OCTOBER 2004

COMMISSION DECISIONS AND ORDERS
10-04-2004 AJ Crushing & Concrete, U.,C
10-06-2004 Darwin Stratton & Son, Inc.
10-06-2004 DeWayne Herren
10-07-2004 JS Sand & Gravel, Inc.
10-12-2004 Prairie Materials Sales Inc.
10-29-2004 Martin Marietta Aggregates
10-29-2004 Lammi Sand & Rock

WEST 2004-405-M
WEST 2001-528-M
WEST 2004-311-M
YORK 2004-50-M
LAKE 2004-94-M
CENT 2004-234-M
WEST 2004-502-M

Pg. 783
Pg. 787
Pg. 791
Pg. 795
Pg.800
Pg. 803
Pg. 807

SE 2004-83-M
PENN 2000-181-R
WEST 2004-442-DM

Pg.811
Pg.816
Pg.818

SE 2003-150-R
PENN 2000-181-R
SE 2003-160

Pg.823
Pg.827
Pg.830

ADMINISTRATIVE LAW JUDGE DECISIONS
10-07-2004 APAC-Mississippi, Inc.
10-18-2004 RAG Cumberland Resources, L.P.
10-25-2004 Ronald R. Cole v. Newmont Midas Operation

ADMINISTRATIVE LAW J{JDGE ORDERS
10-07-2004 Jim Walter Resources, Inc.
10-14-2004 RAG Cumberland Resources, LP
10-14-2004 Jim Walter Resources

i

OCTOBER 2004

Review was granted in the following case during the month of October:

Secretary of Labor, MSHA v. Elk Run Coal Company, Docket No. -WEVA 2003-149.
(Judge Weisberger, September 13, 2004)

No case was filed in which Review was denied during the month of October

ii

COMMISSION

ORDERS

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

October 4, 2004

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

Docket No. WEST 2004-405-M
A.C. No. 45-03490-27068

V.

Docket No. WEST 2004-406-M
A.C. No. 45-03490-24530

AJ CRUSHING & CONCRETE, I.LC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE CO:rv1MISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). 1 On July 19, 2004, the Commission received from AJ
Crushing & Concrete, I.LC. ("AJ Crushing") correspondence which we construe as a motion 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).
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 ("MSHA") issued
two proposed assessments (A.C. No. 45-03490-27068 and A.C. No. 45-03490-24530) to AJ
Crushing. In its motion, AJ Crushing states that the 30 days to contest the proposed assessments
has passed and it asks the Commission to waive the 30 day period and review the assessments.
Mot. No documentation is attached to AJ Crushing' s motion. The Commission received a

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEST 2004-405-M and WEST 2004-406-M, both captioned AJ
Crushing & Concrete, LLC. and both involving similar issues. 29 C.F.R. § 2700.12.
26 FMSHRC 783

response from the Secretary of Labor stating that, because AJ Crushing has identified no grounds
for reopening the penalty assessments, she requires additional information before she can express
her position on the operator's motion. Sec'y Resp. at 1-2.
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 l05(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).

26 FMSHRC 784

On the basis of the present record, we are unable to evaluate the merits of AJ Crushing' s
position. We hereby remand this matter to the Chief Administrative Law Judge for a
determination of whether good cause exists for AJ Crushing' s failure to timely contest the
penalty proposals and whether relief from the final orders 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.

26 FMSHRC 785

Distribution
Diane F. Shiker, Office Manager
AJ Crushing & Concrete, l.LC
P.O. Box 5280
Benton City, WA 99320
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
Myra James
Office of Civil Penalty Compliance
U.S. Department of Labor, MSHA
1100 Wilson Boulevard, 24th Floor West
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D .C. 20001

26 FMSHRC 786

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

October 6, 2004
SECRETARY OF LABOR,
:MINE SAFETY ANP HEALTH
ADMINISTRATION (MSHA)
V.

Docket Nos. WEST 2001-528-M
WEST 2001-538-M
WEST 2001-557-M

DARWIN STRATTON & SON, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
These civil penalty proceedings arise under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2000) ("Mine Act"). On April 29, 2002, Administrative Law
Judge Richard Manning issued a decision, concluding in part that the Department of Labor's
Mine Safety and Health Administration ("MSHA") has jurisdiction over the Airport Pit operated
by Darwin Stratton & Son, Inc. ("Darwin Stratton") and that Darwin Stratton violated section
103(a) of the Mine Act, 30 U.S.C. § 813(a), by refusing an authorized MSHA representative
entry to its pit. 24 FMSHRC 403, 407-09 (April 2002) (ALT).
The judge's jurisdiction in this matter terminated when he issued his decision on April
29, 2002. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's procedural rules,
relief from a judge's decision may be sought by filing a petition for discretionary review within
30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). Darwin Stratton did not
file a petition for discretionary review, nor did the Commission direct review sua sponte. 30
U.S.C. §§ 823(d)(2)(A) and (B). Thus, the judge's decision became a final decision of the
Commission on May 29, 2002. 30 U.S.C. § 823(d)(l).
On August 26, 2002, the Commission received from Darwin Stratton a motion to reopen
Judge Manning' s decision under Fed. R. Civ. P. 60(b)(2). 1 In evaluating requests to reopen final

1

Rule 60(b) provides in pertinent part that a party may be relieved from a final order by
reason of "newly discovered evidence which by due diligence could not have been discovered in
26 FMSHRC 787

orders, the Commission has found guidance in Rule 60(b) ofthe Federal Rules of Civil
Procedure. 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"); Jim Walter Res., Inc., 15 FMSHRC 782,
787 (May 1993).

In its motion, Darwin Stratton states that it has "recently been made aware
of . . . documentation and information and could not [have] brought this evidence before this
Administrative Court before now." DS Mot. at 2. Darwin Stratton does not, however, describe
or include copies of any newly discovered evidence in the motion. Rather, Darwin Stratton
makes arguments relating to legal issues that were before the judge. Id. at 2-19. On September
27, 2002, the Secretary of Labor filed a motion opposing Darwin Stratton's request, asserting that
the operator had failed to meet the requirements of Rule 60(b)(2) because it does not provide any
newly discovered evidence to support its request. S. Opp'n at 7-10.2
We conclude that Darwin Stratton's motion of August 26, 2002, does not satisfy the
requirements of Rule 60(b)(2). The Commission has recognized that in order to obtain relief
under Rule 60(b)(2), the movant must establish that newly discovered evidence "was in exist~nce
at the time of trial but not in the movant's possession; that even by exercising due diligence, the
movant could not have obtained the evidence at the time of trial orfo time to move for a new
trial ... ; and that the evidence is not merely cumulative and would change the result." Bruno v.
Cyprus Plateau Mining Corp., 11FMSHRC150, 153 (Feb. 1989); see also Sec'y of Labor on
behalf of Baier v. Durango Gravel, 21 FMSHRC 1079, 1079-80 (Oct. 1999) (citations omitted)
("the newly discovered evidence must have existed at the time of trial or concern facts that were
in existence at time of trial, and must be sufficiently significant that it is likely to change the
outcome of the case''). Darwin Stratton does not describe or set forth copies of any newly
discovered evidence; it does not explain why, using due diligence, such evidence could not have
been brought before the judge; nor does it describe newly discovered evidence that would have
changed the outcome of the proceedings. See Harvey v. Mingo Logan Coal Co., 24 FMSHRC
699, 699-701 (July 2002) (denying miner's request to reopen under Rule 60(b)(2) because miner
did not provide newly discovered evidence that would change outcome of decision).
Accordingly, we deny Darwin Stratton's August 26, 2002, request for relief under Rule 60(b)(2).

time to move for a new trial under Rule 59(b)." Fed. R. Civ. P. 60(b)(2).
2

On May 14, 2003, the Commission received from Darwin Stratton a document making
allegations of judicial misconduct. The Commission has investigated these allegations and found
them to be baseless.
26 FMSHRC 788

For the foregoing reasons, we deny Darwin Stratton's request for relief under Rule 60(b).

26 FMSHRC 789

Distribution
Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22°d Floor
Arlington, VA 22203
Clayton Stratton, Vice President
Darwin Stratton & Son, Inc.
720 W. State Street, Suite 71-7
Hurricane, UT 84737
Johnpartick Morgan
General Post Office
Fredonia, AZ 86022
Administrative Law Judge Richard Manning
Federal Mine Safety and Health Review Commission
1244 Speer Boulevard, Suite 280
Denver, CO 80204-3582

26 FMSHRC 790

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

October 6, 2004

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADrvn:NISTRATION (MSHA)
Docket No. WEST 2004-311-M
A.C. No. 48-01497-06604 A

v.
DeWAYNE HERREN

BEFORE: Duffy, Chai1man; Jordan, Suboleski, and Young, 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. (1994) ("Mine Act"). On May 17, 2004, the Commission received from DeWayne
Herren a Request to Reopen Contest of Penalty Assessment for violations of section 110(c) of the
Mine Act, 30 U.S.C. § 820(c), 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 and the Commission's Procedural Rules, an
individual charged with a violation under section llO(c) has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that he or
she wishes to contest the proposed penalty. 30 U.S.C. § 815(a); 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. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.27.
On August 18, 2003, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment (A.C. No. 48-01497-06604 A) to Herren. In
the request, Herren asserts that he did not defend against the proposed penalty because of
inadvertence, mistake and/or misunderstanding. Mot. at 2. In his affidavit supporting the
request, Herren states that he "had never been involved in anything like this before" and now that
he has an attorney and understands the process, he would like an opportunity to present his case.
26 FMSHRC 791

Aff. at 1-2. The Secretary filed a response to the Herren's request, seeking a remand with the
instruction that both parties have an opportunity to present relevant evidence and legal arguments
on whether Herren's request to reopen this proceeding should be granted. Sec'y Resp. at 2-3.
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 Com.mission 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).

26 FMSHRC 792

Having reviewed Herren' s motion and the Secretary's response, in the interests of justice,
we remand this matter to the Chief Administrative Law Judge for a determination of whether
good cause exists for Herren' s failure to timely contest 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.

26 FMSHRC 793

Distribution
Frank D. Neville, Esq.
Williams, Porter, Day & Neville, P.C.
159 North Wolcott, Suite 400
P.O. Box 10700
Casper, WY 82602
W . Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22203
Myra James
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

26 FMSHRC 794

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

October 7, 2004
SECRETARY OF LABOR,
:MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. YORK 2004-50-M
A.C. No. 30-03325-05501
Docket No. YORK 2004-51-M
A.C. No. 30-03325-05502
Docket No. YORK 2004-52-M
A.C. No. 30-03325-05503

v.

