but did initially call from his home, notifying his supervisor, Eric Shuble, who was the
general superintendent. (Tr. 235).
Tennant reported initially to Steve Apperson, manager of safety. (Tr. 235-36). Apperson
would report to Chuck Shaynak, who was vice president of Consol’s Pennsylvania operations.
(Tr. 236).
Tennant arrived at the mine at about 4:50 a.m., approximately one hour after the bunker
person’s original call. (Tr. 237). Stern was already gone. (Tr. 245). Tennant did not call Steve
Apperson or anybody from GMS. (Tr. 238). He eventually called MSHA at around 5:09 a.m.
(Tr. 239). Tennant had received a call from Randy Cumberledge, a GMS coordinator, to update
Tennant on Stern’s condition. (Tr. 219). Stern was reported to have a broken pelvis and internal
bleeding. (Tr. 239).
Tennant did not go to Bailey Mine every time that there was an accident but had chosen
to go to Bailey Mine because Stern had been pinched between two large pieces of equipment.
(Tr. 243). Tennant did not know why the MSHA Escalation Report gave 4:45 a.m. as the time of
the accident. (Tr. 243; GX-3).
Tennant testified that, subsequent to mine accidents, safety talks as contained in GX-10
were generally given as soon as possible. (Tr. 246). Tennant agreed with the final sentence under
Pinch Points/ Red Zones, which read: “This had a high potential for a fatal accident.” (Tr. 247).
15

As discussed infra McDonald’s statements on redirect examination essentially
contradict Respondent’s argument that Stern’s injuries did not appear to have a reasonable
potential for death.
16

From 2001 to 2008, he had been a safety inspector at the mine. (Tr. 231). Tennant
possessed a bachelor’s degree in safety engineering and had an assistant mine foreman
certification. (Tr. 232).

39 FMSHRC Page 1288

Tennant further agreed that, as outlined in Bailey Mines/ Reportable Incident Guidelines bulletin,
he was to be immediately notified following any agency notification of an injury, which had the
reasonable potential to cause death. (Tr. 251; GX-7). Tennant also confirmed that a Consol
Energy safety talk on “proper blocking,” dated June 20, 2011, indicated that the failure to block
equipment against motion was one of the most frequently cited regulations when serious
accidents and fatalities are investigated. (Tr. 253; GX-9).
According to Consol documents, the Bailey Mine incident17 at issue was reported to have
fatal potential of “5” and the “high probability to cause death.” (Tr. 262-67; See also GX-14).
Based upon the information given to him by Cecil over the phone—that there was
something wrong about Stern’s leg or pelvis, that Stern might have a dislocated hip or broken
leg, but that he was conscious and alert—Tennant did not believe that any of Stern’s injuries
posed a reasonable potential to cause death. (Tr. 269-70). Tennant received basically the same
information from EMT Smith that he received from Shift Foreman Tomlin at the mine site. (Tr.
270-71). He did not receive any information from the hospital to alter his opinion. (Tr. 271).
Given that Life Flight had been called and there was a serious accident, Tennant decided to call
MSHA so that inspectors coming in would know something “about the event.” (Tr. 272).
In addition to Tennant, Danny Tomlin was the “responsible person” to make the call to
MSHA. (Tr. 272). In the past, Tennant had made approximately 15-25 (or less) calls to MSHA to
report injuries which had the reasonable potential to cause death. (Tr. 274). Tennant “typically
use[d] common sense” in deciding to make such calls; he considered such factors as
amputations, CPR, attempts to stop bleeding, lack of alertness, unconsciousness, blunt force
trauma to the head or upper extremities to be triggers to call MSHA. (Tr. 274). Tennant never
took into account the nature of the event in determining “reportability” under § 50.10(b), but
only the seriousness of the injuries. (Tr. 275).
During his initial phone conversation with Cecil, Tennant had not asked questions about
whether Stern had upper body or lower body injuries, whether CPR had been performed, whether
there were any amputations, any kind of profuse bleeding or internal bleeding, whether there
were any blood pressure issues, or why EMT had thought it necessary to call Life Flight. (Tr.
282-83). After learning of the accident, Tennant was initially concerned about Stern receiving
proper care—not calling MSHA. (Tr. 284-85).

17

As argued at hearing and indeed throughout these proceedings, both parties contested
whether this and similar phrases referred to the type of injury or the type of accident. (See also
Tr. 266).

39 FMSHRC Page 1289

Susan Bealko
Susan Bealko, corporate safety director for GMS, testified at hearing.18 (Tr. 288). Bealko
had first learned of Stern’s accident on August 12, 2013, at approximately 3:45-4:00 a.m. from
Mike Fleece, GMS’s PA ops coordinator. (Tr. 289-90). After getting dressed and dropping off
grain for her horse, she left for the hospital at approximately 4:15-4:20 a.m. (Tr. 291). She met
Fleece at the hospital; Fleece advised her that Randy Cumberledge, the site coordinator, was
speaking with Stern. (Tr. 290-91). At some point, a doctor came out, announcing that Stern was
stable and was being prepped for surgery. (Tr. 293). There had been a “small bleed” that had
since ceased. (Tr. 293). Surgery was performed at around 1:00 p.m. (Tr. 293).
Bealko had heard nothing that led her to believe that Stern’s injuries had a reasonable
potential to cause death. (Tr. 293). She did not contact MSHA regarding such because as GMS’s
safety director she felt Stern’s injuries were not life threatening. (Tr. 294).
Bealko had not gone to Bailey Mine before going to the hospital and had therefore not
observed Stern at the accident site. (Tr. 300).
Richard Marlowe
At hearing, Richard Marlowe testified on behalf of Respondent.19 (Tr. 301-02). Marlowe
testified that in August 2013, Marlowe was “probably” the director of safety awareness. (Tr.
302). Referring to RX-5, “RPI’s August 2013,” Marlowe stated that reports of personal injury
were put together and distributed to various business units in mines. (Tr. 303). He had circulated
the August 2013 RPI in question. (Tr. 304). Based upon his review of the (Stern) incident,
Marlowe had determined the situation had a potential for fatality. (Tr. 305). The form was not
meant to indicate the likely outcome of injuries. (Tr. 310). In a situation involving an individual
getting pinched between two pieces of equipment, Marlowe testified that, if such a condition was
allowed to continue, a fatality could reasonably be expected to take place. (Tr. 310-11). There
could be a situation with a high fatal potential but with no actual injuries involved. (Tr. 311).
Marlow had not been present at the Bailey Mine when Stern was injured, had not directly
observed any of Stern’s injuries, and had not specifically participated in the accident
investigation. (Tr. 315).
IV.

Contentions of the Parties

Respondent argues that the Secretary failed to meet its burden of proof in proving a
§50.10(b) violation for Citation No. 7076747. Resp’t Post-Hearing Br. at 11-26. Respondent
18

She had been corporate safety director for 5 years and had been in the mining industry
for 27 years. (Tr. 288). Bealko had a mining engineer degree from Penn State. (Tr. 288). She had
also worked for NIOSH, the mining research branch of MSHA. (Tr. 288).
19

Marlowe had an undergraduate degree in mining engineering technology and a
master’s in safety management. (Tr. 302).

39 FMSHRC Page 1290

contends that Stern’s injuries were not life-threatening and did not have the reasonable potential
to cause death. Resp’t Post-Hearing Br. at 12-21. Respondent also contends that the surrounding
circumstances of the accident are not relevant and that the accident did not involve an injury with
the reasonable potential to cause death. Resp’t Post-Hearing Br. at 21-22, 26-27. Respondent
further contends that the statutory provision in 30 U.S.C. § 813(j) is in conflict with the
regulation in 30 C.F.R. § 50.10(b), and in such instances the statute prevails. Furthermore, it
argues that the reporting requirement is subjective and should be subjectively applied. Resp’t
Post-Hearing Br. at 22-26. Additionally, Respondent argues the negligence should be assessed at
low, there was no fair notice of the violation’s interpretation, and the penalty should be
decreased from $5,000.00. Resp’t Post-Hearing Br. at 31-33. Respondent also essentially argued
that neither a totality of the circumstances test nor a reasonable person test are not appropriate for
§50.10(b). Resp’t Reply Br. at 12-17.
The Secretary argues that Respondent violated 30 C.F.R. § 50.10(b), that the Respondent
was moderately negligent, and that the penalty should be assessed at $5,000.00. Sec’y PostHearing Br. at 12-30. The Secretary contends that the Respondent knew or should have known
within 15 minutes of its occurrence that Stern’s accident involved injuries with a reasonable
potential to cause death. Sec’y Post-Hearing Br. at 14-28. The Secretary further contends that the
Respondent had adequate notice of the standard. Sec’y Reply Br. at 9-12.
V.

Issue Presented

In determining whether 50.50(b) has been violated, should a “totality of the
circumstances” test be utilized, including such factors as a “nature of the accident” and signs and
symptoms of injury at the time of accident and immediately thereafter?
VI.

Law and Regulations
30 C.F.R. § 50.10(b) Immediate notification in pertinent part provides as follows:
The operator shall immediately contact MSHA at once and without delay and
within 15 minutes…once the operator knows or should know that an accident has
occurred involving: …(b) an injury of an individual at the mine which has a
reasonable potential to cause death.

VII.

Findings of Fact and Conclusions of Law

In arriving at its within decision that Stern’s injuries evinced a reasonable potential to
cause death and that Respondent had correspondingly failed in its notification duty under §
50.10(b), this Court recognizes that operators are not expected to be experts in diagnosis or
prognosis at the scene of a mine accident. This Court also recognizes that there is not a statutory
or a regulatory definition of “reasonable potential to cause death” and further notes the

39 FMSHRC Page 1291

Commission’s declining to define such in Signal Peak Energy, LLC, 37 FMSHRC 470 (Mar.
2015).20
Moreover, there is undoubtedly a gray area in determining whether an injury is
potentially fatal and actually fatal.21
However, operators are not left at sea—without direction—as to when to notify MSHA of
an accident. There are numerous navigational instruments to guide them to a proper
determination.
A.

Any Reasonable Doubt Must Be Resolved in Favor of Notification

As the Commission has made abundantly clear in Signal Peak Energy, LLC, any
“reasonable doubt” in determining whether MSHA should immediately be notified must be
resolved in favor of notification. 37 FMSHRC 470, 477 (Mar. 2015).
This should be the North Star directing all mine operators in their search for a proper
determination under §50.10(b).
The Respondent had advanced various arguments (of varying merit) explaining its failure
to immediately notify MSHA. However, the circumstances surrounding Stern’s injuries should
have raised multiple red flags of doubt to any prudent operator—doubt that should have been
resolved in favor of notification.
B.

