NOTICE

BEGINNING WITH THE 2006 CALENDAR YEAR,
THE COMMISSION WILL BE PRINTING ON A
BI-MONTHLY SCHEDULE.

BOOKS WILL BE PRINTED FOR THE FOLLOWING
MONTHS:

JANUARY- FEBRUARY
MARCH - APRIL
MAY-JUNE
JULY - AUGUST
SEPTEMBER - OCTOBER
NOVEMBER - DECEMBER - 2006 INDEX

DECEl\.1.BER 2005

COMMISSION DECISIONS AND ORDERS

12-08-2005
12-08-2005
12-08-2005
12-08-2005
12-08-2005
12-08-2005
12-12-2005
12-14-2005
12-14-2005
12-14-2005
12-14-2005
12-16-2005
12-16-2005
12-16-2005

Premier Elkhorn Coal Company
Gibson County Coal, UC.
Chestnut Coal
Riverside Cement Company
John J. Stech employed by Eighty-Four Mining
Gary D. Neil and others employed by
Elk Run Coal Company
Elk Run Coal Company, Inc.
Lien Transportation Company
Capitol Aggregates, Ltd.
Riverton Investment Corp.
Granite Rock Company
R & D Coal Company, Inc.
Oak Grove Resources, ILC.
Jones Quarry, Inc.

KENT 2006-18
LAKE2006-4
PENN2006-l
WEST 2006-10-M
PENN 2005-232

Pg. 879
Pg. 882
Pg. 885
Pg. 888
Pg. 891

WEVA 2005-173
WEVA 2003-149
CENT 2005-254-M
CENT 2005-262-M
WEVA 2006-27-M
WEST 2006-2-M
PENN 2006-36
SE 2006-24
WEST 2006-129-M

Pg. 895
Pg.899
Pg. 912
Pg. 915
Pg. 918
Pg.921
Pg. 925
Pg. 928
Pg. 931

WEV A 2005-20-R
CENT 2005-71-M
SE 2005-28-R
WEVA 2002-111-R
SE 2005-325-M

Pg. 935
Pg.950
Pg. 968
Pg. 979
Pg.980

ADMINISTRATIVE LAW JUDGE DECISIONS

12-02-2005
12-09-2005
12-20-2005
12-21-2005
12-30-2005

Speed Mining, Inc.
T. F. Luke & Sons, Inc.
Jim Walter Resources, Inc.
Spartan Mining Company
Crimson Stone

Pg. 1 - 9

2005 INDEX OF DECISIONS

i

DECEMBER 2005

Review was granted in the following cases during the month of December:
Secretary of Labor, MSHA v. Sherwin Alumina Company, Docket No. CENT 2005-180-M.
(Chief Judge Lesnick, unpublished Default Order issued November 2, 2005).
Secretary of Labor, MSHA v. Jim Walter Resources, Inc., Docket No. SE 2003-160.
(Judge Barbour, November 1, 2005).

No cases were filed in which Review was denied during the month of December

ii

C01\1MISSION DEQSIONS AND ORDERS

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

December 8, 2005
SECRETARY OF LABOR,
l\1INE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. KENT 2006-18
A.C. No. 15-18808-60638

V.

PRE1\.1IER ELKHORN COAL COMPANY

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 October 14, 2005, the Commission received from Premier

Elkhorn Coal Company ("Premier Elkhorn") a motion made by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On June 29, 2005, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to Premier Elkhorn for a citation issued to the
company by MSHA on May 19, 2005. Mot. at 1. Premier Elkhorn states in its motion that it had
already timely contested the citation. Id. That contest is the subject of Docket No. KENT 2005307-R, which is currently on stay before Commission Administrative Law Judge Avram
Weisberger. Premier Elkhorn states that it failed to timely contest the proposed penalty
assessment at issue because the assessment erroneously included another citation and Premier
Elkhorn believed that a corrected assessment would follow. Id. The Secretary states that she
does not oppose Premier Elkhorn' s request for relief.
27 FMSHRC 879

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Com.mission O(ders 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).
Having reviewed Premier Elkhorn' s motion, in the interests of justice, we remand this
matter to the Chief Administrative Law Judge for a determination of whether good cause exists
for Premier Elkhorn' 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.

27 FMSHRC 880

Distribution
Marco M. Rajkovich, Jr., Esq.
Noelle Holladay True, Esq.
Rajkovich, Williams, Kilpatrick & True, Pl.LC
2333 Alumni Park Plaza, Suite 310
Lexington, KY 40517
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22°d Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 881

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

December 8, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEAL1H
ADMINISTRATION (MSHA)

Docket No. LAKE 2006-4
A.C. No. 12-02215-54343

v.
GIBSON COUNTY COAL, LLC

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 October 12, 2005, the Commission received from Gibson
County Coal, LLC ("Gibson") a motion made by counsel to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On April 12, 2005, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to Gibson for an order issued to the company
by MSHA on January 26, 2005. Mot. at 1. Gibson states in its motion that it had already timely
contested the order, which is the subject of Docket No. LAKE 2005-68-R. Id. at 1-2. This
proceeding is currently on stay before Commission Administrative Law Judge T. Todd Hodgdon.
Gibson states that it failed to timely contest the proposed penalty assessment at issue due to an
oversight by its interim safety director and a member of its accounting staff. Id. at 2-3; Aff. of G.
Timmons. The Secretary states that she does not oppose Gibson's request for relief.

27 FMSHRC 882

We have·held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Co~ission - 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).
Having reviewed Gibson's motion, in the interests of justice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for Gibson'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.

StanleyC. S

27 FMSHRC 883

Distribution
Timothy M. Biddle, Esq.
Crowell & Moring LLP
1001 Pennsylvania Avenue NW
Washington, DC 20004-2595
W. Christian Schumann, Esq.
Office of the Solicitor ·
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 884

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

December 8, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. PENN 2006-1
A.C. No. 36-07059-63884

v.

CHES1NUT COAL

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 October 4, 2005, the Commission received from Chestnut
Coal ("Chestnut") a motion made by counsel to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On August 10, 2005, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to Chestnut for citations and orders issued to
the company by MSHA on February 1and14, 2005. Mot. at 1. Chestnut states in its motion that
it had already timely contested the citations and orders, which are the subject of Docket Nos.
PENN 2005-120-R through PENN 2005-123-R and PENN 2005-125-R through PENN 2005129-R.1 Mot. at 1. Those proceedings are currently on stay before Commission Administrative
Law Judge Gary Melick. Chestnut states that it failed to timely contest the proposed penalty
1

On August 4, 2005, Chestnut's contest in Docket No. PENN 2005-124-R was
dismissed because the Secretary had vacated the citation at issue.
27 FMSHRC 885

assessment at issue because Joe Shingara, Chestnut's management representative, believed that
the company's contests of the citations and orders obviated the need to respond to the proposed
penalty assessment. Id. at 1-2; Aff. of J. Shingara. The Secretary states that she does not oppose
Chestnut's request for relief.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Com.mission 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 Com.mission 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).
Having reviewed Chestnut's motion, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Chestnut'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.

'1..1 FMSHRC 886

Distribution
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, IvID 20705
W . Christian Schumann, Esq.
Office of the Solicitor ·
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W ., Suite 9500
Washington, D .C. 20001-2021

27 FMSHRC 887

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

December 8, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2006-10-M
A.C. No. 04-00011-39628

v.
RIVERSIDE CEMENT COMPANY

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 October 4, 2005, the Commission received from
Riverside Cement Company ("Riverside") a motion made by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On October 6, 2004, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to Riverside for a citation issued to the
company by MSHA on July 12, 2004. Mot. at 1. Riverside states in its motion that it had
already timely contested the citation. Id. That contest is the subject of Docket No. WEST 2004420-RM, which is currently on stay before Commission Administrative Law Judge Richard W.
Manning. Riverside states that it failed to timely contest the proposed penalty assessment at
issue because it had called MSHA about discrepancies in the assessment and MSHA had told it
to wait to file its hearing request until it received a revised assessment. Id. at 2-3; Aff. of D.
Fionda. According to Riverside, however, it received no revised assessment or other
27 FMSHRC 888

communications from MSHA regarding the matter. Id. The Secretary states that she does not
oppose Riverside's request for relief.
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).
Having reviewed Riverside's motion, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Riverside'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.

27 FMSHRC 889

Distribution
Margaret S . Lopez, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
2400 N Street NW, 5th Floor
Washington, DC 20037
W. Christian Schumann, Esq.
Office of the Solicitor ·
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C . 20001 -2021

27 FMSHRC 890

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

December 8, 2005

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2005-232
A.C. No. 36-00958-58520 A

v.
JOHN J. STECH,
employed by EIGHTY-FOUR MINING CO.

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 August 8, 2005, the Commission received a motion made
by counsel on behalf of John J. Stech, employed by Eighty-Four Mining Co., to reopen a penalty
assessment against Stech under section l lO(c) of the Mine Act, 30 U.S.C. § 820(c), that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a). Counsel filed an amended motion on August 12, 2005.
Under the Commission's Procedural Rules, an indi vidual charged under section 110(c)
has 30 days following receipt of the proposed penalty assessment within which to notify the
Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.
On June 6, 2005, the Department of Labor's Mine Safety and Health Administration
("MSHA") mailed a proposed penalty assessment to Stech alleging that he was personally liable
under section llO(c) of the Mine Act for a citation (No. 7018563) issued to his employer,
Eighty-Four Mining Co. Am. Mot. at 1-2. MSHA mailed the proposed penalty assessment to
Stech at the office of his counsel, though addressed simply to Stech, not to or in care of counsel.

27 FMSHRC 891

Id. at Ex. 1. 1
Stech's counsel states that the return receipt for the proposed assessment indicates that it
was delivered to and signed for by Penny Reddy, who according to counsel is employed by a
company in the same building as his firm, but which is on a different floor altogether and is not
related to his firm in any way. Id. at 2. Counsel for Stech only learned of the proposed
assessment on August 1, 2005 when counsel for the Secretary in a related matter provided him a
copy. Id. In his motion, Stech states that he "intended to contest the penalty and underlying
citation." Id. The Secretary does not oppose Stech's request for relief.
Here, the proposed penalty assessment was delivered to the wrong address. Under these
circumstances, we conclude that Stech was not notified of the penalty assessment, within the
meaning of the Commission's Procedural Rules, until at least August 1, 2005. In his motion to
reopen this matter, filed with the Commission on August 8, 2005, Stech clearly states his intent
to contest the proposed penalty assessment against him. We conclude from this that Stech timely
notified the Secretary that he wished to contest the proposed penalty, once he had actual notice of
the proposed assessment. Id.

1

In another case we are deciding today, Neil et al. employed by Elk Run Coal Co.,
Docket Nos. WEVA 2005-173 through WEVA 2005-176, we note that Commission Procedural
Rule 25 states that the "Secretary, by certified.mail, shall notify ... any other person against
whom a penalty is proposed of the violation alleged." Slip op. at 2 (citing 29 C.F.R. § 2700.25).
In Neil, and now in this case, confusion has arisen from the manner in which proposed penalty
assessments were sent to section 110(c) respondents. If the Secretary had sent the penalty
proposal at issue here to Stech at his home address or "in care of' counsel at counsel's address,
the confusion would presumably have been avoided.
27 FMSHRC 892

Accordingly, the proposed penalty assessment is not a final order of the Commission.
We remand this matter to the Chief Administrative Law Judge for assignment to a judge. This
case shall proceed pursuant to the Mine Act and the Commission 's Procedural Rules, 29 C.F.R.
Part 2700.

27 FMSHRC 893

Distribution

R. Henry Moore, Esq.
Jackson Kelly, PILC
Three Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 894

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

December 8, 2005
Docket No. WEVA 2005-173
Case No. 00057242 A

SECRETARY OF LA.SOR,
l\1INE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2005-174
Case No. 00052743 A

v.
GARY D. NEIL, and
DEMPSEY W. PETRY, and
STEPHEN L. FRUSH, and
RICHARD C. KIM,
employed by ELK RUN COAL CO.

Docket No. WEVA 2005-175
Case No. 00052744 A
Docket No. WEVA 2005-176
Case No. 00052745 A
Mine ID 46-07009

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 July 18, 2005, the Commission received separate (though
largely identical) motions made by counsel on behalf of Gary D. Neil, Dempsey W. Petry,
Stephen L. Frush, and Richard C. Kim, all employees of Elk Run Coal Co. ("the respondents"),
to reopen penalty assessments against each employee under section llO(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 the Commission's Procedural Rules, an individual charged under section llO(c)
has 30 days following receipt of the proposed penalty assessment within which to notify the
Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEVA 2005-173, WEVA 2005-174, WEVA 2005-175, and WEVA
2005-176, in which all the respondents are employees of Elk Run Coal Co., and which all
involve similar procedural issues. 29 C.F.R. § 2700.12.
27 FMSHRC 895

of the Commission. 29 C.F.R. § 2700.27.

In the respondents' motions to reopen, their counsel states that she did not discover that
the Department of Labor's Mine Safety and Health Administration ("MSHA") had proposed
penalties against the respondents until May 26, 2005, when Commission Administrative Law
Judge Gary Melick lifted a stay in related proceedings, Elk Run Coal Co., WEVA 2005-30. Mot.
at 2. Upon investigation, counsel determined that MSHA mailed proposed penalty assessments
to each of the respondents at her office (addressed simply to the respondents, not to or in care of
counsel), and that the a8sessments were signed for by her receptionist on March 21, 2005. Id. at
3. Counsel further states that she and her firm have "conducted a thorough internal investigation
and have been unable to locate the documents or determine what happened to them." Id. The
Secretary does not oppose any of the respondents' requests for relief.
Commission Procedural Rule 25 states that the "Secretary, by certified mail, shall notify
the operator or any other person against whom a penalty is proposed of the violation alleged, the
amount of the proposed penalty assessment, and that such person shall have 30 days to notify the
Secretary that he wishes to contest the proposed penalty assessment." 29 C.F.R. § 2700.25.
(emphasis added). Counsel states that as a result of the penalty proposals being lost, none of the
respondents ever "received the assessment documents." Mot. at 4. Though the respondents at
some point in time received actual notice of the proposed assessments, it cannot be determined
from the pleadings when such notice was received. 2
The Commission possesses jurisdiction to reopen uncontested assessments that have
become final Commission orders. Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993)
("JWR"). In evaluating requests to reopen final 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).

2

The confusion generated in this matter arises, in large part, from the manner in which
the proposed penalty assessments were sent to the respondents. That confusion could have been
avoided had the Secretary sent the penalty proposals to the respondents at their home addresses
or "in care of' counsel at counsel's address.
27 FMSHRC 896

Having reviewed the respondents' motions, in the interests of justice, we remand these
matters to the Chief Administrative Law Judge to determine whether good cause exists to reopen
these proceedings. If it is determined that such relief is appropriate, these cases shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

27 FMSHRC 897

Distribution
Donna C. Kelly, Esq.
Dinsmore & Shohl, LLP
P.O. Box 11887
Charleston, WV 25339
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
Office of Administrative Law Judges
601 New Jersey A venue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 898

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

December 12, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMlNISTRATION (MSHA)
Docket No. WEVA 2003-149

v.

ELK RUN COAL COMPANY, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
DECISION
BY TIIE COMMISSION:
This case involves a civil penalty proceeding under the Federal Mine Safety and Health
Act of 1977, 30 U .S.C. § 801 et seq. (2000) ("Mine Act" or "Act"). The Department of Labor's
Mine Safety and Health Administration ("MSHA") issued a citation to Elk Run Coal Company,
Inc. ("Elk Run"), charging it with a violation of 30 C.F.R. § 75.220(a)(l), as a result of failing to
comply with its roof control plan. 1 Administrative Law Judge Avram Weisberger affirmed the
citation but determined that the violation was not the result of the operator's·unwarrantable
failure and that it was not significant and substantial ("S&S"). 26 FMSHRC 761, 762-69.(Sept.
2004) (AI.J). The Secretary of Labor filed a petition for review limited to the judge's S&S
determination, and the Commission granted review. For the reasons that follow, we vacate the
judge' s decision on the S&S issue and remand the proceeding for further consideration.

1

Section 75.220 provides in pertinent part:
(a)(l) Each mine operator shall develop and follow a roof control
plan, approved by the District Manager, that is suitable to the
prevailing geological conditions, and the mining system to be used
at the mine. Additional measures shall be taken to protect persons
if unusual hazards are encountered.
27 FMSHRC 899

I.

Factual and Procedural Background
Elk Run operates the Black King I North Portal Mine, an underground coal mine located
in Boone County, West Virginia. 26 FMSHRC 761. During July 2002, Elk Run was pillar
mining in an area of the mine designated 013-014 MMU. Id. The area contained seven entries,2
numbered one to seven, reading from left to right. 3 Id. The rows of pillars were designated by
letters A to F (with A being the most inby row), and ran perpendicular to the entries. Id. Each
row was comprised of six blocks of unmined coal, or pillars, numbered one to six, again reading
from left to right Id. Each block was identified by referencing its location by row and seriatim
order within that row; for example, in the first row the first block between the first and second
entry is row A block Ip. Id. at n.l.
Elk Run utilized pillar mining in this section of the mine. On advance, the continuous
miner mined seven entries on 55-foot centers and connecting crosscuts on 90-foot centers, 20feet wide, leaving six unmined pillars standing in each row, each 70-feet long by 35-feet wide.
Tr. 321, 350-52. Then, when the miner had advanced as far as it could go, it retreated by mining
the pillars as it proceeded outby by "splitting the block," or mining through the center of the
pillars with a 35-foot long and a 20-foot wide cut. Tr. 145, 165, 349-50. Elk Run used two
continuous miners in the area, each operating from right to left.4 26 FMSHRC at 761. The left
side miner usually mined in entries one to three,5 while the right side miner mined in entries four
through seven. Id. at 761-62. In a normal mining sequence, after the continuous miner
completed the cutting of its assigned pillars in a row, it retreated and mined the next row outby.
Id. at 762; Tr. 209.
Elk Run's approved roof control plan addressed several conditions in the mine pertinent
to the instant proceeding. In specifying the sequence of pillar mining, the plan provided, "No
more than 2 rows of blocks shall be started until inby blocks are completed." Gov' t Ex. 4 at 11.
In addition, the plan required that, once mining had been completed on a pillar inby, eight

2

An entry in coal mining generally serves as "a haulage road, gangway, or airway to the
surface." Am. Geological Institute, Dictionary of Mining, Mineral, and Related Terms 188 (2d
ed. 1997).
3

A drawing of the relevant area of the mine was produced at trial and admitted into
evidence. Tr. 42-44, 78; Gov't Ex. 2. A copy of the exhibit is attached.
4

Gov't Ex. 2 shows only the left side miner, which is designated "CM." Tr. 66, 71-72,

101.
5

In this area of the mine, the blocks between the first and second entries in all of the
rows (designated lp on Gov't Ex. 2) were not cut. Tr. 329.
27 FMSHRC 900

breaker posts must be set in the entry in the next outby row. Id. at 19. According to MSHA
inspector Danny Meadows, the posts served two purposes - impeding traffic to the area that had
been mined and providing support for the roof once the roof had been weakened by the splitting
of the pillars. Tr. 92-95. Nothing in the roof control plan required the operator to take a
complete cut out of a pillar. Tr. 137.
During July 2002, Elk Run operated two production shifts: one in the day, which ran
from 6:30 a.m. to 3:30.p.m., and one in the evening, which ran from 4:00 p.m. to 1:00 a.m. 26
FMSHRC at 762. In addition, a midnight maintenance shift, during which no coal was mined,
generally started between 11 :00 p.m. and midnight and lasted until 8:00 a.m. Id. On each
production shift, the section foreman filled out the "Foreman's Production Report," which
indicated where coal was being cut and the times at which mining began and ended in each cut.
Id. at 764; Gov't Ex. 5. Entries on the report were made generally in the order in which the coal
was mined. Tr. 229-30.
On July 23, MSHA inspector Meadows was at the mine to conduct a quarterly inspection.
26 FMSHRC at 762; Tr. 31-32. He first went to the mine office where he met with mine
superintendent Gary Neil and examined the mine map and pre-shift books. Tr. 33-34. Meadows
then went underground to inspect the pillar line, where he met day shift section foreman Phil
Saunders. 26 FMSHRC at 762; Tr. 40-42. When Meadows arrived at the pillar line around 9:45
a.m., the left side miner was parked in the number 2 entry between rows C and D. 26 FMSHRC
at 762. The left side miner was not mining any coal at that time, although a room off to the side
of the number 1 entry had been mined earlier that morning. Id.; Tr. 258-259; Gov't Ex. 5 at 2.
The right side miner was not mining any coal that day. Tr. 273.
Meadows and Saunders observed that, in row B, block 3p (identified as "f' on Gov't Ex.
2) and block 4p (identified as "e" on Gov't Ex. 2) had been mined through, as had blocks 5p and
6p. 26 FMSHRC at 762; Gov't Ex. 2. Also, in row B, block 2p (identified as "a" on Gov't Ex.
2) had been cut but not mined all the way through. 26 FMSHRC at 762. There were no timbers
set in entry 2 outby row B. Id.
In row C, the only blocks that had been mined were block 5p, which was between the
number 5 and 6 entries, and block 6p, which was between the number 6 and 7 entries. Id. In row
D, block 6p, which was between the number 6 and 7 entries, was the only block that had been
mined, and it had been cut all the way through. Id. The production report for the evening shift
on July 22 indicated that the left side miner was out of service during some of the shift. Tr. 222;
Gov't Ex. 5 at 1.

Around 10:00 a.rn. that morning, Meadows issued a citation alleging a violation of 30
C ..F.R. § 75.220(a)(l). The citation charged Elk Run as follows: ''The operators (sic) roof
control plan is not being complied with on the 013-014 MMU in that pillars are not being
extracted as the plan requires. Three rows of blocks were started at the same time." Gov't Ex. 3.