Docket No. YORK 2004-53-M
A.C. No. 30-03325-08141

J S SAND & GRAVEL, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY: Duffy, Chairman; Suboleski, and Young, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2000) ("Mine Act"). 1 On June 29, 2004, the Commission received from JS Sand & Gravel,
Inc. ("JSSG") a letter from its president which included a request that the Commission reopen four
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). On July 8, 2004, the Secretary of Labor filed a Response to
Request to Reopen Penalty Assessments.
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

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers YORK 2004-50-M, YORK 2004-51-M, YORK 2004-52-M, and
YORK 2004-53-M, all captioned JS Sand & Gravel, Inc., and all involving similar procedural
issues. 29 C.F.R. § 2700.12.
26 FMSHRC 795

a final order of the Commission. 30 U.S.C. § 815(a). In its pet~tion, JSSG gives no reason for its
failure to contest any of the four penalty assessments.
A.

Docket Nos. YORK 2004-50-M. YORK 2004-51-M. and YORK 2004-52-M

Based on the Secretary's submission, MSHA issued proposed assessment A.C. No.
30-03325-05501 (YORK 2004-50-M) to JSSG on May 11, 2001, JSSG received the proposed
assessment on May 17, 2001, and it became a final order on June 22, 2001. S. Resp. at 1 & Attach.
A. Similarly, MSHA issued proposed assessment A.C. No. 30-03325-05502 (YORK 2004-51-M)
to·JSSG on August 30, 2002, JSSG received it on September 6, 2002, and it became a final order on
October 11, 2002. Id. at 2 & Attach. B. In addition, MSHA issued proposed assessment A.C. No.
30-03325-05503 (YORK 2004-52-M) to JSSG on January 16, 2003, JSSG received it on January
24, 2003, and it became a final order on February 27, 2003. Id. at 2 & Attach. C. JSSG provides
no reason in its request to reopen why it did not timely contest any of the three assessments.
The Secretary opposes reopening all three proposed assessments because JSSG's requests
were filed approximately three years, 20 months, and 16 months, respectively, after the assessments
became final. S. Resp. at 1-2. The Secretary attached to her response copies of the proposed
assessments, signed return receipt ve1ification cards indicating JSSG had received the proposed
assessments, and MSHA's delinquent payment notice for each assessment. Id., Attach. A to C.
JSSG did not reply to the Secretary's response.
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. 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. For instance,
relief from a final Commission judgment or order is available to a party under Rule 60(b)(l) in
circumstances such as mistake, inadvertence, or excusable neglect. We have 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 to a penalty petition, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
However, under Rule 60(b) any motion for relief must be made within a reasona~le time, and
in the case of mistake, inadvertence, or excusable neglect not more than one year after the order was
entered. Fed. R. Civ. P. 60(b). Here, JSSG has requested reopening of the three proposed
assessments more than one year after each assessment became a final Commission order, and has
provided no explanation of why it never responded to the correspondence it received from MSHA.
Consequently, we deny JSSG' s motion for relief from the final orders in Docket Nos. YORK 200450-M, YORK 2004-51-M, and YORK 2004-52-M.

26 FMSHRC 796

B.

Docket No. YORK 2004-53-M

JSSG also requests the Commission to reopen another proposed assessment, A.C. No. 3003325-08141 (YORK 2004-53-M). According to JSSG, that assessment issued on September 11,
2003. The Secretary responds that because JSSG identifies no grounds for requesting reopening of
the assessment, the Commission should direct JSSG to provide a detailed explanation of why it
believes circumstances warrant reopening. S. Resp. at 3.
JSSG has provided no explanation for its failure to timely contest the proposed assessment.
On the basis of the present record, we are thus unable to evaluate the merits of JSSG' s request to
reopen. We hereby remand this matter to the Chief Administrative Law Judge for a determination
of whether good cause exists for JSSG' s failure to timely contest 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.
Accordingly, we deny JSSG's request to reopen the penalty assessments in Docket Nos.
YORK 2004-50-M, YORK 2004-51-M, and YORK 2004-52-M and the proceedings are hereby
dismissed, and we remand Docket No. YORK 2004-53-M for further proceedings as appropriate.

26 FMSHRC 797

Commissioner Jordan, concurring in part and dissenting in part:.
I agree with the majority's decision to deny JSSG' s request to reopen the penalty assessments
in Docket Nos. YORK 2004-50-M, YORK 2004-51-M, and YORK 2004-52-M. However, I would
also deny the operator's request for relief from the final order in YORK 2004-53-M. Pursuant to
Rule 60(b) of the Federal Rules of Civil Procedure, we have previously afforded a party relief from
a final order on the basis of inadvertence or mistake. Slip op. at 2. However, JSSG has failed to
provide any explanation to justify its failure to timely contest the proposed penalty assessment. See
Tanglewood Energy, Inc., 17 FMSHRC 1105, 1107 (July 1995) (denying request to reopen final
Commission order where operator failed to set forth grounds justifying relief). I also note that this
matter involves four proposed penalty assessments issued between May 22, 2001 and September 11,
2003 which the operator failed to timely contest. Consequently, I respectfully dissent.

~?~

MaIYlh JOr:Commissi~

26 FMSHRC 798

Distribution
Jeff DeFranco, President
J S Sand & Gravel, Inc.
139 C Peconic Avenue
Medford, NY 11763
W. Christian Schumann, 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

26 FMSHRC 799

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

October 12. 2004
SECRETARY OF LABOR.
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2004-94-M
A.C. No. 11-02972-21590

v.
PRAIRIE MATERIALS SALES INC.

BEFORE: Duffy. Chairman; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act"). On September 27, 2004, the Commission received from
Prairie Materials Sales Inc. ("Prairie Materials") a letter seeking review of an order'of Chief
Administrative Law Judge Robert J. Lesnick entering a default judgment for the Secretary of
Labor in this case.
The Chief Judge's jurisdiction in this matter terminated when his default order was issued
on September 2, 2004. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's
procedural rules, relief from a judge's decision may be sought by filing a petition for review
within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). We construe the
letter from Prairie Materials to be a timely filed petition for discretionary review.
On July 21, 2004, Chief Judge Lesnick issued a show cause order to Prairie Materials
stating that it had failed to file an answer to a petition for penalty assessment sent to it by the
Secretary of Labor on May 13, 2004, and that Prairie Materials would be found in default if it did
not file an answer or show good cause for not doing so within 30 days of the order. On
September 2, 2004, Chief Judge Lesnick issued an order finding that Prairie Materials had failed
to respond to the show cause order and entering a judgment by default for the Secretary.

26 FMSHRC 800

On September 27, 2004, the Commission received a letter from Dave Mashek, the Safety
Director of Prairie Materials, seeking review of the Chief Judge's default order. The letter did
not provide reasons regarding why the company had not answered the petition nor responded to
the show cause order but instead briefly discussed the merits of the citation in question. In her
response to the letter, the Secretary opposed the granting o~ Prairie Materials' petition for
discretionary review because it does not address the basis for the Chief Judge's default order.
Because the petition for discretionary review filed by Prairie Materials does not address
the validity of the Chief Judge's default order nor provide any reasons why the default order
should be vacated, 1 we hereby deny the petition.

1

The Commission has 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). See also Rule 60(b) of the Federal Rules of Civil Procedure.
If Prairie Materials can justify its failure to answer the petition for penalty assessment and to
respond to the show cause order, it may submit a request to the Commission, with supporting
documentation, asking it to reopen this case.
·
26 FMSHRC 801

Distribution

Mr. Dave Mashek, Safety Director
Prairie Material Sales, Inc.
7601 W. 79th Street
P.O. Box 1123
Bridgeview, IL 60455
W. Christian Schumann, Esq.
Counsel, Appellate Litigation
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 -202 1

26 FMSHRC 802

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

October 29, 2004 ·

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

Docket No. CENT 2004-234-M
A.C. No. 14-01506-32400

v.
MARTIN MARIETTA AGGREGATES

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act"). On September 3, 2004, the Commission received from
Martin Marietta Aggregates ("Martin Marietta") a motion to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
The Department of Labor's Mine Safety and Health Administration ("MSHA") issued a
proposed assessment (A.C. No. 14-01506-32400) to Martin Marietta on July 19, 2004. In its
motion, Martin Marietta states that, due to its internal routing of the assessment form, its counsel
did not receive a copy of the form until September 1, 2004, past the 30-day deadline to contest
the assessment. Mot. at 1. Martin Marietta seeks a reopening of the penalty assessment because
of its mistake or inadvertence. Mot. at 2. The Secretary of Labor has filed a response, stating
that she does not oppose the request to reopen. Sec'y Resp.
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
26 FMSHRC 803

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).

26 FMSHRC 804

On the basis of the present record, we are unable to evaluate the merits of Martin
Marietta's position. We hereby remand this matter to the Chief Administrative Law Judge for a
determination of whether good cause exists for Martin Marietta's failure to timely contest the
penalty proposal and whether relief from the final order shquld 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.

26 FMSHRC 805

Distribution
Laura E. Beverage, Esq.
Jackson & Kelly, Pl.LC
1099 181h Street, Suite 2150
Denver, CO 80202
W. Christian Schumann, 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

26 FMSHRC 806

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUJTE9500
WASHINGTON, DC 20001

October 29, 2004
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
AD:MINISTRATION (MSHA)

Docket No. WEST 2004-502-M
A.C. No. 35-03117-18572
Docket No. WEST 2004-503-M
A.C. No. 35-03117-23217
Docket No. WEST 2004-504-M
A.C. No. 35-03117-12325

V.

Docket No. WEST 2004-505-M
A.C. No. 35-03117-28447

LAMMI SAND & ROCK

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act"). 1 On September 27, 2004, the Commission received from Lammi Sand
& Rock ("Lammi") a motion to set aside defaults in four 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).

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEST 2004-502-M, WEST 2004-503-M, WEST 2004-504-M, and
WEST 2004-505-M, all captioned Lammi Sand and Rock and all involving similar procedural
issues. 29 C.F.R. § 2700. 12.
26 FMSHRC 807

The Department of Labor's Mine Safety and Health Admi~stration issued the four proposed
assessments to Lammi between November 4, 2003, and June 8, 2004. In its motion, Lammi states
that the four assessments are related to two earlier assessments which Lammi did properly contest,
Docket Nos. WEST 2004-206-M (A.C. No. 35-03317-16754) and WEST 2004-319-M (A.C. No.
35-03317-25938). Mot., Aff. at 1. The six assessments are for 51 citations that were issued as a
result of the same inspection. Lammi seeks reopening of the four uncontested penalty assessments
because it inadvertently failed to contest the proposed penalties, and to have the six assessments
decided together. Mot., Aff. at 1-2. The Secretary of Labor has filed a response, stating that she
does not oppose the request to reopen the four assessments. Sec'y Resp.
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 FMSHRC 1529, 1530 (Sept. 1995).

26 FMSHRC 808

On the basis of the present record, we are unable to evaluate the merits of Lammi' s position.
We hereby remand this matter to the Chief Adrninistrative Law Judge for a determination of whether
good cause exists for Lammi' s failure to timely contest the four penalty assessments and whether
relief from the final orders 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.

