April 2022
TABLE OF CONTENTS

COMMISSION DECISIONS
04-05-22

KC TRANSPORT, INC.

WEVA 2019-0458

Page 211

COMMISSION ORDERS
04-07-22

KNIGHT HAWK COAL, LLC

LAKE 2021-0160

Page 239

04-19-22

LEHIGH CEMENT COMPANY LLC

LAKE 2020-0053-M

Page 243

04-19-22

LROCK INDUSTRIES

WEST 2018-0449

Page 246

04-19-22

LAS VEGAS PAVING CORP.

WEST 2020-0167

Page 249

04-19-22

LO DOWN ENERGY, INC.

WEVA 2020-0261

Page 252

04-25-22

KERFORD LIMESTONE COMPANY

CENT 2022-0002

Page 255

04-25-22

MACH MINING LLC

LAKE 2021-0195

Page 258

04-25-22

THERMOCAL MINERALS OF
IDAHO LLC

WEST 2021-0250

Page 261

04-25-22

JMAC RESOURCES

WEST 2021-0266

Page 264

ADMINISTRATIVE LAW JUDGE DECISIONS
04-14-22

BC QUARRIES, LLC

PENN 2020-0110-RM

i

Page 267

04-19-22

CACTUS CANYON QUARRIES INC. CENT 2021-0090

Page 289

04-29-22

CONSOL PENNSYLVANIA COAL
COMPANY LLC

Page 300

PENN 2021-0019

ADMINISTRATIVE LAW JUDGE ORDERS
04-27-22

CACTUS CANYON QUARRIES INC.

ii

CENT 2022-0010-M

Page 353

Review Was Granted In The Following Case During The Month Of April 2022
Secretary of Labor on behalf of Tara Otten v. Continental Cement Company, LLC.
Docket No. CENT 2021-0013-D (Judge Moran, February 28, 2022)

iii

COMMISSION DECISIONS

44 FMSHRC Page 210

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710

April 5, 2022
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. WEVA 2019-0458

v.
KC TRANSPORT, INC.
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
DECISION
BY: Althen and Rajkovich, Commissioners
This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Act” or “Mine Act”). It involves two citations issued to the trucking
company, KC Transport, Inc., regarding haul trucks parked for maintenance at the company’s
facility in Emmett, West Virginia.1 The only issue before the Commission is whether the Mine
Safety and Health Administration (“MSHA”) had jurisdiction to issue the citations.
The parties filed cross-motions for summary decision on the jurisdictional issue. The
Secretary asserted stand-alone jurisdiction over the trucks. The Judge rejected that argument;
however, the Judge found MSHA had jurisdiction over the facility and, therefore, over the trucks
while they were at the facility. 42 FMSHRC 221 (Mar. 2020) (ALJ). KC Transport appeals.
For the reasons below, we reverse the Judge’s decision, grant KC Transport’s motion for
summary decision, and vacate the two citations. In doing so, we affirm the finding that MSHA
did not have jurisdiction over the cited trucks and reverse the Judge’s finding of jurisdiction over
the KC Transport facility.

1

A settlement regarding 18 of the 20 citations in this docket was approved by the Judge
below on December 19, 2019. The two remaining citations, Nos. 9222038 and 9222040, both
allege violations of 30 C.F.R. § 77.404(c) (“Repairs or maintenance shall not be performed on
machinery until the power is off and the machinery is blocked against motion.”). If MSHA is
found to have jurisdiction, the parties stipulated the facts of the violations and reached an
agreement concerning gravity, negligence, and appropriate penalty amounts. Jt. Stips. 39-42.

44 FMSHRC Page 211

I.
Factual and Procedural Background
A. Summary of Uncontested Facts
KC Transport is an independent trucking company that provides coal, earth, and gravel
hauling services to various businesses, including (but not limited to) coal operators such as
Ramaco Resources (“Ramaco”). Jt. Stips. 7, 8. KC Transport operates maintenance and storage
facilities at five locations, including at Emmett, West Virginia (the “Emmett facility”).2 The
Emmett facility is located on Right Hand Fork Road, approximately 1,000 feet from a haulage
road that serves Ramaco’s Elk Creek Prep Plant and other Ramaco mines. The haulage road is
partly public; there is a gate limiting access near the Elk Creek Plant, beyond which Ramaco
maintains the road. To reach the Emmett facility, one must pass through the gate, travel up the
haulage road, then turn onto the public Right Hand Fork Road. The facility is over a mile from
the prep plant, with three mines approximately four to five miles distant and additional mines
about six miles remote. Jt. Stips. 9-12, 24-26.
KC Transport operates approximately 35 trucks from the Emmett facility. These trucks
include off-road trucks that provide haulage for nearby mines and on-road trucks that provide
haulage services completely unrelated to mining. Approximately 60% of services from the
facility are for Ramaco. The facility is not on mine property, and Ramaco does not employ
personnel or maintain equipment at KC Transport’s facility. KC Transport shares the facility’s
parking area with a logging company. Jt. Stips. 13-15, 17, 20, 30. When the relevant citations
were issued, KC Transport had not yet built a maintenance shop at the facility, so KC Transport
used shipping containers and service trucks for maintenance needs. Jt. Stip. 6. The area was,
essentially, a parking lot with an open storage area.
The relevant events occurred on March 11, 2019. An MSHA Inspector was searching for
trucks that he had cited while they were at Ramaco’s Elk Creek Prep Plant during a recent
inspection. He intended to terminate those citations. When he arrived at the KC Transport
facility’s parking area, he discovered ongoing maintenance work on two trucks and issued the
two new subject citations. Jt. Stips. 2-5. The citations allege that the trucks were not blocked
against motion while raised for repair in violation of 30 C.F.R. § 77.404(c).3 The trucks were
parked for maintenance at the KC Transport parking lot when cited. Jt. Stips. 18, 19.
The cited trucks are regularly inspected by MSHA when on-site at a Ramaco property or
along Ramaco’s haulage road, but MSHA had never inspected the Emmett facility. Jt. Stip. 29.
2

The parties’ stipulations did not provide any facts regarding the other locations.

3

Section 77.404(c) provides, “[r]epairs or maintenance shall not be performed on
machinery until the power is off and the machinery is blocked against motion, except where
machinery motion is necessary to make adjustments.”

44 FMSHRC Page 212

MSHA never sought to inspect the facility before March 11, 2019, and the inspector did not
attempt to inspect any other vehicles at or other parts of the facility that day.4
B. Procedural Background
The parties filed cross-motions for summary decision before the Judge on the issue of
jurisdiction. Both parties relied upon the definition of “coal or other mine” in Section 3(h)(1) of
the Mine Act, 30 U.S.C. § 802(h)(1).5 The Secretary argued that each truck independently
constituted a “mine” under subsection 3(h)(1)(C) and was, therefore, subject to MSHA
jurisdiction irrespective of its location. KC Transport countered that the Mine Act only provides
jurisdiction over equipment in or appurtenant to a mine as defined in section 3(h)(1)(A) or (B).
Therefore, KC Transport claimed the facility was not a mine, and MSHA did not have
jurisdiction over the trucks while at the facility.
As a preliminary matter, the Judge noted that the parties disagreed as to the jurisdictional
question at issue: the Secretary argued that each truck independently constituted a mine, while
the operator argued that the facility was not a mine and, therefore, MSHA could not issue
citations for the trucks parked at it. 42 FMSHRC at 229-30. The Judge rejected both arguments,
finding that the Secretary’s approach would create “rolling mines” and lead to “absurd results,”
but that the facility fell “within the definition” of a mine. Id. at 231, 237. The Judge ultimately
found MSHA jurisdiction over the facility and both trucks, concluding that the trucks were at the
KC Transport maintenance facility, which he found to be a “mine.” By implication, therefore, he
found the trucks were “mines” within subsection 3(h)(1)(C) only when located on a mine or
4

The parties stipulated that eleven months earlier, on April 3, 2018, MSHA issued two
citations to KC Transport at a muddy parking area that KC Transport then had adjacent to where
the haulage road intersects Right Hand Fork Road. MSHA later vacated those citations.
Sometime between April 2018 and March 2019, KC Transport constructed its new facility
1,000 feet away from the Right Hand Fork Road's haulage road. Jt. Stips. 21-23. MSHA knew
of the new location as demonstrated by the inspector going to the facility. However, MSHA did
not attempt to inspect the facility or trucks located at it until April 2019. Having traveled to the
facility for a different purpose than inspecting, the inspector issued the citations in dispute.
5

Section 3(h)(1) of the Act defines a “mine” as:
(A) an area of land from which minerals are extracted . . . (B)
private ways and roads appurtenant to such area, and (C) lands,
excavations, underground passageways, shafts, slopes, tunnels and
workings, structures, facilities, equipment, machines, tools, or
other property . . . used in, or to be used in, or resulting from, the
work of extracting such minerals . . . or used in, or to be used in,
the milling of such minerals, or the work of preparing coal or other
minerals, and includes custom coal preparation facilities.

30 U.S.C. § 802(h)(1).

44 FMSHRC Page 213

haulage road. He held that maintaining trucks to haul coal was integral to the mining process.
Therefore, both the facility and the trucks at the facility were “used in” mining under section
3(h)(1)(C) of the Mine Act. Id. at 230-32, 237-38.
On appeal, the parties reiterate their arguments. KC Transport claims the Judge erred in
finding jurisdiction over the trucks at the facility because only equipment and facilities that are in
or appurtenant to working mines (as defined in section 3(h)(1)(A)) are subject to MSHA
jurisdiction, and the facility does not engage in coal extraction or preparation within the scope of
Subsection (A). The Secretary counters that the Commission must evaluate subsection (C)
independently and that the plain language of the definition covers the trucks and facility because
they are “used in” mining.6
II.
Disposition
This case comes before us in an unusual posture. Before the Judge’s decision, MSHA did
not assert or attempt to exercise jurisdiction over the KC Transport facility. Nor did it do so after
citing the trucks while they were at the facility. On cross-motions for summary judgment on the
truck citations, the Judge awarded MSHA unasked-for jurisdiction over the facility. Before us,
the Secretary vigorously seeks to retain MSHA’s unrequested prize.
Vital to this analysis is that KC Transport is an independent contractor and that no mining
activities or structures within the scope of subsection (A) occur at its facility. Further, MSHA
does not assert the KC Transport facility is on a road or private way appurtenant to Ramaco’s
operation. The Secretary asserts MSHA jurisdiction over trucks and a facility owned by this
independent contractor situated on land where no mining is occurring. The Secretary’s effort
must fail.
A. The Secretary’s Arguments
The Secretary principally argues that the definition of a “mine” is plain and that we must
apply a Chevron analysis.7 Under step one of the analysis (Chevron I), if Congress has spoken in
subsection 3(h) to the precise issue in dispute, the matter is ended, and we must accept Congress’
directive. According to the Secretary, subsection 3(h)(1)(C) plainly applies to all tools,
equipment, machines, etc. actually used in or to be used in mining regardless of whether they are
6

KC Transport contends that the Judge erred in even addressing MSHA’s jurisdiction
over the facility. Noting that the Secretary had not sought such jurisdiction, the company claims
the Judge should not have reached an issue for which there was no live case or controversy. As
we are reversing the Judge’s finding of jurisdiction over the facility, we need not address this
argument in depth. However, we note that it was necessary to discuss the facility’s jurisdictional
status under KC Transport’s rationale. The company asserted that the trucks were not subject to
MSHA jurisdiction because the facility was not a mine. Mot. for Sum. Dec. at 1, 6.
7

Chevron USA Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).