27 FMSHRC 901

The inspector designated the violation as S&S and charged that the violation occurred as a result
of the operator's unwarrantable failure. Id.
Elk Run filed a notice of contest, and the case was assigned to a judge. The case
proceeded to trial, and the judge subsequently issued a decision in which he affirmed the citation.
The judge initially noted that the parties agreed that rows C and D had been started but not
completed, and the central issue was whether the Secretary had established that Elk Run' s cutting
of block 2p in row B was incomplete. 26 FMSHRC at 762-63. On this point, the judge noted
conflicts between the testimony of MSHA inspector Meadows and Elk Run foreman Saunders.
The judge concluded that there was no evidence of any mining in rows B, C, or D during the
morning of July 23, when Meadows issued the citation, and that by then Elk Run had determined
that mining in row B was completed and there was no intent to go back and finish the cut in block
2p. Id. at 763-64. Contrary to Elk Run's position, however, the judge concluded that his inquiry
was not limited to that morning, but rather he could find a violation if, at any time prior to the
issuance of the citation, the record established that row B and the two outby rows, C and D, had
been started but not completed. Id. at 763-64.
Because there was no testimony concerning the sequence of cutting or what Elk Run
intended to do at the conclusion of the evening shift on July 22, the judge examined the
Production Reports (Gov't Ex. 5) that were in evidence. 26 FMSHRC at 764. On July 22, the
Foreman's Production Report indicated that the right side miner had completed cuts on blocks 6p
and 5p (in row C) and block 6p (in row D).6 Id.; Gov't Ex. 5 at 1. On the basis of the production
reports and the fact that breaker posts "had not been set in Entry No. 2 row C outby row B block
2P," the judge concluded that it "might reasonably be inferred that, at the conclusion of the July
22 evening shift, row B had not been completed, ... , and rows C and D had been started, but not
completed." 26 FMSHRC at 764-65 & nn.5-6 (emphasis in original). The judge further noted
that Elk Run failed to produce any probative evidence to rebut the inferences.7 Id. at 765.
Therefore, the judge concluded that at the end of the evening shift on July 22, row B had not been
completed, and outby rows C and D had been started and not completed. Id. Accordingly, the
judge found that Elk Run was in violation of its roof control plan and section 75.220(a). Id.
In examining the designation of the citation as due to Elk Run' s unwarrantable failure, the
judge noted foreman Saunders' prompt efforts to abate the violative condition. Id. at 767. On this
point, the judge credited Saunders' testimony that he had ordered timbers to block the entry off
shortly after he arrived in the section on the morning of July 23. Id. at 766-67 & n.7. He further
noted the short duration during which the condition had existed. He also considered that Elk Run
had not been placed on notice that greater efforts were necessary for compliance, that the degree

6

As the judge noted, the production report does not indicate the row in which the
particular block listed in the report was located. 26 FMSHRC at 764 n.5. See Gov't Ex. 5.
7

Ralph Williams, the section foreman on the evening shift, left his employment with Elk
Run at the end of his shift on July 22 and moved to Alabama. Tr. 167, 203-04.

27 FMSHRC 902

of danger caused by the violation was mitigated by its existence primarily during a non-production
shift, and that there was no production in the area on the morning of July 23. The judge then
concluded that the violation was not due to Elk Run's unwarrantable failure. 8 Id. at 767.
With regard to the S&S designation, the judge relied on the criteria in Mathies Coal Co., 6
FMSHR.C 1, 3-4 (Jan. 1984). The judge found that there was a violation of the roof control plan
and section 75.220(a). 26 FMSHR.C at 768. He further found that pillar mining weakens roof
support and that by leaving three rows of blocks that had not been completed, Elk Run had
exacerbated the problem. Id. He further noted that Elk Run' s failure to install breaker posts to
prevent any roof fall from continuing outby further contributed to the hazard. Id. Therefore, he
concluded that the first and second elements of Mathies (the presence of an underlying violation
of a mandatory safety standard and a discrete safety hazard contributed to by the violation,
Mathies, 6 FMSHR.C at 3-4) had been met. 26 FMSHR.C at 768. In addressing the third element
of Mathies, whether there was a reasonable likelihood that the hazard contributed to will result in
an injury, the judge found that there was no evidence presented that the roof was undergoing any
specific type of stress and that there was no evidence that the roof had ever fallen in this section of
the mine. Id. at 768-69. The judge concluded that the Secretary had failed to establish that there
was a reasonable likelihood of a roof fall and that the violation was not S&S. Id. at 769.
In assessing a penalty for the violation, the judge examined the penalty criteria and
concluded that a penalty of $1,000 was appropriate. Id.

II.
Disposition
As noted above, the judge found that Elk Run violated its roof control plan, and the
operator has not appealed that finding. The Secretary has, however, appealed the judge's adverse
S&S determination, arguing that the judge erred, as a matter of law, in concluding that, because
there was no evidence that the roof was undergoing any specific types of stress that could lead to a
roof fall, there was not a reasonable likelihood that the hazard contributed to by the violation
would result in an injury. PDR at 7-8.9 The Secretary adds that she did present testimony credited
by the judge that the violation made a roof fall reasonably likely because of the additional stress
placed on the mine roof by pillar mining. Id. at 8-10. The Secretary further states that she
presented evidence that specific stress on the roof was created because each time a pillar was
mined in one of the three uncompleted rows, additional stress was placed on the roof of the mine.
Id. at 10-13. The Secretary also argues that the judge erred in concluding that the violation was

8

Neither the judge's finding of violation nor his unwarrantable failure determination is
before the Commission on appeal.
9

The Secretary designated her petition for discretionary review as her brief and
submitted an additional citation of supplemental authorities ("Sup' l Br.").
27 FMSHR.C 903

not S&S by relying on the fact that there had not been a roof fall in this section of the mine. Id. at
14-15. Finally, the Secretary asserts that the judge erred by failing to address testimony
demonstrating that Elk Run's failure to adhere to its roof control plan made it more likely that a
roof fall would occur, creating a risk of a serious injury. Id. at 15-17. The Secretary concludes by
requesting that the Commission vacate the judge's decision and remand the case back to the judge
for application of the correct legal standard. Id. at 17-18.
In response, Elk Run argues that the judge's decision followed Commission precedent and
is supported by substantial evidence. E.R. Br. at 6-7. It asserts that the judge properly rejected the
testimony of the MSHA inspector because his opinions were not tied to any specific conditions of
the mine but were general assertions of hazards. Id. at 7-8. Further, the operator argues that the
Commission, in determining S&S, has considered the conditions surrounding a violation and the
history of injuries associated with the type of violation at issue. Id. at 8. Elk Run also contends
that the brief duration of the violation, primarily during the non-production shift, mitigated the
degree of danger presented by the violation. Id. at 8-9. The operator states that the Secretary's
position in the case is that she should be able to prove that an accident is reasonably likely to
cause an injury through an inspector's opinion without presenting evidence to support it. Id. at 9.
Elk Run concludes by asking the Commission to affirm the judge's decision. Id. at 10.

The requirement for each underground coal mine to develop a roof control plan is a
fundamental directive of the Mine Act and its predecessor, the Federal Coal Mine Health and
Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976). See 30 U.S.C. § 862(a) (setting forth general
requirements for plans "to protect persons from falls of the roof or ribs."). The intent of this
provision was "to afford comprehensive protection against roof collapse - the 'leading cause of
injuries and death in underground coal mines."' UMWA v. Dole, 870 F.2d 662, 669 (D.C. Cir.
1989) (citations to legislative history omitted). 10
The S&S tenninology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d),
and refers to more serious violations. A violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. See Cement Div., Nat'l Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1(Jan.1984), the
Commission further explained:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (1) the underlying violation of a

10

"[T]hese plans were intended to be more comprehensive than uniform mandatory
standards because in addition to a 'nucleus' [] of practices that are necessary to prevent roof
collapse in any mine, they were to include whatever unique measures were necessary to address
the unique attributes of a particular mine." 870 F.2d at 669 (emphasis omitted).

27 FMSHRC 904

mandatory safety standard; (2) a discrete safety hazard - that is, a
measure of danger to safety - contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in an
injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir.
1995); Austin Power, Inc. v. Secretary of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria). An evaluation of the reasonable likelihood of injury should be made assuming
continued normal mining operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug.
1985).
With regard to the first and second elements of the Mathies test-the judge's findings of a
violation of the roof control plan and section 75.220(a)(I), and a discrete safety hazard, i.e., the
hazard of a roof fall - are not in dispute. On the issue of a discrete safety hazard, the judge
credited MSHA inspector Meadows' testimony that pillar mining weakens roof support and places
stress on the section. The judge further noted that leaving three rows of blocks uncompleted
exacerbates the hazard and the fact that breaker posts had not been installed to prevent any roof
fall continuing outby further contributes to the hazard. 26 FMSHRC at 768.
With regard to the third element of Mathies, the judge initially noted the MSHA
inspector's testimony concerning the dangers associated with retreat mining: "numerous people
have been killed as a result of retreat mining." Id. 11 The judge also found that the presence of
three incomplete rows without supporting timbers increases the risk of exposing miners to a roof
fall. Id. However, the judge further found that there was "not any evidence adduced that the roof
was undergoing any specific type of stress that could lead to a roof fall. Nor does the record
contain evidence that the roof had ever fallen in this particular section of the mine." Id. at 768-69.
The judge concluded that the Secretary had failed to establish by a preponderance of the evidence
that there was a reasonable likelihood ofa rooffall. Id. at 769 (emphasis added).
In U.S. Steel, the Commission addressed several defenses to the designation of a violation
as S&S, including the operator's argument that its violation of a ventilation plan was not S&S
because at the time of the violation the level of methane was low and not at explosive levels. In
rejecting those defenses, the Commission explained that "the question [of whether the violation is
S&S] must be resolved on the basis of the circumstances as they existed at the time the violation
was cited and as they might have existed had normal mining operations continued." 7 FMSHRC
at 1130. In a later case, the Commission further explained, ''The operative time frame for
determining if a reasonable likelihood of injury exists includes both the time that a violative
condition existed prior to the citation and the time that it would have existed if normal mining
operations had continued." Rushton Mining Co., 11 FMSHRC 1432, 1435 (Aug. 1989).
11

The judge also stated in his unwarrantability determination, "As explained by
Meadows, the hazard of a roof fall is inherent in pillar mining." 26 FMSHRC at 766.
27 FMSHRC 905

Here, the judge clearly failed to examine the record evidence relating to the reasonable
likelihood of injury during the operative time frame, examining instead the reasonable likelihood
of a roof fall based solely on mine conditions prior to the violation. Thus, as part of the third
element of Mathies, the judge imposed an affirmative obligation on the Secretary to prove that,
prior to the violation, a roof fall had occurred or that adverse roof conditions existed that could
have led to a roof fall. However, as the Commission has noted, ''The third Mathies element
requires the Secretary to establish a reasonable likelihood that the hazard contributed to will result
in an event in which there is an injury." Bellefonte Lime Co., Inc., 20 FMSHRC 1250, 1254-55
(Nov. 1998). In concluding that the Secretary failed to carry her evidentiary burden by not
presenting evidence of roof falls or stress on the roof, the judge erred. See id.
This is not to say that a history of roof falls in a mine is not pertinent to the consideration
of the reasonable likelihood of an injury.12 The Commission has long held that whether a
particular violation is S&S must be based on the particular facts surrounding the violation. .
Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988). 13 However, conditions in the mine prior to
the citation are not dispositive of the S&S designation. 14 See also Buffalo Crushed Stone, Inc., 10
FMSHRC 2043, 2046 (Oct. 1994) (in considering whether the failure to provide a berm at a
stockpile was S&S, the fact that the stockpiles were flat and that there were no equipment
problems does not establish that an accident was not reasonably likely to occur).
We thus agree with the Secretary, Sup'I Br. at 1-2, that the absence of an injury-producing
event when a cited practice has occurred does not preclude an S&S determination. See Arch of
Kentucky, 20 FMSHRC 1321, 1330 (Dec. 1998) (the Secretary does not have to show that a
violation caused an accident in order to prove that a violation was S&S); Buffalo Crushed Stone,
10 FMSHRC at 2046 (the absence of previous instances of overtravel does not establish that an
accident would not be reasonably likely to occur, given the nature of hazards presented). It

12

See, e.g., Lion Mining Co., 18 FMSHRC 695, 699 (May 1996) (judge erred in failing
to consider the history of roof falls in the area); Youghiogheny & Ohio Coal Co., 9 FMSHRC
2007, 2012 (Dec. 1987) (history of unstable roof at mine considered in relation to S&S
determination).
13

As the Commission noted in Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997),
"When evaluating the reasonable likelihood of afire, ignition, or explosion, the Commission has
examined whether a 'confluence of factors' was present based on the particular facts surrounding
the violation," quoting Texasgulf, 10 FMSHRC at 501 (emphasis added). In contrast, no
Commission case has required the Secretary to show adverse roof conditions in a mine as a
prerequisite to finding that a violation of a roof control plan is S&S.
14

Clearly, conditions in a mine created by a violation need not be so grave as to
constitute an "imminent danger," which could reasonably be expected to cause death or serious
injury before the condition can be abated. National Gypsum, 3 FMSHRC at 828. Accord Enlow
Fork, 19 FMSHRC at 10 n.9.
27 FMSHRC 906

follows then, as the Secretary argues, that the absence of evidence of stress or prior roof falls
cannot be determinative of whether the cited condition is reasonably likely to cause an injury. See
also Blue Bayou Sand and Gravel, Inc., 18 FMSHRC 853, 857 (June 1996) (operator's assertions
that it had no history of accidents and that equipment had been driven for many months in cited
condition is not dispositive of S&S determination).
In the instant proceeding, the presence of adverse roof conditions may increase the
likelihood of a roof fall but the absence of such adverse conditions does not necessarily eliminate
the possibility that a roof fall might occur when an operator fails to follow its roof control plan.
Moreover, requiring the Secretary to prove an S&S violation by establishing that the mine roof is
under "any specific type of stress that could lead to a roof fall," 26 FMSHRC at 768-69, places an
onerous burden of proof on the Secretary. Similarly, any implication that the Secretary needs to
show that there had been a roof fall in this section of the mine before a violation can be designated
S&S would unreasonably restrict the ability of the Secretary to prove that a roof control violation
is S&S. None of these evidentiary points detracts from the existing core requirement that a roof
control plan take into account the specific conditions of the mine in seeking to prevent roof fall
accidents 15 and the Congressional intent to provide comprehensive protection against roof falls
through adherence to MSHA-approved safety measures tailored to the individual mine.

We find that the judge erred by grounding his S&S detennination solely on the Secretary's
failure to prove adverse roof conditions prior to the violation, while failing to address the
remainder of the evidentiary record. On remand, therefore, the judge must weigh the record
evidence and, assuming that normal mining were to continue, detennine whether any miner on
any shift would have been exposed to the hazard arising out of the violation, so as to create a
reasonable likelihood of injury.
The judge also made findings elsewhere in the decision that are inconsistent with his
conclusion with regard to S&S. In his penalty determination, the judge found that the violation
contributed to the hazard of a roof fall which could have caused serious injury to miners. There,
the judge concluded that "the gravity of the violation was relatively high." 26 FMSHRC at 769.
In a similar case, in which the judge found that the gravity of the violation was high, the
Commission, in vacating and remanding the judge's detennination that a violation was not S&S,
explained, "Although the gravity penalty criterion and a finding of S&S are not identical, they are
frequently based upon the same factual circumstances." Enlow Fork, 19 FMSHRC at 10-11,
citing Quinland Coals, Inc., 9 FMSHRC 1614, 1622 n.11 (Sept. 1987). Here, the judge failed to
reconcile his finding of high gravity with his determination that the violation was not S&S.
Enlow Fork, 19 FMSHRC at 11. See also Youghiogheny & Ohio, 9 FMSHRC at 2013.
Therefore, a remand is also necessary to resolve this internal inconsistency~

15

MSHA regulations require that the criteria in a mine's roof control plan which set forth
roof control practices address the unique conditions of the mine. See 53 Fed. Reg. 2354, 2369-70
(Jan. 27, 1988) (streamlining MSHA's Roof Control Standards, 30 C.F.R. Part 75).
27 FMSHRC 907

Finally, Elk Run contends that the violation was of brief duration and occurred primarily
during a non-production shift, thereby mitigating the danger posed by three uncompleted rows.
E.R. Br. at 8-9. It is apparent that the violation existed for some period on the evening shift on
July 22 and during the morning shift on July 23 in addition to its duration through the entire
maintenance shift. Moreover, the third, uncompleted, inby row in which the partial cut had been
taken on block 2p (designated as "a" on Gov't Ex. 2) remained accessible to all miners because
breaker posts had not been set. Compare Youghiogheny & Ohio, 9 FMSHR.C at 2013 (no S&S
where danger signs were posted at the entrance to rooms where roof control violations occurred)
with Halfway, Inc., 8 FMSHRC 8, 12-13 (Jan. 1986) (S&S found because the cited area remained
accessible and travelways to the area would be used by miners). We reject Elk Run's argument to
the extent that it suggests that miners on the maintenance shift were less exposed to the potential
hazards than those on the production shifts. 16 See also Bellefonte Lime, 20 FMSHRC at 1255
(contrary to the judge's finding, S&S allegation not ameliorated by short term exposure of miners
to the cited hazard).
Because the judge failed to address comprehensively the record testimony (Tr. 93-103),
consistent with Commission precedent to determine whether the Secretary established a
reasonable likelihood that an injury would occur, a remand is necessary. 17 See Eagle Nest, Inc.,
14 FMSHRC 1119, 1123 (July 1992).

16

The question surrounding the duration of the violation goes to the matter of whether
Elk Run "promptly" set the breaker posts, as the roof control plan required.
17

Commissioner Jordan notes that the judge's examination of inspector Meadows'
testimony, (Tr. 93-103), should include a review of the inspector's statements regarding the
danger of having three open rows and pulling support out from a miner who is inby (Tr. 98) and
the particular danger to the left side continuous miner operator (Tr. 99-101).
Commissioner Suboleski, with Chairman Duffy's concurrence, notes that the judge, on
remand, must analyze the record facts relating to the violation at this mine, as well as the MSHA
inspector's general testimony concerning the dangers of retreat mining. With regard to roof
control, the issue is not the hazards of pillar mining - Elk Run was permitted to recover pillars
under its roof control plan; rather, it is about whether an additional hazard, sufficient to meet the
Mathies criterion, was introduced by the manner in which the pillars were mined. In this regard,
if mining is completed on pillar 6p in row D to the right of the sixth entry, the roof control plan
does not require that breaker posts be set in any other entry (entries five, four, three, two, or one).
Thus, upon mining the pillar 6p, in row D, the plan clearly does not require that any breaker posts
be set to assist support in entry 2, row B. Further, only a partial cut of 10 feet was taken out of
pillar 2p, and the MSHA inspector testified that breaker posts would not have been needed in
entry 2, outby row B, if the third row had not been started. Tr. 151. The judge must also
consider that, upon completion of the cut in row B on pillar 2p, the roof control plan requires Elk
Run to set the breaker posts "promptly."

27 FMSHRC 908

m.
Conclusion
For the foregoing reasons, we vacate the judge's decision regarding S&S and remand the
issue to the judge for further consideration and, if necessary, for reassessment of the penalty.

ss10ner

The attached Government Ex. 2 is not available the electronic version of the decision.
27 FMSHRC 909

I·
:

The attached Government Ex. 2 is
. not available
.
on th e e zectronzc
· version o·~the
deciszon.
. .
'J

I

II .

!

27 FMSHRC 910

Distribution
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22°d Floor West
Arlington, VA 22209-2247
David J. Hardy, Esq.
Spilman, Thomas & Battle, PLLC
300 Kanawha Blvd. East
P.O. Box 273
Charleston, WV 25321
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 911

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

December 14, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. CENT 2005-254-M
A.C. No. 39-01424-45596

v.
LIEN TRANSPORTATION COMPANY

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 19, 2005, the Commission received a letter
from the safety director of Lien Transportation Company ("Lien") requesting that the
Commission reopen a penalty assessment that became a final order of the Commission pursuant
to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On November 4, 2004, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued several citations to Lien, which the company timely contested.
These six contests are currently on stay before Commission Administrative Law Judge Richard
Manning. Docket Nos. CENT 2005-31-RM through CENT 2005-36-RM. Lien states that it
"thought that until [it] could defend the citations ... the entire process was 'on hold."' Lien thus
failed to timely contest the penalty subsequently proposed by the Secretary of Labor, who states
that she does not oppose Lien's request for relief.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
27 FMSHRC 912

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 sha11 be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Lien' s motion, in the interests of justice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for Lien' 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.

27 FMSHRC 913

Distribution
Peggy SaJwei, Safety Director
Lien Transportation & Construction
Box40
Aberdeen, SD 57402
W. Christian Schumann, Esq.
Office of the Solicitor ·
U.S. Department of Labor
1100 Wilson Blvd.• 22nd Floor
Arlington, VA 22209-2296
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

27 FMSHRC 914

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

December 14, 2005
SECRETARY OF LA}JOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. CENT 2005-262-M
A.C. No. 41-02810-60764

v.
CAPITOL AGGREGATES, LTD.

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 21, 2005, the Commission received from
Capitol Aggregates, LID ("Capitol Aggregates") a motion made by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
On March 8, 2005, the Department of Labor' s Mine Safety and Health Administration
("MSHA") issued Citation No. 6256167 to Capitol Aggregates' Fairland Quarry. Mot. at 2. The
company tim~ly contested the citation. The contest proceeding is currently on stay before
Commission Administrative Law Judge David Barbour. Id. at 3 (citing Docket No. CENT
2005-171-RM). When MSHA subsequently proposed a penalty for Citation No. 6256167,
Capitol Aggregates paid it. Mot. at 4. The company now contends that it made the payment
inadvertently, and asserts that it had always intended to contest the validity of the citation. Id.;
Aff. of Don Patrick. The Secretary states that she does not oppose Capitol Aggregates' request
for relief.
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
27FMSHRC915

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787.
Having reviewed Capitol Aggregates' motion, in the interests of justice, we remand this
matter to the Chief Administrative Law Judge for a determination of whether good cause exists
for Capitol Aggregates' inadvertent payment, 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.

27 FMSHRC 916

Distribution
James A. Lastowka, Esq.
McDermott Will & Emery LL
600 13th Street NW
Washington, DC 20005-3096
W. Christian Schum~n. Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
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

27FMSHRC 917

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

December 14, 2005
SECRETARY OF LABOR,
:MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2006-27-M
A.C. No. 46-00007-67183

v.
RIVERTON INVESTMENT CORP.