26 FMSHRC 809

Distribution
Steven D. Gerttula
Attorney at Law
416 Bond Street
Asortia, OR 97103
W . Christian Schumann,.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

26 FMSHRC 810

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, DC 20001 -2021

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

October 7, 2004
CIVIL PENALTY PROCEEDING
Docket No. SE 2004-83-M
A.C. No. 22-00672-16273

v.
APAC-MISSISSIPPI, INC.,
Respondent.

Robinson Pit

DECISION
Appearances: Gwen Y. Anderson, Esq., Office of the Solicitor, U.S. Department of Labor,
Atlanta, GA; for the Secretary.
Julie K. Hackworth, Esq., APAC-Mississippi, Inc., 50 E. River Center Blvd., P.O.
Box 391, Covington, KY 41012; for the Respondent.
Before:

Judge Weisberger

This case is before me based upon a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor (Secretary) pursuant to Section 105 of the Federal Mine Safety and Health Act
of 1977 (the Act) alleging violations by APAC Mississippi, Inc., (APAC) of 30 C.F.R.
§§ 56.11012 and 56.9300(a). In addition, APAC challenges the issuance of an order under
Section 104(b) of the Act, relating to the alleged violation of Section 56.9300, supra. Pursuant to
notice, this case was scheduled and heard in Jackson, Mississippi on August 31, 2004.

I.

Citation No. 6101104

Citation No. 6101104 asserts that a walkway on a floating dredge had not been provided
with railings to prevent a person from falling into the water when traversing the walkway to
check the dredge cutter head. The citation alleges a violation of 30 C.F.R. §56.11012.
· In support of the violation, the Secretary called as a witness, Fred Poss, APAC' s
Superintendent for three mines, including the operation at issue. He indicated that a metallic
horizontal platform (ladder) attached to the dredge pump is in use daily. Poss conceded that
employees do walk on the platform to inspect the cutter head. He ~ndicated that this can occur
twice a day, but on an average this occurs three to six times a year. According to Poss, in order
to perform maintenance on the pump, the platform must be raised, which necessitates moving the
dredge from the lake to the shore. He also indicated that maintenance is not performed when the
dredge is on the lake.

26 FMSHRC 811

MSHA Inspector Delilah Tessaro, testified that when she inspected the subject facility on
November 5, 2003, she spoke to the dredge operator and he referred to the ladder as a walkway.
According to Tessaro, the operator told her that anytime he needed to check the cutter head he
would use the ladder. However, she conceded that the operator did not tell her specifically how
often he used the walkway to access the cutter heads.
After the Secretary rested, APAC rested, and made a motion for a directed verdict. After
hearing argument on the motion, the motion was granted. The bench decision on the motion is
set forth below.
Because both parties rested, the entire record must be reviewed to see if
the Secretary has met its burden of establishing a violation of Section 56.11012,
supra, as alleged in the citation at issue.
Section 56.11012, supra, requires protection by railings, barriers, or covers
in areas where there are openings above, below, or near travelways. Travelway is
defined in Section 56.2 as "a passage, walk, or way regularly used and designated
for persons to go from one place to another." The key phrase here is "regularly
used."
At best, the hearsay statements that the operator made to the inspector that
he goes on the walkway anytime the cable or cutter have to be maintained, raises
an inference that the platform at issue is "regularly used." However, I find this
inference, based on hearsay, to be outweighed by Poss' testimony, based on his
personal knowledge, that on an average the ladder is used to access the cutter head
four to six times a year. There is not any other evidence in the record as to how
often the platform is used to access the cutter heads. If the dredge operator had
been called as a witness, perhaps he could have testified in more detail, based on
his personal knowledge, as to how often he actually uses the ladder to do
maintenance work. However, the Secretary chose not to call him.
Based on the record before me, I find that the Secretary's evidence falls
short of establishing that the cited area was a travelway. The weight of the
evidence does not establish that the ladder was regularly used and designated for
persons to go from one place to another. Accordingly, it has not been established
by the Secretary that APAC violated Section 56.11012, supra. Therefore,
APAC' s, motion is granted.

II.

Citation No. 6101107

APAC operates a sand and gravel pit. Trucks regularly enter the mine, travel north to the
pit on a two-way thoroughfare, and return on the same road to exit the mine. Trucks that are
loaded with materials from the pit, leave the pit along this thoroughfare, then divert west to a dirt
26 FMSHRC 812

covered "ramp" th.a t is not elevated, and extends approximately 100 to 120 feet to a scale which
is in a direct line with the ramp.
The scale is a metal surface 10 feet wide, and approximately 60 feet in length. 1 The scale
is in direct line of the ramp and 28 to 30 inches above the ramp. On the date cited there was a
unguarded edge running along the length of the scale that extended approximately 30 feet. Tire
tracks were observed approximately four inches from the edge of the scale.
After trucks stop on the scale and are weighted, 2 they continue to travel in a direct line
down a similar ramp 100 to 120 feet in length, until it joins a two way road. The trucks then
travel south along the road to exit the mine. 3 The parties stipulated, as pertinent, as follows:
xxx
10.

Robinson Pit Mine began operations in October 1993.

11. Regarding Citation No. 6101107, the over the road truck scale had
three openings which did not have berms or guardrails.
12. The truck scale had three unguarded openings which were
approximately 24", 10' and 30'.
13. At various points on the bank of the truck scale, the unguarded
openings had a drop-off ranging from approximately 37" to 42".
14. Inspector Tessaro observed tire prints four inches from the edge of
the scale.
15.

The scale is used daily.
xxx

APAC was cited for violating Section 56.9300(a), supra, which provides, as pertinent,
that berms or guardrails shall be provided" ... on the banks of roadways where a drop-off exists
of sufficient grade or depth to cause a vehicle to overturn or endanger persons or equipment."

1

The trucks that travel on the scale are approximately 50 feet lol)g, and 8 feet wide.

2Tbe scale is used by trucks 15 to 20 times a day. At times up to 50 trucks a day travel on the
scale to get weighed.
3Trucks entering the mine empty for the first time take a similar route so the empty truck can be
weighed.

26 FMSHRC 813

(Emphasis added.)
The main issue in this case is whether the cited scale is a roadway. The parties presented
argument on this issue and a decision was rendered at the hearing, holding that, based upon the
common meaning of a roadway, the scale is considered part of a roadway. That decision, is set
forth below, with the exception of corrections of matters not of substance, and the addition of
wording that had been inadvertently omitted.
I have not been referred by counsel to any authority, or case law that
established a precedent as to whether the scale in this case is to be considered a
roadway. I haven't found any cases. Also, Part 56 the Code of Federal
Regulations, does not define roadway. Hence, I place reliance on the common
meaning of the term "roadway" as set forth in the Webster's Third New
International Dictionary, (1993 ed.). Webster's defines roadway as "specif:
"[t]he part of a road over which the vehicular traffic travels." (See Pappy's Sand
& Gravel, 20 FMSHRC 647, 651) (June 1998). Webster's defines "road" as
pertinent, as follows:" ... 3(c): the part of a thoroughfare over which vehicular
traffic moves .... " Webster's goes on to define "thoroughfare" as pertinent as
follows: "l: a way or place through which there is passing .... "
In arguing that the scale is not a roadway, APAC points out that these
definitions denote a route going from point A to point B. In this connection,
APAC argues that the scale, a piece of equipment used to weigh trucks, is a
destination and not part of a route the pit to the mine exit. APAC, in essence,
refers to Poss' testimony that trucks have never traveled along the ramp, across
the scale, and along the next ramp without stopping to get weighed.
In analyzing the common meaning of the various terms, I find that APAC
arguments and interpretations to be too restrictive. There isn't any connotation in
any of the definitions that movement must be continuous, or that movement must
be without stopping.
To adopt the interpretation urged by APAC would lead to a conclusion
that a truck traveling from a ramp to the scale is on a roadway going to the scale.
However, the scale which is in a direct line from that ramp would not to be
considered a roadway, because it is a piece of equipment and the truck stops there.
And then, once the truck continues down the ramp which is in a direct line from
the scale, it would be traveling again on a roadway.

I find this interpretation too restrictive. I find that, in harmony with the
dictionary definitions, ie., the common meanings of the terms at issue, the entire
route traveled by the trucks is to be considered a roadway. The route consists of
traveling from the two-way road, along a ramp and scale in the same line, and

26 FMSHRC 814

continuing from the scale in the same direct line down the next portion of the
ramp back to the road.
·

After the decision was rendered, the parties discussed settlement and
reached an agreement that the operator pay a total civil penalty for this violation
of $250.00. Considering the record, in this case, I find the settlement a fair
resolution, and consistent with the Act. Accordingly, I approve it. Also, it was
agreed that APAC will no longer contest the 104(b) order (Order No. 6101131).

.

ORDER

It is Ordered that (1) Citation No. 6101104 be Dismissed, (2) Respondent pay a total
civil penalty of $250.00 for the violation cited in Citation No. 6101107, and (3) Order No.
6101131 be affirmed.

~e~erger~

Administrative Law Judge

Distribution: (Certified Mail)
Gwen Y. Anderson, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street,
S.W., Rm. 7TIO, Atlanta, GA 30303
Julie K. Hackworth, Esq., APAC-Mississippi, Inc., 50 E. River Center Blvd., P.O. Box 391,
Covington, KY 41012
/sb

26 FMSHRC 815

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

October 18, 2004
RAG CUMBERLAND RESOURCES, LP,
Contestant

CONTEST PROCEEDINGS
Docket No. PENN 2000-181-R
Citation No. 3657290; 7/6/2000

v.
SECRETARY OF LABOR,
:MINE SAFETY AND HEALTH
AD:MINISTRATION (MSHA),
Respondent

Docket No. PENN 2000-182-R
Citation No. 3657291; 7/6/2000
Cumberland Mine
Mine ID 36-05018

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
AD:MINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 2001-63-A
A.C. No. 36-05018-04200

V.

RAG CUMBERLAND RESOURCES LP,
Respondent

Cumberland Mine

DECISION ON REMAND

Before: Judge Feldman
These consolidated contest and civil penalty matters have been remanded by the
Commission for reassessment of the civil penalty for Citation No. 3657291 for RAG
Cumberland Resources LP' s (Cumberland' s) failure to immediately correct hazardous bleeder
conditions as required by the mandatory safety standard in section 75.363(a). 26 FMSHRC 639,
653, 658 (August 2004). The initial decision imposed a $10,000.00 civil penalty for Citation
No. 3657291. 23 FMSHRC 1241(November1999) (ALJ).
In its remand, the Commission directed reassessment of the civil penalty in light of its
determination that Cumberland's violation of 75.363(a) was not unwarrantable. 26 FMSHRC at
659. The Commission also determined that consideration of Cumberland's conduct as an
aggravating factor based on my finding that Cumberland had breached a fundamental goal of the
Mine Act was improper because it went beyond the scope of the statutory civil penalty criteria in
section 1IO(i) of the Act. 30 U.S.C. § 820(i). Id. at 658-59.