44 FMSHRC Page 214

on a mine site, a site appurtenant to the mine site, or elsewhere. The Secretary would permit no
further inquiry. Secondarily, by footnote, the Secretary argues that if we do not apply Chevron I,
we must conduct an analysis under step two of Chevron (Chevron II) and defer to the Secretary’s
construction. S. Resp. Br. at 8 n.3.
1. Plain Meaning
We find no support for the Secretary’s proposition that the definition of a “mine” in the
Mine Act plainly applies to offsite, non-mining storage and repair facilities or all tools,
equipment, and machines located off a mine site that have a use in mining. The Secretary would
find tools and equipment to be mines regardless of their location. Thus, as the Judge pointed out,
a truck sitting in a diner parking lot would be a “mine.” 42 FMSHRC at 231. If a miner used his
own hammer at work, it would be a “mine” even when located in his home workshop. The Judge
was correct that such a construction of the term “mine” would be absurd. If jurisdiction follows
equipment as it travels away from the mine, there is no point at which jurisdiction ceases.
The Secretary invokes this “plain meaning” basis for jurisdiction over the trucks because
they were “used in” mining previously and most likely would be used in the future. S. Resp. at 711; 42 FMSHRC at 230-32, 237-38. The Secretary argues for jurisdiction over the independent
KC Transport facility because it provides offsite parking and repair for trucks used in mining. S.
Resp. at 12-15. It is a fixed location away from any mine site, and no mining occurs at the site.
The difficulty with the Secretary’s argument is that it seizes on the words “used in” within the
lengthy definition rather than undertaking any analysis of the definition as a whole or its role in
securing miners’ safety. Such focus results in an absurd interpretation that certainly is not
“plain.”
In rejecting the Secretary’s assertion under almost similar facts, the U.S. Court of
Appeals for the Sixth Circuit recently made the specific finding that MSHA’s theory would
create “no stopping point.” Maxxim Rebuild Co. LLC v. Federal Mine Safety and Health Review
Commission, 848 F.3d 737, 743 (6th Cir. 2017). In fact, Maxxim did not involve merely trucks or
other tools; it involved a facility far more closely related to mining than the KC Transport
facility. The circuit court did not accept the Secretary’s limitless definition of a mine.
In reaching this conclusion, the circuit court essentially followed the same logic as the
Judge applied to the trucks (standing alone) in this case. The Secretary’s grossly overbroad
interpretation creates an absurdity, and avoidance of absurd results in reviewing statutes is a
“golden rule of statutory interpretation.” 2A Sutherland Construction § 45.12 (7th ed.). The
Commission recognizes this principle. Sims Crane, 40 FMSHRC 301, 303 (Apr. 2018)
(“[S]tatutes and regulations should not be construed to produce an absurd result.”)
Beyond the absurdity of such unlimited inspection reach, we cannot square the proposed
interpretation that every tool, machine, etc., is a separate and distinct “mine” regardless of
location or current usage with a resultant imposition of the Mine Act’s mandatory inspection
requirements. Section 103(a) of the Act requires the Secretary to “make inspections of each

44 FMSHRC Page 215

underground coal or other mine in its entirety at least four times a year.”8 30 U.S.C. § 813(a).
The duty to make such inspections is not optional; the Mine Act mandates such inspections. Yet,
we have not been made aware of any MSHA policy, program, or procedures for inspecting
warehouses, repair shops, storage areas, and other facilities that are not on or at a mine site.
Separate from the absurdity of MSHA’s construction, there is no merit to the Secretary’s
proposition that the lengthy, multi-tiered definition of a mine “plainly” applies to the offsite
parking and repair facility of an independent entity and trucks neither on a mine site nor engaged
in mining activity. It is not “plain” that Congress meant the phrase “used in” to be taken in such a
literal sense that tools on shelves of independent supply stores would be deemed to be “mines.”9
Certainly, a tool present in a mine remains within MSHA’s jurisdiction even though it is
not actively being used at a particular moment. It is there and readily available for use in mining.
However, when it is not at the mine, it cannot be engaged in mining and it is not a “mine.”
Further, as discussed below, the definition of a “mine” focuses on land areas where
mining is occurring, on private ways appurtenant to such lands, and on equipment used to extract
and prepare mined material. It is certainly not “plain” that Mine Act jurisdiction applies to tools,
equipment, machines, etc., not on a mine site that at one time were used on the mine site, or that
could be brought to the mine site again.
Turning again to the Sixth Circuit’s Maxxim decision, the circuit court addresses this
precise point in construing the definition of “mine” in the Mine Act. The circuit court states:
But context and perspective are everything. In pulling back the lens,
we see several indications that the power of the Mine Safety and
Health Administration extends only to such facilities and
equipment if they are in or adjacent to—in essence part of—a
working mine.
Maxxim, 848 F.3d at 740. Thus, the Secretary’s interpretation of subsection 3(h) would make the
definition absurd. Further, the complexity of the definition and the many factors we take into
account below demonstrate that the definition of a “mine” is not “plain.” The Secretary’s
interpretation does not warrant Chevron I regard.

8

We explain below that section 103(a) requires “frequent inspections and investigations
in coal or other mines each year.” The use of the word “in” further emphasizes the locational
aspect to mines for jurisdictional purposes.
9

As Judge Learned Hand wisely opined, “there is no surer way to misread any document
that to read it literally.” Guiseppi v. Walling, 144 F.2d 608, 623, 624 (2d Cir. 1944) (J. Hand,
concurring).

44 FMSHRC Page 216

2. Chevron II/Skidmore deference
Because MSHA’s definition of a “mine” is absurd, we do not owe it deference. We could
proceed immediately to our interpretation. Nonetheless, we examine deference under Chevron
II10 and Skidmore11 standards.
Under Chevron II, the Commission reviews whether the Secretary’s interpretation of the
Act is reasonable. If so, the Commission must accept it, even if it differs from how the
Commission would have interpreted the statute in the absence of the Secretary’s interpretation.
Marfork Coal Company, Inc., 29 FMSHRC 626, 630 (Aug. 2007). Separately, if the Commission
decides an MSHA interpretation does not warrant Chevron II deference, the Commission may
afford the interpretation a lesser degree of deference under the Skidmore standard. The American
Coal Company, 38 FMSHRC 1972, 1979 n.9 (Aug. 2016). That standard is whether the
Secretary’s interpretation is persuasive.
In this case, the Secretary’s position is a litigation position, rather than a formal position
taken after a demonstrated internal review or policy consideration, let alone public notice and
comment. Indeed, regarding jurisdiction over the KC Transport facility, it is a position taken on
appeal and not expressed before the Judge. Only after the Judge decreed unrequested jurisdiction
did the Secretary assert jurisdiction over the facility at the second stage of litigation.
Thus, the Secretary did not develop this position by an objective standard found in
MSHA’s rules or policy statements. Instead, this is a matter of retaining an unasked-for litigation
award. As a late-blooming litigation tactic, the interpretation would receive only weak Skidmore
deference—namely, deference only to the extent it has the power to persuade. Knox Creek Coal
Corp. v. Secretary of Labor, 811 F.3d 148, 159-60 (4th Cir. 2016).12

10

Chevron, 467 U.S. at 842-43.

11

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

12

We recognize, of course, that in other cases the Secretary has also asserted jurisdiction
over off-site facilities. We find no record of a thoughtful policy-driven basis for such claims.
Indeed, in the Maxxim case, the respondent, Maxxim, was a wholly-owned subsidiary of a
mining company. Maxxim operated seven shops. Five were inspected by the Occupational Safety
and Health Administration and two, including the subject shop, were inspected by MSHA. The
Secretary did not explain any logic or legal reason for such differences. Further, as here, the
Secretary did not provide evidence that MSHA had developed any consistent policy for the
exercise of jurisdiction over off-site facilities. In this case, MSHA certainly knew of the
existence and location of the facility but did not seek to exercise any jurisdiction or perform any
statutorily required inspections until after an inspector went to the site and impulsively issued
citations for two trucks. Even then, MSHA did not assert jurisdiction over the facility. The
actions of MSHA regarding such facilities and off-site equipment demonstrate only a pattern of
random, sporadic action rather than implementation of a thoughtful policy.

44 FMSHRC Page 217

In any event, given the guides identified and discussed below, the Secretary’s proffered
interpretation is neither reasonable nor persuasive. We turn to the proper construction of section
3(h). In doing so, we employ the “traditional tools of statutory construction,” including an
examination of the statute’s text, legislative history, and structure, as well as its purpose. See
Chevron, 467 U.S. at 842-43.
B. MSHA does not have Jurisdiction Over KC Transport’s Parking and Repair
Facility or Trucks Parked at the Facility.
The purpose of the Mine Act is to protect individuals performing work “in the Nation’s
coal or other mines.” See generally 30 U.S.C. § 801 (emphasis added). The repeated references
to conditions “in” coal or other mines demonstrate that Congress was concerned with the health
and safety of miners as they engage in mining tasks. Necessarily, therefore, the Mine Act
addresses the full range of activities and instrumentalities used in those mines. That focus differs
substantially from defining a mine to include all tools and equipment, regardless of use and
wherever they are located.
KC Transport operates a trucking and repair facility that is neither in a mine nor
appurtenant to a mine. KC Transport is an independent entity unrelated to any mining enterprise
and supplies trucking services to mining and non-mining customers. Jt. Stip. 39. Applying the
proper construction tools, we find no support for finding that KC Transport’s facility or trucks
are “mines.” No support exists in the language of the Mine Act’s predecessor statute (the Coal
Act), the legislative history of the Mine Act, the text of the Mine Act, important precedential
decisions of the United States Circuit Courts of Appeal for the Sixth and Seventh Circuits, or
common sense.
1. The Federal Coal Mine Health and Safety Act of 1969 (“Coal Act”)
The Coal Act defined a “mine” by reference to activities conducted upon, under, or above
a land area that constituted a mining operation. The statute defined a 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 . . . and the work
of preparing the coal so extracted.
30 U.S.C. § 802(h) (1976) (emphasis added).
This definition contains the conjunctive “and” linking two distinct aspects of a coal mine.
The first aspect covered “land” as it related to the extraction of coal. This aspect covered “lands”
where extractive mining, milling, or preparation occurs. The conjunctive “and” then brought
under the Coal Act real or personal property used in mining on such lands. Most importantly, the
Coal Act applied to property “placed upon, under, or above the surface of such land.” Id.
(emphasis added). Thus, the coverage reached and applied only to personal or real property

44 FMSHRC Page 218

related to extracting coal in that land. This definition plainly does not reach beyond the land and
property used in or resulting from extracting or preparing coal.
2. Legislative History of the Mine Act
In passing the Mine Act some eight years later, Congress did not express any intent to
expand the jurisdiction of MSHA (the newly formed enforcement agency) beyond the scope
exercised by its predecessor the Mine Enforcement Safety Administration (“MESA”)13 under the
Coal Act. Thus, the Mine Act’s legislative history does not demonstrate an intention to expand
the geographical scope of MSHA jurisdiction to lands or areas removed from the mine, such as
independent contractor maintenance facilities, or to facilities where mining equipment is stored,
repaired, or sold.
While Congress modified the Coal Act’s definition of “mine” in the Mine Act, Congress
explicitly stated that it intended to clarify the scope of the definition:
[T]he definition of ‘mine’ is clarified to include the areas, both
underground and on the surface, from which minerals are extracted. .
. . Also included in the definition of ‘mine’ are lands, excavations,
shafts, slopes, and other property, including impoundments, retention
dams, and tailings ponds. These latter were not specifically
enumerated in the definition of mine under the Coal Act. It has
always been the Committee’s express intention that these facilities
be included in the definition of mine and subject to regulation under
the Act, and the Committee here expressly enumerates these
facilities within the definition of mine in order to clarify its intent.
S. Rep. No. 95-181, at 14 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human
Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 602 (1978)
(“Legis. Hist.”) (emphasis added).
The updated definition simply “enumerated” types of facilities that were already
presumed to be subject to MSHA jurisdiction under the Coal Act. The definition did not expand
MSHA’s jurisdiction in any broad sense. Congress’ clarification to include these large structures
of impoundments, retention dams, and tailings ponds on a mining site does not support
expanding jurisdiction to mining equipment wherever it is located.14

13

MESA was an agency within the Department of the Interior. The Mine Act created
MSHA and moved mine safety enforcement to the new agency within the Department of Labor.
14

While the legislative history concludes with the statement that “doubts” regarding
jurisdiction should “be resolved in favor of inclusion of a facility within the coverage of the
Act,” MSHA cannot create jurisdiction by wrongly asserting jurisdiction and then arguing that
there exists a “doubt” about it. In this case, MSHA either did not think it had jurisdiction over the
Emmett facility or at least did not act on such a thought or seek jurisdiction over the facility until
after the Judge’s decision.

