MARCH AND APRIL 2009

COMMISSION DECISIONS AND ORDERS
03-04-2009
03-12-2009
03-12-2009
03-13-2009
03-18-2009
03-18-2009
03-18-2009
03-18-2009
03-19-2009
03-31-2009
04-02-2009
04-07-2009
04-17-2009
04-17-2009
04-17-2009
04-17-2009
04-23-2009
04-17-2009
04-17-2009
04-23-2009
04-27-2009
04-27-2009
04-27-2009
04-27-2009
04-27-2009
04-28-2009

Rowan Construction Company
Nelson Quarries, Inc.
Mt. View Resources
Double Bonus Coal Company, et al.
Sierra Cascade, LLC.
Shelton Brothers Enterprises
XMV, Inc.
Michael Cline
Double Bonus Coal Company
Big Ridge, Inc.
Big Ridge, Inc.
Clean Energy Mining Company
Graymont (PA) Inc.
Extra Energy, Inc.
S & S Rock
Lueders Limestone, LP
Penn Virginia Resources Partners
Manalapan Mining Company
Big River Mining, LLC.
Black Butte Coal Company
Cintas Corporation
Webster County Coal, LLC.
The Banner Company, LLC.
Old Dominion Energy, Inc.
Harvest-Time Coal, Inc.
Muht-Hei, Inc./Camp Materials

2009-125-M
SE
CENT 2006-151-M
WEV A 2008-1853
WEV A 2008-879
WEST 2008-1408-M
KENT 2008-1407
WEV A 2009-47
YORK 2009-25-M
WEVA 2009-810
LAKE 2008-516
LAKE 2008-515
KENT 2008-1458
PENN 2008-467-M
WEV A 2009-44
SE 2009-116-M
CENT 2009-96-M
VA 2008-369
KENT 2009-9
WEVA2009-l
WEST 2009-166
LAKE 2008-594-M
KENT 2008-1465
VA 2008-384
VA 2008-227
WEV A 2008-965
WEST 2008-1455-M

Pg.315
Pg. 318
Pg.335
Pg.339
Pg.344
Pg.347
Pg.350
Pg. 354
Pg. 358
. Pg. 362
Pg. 366
Pg.370
Pg.374
Pg.377
Pg. 383
Pg.386
Pg.389
Pg.392
Pg.396
Pg.400
Pg. 403
Pg.406
Pg. 410
Pg. 414
Pg.418
Pg.422

LAKE 2009-314-DM
2006-227-M
SE
KENT 2006-308-R
WEVA 2007-701
CENT 2008-287-M
KENT 2008-122
WEVA 2008-471

Pg. 425
Pg. 427
Pg.438
Pg.445
Pg.458
Pg. 473
Pg. 479

KENT 2009-820-R

Pg.481

ADMINISTRATIVE LAW JUDGE DECISIONS
03-04-2009 Cargill Deicing Technology
03-05-2009 Moltan Company, LP
03-17-2009 Ohio County Coal Company
04-03-2009 Brooks Run Mining Co., LLC.
04-10-2009 Nelson Quarries, Inc.
04-02-2009 Excel Mining, LLC.
04-15-2009 · Wolf Run Mining Co.
ADMINISTRATIVE LAW JUDGE ORDERS
04-21-2009

Hopkins County Coal., LLC.

i

MARCH AND APRIL 2009

Review was granted in the following cases during the months of March and April 2009:

Secretary of Labor, MSHA v. Eastern Associated Coal Corporation, Docket No. WEVA 2007-335.
(Judge Weisberger, January 27, 2009)
Secretary of Labor, MSHA v. Coal River Mining, LLC., Docket Nos. WEVA 2006-125-R, et al.
(Judge Barbour, January 28, 2009)
Secretary of Labor, MSHA v. Wolf Run Mining Company, Docket No. WEVA 2008-804. (Judge
Feldman, February 26, 2009)

No case was filed in which review was denied during the months of March and April 2009:

ii

CO:MMISSION DEQSIONS AND ORDERS

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

March 4, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2009-125-M
A.C. No. 08-01215-131854

v.
ROWAN CONSTRUCTION COMP ANY

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 14, 2008, the Commission received from
Rowan Construction Company ("Rowan") a motion by counsel to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
The Secretary states that she does not oppose the reopening of the proposed penalty
assessment.
Here, the proposed assessment was delivered to Rowan's building, but another tenant at
that location accepted delivery of the assessment. Sometime later, the tenant gave the assessment

31FMSHRC315

to Rowan. Thereafter, Rowan timely notified the S~cretary of its intent to contest the
assessment. 1
Accordingly, the proposed penalty assessment is not a final order of the Commission, and
Rowan's motion is moot. We remand this matter to the Chief Administrative Law Judge for
assignment to a judge. This case shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F.R. Part 2700. See State ofAlaska Dep 't of Transp. and Pub. Facilities,
29 FMSHRC 389, 390 (June 2007). Consistent with Rule 28, the Secretary sh<;l.11 file a petition
for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. C()hen, Jr., Commis toner

1

The facts concerning the delivery of the assessment to Rowan, which are stated in an
affidavit, are unopposed by the Secretary and accepted as stated for the limited purpose of
considering the motion.
31FMSHRC316

Distribution:
William K. Doran, Esq.
Ogletree, Deakins, Nash,
Smoak & Stewart, P.C.
2400 N Street NW, 51h Floor
Washington, DC 2003 7
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety &·Health Review Commission·
601 New Jersey Avenue; N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC317

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

March 12, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos.

v.

CENT 2006-151-M
CENT 2006-201-M
CENT 2006-203-M

NELSON QUARRIES, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
BY THE COMMISSION:
In these civil penalty proceedings arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (2006) ("Mine Act" or "Act''), Administrative Law Judge
Richard W. Manning concluded that Nelson Quarries, Inc. ("Nelson Quarries") violated
30 C.F.R. § 56.6130(a) when it failed to store an explosive in a magazine, and that the violation
was significant and substantial f'S&S"). 1 30 FMSHRC 254, 260-61 (April 2008) (ALJ). He
further determined that the operator violated 30 C.F .R. § 56.6300(b) when an employee who
allegedly lacked adequate training and experience used explosives while unsupervised. Id. at
265. The judge also held that Gene Andres, Ronnie Head, and Jeff Benedict were agents of
Nelson Quarries within the meaning of the Mine Act, and that their negligence was imputable to
the operator for unwarrantable failure purposes for three citations and one order.2 Id. at 262-63,
284-85, 288-89. Nelson Quarries filed a petition for discretionary review, challenging the
judge's determinations that the violation of section 56.6130(a) was S&S, that the operator

1

The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C.
§ 814(d)(l), which distinguishes as more serious any violation that "could significantly and
substantially contribute to the cause and effect of a ... mine safety or health hazard."
2

The unwarrantable failure terminology is taken from section 104(d) of the Act,
30 U.S.C. § 814(d), and refers to more serious conduct by an operator in connection with a
violation.
31FMSHRC318

violated section 56.6300(b ), and that the three individuals were agents. The Commission granted
the petition. For the reasons that follow, we affirm the judge's decision.
I.

Factual and Procedural Background
fu October and November 2005, Nelson Quarries operated five portable limestone
quarries in Allen and Crawford Counties, Kansas. 30 FMSHRC at 255. Nelson Quarries is
owned in part by Kenneth Nelson: Gov't Ex. 137, at 9-2; Tr. 661. During the time in question,
the operator referred to Patrick Clift and Mike Peres as superintendents, and to Andres, Head,
and Benedict as foremen of Plants 4, 5, and 2, respectively. N. Br. at 6; Tr. 42, 184, 473-74, 558,
661, 663.
fuspectors from the Department of Labor's Mine Safety and Health Administration
("MSHA") conducted hazard inspections of the plants after a former employee of Nelson
Quarries filed a complaint with MSHA listing unsafe conditions that allegedly existed at the
plants. 30 FMSHRC at255-56. fu addition, the inspectors conducted regular inspections of the
plants. Those regular and hazard inspections gave rise to the three citations and one order that
are the subjects of these proceedings. Tr.185.
A.

Citation No. 6291250

On November 15, 2005, MSHA fuspector Dustan Crelly conducted regular and hazard3
inspections of Plant 4at the Cherryvale location. Tr. 183. When he arrived at the mine,
fuspector Crelly introduced himself and asked for the person in charge. Tr. 184. Gene Andres
stated that he was the foreman and accompanied the inspector throughout the inspection. Tr.
188; Gov't Ex. 12, at 4.
fuspector Crelly inspected the parts trailer, which was a semi-van with doors toward the
back of the trailer. Tr. 193, 194. He observed two partial rolls of primer or shock tubing4 stored
under shelves toward the front of the trailer. Gov'tEx. 13; Tr. 191, 194. The shock tubing was
not in the original manufacturer's packaging. Tr. 193. The material had apparently been in the
parts trailer for some time. 30 FMSHRC at 261-62; Tr. 195, 216. fuspector Crelly issued
Citation No. 6291250, alleging a violation of section 56.6130(a) because the shock tubing was

3

The hazard complaint received by MSHA alleged in part that "Explosives are left
unguarded and hid around the plants to save time and money (Cherryvale)." Gov't Ex. 11.
4

Shock tubing is used as a lead line to detonate high explosives, and is considered a low
explosive. 30 FMSHRC at 259; Tr. 191.
31FMSHRC319

not stored in a magazine. 5 30 FMSHRC at 258. The inspector designated the violation as S&S
and as caused by the operator's unwarrantable failure to comply with the standard. Id. at 258,
259.
B.

Order No. 6291251

On November 16, 2005, Inspector Crelly inspected the crusher shack at Plant 4 and
discovered a stick of Boostrite, a high explosive, stored in the shed next to initiation devices. Tr.
206-07. The inspector asked Travis Tomlinson, the crusher operator, Why the Boostrite was
being stored in the crusher shed. Tr. 204-05. Tomlinson replied that on the preceding Monday,
he had used one stick in the hopper of the crusher to break up large or hung-up material.
30 FMSHRC at 263; Tr: 204-05. Tomlinson stated that, while he was using .the explosives,
Andres was loading trucks. 30 FMSHRC at 265; Tr. 207-08. He further explained that rather
than put the Boostrite back in the magazine, he had just placed it in the crusher shack. Tr. 205.
The inspector stated that he observed Tomlinson smoking in the crusher shack. 30 FMSHRC at
263; Tr. 209-10. The inspector determined that Tomlinson was inexperienced in the handling
and use of explosives, and that he had used the Boostrite while he was not in the presence of an
experienced miner. 30 FMSHRC at 263. Accordingly, the inspector issued Order No. 6291251,
alleging a violation of section 56.6300(b). 6 Id. The inspector designated the alleged violation as
S&S and as caused by the operator's unwarrantable failure. Gov't Ex. 15~
C.

Citation No. 6291595

On October 26, 2005, Inspector Chrystal Dye arrived at Plant 5 to conduct an inspection.
Tr. 531, 553. When she asked for the person in charge, Ronnie Head introduced himself as the
foreman and accompanied Inspector Dye throughout the inspection. Tr. 558. During the
inspection, Inspector Dye tested the parking brake of a Euclid haul truck while it was empty on a
slight grade and determined that the brake did not hold the truck against movement. 30
FMSHRC at 283; Tr. 553-54. She also noted that the condition had been documented since late
September 2005 by three different truck operators in preshift reports. 30 FMSHRC at 28-3; Tr.
555. Inspector Dye asked Head if he knew about the condition, and he stated that he did. Tr. 555.
Head explained that he had called the mechanic to fix the parking brake, but that the mechanic
had allegedly stated that the brake did not need to work. Id. Inspector Dye issued Citation No.

5

30 C.F.R. § 56.6130(a) states that "[d]etonators and explosives shall be stored in
magazines."
6

30 C.F.R. § 56.6300(b) provides that "[t]rainees and inexperienced persons shall work
only in the immediate presence of persons trained and experienced in the handling and use of
explosive material."
31 FMSHRC 320

6291595, alleging a violation of section 56.141 Ol(a)(2). 7 30 FMSHRC at 283. She designated
the alleged violation as S&S and caused by the operator's unwarrantable failure. Id.
D.

Citation No. 6321288

On October 5, 2005, Inspector James Timmons went to Plant 2 to investigate allegations
about an accident included in the hazard complaint. 8 When he arrived at the plant, the inspector
asked to see the foreman on the site, and Jeff Benedict stated that he was the foreman. Tr. 663.
The inspector was informed that on September 23, 2005, Travis Larson had been directed by
Benedict to operate the IH 530 front-end loader, which had non-functioning service, brakes, to
remove a lime pile. 30 FMSHRC at 287; Tr. 663-64. When Larson had driven up a ramp and
raised the bucket, the loader's motor failed. Tr. 664. The loader then ran down the ramp and
through a guardrail. Id. Before the accident, the mine superintendent, Patrick Clift, had
instructed Benedict not to use the loader until a mechanic had worked on the loader's brakes.
30 FMSHRC at 288; Tr. 666, 675. The inspector issued Citation No. 6321288, alleging a
violation of30 C.F.R. § 56.14100(c). 9 30 FMSHRC at 287. He designated the alleged violation
as S&S and as caused by the operator's unwarrantable failure.
Nelson Quarries challenged these citations and this order in addition to 96 other Citations
and orders not currently before the Commission on review. Id. at 255. The matter was heard by
Judge Manning.

7

30 C.F.R. § 56.14101(a)(2) provides, "If equipped on self-propelled mobile equipment,
parking brakes shall be capable of holding the equipment with its typical load on the maximum
grade it travels.,;
8

The hazard complaint stated in part:
A new hire was put on a loader at Gas City. He had no training.
There were no brakes on the loader. He rolled the bucket back to
kill the engine. The loader operator rolled down the hill through a
rail. He tipped over. It took quite some time to get him out.

Gov't Ex. 11.
9

30 C.F.R. § 56.14100(c) provides:
When defects make continued operation hazardous to
persons, the defective items including self-propelled mobile
equipment shall be taken out of service and placed in a designated
area posted for that·purpose, or a tag or other effective method of
marking the defective items shall be used to prohibit further use
until the defects are corrected.
31 FMSHRC 321

E.

The Judge's Decision

The judge concluded that, as alleged in Citation No. 6291250, the operator violated
section 56.6130(a) when it stored shock tubing, which is an explosive, in the parts trailer and not
in a magazine. 30 FMSHRC at 260-61; 30 C.F.R. § 56.6130(a). He further determined that the
violation was S&S because the shock tubing was reasonably likely to propagate a fire in the
trailer and was reasonably likely to misfire, if used. 30 FMSHRC at 261. fu addition, the judge
found that the violation was caused by unwarrantable failure because the condition was obvious
and had existed for some time. Id. at 262. He also held that Gene Andres was an agent of
Nelson Quarries and that his negligence was imputable to the operator for purposes of penalty
assessment and unwarrantable failure findings. Id. Accordingly, the judge assessed a penalty of
$1,000, as proposed by the Secretary. Id. at 259, 263.
The judge next determined that Nelson Quarries violated section 56.6300(b) as alleged in
Order No. 6291251 based on his findings that Travis Tomlinson, who was inexperienced, used
explosives to shoot material out of the hopper without the presence of a miner who was trained
and experienced in the use of explosives, such as Gene Andres. Id. at 263-65. In so concluding,
the judge credited the testimony of Inspector Crelly and the Secretary's exhibits. Id. at 265. He
also upheld the S&S designation based on his determination that it was reasonably likely that the
.hazard contributed to by the violation would result in death or serious injury assuming continued
normal mining operations, since inexperienced and untrained miners pose a hazard to themselves
when handling explosives. Id. The judge further determined that the violation was
unwarrantable, noting that the violation had been obvious; there had been little to no supervision
ofthe use and storage of explosives; no effort had been made to properly train Tomlinson; and
nothing ill the record suggested that the incident giving rise to the order had been an isolated or
unusual event. Id. at 265-66. Accordingly, concluding that the operator had exhibited
indifference and a serious lack of reasonable care, the judge assessed a penalty of $1,500, rather
than the penalty of$1,300 proposed by the Secretary. .Jd. at 263, 266.
As to Citation No. 6291595, the judge determined that the operator violated section
56.14101(a)(2) because the parking brake on the haul truck did not :function properly. Id. at 283.
The judge further determined that the violation was S&S, noting that the condition had existed
for almost a month, and it was reasonably likely that the hazard contributed to by the violation
would lead to a serious accident. Id. at 284. The judge upheld the unwarrantable failure
designation, concluding that Head, who was an agent whose conduct was imputable to the
operator, knew of the condition, that the condition posed a significant risk to employees, and that
Head allowed the truck to be used. Id. at 284-85. Accordingly, the judge assessed a penalty of
$625, as proposed by the Secretary. Id. at 283, 285.
The judge upheld the violation of section 56.14100(c) and the S&S designation alleged in
Citation No. 6321288 arising from the accident that occurred when Larson used the loader with
defective brakes. Id. at 289. The judge also upheld the unwarrantable failure designation based
on his finding that Benedict, who was the agent of Nelson Quarries when he directed Larson to
31FMSHRC322

operate the loader, demonstrated a serious lack of reasonable care. Id. The judge determined
that because Benedict disregarded the instruction of his supervisor to remove the loader from
service, the operator's negligence was not as high as it otherwise would have been. Id.
Accordingly, the judge assessed a penalty of $800, rather than the penalty of $1,500 proposed by
the Secretary. Id. at 287, 289.
The operator filed a petition for discretionary review challenging the judge's foregoing . ·
determinations, which the Commission granted.
II.

Disposition
A.

Whether the judge correctly determined that the operator's violation of section
56.6130(a) was S&S?

Nelson Quarries argues that the judge erred in finding that its violation of section
56.6130(a) was S&S. N. Br. at 1-3. It contends that the judge failed to give sufficient weight to
evidence that hazards related to shock tubing are from fumes from burning plastic rather than
from explosions, that the shock tubing's blast would be limited, and that blow-outs are caused by.
·improper· transportation of shock tubing and not by improper storage. Id. The Secretary ..
responds that the evidence focused upon by the operator does not relate to either of the two bases
for the judge's S&S determination - that the improperly stored shock tubing was reasonably
likely to propagate a fire and was reasonably likely to misfire, if used. S. Br. at 24-25.
The S&S terminology is taken from section 104(d) oftb.e Mine Act, 30 U.S.C. § 814(d),
and refers to more serious violations. A violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness ofa reasonably serious nature. See Cement Div., Nat'! Gypsum Co.,
3 FMSHRC 822, 825 (Apr. 1981 ). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the
Commission further explained:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (I) the underlying violation of a
mandatory safety standard; (2) a discrete safety ha2ard - that is, a
measure of danger to safety- contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir.
1995); Austin Power, Inc. v. Sec '.Y ofLabor, 861 F .2d 99, 103 (5th Cir. 1988) (approving Mathies

31 FMSHRC323

criteria). An evaluation of the reasonable likelihood of injury should be made assuming
continued normal mining operations. See US Steel Mining Co.~ 7 FMSHRC 1125, 1130 (Aug.
1985).
We conclude that substantial evidence supports the judge's S&S determination, 10 As the
judge found, the improperly stored shock tubing could propagate a fire. 30 FMSHRC at 260-61.
It is undisputed that the protective packaging of the shock tubing had been removed, and that the
shock tubing was not in any other container. 30 FMSHRC at 259; Tr. 193. The shock tubing
would burn vigorously in the event of a fire. 30 FMSHRC at 261; Tr. 199. Smoking was
permitted in the area, and the inspector observed cigarette butts in and around the trailer.
30 FMSHRC at 261; Tr. 201. Miners entered the parts trailer on a daily basis for first aid
materials, hearing protection, and to review information on a bulletin board. Tr. 201, 312.
Moreover, there is substantial evidence to supportthe judge's conclusion that the
improperly stored shock tubing could misfire, if used. 30 FMSHRC at 261. The Secretary's
expert, Thomas Lobb, testified that since the shock tubing was not stored in its packaging, the
shock tubing could be degraded so that it would misfire when it was used. Tr. 238-41. He
explained that if the tubirig lost its integrity or the explosive powder migrated, there could be a
shut-down in the explosive train or a loss of detonation pressures inside the tubing, resulting in a
misfire. Tr. 239-40. Migration of the explosive powder within the tubing could occur if the
shock tube windings are oriented vertically; Tr. 238:..39; Gov~t Ex. 14b, at 3. In the parts trailer
at the time of the citation, one roll of shot tubii:ig was leaning at an angle, so that the windings
were not in a horizontal position. Tr. 201-02; Gov't Ex. 13c. Because the shock tubing was not
stored in its packaging or any other container, it could also be Contaminated by grit· and sand,
which typically exist in a parts trailer. 30 FMSHRC at 259; Tr. 200. The operator's witness, Jon
Bruner, testifiedthat the exposure of the tube ends to dirt or moisture could cause the shock
tubing to misfire. 30 FMSHRC at 259; Tr. 264-66.
We are not persuaded by the operator's· argument that the judge failed to give sufficient
weight to evidence that it maintains detracts from the S&S finding. The evidence relied upon by
the operator does not detract from the judge's determination that the violation was S&S because
the improperly stored shock tubing could propagate a fire, or misfire, if used. For instance, even
if we were to conclude, as asserted by the operator, that hazards associated with improperly
stored shock tubing are from fumes from burning plastic rather than from explosions, such a
conclusion does not detract from the judge's finding that the improperly stored shock tubing
could also propagate a fire.
10

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substaritial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
31 FMSHRC 324

Nor are we persuaded by the operator's argument that the judge failed to give sufficient
weight to evidence that the shock tubing's blast would be limited. Nelson Quarries notes that the
Secretary's expert, Thomas Lobb, indicated that the tubing may be relatively safe from a distance
of 25 meters away. N. Br. at 1. It emphasizes that, in contrast, the material safety data sheet
("MSDS") states that shock tubing is "packed or designed so that any hazardous effects arising
from accidental functioning are confined within the package." Id. at 1-2 (quoting Gov't Ex. 14b,
at 17). The operator's argument based on the MSDS assumes that the shock tubing was still in
. its packaging. Here, however, the protective packaging of the shock tubing had been removed,
and hazardous effects would therefore not be confined within the package. Tr. 193.
Finally, the judge did not err by failing to give more weight to evidence that "blow outs"
due to powder migration are caused by shock tubing being transported over mining roads while
the windings are in a vertical orientation, rather than by improper storage. N. Br. at 2. The
document relied upon the operator provides that if shock tubing "is in a spool holder with shock
tubing windings oriented vertically, powder migration may occur." Gov't Ex. 14b, at 3. Here,
the hazards due to improper storage identified by the judge included the propagation of a fire and
the possibility of misfiring if the shock tube were used; rather than a "blow out" during
transportation. 30 FMSHRC at 260-61. 11 Accordingly, we affirm the judge's determination that
Nelson Quarries' violation of section 56.6130(a) wasS&S.

B.

Whether the judge correctly concluded that the operator violated section
56.6300(b)?

The operator requests that the Commission vacate the judge's determination that it
violated section 56.6300(b) because it contends that the judge erred in crediting the testimony of
fuspector Crelly that Tomlinson was inexperienced in the handling and use of explosives. N. Br.
at 3-5. It maintains that it provided credible testimony that Tomlinson had been trained by other
company personnel before coming to work at Plant 4. Id. at 5. It disputes the inspector's
testimony that he witnessed Tomlinson smoking in the crusher operator's shack because
Tomlinson should not have been in the crusher shack during the inspection since the crusher was
not operating during that time. Id. at 3. It further notes that the judge did not rely upon fuspector
Crelly's testimony with regard to other unrelated citations. Id. at 3-5. The Secretary responds
that the Commission should affirm the violation. S. Br. at 27"729.
11

The operator also contends that the shock tubing was not in plain view, as testified by
fuspector Crelly, because it was at the far end of an unilluminated trailer, underneath shelving
and against the wall. N. Br. at 3. As the Secretary argues (S. Br. at 25 n.10), it appears that the
operator's argument that the shock tubing was not in plain view is an objection to the judge's
negligence finding. fu any event, we conclude that substantial evidence supports the judge's
finding. The inspector testified that he immediately observed the shock tubing when he entered
the trailer. Tr. 194; Gov't Ex. l 3c. fu addition, Gene Andres was responsible for daily
examinations of the parts trailer, and the shock tubing had been in the trailer for some time,
perhaps since June 2005. 30 FMSHRC at 262; Tr. 194-95, 202-03, 216.
31 FMSHRC 325

Section 56.6300(b) requires that "Trainees and inexperienced persons shall work only in
the immediate presence of persons trained and experienced in the handling and use of explosive
material." 30 C.F.R. § 56.6300(b). Inspector Crelly testified that Travis Tomlinson had told the
inspector that Andres was loading trucks on the day that Tomlinson used explosives in the
hopper, so nobody was supervising him. Tr. 208. Andres acknowledged that he must not have
been with Tomlinson while he was shooting the hopper. Tr. 306. The judge found thatbecause
Andres was operating a loader at the time, Tomlinson had used explosives when he was not in
the immediate presence of someone trained and experienced in the use of explosive material. 30
FMSHRC at 265. The operator has not challenged that finding on review.
The remaining factor relevant to the finding of violation is whether Tomlinson was
inexperienced in the use and handling of explosives and, thus, required the immediate presence
of an experienced miner. The judge explicitly considered the operator's evidence that Nelson
Quarries states should have been credited. Specifically, the judge noted Clift's testimony that
Tomlinson had been trained to handle and use explosives, that other Nelson Quarries employees
had shown Tomlinson how to shoot out crushers at other plants owned by the company, and that
Tomlinson had helped other more experienced miners perform the task before he did so on his
own. Id. at 263-64. He also noted Andres' testimony denying that he ever told Inspector Crelly
that Tomlinson was not qualified to handle and use explosives and that he had only meant that he
had not personally trained Tomlinson. Id. at 264. In addition, the judge noted Nelson Quarries'
argument that Tomlinson cameto Plant 4 already trained. Id. However, the judge credited the
Secretary's evidence over the operator's evidence. Id. at 265.
The Commission has recognized that a judge's credibility determinations are entitled to
great weight and may not be overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC
1537, 1541 (Sept 1992); Penn A/legh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). The
Commission has also recognized that, because the judge "has an opportunity to hear the ·
testimony and view the witnesses[,] he [or she] is ordinarily in the best position to make a
credibility determination." In re: Contests ofRespirable Dust Sample Alteration Citations, 17
FMSHRC 1819, 1878 (Nov. 1995) (quoting Ona Corp. v. NLRB, 729 F:2d 713, 719 (11th Cir.
1984)), aff'd sub nom. Sec'y ofLabor v. Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir.
1998). Nonetheless, the Commission will not affirm such determinations if they are selfcontradictory or ifthere is no evidence or dubious evidence to support them. Id. at 1881 n.80;
Consolidation Coal Co., 11FMSHRC966, 974 (June 1989).
We conclude that overturning the judge's credibility determinations is l.lllWarranted, and
that substantial evidence supports the judge's determination that Tomlinson was neither
sufficiently trained nor experienced in the handling or use of explosives to use them without
supervision. 30 FMSHRC at 265. Inspector Crelly testified that when he asked Andres if
Tomlinson was experienced or trained in the handling of explosives, Andres had replied, "no,"
and that Andres usually shot the hopper. Tr. 207, 211-12: Gov't Ex. 12, at 11. The inspector·
also noted that Andres had stated that he knew it was wrong to have an inexperienced person
using powder or explosives. Gov't Ex. 12, at 8. The inspector testified that Tomlinson had also
31FMSHRC326

informed him that he was "uncomfortable doing it." Tr. 207. The inspector noted Andres'
statements in his field notes. Gov't Ex. 12, at 11. Andres reviewed the inspector's notes, made
changes, and signed his name to the notes. Id.; Tr. 212. Andres did not make any changes to the
summary ofhis statements regarding Tornlinsoli's experience. Gov't Ex. 12, at 11.
Moreover, the judge's conclusion that the operator failed to present "credible" evidence
"to show that Tomlinson had actually been trained or was sufficiently experienced" is supported
by substantial evidence~ 30 FMSHRC at 265. Clift' s testimony that other miners had trained
Tomlinson on using explosives and that he had observed Tomlinson use explosives in a crusher
was vague as to details and dates~ Id.; Tr. 275. Furthermore, Clift acknowledged that he himself
had little experience with explosives. Tr. 286. ,Andres testified that he had only been told by
others that Tomlinson had been trained and that he had never seen any task-training records. Tr.
318-19. The operator provided no documentary evidence, such as training records, revealing that
Tomlinson had been trained. In addition, the operator did not present testimony at the hearing by
Tomlinson regarding his training or testimony by other miners who had allegedly trained him.
Tomlinson's actio11s in storing a high explosive in the crusher shack and in smoking
around the explosives also demonstrate a lack of training and experience requiring the immediate
presence of an experienced miner. Rather than returning Boostrite, a high explosive, to the
magazine, Tomlinson stored it near initiation devices in: the crusher shack. See 30 FMSHRC at
263; Gov't Ex. 137f, at 8-4; Tr. 204, 206, 212. Andres remarked, "I liked to have had a heart
attack when I saw the explosive in there." Tr. 314-15; Gov't Ex. 137g, at 9-5. Furthermore, we
do not find persuasive the operator's argument that Tomlinson could not have been observed
smoking in the crusher shack since Tomlinson was not working in the crusher shack during the
inspection. Inspector Crelly testified that he observed Tomlinson smoking near the explosives,
which may have occurred when Tomlinson and Andres accompanied him: during the inspection.
Tr. 210. In any event, the inspector noted in his field notes that he observed an ash tray and
cigarette butts in the operator shack. Gov't Ex. 12, at 8. Thus, there is substantial evidence
supporting the judge's finding that the inspector had, in fact, seen Tomlinson smoking near the
explosives.
Finally, we reject the operator's argument thatthe judge erred in crediting Inspector
Crelly's testimony because the judge declined to credit the inspector's testimony with regard to
other citations. The Commission has recognized that it does "not subscribe to a 'false in one,
false in everything' rule of testimonial evidence." Sec '.Y ofLabor on behalf ofRobinette v.
United Castle Coal Co., 3 FMSHRC 803, 813 (Apr. 1981). Thus; ifthejudge declined to credit
the inspector's testimony regarding one citation, he is not required to discredit the inspector's
testimony as to all citations. Moreover, in the instances referred to by the operator, the judge did
not specifically discredit Inspector Crelly's testimony. Rather, he concluded, after weighing the
record evidence, that the Secretary had not established violations. See CENT 2006-230-M: 30
FMSHRCat 308-09; Gov't Ex. 112a; CENT 2006-230-M: 30 FMSHRC at 309; Govt' Ex. 113;
CENT 2006-237-M: 30 FMSHRC at 309, 313; Gov't Ex. 129 and 30 FMSHRC at 314; Gov't
Ex. 131a.

31 FMSHRC 327

In sum, substantial evidence supports the judge's finding of violation. Accordingly, we .·
affirm the judge's determination that Nelson Quarries violated section 56.6300(b).
C.

Whether the judge correctly determined that the three employees in question were
agents of the operator?