26 FMSHRC 816

On September 29, 2004, the Secretary filed a joint stipulation with respect to the
reassessment issue. The parties stipulated as follows:
This case has been remanded to this Court to reassess a civil penalty for Citation
No. 3657291 in accordance with the terms of the Decision by the Review
Commission dated August 10, 2004. In light of the fact that neither party can
pursue an appeal of the Commission Decision until the penalty becomes final, the
parties have agreed to stipulate to the assessment of a civil penalty in the amount
of $3,000 for Citation No. 3657291. The parties enter into this stipulation to
expedite further review of the Commission decision.
In view of the Commission's decision, I conclude that the parties' agreement to impose a
$3,000.00 civil penalty for Citation No. 3657291 is consistent with the penalty criteria set forth
in section l lO(i) of the Mine Act. Accordingly, IT IS ORDERED that RAG Cumberland
Resources LP pay a civil penalty of $3,000.00 in satisfaction of Citation No. 3657291 within
45 days of the date of this decision.

Jerold Feldman
Administrative Law Judge

Distribution: (Certified Mail)

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center,
401 Liberty Avenue, Suite 1340, Pittsburgh, PA 15222
Susan Jordan, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center,
Suite 630 East, 170 S. Independence Mall West, Philadelphia, ·PA 19106-3306
Judy Rivlin, Esq., United Mine Workers of America, 8315 Lee Highway,
.
Fairfax, VA 22031-2215
/hs

26 FMSHRC 817

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

October 25, 2004
RONALD R. COLE,

DISCRIMINATION PROCEEDING
Complainant
Docket No. WEST 2004-442-DM
WE MD 2004-08

v.
NEWMONT MIDAS OPERATION,
Respondent

Newmont Midas Mine
Mine ID 26-02314

ORDER OF DISMISSAL
Before: Judge Barbour
Section 105(c)(2) of the Mine Act (30 U.S.C. §815(c)(2)) requires a miner who believes
he or she has been discharged or otherwise discriminated against to file a complaint with the
Secretary within 60 days of the alleged discriminatory act. Here, the complainant, Ronald R.
Cole, alleges his December 11, 2003, termination contravened the Act. Mr. Cole filed his
complaint with the Secretary on April 28, 2004. The time within which he was to have filed
expired on February 9, 2004. Mr. Cole's complaint was 79 days late.
The Secretary's Mine Safety and Health Administration (MSHA) investigated the
complaint and on July 22, 2004, advised Mr. Cole it believed the facts did not constitute a
violation of Section 105(c). On August 19, 2004, Mr. Coles lodged a complaint with the
Commission. As part of its answer to the complaint, Newmont noted that it was "untimely" filed
with the Secretary and asserted it should be dismissed.
On September 22, 2004, I ordered Mr. Cole to state why his complaint was late-filed and
Newmont to state what, if any, prejudice it suffered due to the delay. I noted that although the
Commission repeatedly has held the time limit for filing a complaint is not jurisdictional, to
withstand dismissal, the miner must establish justifiable circumstances for the late filing, or to
be granted the dismissal, the operator must show it has suffered material prejudice (Order 1
(citing Hollis v. Consolidation Coal Co., 6 FMSHRC 21 (January 1984), aff d mem., 750 F.2d
1093 (D.C. Cir. 1984 (table)).
In responding to the order Mr. Cole stated, ''The reason for the delay ... is due to the fact
that I was unaware that MSHA was available to assist. I was recently told by Kevin Hirsch of
MSHA about this service to protect miner's rights. I spoke to Kevin approx. April 13"

26 FMSHRC 818

(Attachment to Letter to Judge (October 5, 2005)). 1 For its p~, Newmont maintained the delay
was prejudicial because of the negative· impact it had on the memories of those who witnessed
the events preceding Mr. Cole's termination. Newmont asserted that several persons it would ·
call now work at other Newmont facilities and, ''Their recollection about . . . [the events leading
to Mr. Cole's discharge] will not be as strong as ... if Mr. ~ole had complied with the time limit
to file a complaint" (Newmont' s Response 5). In addition, another witness, a former crew
member, is no longer employed by Newmont (Id.). Finally, Newmont stated that during the
delay, Mr. Cole contacted potential witnesses and attempted to get them to change their
recollections of an event that directly preceded Mr. Cole's termination (Newmont
Response 3-4).
Newmont also expressed its belief that Mr. Cole was very much aware of his section
105(c) rights and of the 60-day time limit for filing a complaint in that he was specifically trained
in the topics (Newmont Response 3). Moreover, Newmont stated that it provided
Mr. Cole with a copy of the MSHA pamphlet explaining miners' rights under the Act and
identifying the 60-day filing deadline ilit.). The company further noted that Mr. Cole had over
20 years' experience in underground mining, including both supervisory and non-supervisory
positions. For these reasons, the company contended that Mr. Cole either knew, or should have
known, about his rights under the Act, including the fact that he was entitled to file a complaint
with MSHA, and that he had to do so within 60 days of the company's allegedly discriminatory
act@..).

THE LAW
When ruling on a motion or other request to dismiss a late-filed complaint, the
Commission's judges are required to review the facts "on a case-by-case basis, taking into
account the unique circumstances of each situation" (Hollis, 6 FMSHRC at 24). In the past,
several factors that have been considered in determining whether to excuse a delay (see William
T . Sinnott. II v. Jim Walter Resources. Inc., 16 FMSHRC 2445 (December 1994) (AU)
(considering complainant's capacity or ability to pursue a remedy under the Act); Secretaxy of
Labor on behalf of Franco v. W.A. Morris Sand and Gravel, Inc., 18 FMSHRC 278 (February
1996) (AU) (considering complainant's awareness of his or her rights under the Act)). It has
also been held that whether the delay has caused prejudice to the operator is relevant (Hollis,
supra).

RULING
Turning first to Newmont' s claims of prejudice, I do not find the assertions of faded
memories regarding the events leading to Cole's discharge to be persuasive. The complaint was
approximately two and one half months late, a delay whose length reasonably would not be

Because Mr. Cole did not indicate he served counsel for Newmont with a copy of
the letter and attachment, I have sent counsel the necessary copies.
26 FMSHRC 819

expected to engender memory lapses. Nor is it prejudicial that two of Newmont's potential
witnesses no longer work at the mine site. They still work for Newmont, and their testimony
presumably can be obtained. Moreover, although Newmont maintains that another witness no
longer works for Newmont - a situation that might make his or her testimony inconvenient to
obtain - the company does not assert the testimony is unavailable. As for Newmont' s contention
that Mr. Cole attempted to intimidate some of those who might testify against him during the
time between his termination and the filing of his complaint, even assuming intimidation
occurred and was prejucij.cial to Newmont's case, I cannot conclude the prejudice was caused by
the delay since the intimidation might have taken place even if Mr. Cole had filed his complaint
in a timely manner.
However, the complaint still may be dismissed if Mr. Cole has failed to provide a
justifiable excuse for the late filing, and I conclude that Mr. Cole's excuse for the delayessentially that he was unaware of his rights or, as he put it, "that MSHA was unavailable to
assist [me]" - does not pass scrutiny. Newmont points out through the affidavit of its Health,
Safety and Loss Prevention Manager, Lee Morrison, that Mr. Cole underwent annual refresher
training for underground miners in March, 2001 (Newmont Response, Affidavit 2). Mr.
Morrison was among those who conducted the training for the then owner of the mine, Dynatec.
The training included a discussion of miner' s iights and responsibilities (Id.). Mr. Morrison
states in his affidavit that in addition to discussing miners' rights, the participants in the training,
including Mr. Cole, received a copy of a MSHA pamphlet entitled A Guide To Miners' Rights
and Responsibilities Under the Federal Mine Safety and Health Act 1977.1 Page 3 of the
pamphlet contains a section entitled, "Your Rights Under the Mine Act." The section includes a
subsection entitled "Protection Against Discrimination: Section 105(c)" and the statement: "It is
not legal for you to be fired ... or otherwise lose job benefits for exercising your rights under the
Act." Page 4 of the pamphlet states "A discrimination complaint ... should be promptly filed
with [MSHA]" and cautions, "We [i.e., MSHA] may not be able to pursue a claim unless it is
filed within 60 days of the act of discrimination"@., Attachment B). Page 4 goes onto explain,
inter alia, that MSHA may ask the Commission to order a complainant's temporary reinstatement
and that MSHA may file a complaint on the complainant's behalf (!Q,_). On March 9, 2001,
Mr. Morrison and Mr. Cole signed a certificate showing that Mr. Cole attended the training

2

To support Mr. Morrison's statement, the company has submitted an outline of the
refresher training course. Standing alone, the outline is ambiguous regarding the pamphlet given
to the miners. The outline indicates that during the training two topics were discussed between
4:00 p.m. and 4:45 p.m.: "Rights and Responsibilities of Miners" and "Explosive Handling"
(Newmont Response, Affidavit 2, Exhibit A at 4 ). The instruction "Hand out new pamphlet &
discuss" is listed under "Explosive Handling", not under "Rights & Responsibilities of Miners"
(Id.). However, Mr. Morrison's sworn affidavit eliminates the ambiguity. Mr. Morrison states:
"Exhibit A [is] the course outline for the training program. As page 4 [of Exhibit A] indicates,
one of the items discussed was miner's [sic.] rights. As the outline indicates, we handed out to
the miners attending this program what was at the time MSHA's new pamphlet concerning
miner's rights" QQ.J.
26 FMSHRC 820

®.,.,Attachment C).
In a resume submitted on August 21, 2001, to another previous owner of the mine,
Normandy Midas Operations, Inc., Mr. Cole stated that he had been employed by various
companies in underground mining since 1979 and that he ~ad held both rank and-file and
management (shift boss) positions. He also indicated he is a high school graduate (Newmont
Response, Affidavit 2, Exhibit D).
Given Mr. Cole's educational background, his long experience in underground mining
and the annual refresher training he received in March, 2001, I conclude that Mr. Cole either
knew or should have known about the time limit within which to file his complaint. His
statement that he missed the deadline because he did not know he was entitled to assistance from
MSHA until he spoke with an MSHA representative on April 13 is simply not credible.
Mr. Cole worked for many years in the underground mining industry both for labor and
for management. It defies belief that during these years he did not learn that MSHA may
represent a miner who claims he or she has been discriminated against for safety-related reasons.
In addition, Mr. Cole as the holder of a high school diploma is presumed to understand what he
hears and reads. 3 He was trained in miners' rights under the Act. He received the MSHA
publication explaining both the need to file within 60 days and how MSHA investigates a
complaint and otherwise acts on behalf of a complainant. To find that Mr. Cole's had no
knowledge of these matters until approximately April 13, 2004, would infer that Mr. Cole was
oblivious of the milieu in he which worked and lacked the most elementary comprehension
·
abilities. The record does not support such inferences.
There are times when a person must be accountable for his or her omissions as well as
commissions. This is such a time. Letting Mr. Cole's claim proceed in the face of his incredible
excuse, would render virtually meaningless the 60-day limit of section 105(c)(2).
The complaint is DISMISSED.