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 November 9, 2005, the Commission received from Essroc
Cement Corp. ("Essroc") 1 a motion made by counsel to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a). Counsel filed an amended motion on November 14, 2005.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On or about September 14, 2005, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued the proposed penalty assessment to Essroc. Am. Mot. at 1-2.
In its motion, Essroc states that during the period when the penalty contest was due from Essroc,
the employee responsible for handling such matters, David Wiley, was absent and that the
employee who assumed responsibility for the ·proposed assessment was unfamiliar with contest
procedures. Id. at 2. By the time Wiley discovered the error, the contest deadline had passed.
Id., Aff. of Randy Emery at 3. Essroc further states that it had intended to contest eight of the
proposed penalties. Am. Mot. at 3, 5-6. The Secretary states that she does not oppose Essroc's
1

Essroc filed its motion under the name Riverton Investment Corp.
27 FMSHRC 918

request for relief.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section l05(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) (''the Conimission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, IS FMSHRC at 787. We have also ,observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Essroc's motion, in the interests of justice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for Essroc'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, these cases shall proceed pursuant to
the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

27 FMSHRC 919

Distribution
Marci M. Fulton, Esq.
Patton Boggs, LLP
1600 Lincoln St., Suite 1900
Denver, CO 90264
Willa B. Perlmutter, Esq.
Patton Boggs, LLP
·
2550 M Street NW
Washington, DC 20037-1350
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22°d Floor
Arlington, VA 22209-2296
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

27 FMSHRC 920

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

surre 9500
WASHINGTON, DC 20001

December 14, 2005
SECRETARY OF L~OR,
:MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2006-2-M
A.C. No. 04-05164-57178

v.
GRANITE ROCK COMPANY

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 October 3, 2005, the Commission received a letter from
the safety and health services manager of Granite Rock Company ("Granite Rock") requesting
that the Commission reopen a penalty assessment that became a final order of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On January 20, 2005, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued three citations to Granite Rock. The company asserts that when MSHA
subsequently proposed penalties for the citations, it paid two of the penalties 1 but indicated that it
wished to contest the remaining proposed penalty. Granite Rock further states that on September
22, 2005, it received a collection notice for the proposed penalty the company wished to contest.
1

Attached to Granite Rock's letter is a copy of a cancelled Granite Rock check payable
to MSHA dated June 10, 2005 which the company states was tendered in payment for the two
penalties. Also attached is a copy of the penalty proposal form from MSHA with three assessed
penalties, indicating that Granite Rock wished to contest the penalty at issue here.
27 FMSHRC 921

Granite Rock contacted MSHA and was told that the agency did not have a copy of the
company's contest. The Secretary of Labor states that she does not oppose Granite Rock's
request for relief.
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., ln.c., 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).

27 FMSHRC 922

Having reviewed Granite Rock's motion, in the interests of justice, we remand this matter
to the Chief Administrative Law Judge for a determination of whether good cause exists for
Granite Rock's apparent 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.

27 FMSHRC 923

Distribution
Michael Herges
Safety & Health Seivices Manager
Granite Rock Company
P.O. Box 50001
Watsonville, CA 95077-5001
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22°d Floor
Arlington, VA 22209-2296
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

27 FMSHRC 924

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

December 16, 2005
SECRETARY OF L~OR,
:MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2006-36
A.C. No. 36-02053-66821

v.
R&D COAL COMPANY, INC.

BEFORE: Duffy, Chairman; Jordan, Soboleski, 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 December 7, 2005, the Commission received from R&D
Coal Company, Inc. ("R&D") a motion made by counsel to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On September 9, 2005, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued a proposed penalty assessment to R&D. Mot. at Ex. A. In its
motion, R&D states that on September 16, 2005, it timely contested the proposed penalties. Id.
at 1; Aff of D. Himmel berger. The company subsequently discovered that MSHA apparently had
not received its contest when the assessed amount of penalty it had attempted to contest was
shown on an unrelated proposed assessment form as an outstanding balance. Mot. at 1-2. R&D
states that it had fully intended to contest the proposed penalty. Id. at 2. The Secretary states that
she does not oppose R&D's request for relief.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
27 FMSHRC 925

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 fina1 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).
Having reviewed R&D's motion, in the interests of justice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for R&D's
apparent 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, these cases shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

27 FMSHRC 926

Distribution
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schuman.n, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
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

27 FMSHRC 927

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

WASHINGTON, DC 20001

December 16, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. SE 2006-24
A.C. No. 01-00851-63443

v.
OAK GROVE RESOURCES, LLC

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 November 18, 2005, the Commission received a letter
from the safety director of Oak Grove Resources, I.LC ("Oak Grove") requesting that the
Commission 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).

In its letter, Oak Grove states that it received a letter from the Department of Labor's
Mine Safety and Health Administration ("MSHA") denying as untimely the company's contest of
a proposed penalty assessment (A.C. No. 01-00851-63443). Oak Grove further states that it
failed to timely contest the proposed penalty because the employee assigned to handle the
proposed assessment was "a new employee and unfamiliar with the MSHA penalty ...
procedures [and] time frame." The Secretary of Labor states that she does not oppose Oak
Grove's request for relief.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
27 FMSHRC 928

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 IOS(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).
Having reviewed Oak Grove's request for relief, in the interests of justice, we remand this
matter to the Chief Administrative Law Judge for a determination of whether good cause exists
for Oak Grove'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.

27 FMSHRC 929

Distribution
Mlchael Blevins, Safety Director
Oak Grove Resources, UC.
8800 Oak Grove Mine Road
Adger, AL 35006
W. Christian Schumann, Esq.
Office of the Solicitor ·
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
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

27 FMSHRC 930

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

December 16, 2005
SECRETARY OF L~OR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2006-129-M
A.C. No. 45-02667-67075

v.
JONES QUARRY, 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 November 17, 2005, the Commission received from

Jones Quarry, Inc. ("Jones Quarry") a letter requesting that the Commission reopen a penalty
assessment that became 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).
In its letter, Jones Quarry states that the Department of Labor' s Mine Safety and Health
Administration ("MSHA") rejected its contest of the proposed penalty, asserting that Jones
Quarry had mailed it beyond the 30-day limit to file such contests. The company further explains
that although the proposed penalty assessment form stated that it had "30 days to respond," the
form did not state whether the 30-day limit referred to business days or calendar days, noting that
"[i]t was 36 consecutive [i.e., calendar] days when I sent the request to contest and only 25

27 FMSHRC 931

business days." 1 The Secretary of Labor states that she does not oppose Jones Quarry's request
for relief.
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).

1

MSHA's proposed penalty assessment form cover sheet states "you [have] 30 days to
either pay the Proposed Assessment or contest [it]."
27 FMSHRC 932