44 FMSHRC Page 219

3. The Mine Act Definition of a “Mine” and Related Terms
Section 3(h)(1) of the Mine Act defines a “coal or other mine” in relevant part as:
(A) an area of land from which minerals are extracted in nonliquid
form or, if in liquid form, are extracted with workers underground,
(B) private ways and roads appurtenant to such area, and (C) lands,
excavations, underground passageways, shafts, slopes, tunnels and
workings, structures, facilities, equipment, machines, tools, or
other property including impoundments, retention dams, and
tailings ponds, on the surface or underground, used in, or to be
used in, or resulting from, the work of extracting such minerals
from their natural deposits . . . or used in, or to be used in, the
milling of such minerals, or the work of preparing coal or other
minerals, and includes custom coal preparation facilities.
30 U.S.C. § 802(h)(1).
As seen in the plain language, all three subsections include a locational connection to
working mines. Subsection (A) covers relevant “area[s] of land from which minerals are
extracted,” while (B) includes ways and roads “appurtenant to such area.” Subsection (C) then
catalogs various mining-related places (e.g., lands, underground passageways, retention dams,
tailing ponds) and objects that serve a mining-related purpose in such areas (i.e., structures,
facilities, equipment, machines, and tools used in mining). See Maxxim, 848 F.3d at 740-42.
Each of these definitions relates to work in or at a mine. The definition of “mine” in
subsection (C) specifically refers to things “on the surface or underground.” 30 U.S.C. §
802(h)(1)(C). “[S]urface” and “underground” are terms of art in mining and mining regulation.
They are used to differentiate distinct areas of what is generally understood to be a mine site in
the normal sense. “Surface” and “underground” do not suggest areas off the mine site. The use of
“surface” does not mean the drafters used it to corral in off-site areas.
Other definitions in the Mine Act are similarly locational. An “operator” is defined as
“any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or
any independent contractor performing services or construction at such mine.” 30 U.S.C. §
802(d) (emphasis added). An agent means “any person charged with responsibility for the
operation of all or a part of a coal or other mine or the supervision of the miners in a coal or
other mine.” 30 U.S.C. § 802(e). A miner is an “individual working in a coal or other mine.” 30
U.S.C. § 802(g). Section 103(a) (related to inspections) provides, “[a]uthorized representatives of
the Secretary or the Secretary of Health and Human Services shall make frequent inspections and
investigations in coal or other mines.” 30 U.S.C. § 813(a) (emphasis added). MSHA must
thoroughly inspect operations conducting mining, milling, and preparation activities and all
instruments and instrumentalities used in such operations. It is not required to leave the mine site
and track down tools, equipment, machines, trucks, and other instruments when they are on a site

44 FMSHRC Page 220

unrelated to mining. Certainly, the record in Maxxim, supra, demonstrates that MSHA does not
fulfill its inspection obligations by inspecting only two of seven identical facilities owned and
operated by subsidiaries of the same mining company.
In statutes, words are known by the company they keep. Gustafson v. Alloyd Co., Inc.,
513 U.S. 561, 575 (1995) (“[A] word is known by the company it keeps (the doctrine of noscitur
a sociis)”). Just as in the federal courts, the Commission applies this rule to avoid ascribing to
one word or phrase a meaning so broad that it is inconsistent with its accompanying words, thus
giving “unintended breadth to the Acts of Congress.” Jarecki v. G.D. Searle & Co., 367 U.S.
303, 307 (1961).
In context, the definition of a “mine” states—consistent with the surrounding language,
intent of the drafters, and purpose of the Mine Act—that MSHA jurisdiction extends to lands
used in mining and appurtenant roads, and equipment and structures thereupon. The statute’s
goal is to protect miners from hazards found in mines or on appurtenant private ways. The Mine
Act does not follow equipment after its removal to facilities where mining does not occur, nor
does it apply to equipment before it has entered or after it has left a mine site because operators
could use the equipment for mining in the future.
Subsection (B)’s coverage of appurtenant ways is clearly connected to lands covered by
Subsection (A). The small extension of jurisdiction specifically to cover “appurtenant” roads is
consistent with the larger protective purpose of the Act. Those areas may expose individuals to
mining-related hazards. For the reasons above, it is clear that neither the purpose nor the
language of the Act indicate a further geographical extension of jurisdiction under subsection
(C). Coverage over appurtenant ways and roads under subsection (B) does not somehow imply
coverage over lands distant from a mine site, owned by an independent company, and used for
parking and repairing its vehicles.15
4. As an “Independent Contractor,” KC Transport is an “Operator” Only
When “Performing Services at a Mine.”
“Operators” fall into two categories, as noted above. An entity that does not own, lease,
operate, control, or supervise a coal or other mine is an “operator” only when that entity, acting
as an independent contractor, physically performs services at a mine. 30 U.S.C. § 802(d).

15

The Secretary cites State of AK Dep't of Transp., 36 FMSHRC 2642, 2647-48 (Oct.
2014). There, the Commission considered an argument that equipment used along a public road
to extract sand and gravel could not be a “mine” because it was not a “private way or road
appurtenant” to an area of extraction. The Commission quickly dismissed that argument, finding
the activity on that road constituted both extraction (mining) and milling. Therefore, the activity
fell squarely under subsection (A) as land upon which mining and milling occurred. In turn, the
activities fell under subsection (C) because the equipment’s use was on land where mining was
occurring. The case provides no support for the proposition that MSHA has jurisdiction over
lands that are not appurtenant to a mine site and where no mining activities occur.

44 FMSHRC Page 221

When KC Transport’s trucks are at its parking area off the mine site, the trucks are not
performing services at a mine, and KC Transport is not an “operator” for the Act’s purposes.
There is no reason to believe Congress envisioned MSHA following independent contractors
back to their home locations, or anywhere else, away from the actual mine after their services.
Congress expressly addressed independent contractors to ensure that all employees
working in a mine “are miners within the definition of the [Act].” S. Rep. No. 95-181 at 14;
Legis. Hist. at 602. In other words, persons exposed to the same hazards as miners deserve the
same protections granted to miners, regardless of their employer. United Energy Syncs. Inc. v.
MSHA, 35 F.3d 971, 974-76 (4th Cir. 1994). Conversely, persons not working in a mine but who
provide non-mining services off a mine site do not face mining hazards. Such workers do not
require the Mine Act’s extra protection and may otherwise be appropriately protected by the
Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq.; Old Dominion Power Co.
v. Donovan, 772 F2d 92, 95 (4th Cir. 1985). These jurisdictional concepts regarding independent
contractors providing services at mines find expression in the Congressional intent and statutory
purpose.
The Secretary concedes that KC Transport is an independent contractor that provides coal
haulage services at Ramaco mines and the Elk Creek Plant as part of its business activities. Jt.
Stips. 7, 10, 11. It offers services to other non-mining entities, as well. Jt. Stips. 7, 15. As an
independent contractor, KC Transport is an operator subject to MSHA jurisdiction while
performing work at a mine site.
Here, the inspector cited trucks that were not performing services at a mine. They had left
the mine site where the trucks were “used in mining” and returned to the separately and
independently-owned Emmett facility for parking and repair. Jt. Stips. 15-17. When the citations
were issued, KC Transport was not performing services in a mine. Jt. Stip. 19. Thus, it was not
an operator under section 3(d), further confirming that the Secretary did not have jurisdiction to
issue the relevant citations.16
KC Transport used its Emmett facility for its independent contract trucking business that
served both coal and non-coal customers. There is no evidence that Ramaco or any other coal
operator used the facility for any mining functions or activities that might cause it to be
considered a mining facility. See Harman Mining Corp. v FMSHRC, 671 F.2d 794 (4th Cir.
1981).

16

We note that MSHA stated on the citations that the violations occurred at the Elk Creek
Plant, despite the fact that the citations were issued in an area that was not on Ramaco property.
See Citation Nos. 9222038 and 9222040. We view this as indicating MSHA’s belief—which is
borne out both in its standard inspection regimen and its citation form—that its exercise of
jurisdiction over a contractor is necessarily contingent upon the contractor’s activities occurring
at a site within Mine Act jurisdiction.

44 FMSHRC Page 222

5. Important Federal Circuit Court decisions in Ziegler Coal and Maxxim
Rebuild Co. Demonstrate that KC Transport’s Facility is not a “Mine.”
Federal circuit courts have accepted these underlying jurisdictional precepts for more
than 30 years. In Dep’t of Labor v. Ziegler Coal Co., 853 F.2d 529, 533-34 (7th Cir. 1988), the
Seventh Circuit noted the “geographical component” of the situs of a facility:
The statutory definition of a coal mine plainly contemplates that
the facilities used in the work of extracting coal must be located on
or below the area of land where the coal is extracted, milled, or
prepared. Section 802(h) speaks in terms of “an area of land” and
facilities “placed upon . . . the surface of such land” used “in the
work of extracting in such area [coal] . . . from its natural
deposits.”
Id. (emphasis added).
Ziegler involved a repair shop located approximately one and one-half miles away from
the nearest Ziegler mine. Id. at 531. The court recognized that the Mine Act’s legislative history
contains a generous construction of the term “coal mine” but specifically noted that “this does
not justify disregarding the statutory language which speaks in terms of the area in which coal is
being extracted.” Id. at 534 (emphasis added). The shop dealt only with equipment used in
mining, but the court recognized that it was “one-step removed from those facilities used to
perform work directly on the extracted coal.” Id. at 536. The court went on to recognize “that a
repair shop might be essential to an efficient mining operation, but this alone is insufficient to
satisfy [section] 802(i).” Id.
Even more importantly, the U.S. Court of Appeals for the Sixth Circuit directly addressed
circumstances nearly identical to this case in the previously cited Maxxim case. The Commission
had applied a prior Commission case, Jim Walter Res., Inc., 22 FMSHRC 21 (Jan. 2000), to
affirm a finding that MSHA had jurisdiction over a maintenance shop that repaired, rebuilt, and
fabricated mining equipment and parts for mining equipment. Maxxim Rebuild Co. v. FMSHRC,
38 FMSHRC 605 (Apr. 2016).
The facts in Maxxim were considerably more robust than the facts presented in this case.
The shop operator (Maxxim) was a wholly-owned subsidiary of a mining company (Alpha
Natural Resources) rather than a wholly independent business. The shop’s location was on
property owned by Sidney Coal Company, a sister company to Maxxim and a mining subsidiary
of Alpha Natural Resources. Id. at 607. Maxxim’s employees regularly went to the mining
operation to complete boreholes to accommodate blasting equipment furnished by Maxxim. Id.
The Commission found the work by Maxxim made the shop a “mine” though not located on an
actual mining site.

44 FMSHRC Page 223

The Sixth Circuit unanimously reversed the Commission.17 In doing so, the circuit court
emphasized the need for context and perspective. Looking at the case from the standpoint of
protecting miners from mining hazards, the circuit court found jurisdiction extended to facilities
and equipment if they are in or adjacent to—in essence, part of—a working mine. Again, this
finding applied to a wholly-owned subsidiary of a mining company with a related company for
which Maxxim supplied services engaged in active mining.
Quoting the Mine Act definitions cited above, as well as the definitions in Title IV of the
Mine Act, the circuit court found these provisions teach:
[A] lesson taught many times before. “A provision that may seem
ambiguous in isolation is often clarified by the remainder of the
statutory scheme [ ] because the same terminology is used
elsewhere in a context that makes its meaning clear or because
only one of the permissible meanings produces a substantive effect
that is compatible with the rest of the law.”
Id. at 742 (citation omitted).
Going further, the circuit court considered the irrational practical implications of finding
jurisdiction, including the common sense points raised below. Thus, the Sixth Circuit squarely
held that MSHA did not have jurisdiction over the Maxxim facility, a repair shop more closely
related to actual mining activities than the Emmett facility of KC Transport.
Finally, the circuit court noted that the Commission relied upon its finding of jurisdiction
in Jim Walter Resources, supra. The court found that Jim Walter was decided incorrectly,
stating:
Far better, it seems to us, to stand by the text and context of §
802(h)(1), which limit the agency’s jurisdiction to locations and
equipment that are part of or adjacent to extraction, milling, and
preparation sites.
Id. at 744.