_f>w;_tQ.A L

Davidi'i3~~
Administrative Law Judge
(202) 434-9980
.

3

Although Mr. Cole claims ignorance of Mine Act's discrimination provisions, he
seems to have been knowledgeable about his rights under other statutes. In an affidavit,
Newmont' s Human Resources Representative states, inter alia, that after his discharge, Mr. Cole
filed for unemployment benefits and filed a Worker's Compensation Claim against Newmont
(Newmont Response, Exh. I at 2-3).
·
26 FMSHRC 821

Distribution: (Certified Mail)
Ronald R. Cole, 7800 Grass Valley Road, Winnemucca, NV 89445
Andrew W. Volin, Esq., Sherman & Howard, LLC, 633 Seventeenth Street, Suite 3000, Denver,
co 80202
Joe Driscoll, Tom Kerr, Newmont Midas, Operations, HC 66, Box 125, Midas, NV 89414-9801

26 FMSHRC 822

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, D.C. 20001

October 7, 2004
JIM WALTER RESOURCES, INC.,
Contestant

v.

CONTEST PROCEEDINGS
Docket No. SE 2003-150-R
Order No. 7670455; 06/26/2003

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

Docket No. SE 2003-151-R
Order No. 7670457; 06/27/2003

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

CIVIL PENALTY PROCEEDINGS

No. 7 Mine
Mine ID 01-01322

Docket No. SE 2003-138A
A. C. No. 01-01322-04260

V.

JIM WALTER RESOURCES, INC.
Respondent

Docket No. SE 2004-45A
A. C. No. 01-01322-07603
No. 5 Mine

ORDER DENYING MOTION IN LIMINE
AND
.
ORDER DENYING MOTION TO ENFORCE SETTLE1\1ENT
I.
The Consolidated Cases
In Docket No. SE 2003-150-R, Jim Walter Resources, Inc., (JWR), is contesting the
validity of Citation No. 7670455, a citation issued pursuant to Section 104(a) of the Mine Act (30
U.S.C. §814(a)) on June 26, 2003. The citation alleged that JWR violated mandatory safety
standard 30 C.F. R. §75.334(b)(l), in that the bleeder system for the I-panel longwall was not
maintained so as to continuously dilute and move methane-air mixtures and other gases, dusts,
and fumes from the worked-out area away from active workings and into a return air course or to
the surface of the mine. The citation referenced methane readings that were taken between June
10 and June 25, 2003, at points in the mine's longwall bleeder system. The readings are alleged
to have established an upward trend of methane concentrations and "collectively [to have]
indicate[d] that the bleeder system [could] no longer handle the current methane liberation"
(Citation No. 7670455 at 2). The citation set 6:00 p.m., June 27, 2003, as the time and date for
abatement.
26 FMSHRC 823

In Docket No. SE 2003-151-R, JWR is contesting the validity of Order No. 7670457,
which was issued at 7:45 p.m. on June 27, 2003, pursuant to Section 104(b) of the Act (30
U.S.C. §814(b)). The order alleged that JWR failed to timely abate Citation No. 7670455, in that
it did not make improvements to enhance the effectiveness of the longwall bleeder system so that
the system "continue[d] to liberate high quantities of methane and ... [could not] continuously
dilute the methane to safe operating levels" (Order 7670457).

In Docket No. SE 2004-045-A, the Secretary is petitioning for the assessment of a civil
penalty of $1,550 for the alleged violation of section 75.334(b)(l) contained in Citation No.
7670455. Also, she seeks the assessment of a civil penalty of $164 for an alleged violation of
mandatory safety standard 30 C.F.R. §75.323(e). The alleged violation is contained in Citation
No. 7669872, issued on June 19, 2003.
In Docket No. SE 2003-138-A, the Secretary is petitioning for the assessment of a civil
penalty of $317 for an alleged violation of section 75.334(b)(l) contained in Citation No.
7670075. The violation allegedly occurred on August 14, 2002.
II.
The Motion in Limine

In the part of the consolidated case that involves Citation No. 7670455 and Order No.
7670457, JWR moves to exclude from evidence the following items and testimony: certain
specified exhibits that relate to a June 28, 2003 through July 1, 2003 ventilation survey
conducted at JWR' s No. 5 Mine by MSHA technical support expert, John Urosek; an MSHA
memorandum dated August 4, 2003, titled "Results of an Underground Mine Air Pressure
Quantity Investigation at ... [JWR's] No. 5 Mine;" notes of MSHA Inspector William R. Spens
from his investigation of the mine's ventilation system from June 27, 2003 through July 2, 2003;
all testimony of John Urosek; all testimony of William Spens; and all testimony relating to any
investigations or inspection of the ventilation system at the mine conducted after the issuance of
the June 27, 2003 order (Order No. 7670457).
The company argues that the written material and the testimony is excludable because an
inspector must believe that the operator has violated a mandatory health or safety standard before
he or she issues a citation or order. Therefore, the pertinent question is "whether the inspector
reasonably believed that a violation of section 75.334(b)(l) existed, not whether the inspect[or]
(or MSHA) can later justify an unjustifiable citation and order.... "(Mot. 2). According to
JWR, an investigation or inspection occurring after the issuance of the citation and order is not
relevant and has "no bearing on whether the [i]nspector believed the operator had violations of
any mandatory health or safety standards" aQJ. Moreover, the testimony of Messrs. Urosek and
Spens would bring forth no firsthand knowledge of the facts underlying the citation and the order
since they were not part of the decisional process to issue the two enforcement actions (IQ... 3-4).

26 FMSHRC 824

m.
Ruling on Motion in Limine
I decline to exclude the written materials and testimony because I cannot conclude they
are in fact irrelevant to the issues at hand. The primary issue concerning Citation No. 7670455
and the subsequent order is whether or not a violation of section 75.334(b)(l) occurred on
June 26, 2003, at 7:00 p.m., and secondary issues involve the alleged significant and substantial
(S&S) nature of the alleged violation, the degree of negligence of JWR (assuming a violation is
found), and whether on June 27 it was reasonable for the inspector to decline to extend the time
for abatement of the citation. It is conceivable that each item of evidence JWR seeks to exclude
could have a bearing on these issues.
In declining to exclude the evidence, I note my disagreement with JWR's contention that
investigations occurring after issuance of a citation or order cannot be used to establish a
violation cited prior to the investigation. Evidence discovered post-citation may be used- and
not infrequently is used - to prove that prior alleged conditions existed. As counsel for the
Secretary points out, the question is what the facts were at the time the violation was cited, and
proof used to find the answer is not restricted to those facts that were in the inspector's mind
when he or she issued the citation (See's Statement in Opp. to Mot. in Limine 3).

IV.
The Motion to Enforce Settlement and Ruling
JWR also moves to enforce a settlement agreement it contends it reached with counsel for
the Secretary. In its motion, JWR states that the parties began earnestly to discuss a settlement of
these cases around September 10, 2004, and that counsel for the Secretary forwarded to counsel
for JWR a draft settlement agreement on or around September 14. The proposed agreement
concerned all issues in these cases except the alleged violations of section 75. 232(e) contained in
Citation No. 7669872 (Docket No. SE 2003-45-A), which the parties believed could be
appropriately submitted for decision on the basis of motions for summary judgment. Discussions
continued between counsel and, on September 21or22, counsel for JWR proposed adding seven
additional words to the draft agreement. According for JWR, the proposed additional words
were discussed on the morning of September 22, and the parties agreed to the September 15
settlement proposal, leaving out the proposed seven words. At this point, counsel for JWR
understood the case was settled. However, on the afternoon of September 22, counsel for the
Secretary began to state that there was no settlement and that terms of the September 15 proposed
settlement were not agreeable to the Secretary. In other words, in JWR's view, counsel for the
Secretary refuses to settle the matter on terms he proposed on September 15, terms JWR
accepted on September 22.
Counsel for the Secretary has yet to reply to this motion, but there is no need for him to
do so because it is clear to me that the motion cannot be granted. The settlement of contested

26 FMSHRC 825

issues is an integral part of dispute resolution under the Mine Act (Pontiki Coal C01p., 8
FMSHRC 668, 674 (May 1986)), and the Act requires settlements to be subject to the approval
of the Commission and its judges (see 30 U.S.C. §820(k)). For there to be an enforceable
settlement, there must be a genuine agreement between the parties; that is to say, there must be a
true meeting of the minds as to the settlement agreement's provisions (Peabody Coal Co., 8
FMSHRC 1265, 1266 (September 1986)).
Settlements of c~ntested civil penalty and associated review cases are submitted for
approval in the form of motions made orally on the record or motions made in writing. It is
worth noting that no motion to approve a settlement has been submitted to the undersigned in
these cases. Nor has there been any oral on-the-record representation as to a settlement and its
terms. JWR's own motion establishes that there has been no meeting of the minds as to the
terms of a settlement. Had there been an agreement, it would have been formalized and
submitted in writing or it would have been entered orally on the record and documented in
transcript form. The "back and forth" which counsel for the company describes is part of the
settlement process, a process that has yet to reach fruition. Controversies as to who agreed to
what and when are why the Commission's judges require fully-documented agreements before
they recognize a case as settled. The lesson is clear; the parties must formally document their
agreements if they want them to be enforced.

ORDER
For the above stated reasons, the motions are DENIED.

J)~J/.c!f6Vv/~
David F. Barbour
Administrative Law Judge
(202) 434-9980
Distribution: (Certified Mail)
Warren B. Lightfoot, Jr., Esq., David M. Smith, Esq., Maynard, Cooper & Gale, P.C., 1901
Sixth Avenue N., 2400 AmSouth/Harbert Plaza, Birmingham, AL 35203-2618
Thomas A. Grooms, Esq., U. S. Department of Labor, Office of the Solicitor, 2002 Richard
Jones Road, Suite B-201, Nashville, TN 37215
Judith Rivlin, Associate Regional Counsel, UMWA Headquarters, 8315 Lee Highway, Fairfax,
VA 22031-2215
ej

26 FMSHRC 826

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

October 14, 2004
RAG CUMBERLAND RESOURCES, LP,
Contestant

CONTEST PROCEEDINGS
Docket No. PENN 2000-181-R
Citation No. 3657290; 7/6/2000

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

Docket No. PENN 2000-182-R
Citation No. 3657291; 7/6/2000

SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
AD1\1INISTRATION (MSHA),
Petitioner

CIVILPENALTYPROCEEDING

Cumberland Mine
Mine ID 36-05018

Docket No. PENN 2001-63-A
A.C. No. 36-05018-04200

V.