Having reviewed Jones Quarry's request for relief, in the interests of justice, we remand
this matter to the Chief Administrative Law Judge for a determination of whether good cause
exists for Jones Quarry'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.

~~~

Michael F. DCilaiTIIlatl

27 FMSHRC 933

Distribution
Mike Wallace
Jones Quarry, Inc.
2840-C Black Lake Blvd., SW
Tumwater, WA 98512
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
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

27 FMSHRC 934

ADMINISTRATIVE LAW JUDGE DEOSIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N. W. Suite 9500
Washington, DC 20001-2021

December 2, 2005
SPEED MINING, INC.,
Contestant

CONTEST PROCEEDINGS

v.

Docket No. WEVA 2005-20-R
Citation No. 7208383; 10/18/04
Docket No. WEVA 2005-21-R
Citation No. 7208384; 10/18/04
Docket No. WEV A 2005-22-R
Citation No. 7208385; 10/18/04
Docket No. WEVA 2005-23-R
Citation No. 7208386; 10/18/04
Docket No. WEVA 2005-24-R
Citation No. 720387; 10/18/04

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

Docket No. WEVA 2005-25-R
Citation No. 7208388; 10/18/04
Mine: American Eagle Mine
Mine ID: 46-05437

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2005-97
A.C. No. 46-05437-52979

v.
SPEED MINING, INC.,
Respondent.

American Eagle Mine
Mine ID: 46-05437

DECISION
Appearances:

Robert S. Wilson, U.S. Department of Labor, Office of the Solicitor, West,
Arlington, Virginia, for the Respondent/Petitioner.
Daniel W. Wolff, Crowell & Moring, Washington, D.C. for the
Contestant/Respondent;

Before:

Judge Weisberger
27 FMSHRC 935

These consolidated proceedings are before me based on Notices of Contest filed by Speed
Mining Inc. ("Speed") cha11enging the issuance to it of various citations alleging violations of
certain mandatory safety standards set forth in Title 30 of the Code of Federal Regulations. In
addition, the Secretary of Labor ("Secretary") filed a Petition for Assessment of Civil Penalty
seeking the imposition of civil penalties for the alleged violation by Speed of these mandatory
standards.

I. INTRODUCTION
Speed is the Operator of the American Eagle Mine, an underground coal mine, located in
Dry Branch, West Virginia. In 2004, Speed contracted with Cowin & Company Inc., ("Cowin")
to conduct an elevator shaft sinking operation at the Eagle Mine. Cowin began constructing the
elevator shaft in August, 2004. On September 29, 2004 an accident occurred on the site
involving a link-belt crane used to conduct the shaft sinking operation. As a result, the Secretary
issued five citations to Speed, relating to the condition of the crane, and one citation alleging
failure to train the crane operator. Additionally, six citations and/or orders were issued to Cowin,
and these are not at issue in the instant proceeding. The citations issued to Speed were for the
same violations alleged in the citations issued to Cowin.
The parties agreed that the violative conditions alleged in the citations issued to Speed are
not at issue. Additionally, the parties agreed to bifurcate the proceedings and to initially litigate
only the threshold issue of whether the Secretary abused her discretion in citing Speed. A
hearing in this matter was held in Charleston, West Virginia. Subsequent to the hearing, the
parties filed proposed findings of fact along with a brief, and replies thereto.

II. THE AUTHORITY OF THE COMMISSION TO REVIEW THE
SECRETARY'S DECISION TO CITE SPEED FOR VIOLATIONS
INVOLVING COWIN, ITS INDEPENDENT CONTRACTOR WORKING
ON THE PROPERTY
In essence, it is the Secretary's position that, based on prosecutorial discretion, her
decision to cite an operator and/or an independent contractor is not reviewable by the
Commission. However, in a recent decision, Twentymile Coal , 27 FMSHRC 260 (March,
2005), the Commission considered and rejected this position. The Commission took cognizance
of the Secretary's reliance upon Heckler v. Chaney, 470 US 821, 830-32 (1985), and its progeny,
also relied on by the Secretary herein, which preclude review under Section 701, (a)(2) of the
Administrative Procedure Act. The Commission found such authority to be inapplicable. The
Commission, 21 FMSHRC supra, at 265-266 set forth its holding as follows:

27 FMSHRC 936

As the Commission has previously recognized, Section 507 of the Mine Act 7
expressly provides that Section 701 of the APA does not apply to Commission
proceedings. Old Ben, 1 FMSHRC at 1483-84. Thus, we find such authority cited
by the Secretary to be inapplicable.
Furthermore, the Mine Act does not contemplate that the Secretary's enforcement
decisions are unreviewable by the Commission. Section 113 of the Mine Act, 30
U.S.C. § 823, contains no limits on the Commission's review on questions
pertaining to the exercise of the Secretary's enforcement discretion.8 To the
contrary, the breadth of the Commission's review is broad. The Commission, in its
discretion, may grant review if a "substantial question of law, policy or discretion
is involved" (30 U.S.C. § 823(d)(2)(A)(ii)(IV)), and the Commission's review
authority extends to cases in which no party has filed a petition for review (30
U.S.C. § 823(d)(2)(B)).9
The Commission has explained that these powers were given to the Commission
as the "'ultimate administrative review body"' under the Act in order to "enable
[the Commission] to 'develop a uniform and comprehensive interpretation of the
law,' providing 'guidance to the Secretary in enforcing the Act and to the mining
industry and miners in appreciating their responsibilities under the law."' Old Ben,
l FMSHRC at 1484 (citations omitted). As the Commission has reasoned, these
"provisions demonstrate that the Commission was intended to play a major role
under the [Mine] Act by reviewing the Secretary's enforcement actions and
formulating mine safety and health policy on a national basis." Id. Given the
Commission's unique and independent role under the Mine Act, we reaffirm our
prior holdings and conclude that the Commission's review of the Secretary's
action in citing an operator is appropriate to guard against an abuse of discretion.
Id.; W-P, 16 FMSHRC at 1411.
The Secretary argues, in essence, that Twentymile. supra, should not be followed, as it
"runs counter to several established legal principles" (Secretary's brief, pages 16-23 and cases
cited therein). The Commission's decision in Twentymile is currently on appeal before the Court
of Appeals. Secretary of La.bar v. Twentymile Coal Company and FMSHRC, D.C. Cir. No. 051124 (D.C. Cir. docketed Apr. 15, 2005). To date, a decision has not been rendered. Thus, in the
absence of a Court of Appeals decision reversing the Commission's decision in Twentymile.
supra, the latter is binding on Commission Judges.
Accordingly, applying binding Commission precedent set forth in Twentymile. supra, I
reject the Secretary's argument that it's decision to cite Speed for violations committed by its
independent contractor working on the property is not reviewable by the Commission.

27 FMSHRC 937

m. WHETHER THE SECRETARY ABUSED BER DISCRETION IN CITING
SPEED FOR VIOLATIONS INVOLVING COWIN, ITS INDEPENDENT
CONTRACTOR
A. Principles Set Forth in Twentymile, supra
In Twentymile, supra at 266, the Commission set forth the general test to be applied in
determining whether an operator has been improperly cited for violations of its contractor, as
follows:
The Commission has held that the general test to be used in determining whether a
production-operator has improperly been cited for violations committed by its
independent contractor is whether the Secretary has committed an "abuse of
discretion" in issuing such citations. 10 Mingo Logan, 19 FMSHRC at 249; Extra
Energy, Inc., 20 FMSHRC 1, 5 (Jan. 1998). In applying this general test, the
Commission must determine whether the Secretary's decision to cite the
production-operator for violations committed by its independent contractor "was
made for reasons consistent with the purpose and policies" of the Mine Act. Old
Ben, 1 FMSHRC at 1485; Phillips Uranium Corp., 4 FMSHRC 549, 551 (Apr.
1982); Extra Energy, 20 FMSHRC at 5.
After setting forth the general test to Be used to determine whether the Secretary abused
her discretion in citing an operator for the violations of its contractor, the Commission went on to
summarize four basic principles previously considered by the Commission in determining if the
citation of the operator was consistent with the purpose and policies of the Mine Act. The
Commission set forth as follows:
Over the years, the Commission has considered a number of factors on a case-bycase basis in determining whether the Secretary's citation of a production-operator
is "consistent with the purpose and policies" of the Mine Act. The principal
factors are summarized below:
(1)

Whether the production-operator, the independent contractor, or
another party was in the best position to affect safety matters. E.g.,
Phillips, 4 FMSHRC at 553; Bulk, 13 FMSHRC at 1360-61; Extra
Energy, 20 FMSHRC at 5. In this regard, one of the key questions is
whether the independent contractor has adequate size and mining
experience to address safety concerns. Calvin Black Enter. , 7
FMSHRC 1151, 1155 (Aug. 1985);

(2)

Whether, and to what extent, the production-operator had a day-to-day
involvement in the activities in question. E.g., Extra Energy, 20
FMSHRC at 5-6. A closely related factor is "the nature of the task
performed by the contractor." Calvin Black, 7 FMSHRC at 1155;
27 FMSHRC 938

(3)

Whether the production-operator contributed to the violations
committed by the independent contractor. E.g., Calvin Black, 7
FMSHRC at 1155; and

(4)

Whether the production-operator's actions satisfy any of the criteria set
forth in the Secretary's Enforcement Guidelines. 1 "In addition [to the
factors above), the Commission has considered whether any of the
criteria of the Secretary's Guidelines for proceeding against an operator
have been satisfied." Extra Energy, 20 FMSHRC at 5. The guidelines
provide that enforcement action may be taken against a production
operator for violations committed by its independent contractor in any
of the following four situations: "(l) when the production-operator has
contributed by either an act or an omission to the occurrence of the
violation in the course of the independent contractor's work, or (2)
when the production-operator has contributed by either an act or
omission to the continued existence of a violation committed by an
independent contractor, or (3) when the production-operator's miners
are exposed to the hazard, or (4) when the production-operator has
control over the condition that needs abatement." 45 Fed. Reg. at
44,497. As explained below, the four criteria overlap in certain
respects with the factors separately applied by the Commission in such
cases.
1. Whether Speed or Cowin was in the Best Position to Affect Safety Matters
a. The Secretary's Initial Argument

Initially, I note the Secretary's argument relating to the first factor summarized in
Twentymile, supra, at 267, that Speed was in "as good" a position as Cowin to prevent the

1

The Enforcement Guidelines were issued by the Secretary in 1980 as an appendix
to regulations requiring that independent contractors provide certain information
to production-operator's before beginning work and establishing procedures under
which independent contractors could obtain MSHA identification numbers. 45
Fed. Reg. at 44,494, 44,497. The Enforcement Guidelines set forth four criteria to
be used by MSHA inspectors in determining whether to cite a production-operator
for the violations of its independent contractor. The Commission has repeatedly
recognized that the Enforcement Guidelines are policy statements that are not
binding on the Secretary and do not alter the compliance responsibilities of
production operator's or independent contractors. E.g., Mingo Logan, 19
FMSHRCat 250-251.

27 FMSHRC 939

violations (Secretary's brief, p. 32). However, in Twentymile, supra, at 267, the Commission
clearly set forth that the proper analysis is whether the production-operator, the independent
contractor"... was in the best position to affect safety matters". (Emphasis added.) Hence, to
prevail herein, I find that the Secretary must establish that Speed was in the best position to
have prevented the violative conditions that were cited.
b. Further Discussion
In support of its position, that Speed was in as good a position to prevent the violation
at issue as Cowin, the Secretary refers to the testimony of Pete Hendrick, Speed's President,
who admitted that Speed had the authority to require Cowin to correct safety conditions, and
to enforce the provisions of the contract. Further, it is maintained that the violations were
obvious and only a minimal level of oversight would have revealed many of the cited
conditions.2
On the other hand, according to Hendrick, whose testimony in this regard was not
contradicted or impeached, Speed does not have any expertise in sinking a shaft, whereas
Cowin and its supervisor are considered very experienced in shaft sinking operations.
Further, according to Hendrick, the equipment at the site was not owned by Speed. Indeed,
according to the contract between Cowin and Speed the former is to furnish all equipment.
(OX 28, par.1.1). Lastly, there is no evidence that Speed had any authority to direct Cowin's
day-to-day activities.
2

1n essence, according to Dennis Joe Holbrook, an MSHA Inspector, who was the lead
Accident Investigator of the accident at issue, among the violative conditions cited in Citation
No. 7208383, both the defective rope and bypass of a computer to monitor safety features were
obvious. According to Holbrook and MSHA Inspector, Donald William Fink, who also observed
these conditions, the defect in the rope was located in a portion of the rope only eight feet from
where a worker would be when connecting the rope to a bucket. Also, the computer bypass ·
would be indicated by a red light and an audible warning in the cab of the crane. In addition, the
violative condition described in Citation No. 7208385 the use of~ rope during hoisting
operations in violation of the approved plan, was readily observable. Similarly, according to
Fink and Holbrook the violative condition cited in Citation No. 7208388, the operation of the
crane with a maximum load in excess of twelve thousand pounds, was obvious as it would have
been noted in a computer digital read out located in the cab in front of the crane operator. Also,
the violative conditions cited in Citation No. 7208386, were obvious, i.e., the failure to remove
the crane from operation in spite of pre-operational reports which showed that the crane and twoblock safety switch was not functional.

27 FMSHRC 940

In Twentymile. supra, the Commission concluded that the independent contractor
rather than the operator was in the "best" position to prevent the violations in question. The
Commission found, inter alia, the following factors supported citing the contractor: the
violations all involved equipment owned and maintained solely by the contractor, the
contractor carried out its work without direct or continuing supervision from the operator,
and, that under the terms of the contract between the contractor and the operator, the former
was required to comply with aJl MSHA safety and health standards. Twentymile, supra, at
268.
Similarly, in the case at bar, aside from one citation regarding the failure to train the
crane operator, aJl the citations at issue relate to conditions on equipment that was not owned
by Speed, but was to be furnished and maintained by Cowin. Also, Cowin was contractually
required to comply with applicable federal regulations. Additionally, Cowin was required to
provide supervision of work performed under the contract. Lastly, in the case at bar, as in
Twentymile. supra, there was not any evidence adduced that Speed had any authority to
direct the day-to-day activities of Cowin.
I find that the relationship between Cowin and Speed relating to the provision of
equipment and its maintenance, and supervision of day-to-day operations are essentially the
same as those noted in Twentymile. supra, as supporting the citation of the contractor, and
not the operator. Hence, I conclude, applying the authority of Twentymile, supra, that
between Cowin and Speed, it has not been established that the latter was in the best position
to have prevented the violations at issue herein.
2. The Extent of Speed's Involvement in Relevant Activities
a. The Secretary's Position

In arguing that Speed had significant involvement in activities at the shaft sinking
site, the Secretary relies on the testimony of Hendrick that he required, as a condition of
contracting with Cowin for the performance of the work at issue, that it hire Earl Brindel as
the supervisor on the job. The Secretary further relies on evidence that Hendrick worked
with Cowin to develop the specifications for the shaft, and that Speed's employee James
Smith, was at the site on a regular basis"... to insure that the shaft was being constructed
properly." (Secretary's brief, p. 33). Lastly, the Secretary cites the presence of Speed's
employee, Doug Shorter, who operated a bull dozer to spread muck material that had been
removed from the shaft.
b. Twentymile. supra
In Twentymile, 27 FMSHRC supra at 270, the Commission held that the operator" ...
did not have a significant, continuing involvement in the work being performed [at the cited
area]".(Ephasis added.) The Commission noted the following as the basis for its holding:
that the Contractor was hired because of its expertise with the work at issue and was
27 FMSHRC 941

responsible for providing the equipment to be used at the work site and operating it; that no
operator employees worked at or near the work site except for a Supervisor who checked the
contractor's practice once a day to a day and one-half; that the contract between the parties
provided that the contractor was responsible for complying with safety requirements; and the
lack of evidence that the operator ignored the safety defects or actively created them.
The Commission, next concluded as follows:

In the context of the relationship between the parties, [the operator's]
involvement appears to be nothing more than prudent oversight of the
contractor's compliance with the contract for services at the refuse pile,
including the safety and health provisions of the contract. Punishing a
production operator for such steps taken to "ensure" contractor compliance is
contrary to the intent of the Mine Act and our precedent in these cases. See,
e.g., Phillips, 4 FMSHRC at 553. The Secretary asserts that [the operator]
should be liable for failing to either inspect the equipment or ensure that
Precision would do so. Oral. Arg. Tr. 35-38. But there is no standard requiring
production operator's to inspect each piece of equipment every time it enters a
mine site, and as will be further discussed under factor 3, infra, [the operator)
did, through the contract, require that Precision inspect the equipment. Given
[the operator's] limited involvement in the activities at the refuse pile, we
cannot say that this factor supports the decision to cite the [operator] in this
case. id.
c. Twentymile supra, as Applied to Speed's Involvement in Cowin's
Activities
In the case at bar, as in Twentyrnile. supr!!, the operator hired a contractor because of
its expertise and the contractor was required by contract to provide necessary equipment and
comply with safety regulations. Further, in the case at bar the contractor was contractually
required to maintain the equipment. Additionally, in the case at bar and in Twentymile.
supra. there was no evidence that the operator ignored defects3 or was directly involved in
creating violative conditions.

In Twentymile, supra, the Commission, in concluding that the operator did not have a
significant continuing involvement in the contractor's work, noted that none of the
contractors employees worked at or near the site at issue except for a supervisor who checked
the contractor's progress once a day to a day and a half. In the case at bar, the degree of
involvement of Speed's employees in Cowin's activities was even less. None of Speed's

3This issue is discussed in more detail, III (a)(c) infra.
27 FMSHRC 942

supervisors were present every day to a day and a half to check on Cowin's progress on the
project. Smith, a surveyor, was present not as a supervisor to check the projects progress, but
only to ensure that the shaft was being sunk in a straight line. He did not have supervisory
responsibility. A bulldozer operator was present, but his activities were limited to the
removal of muck that had been taken from the sinking of the shaft. However, there is not any
evidence as to where he worked in relation to the crane at issue, or that it was within the
scope of his duties to check Cowin• s equipment for safety defects. There is not any evidence
that these employees checked on the progress of any of Cowin' s project activities or
inspected any of itS equipment.
Within the context of the facts in this case, I conclude, based on the holding and
analyses in Twentvmile. supra. that Speed did not have any "significant continuing
involvement" in Cowin's activities. (Twentymile, supra. at 270)

3. Whether Speed Contributed to the Violations
a. The Secretary' Position
The Secretary argues that Speed contributed to the violations herein, because it failed
" ... to act in a reasonably prudent manner." (The Secretary's brief, p. 33). The Secretary
asserts that Speed had been put on notice that Cowin and another contractor at the adjoining
substation site, were in need of greater oversight and guidance. In this connection, MSHA
Inspector, Donald Fink testified that when he cited Speed on September 29, for the violations
at issue, he had previously cited Speed for failure to provide hazard training to employees of
contractors working at the site in issue and at a substation construction site. Additionally,
according to Fink, on September 2, he had told Speed's employees, Morris Niday and Heath
Beichner that he continued to observe hazardous conditions at the Cowin shaft site, and that
Speed " ... should have some type of program or some type of proactive action that they would
conduct at the shaft site to ensure the health and safety of the contractors working on their
property." (Tr. 85) He also told them that he had issued a citation to Cowin which alleges a
violative condition of men working under unconsolidated shaft wall. However, I note the
uncontradicted and unimpeached testimony of Hendrick, that Niday was a purchasing agent
and did not have any managerial responsibility. Also, I accept Hendrick's testimony that was
not impeached or contradicted that Beichner, a bulldozer operator employed by Speed, was
not considered management, and was not in a position to direct other Speed employees in any
fashion.
In further arguing that Speed did not exercise due oversight of Cowin, the Secretary
relies on Hendrick's testimony on cross-examination that it did not make any effort to
determine Cowin's history of citations or reportable accidents and injuries. According to
Fink, these are contained in MSHA records, and are available on its computer site. These
reports indicate that Cowin received 31 citations in the two-year period from September 29,
2002 through September 28, 2004, and in the four year period preceding September 29, 2004,

27 FMSHRC 943

Cowin had 79 reportable accidents, injuries or illnesses. Fink opined that Cowin's non-fatal
days lost incident rate was much greater than the national rate. The Secretary argues that
Cowin had a significant history of citations and accidents which Speed did not make any
effort to determine. Also, that Speed did not provide any written safety materials to Cowin,
and did not perform any safety audit or inspection of Cowin' s work.
Thus, the gravamen of the Secretary's position that Speed contributed to the
violations herein is ~hat it did not provide adequate oversight and guidance over Cowin.
b. Twentymile. supra. and its Applicability to the Case at Bar
In Twentymile, supra. the Commission considered the issue of whether the
production operator therein contributed to the violations at issue. The Commission
commenced its discussion of this issue, by first considering the operator's activities as
follows:
''The record establishes, foremost, that Twentymile did not directly contribute
to the violations that are involved in these citations. The violations involved
Precision's equipment at the refuse pile, and no Twentymile employees were
involved in any way in operating or maintaining that equipment. Tr. 85-86.
There is no other evidence that Twentymile took any action that directly
contributed to the violations.
Moreover, the record does not establish that Twentymile contributed to the
violations through any significant omission on its part." (Emphasis added.)
(29 FMSHRC supra, at 270-271).
Thus it is clear that based on the above language in Twentymile. supra, that 1) in
order for an operator to contribute to a violation, the contribution must be a direct one; and 2)
if the contribution is based on the operator's omission, then the omission must be significant.
In the case at bar, as in Twentymile, supra, five of the citations at issue involve
violative conditions relating to the equipment furnished and operated by the contractor.4 As
in Twentymile, supra. none of Speed's employees were involved in either operating or
maintaining the cited equipment. Also, as in Twentymile. supra. there is not any evidence
that Speed took any action that "directly contributed to the violations" (Twentymile. supra. at
271).
The Commission, in Twentymile. supra. id, continued its discussion of the operator's

4

0ne additional citation cites a failure to have properly trained the operator of the crane at

issue.
27 FMSHRC 944

contribution to the violations as follows:
Moreover,5 the record does not establish that [the operator] contributed to the
violations through any significant omission on its part. In order for a production
operator to contribute to a violation through an omission, that omission must be a
significant one. Whenever an independent contractor commits a violation, there is
almost always some action that a production operator could theoretically have taken
that might have prevented the violation. Without a "significant" threshold, the
production operator could be found to have contributed to the violation in virtually
every situation, and this contribution factor essentially would be a meaningless test.
(Emphasis added. id.) (27 FMSHRC supra, at 271). (Emphasis added.)

Thus, Twentymile, supra, clearly establishes that in order to find that an operator
contributed to a contractor's violation through omission, the omission must be significant.
The Commission concluded that the operator's failure to inspect the contractor's equipment
before it entered the mine site, or subsequently, did not constitute a significant omission (id.).
As an initial matter, the Commission noted that the regulations do not require such
inspections (i.d.). The Commission indicated that it was"... reluctant to impose [such a
requirement]" (i.d.).
The Commission set forth the following test it applied in evaluating an operator's
contribution through omission.
... we believe that the appropriate test in such a case is whether the production
operator took reasonable steps under the circumstances to ensure that the
independent contractor's equipment is safe, either by inspecting the equipment
itself or by requiring that the independent contractor conduct inspections of
the equipment. (Twentymile. supra, at 271-272).
In Twentymile. supra, the Commission concluded that the operator had taken
reasonable measures to ensure that the contractor inspected its equipment by requiring in its
contract that the latter comply with MSHA's safety standards, giving the contractor a safety
guide which required it to conduct pre-shift examinations and correct any safety defects, and
by having mine management regularly check on the contractor's project. Similarly, in the
case at bar, I find it significant that Speed provided in its contract with Cowin that the latter
was required to furnish and maintain the crane at issue, and abide by all federal standards.
Within this context, I find that the failure of Speed to provide Cowin with a safety guide, was
5

It thus appears that in analyzing the factor of an operator's contribution to the
contractor' s violations, the prime issue is whether its activities were a direct contribution, and
that whether there were any significant omissions on its part is only a secondary issue.
27 FMSHRC 945

not a significant omission. I note that the provision of a guide is not mandated by any
regulations, and I am reluctant to impose such a requirement. (See, Twentymile, supra, at
271)
Lastly, I reject the Secretary's argument that Speed contributed to the violations
herein through omission by not making any effort to determine Cowins' history of citations,
reportable accidents and injuries. The regulations do not impose such a duty upon an
operator who has hired an independent contractor, and I do not have any authority to impose
such a requirement: (See, Twentymile, supra. at 271).
For all the above reasons, I find that under the criteria and rationale set forth in
Twentymile, supra. it has not been established that Speed contributed to the violations at
issue.

4. Whether any Criteria in the Secretary's Enforcement Guidelines Were
Satisfied.
In analyzing whether the criteria have been met it is critical to consider the following
language from the Commission as set forth in Twentymile, supra. at 273.

Before discussing the four individual criteria in the Enforcement Guidelines,
we reiterate that a particular criterion should be found to be satisfied only if a
significant threshold has been reached. In other words, a criterion is not
satisfied unless the production Operator's involvement in the violation
extends beyond the minimal level that would be found with regard to virtually
every independent contractor violation. For example, as discussed above, in
virtually every case it would be possible to find some action that the
production operator could have taken that might have prevented the
independent contractor's violation, thereby arguably showing that the
production operator contributed to the violation through omission. Similarly,
the fourth criterion is whether the production operator had "control" over the
actions of the independent contractor. Because virtually every agreement
between a production operator and independent contractor will give the
production operator some minimal control over the independent contractor's
activities, e.g., the ability to order the independent contractor to leave the
production Operator's property, the degree of control must also be significant
in order to satisfy that criterion.20 If the guidelines were construed so broadly
as to be satisfied with regard to essentially every independent contractor
violation, the test based on the four criteria would be meaningless.
Accordingly, we concJude that a particular criterion is satisfied only if the
production Operator's involvement is in some way "significant," i.e., it
exceeds the minimal level that would be present with regard to virtually every
27 FMSHRC 946

independent contractor violation.
a. Whether Speed Contributed Either to the Violations in Question or
to Their Continued Existence
In support of its argument regarding the contributions of Speed to the violations in
question, the Secretary relies on arguments it made in discussing the first criteria set forth by
the Commission in·Twentymile, supra. (III (A), infra). As such, these arguments are rejected
for the reasons set forth above, (III (A)in(ra).

The Secretary's argument that Speed contributed to the continued existence of the
violations is based solely upon Holbrook's testimony. He was asked to explain how the cited
conditions" ... could have been in continued existence" (Tr. 299) if the violations did not
occur until September 29. He testified as follows: "Because the pre-op record showed that it
was in existence for two days, the day before the accident and the day of the accident." (Tr.
299).
Thus, it appears to be the Secretary's position that Speed's contribution to the
continued existence of the violative conditions is predicated upon its failure to examine the
pre-op reports and ensure that Cowin had corrected the noted conditions. However, the
regulations do not require that an operator examine its independent contractor's pre-op
reports. Hence, the failure of Speed to have inspected these reports, by itself, does not
constitute a significant omission contributing to the continuing existence of any violative
condition. (See, Twentymile. supra. at 271).
b. Whether Speed's Employees Were Threatened by the Hazards.

In discussing this criteria, the Secretary asserts that Smith was exposed to conditions
at the shaft site on numerous occasions.
The violations at issue relate to the conditions of the crane and the training of its
operator. The crane was used to remove material from the shaft. Clearly, Smith had to work
in close proximity to the shaft when he lowered a plumb line to ensure it was being aligned in
a straight line as provided in the construction plans. However, there is not any evidence that
when Smith performed this work, the crane was positioned in close proximity to him as to
expose him to any of its hazardous conditions. Indeed, there is not any evidence indicating
the position of the crane relative to Smith when he checked on the alignment of the shaft.
Nor is there any evidence that he performed other duties that would have exposed him to
hazards created by the safety defects in the crane. Further, there is not any specific evidence
that any other of Speed's employees were exposed to and threatened by the hazards of the
crane. Thus, I find that it has not been established that Speeds' employees were threatened
by the hazards.
27 FMSHRC 947

c. Whether Speed had Significant Control over the Conditions of the
Crane.
The cited conditions all relate to the crane and lack of training of its operator. The
crane was not owned by Speed. According to its contract with Cowin, the latter was required
to furnish the equipment. Further, Speed did not have any responsibility to inspect or
maintain the crane. To the contrary, Cowin by contract was required to maintain, in good
condition, equipment used on the project. Also, Cowin was required to provide supervision
of work performed under the contract, and to comply with all applicable federal regulations.
Significantly, Speed was not contractually obligated to take steps to ensure that Cowin
properly maintained the crane.
I note that under the contract, if Speed determined that Cowin's performance of work
on the project would result in unsafe conditions, violation of any applicable law, or damage
to persons or property, it had the right to immediately stop Cowin's work. Also, under the
contract, Speed had the right to terminate its agreement with Cowin should Cowin disregard
any governmental regulations.
In Twentymile. supra, the Commission noted that in Cathedral Bluffs Shale Oil Co.
(6 FMSHRC 1871 August l, 1984), rev'd 796 F 2nd 533 (D.C. Cir., 1986), it had concluded
that " ...standard contract language (reserving the right to monitor work and terminate the .
contract if an independent contractor disregarded applicable law) was not sufficient to satisfy
the control criterion in the Secretary's Enforcement Guidelines." (Twentymile. supra. at 274275).

Hence, based on Twentymile. supra. I find that Speed's contractual right to terminate
Cowin's contract, is not sufficient to satisfy the control criterion in the Secretary's
Guidelines.
For all the above reasons, applying Commission precedent as established in
Twentymile. supra. I find that it has not been established that Speed was properly cited by the
Secretary. Specifically based on Twentymile, supra, I find that the Secretary's decision to
cite Speed was an abuse of discretion, and that it was not consistent with the purpose and
policies of the act,6

ORDER
6

Accordingly, because the decision herein is based on Twentymile. supra, which is
binding precedent, I reject all of the Secretary's arguments that rely on Appendix A to Part 45
regulations and the Secretary's Program Policy Manual as these are inconsistent with
Twentymile, supra.
27 FMSHRC 948

It is ORDERED that the Notices of Contest filed by Speed, Docket No.s WEV A
2005-20-R, 2005-21-R, 2005-22-R, 2005-23-R, 2005-24-R and 2005- 25-R, are

SUSTAINED.
It is further ORDERED that Docket No. WEST 2005-97 is DISMISSED.

/}

.

!~ .. ~

A~isberger

Administrative Law Judge

Distribution: (Certified Mail)
Daniel W. Wolff, Esq., Crowell & Moring, LLP, 1001 Pennsylvania Ave., N.W.,
Washington, DC 20004 .
Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Blvd.,.22"d Floor West, Arlington,,VA 22209-2247

27 FMSHRC 949

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582

303·844·35n/FAX 303-844·5268

December 9, 2005
CIVIL PENALTY PROCEEDINGS

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

Docket No. CENT 2005-71-M
A.C. No. 39-01323-45049
Docket No. CENT 2005-72-M
A.C. No. 39-01022-45029

V.

T.F. LUKE & SONS, INC.,
Respondent

Portable Nos. 1 & 2

DECISION
Appearances:

Gregory Tronson, Esq., Office of the Solicitor, U.S. Department
of Labor, Denver, Colorado, for Petitioner;
Jeffrey A. Sar, Esq., Baron, Sar, Goodwin, Gill & Lohr, Sioux City,
Iowa, for Respondent.

Before:

Judge Manning

These cases are before me on two petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"),
against T.F. Luke & Sons, Inc. (''T.F. Luke"), pursuant to sections 105 and 110 of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The cases
involve eight citations issued by the Secretary under section 104(a) of the Mine Act. The
Secretary seeks a total penalty of $2,583.00 for the alleged violations. An evidentiary hearing
was held in Sioux Falls, South Dakota. The parties introduced testimony and documentary
evidence and filed post-hearing briefs.
T.F. Luke operates several small sand and gravel mines in southeastern South Dakota.
The citations at issue in these cases were issued during inspections conducted in September and
October 2004 at T.F. Luke's Portable No.1 and No. 2 plants. T.F. Luke moves these plants from
site to site on a regular basis. (Tr. 62). These plants operate on an intermittent basis.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Citation No. 7937754
On September 9, 2004, MSHA Inspector Robert Lindeman inspected the Portable No. l
mine. The mine was operating with two end loaders and a dozer. The shaker and

27 FMSHRC 950

screener/crusher·was operating. (Tr. 17). The inspector issued Citation No. 7937754 under
section 104(a) of the Mine Act alleging a violation of section 57.12008 as follows:
The 480 volt power cable entering the field conveyor drive motor
is not properly bushed. The cable enters the junction box under the
lid of the junction box. The motor is approximately 20 feet off the
ground. If the lid were to cut into the energized conductor, it could
energize the frame of the conveyor. A person contacting an
energiz~ conveyor could be fatally injured.
Inspector Lindeman determined that an injury was unlikely and that any injury could reasonably
be expected to result in a fatal accident. He determined that the violation was not of a significant
and substantial nature ("S&S") and that T.F. Luke' s.negligence was moderate. The safety
standard provides, in part, that "[w]hen insulated wires, other than cables, pass through metal
frames, the holes shall be substantia1ly bushed with insulated bushings. The Secretary proposes a
penalty of $60.00 for this citation.
Inspector Lindeman testified that he observed wires entering the junction box between the