Nelson Quarries contends that the judge erred in concluding that Andres, Head, and
Benedict were its agents and that their negligence related to Citation Nos. 6291250, 6291595,
and 6321288, and Order No; 6291251, was imputable to the operator for unwarrantable failure
purposes. N~ Br. at 5-7. The operator explains that although it referred to the three employees as
foremen, they were~ in fact, only lead men who did not have the authority to hire, fire, or
discipline employees, to assign equipment, or to perform any duty that was not well established
by company protocol. Id. It asserts that, on the other hand, Peres and Clift were the foremen of
the plants and functioned as management. Id. at 6. Accordingly, it requests that the Commission
vacate the judge's unwarrantable failure determinations. Id. at 7. The Secretary responds that
substantial evidence supports the judge's finding that Andres, Head, and Benedict were agents of
Nelson Quarries. S. I~r. at 17-23.
Section 3(e) of the Mine Act defines an "agent" as "any person charged with
responsibility for the operation of all or part of a .... mine or the supervision of.the miners in
a ... mine." 30 U.S.C. § 802(e). The Commission has recognized that the negligence of an
operator's "agent" is imputable to the operator for penalty assessment and unwarrantable failure
purposes. Whayne Supply Co., 19 FMSHRC 447,451(Mar.1997); Rochester & Pittsburgh Coal
Co.,13 FMSHRC 189, 194:-97 (Feb. 1991) ("R&P"); Southern Ohio Coal Co., 4FMSHRC
1459, 1463-64 (Aug. 1982) ("SOCCO"). In contrast, the negligence ofa rank-and-file miner is
not imputable to the operator for the purposes of penalty assessment or unwarrantable failure
determinations. Whayne, 19 FMSHRC at 451, 453; Fort Scott Fertilizer~Cullor, Inc., 17
FMSHRC 1112, 1116 (July1995); SOCCO, 4 FMSHRC at 1463-64.
In considering whether an employee is an operator's agent, the Commission has "relied,
not upon the job title or the qualifications of the miner, but upon his function, [and whether it]
was crucial to the mine's operation and involved a level ofresponsibility normally delegated to
management personnel." Ambrosia Coal & Constr. Co., 18 FMSHRC 1552, 1560 (Sept. 1996)
(quoting US. Coal, Inc., 17 FMSHRC 1684, 1688 (Oct 1995))(alteration in original). We
consider factors such as the ability of the employee to direct the workforce, whether the
employee holds himself out as a person with supervisory responsibilities and is so regarded by
other miners, and whether the actions of the employee in directing the workforce have an impact
on health and safety at the mine. Ambrosia, 18FMSHRCat1553-54, 1560~61; Sec'y ofLabor
on behalf of Hyles v. All American Asphalt, 21 FMSHRC 119; 130 (Feb. 1999) (holding that
leadmen who acted in a supervisory capacity and were in a position to affect safety were agents
of the operator to whom employees would logically voice their complaints). We are mindful that
the term, "agent," must be interpreted in light of the overall purpose of the Mine Act to protect
the health and safety of miners. See RNS Servs., Inc. v. Sec '.Y ofLabor, 115 F.3d 182, 187 (3d

31 FMSHRC 328

Cir. 1997) (construing Mine Act provision broadly to effectuate statutory purpose of protecting
miner safety); Rock of Ages Corp. v. Sec'y ofLabor, 170 F.3d 148, 155 (2d Cir. 1999) (same).
··The judge's conclusion that the employees acted as agents whose conduct was imputable
to Nelson Quarries is amply supported by substantial evidence: The Commission has concluded
that in carrying out required examination duties for an operator; an examiner may be
appropriately viewed as being charged with responsibility for the operation of part of a mine.
R&P, 13 FMSHRC at 194; see also Pocahontas Fuel Co. v. Andrus; 590 F.2d 95 (4th Cir. 1979)
(holding that preshift examiner's knowledge was imputable to the operator for unwarraritable ·
failure purposes under principles of respondeat superior); Ambrosia, 18 FMSHRC at 1561
(finding relevant that employee made required daily examinations and entered findings in an
examination book). It is undisputed that Andres, Head, and Benedict were responsible for
conducting the daily workplace examinations at the plants. 30 FMSHRC at 262, 284; Tr. 832;
see also Tr. 280-81.
In addition, Andres, Head, and Benedict demonstrated that they had been charged with
responsibility for the operl!tion of part of the mine or for the supervision of employees through
their actions in directing work to be done at the plants. 30 FMSHRC at 262, 284-85, 288. In an
interview with MSHA, Benedict stated that he could ·direct the work force assigned to him.
Gov't Ex. 137b, at 6-2. Similarly, Andres testified that he could direct the crew and assign tasks.
Tr. 308; Gov't Ex. 137g; at 9.:.2; see also Gov't Ex. 137f, at 8-2 (Tomlinson's statement that
Andres directed the work force on his crew). Inspector Dye testified that, during the inspection,
Head directed the work force at the plant and addressed problems that the employees were having
as they repaired items that had been cited. Tr'. 559. ·
Evidence ofthe manner in which Andres, Head, and Benedict were treated by those with
whom they worked also supports the judge's agency determination. Employees who were on the
crews of Andres, Head, and Benedict treated them as supervisors. For instance, when asked by
MSHA who his foreman was, Tomlinson replied, "Gene Andres. I answer to him." Gov't Ex.
137f, at 8-2. During Inspector Dye's inspection, when employees had problems with their work,
they contacted Head. Tr. 559. Travis Larson used a front-end loader when directed to do so by
Benedict, even though the loader had been removed from service. 30 FMSHRC at 288-89; Tr.
663. Moreover, Peres and Clift relied upon the supervisory functioning of Andres, Head, and
Benedict. Tr. 602-04. Peres testified that he reviewed the workplace examination reports about
weekly and otherwise relied upon the reports of the foremen. Id.
Andres, Head, and Benedict also identified themselves as functioning in supervisory
roles. Each identified himself as a foreman when the MSHA inspectors arrived at the plants and
requested the person in charge. Tr. 184, 558, 663. Similarly, the employees held themselves out
as representatives of Nelson Quarries when they accompanied the inspectors during the subject
inspections. Tr. 188, 558. There was no indication that Nelson Quarries, through Clift ot Peres,
took any actions to indicate that Andres, Head, or Benedict were not in charge at their respective
plants. See Tr. 278.

31 FMSHRC 329

Moreover, Nelson Quarries itself identified the three as foremen in reports that it was
required to file with MSHA. For instance, the legal identity report for Plant 4 identifies Andres
as "Foreman" under the section entitled, "person at mine in charge of health and safety
(superintendent or principal officer)." Tr. 184; Gov't Ex .. 10. The legal identity report for Plant
2 identifies under the "person at mine in charge of health and safety" as "Jeff Bened.ict,
Foreman." Tr. 283. An MSHA report required for mine start-up and closure activity lists Head
as the person in charge at Plant 1 from December 2004to June 2005. Gov't Ex. 139; Tr. 565-66.
Inspector Dye stated that she had no reason to believe that the notations in the report would. not
apply to Plant 5. Tr. 566. While the identification of Andres, 12 Head, and Benedict as foremen is
not necessarily dispositive of their status as agents, it is very relevant that Nelson Quarries and
the employees themselves represented to MSHA that they were the persons in charge at the
plants. R&P, 13 FMSHRC at 195; see also Ambrosia, 18 FMSHRC at 1561 n.12 (finding
relevant, based on analogy to common law agency principles, that employee held himself out as
the employee in charge at the mine and signed MSHA documents as mine foreman).
Finally, the record shows that the employees exercised managerial conduct at the time of
the alleged violations and that their actions impacted safety. With respect to Citation No.
6291250, Andres was responsible for daily examinations of the parts trailer. Tr. 280...,81, 309310, 832. The shock tubing existed in the trailer for some time;perhaps since June 2005,
approximately five months before the citation was issued. 30 FMSHRC at 260; Tr. 296; Gov't
Ex. 13b. As to Order No. 6291251, Andres, a certified blaster, acknowledged that he would
normally be with the crusher operator when he shot explosives, but that he was not with
Tomlinson when he used the explosives during the time in question. 30 FMSHRC at 264; Tr: .
306; Gov't Ex. 137g, at 9-5. As to Citation No. 632188, Benedict instructed Larson to move a
lime pile with a front-end loader that did not have functioning brakes. 13 30 FMSHRC at 287,
289; Gov't Ex. 40; Tr. 663, 665-66, 840-41. With respect to Citation No. 6291595, the pre-shift

12

In an umelated proceeding, MSHA issued citations to Andres pursuant to section
110(c) of the Mine Act, and Andres apparently paid the related civil penalties. Tr. 833, 836,
1172-.74. Section 110(c) provides in part that, "Whenever a corporate operator violates a
mandatory health or safety standard ... , any director, officer,· or agent of such corporation who
knowingly authorized, ordered, or carried out such violation ... shall be subject to the same civil
penalties ... that maybe imposed upon a person under [section l lO(a)]." 30 U.S.C. § 820(c).
13

The operator states that lead men lacked the authority to assign equipment. N. Br. at 7;
Tr. 823, 842. Clift testified that he had told Benedict to take the loader out of service until the
mechanic could repair it. Tr. 841. The Commission ha~; recognized that unauthorized acts of
misconduct may be within an agent's scope of employment and imputable to the operator for
unwarrantable failure purposes. R&P, 13 FMSHRC at 197. It appears that Benedict had the
authority to direct work at the quarry, but in doing so, directed an employee to use equipment that
had been taken out of service. We conclude that the judge correctly determined that Benedict
was acting as an agent for Nelson Quarries when he directed Larson to operate the front-end
loader because he was acting within his authority to direct the workforce. 30 FMSHRC at 288.
31 FMSHRC 330

reports established that the parking brake had not been working on the haul truck since late
September 2005. 30 FMSHRC at 283; Tr. 554-55. Although Head knew that the truck had
faulty brakes, he allowed the truck to be used and did not remove it from service. 30 FMSHRC
at 283; Tr. 561-63;
We find unpersuasive the operator's argument that Andres, Head, and Benedict had no
managerial responsibilities as evidenced by the hazard complaint's statement that members of the
Nelson family, such as Clift and Peres, were in charge at every quarry and made all of the
decisions, and that quarry foremen, such as Andres, Head, and Benedict, had no power. Gov't
Ex. 11, iii! 12, 14. As the judge concluded, evidence that Clift and Peres could make the ultimate
decisions does not negate the fact that Andres, Head, and Benedict also were given
responsibilities that are normally delegated to management personnel. 30 FMSHRC at 262.
In light of the level of the three men's respective responsibilities, the fact that none had
the authority to hire, fire, or discipline employees does little to detract from the conclusion that
each was an agent of the operator. First of all, it appears that Andres, Head, and Benedict were
involved in decisions concerning hiring, firing, and disciplining employees by making
recommendations. 30 FMSHRC at 262, 285. 14 Secondly, the Commission has never suggested
that the authority to take such actions, in and of itself, is a prerequisite to a finding of agency.
That the ultimate authority to hire, fire, or discipline miners resides at a higher level of an
organization is simply not surprising, given the potential impact of sach decisions, and thus.is of
little relevance to a determination of whether a lower level supervisor was acting as an agent of
the operator, where other circumstances indicate that an agency relationship existed. 15 .
In that regard, it is significant that Andres, Head, and Benedict had been identified on
legal identity and required start-up and closure reports filed with MSHA as the "person at mine
in charge of health and safety (superintendent or principal officer)" at the plants. Tr. 184, 283,
565-66; Gov't Exs. 10, 139. We have found that such evidence is "relevant by analogy to
common law agency principles" and may, ifunrebutted, support a findingthat the persons so

14

For instance, in an interview with MSHA, Andres acknowledged that he could make
recommendations regarding hiring and firing, and could recommend that employees be
disciplined "or maybe talk to them if they [did] something wrong." Gov't Ex. 137g, at 9-2; see
also Gov't Ex. 137a, at 6-2. Travis Tomlinson confirmed that Andres "could put [him] to
shoveling if he wanted to, but he never has." Id. at 8-2.
15

Nor do we find compelling the evidence focused upon by the operator that Andres,
Head, and Benedict were paid hourly wages rather than a salary as an indication that they were
rank-and-file miners. See Mettiki Coal Corp., 13 FMSHRC 760, 769-72 (May 1991) (imputing
negligence of hourly employee assigned to conduct monthly electrical inspections to the
operator). It is undisputed that Andres, Head, and Benedict were compensated at a higher rate
than other members of their crews. Tr. 823.
31 FMSHRC 331

identified were empowered to act on behalf of the operator. Ambrosia, 18 FMSHRC at 1561
n.12.
In sum, the actions of Andres, Head, and Benedict in conducting daily examinations and
directing the work force, the representations made to MSHA concerning their authority, the
manner in which they were treated by others and by themselves, and their actions atthe time of
the violations constitute substantial evidence supporting the judge's agency determinations.
Thus, we affirm the judge's determinations that Andres, Head, and Benedict were acting as
agents for Nelson Quarries with respect to Citation Nos. 6291250; 6321288, and 6291595 and
Order No. 6291251 and that their conduct was imputable to the operator. 16 We therefore affirm
the judge's unwarrantable failure findings.

16

We are mindful that under some collective bargaining agreements, a more senior rankand-file employee is sometimes referred to as a "lead man." It does not necessarily follow that
such employees should be considered agents ofthe operator or that their conduct is imputable to
the operator. Their status must be determined under the terms of the analysis we have.
undertaken in this case in order to determine whether they should be considered agents of the
operator for purposes of imputed liability.
31 FMSHRC 332

III.
Conclusion
For the reasons discussed above, we affirm the judge's conclusion that Nelson Quarries'
violation of section 56.6130(a) set forth in Citation No. 6291250 was S&S; affirm the judge's
conclusion that Nelson Quarries violated section 56.6300(b) as set forth in Order No. 6291251;
and affirm the judge's determinations that Andres, Head, and Benedict were acting as agents for
Nelson Quarries and affirm the judge's unwarrantable failure findings with respect to Citation
Nos. 6291250, 6321288, and 6291595 and Order No. 6291251.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 333

Distribution:
Cheryl C. Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor West
Arlington, VA 22209-224 7
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Kenneth L. Nelson, President
Nelson Quarries, Inc.
1307 2000 St.
P.O. Box 100
Gas, KS 66742-0100
Paul M. Nelson
Nelson Quarries, Inc.
P.O. Box 100
Gas, KS 66742-0100
Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

31 FMSHRC 334

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

March 12, 2009
SECRETARY OF LABOR,
MINE SAFETY AND .HEALTH
ADMINISTRATION (MSHA)
.Docket No. WEVA 2008-1853
A.C. No. 46-:-08804-152682

v.
MT. VIEW RESOURCES

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On September 18, 2008, the Commission received a motion
seeking to reopen a penalty assessment issued to Mt. View Resources ("Mt. View") that had
become a final order of the Commission pursuant to section l05(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
The Department of Labor's Mine Safety and Health Administration issued Proposed
Penalty Assessment No. 000152682 to Mt. View proposing civil penalties for several citations
issued in April 2008. According to James F. Bowman, who filed the motion, Mt. View intended
to contest the proposed penalties for nine citations, but failed to timely file its contest of the
proposed penalties because the proposed assessment was "misplaced or lost." 1 He states that the

1

The request to reopen was sent by James F. Bowman, who describes himself as a
"Consultant/Litigator." Commission Procedural Rule 3 provides that, in order to practice before
the Commission, a person must either be an attorney or fall into one of the categories in
Rule 3(b), which include parties, representatives of miners, an "owner, partner, officer or
employee" of certain parties, or "[a]ny other person with the permission of the presiding judge or
31 FMSHRC 335

operator does not dispute.proper service of the proposed assessment. He submits; however, that
"[s]ome" certified mail is received by Federal Express at the mine site where office personnel has
changed "on occasion," and that the proposed assessment was not received by the company's
accounting department for distribution.
In response, the Secretary opposes Mt. View's request to reopen. She asserts that the
operator's explanation that the proposed assessment have been misplaced or lost does not qualify
as exceptional circumstances that warrant reopening.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, surprise, or
excusable neglect. See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided
so far as practicable by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We
have also observed that default is a harsh remedy and that, if the defaulting party can make a
showing of good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Senis., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).

the Commission." 29 C.F.R. § 2700.3(b). It is unclear whether Mr. Bowman satisfied the
requirements of Rule 3 when he filed the operator's request. We have determined that, despite
this, we will consider the merits of the operator's requestin this instance. However, in any future
proceeding before the Commission, including further proceedings in this case, Mr. Bowman must
demonstrate to the.Commission or presiding judge that he fits within one of the categories set
forth in Rule 3(b )(1 )-(3) or seek permission to practice before the Commission or judge pursuant
to Rule 3(b)(4).
31 FMSHRC 336

Having reviewed Mt. View's motion to reopen and the Secretary's response, we agree
with the Secretary that Mt. View has failed to provide a sufficiently detailed explanation for its
failure to timely contest the proposed penalty assessment. Mt. View's conclusory statement that
it failed to timely file because the proposed assessment was misplaced or lost does not provide
the Commission with an adequate basis to justify reopening. Nor is an adequate basis provided
by Mt. View's vague statements that "[s]ome" certified mail is received by Federal Express at the
mine site where office personnel has changed "on occasion," and that the proposed assessment
was not received by its· accounting department for distribution. Accordingly, we deny without
prejudice Mt. View's request. 2 See, e.g., Eastern Associated Coal, LLC, 30 FMSHRC 392, 394
(May 2008); James Hamilton Constr., 29 FMSHRC 569, 570 {July 2007).

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. .

Michael F. 'DU.fry, Ch~

~

Robert F. Cohen, Jr., Commissioner

2

The words "without prejudice" mean that Mt. View may submit another request to
reopen the case so that it can contest penalty assessments. fu the event that Mt. View chooses to
refile its request to reopen, it should provide additional documentation to support its allegations.
31 FMSHRC 337

---

Distribution:
James F. Bowman
P.O. Box 99
Midway, WV 25878
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 338

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

March 13, 2009
Docket No. WEY A 2008-879
A.C. No. 46-09020-123653

SECRETARY OF LAB.OR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEYA 2008-880
A.C. No. 46-09020-130296

v.
DOUBLE BONUS COAL COMPANY,

Docket No. WEYA 2008-1354
A.C. No. 46-09020-148893
Docket No. WEYA 2008-1355
•A.C. No. 46-09020:-145248

DYNAMIC ENERGY, INC.,

Docket No. WEYA 2008-1356
A.C. No. 46-09062-147434
Docket No. WEYA 2008-1448
A.C. No. 46-09062-144939

FRONTIER COAL COMPANY,

Docket No. WEYA 2008;.1357
A.C. No. 46-09227-145258

BLUESTONE COAL CORPORATION,

Docket No. WEYA 2008-1358
A.C. No. 46-08684-146783
Docket No. WEYA 2008-1661
A.C. No. 46-08684-150175

WSTICE HIGHWALL MINING, INC.,

Docket No. WEY A 2008-1.359
A.C. No. 46-09123-147164
Docket No. WEYA 2009-727
A.C. No. 46-09031-162833

and
Docket No. WEYA 2008-1563
. A.C. No. 46-08884-148891

PAY CAR MINING, INC.

Docket No. WEYA 2009-812
A.C. No. 46-08884-170006
BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners

31 FMSHRC 339

ORDER
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). In each of the captioned cases, the Commission received a
request to reopen a penalty assessment that had become a final order of the Commission pursuant
to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). Under section 105(a) of the Mine Act, an
operator who wishes to contest a proposed penalty must notify the Secretary of Labor no later .
than 30 days after receiving the proposed penalty assessment. If the operator fails to notify the
Secretary, the proposed penalty assessment is deemed a final order of the Commission. 30
U.S.C. § 815(a).
Shortly before separate orders in the cases were finalized, the Secretary filed an
opposition in one of the cases (Pay Car Mining, Inc., Docket No. WEVA 2009-812), and
indicated that she planned to file supplemental responses in many of the other cases, opposing
the requested relief on the same or similar grounds as stated in her response in Docket No.
WEVA 2009-812. The Commission takes the grounds for the Secretary's opposition very
seriously. Rather than address the Secretary's change in position, in the interest of efficiently
deciding multiple cases involving related operators, the Commission has decided to consolidate
all of the cases 1 and issue the following order:
1. If the Secretary wishes to file an amended response regarding her position on reopening any of
the above-captioned cases in addition to Docket No. WEVA 2009-812, she must do so
simultaneously in those cases, and within 10 days of the issuance of this order. In any amended
response, the Secretary can refer to and incorporate her response in Docket No. WEVA 2009812.
2. The operators may file individual replies or a joint reply within 10 days of service of the
Secretary's amended response. 2 In so doing, the operators should address the Secretary's
allegations in detail, and must file affidavits from the involved operator personnel, contractors,
and any other person whose testimony may be needed to explain fully the reasons for and
circumstances surrounding the defaults. The operators should describe the details of their
various systems for dealing with correspondence from MSHA during the period covered by these

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEV A 2008-879, WEVA 2008-880, WEVA 2008-1354, WEVA
2008-1355, WEVA 2008-1356, WEV A 2008-1357, WEVA 2008-1358, WEVA 2008-1359,
WEVA 2008-1448, WEVA 2008-1563, WEVA 2008-1661, WEVA 2009-727, and WEVA
2009-812, all involving related operators and similar procedural issues. 29 C.F.R. § 2700.12.
2

The operator may at that titne also file a reply to the opposition to reopening the
Secretary filed in Justice Highwall Mining, Inc., Docket No. WEVA 2009-727.
31 FMSHRC 340

cases. Copies of documents relevant to the operators' explanation should also be included.
Failure of an operator to completely respond to the Secretary could result in the Commission's
denying the operator's request to reopen with prejudice. 3
3. If the Secretary chooses to respond to the operators' replies, she shall do so within seven days
of service of the replies.

Robert F. Cohen, Jr., Commissioner

3

The requests to reopen were sent by J runes F. Bowman, who describes himself as a
"Consultant/Litigator." Commission Procedural Rule 3 provides that, in order to practice before
the Commission, a person must either be an attorney or fall into one of the categories in
Rule 3(b), which include parties, representatives of miners, an "owner, partner, officer or
employee" of certain parties, or "[a]ny other person with the permission of the presiding judge or
the Commission." 29 C.F.R. § 2700.3. It is unclear whether Mr. Bowman satisfied the
requirements of Rule 3 when he filed the operators' requests. We have determined that, despite
this, we will consider the merits of the operators' requests. However, in any future proceeding
before the Commission, including further proceedings in these cases, Mr. Bowman must
demonstrate to the Commission or presiding judge that he fits within one of the categories set
forth in Rule 3(b)(l)-(3) or seek permission to practice before the Commission or judge pursuant
to Rule 3(b)(4).
31 FMSHRC 341

Distribution:
James F. Bowman
P.O. Box 99
Midway, WV 25878
Thomas A. Paige, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Perry Ryder
Gen. Mngr.
Bluestone Coal Corp.
818 N. Eisenhower Dr.
Beckley, WV 25802
James C. Justice
Justice Highwall Mining, Inc.
818 N. Eisenhower Dr.
Beckley, WV 25801
Robert Cochran
Dynamic Energy, Inc.
818 N. Eisenhower Dr.
Beckley, WV 25801.
Pay Car Mining, Inc.
Bottom Creek Road
Kimball, WV 24853
Kenny Lambert Sr.
President
Double Bonus Coal Company
Pinnacle Creek-:-Sulphur Branch Rd.
Pineville, WV 24874

31 FMSHRC 342

Randall Lester
Supt.
Frontier Coal Co.
818 N. Eisenhower Dr.
Beckley, WV 25801
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 343

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

March 18, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2008-1408-M
A.C. No. 35-01066-145141

v.
SIERRA CASCADE, LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 11, 2008, the Commission received from Sierra
Cascade LLC ("Sierra") a request to reopen a penalty assessment that had become a final order of
the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
The Secretary states that she does not oppose the reopening of the proposed penalty
assessment. 1
We have held, however, that in appropriate circumstances, we possess jurisdiction to
1

The record indicates that operator's counsel called the District Office of the Department
of Labor's Mine Safety and Health Administration ("MSHA") after the proposed penalty
assessment was issued to determine the status of Sierra's prior request for a conference and was
under the impression that the notice of assessment remained the subject of conferencing and
could be revised.
31 FMSHRC 344

reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence or excusable neglect.
See 29 C.F.R. § 2700. l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); .!WR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Sierra's request and the Secretary's response, in the interests of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 345

Distribution:
Scott Mahady, Esq.
Moore & Associates
96 East Broadway, Suite7
Eugene, OR 97401
Bruce L. Brown, Esq.
Office of the Solicitor
U.S. Department of Labor
1111 Third Avenue, Suite 945
Seattle, WA 98101-3212
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite9500
Washington, D.C. 20001-2021

31 FMSHRC 346

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

March 18, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (M~HA)
Docket No. KENT 2008-1407
A.C. No. 15-15978-148474 N624

.v.

SHELTON BROTHERS
ENTERPRISES, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 8, 2008, the Commission received from Shelton
Brothers Enterprises, Inc. ("Shelton") a letter seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section l05(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
The Secretary states that she does not oppose the reopening of the proposed penalty
assessment. 1
We have held, however, that in appropriate circumstances, we possess jurisdiction to

1

The record indicates that delivery of the proposed penalty assessment was attempted
but not effective. Although such delivery does constitute service under 30 C.F.R. § 100.8, the
operator appears to have never received the proposed assessment. Upon learning that the
proposed assessment was delinquent, the operator promptly filed this request to reopen.
31FMSHRC347

reopen uncontested assessments that have become final Commission orders. under section I 05(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence or excusable neglect.
See 29 C.F.R § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Shelton's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F .R
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

31 FMSHRC 348

Distribution:
Steve Shelton, Owner
Shelton Brothers Enterprises, Inc.
139 Thompson Drive
Prestonsburg, KY 41653
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Thomas A. Grooms, Esq.
Office of the Solicitor
U.S. Department of Labor
618 Church Street, Suite 230
Nashville, TN 37219-2456
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 349

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

March 18, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEYA 2009-47
A.C. No. 46-08131-152112
Docket No. WEYA 2009-48
A.C. No. 46-08845-152118

v.
XMY,INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On October 7, 2008, the Commission received requests to
reopen two penalty assessments issued to XMV, Inc. ("XMV") that had become final orders of
the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 1
Under section I 05(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a):
·
On June 3, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued two proposed penalty assessments to XMV. After receiving no response,
MSHA sent XMV delinquency notifications on or around August 27, 2008, for the two penalty
assessments at issue. According to James F. Bowman, who filed the requests to reopen, 2 XMV

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEY A 2009-4 7 and WEYA 2009-48, both captioned XMV, Inc.,
and involving similar procedural issues. 29 C.F .R. § 2 700.12.
2

The requests to reopen were sent by James F. Bowman, who describes himself as a
"Consultant/Litigator." Commission Procedural Rule 3 provides that, in order to practice before
31 FMSHRC 350 ·

failed to timely respond to the proposed penalty assessments because of confusion among those
office employees signing for the assessments and the failure to use normal internal document
routing procedures, resulting in the failure of the documents to reach the proper offices on a
timely basis.
The Secretary states that she does not oppose the reopening of the assessments. She urges
the operator to take all steps necessary to ensure that future penalty assessment contests are filed
in a timely manner.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that .default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

the Commission, a person must either be an attorney or fall into one of the categories in
Rule 3(b), which include parties, representatives of miners, an "owner, partner, officer or
employee" of certain parties, or "[a]ny other person with the permission of the presiding judge or
the Commission." 29 C.F.R. § 2700.3. It is unclear whether Mr. Bowman satisfied the
requirements of Rule 3 when he filed the operator's request. We have determined that, despite
this, we will consider the merits of the operator's request in this instance. However, in any future
proceeding before the Commission, including further proceedings in this case, Mr. Bowman must
demonstrate to the Commission or presiding judge that he fits within one of the categories set
forth in Rule 3(b)(l)-(3) or seek permission to practice before the Commission or judge pursuant
to Rule 3(b)(4).
31FMSHRC351

Having reviewed XMV's request and the Secretary's response, we conclude that XMV
has failed to provide a sufficiently detailed explanation for its failure to timely contest the
proposed penalty assessments. Accordingly, we deny without prejudice XMV's request. 3 See
Eastern Associated Coal, LLC, 30 FMSHRC 392, 394 (May 2008); James Hamilton Constr., 29
FMSHRC 569, 570 (July 2007).

Uf_aw. e_ ~

Mary Lu (ttan• collt¢SSi011ef

Robert F. Cohen, Jr., Commissioner

3

The words "without prejudice" mean that XMV may submit another request to reopen
the case so that it can contest penalty assessments. In the event that XMV chooses to refile its
requests to reopen, it should disclose with greater specificity, and with appropriate
documentation, the reasons for its failure to contest the proposed assessments in a timely manner.
31 FMSHRC 352

Distribution:
James F. Bowman
Extra Energy, Inc.
P.O. Box 99
Midway, WV 26878
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Douglas N. White, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 353

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

March 18, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. YORK 2009-25-M
A.C. No. 30-00025-151256 A

v.
MICHAEL CLINE

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. ·
§ 801 et seq. (2006) ("Mine Act"). On November 6, 2008, the Commission received from
Michael Cline ("Cline") a motion by counsel seeking to reopen a penalty a8sessment against
Cline under section l lO(c) of the Mine Act, 30 U.S.C. § 820(c), that mayhave become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a):
Under the Commission's Procedural Rules, an individual charged under section llO(c)
has 30 days following receipt of the proposed penalty assessment within which to notify the
Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.
In his motion, Cline states that in January 2008, he was informed, through counsel, that
the Department of Labor's Mine Safety and Health Administration ("MSHA") intended to assess
a civil penalty against him as a result of an alleged "knowing" violation of the same standard
referenced in the citation issued to his employer, Orica USA, Inc. ("Orica"), on June 4, 2007.
Cline also states that, in January 2008, he was transferred from Orica's New York office to one
of its offices in Texas. On May 20, 2008, MSHA apparently issued a proposed penalty
assessment to Cline, alleging that he was personally liable under section 110(c) of the Mine Act
for a citation issued to Orica. See 30 U.S.C. § 820(c). fu his motion, Cline asserts that, on
September 5, 2008, he received a delinquency letter from MSHA that had been forwarded to him
in Texas from Orica's New York office. According to Cline, that letter was the first indication to
31FMSHRC354

him that MSHA had proposed a civil penalty against him. The motion further states that neither
Cline nor the attorney representing him had ever received the proposed penalty assessment prior
to that time. On September 11, 2008, MSHA faxed Cline's counsel a copy of the proposed
assessment. On September 18, Cline's counsel notified MSHA.by letter that Cline wished to
contest the penalty. The Secretary states that she does not oppose Cline's request to reopen the
penalty assessment.
Here, Cline never received notification of the proposed penalty assessment as required
under Commission Rule 25. 1 Under the circumstances of this case, we conclude that Cline was
not notified of the penalty assessment, within the meaning of the Commission's Procedural
Rules, until at least September 11, 2008, when he received a copy of the assessment from
MSHA. Cline, through his attorney, notified MSHA of his intent to contest the proposed penalty
assessment against him by letter dated September 18, 2008. We conclude from this that Cline
timely notified the Secretary that he wished to contest the proposed penalty, once he had actual
notice of the proposed assessment. See Stech, employed by Eighty-Four Mining Co., 27
FMSHRC 891, 892 (Dec. 2005).