17

We do not hold that we are required to find the Seventh Circuit’s decision in Ziegler or
the Sixth Circuit’s decision in Maxxim binding upon us for a case arising in the Fourth Circuit.
Nevertheless, we recognize both as superior authorities. See Westmoreland Coal Co., 11
FMSHRC 960, 964 (June 1989); Ray, emp. by Leo Journagan Constr. Co. Inc., 20 FMSHRC
1014, 1025 (Sept 1998). As discussed herein, we find that both circuit courts’ reasoning is
consistent with the plain text, larger statutory context, and purpose of the Mine Act. We are in
full accord with these decisions. For that reason, we write in agreement with, and rely upon, both
decisions.

44 FMSHRC Page 224

We are in accord with and fully accept the circuit court’s analysis. Not only as a matter of
authority, but because it aligns with the positions identified above following from the Coal Act,
the Mine Act’s legislative history, definitions in the Mine Act, and KC Transport’s independent
contractor status, as well as common sense as discussed below. We recognize that our decision
today departs from the Jim Walter approach and certain prior Commission cases.18 Our holding
is that an independent repair, maintenance, or parking facility not located on or appurtenant to a
mine site and not engaged in any extraction, milling, preparation, or other activities within the
scope of subsection 3(h)(1)(A) is not a mine within the meaning of section 3(h) of the Mine Act.
We further hold that tools, equipment, and the like not on a mine site or any appurtenance thereto
and not engaged in any extraction, milling, preparation or other activities within the scope of
subsection 3(h)(A) are not mines within the scope of subsection 3(h) of the Mine Act. Today’s
decision is consistent with the history, language, statutory framework, legislative intent, and two
well-considered federal circuit court of appeals decisions.
6. Common Sense
Finally, we are well-advised to follow the Sixth Circuit’s path and take an overall view of
the business in which KC Transport is engaged and the illogical consequences of accepting the
Secretary’s construction of the Mine Act. KC Transport is an independent commercial trucking
firm. It provides trucking services to different types of customers and stays in business by
carrying different materials. In short, it is engaged in commercial trucking like thousands of
other commercial trucking firms. When its trucks are in a mine providing services, they must
conform to MSHA standards. Therefore, any assertion that denying jurisdiction over trucks at the
KC Transport facility means that they could enter a mine and engage in extraction related work,
without complying with MSHA’s requirements, is without merit.19
The jurisdictional standard we describe is consistent with a common sense understanding
of the Mine Act’s purpose, namely protecting miners from hazards associated with mining. See
30 U.S.C. § 801. Common sense dictates that jurisdiction should not attach in situations, such as
here, where no such risks particular to a mine exist at an independent parking area and garage
18

W.J. Bokus Indus. Inc., 16 FMSHRC 704, 708 (Apr. 1994); US Steel Mining Co. Inc.,
10 FMSHRC 146 (Feb. 1988).
19

Our dissenting colleague asserts the majority approach would compromise safety by
impeding the inspector’s ability to issue citations. MSHA knew of the facility but never asserted
a right to inspect the facility. Even then, MSHA only sought jurisdiction over the trucks. Indeed,
MSHA went there to vacate citations issued on the trucks while on the mine site. If an inspector
finds a pre-shift violation while examining a contractor’s truck on the mine site, he may and will
cite it, and similarly, an inspector can and should cite any equipment defect he sees on the mine
site. See, e.g., Ames Construction Inc., 33 FMSHRC 1607, 1611 (July 2011), aff’d 676 F.3d 1109
(D.C. Cir. 2012) (where independent contractor was performing services at a mine and was
therefore an operator under the Act, contractor can be found strictly liable for a violation of a
mandatory standard occurring at the mine). At no point is a truck allowed on the mine with a
mine safety violation. Thus, the same vigorous safety enforcement applies.

44 FMSHRC Page 225

removed from a mine site. No stipulation suggests that repair work at the Emmett facility is
different, in any respect, from the same type of work performed on tens of thousands of trucks
throughout the nation at other facilities or, indeed, on any other KC Transport truck that hauls
material other than coal. The record shows no difference in activities at the Emmett facility
between contractor trucks hauling coal and contractor trucks moving non-coal materials.
As explained in Maxxim, supra, Congress tailored the Mine Act to protect against
dangers that arise from handling coal and other minerals, not generic risks associated with
making or repairing equipment. 848 F.3d at 743; see also United Energy Svcs. Inc. v. MSHA, 35
F3d 971, 975 (4th Cir. 1994) (emphasizing that employees deserve the same protections as
miners if they are subject to the same risks). Jurisdiction over an independent and offsite truck
repair facility, not exposing employees to any hazards associated with the mining process, does
not serve the Mine Act’s purpose.20
A manufacturing plant is not a mine because it manufactures equipment for use in
mining and an electrical utility plant is not a mine only because it uses coal. Id. at 743; Herman
v. Assoc. Elec. Coop., 172 F.3d 1078, 1082-83 (8th Cir. 1999); see also Bush & Burchett Inc v.
Reich, 117 F.3d 932 (6th Cir. 1997). If jurisdiction follows each piece of equipment, regardless
of its travel away from the mine, then, as the Sixth Circuit said, there would be no stopping
point. Id. at 744. Such an unbounded jurisdictional approach clearly leads to absurd results. A
supervisor’s pickup truck used at the mine for mining purposes would be subject to MSHA
regulations—but not in the supervisor’s garage at home.
The jurisdictional principles announced here apply equally to the attempt to exercise
jurisdiction over the KC Transport facility and the trucks parked there.21 The KC Transport
facility is only one of the hundreds of facilities that manufacture, store, or repair the vast amount
of equipment used in mines. Thus, we share the opinion and observations of the Sixth Circuit in
Maxxim regarding attaching MSHA jurisdiction to any facility or any piece of equipment with
some connection to mining, regardless of whether that connection exposes employees to relevant
mining hazards.

By no means is safety ignored in this situation. Where Mine Act jurisdiction does not
apply, other jurisdictional oversight does, such as the Occupational Safety and Health Act of
1970, 29 U.S.C. § 651 et seq., or additional state safety or transportation enforcement agencies.
Nothing in the record casts doubt upon their enforcement capabilities.
20

21

In reversing the Judge’s finding of jurisdiction over the facility, we note the Judge’s
correct rejection of the Secretary’s “rolling mines” theory of jurisdiction over the trucks as standalone pieces of equipment at a parking/repair facility. 42 FMSHRC at 231.

44 FMSHRC Page 226

IV.
Conclusion
For the preceding reasons, we find that the Secretary did not have jurisdiction to issue
Citation Nos. 9222038 and 9222040 involving trucks parked at KC Transport’s Emmett Facility.
Accordingly, we reverse the Judge’s decision, grant KC Transport’s Motion for Summary
Decision, and vacate the citations.

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Commissioner

44 FMSHRC Page 227

Chair Traynor, dissenting:
The question on review is whether an inspector from the Secretary of Labor’s Mine
Safety and Health Administration (“MSHA”) had jurisdiction to issue citations to KC Transport,
Inc., when he observed its employees violate a mandatory safety standard while repairing coal
haul trucks at KC Transport’s parking lot. As I will demonstrate, Congress has directly spoken to
the issue; the Mine Act plainly states that “equipment . . . used in, or to be used in” mining
processes are subject to the provisions of the Mine Act. 30 U.S.C. § 802(h)(1)(C).
A. Factual Summary
On March 11, 2019, MSHA Inspector John M. Smith traveled down a public road in
Logan County, West Virginia and arrived at a manned-gate controlled by Ramaco Resources.
The gate marked the point where the public road became Ramaco’s private mine haul road. Only
authorized personnel are permitted access to the mine road, which connects five coal mines
(three deep mines, one strip mine and a highwall mine) with the Elk Creek Preparation Plant. The
road, mines, and preparation plant are all owned and operated by Ramaco and subject to the
provisions of the Mine Act.
Inspector Smith first traveled to the Elk Creek Plant. From the plant, Inspector Smith
traveled about a mile down the haul road to KC Transport’s parking lot. KC Transport is an
independent contractor that provides haulage services at these Ramaco mine properties.1 KC
Transport’s off-road trucks regularly haul coal from the five mines, over the haul road and to the
Elk Creek Plant. The off-road trucks were not licensed to travel on-road at the time of the
inspection and, therefore, were operated exclusively at Ramaco’s mine complex. On this day,
Inspector Smith was following-up on citations that had been previously issued to KC Transport’s
trucks during a MSHA inspection of a Ramaco mine.
KC Transport parks and maintains its trucks at a sand and gravel parking lot built on land
controlled by Ramaco. The lot is separated from the haul road by an approximately 1000-foot
side road. At the time of the inspection, KC Transport was in the process of constructing a
maintenance facility next to the parking lot and was using two shipping containers and two
service trucks to conduct repairs.2 KC Transport shares the lot with a logging company.
In addition to the off-road trucks, KC Transport also operates on-road trucks out of this
facility providing services for other customers. This was the first time that MSHA issued a

1

KC Transport operates truck maintenance and storage facilities at five different
locations. The Emmett, West Virginia facility at issue contained approximately 35 trucks,
including both off-road trucks and on-road trucks.
2

On the day Inspector Smith issued these citations he did not attempt to inspect the
shipping containers, service trucks or any other trucks located at KC Transport’s facility.

44 FMSHRC Page 228

citation for conduct that occurred at this newly-constructed parking lot.3 However, MSHA
regularly inspects the same exact trucks when operated at Ramaco’s mines and on its roads.
On March 11, 2019, during his visit to the parking lot, Inspector Smith observed two
Mack haul trucks undergoing repairs. The trucks were not blocked against motion as required by
the mandatory safety standard at 30 C.F.R. § 77.404(c). Accordingly, Inspector Smith issued two
citations to KC Transport. Inspector Smith also issued an imminent danger order pursuant to
section 107(a) of the Mine Act because a person was standing underneath the raised unblocked
bed of one truck, a serious hazard that could result in a fatal injury. The issuance of the imminent
danger order authorized the inspector to withdraw the individual from danger. The order is not at
issue in this case.
The parties filed cross motions for summary decision with the Judge. KC Transport
agreed to accept the two citations as issued if the Judge found that MSHA had properly asserted
jurisdiction. Commission Procedural Rule 67, 29 C.F.R. § 2700.67, authorizes a Judge to grant
summary decision if the entire record shows there is no genuine issue of material fact and the
moving party is entitled to summary decision as a matter of law. KC Transport argued that
MSHA lacked jurisdiction to issue the citations because the repairs were being performed at a
facility that was not a “mine.” The Secretary argued that MSHA has jurisdiction to enforce safety
standards governing equipment “used in” mining.
The Judge granted the Secretary’s motion for summary judgement, finding MSHA
jurisdiction over the trucks as well as the parking lot facility.
B. Analysis
On review, KC Transport argues that section 3(h)(1)(C) of the Mine Act only covers
equipment connected to “mines” as specified in sections 3(h)(1)(A) and (B). The Secretary
maintains that section 3(h)(1)(C) covers equipment that is “used in” mining irrespective of its
location. The Commission reviews a Judge’s decision to grant summary decision de novo. MClass Mining, LLC, 41 FMSHRC 579, 582 (Sept. 2019) (citations omitted).
The Mine Act provides that “[e]ach coal or other mine, the products of which enter
commerce, or the operations or products of which affect commerce, and each operator of such
mine, and every miner in such mine shall be subject to the provisions of this Act.” 30 U.S.C. §
803. Section 3(h)(1) of the Mine Act defines a “coal or other mine” in relevant part as:
(A) An area of land from which minerals are extracted in nonliquid
form or, if in liquid form, are extracted with workers underground,
(B) private ways and roads appurtenant to such area, and (C) lands,
excavations, underground passageways, shafts, slopes, tunnels and
3

In April 2018, MSHA visited a different KC Transport parking lot. MSHA issued
citations that were later vacated. After those citations were issued, KC Transport constructed the
subject sand and gravel parking lot, in an area that was further from the mine haul road than its
previous lot.