lid and the box. (Tr. 20, 33-34; Ex. G-1 ). Vibration from the motor could have caused the
insulation on the wires to wear away. The inspector believed that it was unlikely that the
violation would contribute to an injury because it was 20 feet off the ground and miners were not
working around the conveyor. He admitted that the equipment was properly grounded. (Tr. 3536).
Thomas F. Luke, an owner of T .F. Luke, testified that all of the electrical equipment at
the mine was tested for resistance and continuity. (Tr. 46). He also testified that employees at
the mine operate mobile equipment when the plant is running and they are not walking around
the plant.

I find that the Secretary established a non-S&S violation of the safety standard. T.F. Luke
argues that no hazard was created by the condition. The Commission and the courts have
uniformly held that mine operators are strictly liable for violations of safety and health standards.
See, e.g. Asarco v. FMSHRC, 868 F.2d 1195 (10th Cir. 1989). "[W]hen a violation of a
mandatory safety standard occurs in a mine, the operator is automatically assessed a civil
penalty." Id. at 1197. The Secretary is not required to prove that a violation creates a safety
hazard, unless the safety standard so provides.
The [Mine Act] imposes no general requirement that a violation of
MSHA regulations be found to create a safety hazard in order for a
valid citation to issue. If conditions existed which violated the
regulations, citations [are] proper.

27 FMSHRC 951

Allied Products, Inc., 666 F.2d 890, 892-93 (5th Cir. 1982) (footnote omitted). In this case, the
Secretary contends that the Jikelihood that a miner would be killed or injured as a result of the
violation was not very great. The gravity of the violation was low and T.F. Luke' s negligence is
moderate. A penalty of $60.00 is appropriate for this violation.
B. Citation No. 7937755
This citation alleges a violation of section 57.12025 as follows:
The 110 volt receptacle in the generator trailer is not grounded to
protect a person from electrical shock if a fault were to occur. The
scale on the conveyor is plugged into this energized receptacle.
This receptacle is 14 inches off the floor on the south side of the
trailer. A person using a tool or equipment that is plugged into this
110 volt receptacle could be fatally injured if a fault were to occur.
Inspector Lindeman determined that an injury was unlikely but, if an accident did occur, the
injury could reasonably be expected to be fatal. He determined that the violation was not S&S
and that T.F. Luke's negligence was moderate. The safety standard provides, in part, that "[a]ll
metal enclosing or encasing electrical circuits shall be grounded or provided with equivalent
protection." The Secretary proposes a penalty of $60.00 for this citation.
Inspector Lindeman testified that the receptacle did not have a ground conductor or
another system for grounding it. (Tr. 27; Ex. G-3). He used a tester to determine that the ground
circuit was open. He further testified that if a piece of equipment plugged into the receptacle
developed a fault, there would be no place for the fault current to go. If someone were to grab
the equipment he could receive a fatal shock. The inspector determined that the violation was
not serious because the generator trailer had a wooden floor and it was dry. (Tr. 29).

Mr. Luke testified that T.F. Luke did not install the cited receptacle but that an electrical
contractor installed it. (Tr. 45). He assumed that the contractor had properly installed it with a
grounding circuit.
I find that the Secretary established a non-S&S violation of the safety standard. I credit
the testimony of Mr. Luke that it relied on an electrical contractor to correctly ground the
receptacle. I find that the violation was not serious and that T.F. Luke's negligence was low. A
penalty of $60.00 is appropriate for this violation.
C. Citation No. 7938236
MSHA Inspector Shane Julien inspected Portable No. 2 mine on October 26, 2004. He
described it as a "little roller-crusher-screener operation ... where a bulldozer would push
material into the trap, into a slow moving conveyor, and that feed conveyor would subsequently

27 FMSHRC 952

feed the screen, and then the screen would disperse [material] out from there on various transfer
and stacker conveyors." (Tr. 55). The facility was operating when he arrived at the mine, but it
was shut down during his inspection. He issued Citation No. 7938236 under section 104(a) of
the Mine Act alleging a violation of section 56.14108 as follows:
The overhead drive belts on the screen feed conveyor drive motor
are not guarded to prevent whipping of persons if the belts broke.
The belts are located above a main walkway and miners travel
through the area several times per shift. Footprints were observed
in the area. H the belts broke and whipped a miner, severe head
and face injury could occur to persons.
Inspector Julien determined that an injury was reasonably likely and, if an accident did occur, the
injury could reasonably be expected to be permanently disabling. He determined that the
violation was S&S and that T.F. Luke's negligence was moderate. The safety standard provides,
in part, that "[o]verhead drive belts shall be guarded to contain the whipping action of a broken
belt if that action could be hazardous to persons." The Secretary proposes a penalty of $629.00
for this citation.
Inspector Julien issued the citation because a long, horizontal, overhead drive belt was
present and he believed that, if the belt broke, it would whip into the walkway of a person
coming underneath the conveyor. (Tr. 58-61; Ex. G-4). He estimated that the belt was about ten
feet above the berm and the belt was about nine feet long. (Tr. 65, 107). The conveyor sits up on
a large berm that is about five feet above the surrounding land. (Tr. 59, 106). The berm is
necessary to give the conveyor the necessary height to feed the crusher. (Tr. 102). The inspector
observed footprints in the area and he saw Dennis Soulek, the foreman at the site, walk through
the area. (Tr. 59, 65) Inspector Julien issued the citation because Soulek told him that
employees walk through the area. (Tr. 157). On direct examination, the inspector testified that
the cited belt was running during his inspection. (Tr. 72).
Inspector Julien determined that the violation was serious and S&S because there was a
footpath under the area where the belt could break. (Tr. 61). If a belt were to break, it was
reasonably likely that someone would be hit by the broken belt.
Inspector Julien discussed abatement with Mr. Soulek. Soulek decided to abate the
condition by enclosing the area in expanded metal. (Tr. 66). On November 8, 2004, Inspector
Julien issued Order No. 7938258 under section 104(b) because T .F. Luke had not abated the
cited condition. (Tr. 67; Ex. G-6). The order stated that no apparent effort had been made to
guard the overhead drive belt. (Ex. G-6). T.F. Luke had moved the plant to a new location
between October 26 and November 8. (Tr. 68-69, 155). Mr. Soulek stated that he did not have
any acetylene for the welders at the site to abate the condition. (Tr. 69). T.F. Luke had not asked
for an extension of the abatement time. A guard was installed in response to the order. (Tr. 74).

27 FMSHRC 953

On cross-examination, Inspector Julien admitted that the benn under the conveyor is only
about three feet wider than the structure for the conveyor on each side. (Tr. 103). The benn is
slightly longer than the length from the dumping point to the wheels on the conveyor. Inspector
Julien testified that every time the plant is moved, it would be set up in the same basic
configuration. It is possible, however, that the belts could have been higher off the ground at
other locations. (Tr. 153, 166). He admitted that the conveyor was shut down during his
inspection so the motor and belts were not operating when he saw Mr. Soulek walk through the
area. (Tr. 110, 156). He also admitted that he has no knowledge that anyone walked under or
near the overhead drive 'belts while they were operating. (Tr. 111-13). Inspector Julien believes
that, because the violation was open and obvious, the condition should have been observed by
MSHA during previous inspections. (Tr. 116).
Thomas Luke testified that the conveyor sits on a similar benn every time the plant is
moved. (Tr. 172-73; Ex. B). The benn is usually the same height at every mine site. (Tr. 177).
He estimated that the berm was five to six feet high and that the belts were about nine to ten feet
above the berm. (Tr. 173; Ex. A). He testified that miners cannot reach the belt with their hands
if they are standing on the benn. The overhead belts on the conveyor can be seen all over the
plant. (Tr. 177). No previous citations have been issued for these unguarded belts. T.F. Luke
has been using the field conveyor for about 20 years. (Tr. 181).
Mr. Luke testified that there is no walkway on or near the benn supporting the conveyor.
(Tr. 179). Miners walk around the area before the equipment is started for a pre-operational
check and to grease the equipment and check bearings. (Tr. 179-81 ). Miners also walk around at
night after the plant is shut down to clean up. The tools shown on the photo taken by the
·inspector are used to clean out the hopper when the plant is shut down. (Tr. 182-83). The berm
supporting the conveyor is about three feet wider than the wheels on the conveyor structure on
each side and the benn slopes steeply to the ground. (Tr. 180). There is no need for any miner to
walk up on the berm while the conveyor is operating and Luke has never seen anyone on the
benn during operations. (Tr. 180-81).
Dennis Soulek testified that he runs a loader for T.F. Luke. (Tr. 233). He accompanied
Inspector Julien on the inspection and was acting as the foreman. He testified that the berm for
the conveyor is always about the same height so that the top of the conveyor can go over the
crusher. (Tr. 234-35). The cited belts have been unguarded for 20 years, the belts are easy to
see, and they have never been cited by MSHA. He cannot reach the belt when standing on the
berm. (Tr. 237).
Dennis Soulek testified that miners never walk up on the berm when the conveyer is
running and that there would never be a reason for a miner to do so. (Tr. 237). All of the
maintenance on the conveyor is done before or after the operating shift. He denied ever telling
the inspector that miners walk up on the berm under the belt while the conveyor is operating.
(Tr. 238-39).

27 FMSHRC 954

Jesse Soulek testified that he operates a loader at the plant. (Tr. 272). He testified that
employees do not walk on top of the berm while the conveyor is operating and there is no reason
for anyone to do so. (Tr. 276). The cited drive belt has never broken, but it has been replaced.
Robert Kuntz, a dozer operator at the plant, also testified that nobody walks up on the berm when
the conveyor is operating. (Tr. 289-90).
The Secretary argues that Dennis Soulek admitted the violation when he told the
inspector that miners walk under the overhead drives as a shortcut to the other side of the plant.
Footprints and tools were also found in the area. She also argues that T.F. Luke had adequate
notice of the requirements of the safety standard.
T.F. Luke argues that the Secretary failed to establish that anyone walked under the belt
while the conveyor was operating. The footprints were made while the equipment was shut
down . In addition, the evidence shows that Dennis Soulek did not tell Inspector Julien that
miners walk on the berm or under the belt while it was operating. Finally, it argues that T.F.
Luke did not have fair notice that the guard was required because the evidence clearly shows that
the condition had existed for 20 years, MSHA inspectors have previously observed the condition,
and no citations were previously issued.
I find that the Secretary did not estabJish a violation of the safety standard. The standard
requires a guard on overhead belts only when the whipping action of a broken belt "could be
hazardous to persons." Here the inspector incorrectly determined that a walkway or footpath was
in the zone of danger. I credit the evidence of T.F. Luke that miners do not walk under the belt
or on the berm supporting the crusher when the plant is operating.
Although Inspector Julien initially testified that the cited drive belt was running at the
time of his inspection, on cross-examination he admitted that it was not. (Tr. 72, 110, 156).
Thus, his testimony that he observed Dennis Soulek walk through the area is meaningless. The
footprints in the area could have been made when the plant was shut down and the tools were
used when cleaning out the hopper. The plant must be shut down for that maintenance. The
cited horizontal belt was 10 feet above the berm and more than 15 feet above the ground. Only
three people work at the mine: two loader operators and one bulldozer operator. The area under
the cited belt was not a walkway or a working surface during operation of the plant. It was
highly unlikely that anyone would ever be in that area while the plant was operating. The height
and size of the belt and the amount of foot traffic in the area should be considered when
determining whether a broken belt could be hazardous to persons. See Chrisman Ready-Mix Inc.,
22 FMSHRC 1256, 1262-63 (Oct. 2000) (ALJ).
I find that a reasonably prudent person familiar with the mining industry and the
protective purposes of the safety standard would not have recognized that a guard was required
on the overhead drive belt on the screen feed conveyor at this plant. The fact that no MSHA
inspector has ever cited this condition for the past 20 years provides additional support for this
conclusion, especially since all witnesses agreed that the condition was open and obvious.
27 FMSHRC 955

Consequently, I vacate Citation No. 7938236 and Order No. 7938258. Because I am vacating the
citation and order on the merits, I have not considered the notice issues raised byT.F. Luke.

D. Citation No. 7938237
MSHA Inspector Julien issued Citation No. 7938237 under section 104(a) of the Mine
Act alleging a violation of section 56.12008 as follows:
The 46o' volt power cable for the crusher rollibrator is not bushed
where the cable passes into the drive motor weatherhead. Miners
travel in the area several times per shift. Foot prints were observed
on the area. Approximately 2 inches of cable is pulled out,
exposing the inner conductors. If a miner were to contact the
energized unbushed conductors, a fatal electrocution could occur.
Inspector Julien determined that an injury was reasonably likely and, if an accident did occur, the
injury could reasonably be expected to be fatal. He determined that the violation was S&S and
that T.F. Luke's negligence was moderate. The Secretary proposes a penalty of $247.00 for this
citation.
Inspector Julien testified that the 460-volt cable was pulled out from the weatherhead on
the crusher rollibrator. (Tr. 75; Ex. G-7). This cable provided power to the equipment. He
testified that the crusher vibrates while it operates with the result that the copper conductors
could make contact with the frame of the equipment. (Tr. 76, 162). If the copper conductors
make contact with the metal frame, anyone who comes in contact with the equipment could
suffer an electrical shock. Miners generally perform routine maintenance while the equipment is
shut down. (Tr. 77). Inspector Julien determined that the violation was serious and S&S because
miners pass by the area during the shift. (Tr. 77-78). He believed that it was reasonably likely
that the violation would contribute to a serious or fatal accident.
Inspector JuJien admitted that the crusher was properly grounded. (Tr. 120). He did not
know when the bushing slipped out. Copper conductors were not exposed. If miners do not
walk or work near the crusher, there is little chance that anyone would be injured. (Tr. 123, 125).
Inspector Julien testified that, if there were a fault in the grounding system, there would be no
protection in the event that bare conductors were to come in contact with the weatherhead.
Mr. Luke testified that the company tests for continuity and resistance on a regular basis,
including every time the plant is moved. (Tr. 183). This testing established that the equipment
was properly grounded. He further testified that miners do not work or walk in the area when the
plant is operating. (Tr. 184). Dennis Soulek testified that miners do not travel or work near the
crusher during the shift and that he never told the inspector that they did. (Tr. 239). He further
testified that there would be no reason to perform any cleanup around the crusher while it was
operating. (Tr. 240). Soulek testified that when he performed the most recent continuity test,

27 FMSHRC 956

the test showed that the equipment was grounded. He also said that, when he did the pre-shift
examination of the equipment on the morning of October 26, 2004, the bushing was in place.
(Tr. 241; 263).
The Secretary argues that Dennis Soulek admitted to Inspector Julien that, although
accumulations are generally cleaned up at the beginning or at the end of the shift, if conditions
get "bad enough," cleaning occurs during the shift. (Tr. 77). Given that the equipment vibrates,
it was reasonably likely that the copper conductors would make contact with the metal
components of the weatherhead. The inspector reasonably detennined that the violation was
S&S because the unbushed 460-volt power cable posed a significant risk to miners. The crusher
rollibrator was in the main part of the plant where miners work and travel during operation. A
serious injury was reasonably likely even though the system was grounded.
T.F. Luke argues that the citation should be vacated because no miners were exposed to
the hazard. It further argues that, if a violation is found, the Secretary failed to establish that the
violation was S&S. It contends that the evidence establishes that the crusher was grounded,
miners do not work or travel near the crusher while the plant is operating, the insulation around
the conductors was intact, and the condition had only existed for a short time. T.F. Luke
maintains that there was not a reasonable likelihood that anyone would be injured by this
violation.
I find the Secretary established a violation. There is no question that the required bushing
was not in place. The seriousness of the violation is a closer question. A violation is classified
as S&S "if based upon the facts surrounding the violation, there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a reasonably serious nature."
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1,
3-4 (January 1984), the Commission set out a four-part test for analyzing S&S issues. Evaluation
of the criteria is made assuming "continued nonnal mining operations." U. S. Steel Mining Co.,
6 FMSHRC 1573, 1574 (July 1984). The question of whether a particular violation is S&S must
be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498
(April 1988). The Secretary must establish: (1) the underlying violation of the safety standard;
(2) a discrete safety hazard, a measure of danger to safety, contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a reasonably serious nature. The Secretary is not
required to show that it is more probable than not that an injury will result from the violation.
U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996).
I find that the Secretary established the first, second, and fourth elements of this test. A
discrete safety hazard was contributed to by the violation and, if a miner were hurt by the
violation, the injury in question would be of a reasonably serious nature. The more difficult issue
is whether the Secretary established that there was a reasonable likelihood that the hazard
contributed to by the violation would result in an injury.

27 FMSHRC 957

I conclude that the Secretary met her burden of proof, taking into consideration the
particular facts involved. The cited crusher was an integral part of the plant. Because the crusher
vibrated as it ran, it was reasonably likely that bare conductors would come into contact with the
metal parts of the crusher, assuming continued nonnal mining operations. The Secretary is not
required to establish that the crusher was not properly grounded. If this particular crusher had not
been grounded at the time the inspection, the violation would have likely created an imminent
danger because the cited condition could reasonably be expected to cause death or serious
physical hann before the it could be abated. See 30 U.S. C. 802(j). .
The Secretary is also not required to show that it was more probable than not that an
injury would result from the violation. Although miners do not work on or near the crusher on a
regular basis during the shift, miners are in the area from time to time during the shift. I find that
the Secretary established that there was a reasonable likelihood that the hazard contributed to by
the violation would result in an injury. The violation was S&S and T.F. Luke's negligence was
moderate. A penalty of $275.00 is appropriate.

E. Citation No. 7938238
MSHA Inspector Julien issued Citation No. 7938238 under section 104(a) of the Mine
Act alleging a violation of section 56.14107(a) as follows:
The plant main drive pulley and belts are not guarded to protect
persons from contacting the moving machine parts. The pulley is
approximately four feet in diameter and spins at high RPMs.
Miners travel through the area several times per shift and footprints
were observed in the area.
Inspector Julien determined that an injury was reasonably likely and, if an accident did occur, the
injury could reasonably be expected to be fatal. He determined that the violation was S&S and
that T.F. Luke's negligence was moderate. The cited safety standard provides that "[m]oving
machine parts shall be guarded to protect persons from contacting gears, sprockets, chains, drive,
head, tail, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar moving parts
that can cause injury." The Secretary proposes a penalty of $1,033.00 for this citation.
Inspector Julien determined that the main drive pulley was not adequately guarded. (Tr.
81; Ex. G-8). He testified that there was "a substantial opening in the pinch points on the return
idler pulley . . . and also at the bottom where the drive belts return back into the main drive
pulley." (Tr. 82; Ex. G-8). The pulley was about four feet in diameter and the opening was
about one and a half feet wide. The bottom was also not guarded. The inspector determined that
an accident was reasonably likely because there were footprints in the area and Soulek told him
the miners sometimes clean up accumulations in the area during the shift. (Tr. 83-84). Inspector
Julien believed that a miner could be killed if he became entangled in the fast moving pulley.

27 FMSHRC 958

On Noveinber 8, 2004, Inspector Julien issued an Order No. 7938257 under section
104(b) of the Act because the cited condition had not been abated. (Tr. 85-86; Ex. G-9). Mr.
Soulek explained that the condition had not been corrected because he did not have acetylene for
the torches. (Tr. 87). Thomas Luke testified that, although the necessary materials to abate the
citation were at the company's disposal, it did not immediately abate the condition because it
received an oral extension of time from Joe Steichen, the MSHA field office supervisor. (Tr.
200-02, 230). A guard was instaJled to terminate the citation and order.
Inspector Julien admitted that he did not know whether the pulley had ever been guarded
in the cited location. (Tr. 126). He also admitted that the other sides of the pulley were guarded,
including what he referred to as the "walk side." (Tr. 127). He also admitted that the pulley was
recessed about three and.a half feet. (Tr. 128). Inspector Julien believes that the safety standard
required a complete enclosure around the pulley. (Tr. 130). The belts travel around the pulley
from the bottom to the top so that the pinch point would be on the opposite side of the pulley
from the area cited. (Tr. 134). The only reason anyone would be near the cited area would be for
cleanup and maintenance. (Tr. 139).
Thomas Luke testified that he has owned the crusher containing the cited pulley since
1975 and there has never been a guard in the area cited by Inspector Julien. (Tr. 185). MSHA
inspectors have never stated that a guard was required in that location and they have never issued
citations for lack of a guard. MSHA has inspected the equipment of T.F. Luke on a regular basis.
(Tr. 186-87). When the plant is moved, it is set up in the same configuration.
Mr. Luke testified that the guarding on the other sides of the pulley protected miners from
any moving parts. He also testified that, with so many other pieces of equipment surrounding the
cited pulley, it is difficult to gain access to the area cited by the inspector. (Tr. 189-91; Exs. C &
D). He believes that Inspector Julien's implication that miners walk through the area while the
plant is in operation is without support. (Tr. 193). Miners do not travel near this area while the
equipment is operating. (Tr. 200). In addition, the equipment kicks up a lot of dust making
travel through the area even more unlikely. (Tr. 190). Equipment in the area is serviced after the
plant is shut down. (Tr. 200). The existing guards on the equipment extend out sufficiently to
protect anyone from the moving machine parts. (Tr. 195-96; Exs. D, F, G & H). The opening
was only 12 to 14 inches wide. (Tr. 200). It was not reasonably likely that anyone would slip
and fall in the area or that they would be injured in such an event by the cited pulley. (Tr. 198).

Dennis Soulek testified that the crusher and conveyors are set up in the same
configuration whenever the plant is moved. Soulek testified that nobody walks or works near the
cited pulley when the plant is operating. (Tr. 248). Jesse Soulek testified that miners are not
near the pulley when the plant is .operating. (Tr. 278-79). He denied telling Inspector Soulek that
employees worked or cleaned up around the pulley while the plant was operating. (Tr. 250).
The Secretary argues that there was a substantial unguarded opening exposing pinch
points on the drive pulley. The open area was more than a foot wide and the bottom was not
27 FMSHRC 959

guarded. The pulley was four feet in diameter and spun at a high rate of speed. Dennis Soulek
told the inspector that miners use shovels to clean up under the pulley to prevent the build up of
materials under the belts. The unguarded area was quite obvious. As a consequence, the citation
should be affirmed.
T.F. Luke argues that every time the No. 2 plant is moved to a new site, the crusher is set
up in the same basic configuration. The main drive puJley has been protected by guards in the
same manner since the crusher was purchased by the company. The crusher has been inspected
at least annually by MSHA and no warnings, notices, or citations have been issued because of the
opening cited by Inspector Julien.
It further argues that the evidence establishes that miners would not be in the area because
there is no travel way by or near the cited opening. "It would be extremely difficult for people to
walk through even if there were a reason ... " because of the obstructions created by conveyors
and other equipment. (Luke Br. 14). Someone would be required to walk over frames and axles
of these conveyors to reach the unguarded area. This area is also extremely dusty during
operation which would further discourage entry. The plant was not operating when Inspector
Julien observed the cited condition.
In addition, there were no pinch points on the unguarded side of the pulley. The moving
parts were recessed about four feet behind the guard that covers the side of the pulley. If a miner
were to slip while walking or working in the area while the pulley was in motion, he would not
come into contact with a pinch point. As a consequence, T.P. Luke contends that the citation
should be vacated.

The language of the standard states that moving machine parts which can cause injury,
including drive, head, tail, and take-up pulleys, must tJe guarded. Thus, the moving machine
parts must present a hazard to miners to be covered by the standard. In the preamble to the final
rule, the Secretary emphasized the broad construction of this safety standard. The preamble
states:
[T]he final standard requires the installation of guards to protect
persons from coming into contact with hazardous moving machine
parts. The standard clarifies that the objective is to prevent contact
with these machine parts. The guard must enclose the moving
parts to the extent necessary to .achieve this objective.
53 Fed. Reg. 32496, 32509 (Aug. 25, 1988) (emphasis added). The preamble further provides:
Under the final rule, the standard applies where the moving
machine parts can be contacted and cause injury. Some
commenters believed that guards should provide protection against
inadvertent, careless, or accidental contact but not against
27 FMSHRC 960

deliberate or purposeful actions. They consider guards which
totally enclose moving parts as counter-productive to other safety
considerations such as proper work procedures, training, and
general attention to hazardous conditions.

Id. In rejecting these comments, the Secretary stated that most injuries caused by moving
machine parts occur when persons are "performing deliberate or purposeful work-related actions
with the machinery" a~d that the installation of a guard would have prevented these injuries. Id.
The Secretary stated that "[g]uards provide a physical barrier, which offers the most effective
protection from hazards associated with moving machine parts." Id. Thus, the Secretary
provided notice to the regulated community that she would interpret this safety standard very
broadly to protect persons from coming into contact with moving machine parts and that the
standard covers deliberate actions by employees.
In construing the standard as applied to coal mines, the Commission stated:
We find that the most logical construction of the standard is that it
imports the concepts of reasonable possibility of contact and
injury, including contact stemming from inadvertent stumbling or
falling, momentary inattention, or ordinary human carelessness. In
related contexts, we have emphasized that the constructions of
mandatory safety standards involving miners' behavior cannot
ignore the vagaries of human conduct. See, e.g., Great Western
Electric, 5 FMSHRC 840, 842 (May 1983); Lone Star Industries,
Inc., 3 FMSHRC 2526, 2531 (November 1981). Applying this test
requires taking into consideration all relevant exposure and injury
variables, e.g., accessibility of the machine parts, work areas,
ingress and egress, work duties, and as noted, the vagaries of
human conduct. Under this approach, citations for inadequate
guarding will be resolved on a case-by-[case} basis.

Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984). Thus, the standard protects a
miner who, contrary to his employer's instructions, attempts to perform minor maintenance or
cleaning near an unguarded pinch point without first shutting it down. The fact that no employee
has ever been injured by an unguarded pinch point is not a defense because there is a history of
such injuries at crushing plants throughout the United States. "Even a skilled employee may
suffer a lapse of attentiveness, either from fatigue or environmental distractions . . . ." Great
Western Electric Co., 5 FMSHRC 840, 842 (May 1983).
The Secretary bears the burden of proving an alleged violation by a preponderance of the
evidence. In this case, I find that the Secretary did not meet her burden, for the following
reasons. First, it is important to understand that the cited pulley was substantially guarded. The
side of the pulley was guarded with a substantial metal screen that covered the entire area. (Ex.
27 FMSHRC 961

D). The other side of the pulley and belts were covered with sheet metal that prevented anyone
from contacting the moving parts. (Ex. G). The area under the pulley was protected by the guard
on the side which extended down below the level of the pulley. This side guard extended down
to within two feet of the ground. In addition, the area cited by the inspector was about a foot
wide and was recessed about four feet. One side in the recessed area was protected by the side
guard and the other side of the recessed area was protected by the body of the crusher.
Second, the witnesses agreed that the applicable pinch points were on the opposite side
from the area cited by Iflspector Julien. It would be almost impossible for anyone to contact the
pinch points from the area cited. These pinch points were protected by existing guards.
Third, the cited opening was not very accessible. A miner would be required to walk
over, under, and through various pieces of equipment to reach the area. Although I relied on the
testimony in reaching this conclusion, the photographs illustrate these obstacles. (Exs. G-8, C &
D). The crusher creates a great amount of dust so that travel through the area would be
unpleasant. It is quite clear that no miner would voluntarily walk by the area to get from one
place to another. A miner would only be in the area to clean and perform maintenance. The
evidence establishes that miners perform these tasks before and after shift when the plant is shut
down. Only three miners work at the plant. Inspector Julien's statement that Dennis Soulek told
him that miners often clean up under the pulley while the plant is operating was not
substantiated. The citation was abated without the installation of a guard under the pulley.
In conclusion, I find that the Secretary did not establish that there was "a reasonable
possibility of contact and injury" at the cited location. Thompson at 2096. A reasonably prudent
person familiar with the mining industry and the protective purposes of the safety standard would
not have recognized that a guard was required at the cited location, especially since no MSHA
inspector has ever issued a citation for this condition. Consequently, I vacate Citation No.
7938238 and Order No. 7938257. Because I am vacating the citation and order on the merits, I
have not considered the notice issues raised T.F. Luke.

If T.F. Luke changes the configuration of the conveyers and the crusher so that the cited
area is more accessible, a guard would be required. In addition, if miners work or walk near the
cited area while the plant is operating, a guard would be required. Work would include cleaning
up accumulations while the plant is operating.
F. Citation No. 7938239
MSHA Inspector Julien issued Citation No. 7938239 under section 104(a) of the Mine
Act alleging a violation of section 56.12008 as follows:
The 460 volt cable that powers the jaw crusher startup box is not
bushed where it passes into the metal case. Approximately two
inches of cable is pulled out exposing the inner conductors. The
27 FMSHRC 962

box is used to start and stop the plant. Miners contact [the box]
several times per shift.

Inspector Julien determined that an injury was reasonably likely and, if an accident did occur, the
injury could reasonably be expected to be fatal. He determined that the violation was S&S and
that T.F. Luke's negligence was moderate. The Secretary proposes a penalty of $247.00 for this
citation.
Inspector Julien testified that the wires entered the startup box at the bottom. There was
no bushing where the wires entered the box. (Tr. 90; Ex. G-10). This box contains the start and
stop switch for the jaw crusher. This box allows miners to operate the jaw crusher without
having to go to the main disconnect panel in the generator trailer. If rock clogs the crusher, a
miner can tum it off with this switch. This box hangs on a piece of wire and it is exposed to the
elements. (Tr. 91, 143). If the insulation on one of the wires is scraped off due to the movement
of the box, the metal frame of the box would become energized.
He determined that the violation was S&S because this box is used up to several times a
day, which exposes miners to the hazard of electric shock. (Tr. 92-93). The fact that the
electrical system was grounded does not eliminate the hazard of an electric shock. (Tr. 92, 141,
163).
Thomas Luke testified that all of the electrical equipment is tested for resistance and
continuity. (Tr. 204). The cited control box was grounded. Miners can shut down the crusher at
the box or shut down the entire plant at another location. Dennis Soulek testified that miners are
not normally around the cited box and that a miner would usually shut down the entire plant if a
clog developed in the system. (Tr. 251). At the time of the inspection, Soulek was not aware
that the wires were not protected by a bushing where they entered the box. No bare conductors
were exposed.
The Secretary argues that the citation should be affirmed because she met her burden of
proof. The cited electrical box was next to a walkway and employees often turned the equipment
on and off during the shift. The wires were hanging free so the insulation was subject to being
cut by the metal frame of the box. If the bare conductors were exposed, the frame would become
energized.
T.F. Luke contends that the citation should be vacated because the electrical equipment at
the mine was fully grounded and the cited box was not often used to stop and start the plant. No
bare conductors were exposed so no hazard was created.
For the reasons set forth with respect to Citation No. 7938237, above, I find that the
Secretary established an S&S violation of the safety standard. The required bushing was not in
place. It is undisputed that the box was grounded. I credit the testimony ofT.F. Luke's
witnesses that miners often shut down the entire plant at another location when a clog develops
27 FMSHRC 963

in the system. I also accept their testimony that the crusher is powered by a separate V-12
Detroit engine. Nevertheless. insulated wires were protruding out of the cited electrical box.
These wires were carrying 440 volts of electricity. The wires were not protected by a bushing or
other device to keep them from rubbing against the metal frame of the box. It was reasonably
likely that bare conductors would come into contact with the metal frame, assuming continued
normal mining operations. It was also reasonably likely that a miner coming into contact with
the metal parts would suffer a serious injury. T.F. Luke's negligence was moderate. A penalty
of $275.00 is appropriate.

G. Citation No. 7938240
MSHA Inspector Julien issued Citation No. 7938240 under section 104(a) of the Mine
Act alleging a violation of section 56.4201(a)(l) as follows:
The 4.5 pound ABC fire extinguisher for the tool van has not had a
monthly visual operability inspection. The last recorded inspection
was dated July of 2003. The extinguisher was empty and the gauge
showed that it [is] in need of recharging. The extinguisher is
stored in an area with oil, sprays, and lubricants.
Inspector Ju~ien determined that an injury was unlikely but, if an accident were to occur, the
injury could reasonably be expected to result in lost workdays or restricted duty. He determined
that the violation was not S&S and that T.F. Luke's negligence was moderate. The safety
standard provides that "[f]ire extinguishers shall be inspected visually at least once a month to
determine that they are fu1Jy charged and operable." The Secretary proposes a penalty of $60.00
for this citation.
Inspector Julien testified that the fire extinguisher was empty and that it had not been
inspected since 2003. (Tr. 94; Ex. G-11). The extinguisher was in a company van. He believed