1

Commission Procedural Rule 25 states that the "Secretary, by certified mail, shall
notify the operator or any other person against whom a penalty is proposed of the violation
alleged, the amount of the proposed penalty assessment, and that such person shall have 30 days
to notify the Secretary that he wishes to contest the proposed penalty assessment." 29 C.F.R.
§ 2700.25 (emphasis added). Here, the Secretary was required to send the penalty proposal at
issue here to Cline at his home address or "in care of' counsel at counsel's address.

31 FMSHRC 355

Accordingly, the proposed penalty assessment is not a final order of the Commission.
We remand this matter to the Chief Administrative Law Judge for assignment to a judge. This
case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Consistent with Rule28, the Secretary shall file a petition for assessment of penalty
within 45 days of the date of this order.· See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 356

Distribution:
Timothy M. Biddle, Esq.
Crowell & Morning LLP
l 00 l Pennsylvania N. W.
Washington, D.C. 2004-2595
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA,
U.S. Dept. of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Suzanne L. Demitrio, Esq.
Office of the Solicitor
U.S. Department of Labor
201 Varick Street, Room 983
New York, NY 10014
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 357 ·

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

March 19, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2009-810
A.C. No. 46-09020-164130
Docket No. WEVA 2009-811
A.C. No. 46-09020-167075

v.
DOUBLE BONUS COAL COMPANY

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On February 5, 2009, the Commission received motions
seeking to reopen two penalty assessments issued to Double Bonus Coal Company ("Double
Bonus") that may have become final orders of the Commission pursuant to section I 05( a) of the
Mine Act, 30 U.S.C. § 815(a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
Double Bonus seeks reopening on the grounds that it never received the two assessment
forms. 2 It submits evidence that Assessment No. 000164130 was returned undelivered to the

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEVA 2009-810 and WEVA 2009-811, both captioned Double
Bonus Coal Co. and involving similar procedural issues. 29 C.F.R. § 2700.12.
2

The requests to reopen were sent by James F. Bowman, who describes himself as a
"Consultant/Litigator." Commission Procedural Rule 3 provides that, in order to practice before
the Commission, a person must either be an attorney or fall into one of the categories in
31 FMSHRC 358

Department of Labor's Mine Safety and Health Administration because of a supposedly wrong
address. It also aJleges that Assessment No. 000167075 was delivered to a neighboring mine and
never received by Double Bonus. The Secretary of Labor states that, based on the circumstances
alleged in the motions, she does not object to reopening the assessments.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105{a). Jitn
Walter Res., Inc., 15 FMSHRC 782, 786-89 {May 1993) f'JWR"). In evaluating requests to
reopen final section 105{a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700. l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for· a failure to t_imely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs.,Jnc., 17 FMSHRC 1529, 1530 (Sept. 1995).

Rule 3(b), which include parties, representatives of miners, an "owner, partner, officer or
employee" of certain parties, or "[a]ny other person with the permission of the presiding judge or
the Commission." 29 C.F.R. § 2700.3(b). It is unclear whether Mr. Bowman satisfied the
requirements of Rule 3 when he filed the operator's requests. We have determined that, despite
this, we will consider the merits of the operator's requests in this instance. However, in any
future proceeding before the Commission, including further proceedings in these cases, Mr.
Bowman must demonstrate to the Commission or presiding judge that he fits within one of the
categories set forth in Rule 3(b )(1 )-(3) or seek permission to practice before the Commission or
judge pursuant to Rule 3(b )( 4).
31 FMSHRC 359

Having reviewed Double Bonus' requests and the Secretary's responses, we conclude that
the proposed assessments at issue have not become final orders of the Commission. We deny
Double Bonus' motions as moot and remand this matter to the Chief Administrative Law Judge
for further proceedings as appropriate, pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F.R. Part 2700. See Lehigh Cement Co., 28 FMSHRC 440, 441 (July
2006). Because each motion specifies the individual penalties in the respective assessments that
Double Bonus wishes to contest, those statements in the motions can serve as the operator's
notices of contest. Consequently, and consistent with Rule 28, the Secretary shall file petitions
for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 360

Distribution:
James F. Bowman
P.O. Box 99
Midway, WV 25878
W. Christian Schumami, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
_
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 361

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

March 31, 2009
SECRETARY OF LABOR,·
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2008-516
A.C. No. I 1-03054-145023

v.
BIG RIDGE, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On July 2, 2008, the Commission received from Big Ridge,
fuc. ("Big Ridge") a motion by counsel seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On April 1, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed assessment that included penalties associated with 50 citations,
totaling $259,795. According to MSHA records, Big Ridge received the assessment on April 8.
On May 16, 2008, Big Ridge sent MSHA the assessment form that indicated the citations it
wished to contest and a check for the amount of the uncontested penalties. Big Ridge states that
its safety manager did not file the contest within 30 days because of "overwhelming business
matters at the time" and that the failure to file was the result of"inadvertence or a mistake and
miscommunication within the operator's organization." In a letter dated May 22, MSHA
informed Big Ridge that its May 16 filing was untimely and that its hearing request was denied.

31 FMSHRC 362

In response to Big Ridge's motion to reopen, the Secretary states that she does not oppose
Big Ridge's request.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessment forms that have become final Commission orders under section 105(a}.
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ('"JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R.
§ 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 363

Having reviewed Big Ridge's request and the Secretary's response, we conclude that Big
Ridge's summary statement in its motion that it failed to timely file a contest because of
"overwhelming business matters" and "miscommunication" does not provide the Commission
with an adequate basis to justify reopening. Accordingly, we deny without prejudice Big Ridge's
request. 1 See, e.g., Eastern Associated Coal, LLC, 30 FMSHRC 392, 394 (May 2008); James
Hamilton Constr., 29 FMSHRC 569, 570 (July 2007).

Robert F. Cohen, Jr., Commissioner

1

In the event that Big Ridge chooses to refile its request to reopen, it should provide
additional documentation to support its allegations.
3 I FMSHRC 364

Distribution:
R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center
Suite 1340
401 Liberty A venue
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 365

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

April 2, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2008-515
A.C. No. 11-03054-141423

v.
BIG RIDGE, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On July 2, 2008, the Commission received from Big Ridge,
Inc. ("Big Ridge") a motion by counsel seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section I 05( a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On February 14, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed assessment that included penalties of $143,652 associated with 66
citations. Big Ridge states that, after it received the assessment, the form should have been
forwarded through intercompany mail to its safety director, who would have evaluated the
penalties and citations. According to Big Ridge, the proposed assessment was "lost" and was not
received by the safety director. In a letter dated May 21, 2008, MSHA informed Big Ridge that
the civil penalties were delinquent. Big Ridge maintains that it conducted a search for the
proposed assessment at the mine and could not locate it.

31 FMSHRC '366

In response, the Secretary states that she does not oppose Big Ridge's request to reopen.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessment forms that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R.
§ 2700.1 (b) ('•the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Ci.vii Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 367

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

Robert F. Cohen, Jr., Commissioner

31 FMSHRc'368

Distribution:

R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue,
Pittsburgh, PA 1s222·
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

3 I FMSHRC 369

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

April 7, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2008-1458
A.C. No. 15-10753-149793

v.
CLEAN ENERGY MINING COMPANY

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 14, 2008, the Commission received from Clean
Energy Mining Company ("Clean Energy'') a motion made by cdunsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700. l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31FMSHRC370

The Secretary states that she does not oppose the reopening of the proposed penalty
assessment. 1
The record indicates that due to an employee's error, Clean Energy inadvertently failed to
transmit the proposed penalty assessment to counsel and that, as a result, counsel never filed the
contest.

1

We consider the Secretary's position in this case in light of the provisions of the
"Informal Agreement between Dinsmore & Shohl Attorneys and Department of Labor - MSHA
- Attorneys Regarding Matters Involving Massey Energy Company Subsidiaries" dated
September 13, 2006. Therein, the Secretary agreed not to object to any motion to reopen a matter
in which any Massey Energy subsidiary failed to timely return MSHA Form 1000-1 79 or
inadvertently paid a penalty it intended to contest so long as the motion to reopen is filed within a
reasonable time. Thus, we assume that the Secretary is not considering the substantive merits of
a motion to reopen from any Massey Energy subsidiary so long as the motion is filed within a
reasonable time. Such agreements obviously are not binding on the Commission, and the
Secretary's position in conformance with the agreement in this case has no bearing on our
determination on the merits of the operator's proffered excuse.
31FMSHRC371

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

Robert F. Cohen, Jr., Commissioner

31FMSHRC372

Distribution:
Sarah Ghiz K01wan, Esq.
Dinsmore & Shohl, LLP
P. 0. Box 11887
900 Lee Street, Suite 600
Charleston, WV 25339
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Co111pliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC373

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

April 17,2009
SECRET-ARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Doc.ket No. PENN 2008-467-M
A.C. No.36-06468-142578

V.

GRAYMONT (PA) INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On July l, 2008, the Commission received a request to
reopen a penalty assessment issued to Graymont (PA) Inc. ("Graymonf') that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a),
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
However, we have held that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700. l (b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC374

The Secretary states that she does not oppose the reopening of the proposed penalty
assessment. The request to reopen states that the contest of the proposed penalty assessment was
not timely filed because Graymont's safety director was absent from work due to an operation
and did not return until after the period for contesting the assessment had passed. 1
Having-reviewed Graymont's requestand the Secretary's-response;--inthe interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F .R.
P£U1: 2700 . .f\.9~9rqingly, consistent with Rule 28, the Se.<;re.tWY shall fil~_gpetition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

·ssioner

Robert F. Cohen, Jr., Commissioner
1

The request to reopen was sent by Brian D. Barrett, who describes himself as a "Safety
Consultant." Commission Procedural Rule 3 provides that, in order to practice before the
Commission, a person must either be an attorney or fall into one of the categories in
Rule 3(b), which include parties, representatives of miners, an "owner, partner, officer or
employee" of certain parties, or "[a]ny other person with the permission of the presiding judge or
the Commission." 29 C.F.R. § 2700.3(b). It is unclear whether Mr. Barrett satisfied the
requirements of Rule 3 when he filed the operator's request. We have determined that, despite
this, we will consider the merits of the operator's request in this instance. However, in any future
proceeding before the Commission, including further proceedings in this case, Mr. Barrett must
demonstrate to the Commission or presiding judge that he fits within one of the categories set
forth in Rule 3(b)(1 )-(3) or seek permission to practice before the Commission or judge pursuant
to Rule 3(b)(4).
31 FMSHRC375

Distribution:
Brian D. Barrett, Safety Consultant
DMS Safety Services
551 State Street
Curwensville, PA 16833
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra J runes, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, V A22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC376

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

April 17, 2009
Docket No. WEVA 2009-44
A.C. No. 46-05741-143195

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

Docket No. WEVA 2009-45
A.C. No. 46-05741-139339

v.

Docket No. WEVA 2009-46
A.C. No. 46-08647-135933

EXTRA ENERGY, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY: Jordan and Cohen, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On October 7, 2008, the Commission received requests to
reopen three penalty assessments issued to Extra Energy, Inc. ("Extra") that had become final
orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On January 10, 2008, February 7, 2008, and March 6, 2008, the Department of Labor's
Mine Safety and Health Administration ("MSHA") issued three separate proposed penalty
assessments to Extra. According to James F. Bowman, who filed the requests to reopen as
Extra's representative, Extra paid six of the eight penalties proposed in the March assessment

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEV A 2009-44, WEVA 2009-45, and WEVA 2009-46, all
captioned Extra Energy, Inc., and involving similar procedural issues. 29 C.F.R. § 2700.12.
31 FMSHRC 377

(Docket No. WEVA 2009-44), butdid not otherwise respond.2 Consequently, on April 16, 2008,
May 7, 2008, and May 29, 2008, MSHA sent three separate delinquency notices to Extra with
respect to the unpaid assessments. Extra now requests reopening of all three assessments so that
it may contest the penalties it did not pay, as well as one of the March assessment penalties (for
Citation No. 7277203) that it states it paid in error. Extra claims that it instructed an unnamed
"representative" to contest the penalties in each assessment it did not pay, but that individual did-··
not do so, apparently after Extra failed to return a phone call seeking confirmation from the
company regarding its-intent to contest the penalties.
The Secretary opposes reopening on the ground that Extra' s explanation for failing to
timely file notices of contests in the three cases is conclusory and does not constitute the
"exceptional circumstances;' necessary to support reopening. The Secretary further states the
reopening is unjustified here because Extra failed to identify facts which, if proven, would
establish a meritorious defense, and because ofExtra's failure to explain why the operator, after
it was sent delinquency notices by MSHA, waited four to five-and-a-half months to request
reopening of the assessments.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found.guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have noted that Rule 60(b) "is a tool
which ... courts are to use sparingly .... " Atlanta Sand & Supply Co., 30 FMSHRC 605, 608
(July 2008) (citing JWR, 15 FMSHRC at 789). We have also observed that default is a harsh
remedy and that, ifthe defaulting party can make a showing of good cause for a failure to timely
respond, the case may be reopened and appropriate proceedings on the merits permitted. See
Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
We conclude that relief is not justified in this case. Although relief from a final order
may be warranted in cases of inadvertence, mistake, surprise or excusable neglect, none of these
circumstances are apparent here. Assuming that the operator's assertions are true, they present a
scenario that does not justify reopening of the final order.

In each of its three motions the operator states that its "representative told the
respondent that a telephone call verifying the operator [sic] intention to contest was not returned.
Therefore, he did not file the case." This statement could have two different meanings, both
2

Pursuant to Commission Procedural Rule 3(b)(4), 29 C.F.R. § 2700.3(b)(4), James F.
Bowman has been granted leave to practice before the Commission. Double Bonus Coal Co., 31
FMSHRC _ _,Nos. WEVA 2008-879 et seq. (Apr. 7, 2009).
31FMSHRC378'

equally non-meritorious as a justification for the failure to contest the proposed assessments. The
first possibility is that on three separate occasions (after receipt of the proposed assessment
issued on January 10, 2008, after receipt of the proposed assessment issued on February 7, 2008,
and then again after the proposed assessment issued on March 6, 2008) the representative told the
operator that a telephone call regarding the contest was not returned and that therefore he did not
contest the penalty. In other words, under this interpretation of the operator's claim, this
remarkable chain of events occurred three separate times over a three month period.
The other possible interpretation is that the representative had only one conversation with
the operator, stating that a contest was not made because an earlier phone call (or calls) was not
returned. If this occurred after the initial assessment, then the operator continued to rely on this
representative to contest the two subsequent assessments, knowing that he had not properly
handled the first one, and knowing that ifthe operator failed to return the representative's phone
call in the future, it took the risk that the representative would not file a timely penalty contest on
the operator's behalf. 3 If this confession was made to the operator after the third penalty
assessment, the first two had become final long before that conversation took place, but the
representative had taken no steps to alert the operator to the communication problems between
them that allegedly resulted in the untimely contests. 4
Moreover, Extra Energy filed its motion to reopen approximately four to five-and-a-half
months after it was sent separate delinquency notices. It has provided no explanation for this
delay. However, the operator has the burden of establishing its entitlement to extraordinary
relief. Delay in seeking that relief, if unexplained, has been a relevant consideration in denial of
motions to reopen. See Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009) (citing Central
Operating Co. v. Utility Workers ofAmerica, 491 F.2d 245, 253 (4th Cir. 1974) (finding
"inexcusable dereliction" and denying motions to vacate when defendants waited almost four
months after receiving notice of default judgments) and McLawhorn v. John W Daniel & Co.,
924 F.2d 535, 538 (4th Cir. 1991) (finding that unexplained delay of three-and-half months was
not reasonable)).
In sum, the operator's sole excuse for not filing timely notices of contest is that its
representative was instructed to file the contests and failed to do so in each case, allegedly only

3

As the Federal Circuit suggested in its decision affirming a Merit Systems Protection
Board ruling not to waive the time limit for filing an appeal, when the attorney did not receive a
timely reply from his client providing information needed for the appeal, "all he had to do was
make a telephone call to [the client]." Phillips v. US. Postal Service, 695 F.2d 1389, 1391 (Fed.
Cir. 1982).
.
4

In addition, Extra's motion provides no explanation as to how one of the assessments
was inadvertently paid.

31FMSHRC379

because a telephone call (or calls) was not returned. 5 Consequently, we deny Extra Energy's
request to reopen. See Pinnacle Mining Co., 30 FMSHRC 1061, 1062-63 (Dec. 2008) (denying
relief because operator's excuse was insufficient); Pinnacle Mining Co., 30 FMSHRC 1066,
1067-68 (Dec. 2008) (same).

Robert F. Cohen, Jr., Commissioner

5

Accordingly, we conclude that. a dismissal without prejudice is not justified here. In
our view, this motion does not fail due to lack of detail or documentation, It fails because the
excuse presented simply does not demonstrate the level of care needed to justify reopening. Cf
Atlanta Sand, 30 FMSHRC at 608 (denying relief without prejudice because operator provided
no specific facts justifying relief, but noting that "Rule 60(b) was not intended as a license for
parties to fail to exercise due diligence in regard to litigation").
31FMSHRC380

Chairman Duffy and Commissioner Young:
While we do not disagree with our colleagues that the excuse presented by the operator
for its failure to timely contest the three proposed penalty assessments issued by MSHA is
insufficient to establish that reopening of the assessments is warranted in this instance, and
would accordingly-deny the requests, we would not go so far-as-to specify thaHhe denial was
with prejudice. The Commission has, almost consistently, denied a vaguely explained and
supported request to reopen without prejudice to the operator renewing its request to reopen with
gr~at~r_sp~~ifiGity and support for the request. See, e.g., Solqr Coal CQ,_,_}Q_ fMSJfRC 1049,
1050-51 (Dec. 2008); S&M Coal Co., 30 FMSHRC 1053, 1055 (Dec. 2008); Freeman Rock,
Inc., 31FMSHRC91, 93 (Feb. 2009); Mt. View Res., slip op. at 3, 31 FMSHRC _,Docket No.
WEVA 2008-1853 (Mar. 12, 2009);XMV, Inc., slip op. at 3, 31 FMSHR-C _-·,Docket No.
WEVA 2009-4 7 (Mar. 18, 2009). Further, in such cases we have also permitted an operator to
explain why it delayed in filing for reopening for a number of months even after have been
alerted to the delinquency by a notice from MSHA. See, e.g., Pinnacle Mining Co., 30 FMSHRC
1071, 1074 (Dec. 2008); Petra Materials, 31FMSHRC47, 49 (Jan. 2009).

In light of these ca.Ses we would accord the operator in this instance the same leniency
and deny the motion to reopen without prejudice to allow the operator an opportunity to refile its
request with a more thorough explanation for its failure to timely contest the proposed penalties
and to timely respond to the delinquency notices. 6

6

The operator, of course, is free to file a motion for reconsideration of this decision
pursuant to Commission Procedural Rule 78(a). See 29 C.F.R. § 2700.78(a).
31 FMSHRC 381

Distribution:
James F. Bowman
Extra Energy, Inc.
P.O. Box 99
Midway, WV 26878
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Douglas N. White, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22°d Floor West
Arlington, VA 22209-2247
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey A venue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 382

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

April 17, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. SE 2009-116-M
A.C. No. 40-03000-152339

v.

Docket No. SE 2009-117-M
A.C. No. 40-03000-158636
Docket No. SE 2009-118-M
A.C. No. 40-03000-164351

S&SROCK

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). 1 On November 17, 2008, the Commission received from
S & S Rock ("S & S") motions by counsel seeking to reopen penalty assessments that had
become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order ofthe Commission. 30 U.S.C. § 815(a).
However, we have held that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b)"ofthe

1

Pursuant to Commission Procedural Rule 12, 29 C.F.R. § 2700.12, on our own motion,
we hereby consolidate Docket Nos. SE 2009-116-M, SE 2009-117-M, and SE 2009-118-M, as
all three dockets involve similar procedural issues and similar factual backgrounds.
31 FMSHRC 383

Federal Rules of Civil Procedure under which, for example; a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, ·or excusable neglect.
See 29 C.F.R. § 2700.l{b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, ifthe defaulting party can make a showing of good cause
for a failure to timely respond;-the-casemay-be-reopened and appropriate proceedings-orrthe
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
The Secretary st::ites th~..t[b.e d9es JJ._Q.t Qppose the reopening of the proposed p~n,wJ:y
assessments. The president of S & S stated in an affidavit that the company previously had hired
a representative to submit the contests of the proposed penalty assessments but the prior
representative had failed to do so, unbeknown to S & S.
Having reviewed S & S's request and the Secretary's response, in the interests of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file petitions for assessment of
penalty within 45 days ofthe date of this order. See 29 C.F.R. § 2700.28.

.

.

\

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 384

Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
- ---- 4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC385

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

April 17, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. CENT 2009-96-M
A.C. No. 41-04257-149058

v.

Docket No. CENT 2009-97-M
A.C. No. 41-04257-158646

LUEDERS LIMESTONE, LP

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
.

.

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). 1 On November 20, 2008, the Commission received from
Lueders Limestone, LP ("Lueders") motions by counsel to reopen penalty assessments that had
become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
However, we have held that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief

1

Pursuant to Commission Procedural Rule 12, 29 C.F.R. § 2700.12, on our own motion,
we hereby consolidate Docket Nos. CENT 2009-96-M and CENT 2009-97-M, as both dockets
involve similar procedural issues and similar factual backgrounds.
31FMSHRC386

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits-permitted. See-Coal Prep. Servs., Inc., 17 FMS-HRe-+529;-J.-53-0-(Sept.t995).
The Secretary states that she does not oppose the reopening of the proposed penalty
as~_essments, Tb~J~~o:r4 indicates that, because ofhealth_prnblem,s,_th~ 9perato:r's general
partner was absent from his job during much of the relevant time period, and the individuals who
became responsible for timely contesting the proposed penalties failed to do so.
Having reviewed Lueders' requests and the Secretary's response, in the. interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F .R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F .R. § 2700.28.

~£~

MafYL~rdan, C ~

Robert F. Cohen, Jr., Commissioner

31FMSHRC387

Distribution:
Stephen E. Irving, Esq.
Funderburk and Funderburk, LLP
2777 Allen Pkwy., Suiret600
Houston, TX 77019
W. Christian Schumann, :Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC388

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

April 23, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 2008-369
A.C. No. 44-07081-144739 T513 :

v.
PENN VIRGINIA RESOURCE
PARTNERS

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On July 25, 2008, the Commission received from Penn
Virginia Resource Partners ("Penn Virginia") a motion by counsel to reopen a penalty assessment
that had become a final order ofthe Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
However, we have held that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessment forms that have become final Commission orders under section
105(a). Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating
requests to reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b)
of the Federal Rules of Civil Procedure under which, for example, a party could be entitled to
relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable
neglect. See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of

31 FMSHRC 389

good cause for. a failure to timely respond, the case may be reopened and appropriate proceedings
on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Penn Virginia argues, among other things, that it believed in good faith it did not have to
contest the penalty in order to maintain its contest of the underlying order. The Secretary states
that she does not oppose reopening the proposed penalty assessment on this basis. Moreover;-··
Penn Virginia promptly filed its motion to reopen the penalty assessment upon discovering that
the Secretary considered it to be a final order.
Having reviewed Penn Virginia's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. 1 Accordingly, consistent with Rule 28, the Secretary shall file a petition for
assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Co:nunissioner

1

In granting Penn Virginia's motion to reopen, the Commission has not considered the
merits of the operator's argument concerning its reading of section 105(a), and does not need to
do so at this time.

31 FMSHRC 390

Distribution:
TimothyW. Gresham, Esq.
Penn, Stuart & Eskridge
P.O. Box 2288
Abingdon, VA 24212
W. Christian Schumapn, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC391

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

April 17, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. KENT 2009-9
A.C. No. 15-18267-157148

v.
MANALAPAN MINING COMPANY

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On October 7, 2008, the Commis.sion received from
Manalapan Mining Company ("Manalapan") a letter seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On July 16, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued proposed penalty Assessment No. 000157148 to Manalapan. fu its letter,
Manalapan asserts that it would be a great hardship for it to pay the total balance of outstanding
penalty assessments shown on Assessment No. 000157148.

fu response, the Secretary states that inability to pay a penalty is not a grounds for
reopening and notes that another one of the unpaid assessments that constitutes Manalapan's
total outstanding balance has already been reopened pursuant to an earlier request by Manalapan.
The Secretary further notes that, if the operator does not pay the revised balance, the Secretary
will refer the matter to the Department of the Treasury, with whom the operator may be able to
agree upon an installment payment plan.
31FMSHRC392

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief ·
from a final order of the Commission on the basis of mistake, inadvertence or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 393

Because Manalapan's request for relief does not explain the company's failure to contest
the proposed assessment on a timely basis, and is not based on any of the grounds for relief set.
forth in Rule 60(b), we hereby deny the request for relief without prejudice. See FKZ Coal Inc.,
29 FMSHRC 177, 178 (Apr. 2007). The words "without prejudice" mean that Manalapan may ·
submit another request to reopen Assessment No. 000157148 so that it can contest specific
citations and proposed penalties:J

Robert F. Cohen, Jr., Commissioner
1

If Manalapan submits another request to reopen, it must identify the specific citations
and proposed penalties it seeks to contest from Assessment No. 000157148. Manalapan must
also establish good cause for not contesting those citations and proposed penalties within 30 days
from the date it received Assessment No. 000157148 from MSHA. Under Rule 60(b) of the
Federal Rules of Civil Procedure, the existence of "good cause" may be shown by a number of
different factors including mistake, inadvertence, surprise, or excusable neglect on the part of the
party seeking relief, or the discovery of new evidence, or fraud, misrepresentation, or other
misconduct by the adverse party. Manalapan should include a full description of the facts
supporting its claim of"good cause," including how the mistake or other problem prevented
Manalapan from responding within the time limits provided in the Mine Act, as part of its
request to reopen. Manalapan should also submit copies of supporting documents with its
request to reopen.

31FMSHRC394

Distribution:
Jim Brummett, Safety Dir.
Manalapan Mining Co., Inc.
8174 East West Hgwy. ·
72, Pathfork, KY 40863
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance,
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 395

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

April 17, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINlSTRATION (MSHA)

Docket No. WEVA 2009-1
A.C. No. 46-09136-156167
Docket No. WEVA 2009-358
A.C. No. 46-09136-159271

v.
BIG RIVER MINING, LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On October 1 and November 24, 2008, the Commission
received from Big River Mining, LLC ("Big River") motions to reopen two penalty assessments
that had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
With respect to each of the assessments, which were issued by Department of Labor's
Mine Safety and Health Administration in July and August, 2008, Big River states that it
intended to contest several of the proposed penalties on each of the assessments. It explains that
due to a change in the company's safety director position, however, it failed to file the contests,
and its new safety director only learned of the delinquencies well after assuming the position. In
affidavits, the safety director states that the 1000-79 forms for these two penalty contests were

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEVA 2009-1 and WEVA 2009-358, each captioned Big River
Mining, LLC, and involving similar procedural issues. 29 C.F.R. § 2700.12.
31 FMSHRC 396

not in the files left by his predecessor, and that he first learned that the assessments had not been
contested when he discovered them listed as delinquent in the MSHA Data Retrieval System.
The Secretary states she does not oppose Big River's requests to reopen the assessments.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section· l 05(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, ifthe defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Big River requests that, for each assessment, it "be granted such additional time as
required to complete the 1000-179 form to show which of the enforcement actions and penalties
it contests."2 However, it is incumbent upon an operator that has failed to comply with the
section 105(a) time limit to present to the Commission in its request to reopen the final order not
only the basis for reopening, but the specific penalties it wishes to reopen. For the Commission
to reopen the orders and grant Big River even more time to consider which penalties it wishes to
contest conflicts with the 30-day time limit for both contests of penalties and payment of
uncontested penalties.

2

Inexplicably, Big River does so in Docket No. WEVA 2009-358 despite attaching to its
motion a copy of Assessment No. 000159271 on which over half of the penalties have been
checked for contest.
31 FMSHRC 397

Consequently, we dismiss Big River's requests without prejudice. However, the operator
may file an amended request to reopen which includes the specific penalties in each assessment it
wishes to contest upon reopening and indicates that it has paid the other penalties.

Robert F. Cohen, Jr., Commissioner

31FMSHRC398

Distribution:
Justin A. Rubenstein, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501
Douglas N. White, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor West
Arlington, VA 22209-2247
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room-2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 399

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

April23,2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-166
A.C. No. 48-01180-160106.

v.
BLACK BUTTE COAL COMPANY

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 10, 2008, the Commission received from
Black Butte Coal Company ("Black Butte") a motion from counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
However, we have held that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section l05(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
31 FMSHRC 400

merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
The Secretary states that she does not oppose the reopening of the proposed penalty
assessment. The record indicates that, because of a transition between old and new safety
managers, there was a miscommunication with counsel regarding whether the contest form had
been- sent:Having reviewed Black Butte's request and the Secretary's response, in the interests of
j11i;;tic;e~ we her~by reopen this matter and remand it to the Chief Aq@n.i~tr~tive Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 270(±.2--8.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 401

Distribution:
James A. Lastowka, Esq.
McDermott Will & Emery LLP
600 13th Street NW
Washington, DC 20005-3096
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 402

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

April 27, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2008-594-M
A.C. No. 12-02063-148442 K850

V.

CINTAS CORPORATION

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 8, 2008, the Commission received from Cintas
Corporation ("Cintas") a letter seeking to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, !530 (Sept. 1995).
31 FMSHRC 403

The Secretary states that she does not oppose the reopening of the proposed penalty
assessment but has no written record of having received a contest form. The record indicates that
a company official apparently contacted the district office of the Department of Labor's Mine
Safety and Health Administration ("MSHA") within 30 days of receiving the proposed penalty
assessment and informed MSHA employees by telephone that it was contesting the proposed
penalty at issue.
Having reviewed Cintas' request and the Secretary's response, in the interests of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 404

Distribution:
Cathie Thomas
Human Resources Mngr.
Cintas-€orp.
7233 Enterprise Park Dr.
Evansville, IN 47715
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 405

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

April 27, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2008-1465 ·
A.C. No. 15-02132-151119

v.
WEBSTER COUNTY COAL, LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 20, 2008, the Commission received from Webster
County Coal, LLC ("Webster") a request to reopen a penalty assessment that had become a final
order of the Commission pursuant to section I05(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On January 28, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued two orders to Webster's Dotiki Mine. Webster contested those orders, Nos.
6696967 and 6696968. The proceedings were assigned docket numbers KENT 2008-548-R and
KENT 2008-549-R and stayed pending assessment of proposed penalties. MSHA issued a
proposed penalty with respect to Order No. 6696967 in Assessment Case No. 000150871 on May
15, 2008. MSHA issued a proposed civil penalty with respect to Order 6696968 in Assessment
Case No. 000151119 on May 19, 2008. Webster received both assessments on May 22, 2008. In
its motion, Webster asserts that it mailed the assessment form for Case No. 000150871 on
June 13, 2008, indicating its contest of several proposed penalties, including the penalty related
to Order 6696967. Webster asserts that it believed it had contested the assessment including
Order No. 6696968 at the same time. Webster learned that it had failed to timely contest the
proposed penalty when it received a delinquency notice on August 8, 2008 and shortly thereafter
31 FMSHRC 406

filed the instant motion. :Webster states that an internal investigation revealed that the
assessment form was not submitted in a timely manner because of an "unintentional mistake"
that caused the form not to be processed at the same time as the form for the other order.
The Secretary states that she opposes the reopening of the proposed penalty assessment
on the grounds that the-operatormak-esno showing of exceptional circumstances-warranting
reopemng.
We have held th~tin appropriat{! circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section lo5(a) orders, the Commission has found guidance in Rule 60(b) ofthe·-Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 407

Having reviewed Webster's request and the Secretary's response, in the interests of
justice, we hereby remand this matter to the Chief Administrative Law Judge for a determination
of whether good cause exists for Webster's failure to timely cmi.test the penalty proposal and
whether relief from the final order should be granted_ If it is determined that such relief is
appropriate, this case shall proceed pursuant to the Mine Act and the. Commission's Procedural·
Rules, 29 C.F.R. Part 2700.