Operators Must Be Guided by the Protective Purpose of the Act and the Standard

As held by the Commission in Signal, in determining whether or not to call MSHA, an
operator should be guided by the protective purpose of the Act and § 50.10(b) mandatory
standard. Signal at 477. The preamble to the final rule addressing 30 C.F.R. § 50.10 in 2006
stated:
In emergencies, where delay in responding can mean the difference between life
and death, immediate notification leads the mobilization of an effective mine
emergency response. Immediate notification activates MSHA emergency
response efforts, which can be critical in saving lives, stabilizing the situation, and
preserving the accident scene. Immediate notification also promotes Agency
assistance of the mine’s first responder efforts. In other situations, it allows for a
range of appropriate Agency responses depending on the circumstances. It alerts
MSHA to trends or warning signals that can trigger a special inspection, an
investigation, or targeted enforcement. This communication also encourages
20

See also Commissioner Cohen’s dissent calling for a definition in Signal Peak Energy,
LLC, 37 FMSHRC at 477 n. 8.
21

T.S. Eliot’s lines in The Hollow Men are called to mind “between the potency and the
existence…falls the shadow.”

39 FMSHRC Page 1292

operators and miners to work with MSHA to develop procedures that prevent
incidents from resulting in more hazardous situations, ultimately leading to
disasters.
71 Fed. Reg. at 71, 431.
Thus, in addition to Signal’s directive that all reasonable doubts be resolved in favor of
notification, operators have two other bright beacons directing their § 50.10(b) considerations:
the protective purpose of the Act and mandatory safety standard.
It is clear that the circumstances surrounding the accident and injury must be considered.
For example, under the definition of accident provided in §50.2, several examples are given as to
what constitutes an accident, including an injury at a mine with the reasonable potential to cause
death, entrapment for more than 30 minutes, unplanned inundation, and an unplanned fire. See
30 C.F.R § 50.2. Most of the enumerated examples describe circumstances, rather than injuries.
Thus it is clear that §50.10(b) does not exclude and in fact encourages an analysis of the
circumstances surrounding the event causing a mine injury. See id.
Similar to most controversies arising out of the Mine Act, determinations regarding §
50.10(b) notifications are necessarily fact specific and must be evaluated on a case-by-case basis
with due consideration for the totality of the circumstances. See e.g., Black Beauty Coal Co., 36
FMSHRC 1821 (March 10, 2014) (ALJ) (holding safeguard notice requirements for a water
accumulation violation are analyzed on a case-by-case basis).
This Court rejects the Respondent’s arguments that a totality of the circumstances
approach, including consideration of the nature of the accident, should not be employed in
determining whether a miner’s injury is reportable under § 50.10(b).
In Signal Peak Energy, the Commission unequivocally held that all “readily available
information”—“including the nature of the accident” should be considered in determining
whether an injury was reportable. Signal Peak Energy, LLC, 37 FMSHRC at 476. The
Commission noted that such evidence was “highly relevant.” Id. Because the extent of an injury
is not always immediately apparent, the Commission reasoned that the specific circumstances,
including how the injury occurred, should be considered by the mine operator.22 Id. As discussed
intra, the Secretary has presented persuasive documentary and testimonial evidence that the type
of accident in which Stern was involved—being crushed23 in a red zone between two large
pieces of machinery—often leads to fatal injury.
22

In Red River Coal Co., 39 FMSHRC 368, 391 (Feb. 2017)(ALJ) Judge Feldman
considered the nature of the miner’s accident in concluding that the operator had violated §
50.10(b).
23

Although the word “pinched” is used in the technical sense to describe the type of Red
Zone incident in which Stern was involved, the word “crushed” more accurately describes the
injury process actually suffered by Stern.

39 FMSHRC Page 1293

In arguing that the nature of Stern’s accident should not be taken into account,
Respondent ignores Signal’s holding that “the nature of the accident” is highly relevant
information in determining whether an injury should be reported. This Court cannot accept
Respondent’s suggested analytical approach. Any prudent operator, familiar with the industry,
knew or should have known that the type of accident that Stern suffered often leads to death.24
To ignore this elephant in the room is a sophistic misadventure that no mine operator, including
Respondent, should engage in when determining to alert MSHA.
C.

Reasonable Potential to Cause Death Interpretation

Respondent argued that §50.10(b) is not clear, and does not include an analysis of the
nature of the accident.25 When the plain language of a standard is clear and unambiguous, the
Commission has held that the standard provides operators with fair notice. Dynamic Energy,
Inc., 32 FMSHRC 1168, 1172 (Sept. 2010); Bluestone Coal Corp., 19 FMSHRC 1025, 1031
(June 1997). The Commission has held that the “reasonable potential to cause death” uses a
reasonable person standard. Signal Peak, LLC, 37 FMSHRC at 477. The Commission has
specifically stated that the reasonable potential to cause death is case specific and requires
consideration of the accident causing the injury. Wolf Run Mining Co., 35 FMSHRC 3512, 3517
(December 2013). It is this Court’s view that a reasonable potential to cause death is a clear
standard.
If the meaning of a standard is ambiguous, the Secretary’s interpretation of its own
regulation may be given deference. See Auer v. Robbins, 519 U.S. 452
(1997); Udall v. Tallman, 380 U.S. 1, 16-17 (1965); Dynamic Energy, Inc., 32 FMSHRC 1168,
1171-72 (2010). Deference is not appropriate when an agency’s interpretation is unreasonable or
inconsistent with the regulation. Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155
(2012) (citing Auer, 519 U.S at 462). An agency’s interpretation may also not be given deference
when it conflicts with a prior interpretation. See, Christopher v. SmithKline Beecham Corp., 567
U.S. at 155 (2012)(citing Thomas Jefferson Univ. v, Shalala, 512 U.S. 504, 515 (1994)). While
this Court does find §50.10 to be clear and unambiguous, the Secretary’s interpretation that a
totality of the circumstances test should be used is also reasonable and should be given
deference. The Mine Act was written in order to protect miners’ health and safety. When
analyzing MSHA’s reporting requirement under §50.10(b), it is reasonable that the Secretary
24

Additionally, it should be noted that many injuries, such as inhalation, internal
bleeding, and the like are not visible. Therefore, the circumstances surrounding the injury are
highly relevant in determining the extent of the possible injury.
25

Respondent also argues that 30 U.S.C. § 813(j) conflicts with 30 C.F.R. § 50.10(b) in
that §813(j) states that an operator must call MSHA when he realizes an injury has occurred with
the reasonable potential to cause death. Whereas §50.10(b) states that an operator must call
MSHA when an operator knows or should have known of an accident involving an injury with
the reasonable potential to cause death. (Resp’t Post-Hearing Br. at 22-27). This Court finds
there to be no conflict in this case as the facts and testimony provide the same result. Due to the
circumstances surrounding the accident and injury, it is clear that MSHA should have been
called within 15 minutes of the accident.

39 FMSHRC Page 1294

should consider the circumstances that resulted in an injury. Thus, a totality of the circumstances
test is appropriate under the regulations.
D.

Preamble to Final Rule for Section 50.10

Contrary to Respondent’s suggestions otherwise, the preamble to section 50.10 does not
contain an exhaustive all-inclusive list of injuries requiring immediate MSHA notification.
Rather it is a practical guide to operators citing “some” types of injuries that, based upon
MSHA’s past experience and based upon common medical knowledge, have the reasonable
potential to cause death.26
E.

Signs and Symptoms of Injury

When considering the totality of the circumstances, the Respondent argues correctly that
signs and symptoms of injury are important factors in considering a § 50.10(b) MSHA
notification.
However, in considering Stern’s mental and physical signs and symptoms, this Court has
given much more probative weight to the evidence of injury available at the scene of the accident
and at the time of the accident and immediately thereafter. Medical information gathered from
treatment sources at the hospital and thereafter—for example, reports that Stern’s condition was
improving and that, with or without surgical intervention, Stern’s intestinal bleeding had
ceased—has been accorded much less substantive weight in assessing the propriety of operator’s
§ 50.10(b) determination than the signs and symptoms witnessed at the accident scene and time.
In proceeding thusly, this Court has been guided by the Commission’s holdings in Signal
and Cougar Coal that the need for a prompt determination is inherent in § 50.10 and that
permitting operators to wait for a medical or clinical opinion would frustrate the immediate
reporting of accidents.27
1.

Consciousness and Alertness

This Court further agrees with Respondent that consciousness and alertness are factors
which may indicate a non-fatal injury. However, standing alone, they are not necessarily contra
26

The ALJ notes a back and forth between counsel questioning Shannon Smith as to
whether Stern’s blunt force trauma was in the upper or lower body. Any doubt regarding such at
the accident scene should again have been resolved in favor of MSHA notification.
27

If an operator is permitted to wait for and consider information beyond the narrow
confines of time and space addressed herein, all types of speculation and delay may enter his
determination. For instance, in this case, Stern had to undergo hospitalization and surgery. Given
that medical error is now the 3rd leading cause of death in the U.S. and given that thousands of
our citizens die annually due to hospital borne infection—should an operator be required to deem
any injury requiring later surgery and/or hospitalization to have a reasonable potential to cause
death?

39 FMSHRC Page 1295

indicative of a potentially fatal injury. Bartlett’s Familiar Quotations is full of memorable dying
declarations which—though quite lucid and profound—were uttered by individuals close to
death.28
Likewise, the Commission and its judges have recognized that the maintenance of
consciousness at the scene does not by itself preclude a finding of a § 50.10(b) violation. Webster
County Coal, LLC, 2017 WL 2306333 (May 23, 2017)(ALJ).
In Red River Coal, a miner had been struck in the head by a pressurized end cap. Red
River Coal, 39 FMSHRC 368, 389 (Feb. 21, 2017)(ALJ). The maintenance shop foreman, a
certified EMT, found the miner conscious at the scene with stable vital signs and minimal blood
loss—as in the case sub judice. Id. at 389-90. After considering however, the totality of the
evidence, including the nature of the accident which involved blunt force trauma to the head and
the fact that Life Flight had been called, Judge Feldman concluded § 50.10(b) had been violated.
Id. at 391-92.
In Cougar Coal Co., 25 FMSHRC 513 (Sept. 2003) the Commission on its own motion
reviewed an ALJ’s dismissal of a citation under 30 C.F.R. § 50.10. In Cougar Coal the victim
had received an electric shock of exposure to 7,200 volts of electricity and had fallen a distance
of 18 feet. Cougar, 25 FMSHRC at 514. Rejecting the ALJ’s reliance upon the operator’s
assertion that the victim was conscious and alert when management personnel arrived at the
scene, the Commission specifically found that the judge “incorrectly discounted testimony
related to ‘the nature of the accident’ as irrelevant to the question of whether the injuries had a
reasonable potential to cause death.” Id. at 520
2.