that if a miner were to try to fight a fire with the extinguisher, he could suffer smoke inhalation
or bums. The inspector determined that the violation was not serious because two other
extinguishers were located nearby, including one in the front of the truck. (Tr. 94, 144). Dennis
Soulek told the inspector that the company had planned to discard the extinguisher. (Tr. 95).
Thomas Luke testified that the company had six other fire extinguishers in the area. (Tr.
205). He does not deny that the cited extinguisher was empty and that it has not been inspected
since 2003. (Tr. 231). Dennis Soulek testified that every vehicle at the plant has at least one fire
extinguisher. (Tr. 251-52). He believes that there were about six extinguishers at the plant.
The Secretary argues that the evidence established a violation. T.F. Luke admits that the
facts alleged in the citation are accurate. I find that the Secretary established a non-S&S
violation of the safety standard. T.F. Luke's negligence was moderate. A penalty of $60.00 is
appropriate.
27 FMSHRC 964

H. Citation No. 7938241
MSHA Inspector Julien issued Citation No. 7938241 under section 104(a) of the Mine
Act alleging a violation of section 56.14132(b)(l) as follows:
The Chevrolet C50 fuel truck was not provided with an automatic
reverse activated backup alarm. The truck is used at the beginning
of every shift to fuel up the crusher drive motor. The truck has an
obstructed rear view and travels across foot and mobile equipment
paths.
Inspector Julien determined that an injury was reasonably likely and, if an accident were to occur,
the injury could reasonably be expected to be fatal. He determined that the violation was S&S
and that T.F. Luke's negligence was moderate. The safety standard provides that "[w]hen the
operator has an obstructed view to the rear, self-propelled mobile equipment shall have an
automatic, reverse-activated signal alarm." The Secretary proposes a penalty of $247.00 for this
citation.
Inspector Julien testified that Dennis Soulek told him that the truck is used to fuel the
generator as needed and that a ground man is not used when the truck is in use. (Tr. 96). The
back-up alarm did not work when the truck was put in reverse. The large tank on the truck
totally obstructed the rear view. (Tr. 98). This violation created a hazard because anyone behind
the truck would not know if the driver intended to back up. He determined that the violation was
serious and S&S based on the fact that "if a miner was unaware of the backing motion of the
truck, it would [result in] a fatal crushing injury." (Tr. 99). Inspector Julien admitted that he did
not see the truck in operation and he did not have any specific knowledge as to how and when it
is used. (Tr. 145-49).
Thomas Luke testified that the cited fuel truck never backs up. {Tr. 206). The dozers and
loaders to be fueled are driven to the fuel truck when they need to be refueled. When the crusher
is refueled, the fuel truck operator drives the fuel truck forward to the crusher, fills it up, and then
drives forward, back to its parking spot. (Tr. 207). The fuel tank for the generator is filled by the
company's fuel provider. No miner ever backs the fuel truck up. He has a fuel truck at another
property that does not have an operating reverse gear because it never needs to travel in reverse.
The cited truck is capable of backing up. (Tr. 231 ). Dennis Soulek testified that the fuel truck
always goes forward in a circle. (Tr. 252). He admitted that the truck travels in reverse
sometimes when necessary to "back it out of the hole." (Tr. 269). Jesse Soulek testified that the
truck travels in a circle and that it does not back up. (Tr. 282).
The Secretary argues that the evidence established a violation. It argues that the violation
was S&S because miners were regularly exposed to the hazard created by the violation. The
truck was capable of backing up and employees did in fact back the truck up. T.F. Luke contends
that the violation was not S&S because the truck never backs up. It has 30 feet of hose. All
27 FMSHRC 965

mobile equipment is driven to the truck for refueling. The crusher is refilled at night and the
truck is never put into reverse when performing this task.
I find that the Secretary established a violation. The rear view was totally obstructed and
the back-up alarm was not working. I find, however, that it was not reasonably likely that the
hazard contributed to by the violation would have resulted in an injury. Although I conclude that
the fuel truck was put in reverse from time to time, it normally did not back up. Because only
three individuals worked at the plant, the risk of an injury was very low. It was unlikely that the
truck would back up while pedestrians were present. T.F. Luke's negligence was moderate. A
penalty of $100.00 is appropriate.

II. APPROPRIATE CIVIL PENALTIES
Section 1 lO(i) of the Mine Act sets forth six criteria to be considered in determining
appropriate civil penalties. The record shows that the Portable #1 Plant and Portable #2 Plant
each had a history of nine paid violations in the 24 months preceding the inspections. T.F. Luke
is a small mine operator. All of the violations that were affirmed in this decision were abated in
good faith. The penalties assessed in this decision will not have an adverse effect on T.F. Luke's
ability to continue in business. My gravity and negligence findings are set forth above. Based on
the penalty criteria, I find that the penalties set forth below are appropriate.

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

30 C.F.R. §

Penalty

56.14108
56.12008
56.14107(a)
56.12008
56.420l(a)(l)
56.14132(b)(l)

Vacated
$275.00
Vacated
275.00
60.00
100.00

CENT 2005-71-M
7938236
7938237
7938238
7938239
7938240
7938241
CENT 2005-72-M
7937754
7937755

56.12008
56.12025
TOTAL PENALTY
27 FMSHRC 966

60.00
60.00
$830.00

For the reasons set forth above, the citations and orders are AFFIRMED, MODIFIED,
or VACATED, as set forth above. T.F. Luke & Sons, is ORDERED TO PAY the Secretary of
Labor the sum of $830.00 within 30 days of the date of this deCision.

Richard W. Manning
Administrative Law Judge
Distribution:

Gregory Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550,
Denver, CO 80201-6550 (Certified Mail)
Jeffrey A. Sar, Esq., Baron, Sar, Goodwin, Gill & Lohr, P.O. Box 717, Sioux City, IA 511020717 (Certified Mail)

RWM

27 FMSHRC 967

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

December 20, 2005
JIM WALTER RESOURCES, INC.,
Contestant,

CONTEST PROCEEDING
Docket No. SE 2005-28-R
Citation No. 7682362; 10/14/04

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

No. 7Mine
Mine ID 01-01401

DECISION
Appearances:

Guy W. Hensley, Esq., Jim Walter Resources, Inc., Brookwood, Alabama;
Warren B. Lightfoot, Jr., Esq., Maynard. Cooper & Gale, P.C.,
Birmingham, Alabama, for Contestant;
Anne G. Paschal, Esq., U.S. Department of Labor, Office of the Solicitor,
Atlanta, Georgia, for Respondent.

Before:

Judge Bulluck

This case is before me on a Notice of Contest filed by Jim Walter Resources,
Incorporated ("JWR") against the Secretary of Labor, acting through her Mine Safety and Health
Administration, ("MSHA"), pursuant to section 105(d) of the Federal Mine Safety and Health
Act of 1977 ("the Act"), 30 U.S.C. § 815(d). JWR challenges a citation that MSHA issued under
section 104(a) of the Act, alleging a violation of the Secretary's safety regulation found at
30 C.F.R. § 75.507-1.
A hearing was held in Birmingham, Alabama. The parties' Post-hearing Briefs and Reply
Briefs are of record. For the reasons that follow, the citation shall be vacated.

I. Stipulations
The parties stipulated as follows:
1. The Administrative Law Judge and the Federal Mine Safety and Health Review
Commission have jurisdiction to hear and decide this contest proceeding pvrsuant to section 105
of the Federal Mine Safety and Health Act of 1977;

27 FMSHRC 968

2. Jim Walter Resources, Incorporated, is a mine operator subject to the jurisdiction of
the Federal Mine Safety and Health Administration;
3. Jim Walter Resources is the owner and operator of the No. 7 Mine located at 18069
Hannah Creek Road, Brookwood, Alabama, 35444;

4. Operations at the No. 7 Mine are subject to the jurisdiction of the Mine Safety and
Health Act;

5. MSHA Inspector Charles Carpenter was acting in his official capacity as an authorized
representative of the Secretary of Labor when he issued Citation No. 7682362;
6. Citation No. 7682362 was served on Jim Walter Resources or its agent, as required by
the Act;
7. Citation No. 7682362 is authentic and may be admitted into evidence for the purpose
of establishing its issuance, but not for the purpose of establishing the accuracy of any statements
asserted therein;

8. The submersible pump which resulted in the issuance of the citation herein is nonpermissible;

9. If the Administrative Law Judge upholds Citation No. 7682362, a single penalty
assessment of $60.00 should be imposed;
10. The penalty proposed in paragraph 9 will not affect Jim Walter Resources' ability to
remain in business; and
11. Jim Walter Resources is a large operator within the meaning of the Mine Act.

II. Factual Backeround
JWR owns and operates three underground coal mines, Nos. 4, 5, and 7, in Brookwood,
Alabama. Thirteen submersible (''deep well") pump systems, located on the surface with
components underground, have been used at JWR's facilities since 1987 to remove vast
accumulations of water from underground permanently sealed, worked-out areas where coal has
formally been mined. 1 Tr. 154. Once the permanent seals are erected, the sealed areas are totally

1

A "worked-out" area of a mine is a large section from which all mineral coal or ore has
been taken. American Geological Institute, Dictionary of Mining, Mineral, and Related Terms
630 (1997). The regulations define "worked-out area" as an area where mining has been
completed, whether pillared or nonpillared, excluding developing entries, return air courses, and
27 FMSHRC 969

isolated and inaccessible; they cannot be traveled, examined, inspected or ventilated. The water
that collects in the sealed area at issue forms a large underground lake that requires constant
management, so as to prevent the water from compromising the seals and inundating the active
workings of the No. 7 Mine. Tr. 163. The pumps, therefore, are situated at the lowest elevations
of the sealed areas in natural water collection basins. Tr. 163, 198. In addition to the pumps, as
part of its methane drainage system, JWR has numerous degas wells situated at intervals
throughout the sealed area, which are the sole means of determining atmospheric conditions in
the otherwise inaccessible area.2 Tr. 206--07, 211-12, 240-42.
Typical of JWR's 13 active electric submersible pumps, the pump at issue is one of five
operating to dewater the sealed area in the No. 7 Mine, and was installed in 1997. Tr. 31, 155;
ex. R-5. It is situated 6,022 feet south and 2,994 feet west of the nearest seal. Tr. 28, 118, 194;
ex. J-1. The area was sealed in October of 2002. Tr. 208. All electric controls for the pump are
housed above ground in a pump starter unit. Ex. R-2, R-3. From the starter unit, a high voltage
power conductor cable, encased in a steel pipe, runs some 2,000 feet underground to the original
mine floor, and an additional 200 feet beneath that surface, where the electric motor and pump
assembly are situated in a sump.3 The steel casing, at ground level on the surface, is capped by a
metal wen head. The motor sits at the bottom of the sump and is 30 feet high, there is a 5-foot
seal between the motor and the pump, and the pump, itself, also 30 feet high, sits on top of the
seal. According to the manufacturer's specifications, in order for the pump to operate, there must
be at least 30 feet of water ("head") above the inlet of the pump, so that the motor and pump
assembly require 65 feet of water in which to operate. Inside the steel casing is also a metal
discharge pipe. The casing is slotted just below the water level, allowing water into the casing
where it is forced down to a second set of slots at the bottom, where it cools the electric motor.
The pump, with a 500-gallon-per-minute capacity, then transports the water up the discharge pipe
to a surface settlement pond. A vacuum sensor, located on the surface, automatically shuts off
the power from the pump starter to the entire system, if it detects that the water level has dropped
below 30 feet of head above the pump. Additionally, JWR has installed a redundant safety
system, undercurrent protection, that will also disable the system. Tr. 33-35, 156-64, 245-46.
JWR's submersible pumps, utilized in sealed areas since 1987, had always been inspected
by MSHA under Part 77 regulations applicable to surface areas of underground mines, and the

intake air courses. 30 C.F.R. § 75.301. "Sealing" refers to a routine method of shutting-off areas
utilized by some mines to secure the active areas against flowing or escaping gas, air or liquid, by
erecting permanent barriers. Dictionary of Mining, Mineral, and Related Tenns at 487.
2

A degas well is a vertical borehole through which methane and other contaminants are
removed from the atmosphere of a mine.
3

A "sump" is an excavation made underground to collect water, from which it is pumped
to the surface or to another sump nearer the surface. Dictionary of Mining, Mineral, and Related
Tenns at 55 l.
27 FMSHRC 970

National Electric· Code ("NEC"). Tr. 54-57, 99-100, 125, 167. Under Part 77, the pumps were
not required to be permissible. 4 Sometime in 2003, in response to inconsistent enforcement in
the districts, i.e., some were inspecting submersible pumps under Part 75 while others were
applying Part 77, MSHA's Safety Division decided to impose uniform, nationwide compliance
under Part 75. Tr. 101-104. As a consequence, in orderto continue use ofnonpermissible
pumps behind the seals underground, operators who had been inspected under Part 77 were
required to file Petitions for Modification under section lOl(c) of the Act.
JWR opposed MSHA's application of Part 75 underground standards and when extensive
informal discussions about the safety of JWR' s pumps proved unfruitful, JWR filed a Petition for
Modification with MSHA on July 22, 2003, seeking approval to continue operation of its
nonpermissible submersible pumps in sealed areas of its Alabama mines, including No. 7 herein
at issue. Ex. C-1. In the meantime, before issuing its decision on the Petition, MSHA issued
Program Information Bulletin No. P03-26 ("PIB"), clarifying compliance requirements for
nonpermissible electric submersible dewatering pumps installed in sealed areas, return air
courses or bleeder entries in underground coal mines. The PIB notified the mine industry of
MSHA's application of section 75.507 to submersible pumps, that the pumps are located in
return air for purposes of the regulation, and that they are required to be permissible, unless a
modification is approved by MSHA. Ex. R-6.

MSHA issued its Proposed Decision and Order ("PDO") on June 17, 2004, authorizing
JWR to continue use of its submersible pumps under specific detailed conditions. Ex. C-1. JWR
found the conditions unacceptable and appealed the PDO, arguing, inter alia, that section 75.507
does not apply to the pumps at issue.5 The appeal has been stayed, pending the outcome of the
instant matter.
On October 14, 2004, MSHA Inspector Charles Carpenter conducted a AAA inspection
of JWR's No. 7 Mine. Tr. 26. Of the five submersible pumps installed in the sealed area, only
the one at issue in this case was running. Tr. 31. Upon inspecting the pump, Carpenter
determined that it was nonpermissible and operating in return air, in contravention of the

4The regulations define permissibility: "(l) As applied to electric face equipment, all
electrically operated equipment taken into or used inby the last open crosscut of an entry or a
room of any coal mine the electrical parts of which, including, but not limited to, associated
electrical equipment, components, and accessories, are designed, constructed, and installed, in
accordance with the specifications of the Secretary, to assure that such equipment will not cause
a mine explosion or mine fire, and the other features of which are designed and constructed, in
accordance with the specifications of the Secretary, to prevent, to the greatest extent possible,
other accidents in the use of such equipment." 30 C.F.R. § 75.2.
5There is credible testimony that the modifications mandated by the PDO for all the
pumps would cost JWR an estimated $1.3 to $1.4 million. Tr. 171. Moreover, there is no
dispute that it is impossible for JWR to make the existing pumps permissible. Tr. 110, 115, 167.
27 FMSHRC 971

provisions ofthe ·PIB. Consequently, he issued section 104(a) Citation No. 7682362, alleging a
non-significant and substantial violation of 30 C.F.R. § 75.507-1, and describing the hazardous
condition as follows:
The operator is operating a nonpermissible 3,200-volt alternating current
(VAC) submersible pump with nonpermissible electric power connections in the
southwest sealed area of the Jim Walter Resources, Inc., No. 7 mine. The pump
with its connections is not being ventilated with intake air by the No. 7 mine
ventilation system.
Ex. R-1; tr. 26-27. JWR timely contested the citation, challenging the PIB and MSHA's
application of the underground regulation to what JWR considers surface equipment.

III. Findings of Fact and Conclusions of Law
A. Fact of Violation
In pertinent part, the cited regulation provides as follows:
(a) All electric equipment, other than power-connection points, used in
return air outby the last open crosscut in any coal mine shall be permissible ....
30 C.F.R. § 75.507-1.
It is well settled that the "language of a regulation ... is the starting point for its
interpretation." Dyer v. United States, 832 F. 2d 1062, 1066 (9th Cir. 1987) (citing Consumer
Prod. Safety Comm'n v. GTE Sylvania, Inc., 44 U.S. 102, 108 (1980). Where the language of a
regulatory provision is clear, its terms must be enforced as written, unless the regulator clearly
intended the words to have a different meaning or unless such meaning would lead to absurd
results. See id.; Utah Power and Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989); Consolidation
Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). If, however, the meaning is ambiguous,
deference has been accorded by the courts to the Secretary's reasonable interpretation of the
regulation. See Udall v. Tallman, 30 U.S. 1, 16-17 (1965) (finding that the reviewing body must
"look to the administrative construction of the regulation if the meaning of the words used is in
doubt") (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14 (1995)); Exportal
Ltda. v. United States, 902 F. 2d 45, 50 (D.C. Cir. 1990) ("Deference ... is not in order if the
rule's meaning is clear on its face.") (quoting Pfizer, Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C.
Cir. 1984)). The parties both take the position that section 75.507-1, including "return air" as
defined by section 75.301, is unambiguous. Cont. Br. at 14; Sec. Br. at 7. I agree, and find that
the plain meaning of the regulation requires that the electric submersible pump at issue be

27 FMSHRC 972

permissible, if it is operating in return air.6 Assuming argueruio, that the regulation were
ambiguous, the Secretary's interpretation would not be entitled to deference because, for the
reasons that shall be discussed below. it is unreasonable.
As a threshold matter, JWR argues that, by definition, the sealed area is not a part of the
mine, because the permanent barriers break the connection between the active mine workings,
including worked-out areas, and the former mine workings.7 The company reasons that, as a
practical matter, the solid barriers formed by the seals and ribs prevent working, traveling
ventilating, examining and inspecting behind the seals. Cont. Br. at l, 11-13. The Secretary,
conversely, maintains that the sealed area results from the work of extracting bituminous coal
and is, therefore, a mine, required to be depicted on the mine maps in accordance with 30 C.F.R.
§ 75.1200(b). Sec. Br. at 9-10. Recognizing that the Act requires broad interpretation to
effectuate its protective purposes, JWR's reliance on the permanent separation between the
sealed area and active mine workings to advance this argument is misplaced, especially in view
of the water's potential to break through the seals and flood the active mine. JWR, itself,
minimizes the significance of the physical barriers when it comes to the questions of liability and
responsibility, by the very emphasis and diligence it places on water removal within the
contained areas. No construction of the cases JWR cites as authority for its position exempts the
sealed area from mine status, absolves JWR of its responsibility to maintain the sealed area, or
short-circuits the analysis required to determine whether section 75.507 is applicable to the
sealed area. See Bushy Creek Coal Co., 17 FMSHRC 966 (June 1995) (AU); Apex Minerals,
Inc., 19 FMSHRC 796 (April 1997) (AU). Accordingly, I find that the sealed area is a "mine"
subject to regulation under the Act.

6'•Return air" is air that has circulated the workings and is flowing towards the main mine
fan. Dictionary of Mining, Mineral, and Related Terms at 457. The regulations define "return
air" as" [a]ir that has ventilated the last working place on any split of any working section or any
worked-out area whether pillared or nonpillared. If air mixes with air that has ventilated the last
working place on any split of any working section or any worked-out area, whether pillared or
nonpillared, it is considered return air. For purposes of§ 75.501, air that has been used to
ventilate any working place in a coal producing section or pillared area, or air that has been used
to ventilate any working face if such air is directed away from the immediate return is return air."
30 C.F.R. § 75. 301.
7

Section 3(h)(2) of the Act defines "coal mine" as: "an area of land and all structures,
facilities, machinery, tools, equipment, shafts, slopes, tunnels, excavations, and other property,
real or personal, placed upon, under, or above the surface of such land by any person, used in, or
to be used in, or resulting from, the work of extracting in such area bituminous coal, lignite, or
anthracite from its natural deposits in the earth by any means or method, and the work of
preparing the coal so extracted, and includes custom coal preparation facilities." 30 U.S.C.
§ 802(h)(2). By regulation, a coal mine "(i]ncludes areas of adjoining mines connected
underground." 30 C.F.R. § 75.2.
27 FMSHRC 973

The parties do not dispute that the submersible pump at issue is located outby the last
open crosscut. Ex. J-1; Resp. Br. at 6. They also agree that the pump is nonpermissible. Stip. 8.
The point of controversy, then, is whether this pump, with its underground components, is
operating in return air. At the heart of this question is MSHA' s concern that the pump poses a
potential ignition source for an underground fire or explosion.

JWR contends that the pump's controls are located above ground, the underground
motor/pump assembly is operating underwater and, because the steel casing connecting the motor
to the surface components is situated in stagnant, "otherworldly" atmosphere rather than return
air, Part 77 surface standards should apply. Cont. Br. at 2, 9. The Secretary, on the other hand,
maintains that the worked-out area contained return air at the time it was sealed, the resultant
atmosphere constitutes return air, and that the exchange of air at the seals pulls return air from
the active mine into the sealed area. Sec. Br. at 7. Furthermore, the Secretary argues, as a single
unit, linked from the surface controls to the submersed underground motor by the steel encased
electric cable, the electric components are situated in return air. Id. at 10. While I agree with the
Secretary that the submersible pump system constitutes a single unit of electric equipment
operating underground, the evidence in its entirety does not support her contention that the pump
is being operated in return air.

a. Testimony of the Secretary's Witnesses
MSHA Inspector Charles Carpenter testified that once prior to October 2003, he had
inspected the pump at issue under Part 77 and the NEC. Tr. 54-56. According to Carpenter,
there was "no real direction" or "no clear-cut way" provided to the districts to inspect the
submersible pumps until MSHA issued the PIB. Tr. 56-57. The operation of the pump did not
change between the two inspections, he acknowledged, but he issued the instant citation based on
the change in enforcement policy set forth in the PIB. Tr. 57-60. When asked whether the five
pumps in No. 7 are located in return air, in replying "yes and no," he explained that "[t]he area
that's sealed is separated from the mine atmosphere, the normal mine atmosphere, by a set of
seals which basically stagnates that area. However, based upon pressure differential as well as
the mechanics of the pump, it would draw that return air into the sealed area, or vice-versa,
depending on pressures." Tr. 31-32, 63. Moreover, while he opined that water pumped from the
reservoir would be displaced by air seeping through the seals from the active workings, he
conceded that he did not consider the air within the seals to be return air, and that the air
exchanged at the seals probably would not travel very far. Tr. 32-33, 47, 50. In fact, Carpenter
acknowledged, Part 75 only requires testing of the air/gas mixture 15 feet on the other side of the
seal. Tr. 50-5 l. Carpenter also attested to lacking knowledge of the air/gas mixture in the
vicinity of the pump. Tr. 51-52. Moreover, he conceded that he knew of no event that would
cause an explosion to a pump submersed in a large body of water. Tr. 54.
Specialist Robert Phillips oversees the petition program for MSHA's Division of Safety.
The PIB at issue was drafted primarily by Phillips. Tr. 76. He also drafted the PDO that has

27 FMSHRC 974

been appealed to.the Secretary. Tr. 114. Phillips testified that there are only two types of air
underground, intake or return, and that the air passing by the seals is return air. Tr. 77.8 He
stated that, although the pump is submerged in 30 feet of water, the metal pipe is conductive, and
the electric wiring and associated circuitry present hazards. Tr. 78-79. According to lightning
experts, he asserted, the mine is located in a lightning-prone area. Tr. 89. In support of MSHA's
mandate that the submersible pump be permissible, Phillips referenced several mine explosions
that occurred in sealed areas, occasioned by lightning striking surface metal equipment and
igniting methane underground. Tr. 79-81. These incidents were investigated, he stated, and
resulted in a report by the National Institute for Occupational Safety and Health ("NIOSH"),
aimed at reducing the danger of gas explosions in sealed areas of mines.9 Tr. 81. Phillips
described the transition zone at the seals and well heads, where intake and exhaust of air occurs
due to differences in atmospheric pressures, and methane accumulates in the explosive range
from 5 to 15%. Tr. 82-83. While he framed the hazard as operating a nonpermissible piece of
equipment in a sealed area somewhere near a transition zone, where the oxygen/methane mixture
goes through the explosive range, he conceded that the regulations require only a 15-foot
transition zone behind the seals for monitoring air/gas mixtures. Tr. 102, 116-18. According to
Phillips, he was unaware of MSHA applying Part 75 to JWR's pump systems prior to the
issuance of the Pm, and conceded that in so doing, MSHA had been aware that it was making
illegal what had previously been legal operation of these pumps. Tr. 99, 103-105. He gave
conflicting testimony, however, as to whether MSHA had applied Part 75 regulations to
submersible pumps in general, before it issued the Pm. Tr. 125; but see 127-28. Phillips
admitted that MSHA had not studied whether there had been fires or explosions in conjunction
with operation of submersible pumps prior to issuance of the Pm, and that none of his references
to explosions behind seals caused by lightening strikes, involved deep wells operating in flooded
areas. Tr. 106-07. Phillips also acknowledged that the pump is a great distance from the nearest
seal, and that he does not know the content of the air/gas mixture above the water where the
pump is located. Tr. 118-19, 133. Furthermore, he conceded that if the oxygen content were less
than 1%, an explosion would be impossible. Tr. 134. Finally, when asked to refer to the NIOSH
report, Phillips conceded that if the methane concentration is above 15%, "lightning has no
effect." Tr. 136.
Dean Skorski, supervisory electrical engineer in the Mine Electrical Systems Division at
MSHA's Pittsburgh Safety and Health Technology Center, testified that he had conducted an
evaluation of the pump's surface grounding system. Tr. 147. When asked about underground

8

"Intak.e air" is "[a]ir that has not yet ventilated the last working place on any split of any
working section, or any worked-out area, whether pillared or nonpillared." 30 C.F.R. § 75.301.
9In recommending methods of reducing the probability of occurrence of explosions from
lightning penetrations into underground sealed (gob) areas, NIOSH Technology News No. 489,
issued May 2001, concludes that methane concentrations greatly above the upper flammable
limit of 15% will be unaffected by lightning or other potential sources that might exist in the gob,
such as old batteries, roof falls and spontaneous combustion. Ex. C-2.
27 FMSHRC 975

hazards associated with operating the pump, he stated that "there's one system in place, and it
extends from the utility through the transformer station to the underground area. And not
knowing what the environment is underground, the hazards are hard to define." Tr. 142. Skorski
conceded that, in case of an electrical problem caused by a lightning strike or fault going into the
pump system, if the underground environment contains less than 1% oxygen, or a significant
body of water, an explosion will not occur. Tr. 147-48.

b. Testimony of .JWR's Witnesses
Randy Watts, senior electrical maintenance engineer since 1990, is involved with the
design and installation, maintenance and testing of all electrical equipment at JWR. Tr. 153-54.
Watts described in great detail the operation of the electric submersible pumps, and stated that
JWR has not experienced significant problems since the company began using them in 1987.
Tr. 169. He could not imagine an ignition or explosion occurring, he asserted, because of the
motor's submersion in at least 60 feet of water. Tr. 165-66. When asked specifically how the
pump at issue would fare in the event of a lightning strike, he opined that it would dissipate the
energy very quickly because of its contact with wet earth and the water at the very bottom of the
mine. Tr. 173-74. Watts also expressed his belief that Part 77 addresses any hazards associated
with operation of the pump. Tr. 175-76.
Thomas McNider has been directly involved in ventilation or in its oversight since
beginning work at JWR in 1976 and, in that capacity, has been directly responsible for most of
the ventilation design for all the mines and insuring compliance with Part 75.300 ventilation
standards. Tr. 184-87. He testified about his extensive experience in seal construction, and that
he works with the mines in designing the layout of the seals for worked-out areas. Tr. 187-89.
Using a map of No 7, McNider located the pump at issue in the sealed area, 2,994 feet west and
6,022 feet south of the nearest seals. Tr. 194. He located the nearest degas welJs 1,634, 3,008,
and 3,574 feet away from the pump. Tr. 195-96; ex. C-3, J-1. McNider explained the utility of
the degas wells, in determining the composition of the atmosphere above the water, by stating
that "[w]e produce these wells on an ongoing basis, seven days a week, 24 hours a day.... We
sample these periodically. After this area is sealed for a certain period of time, these wells will
reflect the atmosphere that the deep well would see, in time. And what I mean by 'in time' is
after it's gone through a period to where you reach a stable atmosphere back here, which can be
very short." Tr. 197; ex. C-3. McNider stated that a major distinguishing factor between sealed
and unsealed areas is that Part 75.334 requires that worked-out areas be either ventilated or
sealed, but not both. Tr. 200. McNider opined that the sealed area does not contain intake air, by
testifying that "[i]n my definition of 'return air' is as it's used to describe under Part 75, and in a
working sense air that is intake air or air that is used to ventilate either a working section or some
other piece of equipment or whatever defined under Part 75, as it's coursed away into the fan,
then it becomes return air. When you are in a sealed portion, that air does not work. It is not
moved, it's stagnant. So to me, that is a distinction between sealed and unsealed." Tr. 205-06;
see 234-37. According to McNider, samples were colJected from the degas wells and analyzed
27 FMSHRC 976

the day before the hearing. Tr. 206. He reported the atmosphere in the vicinity of the pump to
contain 90% methane and less than 1% oxygen - - an atmosphere well beyond the 5 to 15 %
explosive range. Tr. 206-08. He dated the contained atmosphere at approximately two and a half
years old, since the seals were completed around October 2000.
Tr. 208. McNider also elaborated on the composition of the non-circulating atmosphere by
stating that "[basically, after you seal an area, the oxygen is depleting because it is oxidizing with
the carbon in the area, and either typically it forms carbon dioxide, and the residual left is
nitrogen and the methane is building up. It takes a little bit of - - that was what I referred to
earlier about a certain amount of time, which would be in my estimate a few months, for it to
reach this steady state. And then basicaUy what you have there is methane, nitrogen and carbon
dioxide." Tr. 208-09; see 232-33, 299-40. In responding to questions about whether the
atmosphere had remained essentially the same after settling into its steady state, he asserted that,
typically, the samples yield the lowest methane concentration at 60%, with residual nitrogen and
less than 1% oxygen. Tr. 209-11. On cross-examination, McNider acknowledged that there is
no way to ascertain the exact methane concentration in the atmosphere around the pump, but
opined that it would be similar to the concentrations measured at the degas wells. Tr. 231, 24041.
David Hicks, planning manager of No. 4 Mine since 1998 and familiar with the
submersible pump at issue, testified that he is unaware of the head of water above the pump ever
dropping below 30 feet. Tr. 244-45. Hicks also explained that the pump only functions with a
continuous supply of water and that, coupled with the force of gravity, it could never remove all
the surrounding water. Tr. 245-46.

B. Disposition
The Secretary's enforcement action is based on her interpretation of return air, as defined
by section 75.301. Therefore, what is at issue here is the interpretive policy applying the
regulation, rather than the regulation, itself. Under the plain language of section 75.507-1, the
electric pump, located outby the last open crosscut, must be permissible if it is being operated in
return air. The Secretary's contention that the air within the sealed area has to be return air, since
it cannot be intake air, would apply to the active mine and not the worked-out sealed area. By
definition and operation, intake and return air circulate and work, consistent with the demands of
active mining in the accessible parts of the mine. Sealing causes dramatic atmospheric changes
within an enclosure, within a relatively short period of time, such that the resultant stagnant
environment is entirely dissimilar to that in the active mine. By standing steadfast on the
position that underground atmosphere, without exception, must be the one simply because it
cannot be the other, the Secretary is ignoring the distinctly different environmental properties of
sealed and active areas in the mines. All air changes underground; return air, after all, was intake
air, before it performed the cleansing function for which it was brought into the mine. Likewise,
it undergoes further change when it is shut off from ventilation in the active mine. The
Secretary's inspector, in fact, wavered from her position that the sealed area contains return air.

27 FMSHRC 977

Tr. 31-32, 47. Testimony that the methane/oxygen mixture behind the seals is at a level far
beyond the explosive range, was wholly unrebutted by the Secretary. McNider gave credible
testimony that the degas wells yield methane concentrations ranging from 60% to 90%.
Furthermore, the Secretary did not challenge the NIOSH report that lightning and any other
potential ignition sources pose no hazard to methane in concentrations greatly beyond the upper
flammable limit of 15%. In focusing on the air exchange at the seals, she did not establish that
any contamination by return air migrates appreciably beyond the 15-foot transition zone to create
an explosive atmosphere where the pump is located. Moreover, the Secretary launched no
challenge to JWR's argument that, notwithstanding the methane concentration, the lake-sized
body of water in the sealed area is not conductive to lightning. Based on the evidence in its
entirety, it is my finding that JWR's submersible pump in the No. 7 Mine is not operating in
return air. Therefore, section 75.507-1 is inapplicable and the pump is not required to be
permissible.
Because I find that the Secretary's interpretation of section 75.507-1, as applied to
worked-out sealed areas, is at odds with the regulation she seeks to enforce by impermissibly
expanding the unambiguous definition of return air, and that her policy erroneously applies a
permissibility standard to electric equipment that is not being operated in return air, no violation
has been committed by JWR and Citation No. 7682362 is hereby vacated.

ORDER
Accordingly, it is ORDERED that Citation No. 7682362 is VA CATED.

~€~
Administrative Law Judge
(202) 434-9987

Distribution: (Certified Mail)
Ann G. Paschall, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street,
S.W., Room 7Tl0, Atlanta, GA 30303
Guy W. Hensley, Esq., Jim Walter Resources, Inc., P. 0. Box 133, Brookwood, AL 35444
Warren B. Lightfoot, Jr., Esq., Maynard, Cooper & Gale, P.C., 2400 AmSouth/Harbert Plaza,
1901 Sixth Avenue N., Birmingham, AL 35203-4604

27 FMSHRC 978

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W. Suite 9500
Washington, DC 20001-2021

December 21, 2005
SPARTAN l\11NING COMPANY,
Contestant

CONTEST PROCEEDJNGS
Docket No. WEVA 2002-111-R
Citation No. 7191145; 05/15/2002

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
ADMJNISTRATION (MSHA),
Respondent

Docket No. WEYA 2002-112-R
Citation No. 7191146; 05/15/2002
Mine ID 46-08159
Shadrick Mine

ORDER OF DISMISSAL ON REMAND
Before:

Judge Hodgdon

This case is before me on remand from the Commission. Spartan Mining Co., 27
FMSHRC _ , slip op. at 2, No. WEYA 2002-111-R (Nov. 16, 2005). 1 Noting that Cannelton
In~ustries, Inc., the previous owner of the mine, paid the civil penalty assessed for this violation
prior to selling the mine, Spartan Mining has requested leave to withdraw the Notice of Contest.
Commission Rule 11, 29 C.F.R. § 2700.11, provides that "[a] party may withdraw a pleading at
any stage of a proceeding with the approval of the Judge or the Commission."
The motion notes that the Secretary has no objection to this request. Accordingly, the
motion for leave to withdraw is GRANTED and it is ORDERED that this case is DISl\fiSSED.