RAG CUMBERLAND RESOURCES LP,
Respondent

Cumberland Mine

ORDER DENYING MOTION TO INTERVENE1
On August 10, 2004, the Commission directed reassessment of the civil penalty for
Citation No. 3657291 in view of its determination that RAG Cumberland Resources LP' s
(Cumberland's) failure to immediately correct hazardous bleeder conditions as required by the
mandatory safety standard in section 75.363(a) was not attributable to an unwarrantable failure.
26 FMSHRC 639. On October 8, 2004, the United Mine Workers of America (the Union) filed
a Motion to Intervene in the above captioned proceedings. The Union relies on Commission
Rule 2700.4(b)(l) that provides, in pertinent part, that "[a]fter the start of the hearing, ... [the
Union] may intervene upon just terms and for good cause shown." (Emphasis added). Neither
the Secretary nor Cumberland opposes the Union's motion. As discussed below, despite the lack
of opposition, the Union has failed to demonstrate the requisite good cause to permit intervention
at the late stage of these proceedings.
The hearing in these matters was conducted in two sessions from April 3 through
April 6, 2001, and from July 24 through July 25, 2001. Timothy W. Hroblak, a Union safety
committeeman, was a principal witness at the hearing. The Union did not move to intervene in

1

This Order supercedes the previous order issued October 12, 2004. The previous order
reflected docket numbers that were not on remand. A correction has been made to the case
caption and is reflected in this Order.
26 FMSHRC 827

the hearing proceeding. After the hearing, the Secretary and Cumberland filed post-hearing
briefs. An initial decision in these matters was issued on November 28, 2001. 23 FMSHRC
1241 (ALl). A copy of the initial decision was sent to the Union because the Union had filed a
related compensation case in Docket No. PENN 2000-204-C that was ultimately dismissed on
April 26, 2002. The Union did not move to intervene following its receipt of the initial decision.
The Commission granted Cumberland's petition for review of the initial decision on
January 7, 2002. On August 10, 2004, the Commission issued its appellate decision affirming
the fact of the cited violations in Citation Nos. 3657290 and 3657291, and reversing the initial
finding that the violation in Citation No. 3657291 was caused by Cumberland's unwarrantable
failure. The Commission's remand for reassessment of the civil penalty for Citation
No. 3657291 is currently before me. 26 FMSHRC 639.
In support of its motion, the Union notes the Secretary has informed it that she may not
appeal the Commission's decision. Consequently, the Union argues that it can no longer rely on
the Secretary to represent the Union's interests. The Union asserts that the Commission's
reversal of the unwarrantable failure "is an important aspect of this litigation that will likely have
repercussions beyond this matter." (Union mot. at p.2). However, the Union does not seek to
file a brief before the Commission. (Union mot. at p.3). Rather, the Union seeks to intervene
for the purpose of participating in judicial review. (Union mot. at p.2).
Under the Commission' s Rules, a person who is permitted to intervene is a party.
29 C.F.R. 2700.4(a). Thus, the purpose of conferring intervener status is to permit the intervener
to play an active role by participating in the hearing and/or by filing briefs in support of its
position. Here, however, the Union seeks party status at this late stage after briefs have been
filed, oral argument has been presented before the Commission, and the initial decisions on the
merits have been issued by the judge and the Commission. Granting the Union party status as an
intervener may confer the Union with appeal rights even if the Secretary and Cumberland do not
seek judicial review.
I am cognizant of the unopposed nature of the Union's motion. However a lack of
opposition cannot overcome the lack of propriety of the Union's motion. Here the Union seeks
to accomplish indirectly what it should seek directly. If the Union wishes to intervene in order to
participate in judicial review it must file a motion to intervene with the Court of Appeals if an
appeal is docketed. It is inappropriate for me to confer intervener status solely for an anticipated
appellate court proceeding.
Finally, the Union relies on Smoke v. Norton, 252 F.3d 468 (D.C. Cir. 2001) to support its
intervention request. The Union's reliance is misplaced. In Smoke the Government represented
the interests of a Native American tribal government. The tribal entity sought to intervene after a
summary judgment was granted against the Government, before the Government decided
whether to appeal, to ensure an appeal of the summary decision. The Court noted that the tribal
government had no occasion to intervene in order to protect its interests until after the judgment
was entered. Here, the Union has failed to avail itself of the intervener provisions in the
Commission's Rules. See 29 C.F.R. §§ 2700.4(b), 2700.73. Moreover, although their interests .
may coincide, the Secretary does not represent the Union in these matters.
26 FMSHRC 828

Accordingly, the Union's motion to intervene before the undersigned Administrative
Law Judge lacks the requisite showing of good cause. Consequently, the Motion to Intervene
IS DENIED as untimely.

Jerold Feldman
Administrative Law Judge

Distribution: (Certified Mail)

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center,
401 Liberty Avenue, Suite 1340, Pittsburgh, PA 15222
Susan Jordan, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center,
Suite 630 East, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
Judy Rivlin, Esq., United Mine Workers of America, 8315 Lee Highway,
Fairfax, VA 22031-2215

/hs

26 FMSHRC 829

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

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

October 14, 2004
CIVIL PENALTY PROCEEDINGS
Docket No. SE 2003-160
A.C. No. 01-01322-00004
Docket No. SE 2003-161
A.C. No. 01-01322-00005

JIM WALTER RESOURCES, INC.,
Respondent

No. 5 Mine
UNITED l'vllNE WORKERS
OF AMERICA,
Intervenor
SECRETARY OF LABOR,
:MINE SAFETY AND HEALTH
ADlVllNISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 2003-174
A.C. No. 01-01322-04271

V.

No. 5 Mine

JIM WALTER RESOURCES, INC.,
Respondent

RULINGS ON PENDING MOTIONS IN LIMINE
AND
MOTION FOR SUMMARY DECISION
Jim Walter Resources (JWR) has filed several pre-trial motions in limine and one motion
for summary decision, which are addressed herein.

I.
MOTION IN LIMINE TO EXCLUDE REPORT
First, the company has moved to exclude from evidence the report of the investigation
(the "Report") MSHA conducted into two explosions that occurred at JWR's No. 5 Mine on
September 23, 2001. The report, which is titled Report of Investigation Fatal Underground Coal
Mine Explosions September 23. 2002, was issued on December 11, 2002. The Secretary opposes
the motion. For the reasons that follow, I conclude that the report should not be excluded.
When ruling on any motion, a judge must keep in mind the basic principles governing the
subject litigation, foremost of these are the nature of the particular proceeding and the nature
26 FMSHRC 830

of the motion. This proceeding is administrative in nature and the motion requests exclusion of
potential evidence prior to being offered. The Commission long ago made clear that, when
rendering a decision, a judge must base his or her findings and conclusions on substantial
evidence[ 1] (Mid-Continent Resources, Inc., 6 FMSHRC 1132, 1135-36 (May 1984)). The
principal issues in these cases concern alleged violations of the Secretary's mine safety and
health regulations for underground mines found during the investigation. The Report contains
much information regarding the Secretary's view of the events leading to the accident, her
description of the accident, and her narrative description of some, but not all, of the enforcement
actions MSHA took and the violations it alleged as a result of the investigation. In addition, the
Report contains narrative descriptions of the investigation, as well as narrative discussions of the
mine's organization, the mine's physical layout, and mine procedures and systems that, in the
Secretary's view, relate to the explosion. Several mine maps also are included.
To be relevant, evidence must be both material and probative. To be material, it must be
offered to prove a proposition or event that is at issue or to provide background for understanding
the proposition or event. To be probative, it must tend to establish the proposition or event.
Joining these concepts, the Federal Rules of Evidence defines "relevant evidence" as "evidence
having a tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable th an it would be without the evidence" (Fed. R.
Evid. 401 ). The system of proof presupposes that all relevant evidence is admissible (Fed. R.
Evid. 402). While there are exceptions to keep otherwise relevant evidence from the record [2],
the judge is granted much discretion in ruling on admissibility. If evidence is relevant, fairness to
the parties and the judge's duty to facilitate full development of the record, warrant great restraint
in excluding the evidence from the record. 3

RULING
Given these underlying principles, the first issue before me is whether the Report is
relevant, and I conclude that it is. The Report not only concerns the investigation that lead
MSHA to issue the subject citations, in some instances it directly involves the specific citations
at issue. At one end of the spectrum, the Report may only provide background for understanding

Substantial evidence is "such evidence as a reasonable mind might find adequate
to support [the judge's] conclusion" (Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)).
2

See e.g., Fed. R. Evid. 403 (providing for exclusion of relevant evidence "if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues . .. or considerations of undue delay, waste of time, or needless presentation of cumulative
evidence").
3

The weight the judge gives to the evidence once admitted is another matter

entirely.
26fMSHRC831

the events at issue. At the other end, it may corroborate and supplement testimony establishing
alleged violations. Either way it is relevant. However, like any relevant evidence admitted into
evidence, it will be subject to rebuttal, and the weight that is ultimately attributed to the Report,
or to the parts of the Report used by the Secretary and/or the UMWA, can be impacted
fundamentally by that rebuttal.
As noted, while all admitted evidence must be relevant, not all relevant evidence must be
admitted. Relevant evidence may be excluded if it is only minimally relevant that is if the judge
finds it is too tangential to the questions at issue. At law, otherwise relevant hearsay evidence is
routinely barred. In arguing for the Report's exclusion, JWR notes that it is hearsay and argues
that its admission would be fundamentally unfair (Mot.3). It asserts that hearsay evidence, such
as the Report, is only admissible if it meets a high standard of reliability and truthfulness, and it
points to Rule 803(8)(c) of the Federal Rules (Fed. R. Evid. 803(8)(c)), which permits admission
of results and reports of investigations "made pursuant to law, unless the sources of information
or other circumstances indicate lack of trustworthiness" (Mot. 4-5). In JWR' s view, the Report's
lack of trustworthiness is established by its "impermissible legal conclusions and unreliable
factual findings" (Id. 5). JWR argues that Rule 803(8)(c) bars legal conclusions within a report,
and since the Report inextricably mixes legal conclusions with purported factual findings, the
entire report must be excluded iliL. 6). JWR goes on to detail many circumstances which, it
asserts, attest to the unreliability of the Report and to the inherent bias of MSHA in presiding
over the formulation of the Report (Mot. 11-31 ).

In my view, JWR •s objections and concerns do not on their face set forth adequate
reasons to bar the Report from the record. If the Report is admitted, it will not speak for itself.
For it to bear on the outcome of the case, it will have to be supplemented by testimony. Once the
testimony has been offered, JWR will have an opportunity to impeach the testimony and on
cross-examination to otherwise question the Report's reliability. In short, it will have the
opportunity to use its concerns to diminish the weight attributed to the Report or to its pertinent
parts. The essential point is that the Report will be of probative value only to the extent it
supports my ultimate findings, and that value will be measured by weighing the Report against
various factors, a crucial one being whether those whose statements and opinions are reported are
available for in-court cross-examination and whether JWR persuasively attacks the reliability and
accuracy of the witnesses. Moreover, even if the Report were inherently prejudicial to the
company, which I do not find, the in-court right to impeach the Report as actually used at trial
before the judge, fully protects JWR from invidious conclusions based on the Report's contents.
Because I conclude the Report is relevant to the issues before me and because I conclude
the company's concerns of fairness and prejudice, inter alia, can be met at trial, the motion will
not be granted.