Complaints of Pain

At hearing, there was consistent testimony that Stern had voiced complaints of being in
severe pain to Bailey Mine and GMS personnel. A prudent miner might reasonably consider
such a symptom as being indicative of potentially fatal injury.
At hearing, it was reported that Stern had also described a sensation that his “guts were
coming out of his penis.” (Tr. 83). This symptom was so severe in nature that Shannon Smith
was compelled to check Stern’s genitals. (Tr. 173). Such a bizarre and extreme sensation might
also be reasonably interpreted as indicative of a potentially fatal injury.
3.

Bent Leg and Lower Extremity Paralysis

At hearing it was also reported that Stern also had an odd bend to one of his legs and had
complained of being unable to move a leg. (Tr. 270-71). Signs of fracture and complaints of
lower extremity paralysis would be additional symptoms alerting a prudent miner of his duty to
immediately notify MSHA.

28

Witness Moliere’s reported last words: “Draw the curtain, the farce is over.”

39 FMSHRC Page 1296

4.

Abrasions and Blood Loss

Visible signs of abrasions and some blood loss were also witnessed at the accident scene.
(Tr. 87). Considered alone, these signs may not have been indicative of injuries with the
reasonable potential to cause death. However, when viewed in combination with Stern’s other
signs and symptoms, a reasonably prudent miner would be motivated to immediately notify
MSHA.
At hearing, Respondent argued that bruising could be associated with relatively minor
injuries. (Tr. 180-81). The ALJ took Respondent’s point that there are different degrees of
bruising and associated internal bleeding dependent upon the type of trauma and body part
affected. However, in the instant matter, there was obvious major trauma to Stern’s torso.
5.

Stomach Swelling and Internal Bleeding

One of the most ominous signs of potentially fatal injury testified to at hearing was that
of Stern’s reported stomach swelling/distention. (See Tr. 83).
At hearing, Smith acknowledged that Life Flight had been called due to fear that Stern
might be experiencing internal bleeding which could lead to death. (Tr. 179-80).
The fact that Stern’s internal bleeding had eventually receded, does not diminish the point
that such a sign at the mine accident site immediately after the accident would have alerted a
prudent operator to notify MSHA under § 50.10(b).
6.

Stern’s Farewell to Family

In addition to Stern’s physical symptoms and signs which supported a determination that
his injuries might be fatal in nature, Stern exhibited mental symptoms in support of such.
At the accident scene Stern requested that, if anything happened to him, Shannon Smith
tell Stern’s wife and family that he loved them. (Tr. 174). Individuals do not normally make such
a request unless they themselves fear that their injuries are life threatening.
A prudent operator would reasonably find such a fear-filled family farewell to have been
further evidence of a potentially fatal injury.
7.

Call for Life Flight

Regardless of Respondent’s various explanations minimizing its call for Life Flight—a
reasonable inference to be drawn was that Respondent was justifiably concerned that Stern’s
injuries might be life-threatening. Smith’s essential admission that Stern’s injuries may be lifethreatening pulled the lynch pin out from under Respondent’s arguments otherwise. (Tr. 180).

39 FMSHRC Page 1297

F.

Given the Totality of the Circumstances a § 50.10(b) Notification was Mandated

Respondent has raised various points of arguable merit justifying its failure to notify
MSHA under § 50.10(b). Further, this Court grants that Respondent may have been acting in
good faith in its violative actions. However, considering the totality of the circumstances in light
of the protective purpose of the Act and mandatory safety standard, a prudent operator,
knowledgeable of the industry would have or should have known that Stern’s injuries had the
reasonable potential to cause death, and therefore, had a duty to immediately notify MSHA.
G.

Negligence

Respondent has argued that the Secretary’s assessment of moderate negligence should be
modified to low negligence. (Resp’t Post-Hearing Br. at 31-33). An operator is moderately
negligent when “the operator knew or should have known of the violative condition or practice
but there are mitigating circumstances.” 30 C.F.R. § 100.3 Table X. Low negligence conversely
requires “considerable mitigating circumstances.” Id.
As stated above, this Court finds that Respondent knew or should have known that an
accident occurred with the reasonable potential to cause death. The nature of the accident, Stern
being crushed between two several ton machines, Stern’s belief that he might die, Stern’s
description of his injury including the feeling of something coming out of his genitals, Stern’s
stomach swelling indicating internal bleeding, and his inability to move his legs properly—all
indicated that the Respondent knew or should have known that an accident occurred that had the
reasonable potential to cause death.
Respondent did not call MSHA within the 15-minute time limit as §50.10(b) required
when an accident with the reasonable potential to cause death has occurred. Although
Respondent called Life Flight and seemed to react quickly and efficiently to help Stern after his
injury, and although Respondent eventually called MSHA approximately two hours after Stern’s
injury occurred, nonetheless this Court does not find considerable mitigating circumstances, and
affirms the Secretary’s moderate negligence assessment.
H.

Fair Notice

Respondent also argues that it did not have fair notice of the meaning and interpretation
of the phrase “Operator realizes that…an injury…which has a reasonable potential to cause
death.” Resp’t Post-Hearing Br. at 27-31.
To satisfy constitutional due process requirements, regulations must be sufficiently
specific to give adequate notice of the conduct they prohibit or require. See Grayned v.
Rockford, 408 U.S. 104,108 (1972). The Commission has stated that notice for an ambiguous
regulation asks “whether a reasonably prudent person familiar with the mining industry and the
protective purposes of the standard would have recognized the specific prohibition or
requirement of the standard.” DQ Fire & Explosion Consultants, 36 FMSHRC 3083, 3087 (Dec.
2014) (internal quotations omitted)(quoting Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov.
1990)). Thus, a reasonably prudent miner has adequate notice of a regulation when he knows—

39 FMSHRC Page 1298

after considering the purpose of the provision—that said provision applies to a particular
situation. See e.g. Grayned, 408 U.S. at 112; Freeman United Coal Mining Co. v. FMSHRC, 108
F.3d 358, 362 (D.C. Cir. 1997).
In this case, Stern was crushed between a scoop and railcar, both of which weighed
between 5 and 10 tons. Stern complained of extreme pain, could not move his legs properly,
believed something was coming from his genitals. Futher, he had stomach swelling, which
indicated internal bleeding. Respondent’s witness Smith, a fire boss examiner, believed that
Stern’s internal bleeding had the potential to cause death. See (Tr.180). All of these
circumstances demand that a reasonably prudent miner would believe that Stern’s condition had
the potential to cause death.
VIII. Penalty
The Act requires that in assessing civil monetary penalties, the Commission ALJ shall
consider the six statutory penalty criteria:
…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).
30 C.F.R. §100.4(c) states that the penalty for failure to provide timely notification to
MSHA “will not be less than $5,000 and not more than $65,000 for the following accidents:...2)
An injury…of an individual at the mine, which has a reasonable potential to cause death.”
Section 110(a)(2) of the Act similarly states that an operator “who fails to provide timely
notification to the Secretary as required under 103(j) of [the Act] (relating to the 15 minute
requirement) shall be assessed a civil penalty by the Secretary of not less than $5,000 and not
more than $60,000.”29 30 U.S.C. §820(a)(2).
The Secretary assessed a penalty of $5,000.00, and for the following reasons, this Court
affirms the assessment of $5,000.00.
The Secretary has brought forward no evidence of previous §50.10(b) violations.
Additionally, Bailey Mine is a large mine with an annual production capacity of 10.2 million
tons in 2015 and 12.3 million tons in 2014. (GX-15). Respondent was moderately negligent as
set forth above. The parties have stipulated that an assessment of $5,000.00 would not affect the
operator’s ability to continue in business. J.S.-4.

29

In 2012, the $60,000 maximum was raised to $65,000 to account for inflation. Signal,
at 484, n. 21.

39 FMSHRC Page 1299

The gravity of the violation is “No Likelihood” of a “No Lost Workdays” injury. Based
on the foregoing, this Court finds that a penalty of $5,000.00 is appropriate.
ORDER
The Respondent, Consol Pennsylvania Coal Company, LLC, is ORDERED to pay the
Secretary of Labor the sum of $5,000.00 within 30 days of this order. 30

/s/ John Kent Lewis
John Kent Lewis
Administrative Law Judge

Distribution:
Jennifer Gold, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, 170
S. Independence Mall West, Philadelphia, PA 19106
James P. McHugh, Hardy Pence, PLLC, P.O. Box 2548, Charleston, WV 25329

30

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO
63179-0390

39 FMSHRC Page 1300

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9900 / FAX: 202-434-9949

June 19, 2017
JASON FARMER,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. WEVA 2017-343-D
MSHA No. PINE-CD-2017-01

SPARTAN MINING CO., LLC, AND
ALPHA NATURAL RESOURCES
HOLDINGS, INC.,
Respondent

Mine: Road Fork #51 Mine
Mine ID: 46-01544

ORDER DENYING SPARTAN MINING CO., LLC’S MOTION TO DISMISS
Before: Judge McCarthy
I. Statement of the Case
This matter is before me upon a discrimination complaint filed by Jason Farmer
(“Farmer” or “Complainant”) on April 19, 2017 pursuant to section 105(c)(3) of the Federal
Mine Safety and Health Act of 1977 (“the Act” or “Mine Act”). 30 U.S.C. § 815(c)(3).
Respondent Alpha Natural Resources Holdings, Inc. (“Alpha”) filed its Motion to Dismiss and
Answer on May 12, 2017, and Respondent Spartan Mining Co., LLC (“Spartan”) filed its Motion
to Dismiss and Answer on May 15, 2017.
For the reasons set forth below, I DENY Spartan’s Motion to Dismiss, and GRANT
Farmer’s request to withdraw his complaint against Alpha, rendering Alpha’s Motion to Dismiss
as moot.1
II. Factual and Procedural Background
Beginning in 2006, Farmer worked for Spartan for approximately ten years. Compl. 1.
On July 18, 2016, Farmer began to experience breathing difficulties, which ultimately rendered
him unable to work for several weeks. Id. During this time period, Farmer learned that he had
developed Coal Worker's Pneumoconiosis (“Black Lung”). Id. 1-2.
1

Alpha is the ultimate parent holding company of Spartan. Alpha Mot. to Dismiss 2. As
noted by Alpha in its Answer and Motion to Dismiss, “Alpha Holdings is many steps removed
from Spartan in the corporate hierarchy. In fact, numerous partially and/or wholly-owned
subsidiaries separate Alpha Holdings and Spartan.” Id. In any event, Farmer has requested
judicial approval for withdrawal of his complaint against Alpha pursuant to Commission
Procedural Rule 11. 29 C.F.R. § 2700.11. Farmer Resp. to Mot. to Dismiss 1. As stated above,
this request is granted.