~~~

Administrative Law Judge

Distribution:
David J. Hardy, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd., East, P.O. Box
273, Charleston, WV 25321-0273
Toye Olarinde, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Blvd., 22nd
Floor, Arlington, VA 22209

1

To be published as Spartan Mining Co., 27 FMSHRC 718 (Nov. 2005).
27 FMSHRC 979

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

December 30, 2005
CRIMSON STONE,
Contestant

CONTEST PROCEEDING
Docket No. SE 2005-325-RM
Citation No. 6088368; 08/25/2005

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

Crimson Stone
Mine ID No. 01 -02945

DECISION
Appearances:

Bruce H. Henderson, Esq., Phelps, Jenkins, Gibson & Fowler, L.L.P.
Tuscaloosa, Alabama, on behalf of the Contestant;
Amy R. Walker, Esq., Office of the Solicitor, U.S. Dept. of Labor, Atlanta,
Georgia, on behalf of the Respondent.

Before:

Judge Melick

This case was filed by Crimson Stone pursuant to Section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., the "Act," to challenge Citation No.
6088368 issued by the Secretary on August 25, 2005. The citation was issued under Section
104(d)(l) of the Act and, as amended, alleges a "significant and substantial" violation of the
mandatory standard at 30 C.F.R. § 56.14107(a). 1 The general issue before me is whether

1

Section 104 (d)(l) of the Act provides as follows:

If, upon any inspection of a coal or other mine, an authorized representative of the
Secretary finds that there has been a violation of any mandatory health or safety standard,
and if he also finds that, while the conditions created by such violation do not cause
imminent danger, such violation is of such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or health hazard, and if he
finds such violation to be caused by an unwarrantable failure of such operator to comply
with such mandatory health or safety standards, he shall include such finding in any
citation given to the operator under this Act. If, during the same inspection or any
subsequent inspection of such mine within 90 days after the issuance of such citation, an
authorized representative of the Secretary finds another violation of any mandatory health
or safety standard and finds such violation to be also caused by an unwarrantable failure
of such operator to so comply, he shall forthwith issue an order requiring the operator to
27 FMSHRC 980

Crimson Stone violated the cited standard and, if so, whether the violation was "significant and
substantial" and the result of "unwarrantable failure."
Citation No. 6088368 alleges as follows:
The guard that provided protection of persons from the tail pulley, head pulley and chain
drive and on the conveyors that take the rock from the dry plant crusher to the screen
deck, was not being maintained. The guard was hanging and it was easy to come into
contact with the moving machine parts. Employees working/traveling near this area were
exposed to the possibility of injury, from entanglement hazards, and/or pinch points.
Employees work and travel this area daily.
This area has been cited for guarding in the previous two inspections and the foreman
should have been aware of the condition. This condition shows unwarrantable failure of
management to provide and maintain a secure guard at this location.
The cited standard, 30 C.F.R., § 56.14107 (a), provides that:
"[m]oving machine parts shall be guarded to protect persons from contacting gears, sprockets,
chains, drive, head, tail, and take-up pulleys, fly wheels, couplings, shafts, fan blades, and similar
moving parts that can cause injury."
Inspector Doniece Schlick of the Department of Labor's Mine Safety and Health
Administration (MSHA), has a Bachelor of Science degree in mining engineering from the
University of Alabama, prior mining industry experience and 15 years experience with MSHA.
Ms. Schlick began her inspection of the Crimson Stone operation on August 25, 2005.
The Crimson Stone mine is comprised of three plant operations: the wet plant, dry plant
and excavator. Before commencing her inspection of the dry plant, Ms. Schlick "believed" that
the noise she heard from the direction of that plant indicated that it was operating. Admittedly
however, she did not actually see the plant in operation and at the time of her actual inspection it
was in fact not operating. At the time of her inspection she observed "particles" falling off of the
belt. She therefore surmised that the belt had recently been operating.
Upon inspection of the dry plant, Schlick noted that a guard on the right side of the
conveyor was "worn out" and hanging loose, exposing pinch points at the chain drive, head
pulley and tail pulley (See Exhibit G-4). She noted that the head pulley pinch point was located
about chest high above ground level, the chain drive elbow high and the belt and tail pulley knee

cause all persons in the area affected by such violation, except those person referred to in
subsection (c) to be withdrawn from, and to be prohibited from entering, such area until
an authorized representative of the Secretary determines that such violation has been
abated.
27 FMSHRC 981

high. She testified that she stood 5 foot 5 inches in height. She further testified that the dry plant
was "energized" and not "locked out."
Inspector Schlick testified that even if the guard had been properly bolted in position, it
would still not have provided adequate protection. It had lost several rows of protective wire
mesh and would have been of insufficient size to have provided adequate guarding of the noted
pinch points. The cited condition was abated by constructing additional guarding as depicted in
photographic exhibits G-5 and G-7.
Mine supervisor William Hunter testified that he was responsible for safety at the mine.
Hunter testified that the last time he had seen the guard it had been bolted into position. He
acknowledged in reference to the size and shape of the guard that there was no other difference
from the time he had last seen it. It may therefore reasonably be inferred that no other guarding
had been provided on the top or that side of the pinch points cited herein. Miller noted that
material is cleaned up beneath the belt once or twice a day and that rollers and bearings must be
greased.
Recalled as a witness for the operator, Hunter testified that the dry plant was not
operating at the time of the inspection and indeed it had last operated some two to three weeks
before. Hunter also testified that not only was the dry plant not operating that day but the power
to the dry plant was not on. According to Hunter, it was company policy not to run two crushers
at the same time and he believed there was inadequate power to run two crushers at the same
time. Since the wet plant crusher was admittedly operating on that date it may be inferred from
Hunter's testimony, if credible, that the dry plant crusher was not operating that day.
Crimson Stone President James Sanders was not present at the mine when the citation
was issued. He testified that the dry plant is never operated while other plants are operating at
the mine because of the high cost of doing so. He also believed that there was inadequate power
to operate more than one plant at the same time.
Crimson Stone maintenance man Donald Hughes testified that he cleans up
accumulations under the dry plant by using a "skid loader". Hughes testified that he does not use
a shovel to clean under the plant but rather remains inside the "skid loader". According to
Hughes, on the day before the citation was issued, he struck the guard with the "skid loader" and
tore it loose. He claims that the dry plant was not operating on August 25th, the date of the
citation and that the "main breaker" had shut off the power to that location.
Respondent does not dispute the condition of the cited guard or that contact with the
pinch points could cause injury. It also acknowledges in its brief that "[t]he guard had clearly
been pulled off at the bottom and was hanging by one bolt that attached the wire mesh guard to
the conveyor" (Respondent's Brief p.5). Within this framework of undisputed evidence, I
conclude that the violation is proven as charged. In reaching this conclusion I have not
disregarded Respondent's argument that the Secretary failed to prove that the dry plant was
27 FMSHRC 982

actually operating with the defective guard when it was cited. The standard at bar does not,
however, require such proof.
I also find that the violation was "significant and substantial". A violation is properly
designated as "significant and substantial" if, based on the particular facts surrounding that
violation, there exists a reasonably likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature. Cement Division, National Gypsum Co., 3
FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained:

In order to establish that a violation of a mandatory standard is significant and substantial
under National Gypsum the Secretary must prove: (1) the underlying violation of a
mandatory safety standard, (2) a discrete safety hazard - that is, a measure of danger to
safety - - contributed to by the violation, (3) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.
See also Austin Power Co. v. Secretary, 861F.2d99, 103-04 (5th Cir. 1988), affg 9
FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).