ISSIOner

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 408

Distribution:
Daniel W. Wolff, Esq.
Crowell & Moring LLP
1001 Pennsylvania Avenue NW
Washington, DC 20004-2595
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W~, Suite 9500
Washington, D.C. 2ooor-2021

31 FMSHRC 409

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

April 27, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 2008-384
A.C. No. 44-07181-140627

v.

THE BANNER COMPANY, LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissionen;
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 4, 2008, the Commission received from The
Banner Company, LLC ("Banner") a motion by counsel to reopen a penalty assessment that had
become a final order of the Commission pursuant to section I 05(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On February 14, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued proposed penalty assessment No. 000140627 to Banner, covering Citations
Nos. 6635214 and 7318977. On May 14, 2008, MSHA sent Banner a letter indicating that the
penalty had become delinquent. In its motion, Banner asserts that its safety director believed he
had contested the two penalties associated with the two citations at issue. It alleges that the
failure to contest the penalties ''arose either by [Banner's] inadvertence or mistake or MSHA's
failure to accurately process [the penalty assessment form]."
The Secretary states that she opposes the reopening of the proposed penalty assessment
on the grounds that the operator's conclusory statement that its safety director intended to contest
the penalty assessment is insufficient to warrant reopening. She further notes that MSHA has no
31FMSHRC410

record that it ever received a contest of the penalty assessment .and the operator provides no
evidence that it ever filed such a contest. The Secretary also states that the operator failed to
explain why, given that the notice of delinquency was issued in May 2008, the operator did not
submit its motion to reopen until August 2008.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31FMSHRC411

Having reviewed Banner's request and the Secretary's response, we agree with the
Secretary that Brumer has failed to provide a sufficiently detailed explanation for its failure to
timely contest the proposed penalty assessment, and submit its motion to reopen. ·Banner's
conclusory statement that it believed it had contested the proposed penalty assessment does not
provide the Commission with an adequate basis to justify reopening. Accordingly, we deny
· without prejudice Banner's request. See, e~g.-; Eastern Associated Coal LLC, 30 FMSHRC 392,
394 (May 2008); James Hamilton Constr., 29 FMSHRC 569, 570 (July 2007).

Robert F. Cohen, Jr., Commissioner

31FMSHRC412

Distribution:
Justin A. Rubenstein, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC413

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

April 27, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. VA 2008-227
A.C. No. 44-07018-134221-02

v.
OLD DOMINION ENERGY, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On April 8, 2008, the Commission received from Old
Dominion Energy, Inc. ("Old Dominion") a motion made by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a). On July 16, 2008, the Commission denied the motion without
prejudice. Old Dominion Energy, Inc., 30 FMSHRC 616, 617 (July 2008). On August 5, 2008,
Old Dominion filed a motion to reconsider the denial of its motion to reopen.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
However, we have held that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the· Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
31 FMSHRC414

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits pennitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
The Secretary did not oppose Old Dominion's initial request to reopen and has not filed a
response to the motion to reconsider. The motion for reconsideration and attachments indicate
that Old Dominion failed to timely contest the proposed penalty in question primarily because the
assessment form was inadvertently omitted from a fax sent by the operator to its counsel.

31FMSHRC415

Having reviewed Old Dominion's motion for reconsideration, in the interests of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
1
2700. Accordingly, consistent with Rule 28, the Secretary shall file-a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

1

We accept for filing Old Dominion's four-day late motion for reconsideration due to
the medical reasons provided by counsel.
31FMSHRC416

Distribution:
Julia K. Shreve, Esq.
Jackson Kelly PLLC
1600 Laidley Tower
P.O. Box 553
Charleston, WV 25322
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC417

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

April 27, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2008-965
A.C. No. 46-09084-139807
Docket No. WEVA 2008-966 1
A.C. No. 46-09084-139809

v.

HARVEST-TIME COAL, INC.

BEFORE: Duffy, Chairman; Jordan, Young and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On April 25, 2008, the Commission received from HarvestTime Coal, Inc. ("Harvest-Time") a motion by counsel seeking to reoperi penalty assessments
that had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section I 05( a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On February 12, 2008, the Department of Labor's Mine Safety and Health Administration

("MSHA'') issued Proposed Assessment No. 00139807 to Harvest-Time. Harvest-Time does not
give a reason for failing to contest the proposed assessment but states that it sought to conference
the citations at issue with MSHA and that its request was wrongly denied. Neither party
mentions nor has submitted the other proposed assessment at issue, No. 000139809, and it is

1

We note that Docket No. WEVA 2008-966 was assigned in error and that all the
citations that the operator seeks to contest are contained in Docket No. WEVA 2008-965. All
subsequent pleadings in this case should have only one docket number.
31FMSHRC418

therefore impossible to determine why or how long Harvest-Time delayed in responding to the
second assessment.
The Secretary asserts that Proposed Assessment No. 000139807 was sent by Federal
Express to the address of record for Harvest-Time but was returned as undelivered. According to
the Secretary; this constituted service under 30 C.F.R. § 100.8(a) {'~Proposed penalty assessments
delivered to [the addresses of record] shall constitute service."). The Secretary states that
although she does not oppose the reopening of the assessment, she urges Harvest-Time to take all
necessary steps to ensure that it timely contests penalty assessments in the future.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700. l(b) «'the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs'., Inc., 17 FMSHRCJ529, 1530 (Sept. 1995).

31FMSHRC419

Having reviewed Harvest.., Time's motion and the Secretary's response thereto, in the
interests of justice, we remand this matter to the Chief Administrative Law Judge for a
determinatiOn of whether good cause exists for Harvest-Time's failure to timely contest the
penalty proposal· and whether relief from the final order should be granted. We also direct the
judge to require Harvest..,Time to explain whether and when it received the proposed penalty
assessment-in question;-tonbtain and submit any missing assessment fonrrand--all-other relevant
documents, to indicate which proposed penalties it seeks to contest, and to explain why it did not
file its contest in a timely manner. If it is determined that relief from the .final order is
ag_p_rn_miate,_ tb~_9J!~es -~bE-Jl__prpceed pursuant to the Mine A~t_@<l t1;1e _Co:rrµnis~io11's Procedural
Rules, 29 C.F.R. Part 2700.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 420

Distribution:
T. Shea Cook
T. Shea Cook, P.C.
2411 Second Street
P.O. Box 507
Richlands, VA 24641
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 421

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

April 28, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST-2008-1455-M
A.C. No. 04-05015-137683

v.
MUHT-HEI INC.
d/b/a CAMPO MATERIALS

BEFORE: Duffy, Cha:irriian; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 25 and September 8, 2008, the Commission
received from Muht-Hei Inc. d/b/a Campo Materials ("Campo Materials") letters seeking to
reopen a penalty assessment that had become a final order of the Commission pursuant to
section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On January 30, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000137683 to Campo Materials. On April 24,
2008, MSHA sent a notice of delinquency to Campo Materials. Campo Materials, which is run
by a Tribal Company owned by the Campo Band of Mission Indians, filed a request to reopen the
penalty with the Commission. The Secretary opposed on the grounds that the operator had failed
to explain why it had delayed in responding to both the proposed penalty assessment and notice
of delinquency. Campo Materials promptly submitted another letter explaining that the delay
was a result of two contested tribal elections. In a subsequent letter, the Secretary again opposed
reopening and stated that she believed that the circumstances do not constitute an adequate
31 FMSHRC 422

explanation for the operator's failure to timely contest the proposed penalty assessment.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993)-(''flVR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules-of Civil Procedure under which, for-example, -a-party could be entitled to relieffrom a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l{b) ("the Commission and its Judges shall be guided so far as practicable
_by tb.e Federal Rules of Civil Procedure");JWR,J~_FM.S:I-:IRC at 787. We have also obs~rv~d
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
-merits-pennitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Campo Material's requests and the Secretary's responses, in the
interests of justice, we remand this matter to the Chief Administrative Law Judge for a
determination of whether good cause exists for Campo Material's failure to timely contest the
penalty proposals and whether relief from the final order should be granted. If it is determined
that relief from the final order is appropriate, the case shall proceed pursuant to the Mine Act and
the Commission's Procedural Rules, 29 C.F.R. Part 2700.

·ssioner

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 423

Distribution:
Brian Connolly, President
Muht-Hei, Inc.
Campo-Materials
36204 Church Rd.
Campo, CA 91906
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 424

ADMINISTRATIVE LAW JUDGE DECISIONS

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

March 4, 2009
TEMPORARY REINSTATEMENT
PROCEEDING

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

Docket No. LAKE 2009-314-DM
NC MD 2009-03

v.
CARGILL DEICING TECHNOLOGY,
Respondent

Mine ID 33-01994
Cargill Deicing Technology/Cleveland

DISMISSAL ORDER
Before: Judge Feldman
Before me for consideration is an Application for Temporary Reinstatement filed by
the Secretary of Labor (Secretary) on February 25, 2009, pursuant to Section 105(c)(2) of the
Federal Mine Safety and Health Act of 1977, as amended. 30 U.S.C. §815(c)(2). The Secretar.y
seeks an Order requiring the respondent, Cargill Deicing Technology (Cargill), to temporarily
reinstate Kurt R. Pluta to his former position of seasonal employment pending final resolution of
Pluta's discrimination complaint filed on January 20, 2009, with the Mine Safety and Health
Administration.
On March 2, 2009, shortly after filing the application for Pluta's reinstatement,
the Secretary filed a Motion to Dismiss this temporary reinstatement action because,
as of February 27, 2009, Cargill has terminated all seasonal employees, presumably for legitimate
independent business reasons. Since there is no longer a position available to which Pluta could
be reinstated, the Secretary has moved to dismiss this proceeding. Neither Pluta nor Cargill
oppose the Secretary's motion.
Good cause having been shown, the captioned temporary reinstatement proceeding
IS DISMISSED without prejudice to the initiation of any action with respect to Pluta's
underlying January 20, 2009, discrimination complaint.

Jerold Feldman
Administrative Law Judge
31 FMSHRC 425

Distribution:
Patrick L. Depace, Esq., Office of the Solicitor, U.S. Department of Labor, 881 Federal Office
Building, 1240 East Ninth Street, Cleveland, OH 44199
Kurt R. Pluta, 22010 Crystal Avenue, Euclid, OH 44123
Steven Seasly, Esq., Hahn, Loeser and Parks, 200 Public Square, Suite 2800, Cleveland, OH
44114
Shawn Mayclin, Surface Supt., Cargill Deicing Technology, 2400 Ships Channel, Cleveland, OH
44113
GaryM. Tiboni, Teamsters Local No. 436, 6051 CareyDrive, Valley View, OH 44125
/rps

31 FMSHRC 426

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

March 5, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 2006-227-M
A.C. No. 40-02968-87902

V.

MOLTANCOMPANY, LP,
Respondent

Mine: Moltan

DECISION
Appearances:

Joseph Luckett, Esq., U.S. Department of Labor, Nashville, Tennessee, on
behalf of the Petitioner
Larry Gurley, COO, Moltan Company, LP, Memphis, Tennesse, on behalf
ofthe Respondent

Before:

Judge Barbour

This case is before me on a petition for the assessment of civil penalties filed by the
Secretary of Labor on behalf of her Mine Safety and Health Administration (MSHA) against
Moltan Company, LP (Moltan or the company) pursuant to sections 105 and 110 of the Federal
Mine Safety and Health Act of 1977 (the Mine Act or Act) (30 U.S.C. §§ 815, 820). The
Secretary alleges Moltan is responsible for two violations of the Secretary's safety standards for
surface metal and non-metal mines. She also alleges the violations were significant and
substantial contributions to mine safety hazards (S&S) and were caused by the company's high
negligence. Additionally, the Secretary deemed one of the alleged violations was the result of
Moltan's unwarrantable failure to comply with the mandatory standard. The Secretary seeks
penalties totaling $3,500. The company denies the al.legations. The case was tried in Memphis,
Tennessee.

STIPULATIONS
The parties have stipulated to the following facts:
1.

This case involves a clay processing plant known as the [Moltan] plant,
which is owned and operated by [Moltan];

31 FMSHRC 427

2.

[Moltan's] plant is subject to jurisdiction of the ... Act;

3.

The presiding administrative law judge has jurisdiction over this
proceeding pursuant to Section 105 of the Act;

4

[Moltan's] operations affect interstate commerce;

5.

A reasonable penalty will not affect [Moltan's] ability to remain in
business;

6.

[Moltan] has not had an accident where an employee suffered fatal
injuries;

7.

[Moltan] employed approximately two hundred people in 2006;

8.

[Moltan] has employees who worked approximately four hundred
thousand hours in 2006.

and

Tr. 12-13; Gov't Exh. 1.
MOLTAN'S FACILITY, THE INSPECTION, AND THE CITATIONS

Moltan is a family owned limited partnership that has been in existence since 1978.
Tr. 104. · Moltan operates a large facility covering approximately twenty to thirty acres consisting
of a clay mine and a clay processing plant. Tr. 17. Moltan processes the clay into products such
as kitty Jitter and oil absorbents. Id.
CONTENTIONS RELATED TO CITATION NO. 6243221
In February 2006, Inspector Ed Jewell conducted a regular inspection ofMoltan which
lasted six days. Tr. 18. I:Ilspector Jewell has been employed by MSHA for nine and a half years.
Tr. 14-15. He is certified as an accident investigator and served four years on the national mine
rescue team. Tr. 14. Prior to his employment with MSHA, Jewell held various jobs in the coal
mine industry, including safety director, maintenance man, electrician, belt mechanic, general
laborer, equipment operator, section foreman, and hoisting engineer. These jobs spanned a
twenty-three year period. Tr. 15-17. During the inspection, Jewell was accompanied by Vicki
LaRue who was being trained as a mine inspector. Tr. 18.

On February 13, while inspecting a building the company refers to as the "old coal shed,"
Jewell and LaRue observed miner Bobby Manley standing on a rounded cylinder, 19 inches in
diameter and eighty-seven inches above a metal rectangular work platform, that in turn was
located approximately ten feet above the coal shed floor. Metal railings surrounded the work
platform. Tr. 19-20. The miner was not using fall protection. Jewell stated that the employee
3 I FMSHRC 428

appeared to be wiring an electrical motor. Tr: 19. Inspector Jewell took a photograph of the
scene. Gov't Exh. 3. Jewell testified the photograph showed the employee being helped down
from the chute. It also showed a group of 6 individuals, including the safety director and new
hire trainees, on the platform. Tr. 21. The photograph was taken after the employee had come
down from a higher point on the chute and was standing on the 19 inch object, but Inspector
Jewell stated he would have cited the company for either occurrence as the employee was not
wearing fall protection and the likelihood of falling was present in both locations.· Tr. 132.
After observing the employee on the chute, Inspector Jewell orally issued a section 107(a)
imminent danger order to the safety director, Dan Harder. Tr. 22. He issued the order in writing
to plant manager, Jake Green, that afternoon. Tr. 26; Gov't Exh. 4. Inspector Jewell also issued
Citation No. 6243221 to Green. The citation charged the companywith a violation of 30 C.F.R. §
56.15005, a mandatory safety standard requiring employees to wear safety belts and lines when
working where there is a danger of falling. Inspector Jewell testified that the employee should
have been tied off. Jewell did not observe any place to tie off, but felt the company could have
installed a wire cable to attach a lanyard or could have avoided the need to tie off altogether by
placing the employee in a basket attached to a man lift. Tr. 25-26.
Inspector Jewell found there was high negligence on the part of the company for the
alleged violation. He stated that the task itself carried an inherent risk and therefore a high
degree of care was required by the company. Inspector Jewell did not observe any fall protection
in the area which indicated to him that there was a lack of training or monitoring by the company.
Tr. 75-76. Jewell also asked an employee if there was fall protection in the area and the
employee said there was not. Tr. 27. Inspector Jewell determined the violation was highly likely
to cause an injury. The employee was working with both hands and was standing on a narrow,
rounded surface. He easily could have fallen to the metal platform. Fatal injuries could be
expected from this type of fall as there have been deaths in the industry from falls of ten feet or
less. Tr. 28. The employee involved was the person affected by the hazard. Jewell also found
the violation was a significant and substantial (S&S) contribution to a mine safety hazard
because if the alleged violation continued to exist it was likely to cause a serious injury.
Danny Stanfill testified on behalf of the company. Stanfill has been the plant manager
since January 1, 2006. Tr. 105. He has approximately 35 years experience primarily in the
electrical industry. Tr. 104. Stanfill has also worked in a printing plant and a hardwood flooring
plant, where he eventually became maintenance superintendent. When he began at Moltan in
July 2005, he was brought in as assistant plant manager to replace Jake Green who was retiring.
Tr. 105.
Stanfill described the scene shown in Gov't Exh. 3. He stated the photograph depicts
Bobby Manley installing or wiring up the last motor on the incline conveyor of a pellet mill.
Tr. 106. The mill was new and Moltan was testing it to determine whether to make it a
permanent part of the plant. (The company has since decided not to use the equipment. Tr. 107.)
Stanfill also described the color-coding of hard hats depicted in the photograph. Manley was
31 FMSHRC 429

wearing a white hat which designated him as a ful14ime employee in maintenance. Tr. 107-108.
The men wearing green hats were described as trainees by Inspector Jewell, but Stanfill indicated
the green hats designated packaging department employees. Trainees wore gray hats. Tr. I 09 ..
Dan Harder is in the picture wearing an orange hat. ·Stanfill stated that an orange hat indicated
management. Id.
Stanfill testified that Manley, who has since retired, was a maintenance electrician with
28 years experience. Tr. 109. Stanfill felt that Manley could not have been standing on the 19
inch diameter cylindrical area as it would not have allowed him comfortable access to complete
his task of wiring the motor on the incline conveyor. Rather, Stanfill explained, the photograph
showed Manley standing on a flat area that was the inlet to the pellet mill. Tr. 100. Based on
Stanfill's electrical experience, he described the photo as. showing Manley in the process of
wiring the motor. Stanfill did not know why Dan Harder and the other men were on the
platform. However, he ·Stated he was later told that Harder was there to give Manley a piece of
flexible conduit. Tr. 111. Stanfill did not feel Manley was engaging in an unsafe practice, but
rather a routine installation.
Billy Tennyson, lead electrician, testified on behalf of the company. Tennyson has been
employed by the company for a little overten years. Tr. 122. He stated that Manley was a
capable electrician with good safety habits. Tr. 124. Tennyson confirmed the hard hat colorcoding system that Stanfill explained. Furthermore; Tennyson felt, as Stanfill did, that Manley.
would not have been working up on the chute as Jewell described because it would have been
difficult for Manley to get to the motor. Tr. 126. Tennyson also explained that Harder told him
he was handing Manleythe flexible conduit and was present when the work was being done. Tr.
127.
CONTENTIONS RELATING TO CITATION NO. 6243229.
As Jewell continued his inspection on February 14, 2006, he observed a lack of proper
access to an area that an employee must reach to maintain the plant's crusher. Tr. 32, He issued
Citation No. 6423229 alleging a violation of 30 C:F.R. § 56.11001, a mandatory safety standard
requiring safe means of access in all working areas. The crusher had twelve grease fittings that
needed to be greased with a handheld grease gun every forty hours. Tr. 32-33, 35. Jewell
explained an employee would need to go up onto· the framework of the crusher to do that work.
Tr. 32. The employee would need to hold onto the :framework while he greased the fittings.
Each fitting needed forty shots from the grease gun.
The crusher is located on a raised platform. The platform's height varies from eight to
twelve feet from the ground. Tr. 35. Inspector Jewell measured the area where the employee
would walk to reach the grease fitting and found the area was six inches wide. He estimated an
employee would have to travel on the narrow area for a distance of eight to ten feet. Tr. 36.
Inspector Jewell also indicated that part of the area where an employee would walk was wider
than six inches. Photographic evidence was introduced depicting the crusher. Gov't Exh. 6-8.
No employees were on the platform at the time of the inspection.
31 FMSHRC 430

Jewell determined Moltan's negligence to be high as the crusher had been installed for
approximately four to five months. Tr. 39, 46. He also talked to an employee, Scott Garrett,
who stated that he was given a safety award for his idea of providing better access to the grease
fittings, but no action was taken by the company. Tr. 39. Garrett did not testify. Additionally,
Jewell stated Garrett said his supervisor, Billy Barns, was aware of the condition and told him to
"be careful." Tr. 41. Jewell further explained that even without this information obtained from
Garrett he still would have found the company's negligence to be high because management was
aware of the need to perform maintenance on the crusher and the mine office was located within
fifty yards of the crusher. Tr. 45-46. Jewell felt the violation was obvious and the company's
failure to provide safe access was unwarrantable. Jewell considered the gravity to be reasonably
likely to cause an injury due to the frequency of greasing that was required. Jewell also observed
spilled materials on the platform, along with mud in the very narrow area. Tr. 47-48. This made
it even more likely an employee would fall.
Jewell stated that fatalities or severe injuries such as a broken neck or head injury could
result from a fall of six to ten feet and he noted the presence of a concrete pillar, wooden pallets,
and steel beams under and_around the narrow area. Tr. 48. Jewell believed one person would be
affected by the hazard. He also found the alleged violation as S&S.
Citation 6243229 was terminated when the company issued a memorandum to workers
not to access the area, the crusher platform was permanently blocked off, and grease lines were
extended down to the ground level. Tr. 49-50.
Stanfill testified on behalf of the company. He stated that the crusher had been in its
present location for approximately seven to eight months~ Tr. 115. He confirmed that greasing
occurred on a weekly basis and had always been performed from the platform. Tr. 115. Stanfill
did not know if the condition had been brought to the attention of a supervisor nor was Stanfill
aware of a safety award being given to Garrett. Tr. 117-118.

RESOLUTION OF THE ISSUES
CITATION NO. 6243221
Citation No. 6243221 states:
A repairman was observed working from an elevated
position without wearing roper fall protection, .safety
belts, and lines. The area the repairmen was standing
on is 87 inches above a metal flooring of a work·
platform for the feel conveyor at the "old coal shed."
The worker was standing on ·a 19 inch diameter
cylinder type chute. The surface the worker was
31 FMSHRC 431

standing upon is rounded and not flat. The repairman
was wiring a new motor to the head drive of the
conveyor. Safety belts and lines are not available at
the work area. This condition creates a fall of person
hazard.
This condition was a factor that contributed to the
issuance ofimminent danger order No. 6243220 dated
2/13/06. Therefore, no abatement time was set.
Gov't Exh. 2.
Section 56.15005 states in pertinent part:
Safety belts and lines shall be worn when persons
work where there is danger of falling[.]
THE VIOLATION
I find the Secretary established a violation of section 56.15005. The evidence clearly
shows that Manley was standing on an object 87 inches above the work platform without hand
rails or anything else to contradict or to minimize the danger of falling.· Jewell testified that
Manley was not wearing fall protection and no witness contended otherwise.

S&S AND GRAVITY
AnS&S violation is a violation "of such nature as could significantly and substantially
contribute to the cause and effect of a ... mine safety or health hazard.'' 30 U.S.C. § 814(d). A
violation is properly designated S&S, "if, based upon the particular facts surrounding that
violation, there exists a reasonable likelihood that the hazard contributed to will result in an irrjury
or illness of a reasonably serious nature." Cement Div., Nat'! Gypsum Co., 3 FMSHRC 822, 825
(April 1981 ). As is well recognized, in order to establish the S&S nature of a violation, the
Secretary must prove: ( 1) the underlying violation; (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 will he of a
reasonably serious nature. Mathies Coal Co., 6 FMSHRC 3-4(January1984); accord Buck Creek
Coal Co., Inc. 52 F. 3rd 133, 135(7'h Cir. 1995); Austin Power Co., Inc. v, Secy ofLabor, 861 F.
2d 99,103 (5 1h Cir. 1988) (approving Mathies criteria).
It is the third element of the S&S criteria t.Qat.is the source of most controversies regarding
S&S findings. The element is established only ifthe Secretary proves "a reasonable likelihood the
hazard contributed to will result in an event in which ther(!is an injury." U.S. Steel Mining Co.,
Inc., 7 FMSHRC 1125, 1129 (August 1985). Further, an S&S determination must be based on the

31 FMSHRC 432

particular facts surrounding the violation and must be made in the context of continued normal
mining operations. Texasgulf, Inc., l 0 FMSHRC 1125 (August 1985); US. Steel, 7 FMSHRC at
1130.
Finally, the S&S nature of a violation and the gravity of a violation are not synonymous.
The Commission has pointed out that the "'focus of the seriousness of the violation is not
necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry,
but rather on the effect of the hazard if it occurs." Consolidation Coal Co., 18 FMSHRC 1541,
1550 (September, 1996).
The Secretary has established a violation of section 56.15005. She also has established a
safety hazard contributed to by the violation .. Bobby Manley was working without fall protection
in an area where there was a danger of falling; Without the protections required by the standard, it
is reasonably likely the hazard would have contributed to an injury. Undisputed testimony was
given by Inspector Jewell that fatal falls have occurred from heights of 10 feet or less. Tr. 28.
There were no hand rails or anything else for Manley to hold on to, The results of a fall could have
been fatal or very serious, such as broken bones or even a brain injury. These injuries were
reasonably likely to occur, and therefore I conclude the violation was S&S. While I understand
that some ofMoltan's personnel may feel the hazard was minimized because this was a routine
installation occurring in a short period of time, Manley was working without fall protection long
enough for the inspector to detect the problem and photograph it, and an accident can occur in an
instant.
In view of the type of injuries that were likely to happen if the hazard occurred, I also find
the violation was serious.

NEGLIGENCE
Inspector Jewell believed the company was highly negligent. Gov't Exh. 2. I agree with
this determination. A high degree of care was required by the company as this task carried with
it an inherent risk. Based on the evidence presented, there is no doubt that Manley was standing
on an object 87 inches above the platform. As previously noted, there were no hand rails nor was
Manley wearing fall protection. The task was being performed in plain sight without the required
fall protection. There is no evidence to suggest any safety belts or lines were in the immediate
area. A serious, even fatal, hazard was present, yet plant manager Stanfill believed Manley was
engaged in a "routine construction installation." Tr. 112. The company fell far short of the
standard of care required, and I therefore find the company was highly negligent.

31 FMSHRC 433

CITATION NO. 6243229
Citation No. 6243229 states:
Safe access is not provided at the crusher drive area.
The crusher operator must access the drive area to
grease 12 fittings every 40 hours. The area of access is
not provided with handrails, barriers, or a working
platform. The area of access in some places [is] only
six inches wide across the structural beams and over
drive pulleys. The area of access is 8 to 12 feet in
height. Forman Billy Barns, instructed employees to
"be careful" while greasing. An employee stated that
management was notified of the hazard via "safety
suggestion box" and that the idea of providing a safe.
access was awarded but not acted upon. The
management has also failed to provide or instruct the
employees, who [grease] and [maintain] this area, to
wear fall protection while performing duties. The mine
operator and Forman Barns [have] engaged in
aggrl:lvated conducted constituting more than ordinary
negligence in that the work area is not provided with a
safe means of access where regular work is required.
This violation is an unwarrantable failure to comply
with a mandatory standard.
Gov't Exh. 5.
Section 56.11001 states:
Safe means of access shall be provided and maintained
to. all working places.

THE VIOLATION
There has been no evidence or testimony presented to indicate the maintenance was being
performed in any other manner than as described by Inspector Jewell. An employee had to travel
on the narrow area at a height of eight to twelve feet off the ground while using a handheld
grease gun to apply forty shots to twelve fittings at least once a week. There is no question in my
mind that this was a dangerous task and that safe access was not provided to the working place
by the company. I therefore find the Secretary established a violation of section 56.11001.

31 FMSHRC 434

S&S AND GRAVITY
I also find the Secretary has established the violation was S&S. Without providing safe
access to the working area as is required by the standard, it was reasonably likely the hazard
would have contributed to an injury. An employee who traveled along the very narrow easily
could have fallen to the ground, onto the wooden pallets, against the concrete pillar, or against the
steel bars and beams. Inspector Jewell testified that the injury could have been serious such as a
broken neck or head injury, or even fatal, and I agree. Moreover, in view of the kind of injuries
that were likely to result if the hazard occurred, I find the violation was serious.

UNWARRANTABLE FAILURE AND NEGLIGENCE
Unwarrantable failure is "aggravated conduct, constituting more than ordinary negligence
in relation to a violation of the Act." Emery Mining Corp. 9 FMSHRC 1997, 2004
(December 1987). Unwarrantable failure is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or "a serious lack of reasonable care." Id. 2003-2004;
Rochester & Pittsburg Coal Co., 13 FMSHRC 189, 193-194(February1991); see also Rock of
Ages Corp. v. Sec '.Y ofLabor, 170 F.3d 157 (2d Cir. 1999); Buck Creek Coal, Inc. v. MSHA, 53
F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure test). Moreover, the
Commission has examined the conduct of supervisory personnel in determining unwarrantable
failure, and recognized that a heightened standard of care is required of such individuals. See
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011(December1987) (section foreman held
to demanding standard of care in safety matters); S&H Mining, Inc., 17 FMSHRC 1918, 1923
(November 1995) {heightened standard of care required of section foreman and mine
superintendent). Negligence, of course, is the failure to meet the standard of care required by the
circumstances.
I conclude the violation was caused by Moltan's unwarrantable failure to comply with the
standard. The condition existed at this particular crusher for at least five months. The
maintenance was performed in plain view and within fifty yards of the mine office. Management
knew that maintenance was being performed on the crusher in this manner. The hazard posed was
significant and the heightened care that was required by the hazard was totally missing. The
serious lack of reasonable care reflected both Moltan's unwarrantable failure and its high degree
of negligence.

REMAINING CIVIL PENALTY CRITERIA
IDSTORY OF PREVIOUS VIOLATIONS
The Secretary entered into evidence the "Assessed Violation History Report." Gov't Exh.
12. The Secretary has characterized the company's history of violations as "fairly small." Tr. 1O1.
31 FMSHRC 435

I find, based on the record in this case, the applicable history of previous violations is small.

The Secretary entered into evidence the "Assessed Violation History Report''- Gov't Exh.
12. The parties stipulated to the fact that there were approximately 400,000 hours worked in
2006. This means Moltan's facility is characterized by MSHA as a medium mine. 30 C.F.R. §
100.3. As there is no evidence to contradict this, I find the mine to be medium in size.

ABILITY TO CONTINUE IN BUSINESS
The parties have stipulated that a reasonable penalty will not affect Moltan' s ability to
remain in business. Tr. 12; Stip. 5. I accept this stipulation.