39 FMSHRC Page 1301

On or about September 1, 2016, Farmer returned to work for Spartan, informed Spartan
of his breathing difficulties, and requested to be moved away from the working face of the mine
to a less-dusty area. Id. 2. Farmer also “informed the Respondents that he had recently filed for
protection under 30 C.F.R. Part 90, that his Part 90 application was currently pending review,”
and that “he had a positive x-ray showing that he was suffering from black lung disease.” 2 Id.
Spartan denies that Farmer filed for Part 90 protection upon his return on September 1, 2016, but
that Farmer had instead only “mentioned his intent to file.” Spartan Answer 2.
At Farmer’s request, he was subsequently reassigned to a position outby the face. Compl.
2. However, following his reassignment, Farmer alleges his hours were reduced and that he was
still subjected to dusty conditions, which further aggravated his breathing difficulties. Id. 2-3.
Spartan disputes any loss of Farmer’s income due a reduction in hours, or that the outby
assignment “would be considered highly dusty or otherwise violate the appropriate respirable
dust standard.” Spartan Answer 2-3. Further, Spartan “specifically denies the allegations related
to aggravation of his breathing condition as no such complaints or issues were raised with
management while Complainant worked with Spartan.” Id. 3.
Farmer alleges that on or about September 25, 2016, he notified Spartan via facsimile
that “having already complained to the Respondents about excessive dust on numerous occasions
– only to be misled into working in yet another highly dusty position [he] became unable to
continue working his job.” Compl. 3. Spartan disputes this, and instead alleges that Farmer filed
his 105(c)(2) discrimination complaint with MSHA on October 24, 2016 before reporting to
work that day, and that Farmer then faxed his notice that he was unable to continue working in
his job the next day, October 25, 2016. Spartan Answer 3.
The parties do not dispute that Farmer filed his 105(c)(2) discrimination complaint with
the Mine Safety and Health Administration (“MSHA”) on October 24, 2016. 3 Compl. 3.
Farmer’s discrimination complaint states, in relevant part:
On July 18, 2016, I had begun struggling to breathe and became
unable to work the next day. I was out till [sic] September 1, 2016.
Severe breathing difficulty has caused me to request not to work in
return air. Company requires roof bolt operators to bolt in return
air multiple times per shift. I seek an injunction to keep me out of
return air and dusty environments at all times. I filed for Part 90
and company officials told me that I had to continue working in
dust. Since I filed for Part 90 and returned to work, I have lost
wages and hours, and have been moved to a less desirable schedule
that precludes me from honoring my family commitments. I have
2

30 C.F.R. § 90.1 provides coal miners who provide evidence of black lung the option to
work in less dusty areas of a mine.
3

Farmer’s 105(c)(2) complaint consists of two, one-page forms, MSHA 2000-123 and
MSHA 2000-124. Compl. Ex. 1 at 1-2.

39 FMSHRC Page 1302

been constructively discharged by having to work in dust after my
protests, Part 90 application, and my movement to another job
outby. I have to shovel belt and operate a roof bolt machine outby
after filing for Part 90. I request to be made whole for my losses of
wages and hours, be restored to my former swing schedule, and be
kept in low-dust working conditions.
Compl. Ex. 1, at 2. On Form 2000-123, Farmer alleged that the date of the discriminatory action
was September 1, 2016. Id. at 1. Under Section E of the same form, Farmer indicated that a copy
of all MSHA correspondence should be sent to his attorney, Samuel K. Petsonk. Id.4
On or about October 25, 2016, MSHA complaint processor Angela K. Thomas sent an
acknowledgement letter to Farmer that his 105(c)(2) complaint had been assigned to special
investigator Tim Brown. Farmer Resp. to Mot. to Dismiss Ex. A, at 1. There is no indication that
a copy of the acknowledgment letter was sent to Petsonk, Farmer’s attorney, as requested in
Farmer’s complaint. Id. Petsonk “continued representing Mr. Farmer by appearing along with
him in front of special investigator Tim Brown, and at all other points of the investigation by
MSHA District 12.” Compl. 4.
On or about December 16, 2016, MSHA’s Chief of the Technical Compliance and
Investigation Office, Carolyn T. James, purportedly sent a standard pro forma determination
letter to Farmer, with copy to Spartan, stating in relevant part:
Based on a review of the information gathered during the
investigation, MSHA does not believe that there is sufficient
evidence to establish, by a preponderance of the evidence that a
violation of Section 105(c) occurred. For that reason, the Secretary
of Labor will not file a discrimination case with the Federal Mine
Safety and Health Review Commission (“the Commission”) in this
matter.
However, you continue to have the right to file a discrimination
case on your own behalf with the Commission. If you decide to file
your own case, you must do so within 30 days of this letter by
sending a discrimination complaint to the Commission at the
following address . . . .
Compl. Ex. 2, at 3. There is no evidence in the record indicating that a copy of the December 16,
2016 determination letter was sent to Petsonk, as per Farmer’s request under Section E of his
discrimination complaint. Compl. Ex. 1 at 1 and Ex. 2 at 3-4.

4

Section E of MSHA Form 2000-123 states: “[i]f you desire that a copy of all
correspondence addressed to you from MSHA be provided to a representative (e.g. Union
representative, attorney, etc.) please give his/her name and address to the right.” Id.

39 FMSHRC Page 1303

On February 17, 2017, Petsonk states that he “verbally contacted” MSHA to follow-up
with the status of their investigation. Farmer Resp. to Mot. to Dismiss 3. On February 21, 2017,
MSHA supervisory special investigator/conference litigation representative, Charles R. Bigley,
emailed Petsonk, and stated the following:
The 105 you questioned, concerning the status, was closed on
12/16/2016. Records indicate the decision was made on
12/13/2016 that the evidence did not support a violation of 105c.
The letter notifying the complainant of the decision was mailed
from TCIO on 12/16/2016.
Compl. Ex. 2, at 1-2. On March 21, 2017, Petsonk responded:
I was registered as his representative from the time of the initial
filing of the 123/124 forms, and I have never yet been sent a copy
of the decision by TCIO. Accordingly, I believe that an effective
final decision from TCIO has not yet issued in this matter of Jason
Farmer v. Spartan Mining. Please advise.
Id. at 1. The next day, March 22, 2017, Bigley replied:
Attached is the decision letter from TCIO to Mr. Farmer copied
from the case file. Likely just an oversight that a copy was not
mailed to you the same day it was mailed to the complainant. Sorry
for any inconvenience this may have caused.
Id. On April 19, 2017, and within 30 days of Petsonk’s receipt of the determination letter from
TCIO, Petsonk filed a 105(c)(3) action on Farmer’s behalf with the Commission against
Respondents Alpha and Spartan.
On May 12, 2017, Respondent Alpha Natural Resources Holdings, Inc. (“Alpha”) filed
its Answer and Motion to Dismiss.
On May 15, 2017, Spartan filed its Answer, Affirmative Defenses, and Motion to
Dismiss. In its motion, Spartan moved to dismiss Farmer’s complaint as untimely under section
105(c)(3) arguing that “MSHA’s Technical Compliance and Investigations Office (TICO) [sic]
issued its decision on December 16, 2016, but Complainant did not file his Complaint until April
12, 2017, well outside the 30-day deadline.” Spartan’s Mot. to Dismiss 1.
On May 22, 2017, Farmer filed his response to Spartan, and requested judicial approval
to withdraw his complaint against Alpha.

39 FMSHRC Page 1304

III. Principles of Law
A. The Act
Section 105(c)(3) of the Act provides that:
[w]ithin 90 days of receipt of a 105(c)(2) discrimination complaint,
the Secretary shall notify, in writing, the miner, applicant for
employment, or representative of miners of his determination
whether a violation has occurred . . . . If the Secretary, upon
investigation, determines that the provisions of this subsection
have not been violated, the complainant shall have the right, within
30 days notice of the Secretary’s determination, to file an action in
his own behalf before the Commission . . . .
30 U.S.C. § 815(c)(3). The Act’s legislative history instructs that the time limits imposed in
105(c) should not be considered jurisdictional:
In addition, under section [105(c)(3)], if the Secretary determines
that no violation has occurred, the complainant has the right within
30 days of receipt of the Secretary's determination, to file an action
on his own behalf before the Commission . . . . this thirty-day
limitation may be waived by the court in appropriate circumstances
for excusable failure to meet the requirement.
S. Rep. No. 95-181, 37 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res.,
Legis. Hist. of the Fed. Mine Safety and Health Act of 1977 at 37 (1978). This interpretation is
consistent with “the primary objective of [the] Act,” which is “to assure the maximum safety and
health of miners.” Id at 46.
B. Commission Precedent
The Commission similarly interprets 105(c) time limitations as non-jurisdictional. E.g.,
Sec’y of Lab. o/b/o Clayton Nantz v. Nally & Hamilton Enter., Inc., 16 FMSHRC 2208, 2215
(Nov. 1994) (internal citation omitted); Ronny Boswell v. Nat’l Cement Co., 14 FMSHRC 253,
257 (Feb. 1992) (internal citations omitted). Accordingly, 105(c) time limitations are treated as a
statute of limitations period subject to equitable tolling. N. Assoc. Coal Co., 8 IBMA 164 (Sept.
1977).5 Ultimately, however, the decision to permit or reject an untimely 105(c) filing is
determined on a case-by-case basis, “taking into account the unique circumstances of each
5

The Commission’s interpretation was recently upheld by the Tenth Circuit. Olson v.
Fed. Mine Safety & Health Review Comm'n, 381 F.3d 1007, 1012 (10th Cir. 2004) (“[T]he
Commission's interpretation of the Mine Act to permit equitable tolling is supported by both the
background presumptions against which the Act was written and the Act's legislative history . . .
. the Commission's interpretation is reasonable and deserves deference.”).