The third element of the Mathies formula requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result in an event in which there is an
injury. U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984). The likelihood of such
injury must be evaluated in terms of continued normal mining operations without any
assumptions as to abatement. U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984);
See also Halfway, Inc., 8 FMSHRC 8, 12 (January 1986) and Southern Ohio Coal Co., 13
FMSHRC 912, 916-917 (June 1991).
In attempting to prove that the violation was "significant and substantial" the Secretary
elicited testimony from Inspector Schlick as found in the following colloquy:

Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.

You cited - - you assessed the citation as an [S&S] citation; is that right?
Yes, I did.
And have you received any training from MSHA about pinch point guards?
Yes, I have.
Have you investigated any accidents in relation to inadequate guards?
Yes, I have.
Have you reviewed any accident reports related to inadequate guards?
Yes, I have.
In that experience, what sorts of injuries are likely to occur as a result of
inadequate guards?
The injury that occurred with the guards are always severe and fatal.
Can you give us some examples?
This year we've had three guards - 27 FMSHRC 983

Q.

A.

Q.

A.
Q.
A.

A.

Q.
A.
Q.
A.
Q.
A.

Q.

A.
Q.
A.

MR. HENDERSON: Objection. Relevance, Your Honor.
MS. WALKER: Your Honor, I'm trying to establish S&S.
THE COURT: Over ruled. Do you recall the question?
I asked for examples of injuries that you're familiar with.
Mr. HENDERSON: And I - - okay, Your Honor.
THE COURT: Over ruled.
This year alone we've had three different fatality incidents regarding one of
them that we had in Mississippi in a plant that would have been similar to
the one at the Crimson Stone Plant. A gentleman's raincoat was caught in
the bottom roller and it broke his neck.
In the accidents related to insufficient guarding, do all of those accidents occur
like inadvertent contact pinch points?
No.
What other sorts of situations have occurred?
Actually - MR. HENDERSON: Objection, Your Honor. Now, we're in general testimony
that offers nothing.
THE COURT: Over ruled.
This year we have data that shows actually maintenance people and foramen
[sic] are coming in to contact with moving parts because they are trying to
eliminate a problem from pieces of rebar getting caught in the tail pulley.
They'll try to reach in and jerk it out.
You're aware of accidents that have resulted as intentional contact?
Yes.
You assess the citation again as S&S?
Guarding accidents are our highest area of fatalities and incidents right now.
That's why we're discussing guards when we go on inspections.
What did this particular plant made injury reasonable likely?
This area as depicted in Government's 6 is an easily accessible area. The
vehicle is less than five feet from the guard. This here is a traveled area.
You have to walk by this area where the vertical curves are open. They are
close within 10 or 15 feet. One of the main roadways around the plant is
right there so I would assume that with it's proximity and the traveled ways
being close. You have to grease these pulleys and that's usually maintenance
that's done three or more times a week.
Did you see any evidence in the work area depicted - - well, in all of the pictures
that we've introduced so far that there was actually that human beings actually
worked in that area?
There was. It's obvious that is well traveled or beaten down. There was a
shovel laying up against the trailer.
Approximately how far away from the cited area was the shovel?
Ten feet, five feet.

27 FMSHRC 984

Q.

How many employees to your knowledge - - how many employees does Crimson
Stone have?

A.
Q.

Four.
And does the number of employees affect your assessment of the likelihood of a
injury - - sorry. Let me rephrase. To your opinion in your experience does the
low number of employees make an injury less likely?
No, it does not.
Why? .
The likelihood that an accident would happen is that people traveled that
frequently.

A.
Q.
A.

While the Secretary could no doubt have provided more particularized testimony to
support her findings herein I find that this evidence considered in conjunction with the
corroborative photograph in evidence (Exhibit G-4) and the inferences to be drawn therefrom are
sufficient to sustain the Secretary's findings that the violation was "significant and substantial".
I also find that the violation was the result of the operator's "unwarrantable failure".
Unwarrantable failure is "aggravated conduct, constituting more than ordinary negligence, by a
mine operator in relation to a violation of the Act." Emery Mining Corp., 9 FMSHRC 1997,
2004 (December 1987). Unwarrantable failure is characterized by such conduct as "reckless
disregard," "intentional misconduct," "indifference," or a "serious lack of reasonable care." Id.
at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (February 1991); see
also Rock of Ages Corp. v. Secretary of La.bor, 170 F .3d 148, 157 (2d Cir. 1999); Buck Creek
Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable
failure test). Moreover, the Commission has examined the conduct of supervisory personnel in
determining unwarrantable failure and recognized that a heightened standard of care is required
of such individuals. See Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011 (December
1987) (section foreman held to demanding standard of care in safety matters); S&H Mining, Inc.,
17 FMSHRC 1918, 1923 (November 1995) (heightened standard of care required of section
foreman and mine superintendent).

In finding that the violation was the result of "unwarrantable failure" I have not
disregarded the testimony of maintenance man Hughes that on the afternoon of the day before the
violation was cited he had tom the cited guard loose and the testimony of Supervisor Hunter that
he did not see the damaged guard before the citation was issued at 9:45 the next morning.
Ordinarily such circumstances would mitigate against the high level of negligence required for an
unwarrantable finding. However, based on the credible evidence that the guard was in such an
obviously degraded condition that it would have been deficient even if it had been properly in
position, I conclude that Supervisor Hunter had prior knowledge that the guarding at the location
was seriously deficient and that he failed to remedy that condition. In sum, it may reasonably be
inferred that Supervisor Hunter had seen the pinch points at issue at a time when only protected
by the badly deteriorated guard, yet failed to provide fully adequate guarding. Under the
circumstances I conclude that an agent of the operator knew of a violative condition well before
27 FMSHRC 985

the day it was cited and yet failed to take corrective measures. This evidence constitutes the level
of gross negligence necessary to support unwarrantable findings.
I also note that this operator had twice before, in August 2004 and January 2005, been
cited for inadequate guarding on the same conveyor as cited herein. Prior similar violations place
mine operators on heightened alert for similar violative conditions and notice that greater efforts
are required to assure compliance. See Peabody Coal Company, 14 FMSHRC 1258 at 1263-4
(August 1992) and Deshetty employed by Island Creek Coal Company, 16 FMSHRC 1040, 1051
(~ay 1994). The evidence herein of two recent similar violations thus provides an independent
basis for finding "unwarrantable failure".
Under the circumstances, I find that the violation is proven as charged, that it was
"significant and substantial" and that it was the result of the operator's "unwarrantable failure."

ORDER
Citation No. 6088368 is hereby affirmed as a citation issued pursuant to Section 104 (d)(l) of the
Act. Contest Proceeding Docket No. SE 2005-325-RM is therefore dismissed.

202-434-9977

Distribution: (Certified Mail)
Bruce Henderson, Esq., Phelps, Jenkins, Gibson & Fowler, L.L.P., P.O. Box 02848, Tuscaloosa,
Alabama 35402-0848
Amy R. Walker, Esq., Office of the Solicitor, U.S . Dept. of Labor, 61 Forsyth Street, S.W.,
Room 7TIO, Atlanta, GA 30303
/lh

27 FMSHRC 986

Federal Mine Safety & Health Review Commission
Calendar Year 2005 Index
This index of decisions and orders issued during the calendar year 2005 is divided into
two parts: decisions and orders issued by the Commission, followed by those issued by
the Administrative Law Judges (AU's). The listings include title, docket number, date
of issuance, and page number in the Federal Mine Safety & Health Review
Commission's Bluebook (FMSHRC), volume 27. Where the Secretary of Labor, Mine
Safety and Health Administration is a party, listings are under the name of the opposing
party.

Commission Decisions and Orders
Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 27

American Oil on Site;
Jeremiah, Inc.

WEST 2005-190-M

03-18-2005

Pg.253

Barrick Goldstrike
Mines

WEST 2005-299-M

05-04-2005

Pg.428

Baylor Mining, Inc.

WEVA 2004-36

03-02-2005

Pg. 183

Borton, LC

SE 2005-222-M

08-09-2005

Pg.528

Brooks Run Mining Co.

WEVA 2005-195

08-11-2005

Pg.548

Calmat Co. of Arizona

WEST 2004-86-M

09-27-2005

Pg.617

Capitol Aggregates, Ltd.

CENT 2005-262-M

12-14-2005

Pg.915

Chestnut Coal Co.

PENN 2005-245
PENN2006-1

11-30-2005
12-08-2005

Pg.748
Pg.885

Colorado Lava, Inc.

EAJ 2001-2

03-04-2005

Pg. 186

Consol Pennsylvania
Coal Co.

PENN 2005-228

08-24-2005

Pg.552

1

Commission Decisions and Orders
Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 27

DiCaperl Minerals Corp.

WEST 2005-30-M
WEST 2005-216-M

03-01-2005
04-20-2005

Pg. 167
Pg.359

Dingess, employed by
Elk Run Coal Co.

WEVA 2004-161

03-10-2005

Pg.219

Eastern Associated Coal
Corp.

WEVA 2005-41
WEVA 2005-66
WEVA 2002-46

03-07-2005
03-14-2005
03-16-2005

Pg.205
Pg.230
Pg.238

Eighty-Four Mining Co.

PENN 2005-241

11-30-2005

Pg.745

Elk Run Coal Co.

WEVA 2003-149

12-12-2005

Pg.899

Fann, employed by
OMAXCo.

WEST 2005-61-M

03-01-2005

Pg. 163

Georges Colliers, Inc.

EAJ2002-2

04-26-2005

Pg.362

Gibson County Coal,
LLC

LAKE2006-4

12-08-2005 · Pg. 882

Granite Rock Co.

WEST 2006-2-M

12-14-2005

Pg.921

Gray (Sec'y of Labor on
behalf ot) v. North Star
Mining, Inc.

KENT 2001-23-D

01-12-2005

Pg.1

Hanson Aggregates
Southeast, Inc.

SE 2005-58-M

03-10-2005

Pg.216

Holcim (U.S.), Inc.

WEST 2005-376-M

08-09-2005

Pg.534

Holliston Sand Co.

YORK 2005-138-M

11-30-2005

Pg.752

Hubble Mining Co.

VA 2005-17

08-11-2005

Pg.545

Independence Coal Co.
(doing business as
Progress Coal Co.)

WEVA 2005-47
WEVA 2005-96

03-07-2005
05-04-2005

Pg.212
Pg.431

2

Commission Decisions and Orders
Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 27

James Carney
Construction

WEST 2005-51-M

04-18-2005

Pg. 353

Jim Walter Resources,
Inc.

SE2005-182

04-20-2005

Pg.356

Jones Quarry, Inc.

WEST 2006-129-M

12-16-2005

Pg.931

Kirby Stone Co.

CENT 2005-60-M

03-07-2005

Pg.209

Lien Transportation Co.

CENT 2005-254-M

12-14-2005

Pg.912

Maple Creek Mining,
Inc.

PENN 2002-116

08-26-2005

Pg.555

Marfork Coal Co.

WEVA 2004-208

01-24-2005

Pg. 18

Martin Marietta
Aggregates

CENT 2005-73-M

03-10-2005

Pg.223

Meridan Aggregates Co.

CENT 2005-184-M

08-09-2005

Pg. 521

Michael Johnson
Construction

CENT 2005-18-M

03-01-2005

Pg. 176

Morales (Sec'y of Labor
on behalf of) v. Arenero
Rafael Colon, Inc.

SE 2005-71-DM

03-11-2005

Pg. 226

Mountain Edge Mining,
Inc.

WEVA 2005-157

08-09-2005

Pg.537

National King Coal, Co.

WEST2005-9

03-01-2005

Pg. 170

National Cement Co. of
California

WEST 2004-182-RM
WEST 2004-182-RM

03-01-2005
11-17-2005

Pg. 179
Pg. 721

Neil, employed by Elk
Run Coal Co.

WEVA 2005-173

12-08-2005

Pg.895

3

Commission Decisions and Orders
Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 27

Northern Gravel Co.

CENT 2005-223-M

08-11-2005

Pg. 541

O/N Minerals (St. Clair)
Co.

CENT 2005-185-M

08-09-2005

Pg. 524

Oak Grove Resources,
LLC

SE2005-27
SE2006-24

05-18-2005
12-16-2005

Pg.458
Pg.928

Pollock v. Kennecott
Utah Copper Corp.

WEST 2003-182-DM

10-25-2005

Pg.651

Prairie Material Sales,
Inc.

LAKE 2004-94-M

05-18-2005

Pg.454

Premier Elkhorn Coal
Co.

KENT 2006-18

12-08-2005

Pg. 879

Premier Chemical, LLC

WEST 2005-188-M

03-18-2005

Pg.256

R&DCoalCo.

PENN 2006-36

12-16-2005

Pg.925

Radford, employed by
DiCaperl Minerals

WEST 2005-111-M

03-07-2005

Pg. 201

Riverside Cement Co.

WEST 2006-10-M

12-08-2005

Pg. 888

Riverton Investment
Corp.

WEVA 2006-27-M

12-14-2005

Pg.918

Rizzuto, employed by
Tilcon New York, Inc.

YORK 2005-124-M

07-21-2005

Pg.515

Rogers Group, Inc.

CENT 2005-25-M

03-01-2005

Pg. 173

Sequatchie Concrete
Service

SE 2005-247-M

08-09-2005

Pg. 531

Service Transport, LLC

LAKE 2005-121-M

09-20-2005

Pg.614

Sidney Coal Co.

KENT 2005-177

05-04-2005

Pg.425

4

Commission Decisions and Orders
Case Nrune

Docket Number

Date

Page Number
FMSHRC Vol. 27

Spartan Mining Co.

WEVA 2002-111-R

11-16-2005

Pg. 718

Speed Mining, Inc.

WEVA 2004-187-R

03-22-2005

Pg.286

Stech, employed by
Eighty-Four Mining Co.

PENN 2005-232

12-08-2005

Pg.891

Suburban Sand &
Gravel

WEST 2005-245-M

05-18-2005

Pg.462

Thompson, employed by
Foster Dixiana Corp.

SE 2005-183-M

03-16-2005

Pg.234

Twentymile Coal Co.

WEST 2002-194
WEST 2000-480-R

03-18-2005
11-10-2005

Pg.260
Pg.715

U.S. Steel Mining Co.

SE 2002-126

05-16-2005

Pg.435

Vance, employed by
DiCaperl Minerals

WEST 2005-104-M

03-07-2005

Pg. 197

Wake Stone Corp.

SE 2004-185-M
SE 2004-185-M

03-23-2005
07-13-2005

Pg.289
Pg.513

Webster County Coal,
LLC

KENT 2004-67

09-20-2005

Pg. 611

5

Federal Mine Safety & Health Reyiew Commission
2005 Index
ALJ Decisions and Orders
Case Naine

Docket Number

Date

Page Number
FMSHRC Vol. 27

Asphalt Paving Co.

WEST 2004-220-M

02-07-2005

Pg. 123

Baylor Mining, Inc.

WEV A 2004-36

01-10-2005

Pg. 82

Black Wolf Coal Co.

PENN 2004-157

06-16-2005

Pg. 511

C. W. Mining Co.

WEST 2004-284

02-24-2005

Pg. 138

Carder, Inc.

WEST 2004-269-M

11-28-2005

Pg. 839

CKC Materials, Inc.

WEST 2003-268-M

04-07-2005

Pg. 392

Coleman, employed by
Lodestar Energy, Inc.

EAJ2004-02

01-14-2005

Pg. 104

Crimson Stone

SE 2005-325-M

12-30-2005

Pg. 980

Crosby v. Kennecott
Utah Copper Corp.

WEST 2004-105-DM

05-04-2005

Pg.465

Cumberland Coal
Resources, LP

PENN 2004-73-R

03-28-2005

Pg.295

Currituck Sand, Inc.

SE 2004-154-M

07-14-2005

Pg.520

D & D Anthracite

PENN 2001-221-R

10-12-2005

Pg.666

Drummond Co.

SE 2004-106

01-12-2005

Pg.23

Eight.Four Mining Co.

PENN 2004-184

01-26-2005

Pg.60

Genwal Resources, Inc.

WEST 2004-453

08-11-2005

Pg. 580

Gibson v. Triple C
Trucking, Inc.

LAKE 2005-84-D

10-31-2005

Pg. 709

6

ALI Decisions and Orders
Case Natne

Docket Number

Date

Page Number
FMSHRC Vol. 27

Gray (Sec'y of Labor on
behalf of) v. North Star
Mining, Inc.

KENT 2001-23-D

04-22-2005

Pg. 398

Hanson Aggregates New
York, Inc.

YORK 2005-22-M

11-21-2005

Pg.833

Harvey W. Boche Road
Building, Inc.

WEST 2004-397-M

04-15-2005

Pg.395

Heetland (Sec'y of Labor
on behalf of) v. Smasal
Aggregates & Asphalt,
LLC

CENT 2006-43-DM

11-29-2005

Pg.874

Herren

WEST 2004-311-M

08-17-2005

Pg.597

Higman Sand & Gravel

CENT 2005-54-M

09-30-2005

Pg.641

Holden v. Ross Island
Sand & Gravel

WEST 2004-264-DM

04-28-2005

Pg.400

Hubble Mining Co.

VA 2005-17

09-28-2005

Pg.639

James Camey
Construction

WEST 2005-51-M

08-15-2005

Pg.595

Jim Walter Resources,
Inc.

SE 2003-160
SE 2005-28-R

11-01-2005
12-20-2005

Pg.757
Pg.968

Leeco, Inc.

KENT 2004-65

01-21-2005

Pg.39

Lone Mountain
Processing

KENT 2004-164

04-29-2005

Pg.414

Lowe v. Aggregate
Industries

WEST 2001-246-DM

09-08-2005

Pg.629

7

ALJ Decisions and Orders
Case Name

Docket Number

Date

Page Number
FMSHRC Vol. 27

McClain (Sec'y of Labor
on behalf of) v. Misty
Mountain Mining

KENT 2005-96-D

10-21-2005

Pg.690

Morales (Sec'y of Labor
on behalf of) v. Arenero
Rafael Colon, Inc.

SE 2005-71-DM

02-11-2005
02-24-2005

Pg. 160
Pg. 129

National Cement Co. of
California

WEST 2004-182-RM

01-12-2005
02-07-2005
06-01-2005

Pg.84
Pg. 157
Pg.506

Ondreako v. Kennecott
Utah Copper Corp.

WEST 2004-141-DM

03-28-2005

Pg.334

Original Sixteen to One
Mine, Inc.

WEST 2004-330-M

08-19-2005

Pg.600

05-17-2005

Pg.481

Perry County Coal Corp. KENT 2004-190
Placerville Industries,
Inc.

WEST 2004-256-M

02-04-2005

Pg. 115

R&DCoalCo.

PENN 2005-213-R

09-16-2005

Pg.653

Randolf (Sec'y of Labor
on behalf of) v. Christy
Minerals Co.

CENT 2005-68-DM

01-11-2005

Pg.21

Southwest Concrete &
Paving

CENT 2004-49-M

03-11-2005

Pg.293

Spartan Mining Co.

WEVA 2002-111-R

12-21-2005

Pg.979

Speed Mining, Inc

WEVA 2005-20-R

12-02-2005

Pg.935

T. F. Luke & Sons, Inc.

CENT 2005-71-M

12-09-2005

Pg.950

Tamko Roofing
Products, Inc.

YORK 2004-72-RM

05-31-2005

Pg.486

YORK 2005-87-RM

11-04-2005

Pg.829

8

ALJ Decisions and Orders
Ca~eName

Docket Number

Date

Page Number
FMSHRC Vol. 27

Tolley v. Moab Salt,
LLC

WEST 2004-165-DM

01-27-2005

Pg.62

U.S. Steel Mining Co.

SE2002-126

07-08-2005

Pg.518

Vulcan Construction
Materials

LAKE 2005-1-M

10-06-2005

Pg.661

Wabash Mine Holding
Co.

LAKE 2004-147

03-04-2005

Pg.351

10-18-2005

Pg.672

Wake Stone Corp.

SE 2004-185-M

05-11-2005

Pg.479

Weirich Brothers, Inc.

CENT 2004-211-M

04-07-2005

Pg.379

9
G:l> U.S. GOVERNMENT PRINTING OFFICE; 2006-JW-961/25307