GOOD FAITH ABATEMENT
The violations were abated in good faith by Moltan and in a timely manner. Gov't Exh. -2;
Gov't Exh. 4.

CIVIL PENALTY ASSESSMENTS
Citation No.
6243221

Date
211312006

30 C.F.R. §
56.15005

Proposed Assessment
$2,200

I have found the violation to be serious and the negligence on the part of the company to
be high. Given these .findings and the other civil penalty criteria, I find the penalty of $2,200
proposed by the Secretary is appropriate.

Citation No.
6243229

Date
211412006

30C.F.R. §
56.11001

Proposed Assessment
$1,300

I have found the violation to be serious and the negligence on the part of the company to
be high. Given these findings and the other civil penalty criteria, I find the penalty of $1,300
proposed by the Secretary is appropriate.

31 FMSHRC 436

ORDER

Moltan SHALL pay total civil penalties of $3 ,500 within 40 days of the date of this
decision, and upon payment of the penalties, this proceeding IS DISMISSED.

_jJvJ;rlf&Joll'L-David F. Barbour
Administrative Law Judge
(202) 434-9980

Distribution: (Certified Mail)
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,·
Suite 230, Nashville, TN 37219-2456
Larry M. Gurley, Moltan Company, 7125 Riverdale Bend Road, Memphis, TN 38125

/sf

31FMSHRC437

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

March I 7, 2009
OHIO COUNTY COAL COMPANY,
Contestant

CONTEST PROCEEDINGS
Docket No. KENT 2006-308-R
Order No. 6689096; 0510912006

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

Docket No. KENT 2006-309-R
Order No. 6689097; 0510912006
Freedom Mine
Mine ID 15-17587
CNIL PENALTY PROCEEDINGS
Docket No. KENT 2006-369
A.C. No. 15-17587-88177
Docket No. KENT 2007-46
A.C. No. 15-17587-98358-01
Docket No. KENT 2007-49
A.C. No. 15-17587-98358-02

v.

Docket No. KENT 2007-77
A.C. No. 15-17587-100975
Docket No. KENT 2007-82
A.C. No. 15-17587-100975

omo COUNTY COAL COMPANY,

Freedom Mine

Respondent
DECISION
Appearances: Mary Sue Taylor, Esq., U.S. Department of Labor, Nashville, Tennessee,
on behalf of the Secretary
R. Herny Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania,
on behalf of the Company
Before:

Judge Barbour

31 FMSHRC 438

These consolidated cases concern contest and civil penalty proceedings arising under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seq. In the contest proceedings
Ohio County Coal Company (Ohio County or the company) challenges the validity of a citation
and order issued at its Freedom Mine,·an underground bituminous coal mine located in
Henderson County, Kentucky. In the civil penalty proceedings the Secretary of Labor, on behalf
of her Mine Safety and Health Administration, seeks the assessment of various proposed civil
penalties for 79 alleged violations.
The matters were the subject of extensive negotiations, and the parties were able to settle
many, but not all, of the issues dividing them. When it became apparent the parties could not
settle their remaining differences, the cases were scheduled to be heard in Washington, D.C. The
trial was to begin at 8:30 a.m., on August 25, 2008, but shortly before the appointed time; I met •
with counsels to explore whether further negotiations were warranted. Counsels consulted their
clients and advised me they wished to postpone the start of the hearing. The Commission made
its offices available, and at approximately 10:20 a.m. counsels advised me they agreed on a
framework to settle the remaining issues.
The hearing was convened so that counsels could state the outlines of the proposed
settlement on the record. As counsel for the company described the proposed settlement, it
involved the Secretary agreeing to delete inspectors' findings that several of the alleged
violations were of a significant and substantial nature (S&S) and the company agreeing to accept
the S&S findings on other of the citations. Additionally, as counsel for Ohio County explained,
the parties agreed:
A training class will be conducted at the mine
by mine personnel that may be monitored by MSHA
[and] that will address the importance of compliance
with [30 C.F.R.§] 75.400, [(the mandatory safety
standard prohibiting accumulations of loose coal,
coal dust and other combustible materials)] ....
In addition, the mine's clean-up plan will be revised
to spell out a written procedure for per-operational
checks with respect to three types of equipment
... the diesel man trips, the roofbol[t]ers and
the ram cars.~ .. [A]s part of the program there
will be training given on pre-operational checks
and there will be a pre-operational checklist
developed that will address the issue of keeping
the types of [referenced] equipment ... free
from hazardous accumulations of coal and other
combustible materials.
[The] plan [also] will include a card that will be

31 FMSHRC 439

placed on equipment to indicate the scope of. ..
[the pre-operational] checks .... [The] card will
also include a direction that [when] a deficiency is
noted in a pre-operational check, it shall be reported
to a foreman. In addition, there will be a provision
with respect periodic monitoring [to ensure] ... [the] .
checks are being done.
Tr. 6-7.
Three months prior to the hearing, counsels had submitted a motion requesting approval
of a settlement of issues related to several of the alleged violations. 1 At the hearing, counsels
stated they hoped to submit a motion for the approval of all other issues by September 9, 2008.
Tr. 8. However, as counsel for Ohio County noted, "the devil is in the details", an observation
that proved prescient.
Although on September 8, counsels submitted another motion to approve a partial
settlement. 2 Only in mid~February 2009, and after continuing discussions and the exchange of
several draft settlement motions, did counsels finally agree concerning all of the remaining
issues. A joint motion to approve the lastparts of the settlement was filed on February 19~ 2009. 3
The settlement, as stated in the parties' motion as amended, is as follows:
KENT 2006-369
Citation/
Order No.

Date

30 C.F.R.

Assessment.

Settlement

6689120[4 ]
6689123
6689129
6689145

3/1/06
311106
316106
5/15/06

75.400
75.400
75.400
75. l 106-3(a)(3)

$614
$614
$614
$963

$614
$614
$614
$500

1

0n August 7, 2008, I issued a decision approving the partial settlement of the cases.

2

0n September 22, 2008, I issued another partial settlement decision based on the motion.

3

Two corrections to the February I 9 motion were subsequently filed by e-mail. A
printout of the e-mail is part of the record. See e-mail, Errors in KENT 2007-46 (March 6,
2009).
.
4

Joint Stipulations and Motion for Approval of Pretrial Settlement (February 19, 2009).
In addition to Citation No. 6689120, the Joint Stipulations and Motion includes Citation Nos.
6689123, 6689129 and 6689145.
31 FMSHRC 440

KENT 2007-46
Citation/
Order No.
6689109[5]
6689468[ 6]
6689430
6689431
6689432
6689433
6689472
6689473
6689451

Date
2/24/06
5/16/06
5122106
5/22/06
5122106
5122106
5/23/06
5/22/06
6/1/06

30 C.F~R.
75.362(b)
75.400
75.503
75.400
75.400
75.400
75.202(a)
··75.400
75.400

Assessment
$4,500
.. $963
$440
$440
$440
$440
$838
$963
$440

Settlement
$3,000
$963
$440
$440
$440
$440
$376
$963
$440

Assessment
$440
$440

Settlement
$440
$440

Assessment

Settlement
$3,700

KENT 2007•49
Citation/
Order No.
6689460[7]
6689542

Date
612106
612106

30 C.F.R.
75.400
75.400
KENT 2007-82

Citation/
Order No.
6689096 [8J

Date
519106

30 C.F.R.
75.1107-16

$3,700

In support of the proposed settlement of the allegations relating to the alleged violations,
Section 110(1) of the Act (30 U.S.C. § 820(i), including information regarding Ohio County's
size, ability to continue in business and history of previous violations.

5

E-mail, Errors in KENT 2007-46 (March 6, 2007). In addition-to Citation No. 6689109,
the e-mail includes Citation No. 6689472.
6

Joint Stipulations and Motion for Approva.l of Pretrial Settlement (February 19, 2009).
In addition to Citation No. 668468, the Joint Motion includes Citations No. 6689430, 6689431,
6689432, 6689433, 6689473 and 6689451.
7

Joint Stipulations and Motion for Approval of Pretrial Settlement (February 19, 2009).
In addition to Citation No. 6689460, the Joint Motion includes Citation No. 6689542.
8

Joint Stipulations and Motion for Approval of Pretrial Settlement (February 18, 2009).
31 FMSHRC 441

KENT 2006-308-R
(104(d)(l) Citation 6689096, 5/9/06, 30 C.F.R. § 75.1107-16)
KENT 2006-309-R
(104(d)(l) Order 6689097. 5/9/06, 30 C.F.R. § 75.606)
Resolution of the penalty issues with regard to Citation No. 6689096 (Docket No. KENT
2007-82) and Order No. 6689097 (Docket No. KENT 2007-82) has resolved the issues raised in
contest proceedings KENT 2006-308-R and KENT 2006-309-R, and the parties agree the contests
may be dismissed. 9

OTHER AGREEMENTS
In addition to the Secretary agreeing to accept payment as specified for the alleged
violations and Ohio County agreeing to pay, the parties further agreed regarding the teaching of a
class relating to cleaning combustible materials on mobile equipment, the external operating
temperatures of specific types of mobile equipment and the implementation of a list for the preoperational checks of such equipment. Their agreement states:
a. Within 30 days of the approval ofthis settlement.··
... Ohio County shall conduct on all three shifts a
class lasting a minimum of 30 minutes that shall
address the importance of the cleaning of combustible
materials from mobile mining equipment and the
potential hazards to accumulations of combustible
materials on mining equipment. MSHA may monitor ·
such class and Ohio County will provide two day
notice to MSHA of the conduct of such classes.

b. MSHA agrees that the normal operating external
operating temperatures of the components of
roofbolting machines, including but not limited to
motors, valve banks, etc., is 168 ° F or less.
c. MSHA agrees that the normal operating external
operating temperatures of the components of rarncars,
including, but not limited to, motors, hydraulic tanks,
etc., is 168 ° F or less.
d. MSHA agrees that the normal operating external

9

The settlement relating to Order No. 6689097 was set forth in the parties' September 8,
2008, motion and was approved in the September 22 partial decision.
31 FMSHRC 442

operating temperatures of the components of diesel
mantrips, including motors, is 195 ° F or less. The
external surface temperature of the exhaust is greater
than 195° F but less than 302°F, MSHA's limit on
such temperatures.
e. Ohio county has proposed revisions to the cleanup
plan adopted i.mder 30 C.F.R. § 75.400-2 .... Such
revised plan shall include the requirement that a
written check list for the pre-operational checks of
roofbolters, diesel mantrips and ram.cars, be
developed and affixed to the mobile equipment
specified herein. Such checklist shall include
requirements that the equipment operator
perform a pre-operational check of the exterior
surfaces of such equipment for hazardous
accumulations of combustibles[,] including coal, coal
fines, float coal dust, hydraulic oil, grease and diesel
fuel. Such checklist shall be provided on roofbolters,
ramcars and diesel mantrips. Upon notification of the
absence of such a list on equipment, it shall be
replaced by the next shift. Such pre-operational
checklist shall include a requirement that the operator
report to his supervisor any deficiency in the
equipment so that appropriate action may be taken if
necessary.
Joint Stipulations and Motion for Approval of Pretrial Settlement (February 19, 2009) at 5-

6.
After consideration of the settlement motions, I find the proposed settlement is reasonable
and in the public interest. The motion IS GRANTED and the settlement IS APPROVED.

ORDER
Ohio County IS ORDERED to pay a total civil penalty of $14,424 in satisfaction of the
violations in question. Payment is to be made to MSHA within 30 days of the date of this decision.
In addition, within the same time period Ohio County IS ORDERED to implement the agreements

31 FMSHRC 443

as specified in the "Other Agreements" section of this decision and as stated in the February 19,
2009 motion. Upon receipt of full payment and implementation of the specified agreements, all of
the captioned proceedings ARE DISMISSED.

_f).,,v11df t_'5ad~
David F. Barbour
Administrative Law Judge

·

Distribution: (Certified Mail)
Mary Sue Taylor, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite
230, Nashville, TN 37219-2456
Julia K. Shreve, Esq., Melissa M. Robinson, Esq., Jackson Kelly, PLC, 1600 Laidley Tower, P.O.
Box 553, Charleston, WV 25322
R. Henry Moore, Esq., Jackson Kelly, PLLC, 3 Gateway Center, Suite 1340, 401 Liberty Avenue,
Pittsburgh, PA 15222

/ej

31 FMSHRC 444

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

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

v.

BROOKS RUN MINING CO., LLC,
Respondent

April 3, 2009
CIVIL PENALTY PROCEEDINGS
Docket No. WEVA2007-701
A.C. No. 46-09066-123671
Docket No. WEVA 2007-580
A.C. No. 46-09066-119010

Mine: Cucumber

ORDER GRANTING, IN PART. AND DENYING, IN PART,
MOTIONS FOR SUMMARY DECISION

Judge Bulluck

Before:

These cases are before me on Petitions for Assessment of Civil Penalty filed by the
Secretary of Labor, acting through her Mine Safety and Health Administration ("MSHA"),
pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977 ("the Act"),
30 U.S.C. § 815(d), against Brooks Run Mining Company ("Brooks Run" or "Respondent").
The Secretary issued four significant and substantial ("S&S") citations alleging violations of her
mandatory safety standard found at30 C.F.R. § 70. IOO(a). The parties have filed cross Motions
for Summary Decision.
Judicial notice is taken of the disease probability rates concerning respirable dust
contained in the Legislative History of the 1969 Coal Act. Section 70; 100(a) is lifted, almost
verbatim, from section 202(a) of the Mine Act, 30 U.S.C. § 842, which, in turn, was carried over
from the 1969 Coal Act without significant amendment. 1 See Consolidation Coal Co.,
8 FMSHRC 890, 896 (June 1986).
Based upon the stipulations and uncontested facts represented by the parties, I find that
there is no genuine issue as to any material fact. Sec'y Mot. at 1-16; Resp. Mot. at 4-10. Having
reviewed the parties' Motions, I conclude that, for the reasons stated below, the Secretary is
entitled to summary decision, in part, and the Respondent is entitled to summary decision, in
part, as a matter of law:·

1

See Rep. No. 91-411, 9pt Cong., l51 Sess. 15-16 (1969).
31 FMSHRC 445

I. Factual Background
Brooks Run Mining Company, Incorporated, operates the Cucumber Mine in McDowell
County, West Virginia, which produces approximately 6,000 tons of coal on two nine-hour
production shifts per day, seven days a week. The mine has been in operation since February 27,
2006, and has four active mechanized mining units ("MMU")- 001-0, 002-0, 003-0, and 004-0.
MMU 001-0 went into producing status on May 8, 2006; MMU 002-0 on May 8, 2006; MMU
003-0 on April 17, 2006; and MMU 004-0 on May 8, 2006. Sec'y Stip 86; Resp. Stip 1.
Section 70.lOO(a) of the Code of Federal Regulations requires that an operator continuously
maintain the average concentration of respirable dust in a mine atmosphere at or below
2.0 mg/m3. 30 C.F.R. § 70.lOO(a). To determine whether an operator is complying with the
applicable limit for respirable dust, section 20.207(a) requires that each operator take five valid
respirable dust samples from the designated occupation in each MMU, and submit them to
MSHA for testing.
On June 5, 6, 7, 8 and 9, 2006, Respondent collected five designated occupation samples
from MMU 004-0 for the May-June 2006 bimonthly sampling cycle. Sec'y Ex. 1. The results of
the five samples showed
average concentration of4.2 mg/m3. Sec'y Ex~ 1. On June 16,
2006, MSHA Inspector Michael T. Dickerson issued Citation No. 9967760 to Respondent for
exceeding the respirable dust limit of 2.0. Sec'y Ex. 1. Dickerson found that it was an S&S
violation that would be highly likely to result in an illness, that the illness would be permanently
disabling, that five persons were affected, and that Respondent's negligence was moderate.
Sec'y Ex. 1. The citation was terminated on July 6, 2006; after Respondent submitted samples
showing an average dust concentration within the applicable limit Sec'y Ex. I.

an

On January 23, 24, and 26, 2007, Respondent collected five designated occupation
samples from MMU 003-0 for the January-February 2007 .bimonthly sampling cycle. Sec'y
Ex. 2. The results of the five samples showed an average concentration of 3.0 mg/m3. Sec'y
Ex. 2. On February 1, 2007, MSHA Inspector Paul Prince issued Citation No. 9967919 to
Respondent for exceeding the respirable dust limit of2.0. Sec'y Ex. 2. Prince found that it was
an S&S violation that would be highly likely to result in an.illness, that the illness would be
permanently disabling, that five persons were affected, and that Respondent's negligence was .
moderate. Sec'y Ex. 2. The citation was terminated on March 29, 2007, after Respondent
submitted an updated Methane and Dust Control Plan ("Dust Control Plan") and respirable dust
samples showing an average dust concentration within the applicable limit. Sec'y Ex. 2; Resp.
Ex. 6 and 7.
On January 29, 30, 31, and February I and 2, 2006, Respondent collected five designated

occupation samples from MMU 001-0 for the January-February 2007 bimonthly sampling cycle..
Sec'y Ex. 3. The results of the five dust samples showed an average concentration of2.7 mg/m3
Sec'y Ex. 3. On February 13, 2007, Inspector Prince issued Citation No. 9967921 to Respondent
for exceeding the respirable dust limit of 2.0. Sec'y Ex. 3. He found that it was an S&S
violation that would be "reasonably likely'' to result in an illness, that the illness would be

31 FMSHRC 446

pennanent]y disabling, that five persons were affected, and that Respondent's negligence was
high. Sec'y Ex. 3. The citation was tenninated on May 16, 2007, after Respondent submitted a
revised Dust Control Plan and respirable dust samples showing an average dust concentration
within the applicable limit. Sec'y Ex. 3; Resp. Ex. 6 and 7.
On March 26, 27, and 28, 2006, Respondent collected five designated occupation samples
from MMU 004-0 for the March-April 2007 bimonthly sampling cycle. Sec'y Ex. 4. The results
of the five dust samples· showed an average concentration of 3.9 mg/m3. Sec'y
Ex. 4. On April 9, 2007, Inspector Prince issued Citation No. 9967966 to Respondent for
exceeding the respirable dust limit of 2.0. Sec'y Ex. 4. He found that it was an S&S violation
that would be highly likely to result in an illness, that the illness would be pennanently disabling,
that five persons were affected, and that Respondent's negligence was moderate. Sec'y Ex. 4.
The citation was tenninated on May 10, 2007, after Respondent submitted an updated Dust
Control Plan and respirable dust samples showing an average dust concentration within the
applicable limit. Sec'y Ex. 4; Resp: Ex. 6 and 7.
There was no MSHA inspector present at the mine when the respirable dust samples at
issue were taken. Resp. Stip. 24. Respondent has not presented any facts that would contradict
the validity of the test results.
II. Findin~s of Fact and Conclusions of Law ·
Commission Rule 67(b), governing summary decisions, provides as follows:
A motion for summary decision shall be granted only if the entire record
... shows: (1) That there is no genuine issue as to any material fact; and
(2) That the moving party is entitled to summary decision as a matter of
law.
29 C.F.R. § 2700.67(b).
Section 70. l 00(a), governing respirable ·dust limitations states:
Each operator shall continuously maintain the average
concentration of respirable dust in the mine atmosphere during
each shift to which each miner in the active workings of each mine
is exposed at or below 2.0 milligrams of respirable dust per cubic
meter of air as measured with an approved sampling device and in
terms of an equivalent concentration determined in accordance
with §70.206 (Approved sampling devices: equivalent
concentrations).
30 C.F.R. §70. IOO(a). To ensure that an operator is in compliance with section 70.IOO(a),

31 FMSHRC 447

section 70.207(a) provides, in pertinent part:
Each operator shall take five valid respirable dust samples from the
designated occupation in each mechanized mining unit during each
bimonthly period .... Designated occupation samples shall be
collected of consecutive normal production shifts or normal
production shifts each of which is worked on consecutive days. 2
30 C.F.R. §70.207(a). The operator selects the days during the bimonthly period when dust
sampling will be conducted. The "designated occupation" is the particular work position on a
mechanized mining unit that has been determined by results of respirable dust samples to have
the greatest respirable dust concentration. 30 C.F.R. § 70.2(f). The five valid samples are
collected using MSHA approved filter cassettes contained in an air sampling unit worn by the
miner in the designated occupation. The operator then sends the five dust samples to MSHA's
laboratory, where the filters are removed and weighed to determine whether the average dust
concentration for each sample is in compliance with the 2.0 milligram limit set by section
70.IOO(a)3. The average concentration of the five respirable dust samples are considered
representative of the mine atmosphere over the course of the entire bimonthly sampling period.
Consolidation Coal Co., 8 FMSHRC at 900.

If a violation of the applicable respirable dust standard is found, an MSHA inspector
issues a citation setting a deadline for abatement. During the abatement period, the operator must
take corrective action to lower the concentration of respirable dust to within the permissible
level, and then sample each production shift until five valid samples are taken. 30 C.F.R.
§70.20l(d). MSHA may also require that the operator submit changes, in writing, to its Dust
Control Plan. Upon MSHA's receipt of five acceptable dust samples, the citation is terminated.
The issuance of the citation and abatement by MSHA typically occur without a visit to, or
inspection of, the mine.

In these matters, the Secretary seeks to modify the citations by raising gravity factors of
the number of persons affected and the likelihood of injury or illness, and the negligence
findings, as well as the penalty amount assessed for each violation. Brooks Run does not
challenge the fact of violations or the S&S designation of the citations. It does, however, dispute

2

As set forth by 30 C.F.R. § 70.208, the bimonthly periods for "designated area"
sampling are February I-March 3 I; April I- May 31; June 1-July 31; August I-September 30;
October 1- November 30; and December 1- January 31.
3

While Respondent contends that MSHA failed to check the subject dust samples to
determine the level of any diesel mantrip exhaust, which could have altered the weight of the
sample, it has presented no proof that the samples on which these violations are based were
inaccurate. Sec'y Mot. at 6, Stip. 37; Resp. Mot. at 12. See Consolidation Coal Co. v.
FMSHRC, 824 F.2d I 071, 1088 (D.C. Cir 1987).
31 FMSHRC 448

the high and moderate negligence findings, as well as the gravity findings that injury or illness
was highly likely, would be permanently disabling, and affected five persons.

Gravity
Likelihood of Injury or Illness
The Secretary contends that the high likelihood of injury or illness was appropriately
designated for Citation Nos. 9967760, 9967919, and 9967966, based on the degree of
overexposure shown by the test results. She states that exposure levels of 3.0 to 4.2 mg/m3,
which exceed the applicable limit by 150-220%, are highly likely to contribute to the occurrence
of the permanently disabling disease ofpneumoconiosis. Moreover, the Commission has
recognized that any exposure above 2.0 mg/m3 is significant and substantial, and that the
likelihood of injury is to be made assuming continued normal mining operations without
abatement of the violation. Consolidation Coal Co., 8 FMSHRC at 899.
Brooks Run argues_that the gravity findings should be reduced to reflect that the violation
is reasonably likely to result in lost workdays or restricted duty. The Secretary counters by
presuming that, once the designated samples are out of compliance, everyone on the section is
exposed and highly likely to receive permanent, disabling illnesses. The Secretary relies. on the
·probability rates for contracting simple pneumoconiosis "after 35 years exposure." Id. at 896.
However, the miners were not exposed to excess dust for any significant period of time and, as
Brooks Run also points out, during June 2006 through May 2007, only seven out of ninety-one
samples were above 2;0 mg/m3 on different, isolated dates, and for different jobs and different
MMUs. These results, when viewed in their entirety, provide a more accurate depiction of the ·
dust levels in the mine.
In preventing disabling respiratory disease~ the Commission has stated that "Congress
clearly intended the full use of the panoply of the Act's enforcement mechanisms to effectuate
this congressional goal, including designation of a violation as a significant and substantial
violation." Consolidation CoalCo;, 8 FMSHRC at 897, ajf'd sub nom. Consolidation Coal v.
FMSHRC, 824 F.2d 1071(D.C.Cir.1987). The Commission has also recognized that, with
respect to exposure-related health hazards, some departure from the Secretary's enforcement
approach is justified "because of fundamental differences between a typical safety hazard and the
respirable dust exposure-related health hazard at issue." Id. at 895; see also Costain Coal, Inc.,
19 FMSHRC 1653, 1656 (Oct. 1997) (ALJ).
While examining the third element of the Mathies test4, in the context of respirable dust
4

To establish an S&S violation under the Mathies test, the Secretary must prove: l) 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
31 FMSHRC 449

accumulations, the Commission recognized that:
the development and progress ofrespiratory disease is due to the
cumulative dosage of dust a miner inhales, which in tum depends
upon the concentration and duration of each exposure, and that
proof of a single incident of overexposure does not, in and of itself,
conclusively establish a reasonable likelihood that respirable
disease will result. There is no dispute, however, that
overexposure to respirable dustcan result in chronic bronchitis and
pneumoconiosis. The effects of the health hazards associated with
overexposure to respirable dust usually do not cause immediate
symptoms-as noted, simple pneumoconiosis is asymptomatic.
This factor makes precise prediction of whether or when
respiratory disease will develop impossible. Likewise, it is not
possible to assess the precise contribution that a particular
overexposure will make to the development of respiratory disease.
fu sum, the present state of scientific and medical knowledge, as
exemplified by the present record, do [sic] not make it possiblt;! to
determine~the precise point at which the development of chronic
bronchitis or pneumoconiosis will occur or is reasonably likely to
occur.
Consolidation Coal Co., 8 FMSHRC at 898.

A primary purpose of the Mine Act is to prevent or significantly reduce the occurrence of
respirable dust induced diseases among coal miners. Congress established the 2.0 mg/m3
respirable dust standard because it recognized that anything in excess of this level would produce
disabling complicated pneumoconiosis or progressive massive :fibrosis and other occupationrelated diseases in a statistically significant portion of coal miners. Id. Consequently, it also
recognized that, at levels below 2.2 mg/m3, there would be virtually no probability of a miner
contracting complicated pneumoconiosis, even after exposure of 35 years. Congress chose to
adopt a universal approach to assure that all miners, regardless of their susceptibility to illness or
length of time worked, "would be uniformly protected from the incremental health hazards
presented by repeated overexposures to respirable dust in .coal mines." Id. Where the Secretary
has proven, based on designated occupation samples, that an overexposure to respirable dust has
occurred in violation of section 70. l 00(a), there is a presumption that there is a reasonable
likelihood that the health hazard contributed to will result in an illness. Id. at 899.
With regard to Citation Nos. 9967760 and 9967919, the Secretary offers nothing beyond
the probability rates at various exposure levels, that each of the individual violations are highly
likely to cause pneumoconiosis in each miner exposed. Resp. Mot. at 21. Although each "drop
in the bucket" significantly and substantially contributes to a health hazard, it does not logically

question will be of a reasonably serious nature. Mathies Coal Co.; 6 FMSHRC l, 3-4 (Jan. 1984).
31 FMSHRC 450

follow that pneumoconiosis is highly likely to occur as a result of an isolated incident, even at an
exposure level of 4.2 mg/m3. See Consolidation Coal Co., 5 FMSHRC 378, 381-82 (Mar. 1983)
(ALJ) (exposure to a coal mine respirable dust level of 4.1 mg/m3 over a 5-day period would not,
in itself, cause or significantly contribute to the development ofchronic bronchitis or coal
workers' pneumoconiosis, and its effect on the development of pneumoconiosis would be
minuscule); Such a disease results from an aggressive accumulationofrespirable-dust. Id. at
389; see also Consolidation Coal Co., 8 FMSHRC at898. As there has been no showing of a
history of respirable dust violations preceding these citations for the MMUs in question, I am not
persuaded that these violations, even at the recorded exposure levels, were anything more than
"reasonably likely" to result in an illness.
Conversely, Citation No. 9967966 was the third respirable dust violation to be issued to
Brooks Run for MMU 004-00 within six bimonthly sampling cycles. · The violations, on average,
more than doubled the acceptable 2.0 mg/m3 limit, recording respirable dust levels of 4.2, 4.4
and 3.9 mg/m3, respectively. These citations indicate that miners were repeatedly exposed to
very high rates of respirable dust. Sec'y Ex. 1, 4 and 13. Consequently; I find that the violation
was "highly likely" to result in an illness.
Result of Injury or Illness
Coal workers' pneumoconiosis is a chronic lung disease that is untreatable and
irreversible. Consolidation Coal Co., 5 FMSHRC at 381. Complicated pneumoconiosis, or
progressive massive fibrosis, destroys.the lungs' air exchange capabilities, distorts the remaining
lung tissue, and significantly impairs the lungs' capacity to function due to severe internal
scarring, contracture of the lungs' with compensatory emphysema, and loss of the vasculature.
Consolidation Coal Co., 8 FMSHRC at 899. It commonly causes shortness of breath and
coughing, and can result in severe pulmonary impairment and early death. 5 FMSHRC at 381.
Lung deterioration can continue even after a miner is no longer exposed to coal dust. Id. As
stated by the Commission, these facts support a conclusion that there is a reasonable likelihood
that illness resulting from overexposure to respirable dust will be of a reasonably serious nature.
Consequently, I affirm the Secretary's findings that the resulting illness is likely to be
"permanently disabling," and Citation Nos. 9967760, 9967919, 9967921, and 9967966 shall
remain as written.
Number of Persons Affected
The Secretary argues that all shift members are affected by MMU dust violations because
they all work in the vicinity of the sampled designated occupation. She asserts that, rather than
five persons affected, the facts indicate that more persons were affected than originally cited and
thus, the number should be increased for each citation. Brooks Run counters that the number
should be reduced from five to one for each citation, because other shift members typically
worked in areas with less or no exposure to the recorded dust levels. It looks to Costain for
support, where it is concluded that some occupations ordinarily have less dust exposure than the

31 FMSHRC 451

designated occupation.
Respondent's reliance on Costain, however, ignores the factthat this argument was found
insufficient to circumvent the standard's purpose. As previously stated, the purpose of section
70.100( a) is to limit the respirable dust exposure of miners in active workings of a mine. "Active
workings" is defined-as "anyplace in a coal minewhere miners are normally-required to-work or
travel. 30 C.F.R. §70.2(b). Section 70.2(f) defines designated occupation as the occupation on a
mechanized mining unit that has been determined by results of respirable dust samples to have
the greatest respirable dust concentration.'~ 30 C.F.R. §70.2(f). In Costain, the Administrative
Law Judge noted that:
the purposeofMSHA's high risk occupation bimonthly sampling
program is to monitor the atmospheric conditions in active
workings. Monitoring the high risk occupation ensures that, if the
high risk miner is not overly·exposed, no one on that MMUshiftis
exposed to impermissible levels ofrespirable dust. Put another
way, monitoring the high risk continuous miner occupation at the
face provides the earliest warning of excessive respirable dust in
the active workings atmosphere.

Costain, 19 FMSHRC at 1659.
It is likely that the continuous miner operator working at the face would have endured a
greater level of dust exposure than other occupations, but that fact does not defeat the probability
that other occupations also would have been exposed at levels above the maximum 2.0 mg/m3.
I conclude that all miners working a shift are at risk for overexposure to respirable dust, because
they work in the vicinity of the sampled designated occupation.