26 FMSHRC 832

II.

MOTION IN LIMINE TO EXCLUDE EVIDENCE OF PRIOR VIOLATIONS
Second, JWR has moved to exclude evidence of prior violations of 30 C.F.R. § 75.400
for any purpose and to limit consideration of evidence of prior violations of 30 C.F.R. § 75.403.4
As grounds for its motion, JWR speculates that "MSHA may intend to introduce evidence of past
violations of§ 75.400 and§ 75.403 in an attempt to show that: (1) because it violated these
standards in the past, it mus~ have been in violation of them on September 23, 2001; (2) ... it
knew or should have recognized inadequate rock dust levels and addressed them during pre- and
on-shift examinations on September 22 and 23, 2001; and (3) ... it was on notice of the need to
be more attentive to ensuring compliance with them and, therefore, its actions on September 22
and 23, 2001 were negligent and the result of an unwarrantable failure to comply with the law"
(Mot. 2). The company argues that the requirements of section 75.400 are independent of the
requirements of section 75.403, and, as such, have no factual or legal bearing on whether
violations of section 75.403 or violations of the pre- and on-shift examination standards
occurred, or on whether JWR was negligent or unwarrantably failed to maintain adequate levels
of rock dust on the date of the explosion, or failed to identify allegedly inadequate rock dust
levels during pre- and on-shift examinations ffiL 2-3). JWR also argues that prior violations of
section 75.403 arc not at issue because JWR was not advised it was out of compliance with the

4

Section 75.400 prohibits the accumulation of combustible materials in
underground coal mines. The regulation states:
Coal dust, including float coal dust deposited on rock-dusted
surfaces, loose coal, and other combustible materials, shall not be
permitted to accumulate in active workings, or on diesel-powered
and electric equipment therein.
Section 75.403 states:
Where rock dust is required to be applied, it shall be distributed
upon the top, floor, and sides of all underground areas of a coal
mine and maintained in such quantities that the incombustible
content of the combined coal dust, rock dust, and other dust shall
be not less than 65 per centum, but the incombustible content in the
return aircourses shall be not less than 80 per centum. Where
methane is present in any ventilating current, the per centum of
incombustible content of such combined dusts shall be increased
1.0 and 0.4 centum for each 0.1 per centum of methane where 65 to
80 per centum, respectively, of incombustibles are required.

26 FMSHRC 833

incombustible content levels of dust alleged in almost all of. the prior violations until after
September 23, 2001. In the company's view, for penalty assessment purposes, the only relevant
prior violations to consider are repeat violations of the standards the company is found to have
violated (Mot. 11 at n.7).

RULING
As stated above, when ruling on any motion, a judge must keep in mind the basic
principles governing the subject litigation, the foremost of which are the nature of the particular
proceeding and the nature of the motion. The motion relates only to Docket No. SE 2003-160,
which, of course, is a civil penalty proceeding. The primary issues in the proceeding are whether
the alleged violations in fact occurred, and, if so, whether the violations were the result of JWR's
negligence and unwarrantable failure to comply with the standards. If JWR violated a standard, a
civil penalty must be assessed for the violation, and the assessment must take account of the civil
penalty criteria of section 1 lO(i) of the Act (30 U.S.C. § 820(i)).
In Docket No. SE 2003-160, eight violations are alleged to have occurred. They are set
forth in the following citations and orders:
1. Citation No. 7328081 alleges a violation of section
75.403 and charges that the vast majority of dust samples collected
during the investigation of the explosion did not meet the
regulation's requirements for incombustible content of combined
coal dust, rock and other dust;
2. Order No. 7328082 alleges a violation of section
75.1101-23(a) and charges that JWR's adopted and approved
program of instruction in the location and use of fire fighting
equipment, etc., was not followed as required 5 ;
3. Citation No. 7328083 alleges a violation of section
75.202(a) and charges that the roof in the No. 2 Entry of the No. 4
Section at the intersection of survey station No. 13333 was not
supported or otherwise controlled to protect persons from hazards

5

Section 75. 1101-23(a) states in part:
Each operator ... shall adopt a program for instruction of all
miners in the location and use of fire fighting equipment, routes of
travel to the surface, and proper evacuation procedures to be
followed in the event of an emergency.... "

26 FMSHRC 834

related to a roof fall 6 ;
4. Order No. 7328085 alleges a violation of section
75.l 101-23(c) and charges that JWR failed to conduct fire and
emergency drills at intervals of not more than 90 days, in that
interviews and miner records indicated that no drills had been
conducted since March, 2001 7 ;

5. Order No. 7328088 alleges a violation of section
75.360(b)(3) and charges that an adequate pre-shift examination
was not conducted in the No. 4 Section of the mine for the
oncoming afternoon shift on September 22, 2001, in that the rock
dust which had been applied was inadequate, obvious and
widespread, but was not identified as a hazard by the pre-shift
examiner8;
6. Order No. 7328104 alleges a violation of section
75.362(a)(l) and charges that JWR did not perform an adequate onshift examination in the No. 4 Section of the mine where two
mechanics were assigned to work on September 22, 2001, in that
the rock dust which had been applied was inadequate, obvious and
widespread, but was not identified as a hazard by the on-shift

6

Section 75.202(a) states:
The roof, face and ribs of areas where persons work or travel shall
be supported or otherwise controlled to protect persons from
hazards related to falls of the roof, face or ribs and coal or rock
bursts.

7

Section 75.1101-23(c) states:
Each operator of an underground coal mine shall require miners to
participate in fire drills, which shall be held at periods of time so as
to ensure that all miners participate in a drill no later than January
31, 1974, and at intervals of not more than 90 days thereafter.

8

Section 75.360(b)(3) requires the person conducting the pre-shift examination to
examine for hazardous conditions at "[w]orking sections and areas where mechanized mining
equipment is being installed or removed, if anyone is scheduled to work on the section or in the
area during the oncoming shift."

26 FMSHRC 835

examiner;
7. Order No. 7328105 alleges a violation of section
76.360(b)(3) and charges that JWR did not conduct an adequate
pre-shift examination in the No. 4 Section where miners were
scheduled to perform maintenance work and to install roof bolts
during the oncoming shift on September 23, 2001, in that the
examination did not include working places where miners were
scheduled to install roof bolts, did not include the cross-cuts
between the No. 2 and No. 3 entries, and the rock dust which had
been applied was inadequate, obvious and widespread, but was not
identified as a hazard by the pre-shift examiner;
8. Order No. 7328106 alleges a violation of section
75.360(b)(3) and charges that JWR did not conduct an adequate
pre-shift examination in the No. 4 Section where miners were
scheduled to install cribs during the oncoming shift on September
23, 2001, in that rock dust which had been applied was inadequate,
obvious and widespread, but was not identified as a hazard by the
pre-shift examiner.
The operator's history of previous violations is the first of the civil penalty assessment
criteria listed in the Act (30 U.S.C. § 820(i)). In assessing civil penalties, the Act and the
Commission require that a judge take account not only of the operator's prior history of
violations of the specific standards that have been violated, but of its general history as well. As
the Commission has repeatedly noted, the language of section l lO(i) does not limit the scope of
the applicable history to violations that are similar to the violations that are proven at trial (see
~' Jim Walter Resources, Inc., 18 FMSHRC 552, 557 (April 1996)). 10 It long has been the

9

Section 75.362(a)(l) states in part:
At least once each shift, or more often if necessary for safety, a
certified person designated by the operator [ i.e., the on-shift
examiner] shall conduct an on-shift examination of each section
where anyone is assigned to work during the shift and any area
where mechanized equipment is being installed or removed during
the shift. The ... [on-shift examiner] shall check for hazardous
conditions ... .

10

For this reason, JWR's suggestion that "unrelated violations" (presumably
violations of standards other than those found to have existed) should not be considered as part
of JWR' s relevant history of prior violations, is contrary to Commission precedent and is
26 FMSHRC 836

practice in civii penalty cases for a judge to consider as relevant all paid violations that occurred
within 24 months of a found violation. To the extent previous violations of sections 75.400 and
75.403 come within this parameter, they are relevant and will not be excluded.
Nor am I persuaded that evidence of any prior violations of section 75.400 or section
75.403 offered as proof that JWR violated section 75.403 (as alleged in Citation No. 7328083) or
section 75.360(b)(3) (as alleged in Orders No. 7328088, 7328105 and 7328106) and section
75.362(a)(l) (as alleged in Order No. 7328104) should be excluded. It is obviously true, as the
company points out, that section 75.400 and section 75.403 have different requirements and, at
this point, it seems a "reach" to imagine how prior violations of section 75.400 and section
75.403 might in part establish the alleged violations of section 75.403 and the pre-shift and onshift examination standards, but, without the testimony of those who assert a connection between
the past violations and an alleged violation, I cannot entirely rule out such a connection and,
hence, I cannot rule out the relevancy of the past violations for this purpose. As previously
noted, any testimony offered by MSHA in this regard will be subject to cross-examination, and
the efficacy of the Secretary's position will be best judged on the basis of the fully developed
record. Although the company asserts that allowing evidence of prior violations of section
75.400 and section 75.403 to show that JWR violated section 75.403 and the cited pre-shift and
on-shift examination standards would be prejudicial to its interests (Mot. 10), this is an
administrative proceeding where the judge can weigh the totality of the evidence, not a case in
which evidence needs to be excluded to shield a jury from the taint of bias.
Moreover, contrary to JWR's assertion, past violations of section 75.400 and section
75.403 may be relevant to determine whether the company was negligent and/or unwarrantably
failed to comply with section 75.403, section 75.360(b)(3) and section 75.362(b)(l). Negligence
is the failure to exercise the care reasonably required under the circumstances and unwarrantable
failure is "aggravated conduct, constituting more than ordinary negligence by a mine operator in
relation to a violation" (Emery Mining Corp., 9 FMSHRC 1995, 2004 (December 1987)). In
determining if conduct is unwarrantable, the Commission has recognized a number of nonexclusive factors that are relevant (see e.g., Mullins and Sons Coal Co., 16 FMSHRC 192, 195
(February 1994); Peabody Coal Co., 14 FMSHR.C 1258, 1261(August1992)) and has stated that
it is the totality of the operator's conduct in relation to the violation that must be considered (The
Helen Mining Co., 10 FMSHRC 1672, 1676 n. 4 (December 1988), citing Emery Mining Corp.,
9 FMSHRC 1997 (December 1987); see also FMC Wyoming Corp., 11 FMSHRC 1622, 1627-28
(September 1989)). (Logically, the same analysis applies when making a negligence finding.)
Thus, where an operator has been placed on notice about a condition that constitutes a violation,
the level of priority placed on abatement of the problem is a factor properly considered in a
negligence and unwarrantable failure analysis (see, e.g., Enlow Fork Mining Co., 19 FMSHRC 5
(January 1997)). If, as JWR maintains, in many instances it was not placed on notice of alleged
violations until after the explosions occurred, it may offer testimony to this effect at trial.
Certainly, such testimony would be relevant in assessing the priority the company gave to

rejected.
26 FMSHRC 837

maintaining the required incombustible content of dust in the are11 and to the totality of the
company's conduct.
For these reasons, the motion in limine to exclude evidence of prior violations will not be
granted.