39 FMSHRC Page 1305

situation.” Robinson v. Vulcan Constr. Materials, LP, 36 FMSHRC 1084, 1093–94 (April 2014);
see also Boswell, 14 FMSHRC at 257; Clyde Perry v. Phelps Dodge Morenci, Inc.,
18 FMSHRC 1918, 1921-22 (Nov. 1996) (internal citation omitted).
One relevant factor in a 105(c) timeliness analysis is a good-cause showing of “justifiable
circumstances” for a late filing in order to prevent stale claims brought by one who has
“knowingly slumbered on his rights.” Farmer v. Island Creek Coal Co.,13 FMSHRC 1226,
1230–31 (May 1991); Herman v. Imco Servs., 4 FMSHRC 2135, 2137–38 (Dec. 1982);
Cf. Hollis v. Consolidation Coal Co., 6 FMSHRC 21 at 25 (Jan. 1984). Justifiable circumstances
have been found in instances of “ignorance, mistake, inadvertence, and excusable neglect.”
Perry, 18 FMSHRC at 1921–22 (citation omitted); see also Boswell, 14 FMSHRC at 257. A
good-cause showing must then be weighed against any demonstration of material legal prejudice
by the operator. Hale, v. 4-A Coal Co., 8 FMSHRC 905, 908 (June 1986). Legal prejudice is
“material” when it affects “issues necessary to a meaningful opportunity to defend,” and can
include instances of “serious delay” by Complainant. Farmer, 13 FMSHRC at 1231 (citation
omitted).6 The Commission has held that an operator’s demonstration of material legal prejudice
is a “primary consideration” in the timeliness analysis. Lujan v. Signal Peak Energy, LLC,
38 FMSHRC 78, 95 (2016) citing Hale, 8 FMSHRC at 908-09; see also Boswell, 14 FMSHRC at
257.
IV. Analysis
It is undisputed that Farmer filed his discrimination complaint with MSHA within the 60day time-frame allotted under 105(c)(2). At issue here is the timeliness of Farmer’s subsequent
105(c)(3) complaint, which was filed three months after Farmer, but not his counsel, received
TCIO’s determination that MSHA would not prosecute his complaint. For the following reasons,
I find dismissal on the basis of untimeliness to be unwarranted.
A. Justifiable Circumstances
On his 105(c)(2) discrimination complaint, Farmer listed counsel Petsonk’s name and
address under Section E of MSHA Form 2000-123. Compl. Ex. 1, at 1. Section E of said form
instructs: “If you desire that a copy of all correspondence addressed to you from MSHA be
provided to a representative (e.g. Union representative, attorney, etc.) please give his/her name to
the right.” Id. Although the record indicates that MSHA’s determination letter was sent to
6

Regarding material prejudice, the Commission has recognized that “[w]hile the
expenditure of time and money involved in litigation should not be discounted, neither should it
be overstated” and that more relevant examples of material legal prejudice include “tangible
evidence that has since disappeared, faded memories, or missing witnesses.” Schulte v. Lizza
Indus., Inc., 6 FMSHRC 8, 13 (Jan. 1984) (citing Herman, 4 FMSHRC at 2139). Moreover,
“material legal prejudice means more than merely being required to defend a case that could
have been avoided if failure to file on time were treated as a jurisdictional defect.” Farmer, 13
FMSHRC at 1231 (citing Schulte, 6 FMSHRC at 13). Regardless, “any delay is a potentially
serious matter.” Id.

39 FMSHRC Page 1306

Complainant Farmer on December 16, 2016, it appears that a copy was not provided to Petsonk
until March 21, 2017. When Petsonk asked MSHA about the status of the investigation and
learned that MSHA had informed Complainant Farmer that it was not pursuing the matter,
Petsonk asked why he had not been notified as Farmer’s counsel. Compl. Ex. 2, at 1-2. MSHA
stated in an email reply to Petsonk that it was “[l]ikely just an oversight that a copy was not
mailed to you the same day it was mailed to the complainant. Sorry for any inconvenience this
may have caused.” Id. at 1.7
The Commission has ruled that a miner cannot file a 105(c)(3) discrimination complaint
until they have received the Secretary’s determination that there is insufficient evidence that a
violation has occurred. Gilbert v. Sandy Fork Mining Co., Inc. 9 FMSHRC 1327, 1336 (Aug.
1987). Thus, the 105(c)(3) 30-day time period commences with notice of the Secretary’s
determination. S. Rep. No. 95-181 at 37; Boswell, 14 FMSHRC at 257 (“The statute makes clear
that the time for filing begins to run upon ‘notice’ of the Secretary's action.”); Keys, Jr. v.
Reintjes of the South, Inc., 21 FMSHRC 1127, 1128 (Oct. 1999) (ALJ) (“the 30 day time period
prescribed in section 105(c)(3) of the Act and Commission Rule 2700.412 commences with
receipt of the determination, not the purported mailing date”) (footnote omitted). Absent any
showing to the contrary, the record indicates that Petsonk first became aware that a
determination letter had been issued on February 21, 2017, and first received a copy of said letter
from MSHA on March 21, 2017. If March 21, 2017 is taken as the date of written notice to
Complainant’s legal representative that MSHA was not pursuing Farmer’s complaint, then the
complaint was timely filed within the requisite 30-day period. In any event, Farmer has made a
good-cause showing that an inadvertent administrative oversight was a circumstance justifying
Farmer’s delayed 105(c)(3) filing.8
B. Seriousness of Delay
If proper notice of MSHA’s determination letter had been issued to Farmer’s counsel on
December 16, 2016, the 30-day limit would have tolled on January 15, 2017, and Farmer’s
subsequent filing on April 19, 2017 would constitute a delay of just over three months. While
there is no absolute barometer for how far beyond the 30-day period a complaint can be filed
before it is considered to constitute serious delay, it appears that a three-month delay under the
instant circumstances is permissible. See Boswell, 14 FMSHRC at 257 (12-day delay de minimis
and resulting “at least in part, from mistake, inadvertence, or excusable neglect.”); Schulte, 6
7

MSHA’s Special Investigations Procedures Handbook similarly instructs that Section E
“[s]hould be completed if Complainant desires copies of correspondence forwarded to another
party.” MSHA Special Investigations Procedures Handbook PH05-I-4, Chapter 2-1, at 3 (2005).
8

It is unclear to what extent this oversight was exacerbated by Petsonk’s delay in
following-up with MSHA. The record shows that Petsonk learned of the final determination
letter via Bigley’s February 21, 2017 email. Petsonk waited 28 days after receipt of the email to
respond. Petsonk contends that during this time he was “investigating the records and confirming
that MSHA had not sent any notice of the Dec. 16, 2016 decision to the Complainant’s
representative.” Farmer Resp. to Mot. to Dismiss 4. In these circumstances, I find that
Complainant did not sleep on his rights. Farmer, 13 FMSHRC at 1230.

39 FMSHRC Page 1307

FMSHRC at 13 (31-day delay excusable under the circumstances); see also Jones v. Dee Gold
Mining Co., 9 FMSHRC 1631, 1634 (Sept. 1987) (ALJ) (five-month delayed filing excusable
under the circumstances); Hale, 8 FMSHRC at 909 (Jun. 1986) (two-year delay attributable to
Secretary’s delay excusable under the circumstances); Sinnott v. Jim Walter Resources, Inc., 16
FMSHRC 2445, 2446 (1994) (ALJ) (denying three-year delay as extraordinarily late).
C. Material Legal Prejudice
Although the Complainant bears the burden of demonstrating a good-cause showing of
justifiable circumstances for a late filing, the operator bears the burden of demonstrating material
legal prejudice. Schulte, 6 FMSHRC at 13. Here, Spartan alleges no material legal prejudice
arising from Farmer’s delayed filing.
V. Order
Complainant has made a good-cause showing of justifiable circumstances for his late
filing. The length of delay for the late filing is negligible and resulted from an inadvertent
administrative oversight by MSHA. Respondent Spartan has demonstrated no material legal
prejudice from the delay. Accordingly, I DENY Spartan’s Motion to Dismiss, and GRANT
Farmer’s request to withdraw his complaint against Alpha, thus rendering Alpha’s motion to
dismiss as moot.

/s/ Thomas P. McCarthy
Thomas P. McCarthy
Administrative Law Judge

Distribution:
Samuel K. Petsonk, Esq., Mountain State Justice, 1031 Quarrier Street, Ste. 200, Charleston,
West Virginia, 25301
Eric L. Silkwood, Esq., Hardy Pence PLLC, 500 Lee Street, East, Suite 701, Charleston, WV
25301
/cmc

39 FMSHRC Page 1308

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER, SUITE 290
875 GREENTREE ROAD
PITTSBURGH, PA 15220
TELEPHONE: 412-920-7240 / FAX: 412-928-8689

June 21, 2017
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. PENN 2015-260
A.C. No. 36-10045-382289

v.
CONSOL PENNSYLVANIA COAL
COMPANY, LLC,
Respondent.

Mine: Harvey Mine

ORDER GRANTING MOTION FOR LEAVE TO FILE LATE PETITION
ORDER DENYING MOTION TO DISMISS
This docket contains one 104(d)(1) Citation No. 7030582 issued on October 21, 2014, to
Consol Pennsylvania Coal Company, LLC (“Consol”) at its Harvey mine. Consol checked the
appropriate block on MSHA Form 1000-179 contesting the citation, and notice of the contest
was received by MSHA on June 10, 2015. Under Commission Procedural Rule 28, the filing of a
Petition for the Assessment of Civil Penalty (“Petition”) was due within 45 days, or by July 25,
2015. 29 C.F.R. § 2700.28.
The Secretary of Labor’s (“Secretary”) Motion for Leave to File a Late Petition was filed
on March 23, 2016; attached was the Secretary’s Petition. Incorporated by reference was a
Memorandum in Support of Secretary’s Motion for Leave to File a Late Petition.1 This
memorandum included the declarations of two MSHA Coal District 2 employees, set forth
infra.2
On April 1, 2017, Respondent filed a Response in Opposition to the Secretary’s Motion
to File a Late Petition.3 On April 14, 2017, the Secretary filed a Motion to Accept the Secretary’s
Reply to Respondent’s Response in Opposition to the Secretary’s Motion to Permit Late Filing,
and also the Secretary’s Reply to Respondent’s Response in Opposition.4 On April 20, 2017,
1

The Secretary’s memorandum will be abbreviated SMEM.