Brooks Run contends that roof bolter operators typically wear respirators when bolting
down wind of the continuous miner. However, Brooks Run does not require the miners to use
respirators, nor does it offer any proof that the roof bolter operators were, in fact, wearing the
respirators when the dust samples in question were taken, or that they, otherwise, customarily
wore them. Resp. Mot. Stip. 25 and 26. 5
5

See for example Jim Walter Resources, Inc., 9 FMSHRC 957, 962 (May 1987)(ALJ),
where the "availability'' of respirators was discussed:
The operator asserts that it rebuts the presumption of significant
and substantial by making respirators available to the miners ....
The foregoing Commission precedent is not couched in terms of
availability. Rather, the Commission holds that the presumption
may be rebutted only when the operator establishes that the miners
in fact were not exposed to excessive concentrations of respirable
31 FMSHRC 452

I find that the violations affected the entire shift which, in this case, was the number of
MMU miners for each shift for which a sample showed exposure above the established limit.
Sec'y Mot. Stip. 77-80, 82 and 83; ex. 5a, 6a, and 20 at if 34. Accordingly, the Secretary's
motion to increase the number of miners affected, with respect to all citations, is granted, and the
Respondent's motion to reduce the number is denied.
Negligence
Although the Secretary concedes that Citation Nos. 9967919 and 9967921 appropriately
attribute moderate negligence to Brooks Run, she argues that the negligence classifications for
Citation Nos. 99677760 and 9967966 should be raised from "moderate" to "high;" In contrast,
Brooks Run moves that the negligence levels for each citation be reduced to "low" or "none." It
argues that it exercised diligence in abating the citations and no identifiable violation of the
approved Dust Control Plan existed in relation to the subject citations.

In Costain, factually similar to the instant cases, the discussion of the operator's
negligence is helpful in assessing Respondent's negligence. The ALJ noted that the density of
respirable dust can vary from shift to shift and is.affected by various factors, including
temperature, humidity, and the amount of coal being produced. Because excessive dust levels
are MMD-specific, a dust reading in one MMU is not indicative of dust concentrations in
another. Costain, 19 FMSHRC at 1656. It is also important to observe whether an operator has
a history of respirable dust violations, and a pattern of violating its own Dust Control Plan,
regardless of the respirable dust history of the MMU in question. Id. He concluded that, "to
attribute high negligence to an operator for a section 70.l OO(a) violation in the absence of a
pertinent identifiable dust control plan violation, or an MMU.;.specific history of violative dust
samples providing notice that greater dust control measures at that MMU were required, is
tantamount to the presumption of high negligence approach rejected by the Commission in
Peabody Coal, 18 FMSHRC at498." Costain, 19 FMSHRC at 1658. Such is the case here.
After an operator has received notice of non-compliant conditions, the Commission
requires that an operator's good faith efforts must be reasonable when trying to achieve
compliance with a standard. Cyprus Plateau Mining Corp., 16 FMSHRC 1610, 1615
(Aug. 1994). Where an operator reasonably believes in good faith that its efforts are the safest
means of compliance, such conduct is not aggravated and does not constitute a finding of more

dust through the use of personal protective equipment. The
distinction is clear. The Commission requires a showing that
miners were not exposed because they used respirators. Merely
making respirators available without any concern or interest in
their actual use falls short of the evidentiary requirement
established in Consolidation Coal. " (citation omitted).

31FMSHRC453

than ordinary negligence. Utah Power and Light Co., 12 FMSHRC 965, 972(May1990). In
Peabody Coal, the Commission reversed and remanded unwarrantable failure and high
negligence findings for a 70.100(a) violation, stating that the operator, in an effort to control dust
levels, had a "good faith" and ''reasonable belief' that its "remedial efforts were work~ng" due to
a series of compliant bimonthly sampling results immediately prior to the violative sample that
gave rise to the section 70.lOO(a) citation at issue. Peabody Coal Company, 18 FMSHRC 494,
499 (Oct. 1997).
Citation No~ 9967919 was issued on February 1, 2007, in connection with MMU 003-00,
which went into producing status on April 7, 2006 - nearly 10 months prior to the issuance of the
citation. Respondent was cited on four occasions, fromJuly 2006 - November 2006 for violating
Section 70.1 OO(a). Sec'y Ex. 11-14. Those citations were not issued in connection with MMU
003-00. ·In fact, there is no indication that Brooks Run was cited for respirable dust violations for
MMU 003-00 prior to Citation No. 9967919. Resp. Ex. BR-5. In addition, there are no
identifiable Dust Control Plan violations that contributed to the issuance of this citation.
Therefore, I conclude that there are no previous violations of Section 70. lOO(a) that would have
placed Brooks Run on notice that heightened measures were needed to control the dust levels on
MMU 003-00, nor has Respondent exhibited a pattern of violating its Dust Control Plan for this
particular MMU. In addition, Respondent, in its effort to suppress airborne dust, utilized 26 nondirectional sprays, instead of the 24 required by MSHA. Accordingly, I find that Respondent's
negligence was low.
Citation No. 9967921 was issued on February 13, 2007, in connection with MMU
001-00, which went into producing status on February 27, 2006. On at least three occasions
between February 27,2006, and February 13, 2007, Respondent was cited for failing to comply
with its Dust Control Plan. Sec'y Ex. 21, 22 and 26. All citations were terminated the same day.
There is no identifiable Dust Control Plan violation that contributed to this citation. There are
also no previous respirable dust control violations for this MMU that would have placed Brooks
Run on notice that heightened measures were needed to control the dust levels. In accordance
with its Dust Control Plan, Respondentutilized 26 non-directional sprays, instead of the 24
required by MSHA, to suppress airborne dust Resp. Ex. BR-6. I find that Respondent's
negligence was low.
Citation No. 9967760was issued on June 16, 2006, in connection with MMU-004-00,
which went into producing status on May 8, 2006. The documentation submitted indicates that
there were no respirable dust violations issued to Brooks Run for MMU-004-00 prior to Citation
No. 9967760. There is also no indication of any Dust Control Plan violations that contributed to
this citation. It was abated within three weeks when Respondent submitted respirable dust
samples showing an average dust concentration within the applicable limit. Respondent has
admitted, however, that it used a blowing device that was unfamiliar to many of its miners. As a
result, the continuous miner operators did not know where to stand in relation to the equipment,
in order to reduce their exposure to respirable dust. This admission evidences Respondent's
negligence in failing to train its miners on the appropriate standing position, which deficiency

31 FMSHRC 454

should have been observed during an on-shift examination required under section 75.362(a)(2).
However, when coupled with its history of violation for this MMU, the facts do not justify a
finding of high negligence. I find that Respondent's negligence, as originally assessed, was
moderate.
·Citation No. 9967966 was issued on April 9, 2007, also in connection with MMU 00400. Unlike Citation No 9967760, this citation was the third to be issued for a violation of Section
70.lOO(a) for MMU 004-00 in six bimonthly test cycles. Sec'y Ex. 13. On September 26, 2006,
Brooks Run was cited for failing to submit the required bimonthly respirable dust samples for the
July- August 2006 period under Citation No. 9967828. Sec'y Ex.12. The samples submitted to
abate Citation No. 9967828 were also non-compliant and resulted in issuance of Citation No.
9967868 on November 7, 2006. It is clear that Respondent's repeated violations of section
70.lOO(a) placed it on notice that greater dust control measures on MMU 004-00 were needed.
Respondent's negligence is mitigated, however, by the fact that, after receiving this second
violation for exceeding the respirable dust limit, the company revised its Dust Control Plan,
which was approved by MSHA. Sec'y Ex. 13. Following the Plan revision, it submitted five
valid respirable dust samples that were within the acceptable range. Sec'y Ex. 13. Further,
before issuance of Citation No. 9967966, Respondent believed, in good faith, that it had
addressed the problems in its Plan, because it had achieved compliance with applicable limits.
As a result of revising its Dust Control Plan, it achieved compliance by May 10, 2007. Sec'y
Ex. 20. There is also no indication that Respondent was not in compliance with its Dust Control
Plan immediately preceding this citation. ·The record simply does not support a finding of high .
negligence. Accordingly, I find that Respondent's negligence, as originally assessed, was
moderate.

III. Penalty
While the Secretary has proposed an increase in the total civil penalty from $10,275.00,
the judge must independently determine the appropriate assessment by proper consideration of
the six penalty criteria set forth in section 1 lO(i) of the Act, 30 U.S.C. § 820(j). ·See Sellersburg
Stone Co., 5 FMSHRC 287, 291-92 (March 1993), ajf'd, 763 F.2d 1147 (7th Cir. 1984).
Applying the penalty criteria, I find that Brooks Run is a large operator and, as the
Cucumber mine is relatively new, its history of assessed violations is low. See Pet. for
Assessment of Civil Penalty, Ex. A (MSHA Form 1000-179). As stipulated by the parties, the
total proposed penalty will not affect Respondent's ability to continue in business. Sec'y Mot. at
18, stip. 110; Resp. Mot. at 3. I also find that Brooks Run demonstrated good faith in achieving
rapid compliance, after notice of the violations.
The remaining criteria involve consideration of the gravity of the violations and Brooks
Run's negligence in committing them. These factors have been discussed fully, respecting each
citation. Therefore, considering my findings as to the six penalty criteria, the penalties are set
forth below.

31FMSHRC455

Assessment
Citation No. 9967919
It has been established that this S&S violation of 30 C.F.R. § 70.lOO(a) was reasonably
likely to cause an illness that would be permanently disabling, that fourteen persons were
affected, that it was due to Brooks Run's low negligence, and that it was timely abated.
Applying the civil penalty criteria, I find that a penalty of $2,000.00 is appropriate.

Citation No. 9967921
It has been established that this S&S violation of 30 C.F .R. § 70.100(a) was reasonably

likely to cause an illness that would be permanently disabling, that seven persons were affected,
that it was due to Brooks Run's low negligence, and that it was timely abated. Applying the civil
penalty criteria, I find that a penalty of $1,500.00 is appropriate.

Citation No. 9967760
It has been established that this S&S violation of 30 C:F.R. § 70.lOO(a) was reasonably
likely to cause an illness that would be permanently disabling, that seven persons were affected,
that it was due to Brooks Run's moderate negligence, and that it was timely abated. Applying the
civil penalty criteria, I find that a penalty of $2,000.00 is appropriate.

Citation No. 9967966
It has been established that this S&S violation of 30 C.F.R. § 70.lOO(a) was highly likely
to cause an illness that would be permanently disabling, that eight persons were affected, that it
was due to Brooks Run's moderate negligence, and that it was timely abated. Applying the six
civil penalty criteria, I find that a penalty of $2,200.00 is appropriate.

ORDER

Accordingly, it is ORDERED that the Secretary's Motion.for Summary Decision is
GRANTED IN PART and DENIED IN PART, that the Respondent's Motion for Summary
Decision is GRANTED IN PART and DENIED IN PART, and that the Secretary MODIFY
the Citations as follows: Citation No. 9967919 to reduce the gravity to "injury or illness

31 FMSHRC 456

reasonably likely," to increase the persons affected to "14," and to reduce the negligence to
"low;" Citation No. 9967921 to increase the persons affected to "7" and reduce the negligence to
"low;" Citation No. 9967760 to reduce the gravity to "injury or illness reasonably likely" and
increase the persons affected to "7;" and Citation No. 9967966 to increase the gravity to "injury.
or illness highly likely" and the persons affected to "8." It is further ORDERED that
RespondenrP:AYacivitpenaltyof$7,70D.OO, within 30 days ofthis-t>rder.·1\ccordingly, these
cases are DISMISSED.

Distribution:
Karen M. Torre, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd
Floor West, Arlington, VA 22209-2247
Max Corley, Esq., Dinsmore & Shohl, LLP, P. 0. Box 11887, 900 Lee Street, Suite 600,
Charleston, WV 25339
/sdb

31 FMSHRC 457

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577IF AX 303-844-5268

April 10, 2009
CNIL PENALTY PROCEEDINGS

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

Docket No. CENT 2008-287-M
A.C. No. 14-01477-136068
Docket No. CENT 2009-061-M
A.C. No. 14-01477-165617-01
Plant 1
Docket No. CENT 2008-334-M
A.C. No. 14-01478-139550

v.
Docket No. CENT 2008-574-M
A.C. No. 14-01478-150353
Plant 2
Docket No. CENT 2008-285-M
A.C. No. 14-01597-136070
Docket No. CENT 2008-487-M
A.C. No. 14-01597-143393

NELSON QUARRIES, INC.,
Respondent

Docket No. CENT 2008-564-M
A.C. No. 14-01597-146991
Plant 4
DECISION

Appearances:

Ronald S. Goldade and Hillary A. Smith, Conference & Litigation
Representatives, Mine Safety and Health Administration, Denver,
Colorado, and Jennifer A. Casey, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado, Jor Petitioner;
Paul M. Nelson, Nelson Quarries Inc., Jasper, Missouri, for Respondent.

Before:

Judge Manning

31 FMSHRC 458

These cases are before me on seven petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"),
against Nelson Quarries, Inc., pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the ·•Mine Act"). The cases involve ten citations
issued by MSHA under section 104( a) of the Mine Act at three plants operated by Nelson
Quarries. The parties presented testimony and documentary evidence at the hearing held in
Topeka, Kansas.
At all pertinent times, Nelson Quarries operated quarries in southeastern Kansas. The
quarries mine limestone and then crush and screen the material for sale. The operations are
portable and do not necessarily operate twelve months a year.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. CENT 2008-287-M; Plant 1

On July 24, 2007, former MSHA Inspector Chrystal Dye issued Citation No. 6421431
alleging a violation of section 56.14131(a). (Tr. 18; Ex. G-1). The citation alleges that the driver
of the Dresser Haulpak truck was not wearing his seat belt when he drove it from the parking
space to the north side of the plant. fuspector Dye determined that an injury was reasonably ·
likely and that any injury would likely be fatal. She determined that the violation was significant
and substantial ("S&S") and that the negligence was moderate: The safety standard provides that
"[s]eat belts shall be provided and worn in haulage trucks." The Secretary proposes a penalty of
$975.00 for this citation.
fuspector Dye testified that when she asked James Shaw, the driver of the truck, to open
the door, he was not wearing his seat belt. (Tr. 19). He drove about a quarter of a mile from the
parking lot to where she was standing without wearing a seat belt. (Tr. 27). She determined that
the violation was S&S because Shaw would be hauling rock with the truck later in the shift. The
road from the plant to the pit contained inclines and declines as well as other traffic. There had
also been a lot of rain in eastern Kansas in the suI1Ui1er of 2007. She testified that if Shaw were
to hit bad road without wearing a seat belt, he could have been seriously injured. (Tr. 20-21).
She testified that MSHA' s program policy manual and a history of fatal accidents support her
S&S finding. (Tr. 22-25; Exs. G-2, G-3). Because Nelson Quarries has a policy that requires
equipment operators to wear seat belts, she determined that the negligence was moderate. (Tr.
25).
There was no dispute that Shaw was not wearing a seat belt. I find that the Secretary
established a violation but that, under the particular facts of this case, the violation was not S&S.
A violation is classified as S&S "if based upon the facts surrounding the violation, there exists a
reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature." National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In
Mathies Coal Co., 6 FMSHRC I, 3-4 (January 1984), the Commission set out a four-part test for

31 FMSHRC 459

analyzing S&S issues. Evaluation of the criteria is made assuming "continued normal mining
operations." U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). The question of
whether a particular violation is S&S must be based on the particular facts surrounding the
violation. Texasgu1f, Inc., 10 FMSHRC 498 (April 1988). The Secretary must establish: (1) the
underlying violation of the safety standard; (2) a discrete safety hazard, 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. The Secretary is not required to show that it is more probable than not
that an injury will result from the violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June
1996).
The truck had been parked all morning because it had been tagged out for repairs. (Tr.
31 ). At the request of Inspector Dye, Shaw drove the truck from the parking area to the area
where she was inspecting trucks for the sole purpose of permitting her to inspect it. Patrick Clift,
a foreman for Nelson Quarries, testified that he flagged Shaw down and asked him to temporarily
stop driving his own truck so he could drive the subject'haul truck to Inspector Dye. (Tr. 37).
The ground was level in t:hat area. (Tr. 32). When Inspector Dye later inspected the haul truck
that Shaw was actually driving that day, he was wearing his seat belt. Although Clift told the
inspector that the subject haul truck would be used later that day, it was actually taken back to the
parking lot for further repairs. (Tr. 33). It was never Clift's intention that Shaw would change
trucks .that day. Shaw continued to drive the truck he had been assigned at the start of the shift.
(Tr. 37-38). Clift was surprised when he learned that Shaw was not wearing a seat belt because .
he is a good employee who always wears his seat belt.
Shaw testified that he normally wears his seat belt. (Tr. 43). He also testified that when
he was asked to drive the subject haul truck to Inspector Dye, he parked the truck he was driving,
got in the other truck and drove it about 50 feet to the inspector. This was not an ordinary event
and he forgot to put on his seat belt. (Tr. 27, 43-44). He left the truck he had beenoperating
with the motor running because he was going to get back in it to continue hauling rock that day.
I agree with the Secretary that, under ordinary circumstances, the failure of a haul truck
driver to wear a seat belt creates a serious safety hazard. In this instance, however, the truck was
driven a short distance, up to a quarter mile, over level terrain. Shaw was not going to be hauling
rock with that truck because he was only driving it to the inspector. I credit the testimony of Clift
and Shaw on this citation. It was not reasonably likely that Shaw would be involved in an
accident that would result in a serious injury. The violation was not S&S. I also find that the
operator's negligence was low. The evidence establishes that Shaw normally wears a seat belt
and that he forgot in this instance because he was asked to perform an unusual task. A penalty of
$100.00 is appropriate for this citation.

31 FMSHRC 460

B. CENT 2009-061-M; Plant 1
At the conclusion of the hearing, the parties agreed to settle the two citations at issue in
this docket. (Tr. 354-55). This docket involves Citation Nos. 6321528 and 6321529.
Respondent agreed to withdraw its contest of Citation No. 6321528 a:nd pay the proposed
penalty. The Secretary agrees to modify Citation No. 6321529 to delete the S&S determination.
Respondent agrees to pay the proposed penalty for that citation as well. The settlement is
·
approved.

C. CENT 2008-334-M; Plant 2
1. On September 5, 2007, MSHA Melvin Lapin issued Citation No. 6421143 alleging a

violation of section 56.1421 l(b). (Ex. G-6). The citation states that two employees were
working on the Dresser Haulpak truck at the ready line with the box in the raised position. The
box was not blocked against motion to prevent the box from falling and the wheels of the truck
were not blocked with a chock. One employee was under the box on the truck's frame adding
hydraulic oil to the tank and the other employee was under the truck. Inspector Lapin determined
that an injury was highly likely and that any injury would likely be fatal. He determined that the
violation was S&S and that the negligence was moderate. The safety standard provides that
"[p]ersons shall not work on top of, under, or work from a raised component of mobile
equipment until the component has been blocked or mechanically secured to prevent accidental:
lowering." The standard also requires that the equipment "be blocked or secured to prevent
rolling." The Secretary proposes a penalty of $3, 700.00 for this citation.
Inspector Lapin testified that he began a regular inspection of Plant 2 on September 5 and
that he was accompanied by his supervisor, Joe Steichen. After they stopped at the scale house
to introduce themselves, they started to drive to the plant to meet up with Jeff Benedict, the lead
man. On the way to the plant, they saw a dump truck with its box raised. They decided to see
why the box was raised. The ••box" is the truck bed that carries rock. As they got closer, they
saw a miner between the raised box and the frame of the truck. It looked like he was pouring oil
into the hydraulic tank for the truck. There was another miner under the truck next to the right
wheels. Lapin got out of the MSHA vehicle to see if there was any kind of support for the box.
(Tr. 82). When he saw that the box was not supported or blocked against motion, he issued an
oral imminent danger order and told the miner under the box to move away from the truck. (Ex.
G-5). He subsequently learned thatthe miner under the box was Billy Doolittle and the miner
under the truck was Nate Schmidt. When Doolittle did not remove himself, Lapin put his hand
on Doolittle's shoulder and again ordered him to get out from under the box. (Tr. 83). Doolittle
was kneeling on the truck's framework just behind the cab. Lapin testified that Doolittle was in a
position on the frame that, if the box were to fall, it would fa11 directly on him. Lapin assumed
that the hydraulic system had a leak because new oil does not normally have to be added to a
closed system. (Tr. 84, 105). Lapin also noticed that the wheels of the truck were not chocked.

31 FMSHRC 461

Lapin issued two citations to Nelson Quarries as a direct result of the practice he
observed. Citation No. 6421143 alleges that the box was not blocked against motion and the
wheels were not chocked to prevent it from rolling. Inspector Lapin testified that he was
concerned for Doolittle's life because he was working directly under the box of the truck. He
was concerned about Schmidt because he was working under the truck just inches from the right
drive wheel. The truck was manufactured with a hole on each side of the frame supporting the
box and on each side of a frame on the truck body. When the box is in a raised position, the
holes line up so that a "safety bar" or "retaining pins" can be inserted. (Tr. 92-93, 108; Exs. G7, G-11 ). Inspector Lapin testified that if a safety bar had been inserted in these holes, the box
would have been adequately "blocked or mechanically secured to prevent accidental lowering" in
conformance with the safety standard. (Tr. 105-06). Although there apparently were safety bars
at the plant, Jeff Benedict could not locate one on September 5. (Tr. 93-94) . .The shop manual
for the dump truck specifically states: "Do no allow anyone beneath the [dump box] unless
'body-up' retaining cables or pins are installed." (Ex. G- 7 p: 3). The operator's manual for the
truck provides instructions on the storage and use of."body-up pins" and states: "Do not work
under raised body unless body safety cables, props, or pins are in place to hold the body in the up
position." (G-8, G-9).
Inspector Lapin testified that Doolittle could have been fatally injured. He based this
conclusion on a number of factors including MSHA Fatalgrams he has reviewed. (Tr. 100-; Ex.
G-12). He admitted, however, that he knows of no fatal accidents caused by a falling box on a
Dresser haul truck. (Tr. 139). The inspector believed that the bed of the truck could have fallen
because hydraulic systems can fail. (Tr. 144). In addition, a gust of wind could have come up
and moved the truck because the raised box would act as a sail and the wheels were not chocked.
Although the parking brake was apparently set, the wheels were not against a berm.
As discussed in more detail below, Inspector Lapin has extensive experience with mobile
equipment. He testified that the box on a dump truck can unexpectedly come down. (Tr. 103).
The truck was not locked and the controls for the box were near the door. Someone could enter
the cab of the truck and accidently knock the controls for the box. The inspector determined that
it was highly likely that Doolittle would be injured given his position on the frame of the truck
under the raised box. (Tr. 115-120). Supervisory Inspector Steichen agreed with Inspector
Lapin's characterization of the violation. (Tr. 150).
Paul Nelson testified about the design of the Dresser haul truck. He said that it uses an
electro-hydraulic system that operates a pilot system to control the hydraulics on the truck. (Tr.
215-17). An electric solenoid is used to engage a small hydraulic system, called the pilot system,
that actually operates the main hydraulic system. The advantage is that it is easier to operate and
it eliminates much of the "mechanical linkage that can wear out and cause problems." (Tr. 216).
This system provides a greater measure of safety because; if you lose pilot pressure, the oil· is
trapped in the hydraulic cylinders which holds the bed up. (Tr. 217; Ex. R-334-D8). The only
way for the bed to come down is if you have a fault in the system such as a blown 0-ring or
hydraulic line. Nelson testified that it is very unlikely for the bed to come down from a raised

31 FMSHRC 462

position on this particular model of Dresser truck. (Tr. 218). He said that the safety pins should
be installed, but the system used on this type of Dresser truck is very reliable and an accident was
unlikely. Nelson also testified that the bed of the truck is designed so that, as the bed is raised,
its center of gravity is almost vertical with the hinge for the bed with the result that very little
force is needed to hold the bed up. It is close to being balanced. (Tr. 220). This fact makes it
even more unlikely that the bed will come down unexpectedly. Nelson also testified that it is his
understanding that the hydraulic tank is on the side of the truck frame and that the tank for the
transmission fluid was between the frame members. Thus, Doolittle may have been adding
transmission fluid.
I find that the Secretary established an S&S violation of the safety standard. Inspector
Lapin is a journeyman heavy equipment mechanic. (Tr. 103). He worked for 29 years for a sand
and gravel company in Oregon. During much of that time he worked in the shop, first as a
trainee, then as a lead man, and finally as a foreman. (Tr. 76'-78). Lapin performed maintenance ·
on a wide variety of mining equipment including front-end loaders, bulldozers, dump trucks, and
a dragline. He was subsequently a production foreman at the quarry. I find that Inspector Lapin
was a very credible witnes!i on matters relating to heavy equipment and I give his testimony great
weight. There is no doubt that the Dresser Haulpak truck used by Nelson Quarries is well
designed, as testified to by Mr. Nelson. That design, however, does not eliminate the hazard of
working under the raised bed of the truck. As the Commission has stated, the Secretary is not
required to prove that it is more probable than not that the cited condition will result in an
accident. Her burden is to establish that it is reasonably likely that the hazard contributed to by
the violation will result in an injury of a reasonably serious nature. Based on the evidence
presented by the Secretary, it is clear that the violation contributed to a serious risk that the bed
of the truck would fall and kill Mr. Doolittle. Hydraulic and other systems on mining equipment
can fail in unexpected ways and the cited safety standard was written to protect miners in such
instances.
I also find that the negligence of the operator was moderate. It is clear that it is company
policy that miners block the raised bed of dump trucks before performing maintenance on them.
In addition, Doolittle's negligence cannot be directly imputed to the company. Nevertheless, a
safety bar could not be located in the vicinity of the ready line, even after Benedict looked. That
indicates that, although Nelson Quarries understands the importance of blocking raised
equipment, it does not always give its employees the tools to protect themselves. A penalty of
$3,700.00 is appropriate.
2. On September 5, 2007, Inspector Lapin issued Citation No. 6421144 alleging a
violation of section 56.18006. (Ex. G-13). The citation alleges that the company failed to
indoctrinate a newly hired employee (Mr. Doolittle) in safety rules and safe work procedures.
Based on discussions with Doolittle, the inspector determined that Doolittle was unaware of the
requirement to block the box after it was raised. Inspector Lapin determined that an injury was
highly likely and that any injury could reasonably be expected to be fatal. He determined that the
violation was S&S and that the negligence was moderate. The safety standard provides that

31 FMSHRC 463

"[n]ew employees shall be indoctrinated in safety rules and safe work procedures." The
Secretary proposes a penalty of $3,200.00 for this citation.
Inspector Lapin testified that when he asked Billy Doolittle about the use of a safety bar,
Doolittle acted as if he did not know what a safety bar was. (Tr. 94-96). When the inspector
showed Doolittle where the safety bar would be inserted, he still did not act as if he knew what
the inspector was talking about. The inspector testified that he did not use the term "body-up
pin" with Doolittle, but that when he showed Doolittle the holes for the safety bar or pins,
Doolittle did not then say anything to indicate that he knew what the holes were for. (Tr. 108-09,
142). Doolittle had worked at the plant for a little less than two weeks. (Tr. 128). He told the
inspector that he had received a few hours of training at one of the company's other plants.
Based on his interview with Doolittle, Lapin testified that he did not believe that Doolittle had
been adequately trained on the task of blocking the box and truck against motion. (Tr. 96, 12425). If Doolittle had been indoctrinated in safety rules and safe work practices, he would have
known that he should not work under the raised bed of the truck without first blocking it against
motion. (Tr. 126).
Inspector Lapin also testified that he looked.at the company's training records. In
addition to other records, he saw training records for Doolittle and Schmidt. (Tr. 129). Although
Doolittle may have received new miner training, Lapin believed that such training was
inadequate since he did not know how to block the bed of the truck against motion. Id. The
inspector determined that a serious accident was highly likely because inadequate training can
result in serious accidents. (Tr. 130, 132-33). Steichen testified that he agrees with this
assessment. (Tr.· 152). Steichen testified that when he asked Doolittle if he knew how to block
the box; he replied ·~no." (Tr. 151; Ex. G-15).
Patrick Clift testified that he provided Doolittle and Schmidt with the MSHA required
training. (Tr. 155-56). In particular, Clift showed them the safety features on a Dresser dump
truck, including the safety pins, and instructed them on maintenance procedures. Clift testified
that he made sure that they understood what he was telling them by asking them questions. (Tr.
157). Clift said that he stressed the use of safety pins with these two miners during his training.
Id. He testified that he showed Doolittle where the pins were to be inserted to support the bed
and explained that they must be used when the bed is in the air. (Tr. 167-68). Clift signed new
miner and task training records for these two miners. (Tr. 158; Ex. R-334-D4, D5, D6 & D7).
Clift stated that he has been training miners for about four years. None of the training that Clift
performed occurred at Plant 2. Nelson Quarries uses similar Dresser and Caterpillar trucks at its
plants. Clift. testified that Doolittle and Schmidt would have been given additional training when
they started working at Plant 2.
Nathan Schmidt is a truck driver at Plant 2. He testified that he was given training by
Patrick Clift along with Mr. Doolittle. He testified that Clift showed them the safety pins and
told them that they must be used when the bed is raised,· (Tr. 175). Schmidt said that he did not
know that Doolittle had not pinned the truck bed on September 5. (Tr. 177). Schmidt also
31 FMSHRC 464

testified that he knew that the truck bed should be blocked against motion before. anyone works
under it. (Tr. 180). He also testified that Darick Johnson, a loader operator who has worked for
Nelson Quarries since 2000, was in the same area putting hydraulic fluid into his loader. (Tr.
182). Mr. Johnson testified that he was in the oil trailer when the MSHA inspectors arrived.
(Tr. 188). Johnson also testified that on another occasion, prior to this inspection, he helped
Doolittle install safety pins for the bed of his truck. (Tr. 193, 207). He did not know why safety
pins could not be located when the MSHA inspectors were present. (Tr. 207). 1
There have been very few decisions interpreting the cited safety standard. In Weathers
Crushing, Inc., 22 FMSHRC 1032 (Aug. 2000) (ALJ), a miner who was hired to operate a rock
crusher was killed a little more than two hours after he had begun working at the plant. The mine
operator only provided on-the-job training for about thirty minutes before he was told to operate
the crusher. He was apparently instructed to use a sledge hammer to break up any rock that
obstructed the crusher. MSHA determined that the head of the sledge hit the miner in the face as
he was attempting to dislodge a rock. The administrative law judge held that the mine operator .
violated the safety standard because it merely "familiarized [the miner] with unsafe work
procedures, after which he_ was essentially cast adrift." 22 FMSHRC at 1039.
fu the present case, Inspector Lapin issued the citation because it did not appear to him

that Doolittle knew that he should block the bed of the truck against motion and chock the tires
before beginning work. The inspector was especially concerned because, when he showed
Doolittle the holes at the back of the truck where a safety bar or pin could be inserted, Doolittle
did not seem to know what he was talking about. This conduct indicated to the inspector that he
had not been indoctrinated in safety rules and safe work procedures.
Patrick Clift testified that Doolittle took the required new miner training and that he was
. also given task training on trucks. The records corroborate this testimony. (Ex. R-334-DS &
D7). This training was completed on August 27, 2007. Doolittle was task-trained on 35 ton
Caterpillar trucks, 35 ton Dresser trucks, and 50 ton Dresser trucks. The Secretary did not
establish that the company's training program violated the provisions of 30 C.F. R. Part 46. Clift
testified that he instructed Doolittle on the use of safety pins when performing maintenance on
dump trucks. (Tr. 157). At the hearing, the Secretary questioned the adequacy.of the training
because it was performed at a different plant. Although I would tend to agree that some training
would by necessity need to be at the plant where a new miner would be working, it escapes me
how training on the safety features and procedures of a truck would be different at another plant.
The Dresser trucks were the same in all relevant respects.
Does the Secretary establish a violation of this safety standard by introducing evidence to
show that a new miner did not appear to know how to safely perform the task he was assigned?
Inspector Lapin testified that Doolittle did not seem to know that the bed should have been

1

Mr. Doolittle no longer works for Nelson Quarries and he did not testify at the hearing.
Doolittle was replaced by someone else because he was incarcerated. (Tr. 162).
31 FMSHRC 465

blocked against motion. Does this fact establish that Doolittle was not properly instructed on
safety rules and safe work procedures? Inspector Steichin testified that Doolittle told him that he
did not know how to block the box. (Tr. 151 ). In the other cases involving this standard, it was
quite clear that the new miner in question had not been trained. 2 In this case, on the other hand,
there is evidence that Doolittle had been trained on the use of safety pins or bars, but that he
failed to follow correct safety procedures. Many violations under the Mine Act are a direct result
of a miner failing to follow safe procedures when performing a task. Clearly, a citation alleging a
violation of training niles would not be appropriate whenever a newly hired miner fails to follow
an MSHA standard or a company safety rule.
Although this citation presents a veryclose issue, I find that the Secretary did not
establish a violation. I credit the testimony of Patrick Clift. I find that the testimony of Mr. Clift
rebuts the Secretary's prima facie case. His testimony is corroborated by the training records and
the testimony of Schmidt. Doolittle had been properly trained but he was not an attentive or
safety-conscious employee because he failed to follow the company's safety procedures when
performing maintenance on the Dresser truck. The evidence shows that he had been
indoctrinated in these safety procedures but he chose to ignore them; This citation is vacated.