III.
·MOTION FOR SUMMARY DECISION
OR
MOTION IN LIMINE TO EXCLUDE DUST SAMPLE RESULTS
Third, JWR has moved for a summary decision finding Citation No. 7328081, and Orders
No. 7328088, 7328104, 7328105, and 7328106 invalid; or, in the alternative, for an order in
limine, excluding from evidence the results of mine dust samples taken by MSHA after the
explosions on September 23, 2001.

As noted above, Citation No. 7328081 charges, inter alia, that JWR failed to maintain the
incombustible content of the mine dust at a required level throughout specified parts of the mine
and that the condition "contributed to the severity and extent of the second explosion." The
orders charge that JWR failed to properly pre-shift and on-shift pertinent parts of the No. 4
Section on the last several shifts prior to the explosions because the company failed to recognize
and address the inadequacy of the rock dust applications in the area.
To support the allegations relating to incombustible content, MSHA collected and
analyzed dust samples. The samples were collected from mid-October until mid-December
2001. The samples were analyzed at the agency's Mt. Hope, West Virginia laboratory. The
results of the samples purportedly showed that of 123 band samples taken, 121(over98%) had
incombustible levels below the regulatory requirements - that is, the incombustible content of
the combined coal dust, rock dust and other dust was less than 65% in the intake air courses and
less than 80% in the return air courses.
JWR, however, points out that coal extracted from the mine comes for the Blue Creek
Coal Seam, a soft and unusually friable seam that readily crumbles into dust (Mot. 7) and that
the sample results should "come as no surprise" since they were taken: after two explosions,
significant flooding, and the passage of 7 toll weeks (Mot. 8-9). In the company's view,
"common sense" indicates that, given these factors, the samples could not possibly accurately
depict pre-explosion conditions at the mine (Mot. 9). Therefore, the samples are not evidence of
what they purport to prove and, because the citation and orders are premised on the samples, the
enforcement actions are invalid (Mot. 9-10). 11 In other words, the samples should be excluded

11

The company cites to cases upholding the principle that a test result used as
evidence of a past event must reflect conditions sufficiently comparable to the conditions that
existed at the time of the past event (see. e.g., Hall v. General Motors Corp., 647 F.2d 178, 180
26 FMSHRC 838

as irrelevant because they are not representative of pre-explosion cc::mditions (Mot. 29).
JWR also attacks the samples as unreliable and, hence, inadmissable because they are not
identified as to their source and because they are not representative of the whole substance they
purport to represent (Mot. 38). The company asserts all of the purported band samples are not in
fact band samples; some are "grab" samples and, therefore, are inherently unrepresentative (Id.).
It also asserts, in several instances, MSHA relied on two different sampling results from the same
location (Mot. 39), and that .some of the samples where contaminated by dust blown from other
areas during the explosion (Mot. 39).

For these reasons, summary decision should be granted, vacating the citation and three of
the four orders, and the fourth order (Order No. 7328105) should be modified to eliminate any
reference to inadequate rock dust and the failure of the examiners to detect (Mot. 40).
Finally, although the citation and orders on their face indicate the alleged violations are
based on the collected dust samples, JWR notes that Inspector Murray, who issued the citations
and orders, stated in deposition testimony that the even if the dust samples do not represent
conditions as they existed prior to the explosion, the enforcement actions are nonetheless valid
because of "the fact of the explosion" itself (Mot. 42, quoting Murray dep. 391-392). JWR
points out that Clete Stephan, who it describes as MSHA's "principal expert on the issue" (Mot.
42), stated that an explosion could be propagated even with 92 or 93 percent incombustible
content or with "a little sprinkling of float coal dust on top surfaces" (Mot. 42, quoting Stephan
dep. 416). For these reasons, JWR maintains the fact of the explosion cannot in itself support
the citation and orders (Mot. 42).

If summary decision is denied, JWR, nonetheless, wants the samples barred from
admission to the record.

RULING
Commission Rule 67 provides:
A motion for summary decision shall be granted only if the entire
record including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows: (1) that there is
no genuine issue as to any material fact; and (2) that the moving
party is entitled to summary decision as a matter of law (29 C.F.R.
§2700.67).
The material facts involved in establishing the violation of section 75.403 as set forth in
Citation No. 7328081 tum on the question of whether rock dust in the cited areas was maintained

(D.C. Cir. 1980); Mattis v. Carlon Electrical Products, 295 F.3d 856, 863 (8th Cir. 2002)).
26 FMSHRC 839

in such quantities that the incombustible content of the combined coal dust, rock dust and other
dust was not less than 65%. It is clear from the citation that the Secretary's allegation of a
violation is premised on the results of the samples. If the samples do not support the alleged
violation, it cannot be sustained, unless the Secretary can prove an alternative plausible theory.
The material facts involved in establishing a violation of section 75. 360(b)(3) as set forth in
Orders No. 7328088, 7328105 (in part), and 7328106 and section 75.362 (a)(l) as set forth in
Order No. 7328104 are whether the pre-shift examiner conducted a detective examination on the
oncoming afternoon shift on September 22, 2001, in failing to identify inadequate rock dust
applications which then existed in the areas the examiner traveled (Order 7328088); whether the
on-shift examiner conducted a detective examination in the No. 4 Section on the afternoon shift
on September 22, 2001, in failing to identify inadequate rock dust applications which then
existed (Order No. 7328104); whether the pre-shift examiner conducted a detective examination
on the No. 4 Section, where persons were scheduled to perform maintenance work and install
roof bolts, in failing to identify inadequate rock dust applications which then existed (Order No.
7328105); and whether the pre-shift examiner conducted a detective examination on the No. 4
Section, where persons were scheduled to work installing cribs, in failing to identify inadequate
rock dust applications which then existed (Order No. 7328106). It is clear the allegations of
violations largely are premised on the assertion that the inadequate rock dust applications were
"obvious and widespread" and "should have been recognized by a prudent examiner" (e .g., Order
7328106).
While JWR has raised fundamental questions concerning the relevance of the sample test
results as indicative of the conditions existing at the time the examinations were conducted, the
Secretary has responded by asserting that the sample results are relevant and that they establish a
prima facie case JWR was not in compliance with section 75.403. She asserts that, if anything,
the test results were altered in JWR' s favor by the explosion and its aftermath (Sec.' s Resp. 3), in
that the explosion actually increased the percentage of incombustible content, "because coal dust
is consumed and incombustible content settles out as the forces dissipate in the area the dust
originally was located" (Id. 9). Indeed, according to the Secretary, the incombustible content
ration may have reached a level 5% to 7% higher than that which existed before the explosion
(IQ.,_ 10). Moreover, flooding that followed the explosion would have had a neutral effect, if any,
on the samples, in that coal and rock particles "would have been drained out of the flooded area
in equal proportion to their presence in the area" ffil.10). Finally, the Secretary argues that rib
sloughage caused by the unusually friable coal did not materially affect the sample results and
that the samples were properly collected and analyzed (ld.12-13). Thus, in the Secretary's view,
the question of the reliability of the sample results is a factual dispute that forecloses summary
decision ffil 6-7).
With regard to the alleged violations of section 75.360(b)(3) and section 75.362(a)(l), the
Secretary maintains that the pre-shift and on-shift examiners violated that standards by failing to
detect the inadequate rock dust conditions that existed and by failing to detect the "float coal dust
explosion hazard" (Sec.'s Resp. 14). The Secretary adds that, ''The operator appears to have
failed to inform its examiners when MSHA inspectors found hazardous conditions in areas that
26 FMSHRC 840

had been examined .... [and] that over time a degree of laxness in the detection and correction
of hazardous conditions occurred at the ... [m]ine" (Id.). She asserts her case in this regard rests
on more than sample results.
JWR's motion for summary decision must fail, in that material facts -namely, those
concerning the relevance of the dust samples - very much are in dispute. Do the samples
establish.the incombustible content of the dust as it existed prior to the explosion? The issue
appears to be critical to est.ablishing the alleged violation of section 75 403 and has a bearing
also on·proving the alleged violations of section 75.360(b)(3) and section 75.362(a)(l).
Although JWR has raised significant questions concerning the effects of the explosion and its
aftermath upon the incombustible content of the samples, the Secretary has responded that she
can answer the questions with facts that prove the sample results accurately reflect pre-explosion
conditions. The answer will lie in the proof the parties offer at trial. Moreover, while the results
of dust samples may be indicative of the evident nature of the allegedly inadequate applications
of rock dust, they are not the only evidence that can conceivably support finding violations of the
pre-shift and on-shift examination standards. Credible evidence of the visual appearance of the
areas and credible evidence of the significance of the appearance also may be offered. Again, the
answer will lie in the proof the parties offer at trial.
The motion in limine also must fail. I cannot conclude based on the record as it now
stands that the sample results are irrelevant to establishing the alleged violations. Indeed,
depending on the evidence offered at trial, they may be highly relevant. Nor is failing to exclude
them prejudicial to JWR when, at trial, the company will have the opportunity to raise questions
regarding the effects of the explosions on the sample results and to offer evidence as to those
effects. It is not implausible that the company will be able to establish that no significant weight
should be attributed to any of the sample results, in which case the Secretary's attempts to prove
a violation of section 75.403 may be severely impaired, and her attempts to prove violations of
section 75.360(b)(3) and section 75.362(a)(l) also will be compromised, but, the issues must be
tried to find out.

ORDER
For the reasons stated above, JWR's motions are DENIED.

JJv;cl{f_;~
David F. Barbolir
Administrative Law Judge
(202) 434-9980

26 FMSHRC 841

Distribution: (Certified Mail and by Facsimile)
Edward H. Fitch, Esq., Keith E. Bell, Esq., U.S. Department of Labor, Office of the Solicitor,
1100 Wilson Blvd., 22"d Fl., Arlington, VA 22203
Judith Rivlin, Associate Regional Counsel, UMWA Headquarters, 8315 Lee Highway, Fairfax,
VA 22031-2215
Timothy M. Biddle, Esq., Thomas C. Means, Esq., Crowell & Moring, lLP, 1001 Pennsylvania
Avenue, N.W., Washington, DC 20004-2595
David M. Smith, Esq., Maynard, Cooper & Gale, P.C., 1901 Sixth Avenue North,
2400 AmSouth/Harbert Plaza, Birmingham, AL 35203-2618

ej

26 FMSHRC 842

*

U.S. GOVERNMENT PRINTING OFFICE: 2004 310-984115910