44 FMSHRC Page 229

workings, structures, facilities, equipment, machines, tools, or
other property including impoundments, retention dams, and
tailings ponds, on the surface or underground, used in, or to be
used in, or resulting from, the work of extracting such minerals
from their natural deposits . . . or used in, or to be used in, the
milling of such minerals, or the work of preparing coal or other
minerals, and includes custom coal preparation facilities.
30 U.S.C. § 802(h)(1).
Under the plain language of the Mine Act, the Mack coal haul trucks are “equipment . . .
used in, or to be used in” “extracting” and “preparing coal” and thus I would find that the
citations were properly issued. Chevron U.S.A. Inc. v. National Resources Defense Council, Inc.,
467 U.S. 837, 842-43 (1984) (Under step one of Chevron, we ask “whether Congress has directly
spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to the unambiguously expressed
intent of Congress.”).
In the legislative history of the Act, Congress made it clear “that what is considered to be
a mine and to be regulated under this Act be given the broadest possibl[e] interpretation.” S.
Rep. No. 95-181, at 14 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 602 (1978) (“Legis.
Hist”) (emphasis added).4 Congress further stated that “doubts [shall] be resolved in favor of
inclusion of a facility within the coverage of the Act.” Id. Accordingly, the Commission has
consistently construed section 3(h)(1) broadly in favor of Mine Act coverage and recognized that
“jurisdictional doubts [shall] be resolved in favor of coverage by the Mine Act.” Calmat
Company of Arizona, 27 FMSHRC 617, 624 (Sept. 2005) (holding that the cited haul trucks
“were clearly related to mining operations and within MSHA’s jurisdiction.”).
In fact, the Commission has repeatedly held that pursuant to section 3(h)(1)(C),
“equipment” that is “used in, or to be used in” mining is subject to the provisions of the Mine
Act, even when located at a place that is not a “mine” pursuant to sections 3(h)(1)(A) and (B).5
See W.J. Bokus Industries, Inc., 16 FMSHRC 704, 708 (Apr. 1994); see also State of AK Dep’t of
Transp., 36 FMSHRC 2642, 2647-48 (Oct. 2014) (holding that equipment used to extract
material is subject to the provisions of the Mine Act and noting that lack of jurisdiction over a
4

Indeed, in Marshall v. Stoudt’s Ferry Preparation Co., 602 F.2d 589, 591-92 (3d Cir.
1979), cert. denied, 444 US 1015 (1980), the court stated that “the statute makes clear that the
concept that was to be conveyed by the word [“mine”] is much more encompassing than the
usual meaning attributed to it—the word means what the statute says it means.”
5

The Commission generally considers whether the equipment “used in” coal preparation
or extraction is “essential to” or “integral to” the process. See Maxxim Rebuild Co., LLC, 38
FMSHRC 605, 607 (Apr. 2016).

44 FMSHRC Page 230

public road under subsection (B) does not foreclose jurisdiction over operations on that road
under (A) or (C)). That is because under section 3(h)(1)(C) whether a particular piece of
equipment is subject to the provisions of the Mine Act is primarily resolved by examining the
equipment’s function (not its location or ownership).6
In W.J. Bokus, the Commission held that “[u]nder section 3(h)(1), the Secretary need only
establish that the items in issue were used or to be used in mining.” 16 FMSHRC at 708
(emphasis added). Bokus Industries operated a sand and gravel mine on a portion of its property.
An asphalt plant was also located on the property. Bokus had an arrangement by which it leased
the asphalt plant to another company. Bokus also leased a garage, located adjacent to the asphalt
plant, to the asphalt company. Under the terms of the lease, both Bokus Industries and the
asphalt company could jointly use the garage. On review, the Commission held that it was not
necessary to determine whether the garage was a “mine,” because the evidence established that
the cited pieces of equipment in the garage “were used or to be used in mining.” Id. at 708. In so
holding, the Commission relied upon the function of the cited equipment.7
In Jim Walter Res, Inc., 22 FMSHRC 21 (Jan. 2000), the Commission reaffirmed that
“whether a mine operator’s equipment is covered by the Mine Act is not determined by its
location but rather by its function—that is, whether it is used in extracting or preparing coal.” Id.
at 27 n.11 (emphasis added). The Commission held that the supply shop at issue and its contents
were subject to the provisions of the Mine Act because the “facilit[y]” was a “mine” and because
it held “equipment . . . used in or to be used in” mining. Id. at 25.
My colleagues rely on the anomalous Sixth Circuit opinion in Maxxim Rebuild, 848 F.3d
737 (6th Cir. 2017), for their finding that these haul trucks were not subject to MSHA
jurisdiction at the time the citations were issued.8 My colleagues are wrong. Even under the

6

And not by reference to the folk notion of two Commissioners in the majority who
declare that the technical definition of a “mine” in the Act cannot possibly encompass trucks
parked immediately adjacent to mine property.
7

See also Justis Supply & Machine Shop, 22 FMSHRC 1292, 1296 (Nov. 2000) (finding
MSHA jurisdiction over a dragline assembly site where the record demonstrates that the dragline
was intended for use at a nearby mine).
8

My colleagues rely upon U.S. Dept of Labor v. Ziegler Coal Co., 853 F.2d 529 (7th Cir.
1988), in which the court reviews a decision of the Benefits Review Board. Slip op. at 13.
Because Ziegler neither concerns a decision of the Federal Mine Safety and Health Review
Commission, nor MSHA jurisdiction, it is not relevant to our inquiry.

44 FMSHRC Page 231

narrow interpretation of section 3(h)(1) articulated in Maxxim, the citations and the Judge’s
decision should be affirmed.9
Maxxim concerned a repair shop that mostly serviced mining equipment for Alpha
Natural Resources—a large coal producer and Maxxim’s parent company. Id. at 739. The shop
also included a warehouse which stored at least one piece of equipment for Alpha. The
Commission affirmed that MSHA properly asserted jurisdiction over the shop.10 The Sixth
Circuit reversed, holding that section 3(h)(1) of the Mine Act limited the agency’s jurisdiction
“to locations and equipment that are part of or adjacent to extraction, milling, and preparation
sites.” Id. at 744. The Sixth Circuit stated that the Mine Act does not govern “‘machines, tools,
or other property” wherever they may be found or made. Id. at 740. Instead, “equipment”
covered by subsection (C) “must be connected to a working mine.” Id. at 741 (emphasis added).
The Sixth Circuit stated that section 3(h)(1) (A), (B), and (C) “are place connected, and place
driven.” The court ultimately held that the shop at issue “was not attached to or adjacent to a
working mine,” instead it was “one-step removed from” a “mine” and that “it makes no
difference that Alpha’s mines may one day use the shop’s fabricated or repaired equipment” to
extract coal. Id. at 742-43.
The facts of the case currently before the Commission are readily distinguishable from
the facts in Maxxim. First, let’s consider the location. The parking lot is not “one-step removed”
from a mine site. Instead, it sits on a large tract of land that contains five working mines and a
coal prep plant. Furthermore, it is adjacent to an active mine haul road (about 1000 feet away)
which connects five mines and a preparation plant. Each of these entities, including the mine
haul road, are a “mine.” 30 U.S.C. § 803(h)(1)(B) (“private ways and roads appurtenant to such
area”). Moreover, one cannot access the parking lot without first traveling through a manned gate
controlled by the mine operator.
Second, and more importantly, let’s consider direct evidence of the trucks’ function. The
two trucks are each “connected to a working mine” because the parties stipulated that each was
“regularly used to haul coal from the five Ramaco mines to the Elk Creek prep plant” and are
regularly inspected by MSHA. Jt. Stips. 18, 29. These stipulations are dispositive evidence of the
trucks’ function. In addition, the trucks were parked and undergoing maintenance work
9

The Sixth Circuit’s decision in Maxxim is not binding on a case arising in the Fourth
Circuit. As Maxxim is inconsistent with the plain language of section 3(h)(1) of the Mine Act, as
well as its legislative history and Commission precedent, I believe it was wrongly decided.
However, as demonstrated infra, even under the Sixth Circuit’s narrow interpretation of section
3(h)(1), the Judge’s decision in this case should be affirmed.
10

The Commission concluded that under the plain language of section 3(h)(1)(C) the
shop was subject to MSHA jurisdiction because it was a “facility” that was “used in” the process
of “extracting” and preparing coal; the Maxxim facility worked on equipment that was integral to
the mining process. 38 FMSHRC 605, 607 (Apr. 2016). Substantial evidence supported the
Judge’s conclusion that a significant part of the work performed at the shop was mining related.
Id. at 608.

44 FMSHRC Page 232

previously mandated by MSHA at the time these citations were issued. The repairs were
necessary so that the trucks could continue hauling coal for Ramaco. These particular trucks
were not licensed to travel over public roads at the time the citations were issued and thus could
only be operated on Ramaco’s property. Jt. Stip. 27. Accordingly, both trucks were obviously
connected to a working mine. Even under Maxxim, the Secretary rightfully asserted Mine Act
jurisdiction.
In summary, substantial evidence supports the Judge’s finding that the coal haul trucks
are “equipment” “used in” mining as defined at 30 U.S.C. § 802(h)(1). Furthermore, the
Secretary demonstrated that the trucks are essential and integral to mining operations. The
location of the parking lot, adjacent to the mine haul road, provides additional evidence of the
trucks’ function. 11 The Judge’s finding of jurisdiction should be affirmed. Insofar as the Judge
believed he had to address the jurisdiction over the facility to affirm jurisdiction over the trucks,
he was in error.12
C. The Result of the Majority’s Ruling
The majority’s decision will result in decreased enforcement of safety standards
governing the maintenance and operation of mining equipment at off-site facilities or on-site
separate facilities. As a result, those workplaces will become more dangerous.
Powered haulage accounts for a large percentage of the fatal injuries in mining. In 2017,
50% of fatal injuries at mines involved powered haulage.13 Haul trucks in particular present a
variety of safety hazards. Two of the fatal injuries in 2017 occurred when a 340-ton haul truck
collided with a passenger van at a mine site.14
11

Considering the location of the equipment as circumstantial evidence of function, while
also requiring direct evidence of the equipment’s function, helps to address KC Transport’s
concerns regarding overbroad MSHA jurisdiction. For example, certain implications can
logically be drawn if a truck is parked at its manufacturer’s warehouse versus being parked at a
mine operator’s on-site repair shop.
12

The Judge primarily conducted a functional analysis, finding that the trucks perform
“an integral part of the mining and preparation process” by transporting coal from the mines to
the prep plant, and “the maintenance of the trucks at the facility is [also] essential to the coal
hauling and preparation process.” 42 FMSHRC at 237-38. However, the Judge also states that
“the location of the trucks and the maintenance facility matter.” Id. at 237. Essentially, in so
doing, he was stating that location can serve as evidence that the equipment is “used in” the
extraction or preparation of coal.
13

Jennica Bellanca, Mining Project: Characterization of Haul Truck Health and Safety
Issues, The National Institute for Occupational Safety and Health (NIOSH),
www.cdc.gov/niosh/mining/researchprogram/projects/index.html.
14

MSHA, Fatality Alert #11 & #12 - October 31, 2017, Mine Safety and Health
Administration, www.msha.gov/data-reports/fatality-reports/2017/fatality-11-12-october-312017/fatality-alert.