2

The Declaration of Susan Sikora is marked GX-1; the Declaration of Rebecca L. Kollar
is marked GX-2.
3

The Respondent’s opposition will be abbreviated ROPP.

4

The Secretary’s reply will be abbreviated SREP.

39 FMSHRC Page 1309

Respondent filed a Motion to Dismiss, which included, in the alternative, an Answer to the
Petition.5
Contentions
The Respondent argues it timely contested the citation, but the Petition was submitted
more than 7 months after the date required by Rule 28. ROPP 3; RMD 3. It argues that the
Secretary’s proffered reasons do not establish “adequate cause” for this delay, but instead
demonstrate MSHA has failed to implement checks and balances necessary to protect the rights
of operators. ROPP 3. In PBS Coals, Inc., 35 FMSHRC 1501 (May 2013)(ALJ), the filing
procedures of MSHA Coal District 2 were examined and found to be minimally adequate;
however, there is no indication District 2 has altered its procedure with checks and balances or
back-up systems to ensure compliance with the rules. RMD 2-4. It contends that the Secretary’s
justification is not “plausible” and the absence of system improvements is a “capricious” failure
to comply with Rule 28 and grounds for default. ROPP 5; RMD 5. It concludes that the
Secretary’s superficial explanation that a new employee failed to enter the contest into a tracking
spreadsheet does not meet the minimum requirements for adequate cause for the delay. ROPP
3,4.
In addition, Consol argues that it has suffered real prejudice since the mine is idled and
the availability of records may be affected. Employees have been transferred to other mines, and
the miner who worked on the system at issue in the citation is no longer employed. With time,
memories fade and evidence becomes stale. Respondent suggests that like PBS Coals, a hearing
should be required to obtain more information on the issue of “adequate cause”. ROPP 4.
The Secretary argues a clerical error caused the inadvertent failure of the Secretary to file
a Petition until March 23, 2016. SMEM 1,2. This was due to an unusual oversight related to a
change in administrative personnel, during the final week of employment of a short-term
assistant in the District office; the notice of contest was not entered into a case tracking
spreadsheet and was not mailed to the Solicitor’s office where the Petition would have been
timely filed. SMEM 2, 3, 6; SREP 1, 2. The error was discovered by another assistant. When
compared to the many matters transferred between District 2 and the offices of MSHA and the
Solicitor since 2006, the oversight was a rare occurrence and not indicative of a systemic
breakdown in filing procedures. SMEM 2, 3; SREP 2. There is no evidence to suggest this was
anything but an inadvertent oversight exacerbated by the departure of an employee. SMEM 3.
In addition, the Secretary notes that it is well settled the filing time deadlines are not
jurisdictional, and out-of-time Petitions may be filed if an adequate cause for the delay can be
shown. SMEM 4. Further, Respondent has failed to show actual prejudice arising from the delay,
claiming essentially that records and people may not be readily available; however, Respondent
is responsible for the preservation of relevant notes and the preparation of a defense. SREP 2,3.
Even if the mine operator can establish actual prejudice, the public interest in enforcement of the
Mine Act is paramount to strict procedural regularity. SMEM 4,7; SREP 4.

5

The Respondent’s Motion to Dismiss will be abbreviated RMD.

39 FMSHRC Page 1310

Legal Principles
Section 105(a) of the Mine Act provides:
If, after an inspection or investigation, the Secretary issues a citation or order
under section 104, he shall, within a reasonable time after the termination of such
inspection or investigation, notify the operator…of the civil penalty proposed to
be assessed…
30 U.S.C. § 815(a).
If a timely notice of contest is filed, section 105(d) provides:
The Secretary shall immediately advise the Commission of such notification, and
the Commission shall afford an opportunity for a hearing….
30 U.S.C. § 815(d).
Commission Procedural Rule 28 provides:
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).
The legislative history of the Mine Act reveals the express intent of Congress that “there
may be circumstances, although rare, when prompt proposal of a penalty may not be possible,
and the Committee does not expect that the failure to propose a penalty with promptness shall
vitiate any proposed penalty proceeding.” S. Rep. No. 95-181, 95th Cong., 1st Sess. at 34 (1977),
reprinted in Senate Subcommittee on Labor, Comm. on Human Resources., 95th Cong., 2nd Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 622 (1978).
In Twentymile Coal Company, 411 F. 3d 256 (2005), the D.C. Circuit Court held that an
11-month delay between an investigation report and the issuance of a proposed penalty
assessment was not unreasonable. Two Supreme Court cases were cited, Brock v. Pierce County,
476 U.S. 253 (1986) and Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003). In Brock, the
Supreme Court warned that it “would be most reluctant to conclude that every failure of an
agency to observe a procedural requirement voids subsequent agency action, especially when
important public rights are at stake.” Id. at 260, and concluded that the statutory time provision
in that case “was clearly intended to spur the Secretary to action, not to limit the scope of his
authority. Congress intended that the Secretary should have maximum authority to protect the
integrity of the program.” Id. at 265. In Barnhart the Supreme Court noted that not “since Brock
have we ever construed a provision that the Government ‘shall’ act within a specified time,
without more, as a jurisdictional limit precluding action later.” Id. at 158.

39 FMSHRC Page 1311

In 1981 the Commission considered a proposed penalty filed about 2 months after the
date it was due. Salt Lake County Road Department, 3 FMSHRC 1714 (July 1981). Referring to
the legislative history, it was determined that the overriding concern was with enforcement, and
the Commission’s Rule did not create a “statute” of limitations or procedural “strait jackets.” Id.
at 1715, 1716. The Commission held that upon seeking permission to file late, the request must
be predicated upon adequate cause. However, the Commission also held that an operator may
object to a late penalty proposal on the grounds of prejudice. Id. at 1716.
The Commission has clarified that “adequate cause” will not be found to exist unless a
non-frivolous explanation for the delay is provided. The Secretary’s excuse may not be facially
implausible, and the delay must not result from “mere caprice” or through willful delay,
intentional misconduct, or bad faith. Should the Secretary meet the burden of showing adequate
cause, the Commission further explained:
[A]n operator must show at least some actual prejudice arising from the delay in
order to secure a dismissal of a penalty proceeding due to a late-filed petition.
Mere allegations of potential prejudice or inherent prejudice should be rejected.
Of course, occasions may arise where a judge will find that the Secretary has
demonstrated adequate cause and that the operator has brought forth evidence of
actual prejudice. The judge in such instances must weigh the interest of fairness to
the operator against the public interest in upholding the enforcement purpose
inherent in section 105(d).
Long Branch Energy, 34 FMSHRC 1984, 1991 (Aug. 2012).
Therefore, the burden shifts to the operator to establish actual prejudice. The prejudice
must be “real” or “substantial”, and demonstrated by a specific showing by the operator. Id., at
1993. There must be more than “inherent prejudice” or mere “danger of prejudice”. Webster
County Coal, LLC, 34 FMSHRC 1946, 1951 (Aug. 2012), citing Long Branch.
The Declarations
In pertinent part, the Declaration of Susan Sikora is as follows:
1. I am currently employed by the U.S. Department of Labor, Mine Safety and
Health Administration (“MSHA”), as a Coal Mine Safety and Health
Assistant (“CMS&H Assistant”) a position I have held since September 22,
2015.
2. The Coal District 2 CMS&H Assistant is responsible for keeping track of and
carrying out all of the administrative tasks executed by the Conference and
Litigation Representatives (“CLR’s”) of Coal District 2. These tasks include
processing new civil penalty contests and keeping track of important case
filing deadlines, such as the due dates of civil penalty petitions and mailing
cases to the Philadelphia Office of the Regional Solicitor (“Solicitor’s
Office”).

39 FMSHRC Page 1312

3. I am familiar with MSHA’s civil penalty assessment process and the
procedures of civil penalty proceedings before the Commission.
4. Coal District 2 typically receives an automated e-mail from MSHA’s internal
citation and case tracking software that a matter has been docketed at the
Federal Mine Safety and Health Review Commission (“FMSHRC”). This email alerts the CMS&H Assistant that a contest has been filed and whether a
CLR or the Solicitor’s Office will handle the matter. In either case, the
CMS&H Assistant enters the docket number on an Excel spreadsheet.
5. As a CMS&H Assistant I am responsible for implementing a system to
manage and track the various cases that came into the office. At Coal District
2 we use an Excel Spreadsheet to organize and maintain information about
cases including petition deadlines. This Spreadsheet automatically calculates
the petition’s due date. If a case is to be transferred to the Solicitor’s Office,
then the matter is entered in the spreadsheet. The procedure is for the case to
be removed from the spreadsheet once a return receipt is e-mailed from
United Parcel Services (“UPS”) indicating that the package transmitting the
case has been delivered.
6. Ms. Neiderheiser was employed as a CMS&H Assistant from on or about
March 23, 2015 to on or about July 23, 2015.
7. I was told by former CMS&H Rebecca Kollar that Docket PENN 2015-266,
an unrelated which originated in Coal District 2, was not received or sent to
the Solicitor’s Office sometime in July 2015 during Ms. Neiderheiser’s final
week of employment as a CMS&H Assistant.
8. Since the Petition had not been filed timely for Docket No. PENN 2015-266, I
decided to run a report for all cases transferred to the Solicitor’s Office on or
about the time Ms. Neiderheiser left her employment with MSHA to ensure
that no other cases were similarly lost. During my search I discovered that
Docket PENN 2015-260 had not been designated to the Solicitor’s Office at
that time.
9. On or about March 10, 2016, I contacted the Solicitor’s Office regarding
Docket No. PENN 2015-260. The Solicitor’s Office stated that it had never
received the case. Since Ms. Neiderheiser’s last date of employment with
MSHA was July 23, 2015, I could not get her input as to what may have
happened with Docket No. PENN 2015-260.
10. I also reviewed the Excel spreadsheet and determined that Docket No. PENN
2015-260 was not included on this list. I searched through our e-mailed
receipts and could not find an e-mail receipt from UPS showing that the case
had been mailed to the Solicitor’s Office. As a result of my review, I found no
evidence that the case was ever sent to the Solicitor’s Office or that a civil
penalty petition was filed by Coal District 2.
11. Because the file for PENN 2015-260 could not be located, our office created a
new case file for the docket. The new case file was mailed to the Philadelphia
Solicitor’s Office for litigation.
GX-1