D. CENT 2008-574-M; Plant 2
On February 2, 2008, MSHA Inspector James Timmons issued Citation No. 6421756
alleging a violation of section 56.9300( a). (Ex. G-18). The citation alleges that there were no
berms present on the east or west side of the ramp entering the pit. It states that there was a dropoff of about 5 feet down on each side of the roadway and there was evidence that the road had
been used in the cited condition. Inspector Timmons determined that an injury was reasonably
likely and that any injury could reasonably be expected to be fatal. He determined that the
violation was S&S and that the negligence was moderate. The safety standard provides that
"[b]erms or guardrails shall be provided and maintained on the banks of roadways where a dropoff exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in
equipment." The Secretary proposes a penalty of$263.00 for this citation.

fuspector Timmons testified that he observed that there were no berms on the east and
west side of the ramp entering the pit. (Tr. 291). He stated that there was a five-foot drop-off
from the edge of the roadway to a pond below. Using a stick he measured the water to be about
three feet deep at that point. (Tr. 292). He believed that the drop-off was sufficient to overturn a
vehicle. He determined that the violation was S&S because it was the primary roadway between
the pit and the plant. Large trucks and other vehicles use this roadway on a regular basis. (Tr.

2

fu Knack's Building Supplies, 20 FMSHRC 535, 543 (May 1998) (AU), a truck driver
and his foreman, who were both new employees, were not aware of the applicable MSHA
standards and it was clear that no training on safety rules and safe work procedures had been
given. fu Root Neal & Company , 22 FMSHRC 94, 105 (Jan. 2000) (ALJ), it was clear that the
miner was asked to perform an installation and repair task that he had not been trained to do.
31 FMSHRC 466

300). The road was about 20 feet wide at the cited location. There were tire tracks near the edge
of the roadway. (Ex. G-19). The inspector testified that if a large piece of equipment were to go
off the side of the road into the water, it is reasonably likely that the results would be fatal. (Tr.
294, 296; Ex. G-19). The unbermed area along the roadway was about 25 to 30 feet long. (Tr.
299).
Inspector Timmons marked the negligence as moderate rather than high because Benedict
told him that a new drainage culvert had been installed under the road in that area the day before
and the berm had not yet been replaced. (Tr. 295, 302). The inspector testified that berms
should have been constructed as soon a feasible during the road reconstruction. (Tr. 319).
Patrick Clift testified that the tire tracks that the inspector observed were likely from a
loader that was used to spread out additional base rock along the road. (Tr; 329). New rock base
would have been applied after the culvert was cleaned out. Clift also testified that the drop-off
was not as great as the inspector believed it to be. (Tr. 332-34). He,also said that, because the
roadway was level in the cited area, it had not been bermed in the past. (Tr. 335). Berms had
been constructed on the ramp itself, but once the road flattened out near the culvert, berms had
never been present. (Tr. 341 ).
I find that the Secretary establiShed an S&S violation of the safety standard. Although it
is not entirely clear how far down the ramp the berm had previously been constructed, I find that
berms were required at the cited area. The drop-off was significant and it was right at the bottom
of the ramp where the road begins to curve~ (Ex. R-574-Dl). The Secretary established that the
grade and depth of the drop,.;off was sufficient to cause a vehicle to overturn or endanger persons··
in mobile equipment. The equipment operator could be seriously injured or killed. Assuming
continued mining operations, it was reasonably likely that the ha.Zard contributed to would result
in an injury of a reasonably serious nature. I credit the Secretary's evidence on this citation. A
penalty of$263.00 is appropriate.

E. CENT 2008-285-M; Plant 4
On November 15, 2007, Inspector Timmons issued Citation No. 6421702 alleging a
violation of section 56.14131(a). (Tr. 53; Ex. G-4). The citation alleges that the operator of the
773 Caterpillar haul truck was observed operating the truck at the dump ranip without wearing
his seat belt. The operator told the inspector that he had been trained to wear the seat belt, but
that he forgot to put it on. Inspector Timmons determined that an injury was reasonably likely
and that any injury could reasonably be expected to be fatal. He determined that the violation
was S&S and that the negligence was moderate. The safety standard provides that "[ s]eat belts
shall be provided and worn in haulage trucks." The Secretary proposes a penalty of$308.00 for
this citation.
Inspector James Timmons testified that Earl Priest, the operator of the Caterpillar 773
haul truck, was not wearing his seat belt. (Tr. 53). Timmons testified that he stopped Priest as

31 FMSHRC 467

he was coming down the ramp from the crusher because he wanted to ask him where the foreman
was. Priest was not wearing a seat belt. Priest told him that he got out of the truck for a moment
while he was at the crusher and he forgot to put it back on when he returned to the truck. (Tr. 62,
66). Inspector Timmons determined that the violation was S&S because there was other mobile
equipment in the area, the driver was coming down a ramp from the crusher, and he was heading
toward the pit to pick up more rock. (Tr. 55). The inspector testified that, without a seat belt,
Priest could have been seriously injured or killed in the event of an accident. The inspector
determined that the operator's negligence was moderate because the company has a seat belt
policy. As.far as he knows, the two seat belt citations at issue in these cases are the only seat belt
citations ever issued to Nelson Quarries.
Priest testified that he normally wears his seat belt because the floor of the pit is very
rough and he would get "knocked around pretty good" if he were not wearing his seat belt. (Tr.
65). He stated that he was hauling rock from the pit to the crusher on November 15. Priest.
acknowledged that Nelson Quarries has a policy requiring that seat belts be worn at all times.
(Tr. 69; Ex. R.;.285-2). He was not disciplined for failing to wear a seat belt.
I find that the Secretary established an S&S violation of the safety standard. There is no
dispute that Priest was not wearing his seat belt when he drove down the ramp from the crusher.
The Secretary established that it was reasonably likely that the hazard contributed to by the
violation would result in an injury of a reasonably serious nature. Priest dumped the rock at the
crusher and proceeded down ramp on ·the way to the pit. Had he not been stopped by the MSHA
inspector; he would have driven into the pit. Priest acknowledged that the floor of the pit was
rough and that a seat belt was necessary to preventinjury. I find that the company's negligence
was slightly less than moderate because the company had a seat belt policy. Priest's negligence
should not be imputed to the company because he was an hourly worker. A penalty of$275.00 is
appropriate.

F. CENT 2008-487-M; Plant 4
At the beginning of the hearing, Nelson Quarries agreed to withdraw its contest of the
citations at issue in this docket. (Tr, 10-11 ). The settlement is approved.

G. CENT 2008-564-M; Plant 4
On November 19, 2007, Inspector Timmons issued Citation No. 6421704 alleging a
violation of section 62.120. (Ex. G-16). The citation alleges that the results of a full shift sample
taken on that date showed that the driver of the Caterpillar haul truck received an action level
noise dose of 88 percent. The citation noted that the noise level exceeded the action level dose of
50 percent of the personal exposure level (PEL). The miner was not enrolled in a hearing
conservation program. Inspector Timmons determined that an injury was unlikely but that any
injury would likely to be permanently disabling. He determined that the violation was not S&S
and that the negligence was moderate. The health standard provides that "[i]f during any work

31 FMSHRC 468

shift a miner's noise exposure equals or exceeds the action level the mine operator must enroll
the miner in a hearing conservation program that complies with§ 62.150 of this part." The
Secretary proposes a penalty of $100.00 for this citation.
Inspector Timmons issued the citation after conducting a noise survey at the quarry. He
issued the citation because he believed that the noise level exceeded the action level for the
driver of the Caterpillar halt truck, Rick White. (Tr. 234). If a miner exceeds the action level,
the mine operator must enroll him in a hearing conservation program that complies with section
62.150. The exposure level met the action level threshold because it was above 80 dBA but was
below the PEL of 90 dBA. (Tr. 235). The dosimeter indicated that the driver had been exposed
to a time-weighted average sound level of 88.5 dBA. The term "action level" is defined as "[a)n
8-hour time-weighted average sound level (TWA) of 85 dBA, or equivalently a dose of 50%,
integrating all sound levels from 80 dBA to at least 130 dBA." (Section 62.101). The operator
of the truck was hauling rock and the window on the driver's side was open. {Tr. 255). Other
trucks were being operated on the same day, but only Rick White was found to be above the
action level for noise: (Tr. 261, 263, Ex. R-564-Dl).
At the hearing, Inspector Timmons described how he took the measurement using a
dosimeter. (Tr. 238-46). He followed standard MSHA procedures, except he placed the noise
microphone in a different location than is prescribed in MSHA's "Metal and Nonmetal Health
Inspections Procedures Handbook." (Ex. G-17). The Handbook instructs inspectors to attach the
mike to clothing on the miner's shoulder that would normally be between the principal noise
source and the miner's ear. Id. at 2-3. The Handbook states that, based on the recommendations
of the manufacturer, the mike should be "located at the top of the shoulder midway between the
neck and end of the shoulder, with the microphone diaphragm pointing in a vertical upward
direction." Id. at 2. Inspector Timmons attached the mike to the miner's collar in a position that
was almost vertical. (Tr. 241 ). Inspector Timmons testified that Richard McCutcheon, industrial
hygienist for the Rocky Mountain District, advised him that it would be appropriate to attach the
mike to the collar. (Tr. 241-42, 252). When the microphone is attached to clothing on the
miner's shoulder when he is operating mobile equipment, it could come off or the wind screen on
the mike could fall off when the miner puts on his seat belt. (Tr. 243). McCutcheon told him
that there would be a minimal difference in the dBA reading if the microphone were placed on
the miner's collar.
Patrick Clift testified that, after a dosimeter was placed on Rick White and he had been
driving around for a while, Inspector Timmons asked him to stop so that the dosimeter could be
checked. Clift was with the inspector at that time. Clift testified that he became very concerned
when he saw where the mike was placed. He said that Mr. White is a boisterous, talkative man
with a full beard. (Tr. 269-70, 280). Clift said that the microphone was rubbing against his
beard. Clift testified that when the inspector said that it looked like the driver might be reaching
the action level, Clift raised these concerns with the inspector. (Tr. 270). Clift asked Rick White
to talk. According to Clift, the dosimeter shot up from 75 into the 115 to 120 range because the
mike was right on his neck. It went back down when he stopped talking. Clift told the inspector
31 FMSHRC 469

that the placement of the mike against his neck and beard was throwing off the results. (Tr. 27172, 281-82). Clift also testified that the Caterpillar truck that Rick White was driving was a
relatively new truck. (Tr. 270). Another similar Caterpillar truckwas operating that day doing
work that was noisier, but the dosimeter on the driver of that tmck did not register noise that was
close to the action level. (Tr. 272-74). The other truck drivers at the plant did not have beards.
(Tr. 277).
I find that this citation should be vacated. I credit the testimony of Mr. Clift that the
microphone for the dosimeter was rubbing against Rick White's beard and neck. Inspector
Timmons placed the microphone so close to his neck that his beard was rubbing against it. The
placement of the microphone on Mr. White immediately adjacent to his neck raises serious
questions as to the validity of the sample. The Handbook specifically requires that the
microphone be placed midway between the neck and the end of the shoulder. The Handbook
also states that if "unusual conditions arise during the sampling period then the sample may have
to be voided." (Ex. G-17 p. 3). Although Inspector Timmons' practice of placing dosimeter
microphones on the collar of miners he is testing for noise exposure may be acceptable in other
situations, I fmd that it was not appropriate when he tested Mr. White. The citation is vacated.
Nelson Quarries is, of comse, required to comply with the provisions of section 62.110.

II. APPROPRIATE CML PENALTIES
Section 1 IO(i) of the Mine Act sets out six criteria to be considered in determining
appropriate civil penalties. Seven citations were issued at Plant 1 on July 24, 2007, in addition
to the citation at issue in this case. (Ex. G-26). At Plant 2, 17 citations were issued on
September 5, 2007, in addition to the citations at issue in this case and 7 citations were issued in
2005. Id.· Plant 4 had a history of about 22 paid violations in the two years prior to November
19, 2007. Id. Nelson Quarries is a rather small operator and its quarries are small. All of the
violations were abated in good faith. Nelson Quarries did not establish that the penalties
assessed will have an adverse effect on its ability to continue in business. My gravity and
negligence findings are set forth above. If I did not discuss gravity or negligence with respect to
a citation, then the inspector's determinations are affirmed. Based on the penalty criteria, I find .
that the penalties set forth below are appropriate.

III. ORDER
Based on the criteria in section 1 lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties: ·
Citation No.

30 C.F.R. §

Penalty

56.14131(a)

$275.00

CENT 2008-285-M, Plant 4
6421702

31 FMSHRC 4 70

Citation No.

30 C.F.R. §

Penalty

56.1413l(a)

$100.00

56.1421 l(b)
56.18006

3,700.00
Vacated

CENT 2008-287-M, Plant 1
6421431
CENT 2008-334-M, Plant 2
6421143
6421144
CENT 2008-487-M, Plant 4
6421645
6421646

50.30(a)
50.30(a)

100.00
100.00

62.120

Vacated

CENT 2008-564-M, Plant 4
6421704
CENT 2008-'574-M, Plant 2
6421756

56.9300(a)

263.00

56.12032
56.20003(a)

308.00
460.00

TOTAL PENALTY

$5,306.00

CENT 2009-061-M, Plant 1
6321528
6321529

Accordingly, the citations contested in these cases are AFFIRMED, MODIFIED, or
VACATED as set forth above and Nelson Quarries, fuc., is ORDERED TO PAY the Secretary
of Labor the sum of$5,306.00 within 40 days of the date of this decision. Upon payment of the
penalty, these proceedings are DISMISSED. Payment shall be sent to: U.S. Department of
Labor, Mine Safety and Health Administration, P .0. Box 790390, St. Louis, MO 63179-0390.

Richard W. Manning
Administrative Law Judge
31FMSHRC471

Distribution:

Jennifer Casey, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202 (Certified Mail)
Ronald S. Goldade, Conference & Litigation Representative, Mine Safety and Health
Administration, P.O. Box 25367, Denver, CO 80225-0367 (First Class Mail)
Hillary A. Smith, Conference & Litigation Representative, Mine Safety and Health
Administration, P.O. Box 25367, Denver, CO 80225-0367 (First Class Mail)
Paul M. Nelson, P.O. Box 334, Jasper, MO 64755 (Certified Mail)

RWM

31FMSHRC472

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9964 /FAX: 202-434"9949

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner
v.
EXCEL MINING, LLC,
Respondent

April 2, 2009
CIVIL PENALTY PROCEEDING
Docket No. KENT 2008-122
A.C. No.15,.18839-128465

Van Lear Mine

DECISION
Appearances: Thomas Grooms, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the Petitioner;
Noelle Holladay True, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC,
Lexington, Kentucky, for the Respondent.
Before:

Judge Weisberger

Statement of the Case
This case is before me based upon a Petition for a Civil Penalty filed by the Secretary of
Labor, pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977 ("The
Act''), alleging that Excel Mining, LLC ("Excel"), violated 30 C.F.R. § 75.517, and seeking the
imposition of a civil penalty for this violation.
On August 2, 2007, Mine Safety and Health Administration(MSHA), inspector David
Stepp, inspected Excel' s Van Lear Mine, an underground coal mine. In the course of his
examination of a trailing cable of a roof bolter, he observed a damaged portion of the outer
insulation that was approximatelythree inches long, and a half to one inch wide. Three inner
insulated wires carrying 575 volts could be seen, but there was not any visible damage. Stepp
issued a citation alleging a violation of Section 75.5.17, supra, which, as pertinent, provides as
follows: "power wires and cables ... shall be insulated adequately and fully protected."
A hearing was held in the this matter on November 13, 2008. On February 23, 2009, the
Secretary filed Proposed Findings of Fact. Brief and Argument, and Excel filed a Post Hearing
Brief. On March 3, 2009 Excel filed a Reply Brief.

Findina:s of Fact and Discussion
At the hearing, the parties filed a set of ten stipulations. Respondent, inter alia,
stipulated to a violation of Section 517, supra. Thus, considering this stipulation and the record
in this case, I find that Excel did violate Section 517, supra.
31 FMSHRC 473

The citation at bar was issued as being significant and substantial. In general,
Commission law regarding significant and substantial is well established and is as follows:
A "significant and substantial" violation is described in
section 104(d)(l) of the Mine Act as a violation "of such nature as could
significantly and substantially contribute to the cause and effect of a coal
or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation
is properly designated significant and substantial "if based upon the
particular facts surrounding the violation there exists a reasonable
likelihood that the hazard contributed to will result in an iajury or illness
of a reasonably serious nature." Cement Division, National Gypsum Co.,
3 FMSHRC 825 (April 1981).

In Mathies Coal Co., 6 FMSHRC 1, 3-4(January1984); the
Commission explained its interpretation of the term ''significant and
substantial" as follows:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under National
Gypsum the Secretary of Labor must prove: (I) 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.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will
result in an event in which there is an injury." U S. Steel
Mining Co., 6 FMSHRC 1834, 1836 (August 1984). We
have emphasized that, in accordance with the language of
section 104(d)( 1), it is the contribution of a violation· to the
cause and effect of a hazard that must be significant and
substantial. U S. Steel Mining Company, Inc.,
6 FMSHRC 1866, 1868 (August 1984); U. S Steel Mining
Company, Inc., 6 FMSHRC 1573, 1574-75(July1984).

31FMSHRC474

The record clearly establishes, as set forth above, that the violative condition of the
damaged outer insulation of the cable exposed three inner insulated wires carrying 575 volts,
which contributed to the hazard of electrical shock or injury. Accordingly, I find that the first
and second factors set forth in Mathies, supra. have been met. The critical issue for resolution is
whether the third element of Mathies, supra. has been established i.e., the reasonable likelihood
of an injury producing event.
Excel argues, inter alia, that, as conceded by Stepp, a person would not receive any
electrical shock when all the.inner conductors are still insulated. In this connection, Excel cites
Stepp's testimony that he did not observe any damage to the inner conductors. Excel also cites
the testimony of Michael Hurley, Excel's shift foreman, that with continued normal mining
operations in the entry at issue, the damaged portion of the cable would not have been handled.
In U.S. Steel, 6 FMSHRC 1573{July 1984), the operator challenged the decision of the
judge that a gash in the outer insulating jacket of a trailing cable in addition to being a violation
of Section 517, supra, was also significant and substantial. The Commission, in affirming the
decision of the judge with-regard to significant and substantial held as follows:
The administrative law judge considered those mining conditions to which
the damaged cable predictably would be exposed. He found that both the
outer and inner layers of insulation provided important protection against
electrical shock. These findings are fully supported by the testimony of
the MSHA inspector and the operator's witness, each of whom stated that
the mining environment is harsh and that damage to the outer layer of
insulation weakened the protection afforded by the inner layer.
U.S. Steel, supra, at 1575.
In Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1284-1286(December10, 1998),
an issue presented to the Commission was whetheraviolation of 30 C.F.R. § 75.604(b) 1 i.e., that
splices on a cable were not "effectively insulated" to exclude moisture, was significant and
substantial. The operator therein argued that the third element of Mathies, supra, was not
established by the Secretary, since there were not any exposed leads, and that the Secretary
failed to ptove "that anyone was or would be exposed to electrical current by handling the cable."
20 FMSHRC, supra, at 1285. It is significant that in rejecting this argument, the Commission
relied on U.S. Steel, supra, and analyzed the holding in U.S. Steel, supra, as follows:" ... In U.S.
Steel Mining Co., [citations omitted] we held that four inches of exposed wire constituted an
S&S violation, despite lack of direct evidence that exposed wires were not insulated." 20
FMSHRC, supra, at 1286. The Commission also cited U.S. Steel supra. as "recognizing that a
tear in the outer jacket of a cable significantly compromises the cable's protective function." (Id.)
(emphasis added)

1

Section 75.604(b) requires that permanent splices in trailing the cables must be
"[E]ffectively insulated and sealed so as to exclude moisture;".
31 FMSHRC 475

The Commission, in applying U.S. Steel. supra, to the evidence of record, cited the
testimony of the inspector who "emphasized the danger ofthese situations [his inability to see
bare conductors inside the open splice of the cable], stating that 'there's no way of knowing
[whether there are holes in the insulation surrounding the wire within the cable]. '"(Id). The
Commission also noted the inspector's testimony that "even if no copper wires are exposed, there
is a danger of electrocution, because '[m]uch like an extension cord with a naked place you may
not be able to see the naked place, but you grab a hold of it and you'll know it."'(Id.).
The Commission concluded that the record supported the judge's finding that the
violation was S&S, as· it was reasonably likely to contribute to a serious electrical injury. 2 ·
In Harlan, supra, the Commission was also· presented with the specific issue of whether
the third Mathies, element was established regarding a violation of Section 517, supra. i.e., a
visible rupture in the outer jacket of the training cable of a bolter which exposed the inner
insulated conductors. The Commission held that the operator's argument thatreasonable
likelihood of injury cannot be established if there is not direct evidence of damaged interior
conductors or proof of the existence of exposed uninsulated wire" ... is inconsistent with
Commission precedent." Harlan, supra, at 1287. (Emphasis added) In this connection, the
Commission noted that in U.S. Steel, supra, where the parties agreed that the outer jacket had
ruptured, but that there was not any evidence that the inner insulation was compromised, "we
held that the gash in the outer jacket of the trailing cable constituted an S&S violation of section
517, in part because in the 'harsh environment of a coal mine' a tear in the outer jacket weakens
the protection afforded by the inner insulation, 'contribut[ing] significantly and substantially[] to
the cause and effect of a safety hazard' Id. at 1574-75." (Id)
In Harlan, supra, the Commission noted that the condition of the cable at issue i.e., the
outer jacket was torn but there was not any direct evidence that the inner insulation was
damaged, was similar to the condition of the cable at issue in U.S. Steel, supra. The Commission
found U.S. Steel, supra, persuasive in the matter before it, and affirmed the judge's determination
ofS&S.
In the case at bar, as in Harlan, supra, there is not any dispute that the outer jacket of the
cable, which constituted a layer of insulation between the miners and a potentially fatal 550 volt

2

Excel argues that the case at bar is to be distinguished from Harlan, supra, ina.Smuch as
there was not any evidence presented herein that the cable at issue was lying in water. This
difference by itself, is not sufficient to distinguish facts in the instant proceeding from Harlan,
supra. In Harlan, supra, the Commission initially cited other facts of record supporting the
Judge's decision of significant and substantial which appear to be the main bases for the
Commission's holding, and are equally applicable to the case at bar (The inspector's testimony
that although he could not see into the open splice there was no way of knowing whether there
were any holes in the insulation surrounding the wire within the cable. Also, the inspector's
testimony that even if no inner wires are exposed there is a danger of electrocution).
31FMSHRC476

current, was tom. 3 I find that the physical condition of the cited cable was similar to that of the
cables atissue in Harlan, supra, and US. Steel, supra, whichwere found to be S&S, in light of,
inter alia, the harsh environment of a coal mine. Since l am bound to follow established
Commission case law, I find, based on US. Steel, supra, and Harlan Cumberland, supra, that the
violation herein was significant and substantial. 4
Penalty
The record does not contain any evidence that Excel's history of violations is such as to
have either a positive or negative effect on the level of penalty to be imposed. The parties
stipulated that the penalty proposed by the Secretary is appropriate to the size of Excel' s
business, and will not affect its ability to continue in business.
The Secretary argues that the level ofExcel's negligence was moderate given the fact that
the damage to the cable was obvious and that the history of violations of Sections 75.517,supra,
and 75.604, supra, was "very'' significant. 5 Excel did not impeach or contradict Stepp's
testimony that the damage was obvious. However, it is significant that Stepp indicated that he
noted the dainage as he was running his hand over the cable. There is not any evidence as to
when the cable had last been touched by Excel's employees or agents. Nor is there any evidence

3

In addition, as set forth in the citation at issue, which was admitted in evidence, the
bottom of the section was damp. Excel did not rebut or contradict this statement. In this
connection, I note the following testimony by Stepp regarding the significance of this condition
as follows: "it would be more easily to conduct electricity through the body into the ground."
(Tr. 42).
I also note the inspector's testimony that the cable would be handled by the scoop
operator in order for the scoop to travel under it. In addition, according to Stepp, one the bolters
would have to handle the cable at issue to move it to one side to allow the roof bolting machine
to be moved. Thus, in normal operations miners would be in physical contact with the cable.
4

Excel, in arguing that it has not been established that the violation was significant and
substantial, relies on Lone Mountain Processing, Inc., 29 FMSHRC 557 (June 2007) and Oak
Grove Resources, LLC, 29 FMSHRC 1089 (November 2007). I note, that Lone Mountain,
supra, a decision I issued, held that a violation under 30 C.F.R. § 75.604(b) was not significant
and substantial, and Oak Grove Resources, supra, a decision by a fellow commission judge, also
found a violation therein ofSection 75.360(b), to be non:.significant and substantial. However,
both these cases are distinguishable from the instant case on their facts. Further, to the extent
that they reach a different conclusion from the case at bar. I choose not to follow them for the
reasons set forth above.
5

1 note that the Assessed Violation History Report for Excel indicates that from August 2,
2005, through August 1, 2007, Excel received 15 citations for violations of section 75.517,
supra, and 13 citations for violations of Section 75.604(b), supra. (Government Exhibit I).
31FMSHRC477

in the record that prior to its being cited, the damage to the cable was obvious to visual
observation. Further, there is not any evidence in the record as to when the cable was damaged,
especially in relation in time to the inspection by Stepp. Thus, it cannot be concluded that Excel
had knowledge or notice of the cited condition prior to the inspection.
The parties stipulated that Excel demonstrated good·faith in attempting to achieve rapid
compliance after notification of the violation.
For the reasons set forth above, I find that the gravity of the violation was high as it could
have resulted in a fatality.
Considering all of the above factors set forth in Section l IO(i) of the Act, and placing
emphasis on the high level of gravity, I find that a penalty of $1,657 is appropriate.