44 FMSHRC Page 233

More recently, from October 1 to December 13, 2021, five of the ten total fatal injuries at
mines involved powered haulage.15 In an attempt to better address those hazards, MSHA recently
issued a notice of proposed rule-making to require mine operators to develop and implement
powered haulage safety programs. Safety Program for Surface Mobile Equipment, 86 Fed. Reg.
50496 (Sept. 9, 2021). Apparently, as a result of the majority’s decision, KC Transport will not
be required to comply with this particular MSHA rule while maintaining trucks at its parking lot.
Of course, injuries can also occur during the maintenance of haul trucks. Recently, a
mechanic was fatally injured when a haul truck bed collapsed on him while he was working on
the truck.16 The citation and imminent danger order issued to KC Transport on March 11, 2019,
cite eerily similar facts. Inspector Smith observed a miner standing underneath the truck bed
while it was in a raised position, without having been blocked to prevent motion. According to
my colleagues’ ruling, MSHA inspectors are not permitted to issue an order to stop work if they
observe a similar dangerous occurrence in the future.
However, the complete implications of their ruling remain unclear. In fact, it gives rise to
a number of questions. For instance, suppose an MSHA inspector stops a truck at a Ramaco
mine. The inspector discovers that the KC Transport driver conducted an inadequate pre-shift
examination earlier in the day.17 If the pre-shift examination occurred at the parking lot, can
MSHA issue a citation? Suppose the truck is later involved in a fatal accident at a mine. Are
MSHA’s accident investigators permitted to consider whether improper maintenance at the
parking lot was a contributing factor? Or perhaps an MSHA inspector observes a haul truck
driving on the mine road with an obvious equipment defect. The inspector follows the truck to
the parking lot. Does the truck’s presence at the lot prevent the MSHA inspector from issuing a
citation for a defect that he observed at the mine road?
These questions and confusion demonstrate the absurdity of my colleagues’
interpretation. Impeding MSHA’s ability to prevent and investigate accidents that involve coal
haul trucks frustrates Congress’s goals in passing the Mine Act. 30 U.S.C. § 801(c) (“[H]ere is
an urgent need to provide more effective means and measures for improving the working
conditions and practices in the Nation’s coal or other mines in order to prevent death and serious
physical harm”). Haul truck accidents lead to fatal injuries.

15

MSHA: ‘Work with us’ as powered haulage, other concerns persist, Safety and Health
Magazine, www.safetyandhealthmagazine.com/articles/22065-msha-work-with-us-as-poweredhaulage-other-concerns-persist.
16

MSHA, October 19, 2021 Fatality - Fatality Alert, Mine Safety and Health
Administration, www.msha.gov/data-reports/fatality-reports/2021/october-19-2021fatality/fatality-alert.
17

The mandatory safety standard at 30 C.F.R. § 77.1606(a) states that “[m]obile loading
and haulage equipment shall be inspected by a competent person before such equipment is
placed in operation,” and that safety defects shall be “recorded and reported.”

44 FMSHRC Page 234

Instead of permitting MSHA to ensure that mining equipment complies with minimum
mandatory safety standards, my colleagues issue a decision that designates an area an “MSHA
free zone.” I am concerned that their decision will become a how-to-guide, used by the most
cynical mine operators to avoid regulations.
My colleagues contend that the trucks at the parking lot are subject to the provisions of
the Occupational Safety and Health Act, 29 U.S.C. § 651, and thus safety will not be
compromised. They fail to acknowledge that the Occupational Safety and Health Administration
(“OSHA”) does not have the budget or the man-power to inspect even a fraction of the
workplaces currently in its jurisdiction.
OSHA ended fiscal year 2021 with only 750 inspectors, the lowest number of inspectors
in the 51-year history of the agency.18 With similar staffing levels it would take 165 years for
OSHA inspectors to visit every workplace in its jurisdiction once.19 In contrast, the Mine Act
requires MSHA to inspect each surface mine at least two times a year and each underground
mine at least four times a year. 30 U.S.C. § 813(a). MSHA inspectors will continue to regularly
visit Ramaco’s mining complex, however, OSHA inspectors will rarely, if ever, be on the
premises.20
Accordingly, miner safety would be best promoted if equipment “used in” mining was
inspected by MSHA inspectors, as Congress intended. Thus, I dissent.

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair

18

Bruce Rolfson, Federal Workplace Safety Inspector Numbers Fall Under Biden,
Bloomberg Law, https://news.bloomberglaw.com/safety/federal-workplace-safety-inspectornumbers-tumble-under-biden.
19

David Michaels and Jordan Braab, The Occupational Safety and Health Administration
at 50: Protecting Workers in a Changing Economy, National Library of Medicine,
www.ncbi.nlm.nih.gov/pmc/articles/PMC7144438/.
20

The Mine Act also provides miners with other enhanced protections that are absent
from the Occupational Safety and Health Act, including the right to temporary reinstatement to
their position if fired for engaging in protected safety related activity. 30 U.S.C. § 815(c)(2).
Furthermore, MSHA inspectors have been granted greater access to inspect properties as
compared to their OSHA counterparts. Cf. Marshall v. Barlow's, Inc., 436 U.S. 307 (1978)
(warrantless inspection under the OSH Act violates the 4th amendment); Donovan v. Dewey, 452
U.S. 594, 606 (1981) (warrantless Mine Act inspections are “constitutionally permissible”).

44 FMSHRC Page 235

Distribution:
Christopher D. Pence, Esq.
Hardy Pence PLLC
10 Hale Street, 4th Floor (25301)
P.O. Box 2548
Charleston, WV 25329
cpence@hardypence.com
James P. McHugh, Esq.
Hardy Pence PLLC
10 Hale Street, 4th Floor (25301)
P.O. Box 2548
Charleston, WV 25329
jmchugh@hardypence.com
Robert S. Wilson, Esquire
U.S. Department of Labor, Office of the Solicitor
201 12th Street South
Arlington, VA 22202-5450
wilson.robert.s@dol.gov
Stephen S. Adkins
Conference Litigation Representative
U.S. Department of Labor
Mine Safety and Health Administration
4499 Appalachian Highway
Pineville, WV 24874
adkins.stephen@dol.gov
John M. McCracken, Esq.
Office of the Solicitor
U.S. Department of Labor
Mine Safety and Health Division
201 12th Street South, Suite 401
Arlington, VA 22202-5452
McCracken.John.M@dol.gov
Emily Toler Scott
Senior Trial Attorney
Office of the Solicitor
U.S. Department of Labor
Mine Safety and Health Division
201 12th Street South, Suite 401
Arlington, VA 22202-5452

44 FMSHRC Page 236

scott.emily.t@dol.gov
April Nelson, Esq.
Office of the Solicitor
U.S. Department of Labor
Mine Safety and Health Division
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Nelson.April@dol.gov
Melanie Garris
U.S. Department of Labor
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Garris.Melanie@dol.gov
Chief Administrative Law Judge Glynn F. Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Administrative Law Judge John Lewis
Federal Mine Safety Health Review Commission
875 Green Tree Road,
7 Parkway Center, Suite 290
Pittsburgh, PA 15220
jlewis@fmshrc.gov

44 FMSHRC Page 237

COMMISSION ORDERS

44 FMSHRC Page 238

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

April 7, 2022
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
v.

Docket No. LAKE 2021-0160
A.C. No. 11-03147-536309

KNIGHT HAWK COAL, LLC

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2018) (“Mine Act”). These matters are before us upon the Judge’s January 21, 2022
certification of his order denying the Secretary’s motion to settle in the above captioned case. See
Commission Procedural Rule 76(a)(1)(i), 29 C.F.R. § 2700.76(a)(1)(i).
In this case, the Judge denied the motion because he concluded that the Secretary had
failed to provide sufficient information to support the removal of a “significant and substantial”
(“S&S”) designation. The Judge held that his approval of the settlement would unfairly
compromise the public interest by conceding an important issue without reasonable justification
for doing so. He further held that factual support was required pursuant to the Commission’s
authority to approve settlements under section 110(k) of the Mine Act. 30 U.S.C. § 820(k).1
Procedural Rule 76 provides that “the Commission, by a majority vote . . . may grant
interlocutory review upon a determination that the Judge’s interlocutory ruling involves a
controlling question of law and that immediate review may materially advance the final
disposition of the proceeding.” 29 C.F.R. § 2700.76(a)(2). Rule 76 further provides that
“[i]nterlocutory review by the Commission shall not be a matter of right but of the sound
discretion of the Commission.” 29 C.F.R. § 2700.76(a).
Upon consideration of the Judge’s certifications, we hereby grant review of the Judge’s
orders denying the motion and the issue of whether the Secretary has unreviewable discretion to
remove an S&S designation from a contested citation without the Commission’s approval under
section 110(k) of the Mine Act.

1

In pertinent part, 30 U.S.C. § 820(k) provides, “No proposed penalty which has been
contested before the Commission under section 815(a) of this title shall be compromised,
mitigated, or settled except with the approval of the Commission.”

44 FMSHRC Page 239

The Secretary’s opening brief shall be filed within 30 days of the date of this order. If the
operator wishes to file a brief, it shall file that brief 30 days after the filing of the Secretary’s
brief.

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Commissioner

44 FMSHRC Page 240

Distribution:
Alexandra J. Gilewicz, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 2220
gilewicz.alexandra.j@dol.gov
John Miklos
Director of Health and Safety
Knight Hawk Coal, LLC
500 Cutler-Trico Road
Perry, IL 62272
johnmiklos@knighthawkcoal.com
Chief Administrative Law Judge Glynn F. Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Administrative Law Judge Michael Young
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
myoung@fmshrc.gov
John M. McCracken, Esq.
Office of the Solicitor
U.S. Department of Labor
Mine Safety and Health Division
201 12th Street South, Suite 401
Arlington, VA 22202-5452
McCracken.John.M@dol.gov
Emily Toler Scott
Senior Trial Attorney
Office of the Solicitor
U.S. Department of Labor
Mine Safety and Health Division
201 12th Street South, Suite 401
Arlington, VA 22202-5452
scott.emily.t@dol.gov

44 FMSHRC Page 241

April Nelson, Esq.
Office of the Solicitor
U.S. Department of Labor
Mine Safety and Health Division
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Nelson.April@dol.gov
Melanie Garris
U.S. Department of Labor
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Garris.Melanie@dol.gov

44 FMSHRC Page 242

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

April 19, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. LAKE 2020-0053-M
A.C. No. 12-00063-500999

LEHIGH CEMENT COMPANY LLC
BEFORE: Traynor, Chair; Althen and Rajkovich, 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. (2018) (“Mine Act”). On January 6, 2020, the Commission received from Lehigh
Cement Company LLC (“Lehigh”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (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 the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on October 18, 2019, and
became a final order of the Commission on November 7, 2019. Lehigh asserts that it had
mistakenly mailed its notice of contest to an incorrect address along with a check to pay certain
penalties for uncontested citations, on November 1, 2019. Specifically, the operator claims that it

44 FMSHRC Page 243

had sent the notice of contest to the MSHA St. Louis office for penalty payments, instead of
mailing the notice to the correct MSHA office in Arlington, VA. It offers proof of delivery to
support its claims. The Secretary does not oppose the request to reopen but urges the operator to
take steps to ensure that future penalty contests are timely filed. Lehigh states that it has since
changed its procedures “to prevent, identify and correct any mistakes” in the future.
Having reviewed Lehigh’s request and the Secretary’s response, we find that Lehigh
acted with excusable neglect by submitting its notice of contest in a timely manner, albeit to the
wrong address. In the interest of justice, we hereby reopen this matter and remand it to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Commissioner

44 FMSHRC Page 244

Distribution:
Larry R. Harshbarger
Lehigh Cement Company LLC, Mitchell Plant
180 N. Meridian Rd.
Mitchell, IN 47446
larry.harshbarger@lehighhanson.com
John M. McCracken, Esq.
Office of the Solicitor
Division of Mine Safety and Health
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202-5452
McCracken.John.M@dol.gov
Emily Toler Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202
scott.emily.t@dol.gov
April Nelson, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Nelson.April@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
Office of the Chief Administrative Law Judge
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Garris.Melanie@DOL.GOV

44 FMSHRC Page 245

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

April 19, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEST 2018-0449
A.C. No. 45-03710-465836

LROCK INDUSTRIES
BEFORE: Traynor, Chair; Althen and Rajkovich, 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. (2018) (“Mine Act”). On March 4, 2019, the Commission received from LRock
Industries (“LRock”) a motion seeking to reopen a penalty assessment proceeding and relieve it
from the Default Order entered against it.
On November 9, 2018, the Chief Administrative Law Judge issued an Order to Show
Cause in response to LRock’s perceived failure to answer the Secretary of Labor’s July 30, 2018
Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a
Default Order on November 26, 2018, when it appeared that the operator had not filed an answer
within 15 days.
LRock asserts that the citations at issue, despite being “written one minute apart” from
each other, were divided into two docket numbers without the operator’s knowledge. As a result,
according to the operator, it only properly answered the penalty petition for the first docket
number without answering the petition for the second docket number. The operator asserts that
its main office that receives the mail may have failed to notify him about it. According to the
operator’s plant manager, the main office is located one hour from the mine site, and the plant
manager rarely visits the main office because he is at the mine each day. The Secretary does not
oppose the request to reopen but notes that all proposed penalty petitions filed by the Secretary
clearly instruct the operator to file an answer within 30 days of the date on the petition. He urges
the operator to timely file an answer to all penalty petitions and to take Show Cause Orders from
the Administrative Law Judge seriously.
The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. §
2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a Judge’s
decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct
review within 40 days of a decision’s issuance, it becomes a final decision of the Commission.