39 FMSHRC Page 1313

In pertinent part, the Declaration of Rebecca L. Kollar is as follows:
1. I am currently employed by the U.S. Department of Labor, Mine Safety and
Health Administration (“MSHA”), as Secretary to the Assistant District
Manager at the MSHA Coal District 2 (“Coal District 2”). I joined MSHA on
October 15, 2006, when I was hired as a Coal Mine Safety and Health
Assistant (“CMS&H Assistant”).
2. On December 14, 2014, I was promoted to my current position. On or about
March 23, 2015, April Neiderhiser was hired to replace me as a CMS&H
Assistant. Ms. Neiderhiser was in this role until on or about July 23, 2015,
when she resigned. I trained Ms. Neiderhiser as a CMS&H Assistant.
3. I am familiar with MSHA’s civil penalty assessment process and the
procedures of civil penalty proceedings before the Commission.
4. Coal District 2 typically receives an automated e-mail from MSHA’s internal
citation and case tracking software that a matter has been docketed at the
Federal Mine Safety and Health Review Commission (“FMSHRC”). This email alerts the CMS&H Assistant that a contest has been filed and whether a
CLR or the Solicitor’s Office will handle the matter. In either case, the
CMS&H Assistant enters the docket number on an Excel spreadsheet.
5. I developed an Excel Spreadsheet to organize and maintain information about
cases including petition deadlines. This spreadsheet automatically calculates
the petition’s due date. If a case is to be transferred to the Solicitor’s Office,
then the matter is entered in the spreadsheet. The procedure is for the case to
be removed from the spreadsheet once a return receipt is e-mailed from
United Parcel Services (“UPS”) indicating that the package transmitting the
case has been delivered.
6. I trained Ms. Neiderheiser how to populate the Excel spreadsheet, keep track
of cases, file petitions, and mail cases to the Solicitor’s Office.
7. On or about March 10, 2016, CMS&H Susan Sikora told me that she spoke to
Regional Counsel Gayle Green regarding the status of Docket PENN 2015260. The Solicitor’s Office stated it never received the case. Ms. Sikora also
informed me that she reviewed the Exel spreadsheet and could not locate the
Petition for the Docket.
GX-2
Analysis
Adequate Cause
A short term employee, whose tenure at MSHA lasted only about 3 months, just before
leaving the job apparently failed to respond to an automated e-mail from MSHA’s tracking
software that this case had been docketed at the Commission. What is known is that this docket
was not entered into the Excel spreadsheet at Coal District 2, and this case was not mailed to the
Solicitor’s Office in order for a timely Petition to be filed. The Secretary contends this was a
clerical error, an unusual oversight that occurred at the time of a change in personnel. Initially, I

39 FMSHRC Page 1314

note that the record does not suggest bad faith, intentional misconduct, or that the resulting delay
was willful in nature. Long Branch, at 1991. Rather, the Secretary’s characterization of the
failure as inadvertent appears accurate. Id.
Respondent contends the Secretary’s justification is not plausible and the explanation is
superficial and does not meet the minimum requirements for “adequate cause”. But the
explanation provided is “non-frivolous.” Id. Even if the employee had not been in the process of
leaving the job, this was nothing more than simple error; either a missed e-mail resulting in no
further processing, or if not missed, the inadvertent oversight of not entering the docket into the
Excel spreadsheet and the further oversight of not mailing the case to the Solicitor’s office.
Under these circumstances the excuse is “facially plausible.” Id.
Respondent makes much of the allegation that the failure of the Secretary to implement
“checks and balances” amounts to “caprice”. Referring to PBS Coals and Long Branch, the
argument is essentially that the lack of improvements, safeguards and/or back-up systems is
evidence of “mere caprice”. However, neither case supports the allegation that such “checks and
balances” must be implemented to protect operators. Nor does the record show that in designing
and implementing the case tracking spreadsheet the District office personnel acted impulsively,
on a whim or in dereliction of duties, but rather as discussed in PBS Coals, the system was
intended to meet the need to handle a heavy caseload. PBS Coals, at 1516-17. That the system is
not infallible is not controlling. As the Commission has observed, “dedicated public servants
may stumble in the performance of their duties” Long Branch, at 1991. Further, that over about a
ten year period with many transfers between entities a handful of cases might “slip through the
cracks” or get “lost in the shuffle” hardly suggests a compelling reason for change, much less the
dismissal of an enforcement proceeding. I would also observe it is not the function of the
Commission to tell the Secretary how to administer his case tracking procedures.
I find there was adequate cause for the delay.
Actual Prejudice
Respondent argues it has suffered real prejudice. With the passage of time memories do
fade, witnesses can become unavailable, and evidence may be lost or destroyed. But this is true
in any long-delayed case and without information that the events have actually happened and
will have a significant effect on the presentation of the case this presents only “inherent”
prejudice. Randy Howell, 20 FMSHRC 556, 558-9 (May 1998) (ALJ). Where, as here, a mine
has been idled, and employees have been transferred to other mines, there could be difficulties
locating records and miner witnesses. However, there is no demonstration of an unavailability of
witnesses or loss of records with supporting reasons given. See, PBS Coals at 1519.
Even where an important witness has left employment at the mine and will need to be
found, the possible difficulty in contacting that person presents only potential prejudice. Indeed,
just how this possible difficulty would prejudice Respondent is not explained. Steve B. Rees, 37
FMSHRC 1852, 1855 (Aug. 2015) (ALJ); Randy Howell, at 558, 559. Respondent must cite
specific instances and provide specific facts to support difficulties locating evidence or a witness.
Dino Trujillo, 35 FMSHRC 1485, 1487 (May 2013) (ALJ).

39 FMSHRC Page 1315

I find actual prejudice has not been shown.
Only where both parties carry their respective burdens is there a requirement to balance
the public and private interests at stake. Long Branch, at 1996. Assuming, Arguendo, that
prejudice had been shown, resolving competing interests requires consideration of a number of
factors, including the length of the delay, the type of alleged violation and whether designated
S&S or UWF, whether an accident was involved, or injury or death, and the number of persons
potentially affected. See, PBS Coals, at 1521. Here, the Inspector issued a citation when he found
that a system used to track miners had failed to operate in a section of the mine for several days.
The Inspector designated the gravity as S&S, and determined that injury was highly likely and
could be expected to be fatal to 35 persons. The alleged violation was also found to be UWF. If
proven as written, this would be a very serious matter, suggesting a compelling interest in
enforcement of the Mine Act Provisions. The delay of almost 8 months is significant, but not
protracted. The balancing of interests is in favor of allowing the out-of-time filing of the Petition.
I find the public interest in enforcement of the health and safety standards under the Mine Act
outweighs the harm to the parties caused by the delay.
The Secretary of Labor’s Petition for the Assessment of Civil Penalty is of record.
The Respondent’s Answer to Petition is also of record.
WHEREFORE, the Secretary’s Motion for Leave to File Late Petition is GRANTED;
Respondent’s Motion to Dismiss is DENIED.

/s/ Kenneth R. Andrews
Kenneth R. Andrews
Administrative Law Judge

Distribution: (First Class Mail)
Jennifer L. Gold, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, 170
S. Independence Mall West, Suite 630E, Philadelphia, PA 19106
James P. McHugh, Esq., Hardy Pence, PLLC, 500 Lee Street, East, Suite 701, Charleston, WV
25301

39 FMSHRC Page 1316

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
PHONE: (202) 434-9933 | FAX: (202) 434-9949

June 28, 2017
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 2017-0158
A.C. No. 46-07809-426807

v.
Mine: Kiah Creek Preparation
ARGUS ENERGY WV, LLC,
Respondent.

Judge Moran

ORDER DENYING SETTLEMENT MOTION
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). Before the Court is the Secretary of
Labor’s Motion to approve settlement (“Motion”). If there was any doubt that the Secretary
continues to seek an emasculated construction of section 110(k) of the Mine Act, neutering the
Commission’s role, this submission makes the intention clear. Despite the clear language of
Section 110(k) that “[n]o proposed penalty which has been contested before the Commission
under section 815(a) of this title shall be compromised, mitigated, or settled except with the
approval of the Commission,” the Secretary continues his effort to thwart the statutory language
and Congress’ expressed intent regarding the provision. Accordingly, the Motion must be
DENIED. As the Secretary continues to balk at compliance with the statutory provision, this
case is to be set for a prompt hearing.
A single citation is involved in this docket. The standard cited, 30 C.F.R. § 77.1606(a),
titled, “Loading and haulage equipment; inspection and maintenance,” provides at subsection (a),
“Mobile loading and haulage equipment shall be inspected by a competent person before such
equipment is placed in operation. Equipment defects affecting safety shall be recorded and
reported to the mine operator.” 30 C.F.R. § 77.1606(a).
The issuing inspector’s 104(a) citation stated, “[t]he spot mirror was busted out on the
Komatsu HD 785 Haulage Truck, No. 137. Equipment defects affecting safety shall be recorded
and reported to the mine operator. There was no pre-operational record completed and reported
to the mine operator on this date for this piece of mobile equipment. This truck was being
operated to haul overburden on mine property.” Citation No. 8128099. The inspector marked the
citation as S&S, with the gravity of the injury as “reasonably likely,” the injury reasonably
expected to be fatal, affecting 1 (one) person, with moderate negligence.1 Id. The citation was
assessed at $666.00. Secretary’s Petition, Exhibit A. Thus, while the broken mirror triggered the

1

The violation was abated upon installation of a new spot mirror.