ORDER
It is Ordered that; within thirty days ofthis decision, Excel pay a penalty of $1,657 for
the violation of 75.517, supra.

~~~.A11:."'.1isb~
Administra ·ve Law Judge
202-434-9940

Distribution:
Tom Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite
230, Nashville, TN 37219-2456
Noelle Holladay True, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 2333 Alumni Park
Plaza, Suite 310, Lexington, KY 40517

/Ip

31FMSHRC478

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

April 15, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS

Docket No. WEYA 2008-471
A.C. No. 46-04168-134618
Docket No. WEYA 2009-252
A.C. No. 46-04168-159504

v.
WOLF RUN MINING CO.,
Respondent

Sentinel Mine

DECISION APPROVING SETTLEMENT
Before: Judge Feldman
These proceedings are before me based on petitions for assessment of civil penalty
filed pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, as amended,
("Mine Act"), 30 U.S.C. § 815(d). These matters concern Order No. 7101472 in Docket
No. WEYA 2008-471 and Order No. 7101465 in Docket No. 2009-252 that allege violations
of 30 C.F.R. § 75.220(a)(l)ofthe mandatory safety standards governing roof control plans.
The Secretary asserts that these two violations are attributable to Wolf Run Mining Company's
("WolfRun's") unwarrantable failure. Section 75.220(a)(l) provides:
Each mine operator shall develop and follow a roof control plan, approved.
by the District Manager, that is suitable to the prevailing geological
conditions, and the mining system to be used at the mine. Additional
measures shall be taken to protect persons if unusual hazards are
encountered.
The initial $163,500.00 proposed penalty included a proposed assessment of
$151,600.00 for the violation in Order No. 7101472 that was designated by the Secretary as
"flagrant" in nature. The cited condition occurred when a crosscut had been advanced 43 feet
beyond the last row of permanently installed roof support in contravention of the approved roof
control plan which limited advancement to 30 feet beyond the last full row of permanent support.
The term "flagrant violation" was introduced in section l IO(a)(l) of the Mine Act,
as amended by the Mine Improvement and New Emergency Response Act of2006
("Miner Act"), 30 U.S.C. § 820(a)(l ). A violation is deemed flagrant under this statutory
provision if there is"... a reckless or repeated failure [by the mine operator] to make reasonable

31 FMSHRC 479

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." Id. Under section 1 lO(a)(l) flagrant violations may be assessed a civil penalty as high
as $220,000.00.
The Secretary now has filed a motion to approve a settlement agreement and to
dismiss these matters. 1 The settlement terms include reducing the proposed penalty for
Order No. 7101472 from $151,600.00 to $45,000.00. Based on this reduction, the parties have
agreed to reduce the total civil penalty from $163,500.00 to $56,900.00 for the two orders in
issue. The substantial reduction in penalty is based on the removal of the "flagrant"
classification in Order No. 7101472. Although the "flagrant" allegation was initially based on
WolfRun's alleged repeated violations of several different provisions of its roof control plan2,
the Secretary now has concluded that WolfRun's negligence, while high, does not rise to a level
of repeated misconduct that justifies a "flagrant" classification.

I have considered the representations and documentation submitted in these matters and
I conclude that the proffered settlement is appropriate under the criteria set forth in Section 11 O(i)
of the Act. WHEREFORE, the motion for approval of settlement IS GRANTED, and
IT IS ORDERED that the respondent pay a civil penalty of $56,900.00 within 30 days of this
order in satisfaction of the two orders in issue. Upon receipt of timely payment, the captioned
civil penalty cases ARE DISMISSED.

Jerold Feldman
Administrative Law Judge
Distribution:
R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1340,
401 Liberty Avenue, Pittsburgh, PA 15222
·
Gayle M. Green, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center,
Suite 630E, 170 Independence Mall West, Philadelphia, PA 19106-3306
/rps

1

These docket proceedings concern Order Nos. 7101472 and 7101465. The parties have
also agreed that Wolf Run will pay the proposed assessment of $6,100.00 for Order No. 7101363
that is not a subject of these proceedings.
2

For example Order No. 7101472, initially designated as flagrant, cited a violation of the
advancement provision of the roof control plan, while Order No. 7101465 cited a violation of the
roof control provision that rib corners must be secured with three bolts on five foot centers.
31 FMSHRC.480

ADMINISTRATIVE LAW JUDGE ORDERS

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

April 21, 2009
.

HOPKINS COUNTY COAL, LLC,
Contestant

.

.

CONTEST PROCEEDINGS
Docket No. KENT 2009-820-R
Citation No. 6694904; 0312312009
Docket No. KENT 2009-821-R
Order No. 6694905; 0312312009

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

Docket No. KENT 2009-822-R
Citation No. 6694906; 0312312009
Mine ID 15-18826
Elk Creek Mine

ORDER STAYING PROCEEDINGS
ORDER REQUESTING SECRETARY'S COUNSEL TO REPORT
AND
.
.
ORDER DIRECTING COUNSELS TO SUBMIT STIPULATION IF NECESSARY
These are contest proceedings arising under section 105(d) of the Federal Mine Safety
and Health Act of 1977 (30 U.S.C. § 815(d)) (Mine Act or Act), in which Hopkins County Coal,
LLC ("HCC") challenges the validity of two citations and one order of withdrawal issued to the
company at its Elk Creek Mine, an underground coal mine located in Hopkins County, Kentucky.
Citation No. 6694904 (Docket No. KENT 2009-820-R) alleges HCC violated section
103(a) of the Act, when, on March 23, 2009, it:
failed to produce/provide records requested by MSHA
special investigators during the performance of investigative duties under section 105(c) of the Act.[1] On February

1

Section 105(c)(2) of the Act (30 U.S.C. § 815(c)(2)) requires the Secretary"[u]pon
receipt" of a miner's discrimination complaint to "forward a copy of the complaint to the ...
[operator] and cause such investigation to be made as ... [the Secretary] deems appropriate."
Section 105(c)(2) further states, "If upon such investigation, the Secretary determines that ...
[the operator has discriminated against the complainant, the Secretary] shall immediately file· a
complaint with the Commission." Under section 105(c)(3) the Secretary must reach a
determination whether discrimination occurred within 90 days of the receipt of the miner's
31 FMSHRC 481

23, 2009(,] written requests for specific documents were
given to the operator's legal counsel ... as directed by
the mine operator.
Sections 103(a) and [103](h) of the Act [require] the
operator to furnish information requested by the
Secretary that she has determined necessary in
carrying out the provisions of the Act.[2]
In issuing the citation, MSHA Special Investigator Kirby Smith gave HCC 45 minutes, or
until 9:00 a.m., to comply. See Citation No. 6694904. At 9:00 a.m. the special investigator
determined HCC had not complied by providing all of the items requested, and he issued Order .
No. 6694905 (KENT 2009-821-R) pursuant to section 104(b) of the Act to the company. 3 30
U.S.C. § 814(b).
In issuing the order, the special investigator stated:
The operator[' s] agent ... refused to comply with
... Citation No. 6694904 requiring the operator
to produce/provide records requested by MSHA.
Special Investigators during the performance of
their official duties ininve$tigation activities
under [section] 105(c) of the Mine Act.
Order No. 6694905.
After five minutes passed and the requested documents still were not produced, at 9:05
a.m. Smith issued another section 104(a) citation to HCC for continumg to work in the face of

complaint. 30 U.S.C. § 815(c)(3).
2

Section 103(a) authorizes the Secretary to "make frequent inspections and investigations
... for the purpose of determining whether there is compliance with the mandatory
health or safety standards or with any citation, order, or decision ... or other requirements of
this Act." 30 U.S.C. § 813(a). Section 103(h) in pertinent part requires an operator to ''provide
such information, as the Secretary ... may reasonably require from time to time to enable him to
perform his functions under this Act.'' 30 U.S.C. § 813(h).
3

Section 104(b) of the Act provides for the issuance of an order when an inspector or
other authorized representative of the Secretary finds that a violation described in a citation
issued under section 104(a) of the Act has not been totally abated within the time originally fixed
and that the time should not be further extended.

31 FMSHRC 482

the order. Citation No. 6694906 (KENT 2009-822-R) states:
The operator[']s agent continued to deny to
produce/provide the records requested by [the]
MSHA Special Investigator after the reasonable
time for abatement had expired on ... 104(a)
[C]itation No. 66904904. The Operator[']s
agent continued to refuse to provide the requested
records after ... 104(b) withdrawal [O]rder No.
66904905 was issued.
This citation is issued for continuing to operate
in [the] face of a withdrawal order.
Citation No. 6694906.
In issuing the citation, the special investigator indicated it should be abated by 10:00 a.m.
Citation No. 6694906. When it was not abated, HCC became subject to the provisions of section
1IO(b)(1) of the Act, which provides that"[ a]ny operator who fails to correct a violation for
which a citation has been issued under section 104(a) within the period permitted for its
correction may be assessed a civil penalty of not more than $5,000 fot each day during which
such failure or violation continues." 30 U.S.C. § 820(b)(l).
THE CONTESTS AND THE PARTIES' PLEADINGS
On the same day the citations and order were issued, HCC filed its subject contests with
the Commission.4 HCC maintained, inter alia, that the conditions cited did"not fall within the
purview of the Mine Act" and that the citations and order were issued for conditions "not
violative of the [Act]." Notice of Contest (March 23, 2009). Due to the penalty strictures of
section 1 IO(b)(l), HCC moved for expedition of the proceedings. In its motion to expedite, the
company noted that among the materials requested by MSHA were the "personnel files of all
employees at the Elk Creek Mine who were disciplined or terminated during the period of
January 1, 2004 - January 20, 2009 for engaging in the conduct which led to the termination of
Robert Gatlin[, the miner who filed.the original complaint with MSHA]." Mot. For Expedit'n of
Proceedings 1 (March 23, 2009) (quoting MSHA letter ofFebruary 23, 2009 Carl E. Boone, II,
MSHA District I 0 Manager to Marco M Rajkovich, counsel to HCC). HCC objected that the
requested files were "not documents required to be recorded and maintained by the operator
pursuant to the Mine Act;" that "release of employees' personnel files would violate the
employees' rights to privacy and confidentiality;" that "[t]he request [was] unduly burdensome
and ... tantamount to harassment in the overly broad, sweeping request for all files covering a

4

Although only one contest was filed, it pertained to all three enforcement actions, and the
single contest was docketed as three separate cases.
31 FMSHRC 483

five-year period." Id. 2 (emphasis in original). HCC stated, "Given that the issue is a legal one,
... [HCC] does not anticipate the necessity for a full evidentiary hearing and, given the nature of
the Order and Citations subjecting ... [HCC] to severe penalties, ... [HCC] requests that the
issue be dealt with via teleconference today. or as soon thereafter as a telephonic hearing can be
scheduled." Id.
On March 24, the matter was assigned to Commission Administrative Law Judge
Jacqueline Bulluck, who at the time was on official duty in Pennsylvania. Shortly thereafter, the
Secretary filed an opposition to HCC's request for expedition. She also filed a motion for
summary decision. HCC then filed a reponse and a cross-motion for summary decision, which
was followed by the Secretary's response. In her opposition and motion for summary decision,
the Secretary set out in some detail her version of the events that engendered the citations and
order. The Secretary's chronology was not significantly disputed by HCC.
EVENTS LEADING TO THE CONTESTS
The Secretary noted the alleged discriminatee, Robert Gatlin, filed a complaint with
MSHA on January 20, 2009. In the complaint, Gatlin, who was fired on January 8, alleged he
was discharged in violation of section 105(c) of the ActbyHCC. 5 30 U.S.C. § 815(c). The
company was notified of the January 20 complaint by letter that same day. 6 On January26, the
MSHA district manager advised HCC by letter that MSHA wanted to interview five named
miners "as part of ... [its] investigation of ... [Gatlin's] [d]iscrimination [c]omplaint ... during
the fact-finding segment of this investigation." Sec. 's Mot. for Sum. Decision 2, Exh. 2. The
district manager requested HCC contact one ofMSHA's special investigators by February 6

5

ln the complaint Gatlin summarized the alleged discrimination he suffered by stating:
I feel that I was unfairly terminated due to being
·directed to do more than my regular job duties
on a daily basis, which I would do on weekends
for extra pay. I also feel that the comment about
the union played a part in my being discharged.
I would like my job back, any negative comments
deleted from my personnel file and backpay for
the time I've been off. I feel that my name has
been black balled in the mining industry around
here and they will not hire me.

Sec.'s Mot. for Sum. Decision (March 26, 2009), Exh. 1 at 2.
6

ln addition to notifying the company of the January 20 complaint, the letter stated that
MSHA Special Investigator Kirby Smith would contact the company "during the fact-finding
segment of this investigation." Sec.'s Mot. for Sum. Decision (March 26, 2009), Exh. J.
31 FMSHRC 484

"with a convenient date and time to conduct these interviews." .Id. By letter dated February 6,
counsel for HCC responded that the letter.of January 26 had not been sent to him or to the legal
department of the company as counsel previously requested. Counsel renewed his request with
regard to all further contact concerning any investigations. Counsel also refused to arrange the
interviews requested by the distridmanager. Counsel stated, "[W]e are not in a position to
arrange any interviews yet because we fail to grasp, and would appreciate your identifying, what
the alleged protected activity is under this Mine Act discrimination complaint. If the protected
activity can be identified, I'm confident my client will give further consideration to your
request." Id., Exh. 3.
On February 23, the district manager sent HCC's counsel the letter referenced in Citation
No. 6694904. In it MSHArequested:
1. Robert Gatlin' s personnel file[;]
2. Any documents showing disciplinary action that
was taken against Robert Gatlin by [HCC;]
3. Documents showing any hazards or potentially
hazardous conditions, including but not limited to
pre-shift, on.:.shift and conveyor belt examination
hooks at the ... [m ]ine for the period July l, 2008
- January 31, 2009[;]
4. Any employee handbook or employee manual
that was used by [HCC] from January 1, 2004 January 31, 2009[;]
5. The personnel files of all employees at the ...
[m ]ine who were disciplined, reprimanded, or
terminated during the period of January 1; 2004
- January 20, 2009 for engaging in the conduct
which lead to the termination of Robert Gatlin.
6. All documents relied upon by [HCC] in its
decision to terminate Robert Gatlin.
Sec.'s Mot. for Sum. Decision (March 26, 2009), Exh. 4. MSHA asked that the documents be
given to the special investigator by the close of business on March 2, 2009.
On March.2, in a letter to the district manager, counsel for HCC stated he regretted not
responding sooner, but the letter of February 23 was not received by counsel until Thursday,
February 26, when counsel was out of the office. In the March 2 letter counsel again asserted the

31 FMSHRC 485

complaint did not state a protected activity, and counsel renewed his request that MSHA clarify.
"how ... [the complaint] states a claim under the Mine Act." Sec. 's Mot. for Sum. Decision
(March 26, 2009), Exh. 5. Counsel noted the record books requested in the February 26 letter
were available for review at MSHA's convenience, and counsel stated he would respond to the
request for the other items once he discussed the request with HCC officials. Id.
On March 17, the district manager again wrote to counsel, advising him that MSHA's
special investigators would be at the mine on March 23 and that they intended to review and
copy the specified examination books. The district manager asked counsel to "remind [his]
client of its obligation to cooperate in [the] investigation and produce the records that have been
requested." Sec. 's Mot. for Sum Dec. (March 26, 2009), Exh~ 6. The letter also requested HCC
have "all documents listed in the February 23 ... letter available for inspection ... on March
23." Id.
On March 18, counsel for HHC wrote to the district manager, supplementing counsel's
response of March 2. In the March 18 letter, counsel again requested "clarification regarding
how [Gatlin's complaint] states a claim under the Mine· Act." Sec.'s Mot. for Sum. Decision
(March 26, 2009), Exh. T. Counsel asserted one ofHCC's rights under the Act "is to know what
it is the agency is investigating." Id. Counsel also responded in detail to the items requested by
MSHA. With regard to Gatlin's personnel file, counsel stated that; in view of the confidential
nature of the contents of the file, the agency should provide HCC with a waiver and release from
Gatlin. Sec.'s Mot. for Sum. Dec. (March 26, 2009), Exh. 7 With regard to the documents
showing disciplinary action taken against Gatlin, counsel attached them to his letter. Id. With
regard to the pre-shift, on-shift, and conveyor belt examination books for July 1, 2008 - January
31, 2009, counsel advised the district manager, as he had in his March 2 letter, that the record
books were available for review at the mine at MSHA's convenience.Id. With regard to a
manual or handbook that employees used at the mine from Janaury 1, 2004 - January 20, 2009,
counsel attached the material to his letter. Id. With regard to the personnel files of employees
disciplined, reprimanded or terminated between January l, 2004, and July 20, 2009, "for
engaging in conduct which led to the termination of ... Gatlin," counsel stated the company
objected to the request, ••given that no protected activity exists in this case, that the company does
not release personnel files as requested absent consent from the individual employee, and that
otherwise, no employee other than ... Gatlin was disciplined, reprimanded or terminated for
engaging in conduct which led to his own termination." Id. Finally, with regard to the
documents relied upon by HCC in its decision to terminate Gatlin, counsel referred MSHA to the
documents he attached in response to the government's request for "documents showing
disciplinary action that was taken ... against Gatlin" and to the employee handbook. Id.
After counsel's March 18 response, the issues dividing the parties appeared to have been
MSHA 's request for the personnel files of Gatlin and MSHA' s request for the personnel files of
employees disciplined, reprimanded or terminated "for engaging in conduct which led to the
termination of ... Gatlin." Sec. 's Mot. for Sum. Decision {March 26~ 2009), Exh. 4. The
impasse over the files led the district manager to again write to the company's counsel. In a letter

31 FMSHRC 486

dated March 20, the district manager stated that HCC "refuse[d] to produce many documents ...
[MSHA] requested[,] [s]pecifically .. ; Gatlin's personnel file and the personnel files of any
other employees who were terminated for the reason ... Gatlin was terminated." Id., Exh. 8.
The district manager further stated he expected the files to be provided to the special
investigators on March 23, and he added "we note the tactics used by the company ... to delay
this investigation [and, w ]e also note the repeated refusals of the company to provide documents
and information to which MSHA is clearly entitled under the Act." Id.
On March 23, counsel for HCC responded, terming "unfounded" the district manager's
allegations of the company's "repeated refusals to produce documents and information to which
MSHA is 'clearly entitled under the Act."' Sec.' s Mot. for Sum. Decision. (March 26, 2009),
Exh. 9. Counsel again advised the district manager that Gatlin's file would be given to the
special investigators once MSHA obtained a consent and release form from Gatlin. Counsel did
not mention the request for other files. However, counsel did assert, ifMSHA could not inform
HCC of Gatlin's alleged protected activity, then "the agency [had] no case to investigate, no
jurisdiction, no entitlement and no basis upon which to make any request." Id.
When Kirby Smith-and another special investigator arrived at the mine at 8:00 a.m. on
March 23, they reviewed the conveyor belt examination book, apparently the only book in which
they were interested. They also asked for the personnel files, which the company refused to
produce. Kirby Smith then issued Citation No. 6694904, Order No. 6694905, and Citation No.
6694906 in quick succession, and HCC immediately filed its contests...

PROCEEDINGS FOLLOWING THE CONTESTS
Judge Bulluck was assigned the cases the next day, and she promptly initiated a
conference call with counsels. A few days after the March 24 call, HCC sent numerous
documents to MSHA via fax, and MSHA abated the order and subsequent citation. 7
In the meantime, because of the difficulty of contacting the parties and receiving
facsimile copies at a remote duty station, the matter was reassigned from Judge Bulluck to me.

7

According to counsel for HCC's letter of March 26, regarding "Supplemental Document
Production to Discrimination Complaint,'.' submission of the supplemental documents was based
on "oral clarifications as to the scope of the request made by counsel for the Secretary in the
March 24 [conference call]." Letter ofMarcoRajkovich, Jr., Esq., Counsel for HCC to Teresa
Ball, Esq., Associate Regional Solicitor (March 26, 2009). The documents submitted by HCC
included Gatlin's personnel file (released with the caveat HCC be held blameless should the
personal information contained in the file enter the public domain) and the personnel files (with
personal information redacted) of four employees. Counsel also stated it was not until the
conference call of March 24 that counsels for MSHA made HCC aware that MSHA was seeking
the "files of employees who were disciplined for engaging in conduct which HCC claims lead to
the termination of Gatlin." Id. 2 (emphasis in original).
31 FMSHRC487

In a conference call on March 27, the parties agreed abatement of the order and citation, which
apparently occurred on March 26, ending HCC' s continuing liability under section 1 IO(b )( 1) of
the Act for daily penalty assessments. 30 U.S.C. § 820(b )(I)'. Counsels also reiterated their belief
resolution of the contests was appropriate for summary decision. Counsel for the Secretary
stated she intended to" file a response to HCC's cross-motion, and I advised the parties, once I
received it, I would allow counsels ten days to file any additional arguments they wished to
make. 8 Also, counsels led me to understand the abatement of the order and citation obviated the
need to expedite the proceedings. Nonetheless, both sides indicated they wanted the issues
decided forthwith. Atthe time, I concurred. On April 2, I issued an order denying HCC's
motion to expedite, but stated I would decide the issues promptly; Denial of Motion to Expedite
(April 2, 2009). Following this, counsel for the Secretary filed her response to HCC's cross
motion for summary decision.

ARGUMENTS FOR SUMMARY DECISION
THE SECRETARY
The Secretary argues the citations and order were issued because ofHCC's intentional
refusal to produce documents to which the Secretary"'wasclearly entitled." See's Mot. for Sum.
Decision 1. She asserts her actions in issuing the three enforcement actions "were within her
investigative and enforcement authority and correct as a matter of law." Id. 2.
The Secretary insists section 103(a) {authorizing the Secretary to make "frequent .. .
investigations ... for the purpose of ... determining whether there is compliance with .. .
requirements of this Act"); section 103(h) (requiringuperators to "provide such information, as
the Secretary ... may reasonably require from time to time to enable him to perform his
functions under this Act); and section 108 (allowing the Secretary to seek civil relief when an
operator does not, inter alia, "permit access to, and copying of, such records as the Secretary ...
determines necessary to carry out the provisions of [the] Act") require HCC to produce the
requested files and information. She asserts, when HCC failed to produce the materials, the
Secretary had the discretion to proceed against the company either by issuing the subject citations
and order, or by seeking relief in federal district court under section 108 of the Act (30 U.S.C. §.
818), or by proceeding on both tracks. Sec.' s Mot. for Sum. Decision 6-7.
The Secretary asserts HCC cannot refuse to provide the information because the Secretary
lacks a waiver and release from Gatlin and/or the other employees. According to the Secretary,
HCC bears the burden of showing the Secretary's investigative authority under section 103(a)
and section 103(h) of the Act is subject to any statutory exception requiring the Secretary to
obtain waivers and releases, and HCC has not done so. Sec. Mot. for Sum. Decision 7.

8

Counsel for the Secretary's Response was received on April 7. See Order Governing
Final Submissions (April 7, 2009). On April 17, 2009, HCC filed a Supplemental Response for
Summary Decision ("HCC's Sup. Resp.").
31 FMSHRC 488

Alleging that HCC has engaged in "dilatory tactics," the Secretary notes, although it had
requested interviews with five specific employees on January 26, HCC had, according to the
Secretary, "refused to permit these interviews." Sec. 's Mot. for Sum. Decision 8. The Secretary
asserts HCC's motive is to delay and obstruct the Secretary's investigation by refusing to provide
the information to which the Secretary lawfully is entitled. 9 Id. 9.
Finally, the Secretary argues she "has only sought ... [Gatlin's] files and the files of
those employees and former employees whom [HCC] has 'disciplined, reprimanded or
terminated ... for engaging in the conduct which led to the termination of ... Gatlin"' Sec.' s
Mot. for Sum. Decision 9 (quoting MSHA Letter of February 23, 2009, Carl E. Boone II, District
I 0 Manager to Marco M Rajkovich, Counsel to HCC). She describes her requests as "clear,
narrowly drawn and relevant." Id. In summarizing her'position, the Secretary states she must
determine whether Gatlin was treated differently than other similarly situated employees, and that
HCC cannot avoid production of lawfully demanded records by making "unsupported and .
baseless demands for waivers and releases designed for the purpose of impeding the Secretary's
investigation." Sec.'s Mot. for Sum. Decision 10.

HCC asserts Gatlin was.terminated on: January 8, 2009, for insubordination, because he
refused to conduct a required pre-shift examination on January 5. According to HHC, Gatlin
refused because he claimed he was "due extra pay." HCC's Resp. to Sec.'s Mot. for Sum.
Decision and Cross-Mot. for Sum. Decision ("HCC's Resp.") 2.
HCC acknowledges receipt of a January 26 letter from MSHA to its General Manager
requesting interviews with specified HCC personnel. HCC states it previously asked that all
requests for information of an investigative nature be directed to its legal department. As a result
of the misdirection of the request, on February 6, HCC again asked that inquiries relating to
MSHA investigations be sent to its legal department. The company also requested MSHA clarify
the nature of the alleged discriminatory conduct. HCC states two weeks passed before MSHA
responded. It notes in that response, dated February 23, MSHA ignored HCC's request for
clarification and, among other things, requested the disputed personnel files. HCC's Resp. 2-3.
HCC asserts it was not until the March 24 conference call with Judge Bulluck that it
understood what it thinks MSHA wanted, that the requested documents were "presumably ...
[those] related to HCC's reason for termination of Gatlin, as may be applicable to other
similarly disciplined employees, and apparently not documents related to Gatlin's reason for

9

However, the lack of interviews with the employees does not appear to have played a
role in the issuance of the contested citations and order, since they were abated when HCC
produced copies of the requested files, and as it is unclear to me ifthe employees have yet been
intereviewed. Indeed, it is unclear ifMSHA's request in this regard is outstanding.
31 FMSHRC 489

why he thinks he was terminated." 10 HCC's Resp. 4 (emphasis in original). With this
understanding, it produced over 106 pages of documents in response to MSHA' s request. Id.
HCC argues the contested citations and order must be vacated because MSHA is not
entitled to the personnel files it requested. According to HCC, the files are protected by the
Fourth Amendment of the Constitution and involve confidentiality and privacy concerns of
HCC's employees. Turning them over without releases could expose HCC to litigation. Id. at 56. The company insists the government does not have a right to "rummage in any wholesale way
or to initiate a general search" for records and documents not required to be kept under the Mine
Act. Jd; at 6 (quoting Youghiogheny and Ohio Coal Co. v. Morton, 364 F.Supp.48, 51, n.5 (D.
Ohio 1973)). HCC also points to Commission Administrative Law Judge James Broderick's
decision in Sewell Coal Co., 1 FMSHRC 864 (Feb. 1979) in which, according to HCC, Judge
Broderick recognized constitutional difficulties prevented MSHAfor validly issuing a citation
and order when Sewell refused to allow MHSA to inspect personnel files containing accident,
injury and illness records and medical and compensation records in order to determine Sewell's
compliance with Part 50 reporting requirements. 11 Id. at 6-7.
HCC asserts the Commission also recognized in Peabody Coal Co., 6 FMSHRC 183
(February 1984), while records required to be kept under the Mine Act must be available to
MSHA, and while an operator has no realistic expectation of privacy for such records, the same
is not true if sought-after files contain data not required to be maintained by the Mine Act as well
as data open to MSHA. HCC's Resp. 8. HCC emphasizes that MSHA is requesting the entire
files of its employees, and HCC insists the government is not entitled to the entire contents of the
files without a warrant. Id.; see also HCC's Sup. Resp. 5.
Summarizing its objections, the company again takes issue with the wording of the
February 23 request. According to HCC, MSHA actually sought "files evidencing that other
employees have been disciplined for similar reasons as the reason that HCC claims it disciplined
Gatlin." HCC Resp. 10. Such evidence, if it existed, would support HCC's affirmative defense,
it would not support the existence of a valid claim. HCC states MSHA should have requested

1

°I interpret this to mean HCC did not respond concerning the personnel files other than
Gatlin's, because it thought MSHA wanted the files of those employees who were terminated for
the same reason Gatlin believed he was fired~ that HCC was unable to tell from Gatlin's
complaint why Gatlin thought he was let go, and that this was one of the reasons why the
company made repeated (and unanswered) requests for clarification of Gatlin' s complaint.
11

HCC notes its sought-after files contain social security numbers, bank names, account
numbers, and health information of its employees and their dependents, all of it information to
which MSHA is not entitled without a warrant. HCC' s Resp. 9-10. HCC also notes it ultimately
released all information relating to Gatlin, but only after the Secretary assured HCC that Gatlin
did not object to his file being produced in its entirety.

31 · FMSHRC 490

"personnel files of individuals who engaged in the same conduct as Gatlin, but were not
disciplined." Id.; see also HCC's Sup. Resp. 5. HCC concludes by stating that MSHA and
Gatlin have no information any employees have been treated disparately, and it asserts Gatlin and
the Secretary are engaged in a fishing expedition to see if they can uncover a case without any
reasonable cause to believe that discrimination actually has occurred. Id. at 10-11.

SECRETARY'S RESPONSE
The Secretary responds that HCC's contests are "without merit and there are no
constitutional matters at issue." Sec.'s Resp. (April 3, 2009) at 1.

DEFERRAL OF RULING
As I previously noted, in denying HCC's motion to expedite the proceedings, I stated,
"[T]he important issues raised in the parties' . . . cross-motions ... will be decided promptly."
Denial of Mot. to Expedite (April 2,·2009). However, after a more complete consideration of the
facts and the arguments, I conclude there is no need to rush. The Secretary must propose
penalties for the company's alleged failure to produce the requested materials and for the
company's failing to correct the alleged violation. 30 U.S.C. §§ 820(a), 820(b). In the
meantime, the contested.enforcement actions have been abated, and the Secretary's investigation
is ongoing:· Much may happen between now and the parties' consideration of the Secretary's
penalty proposals to obviate the parties' present desire for summary decision. Judicial restraint
warrants deferring ruling on an issue until required to do so, and neither party has shown an
immediate ruling is needed.
Indeed, upon reflection, the parties may well come to share my doubts as to whether
these cases present a desirable basis for resolving the questions at issues. Obviously, the
Secretary has a statutory duty to conduct an investigation of Gatlin' s complaint. Obviously, too,
HCC has a concomitant duty to cooperate in the investigation. However, the Secretary's
investigation must be "reasonable" (see 30 U.S.C. § 813(h)), and part ofbeing "reasonable"
when requesting materials is to make sure that which is sought is clearly described. MSHA's
request for, "[t]he personnel 'files of all employees at the ... [m ]ine who were disciplined,
reprimanded, or terminated.during the period of January 1, 2004 - January 20, 2009 for engaging
in the conduct which led to the termination of Robert Gatlin." (MSHA Letter ofFebruary 23,
2009, Carl E. Boone II, District I 0 Manager to Marco M Rajkovich, Counsel to HCC) is far
from clear and can be interpreted in a number of different ways, as HCC rightly notes. HCC's
Resp. 4, Exh. 5. Moreover, and as HCC points out, if read literally, MSHA's request is for files
in their entirety. Only later did the Secretary seemto acknowledge private informatfon in the
files could be redacted. One might conclude a reasonably conducted investigation would make
sure the operator's right to redact objectionable information was plainly stated from the
beginning. Further, MSHA repeatedly ignored, without explanation, HCC's understandable
requests for clarificatiori of a complaint that on its face sets forth no discemable allegations of
protected activity. Surely, part of the agency's duty to conduct a reasonable investigation is to
31 FMSHRC 491

apprise those being investigated of how the law was allegedly broken.
For its part, the company's conduct, too, has been faulty. Itdid not immediately request a
clarification of the district manager's February 23 request for the personnel files, and its
objection to the release of Gatlin' s file without a waiver, .while perhaps technically warranted,
seems overly protective. 12 Further, being represented by experienced counsels, the company
must have known, without being told, that it is common when materials are requested for the
party providing the materials to redact those parts it deems are not properly subject to the request.
Apparently, this is what ultimately was· done, but only after the threat of daily penalties was made
real.
Unfortunately, the entire controversy smacks of "who struck John," with a lack of
cooperation and clear, forthright communication on both sides. The parties have ensnared
themselves in what is essentially a discovery dispute. Had the same dispute arisen after a
discrimination complaintwas filed with the Commission, it would have been resolved before a
judge without the objector hazarding penalties of up to $5,000 per day. Had the dispute been
taken before a United States federal district court pursuant to section 108 of the Act (30 U.S.C. §
818) it also most likely would have been resolved without a monetary penalty threat. 13

In my view, when penalties finally are proposed, it will behoove the parties to take into
account the state of the Secretary's investigation, the amount of the penalties, the prior missteps
on both sides and, working together, to resolve the contest and civil penalty proceedings in one
stroke, short of summary decision. The adage "hard cases make bad law" often is misquoted as
"bad cases make bad law," and, here, the aphoristic error is entirely apt. This is not to say the
parties have raised issues that are incapable of decision. Rather, it is to recognize because issues
can be decided does not mean they should be. The flawed context within which these particular
issues have arisen suggests a second look at all aspects of the matter may lead the parties to
conclude the issues are best reserved. for another day and another case.
ORDER
For the reasons set forth above, a ruling on the parties' cross-motions for summary
decision IS DEFERRED and these contest proceedings ARE STAYED pending the filing of an
associated civil penalty case or cases by the Secretary. Counsel for the Secretary IS

12

If a complaint is filed by the Secretary charging the company with discrimination, the
Secretary and the miner are separate parties (29 C.F.R. § 2700.4(a)), but during the investigatory
stage of the miner's complaint, the Secretary surely may be assumed to be acting on behalf of the
mmer.
13

In fact, it takes little imagination to envision the reaction of a district court judge or
federal magistrate if presented with a request for injunctive relief in a. discovery dispute the
parties should have been able to resolve themselves.
31 FMSHRC 492

REQUESTED to advise me on or before June 1, 2009, and by the first day of each succeeding
month, as to the status of the penalty assessment case(s).
Within 15 days of the date of this Order, counsel for the Secretary IS ORDERED to file
a copy or copies of the abatement or abatements at issue. If the abatement ·or abatements do not
specify and describe in full the-documents HCC filed and MSHA concluded abated the order-and
citations, within the same 15 days counsels ARE ORDERED to submit a written stipulation
specifying and describing the documents.

PMflf&/~
David F. Barbour
Administrative Law Judge
Distribution: (Certified Mail)
Theresa Ball, Esq., Thomas A. Grooms, Esq., Matt S. Shepherd, Esq., U.S. Department of Labor,
Office of the Solicitor, 618 Church Street, Suite 230, Nashville, TN 37219-2456
Marco M. Rajkovich, Esq., Melanie J, Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True,
PLLC, 2333 Alumni Park Plaza, Suite 310, Lexington, KY 40517
/ej

31 FMSHRC 493

31 FMSHRC 494

G:.0 U.S. GOVERNMENT PRINTING OFFICE: 2000-350-058/74302