44 FMSHRC Page 246

30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the
Commission.
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 the Commission may relieve a party
from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or
other reason justifying relief. 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”); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted. See Coal
Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed LRock’s request and the Secretary’s response, we find that the operator
acted with excusable neglect due to its apparent confusion regarding the process and its lack of
knowledge about the case being divided into two separate dockets. See, e.g., Lehigh SW Cement
Co., 39 FMSHRC 482 (Mar. 2017) (reopening a case where operator had overlooked the fact that
the proposed assessment had been split into several dockets, which had caused the operator to
fail to file a timely answer). In the interest of justice, we hereby reopen the proceeding and
vacate the Default Order. Accordingly, this case is remanded to the Chief Administrative Law
Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules,
29 C.F.R. Part 2700.

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Commissioner

44 FMSHRC Page 247

Distribution (e-mail):
John Bredfield
Plant Manager
LRock Industries
10050 Barnes Drive
Castle Rock, WA 98611
johnbredfield@gmail.com
John M. McCracken
Office of the Solicitor
Division of Mine Safety and Health
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202-5452
mccracken.john.m@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
Office of the Chief Administrative Law Judge
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Emily Toler Scott
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202
scott.emily.t@dol.gov
April Nelson, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Nelson.April@dol.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Garris.Melanie@DOL.GOV

44 FMSHRC Page 248

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

April 19, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEST 2020-0167
A.C. No. 26-02279-507222

LAS VEGAS PAVING CORP.
BEFORE: Traynor, Chair; Althen and Rajkovich, 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. (2018) (“Mine Act”). On March 10, 2021, the Commission received from Las Vegas
Paving Corporation (“Las Vegas Paving”) a motion seeking to reopen a penalty assessment
proceeding and relieve it from the Default Order entered against it.
On April 28, 2020, the Chief Administrative Law Judge issued an Order to Show Cause
in response to Las Vegas Paving’s perceived failure to answer the Secretary of Labor’s February
20, 2020 Petition for Assessment of Civil Penalty. On August 5, 2020, the Chief Administrative
Law Judge issued a second Order to Show Cause to the operator. By its terms, the second Order
to Show Cause was deemed a Default Order on September 4, 2020, when it appeared that the
operator had not filed an answer within 30 days.
Las Vegas Paving asserts that it never received the Secretary’s Petition for Civil Penalty
and acknowledges that a mistake was made on its part. It states that it has not yet been able to
ascertain why the Petition was not received and submits evidence to “demonstrate a very good
track record of correspondence . . . on many previous assessments and contested cases.” Las
Vegas Paving contends that this type of mistake “does not typically happen” and that it has
reviewed its procedures to prevent any similar mistakes from occurring in the future. In its
submission, the operator outlines a methodical tracking of its inspections, citations and penalty
assessments, in order to demonstrate that it takes assessments and Petitions very seriously. The
Secretary does not oppose the request to reopen but urges the operator to timely file an answer to
all penalty petitions and to take Show Cause Orders from the Administrative Law Judge
seriously.
The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. §
2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a Judge’s
decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct
review within 40 days of a decision’s issuance, it becomes a final decision of the Commission.

44 FMSHRC Page 249

30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the
Commission.
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 the Commission may relieve a party
from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or
other reason justifying relief. 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”); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted. See Coal
Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
We note that operators should take Show Cause Orders seriously and should adequately
explain any delays in responding to such orders. However, having reviewed Las Vegas Paving’s
request and the Secretary’s response, we find that the operator acted with mistake. In reaching
this conclusion, we consider the inadvertent failure to receive the Secretary’s Petition, and in
particular, the operator’s overall record of timely responding to proposed assessments and
Petitions. In the interest of justice, we hereby reopen the proceeding and vacate the Default
Order. Accordingly, this case is remanded to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700.

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Commissioner

44 FMSHRC Page 250

Distribution (e-mail):
Danny Fitzgerald
Mining Manager
Las Vegas Paving
4420 S. Decatur Blvd
Las Vegas, NV 89103
dan.fitzgerald@lasvegaspaving.com
John M. McCracken, Esq.
Office of the Solicitor
Division of Mine Safety and Health
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202-5452
McCracken.John.M@dol.gov
Emily Toler Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202
scott.emily.t@dol.gov
April Nelson, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Nelson.April@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
Office of the Chief Administrative Law Judge
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Garris.Melanie@DOL.GOV

44 FMSHRC Page 251

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

April 19, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEVA 2020-0261
A.C. No. 46-08659-505390

LO DOWN ENERGY, INC.
BEFORE:

Traynor, Chair; Althen and Rajkovich, 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. (2018) (“Mine Act”). On February 19, 2020, the Commission received from Lo
Down Energy, Inc. (“Lo Down”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (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 the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on December 27, 2019, and
became a final order of the Commission on January 27, 2020. Lo Down asserts that the
individual responsible for contesting penalty assessments was out sick at the time the penalty
assessment was received and had to quit the job due to the illness. This caused a disruption in the

44 FMSHRC Page 252

regular day-to-day operations at the mine and is the reason for the failure to contest the proposed
assessment in a timely manner, according to the operator. The operator asserts that it has since
hired a new office manager with specific training and instructions to prevent any future failures
to timely contest proposed assessments. The Secretary does not oppose the request to reopen but
urges the operator to take steps to ensure that future penalty contests are timely filed.
Having reviewed Lo Down’s request and the Secretary’s response, we find that Lo Down
acted with excusable neglect because its office manager’s illness was the reason for its failure to
contest the proposed assessment in a timely manner. In the interest of justice, we hereby reopen
this matter and remand it to the Chief Administrative Law Judge for further proceedings pursuant
to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly,
consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45
days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Commissioner

44 FMSHRC Page 253

Distribution:
James F. Bowman
Bowman Industries
PO BOX 99
150 Ballard Street
Midway, WV 25878
jimbowman61@hotmail.com
John M. McCracken, Esq.
Office of the Solicitor
Division of Mine Safety and Health
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202-5452
McCracken.John.M@dol.gov
Emily Toler Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202
scott.emily.t@dol.gov
April Nelson, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Nelson.April@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
Office of the Chief Administrative Law Judge
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Garris.Melanie@DOL.GOV

44 FMSHRC Page 254

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

April 25, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2022-0002
A.C. No. 25-01126-536168

v.
KERFORD LIMESTONE COMPANY

BEFORE: Traynor, Chair; Althen and Rajkovich, 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. (2018) (“Mine Act”). On October 1, 2021, the Commission received from Kerford
Limestone Company (“Kerford”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. §
815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (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 the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on June 16, 2021, and became a
final order of the Commission on July 16, 2021. Kerford asserts that the notice of contest was not
timely filed due to administrative error. The relevant paperwork was timely prepared by

44 FMSHRC Page 255

Kerford’s counsel and emailed to the firm’s administrative staff, but was apparently never filed.
The Secretary does not oppose the request to reopen, but urges the operator to take steps to
ensure that future penalty contests are timely filed.
Having reviewed Kerford’s request and the Secretary’s response, we find that the notice
of contest was not timely filed due to administrative error on the part of counsel’s firm. In the
interest of justice, we hereby reopen this matter and remand it to the Chief Administrative Law
Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules,
29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for
assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Commissioner

44 FMSHRC Page 256

Distribution:
Josh Schultz, Esq.
Law Office of Adele L. Abrams P.C.
600 17th St. #2800 South
Denver, CO 80202
jschultz@aabramslaw.com
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Garris.Melanie@dol.gov

44 FMSHRC Page 257

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

April 25, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. LAKE 2021-0195
A.C. No. 11-03141-533972

MACH MINING LLC

BEFORE: Traynor, Chair; Althen and Rajkovich, 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. (2018) (“Mine Act”). On August 25, 2021, the Commission received from Mach
Mining LLC (“Mach Mining”) a motion seeking to reopen a penalty assessment that had become
a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (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 the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on May 6, 2021, and became a
final order of the Commission on June 7, 2021. Mach Mining asserts that, due to an oversight,
the Director of Safety and Compliance failed to follow his normal procedure of immediately

44 FMSHRC Page 258

forwarding the assessment to the relevant personnel for review and processing. Mach Mining
states that mistakes such as this are uncommon, and the operator’s procedures for ensuring
timely processing usually work well. The Secretary does not oppose the request to reopen, but
urges the operator to take steps to ensure that future penalty contests are timely filed.
Having reviewed Mach Mining’s request and the Secretary’s response, we find that the
failure to timely file in this instance was the result of mistake. In the interest of justice, we
hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Commissioner

44 FMSHRC Page 259

Distribution:
Christopher D. Pence, Esq.
Hardy Pence PLLC
10 Hale Street, 4th Floor
P.O. Box 2548
Charleston WV 25329-2548
cpence@hardypence.com
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Garris.Melanie@dol.gov

44 FMSHRC Page 260

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

April 25, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEST 2021-0250
A.C. No. 10-01328-519730

THERMOCAL MINERALS
OF IDAHO LLC
BEFORE: Traynor, Chair; Althen and Rajkovich, 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. (2018) (“Mine Act”). On June 24, 2021, the Commission received from Thermocal
Minerals of Idaho LLC (“Thermocal”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. §
815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (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 the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on August 17, 2020, and became
a final order of the Commission on September 16, 2020. Thermocal asserts that the mine recently

44 FMSHRC Page 261

came under new management, and the previous manager failed to relay the assessment
paperwork to the new manager before leaving his position. Accordingly, Thermocal did not learn
of the assessment until May 2021, when it received a debt collection letter from the Department
of the Treasury. The Secretary does not oppose the request to reopen, but urges the operator to
take steps to ensure that future penalty contests are timely filed.
Having reviewed Thermocal’s request and the Secretary’s response, we find that the
failure to timely respond was due to a mistake of a former employee and excusable neglect
arising from a change in management, conditions which are unlikely to recur. In the interest of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Commissioner

44 FMSHRC Page 262

Distribution:
Cassandra Mohning
QA & Regulatory Compliance Manager
Van Beek Natural Science LLC
3689 460th Street
Orange City IA 51041
compliance@vanbeeknaturalscience.com
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Garris.Melanie@dol.gov

44 FMSHRC Page 263

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

April 25, 2022
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEST 2021-0266
A.C. No. 10-02251-530088

JMAC RESOURCES
BEFORE: Traynor, Chair; Althen and Rajkovich, 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. (2018) (“Mine Act”). On July 13, 2021, the Commission received from JMAC
Resources (“JMAC”) a motion seeking to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (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 the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on April 6, 2021, and became a
final order of the Commission on May 6, 2021. JMAC asserts that the notice of contest was
timely mailed on April 22, 2021, but was not received by MSHA because it was lost in the U.S.
Postal system. JMAC notes that this was not the first instance of mail delivery issues, as receipt

44 FMSHRC Page 264

of the proposed assessment was also delayed. The Secretary does not oppose the request to
reopen, but urges the operator to take steps to ensure that future penalty contests are timely filed.
Having reviewed JMAC’s request and the Secretary’s response, we find that the notice of
contest inadvertently failed to reach MSHA due to mail delivery issues. In the interest of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Commissioner

44 FMSHRC Page 265

Distribution:
Terry Gadbaw
General Manager
JMAC Resources
3151 N. Beck Road
Post Falls, ID 58504
terryg@jmacresources.com
Emily Toler-Scott, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Garris.Melanie@dol.gov

44 FMSHRC Page 266

ADMINISTRATIVE LAW JUDGE DECISIONS

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

April 14, 2022
BC QUARRIES, LLC,
Contestant

CONTEST PROCEEDINGS
Docket No. PENN 2020-0110-RM
Citation No. 523939; 06/16/2020
Docket No. PENN 2020-0111-RM
Citation No. 9523940; 06/16/2020
Docket No. PENN 2020-0112-RM
Citation No. 9523941; 06/16/2020
Docket No. PENN 2020-0113-RM
Citation No. 9523942; 06/16/2020

v.