39 FMSHRC Page 1317

inspector’s inquiry, it was the failure to conduct the pre-operational inspection and to record the
defect which is the gravamen of the citation.
The Secretary’s Motion.
Oddly, though the Motion presented by the Secretary is described as being submitted,
“[p]ursuant to Section 110(k) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”)
and Commission Procedural Rule 31” Motion at 1 (emphasis added), the Court finds that the
submission is not pursuant2 to that section, as it is not in accordance with its plain terms.
Instead, the Secretary informs that “[r]epresentatives for the Secretary and Respondent
have discussed the alleged violation and MSHA’s proposed penalty, and have agreed to settle the
contested citation and penalty in the above-captioned docket as follows: Citation No. 8128099
shall be modified to delete the significant and substantial (“S&S”) finding, change the gravity
designation from reasonably likely to unlikely and reduce the penalty from $666.00 to $532.00.”
Motion at 1-2. The settlement represents a 20% reduction from the proposed penalty. The
$666.00 figure was derived after applying a 10% reduction for good faith.3
The Secretary then announces that he
has evaluated the value of the compromise, the likelihood of obtaining a better
settlement, and the prospects of coming out better or worse after a trial. In
deciding that such a compromise is appropriate, the Secretary has not given
weight to the costs of going to trial as compared to the possible monetary results
that would flow from securing a higher penalty. He has, however, considered the
fact that he is maximizing his prosecutorial impact in settling this case on
appropriate terms and in litigating other cases in which settlement is not
appropriate. The Secretary believes that maximizing his prosecutorial impact in
such a manner serves a valid enforcement purpose. Even if the Secretary were to
substantially prevail at trial, and to obtain a monetary judgment similar to or even
exceeding the amount of the settlement, it would not necessarily be a better
outcome from the enforcement perspective than the settlement, in which the
alleged violation is resolved and can be used as a basis for future enforcement

2

“Pursuant” is defined as “in accordance with.” Webster’s New World College
Dictionary 4th ed. 1166; “‘pursuant’ means in conformity to,” Brotherhood of Ry and S.S.
Clerks, Freight Handlers, Exp.& Station Emp. v. Railway Express Agency, Inc., 238 F.2d 181,
(6th Cir. 1956).
3

30 C.F.R. §100.3(f) affords a “10% reduction in the penalty amount of a regular
assessment where the operator abates the violation within the time set by the inspector.”

39 FMSHRC Page 1318

actions.4 A resolution of this matter in which the violation is resolved is of
significant value to the Secretary and advances the purposes of the Act.
Motion at 2.
The Motion continues that “[t]o assist the Commission in evaluating the appropriateness
of the settlement under Section 110(i), the Secretary presents the following information in
support of the penalty agreed to by the parties.” Id. As the following “information” from the
Secretary reveals, all that is presented by the Secretary is his conclusion that the “S&S and
gravity determinations in the citation at issue shall be modified as discussed above.” Id.
(emphasis added).
That “discussion above” from the Secretary is free of any facts pertaining to the violation
itself. Instead, it rests upon the Secretary’s odds-making, upon his evaluation of “the value of the
compromise, the likelihood of obtaining a better settlement and the prospects of coming out
better or worse after a trial.” Id.
The Commission’s function, so says the Secretary, is limited to “whether the agreed-upon
penalty amount is consistent with the agreed-upon substantive modification.” Motion at 2-3.
Thus, the Secretary pronounces that he “has determined that the S&S and gravity determinations
in the citation at issue shall be modified as discussed above. Substantive modifications to
citations and orders, including the S&S designation, are within the prosecutorial discretion of the
Secretary. Mechanicsville Concrete Inc., 18 FMSHRC 877 (1996)” The Commission’s review of
settlement proposals involving such substantive modifications is limited to whether the agreedupon penalty amount is consistent with the agreed-upon substantive modification. Here, a
$134.00 reduction in the penalty from $666.00 to $532.00 is appropriate and supported by the
reduction in the gravity findings.” Motion at 2-3 (emphasis added). In the Court’s estimation, the
Secretary improperly conflates his presently existing prosecutorial discretion to vacate citations

4

Even this non-informative basis is incorrect. The Secretary spins the tale that, even if he
were to win at a hearing and even if the civil penalty was similar to the settlement, or the penalty
was even greater, “it would not necessarily be a better outcome from the enforcement
perspective than the settlement, in which the alleged violation is resolved and can be used as a
basis for future enforcement actions.” Motion at 2 (emphasis added). However, the Motion itself
seems to refute the notion that this settlement can be used as a basis for future enforcement
actions, as the settlement terms provide, “[e]xcept for proceedings under the Act, Respondent
contends that nothing contained herein is intended to be deemed an admission of a violation of
the Act or regulations.” Settlement Motion at 3.

39 FMSHRC Page 1319

without any explanation with the claim that the information supplied in settlements is also
entirely within his discretion.” (“Mechanicsville”).5
Discussion
While it should be obvious that the Secretary elected to supplant CLR Trent as his
representative with a Regional Counsel because the relatively small penalty involved makes it a
superficially attractive vehicle to assert its broad claim of settlement authority, the subject of
section 110(k) is not solely about money. Congress’ overarching concern was about the safety
and health of miners. The Commission took note of this as well in its American Coal decision,
wherein it observed, “a settlement agreement involving violations of mandatory safety standards
affects all miners working in the cited mine. Thus, the miners may be likened to a class affected
by a settlement.” American Coal at 1984. Here, the Secretary’s Motion says not a word about the
health or safety of the mining industry’s “most precious resource – the miner.” 30 U.S.C. §
801(a).
Further, even on the subject of the civil penalty amount itself, on numerous occasions,
this Court has expressed that the amount of information it requires in support of a reduced
penalty is proportional to the percentage reduction of that penalty. Significant reductions require
more supporting facts than modest reductions. But, in either scenario, the facts are to be tied to
the considerations identified in the gravity and negligence sections of the citation or one of the
other statutory penalty factors that the Commission has the authority to assess, as identified in
section 110(i) of the Act.
The Commission, both in its Black Beauty and American Coal decisions has made this
quite clear. As it noted in American Coal, which also referenced its decision in Black Beauty, 6
the legislative history of section 110(k) reveals that Congress authorized the
Commission to approve the settlement of contested civil penalties in order to
5

The Secretary employs an expansive reading to the Mechanicsville decision and this
Court does not believe it is on point. First, that case went to hearing; it was not a settlement. As
the issuing inspector never marked the violation as S&S, the issue was whether the judge could
find an S&S violation sua sponte. The Commission’s decision was limited to that issue, holding,
“we conclude that the judge lacked authority to find, sua sponte, that Mechanicsville’s violation
was S&S and we reverse the judge’s conclusion that the violation was S&S.” Mechanicsville at
882. However, the Commission affirmed “the judge’s assessment of a $200 civil penalty.” Id. It
also noted that “[i]n contested civil penalty cases, the Mine Act requires that the Commission
make an independent penalty assessment based on the statutory criteria of section 110(i) of the
Act, 30 U.S.C. § 820(i).” Sellersburg Stone Co., 5 FMSHRC 287, 291 (March 1983), aff’d, 736
F.2d 1147, 1152 (7th Cir. 1984). The Commission has explained that “[t]he determination of the
amount of the penalty that should be assessed for a particular violation is an exercise of
discretion by the trier of fact. This discretion is bounded by proper consideration of the statutory
criteria and the deterrent purpose underlying the Act’s penalty assessment scheme.” Id. at 881
(internal citation omitted).
6

Black Beauty Coal Co., 34 FMSHRC 1856, 1862 (Aug. 2012).

39 FMSHRC Page 1320

ensure that penalties serve as an effective enforcement tool, prevent abuse, and
preserve the public interest.7 34 FMSHRC at 1862. The Commission and its
Judges must have information sufficient to carry out this responsibility.
Consequently, through its procedural rules, the Commission has required parties
to submit facts supporting a penalty amount agreed to in settlement. In particular,
Commission Procedural Rule 31 requires that a motion to approve penalty
settlement must include for each violation the penalty proposed by the Secretary,
the amount of the penalty agreed to in settlement, and facts in support of the
penalty agreed to by the parties. 29 C.F.R. § 2700.31(b)(1). Rule 31 also requires
that “[a]ny order by the Judge approving settlement shall set forth the reasons for
approval and shall be supported by the record.” 29 C.F.R. § 2700.31(g). The
requirements to provide factual support in the settlement proposal and for the
Judge’s decision approving settlement to be supported by the record have been
largely unchanged since the inception of the Commission’s procedural rules in
1979.
The American Coal Company, 38 FMSHRC 1972, 1981 (Aug. 2016)
The Secretary’s self-aggrandizement of power regarding settlements, despite Congress’
clear statement that no proposed penalty which has been contested before the Commission shall
be compromised, mitigated, or settled except with the approval of the Commission, should not
come as a surprise.8
The essential problems with the Secretary’s claim, if accepted, are twofold. First, it
would render the statutory provision and the legislative history for section 110(k) nugatory.
Second, in each instance, the Secretary could present such boilerplate language, untethered
to any facts in support of a reduced likelihood of injury or illness, the nature of the
expected injury, the number of persons affected or the degree of negligence.

7

The Commission, in American Coal, noted that “[t]he Secretary downplays the
significance of the legislative history. . . . However, Congress chose to explain the purpose of
section 110(k) and the Commission’s role in approving settlements in unusually specific terms.
That legislative history cannot be ignored simply because of the passage of time or because it
may be convenient for the Secretary to do so.” 38 FMSHRC at 1986, n 5.
8

The Secretary, it will be recalled, previously attempted an overreach in another matter,
taking the position that he need not announce the basis for a claimed pattern of violations until
after the conclusion of a hearing on such a charge. Sec. v. Brody Mining LLC, 37 FMSHRC
1914, 1928-29 (Sept. 2015).

39 FMSHRC Page 1321

Accordingly, for the foregoing reasons, and though the Secretary may believe he knows
best in terms of the information needed for settlement approvals, Congress has determined
otherwise by virtue of section 110(k). The Secretary may either submit an appropriately based
settlement or prepare for a hearing.
SO ORDERED.

/s/ William B. Moran
William B. Moran
Administrative Law Judge

Distribution:
Robert S. Wilson, Esq., U.S. Department of Labor, 201 12th Street South, Suite 401, Arlington,
VA 22202-5450, wilson.robert.s@dol.gov
David C. Trent, CLR, U.S. Department of Labor, MSHA, 4499 Appalachian Highway, Pineville,
WV 24874
Tiffany Fannin, Esq., 2408 Sir Barton Way, Suite 325, Lexington, KY40509, tiffany@czarky.net

39 FMSHRC Page 1322