Docket No. PENN 2020-0114-RM
Citation No. 9523943; 06/16/2020
Docket No. PENN 2020-0115-RM
Citation No. 9523945; 06/16/2020
Docket No. PENN 2020-0116-RM
Order No. 9523936; 06/16/2020
Docket No. PENN 2020-0118-RM
Order No. 9523937; 06/16/2020
Docket No. PENN 2020-0119-RM
Order No. 9523938; 06/16/2020

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

BC QUARRIES, LLC,
Contestant

Docket No. PENN 2020-0120-RM
Order No. 9523958; 06/30/2020

Docket No. PENN 2020-0141-RM
Citation No. 9523971; 08/3/2020
Docket No. PENN 2020-0142-RM
Order No. 9523972; 08/03/2020

44 FMSHRC Page 267

Docket No. PENN 2020-0143-RM
Citation No. 9523973; 08/3/2020
Docket No. PENN 2020-0144-RM
Order No. 9523974; 08/3/2020
Docket No. PENN 2020-0145-RM
Order No. 9523975; 08/3/2020
v.
Docket No. PENN 2020-0146-RM
Order No. 9523970; 08/3/2020
Docket No. PENN 2020-0147-RM
Order No. 9523976; 08/3/2020
Docket No. PENN 2020-0148-RM
Order No. 9523977; 08/3/2020
Docket No. PENN 2020-0149-RM
Order No. 9523978; 08/3/2020
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Mine: Shirvan Quarry
Mine ID: 36-09539

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

Docket No. PENN 2021-0007
A.C. No. 36-09539-523083

v.

BC QUARRIES, LLC,
Respondent

Mine: Shirvan Quarry

44 FMSHRC Page 268

DECISION AND ORDER
Appearances:

David L. Karp, operator, for BC Quarries
Ryan Atkinson and Matthew P. Epstein, Office of the Solicitor, U.S.
Department of Labor, Philadelphia, PA for the Secretary

Before: Judge McCarthy
This proceeding is before the undersigned upon Notices of Contest and a Petition for the
Assessment of Civil Penalty under section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(d).
This matter concerns a series of inspections of the Mine, Shirvan Quarry, from April to
October of 2020 and the resulting citations and orders. These inspections led to a myriad of
alleged violations, 8 citations and 11 orders at issue in this proceeding. BC Quarries also
challenges the penalty assessment that resulted from three of the orders. Many of these alleged
violations stem from a similar sequence that involves a citation for an alleged violation followed
by the failure to abate that violation, a withdrawal order, and the failure to follow that withdrawal
order.
A hearing was held via Zoom for Government on July 13-14, 2021. During the hearing,
the parties offered witness testimony1 and documentary evidence citation or order by citation or
order.2 The Secretary submitted a post-hearing brief on September 13, 2021.
Based on a careful review of the record, including the evidence submitted, the Secretary’s
post-hearing brief, and observation of the demeanor of witnesses,3 the undersigned makes the
following findings of fact and conclusions of the law.

1

MSHA inspector Timothy H. Lindsay testified for the Secretary. Mine Operator David
Karp and his son, Brandon Karp, testified for BC Quarries.
2

In this Decision, “July 13 Tr.” refers to the hearing transcript for July 13, 2021, “July 14
Tr.” refers to the July 14, 2021 transcript, “Sec’y Ex.” refers to the Secretary’s exhibits, and “Op.
Ex.” refers to BC Quarries’ exhibits. Sec’y Exs. 1-30 and Op. Exs. 1-3 were received into
evidence. July 14 Tr. at 75, 77.
3

In evaluating testimony, the undersigned has taken into consideration the nature of the
questioning and testimony given in response, the demeanor of the witnesses, their evasiveness or
forthrightness, their interests in this matter, the inherent probability of their testimony in light of
other events, corroboration or lack of corroboration for their testimony, their experience and
credentials, and their consistency or lack of consistency vis-à-vis their own testimony and the
testimony of other witnesses.

44 FMSHRC Page 269

I. STIPULATIONS
The parties submitted the following stipulations, which have been accepted into the
record:
a)
At all relevant times, Respondent has been an “operator” as defined in Section
3(d) of the Mine Act, 30 U.S.C. § 802(d).
b)

BC Quarries is a “mine” as defined in § 3(h) of the Mine Act, 30 U.S.C. § 802(h).

c)
Respondent’s operations at the mine at which the Citations in this case were
issued are subject to the jurisdiction of the Mine Act.
d)
This proceeding is subject to the jurisdiction of the Federal Mine Safety and
Health Review Commission and its designated Administrative Law Judges pursuant to Sections
105 and 113 of the Mine Act.
e)
The individuals whose names appear in Block 22 of the Citation(s)/Order(s) in
this case were acting in an official capacity and as authorized representatives of the Secretary of
Labor when they issued the Citations/Orders.
f)
The Citation(s)/Order(s) were properly issued and served by a duly authorized
representative of the Secretary of Labor upon an agent of Respondent at the date, time, and place
stated.
g)
h)
9523975.

Respondent is an ongoing business.
From June 16 to August 3, 2020, miners used the sea container identified in Order

i)
From June 16 to August 3, 2020, miners used the 500-gallon tank identified in
Order 9523972.
j)
From June 16 to August 3, 2020, miners used the 100-gallon tank identified in
Order 9523974.
k)
On June 16, 2020, the John Deere excavator identified in Citation 9523939 did
not have mirrors.
l)
As of June 16, 2020, the fire extinguisher identified in Citation 9523940 had not
been inspected on a monthly basis.
Sec’y Prehearing Report at 3-4; July 13 Tr. at 13-26.

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II. PRELIMINARY MATTERS
As an initial matter, numerous citations and orders involved in this matter—both those
that BC Quarries contested and those related to contested citations and orders—have already
become final decisions of the Commission.
The Mine Act establishes a dual system for filing contests of citations and contests of
proposed penalties. 30 U.S.C. § 815(d); 29 C.F.R. Part 2700, Subparts B, C; Kemper Equip. Inc.,
35 FMSHRC 376, 376 (Feb. 2013). However, “[t]he filing of a notice of contest of a citation . . .
does not constitute a challenge to a proposed penalty assessment that may subsequently be issued
by the Secretary . . . based on that citation.” 29 C.F.R § 2700.21(a). Consequently, a party that
wants to contest a proposed penalty assessment must notify the Secretary of such contest
“regardless of whether the person has previously contested the underlying citation.” Id.
§ 2700.26. Where an operator fails to contest a penalty assessment within 30 days, the
Secretary’s penalty assessment becomes a final order of the Commission and not subject to
review by any court or agency. 30 U.S.C. § 815(a). This is the case even where an operator has
contested the underlying citation. Apogee Coal Co., LLC, 38 FMSHRC 32 (Jan. 2016); Kemper,
35 FMSHRC at 377. Furthermore, “a penalty under the Mine Act is predicated upon the
existence of a violation.” Old Ben Coal Co., 7 FMSHRC 205, 209 (Feb. 1985).
BC Quarries contested the following citations but failed to contest the proposed penalty
assessments or file a motion to reopen for those citations:
Citation No. 9523939 in Docket No. PENN 2020-0110,
Citation No. 9523940 in Docket No. PENN 2020-0111,
Citation No. 9523941 in Docket No. PENN 2020-0112,
Citation No. 9523942 in Docket No. PENN 2020-0113,
Citation No. 9523943 in Docket No. PENN 2020-0114,
Citation No. 9523945 in Docket No. PENN 2020-0115,
Citation No. 9523971 in Docket No. PENN 2020-0141, and
Citation No. 9523973 in Docket No. PENN 2020-0143.
Sec’y Ex. 25 at 1-3; MSHA, Mine Data Retrieval System, https://www.msha.gov/minedata-retrieval-system (searchable by mine name) (“MDRS”).4 Because BC Quarries did not
timely contest the proposed penalties or file a motion to reopen for these dockets, the penalty
assessments have “become[] a final order of the Commission and not subject to review by any
court or agency.” 30 U.S.C. § 815(a). Consequently, these contest dockets are DISMISSED.
III. LEGAL PRINCIPLES, FACTUAL FINDINGS, AND ANALYSIS
The Secretary presents the remaining orders as falling into three categories: failure to
abate a citation, working in the face of an order, and failure to correct a citation.
4

The undersigned takes judicial notice of MDRS. Fed. R. Evid. 201(b) (“The court may
judicially notice a fact that is not subject to reasonably dispute because it . . . can be accurately
and readily determined from sources whose accuracy cannot reasonably be questioned.”).

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In three of the Orders—Order No. 9523936 in Docket No. PENN 2020-0166, Order
No. 9523937 in Docket No. PENN 2020-0118, and Order No. 9523938 in Docket No. PENN
2020-0119—the Secretary alleges that BC Quarries violated section 104(b) when it failed to
abate a violation in a previously issued citation. In four of the Orders—Order No. 9523970 in
Docket No. PENN 2020-0146, Order No. 9523976 in Docket No. PENN 2020-0147, Order No.
9523977 in Docket No. PENN 2020-0148, and Order No. 9523939 in Docket No. PENN 20200110—the Secretary alleges that BC Quarries violated section 104(b) when it failed to correct a
previous violation. The words “failure to correct” do not appear in section 104. However, it is a
violation of section 104(b) to fail to abate a violation. As such, the undersigned will apply the
same standard for a failure to abate a violation to the orders alleging that BC Quarries failed to
correct a previous citation. To establish that a section 104(b) withdrawal order for a failure to
abate is valid, the Secretary must prove “by a preponderance of the evidence that the violation
described in the underlying section 104(a) citation existed at the time the section 104(b)
withdrawal order was issued.” Mid-Continent Resources, Inc., 11 FMSHRC 505, 509 (Apr.
1989).
The remaining four Orders—Order No. 9523958 in Docket No. PENN 2020-0120, Order
No. 9523972 in Docket No. PENN 2020-0142, Order No. 9523974 in Docket No. PENN 20200144, and Order No. 9523975 in Docket No. PENN 2020-0144—allege a violation for working
in the face of a withdrawal order. Although the language “working in the face” does not appear
in the Mine Act, it is a violation of section 104(a) to violate “any . . . order . . . promulgated
pursuant to this Act.” 30 U.S.C. § 814(a). As such, the Secretary must show, by a preponderance
of the evidence, that BC Quarries violated a valid, non-abated withdrawal order. Mid-Continent
Resources, 11 FMSHRC at 509.
Negligence is not defined in the Mine Act. The Commission has found that “[e]ach
mandatory standard thus carries with it an accompanying duty of care to avoid violations of the
standard, and an operator’s failure to satisfy the appropriate duty can lead to a finding of
negligence if a violation of the standard occurred.” A.H. Smith Stone Co., 5 FMSHRC 13, 15
(Jan. 1983) (citations omitted). In determining whether an operator meets its duty of care under
the cited standard, the Commission considers what actions would have been taken under the
same or similar circumstances by a reasonably prudent person familiar with the mining industry,
the relevant facts, and the protective purpose of the regulation. See generally U.S. Steel Corp.,
6 FMSHRC 1908, 1910 (Aug. 1984); see also Jim Walter Res., Inc., 36 FMSHRC 1972, 1975-77
(Aug. 2014) (requiring Secretary to show that operator failed to take specific action required by
standard violated); Spartan Mining, 30 FMSHRC at 708 (negligence inquiry circumscribed by
scope of duties imposed by regulation violated). In this regard, the gravamen of high negligence
is “an aggravated lack of care that is more than ordinary negligence.” Brody Mining,
37 FMSHRC 1687, 1701 (Aug. 2015) (citing Topper Coal Co., 20 FMSHRC 344, 350
(Apr. 1998)).
Commission judges are not required to apply the level-of-negligence definitions in
Part 100 penalty regulations and may evaluate negligence from the starting point of a traditional
negligence analysis rather than from the Part 100 definitions. Brody Mining, 37 FMSHRC
at 1701; Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1263-64 (D.C. Cir. 2016). Thus,
in making a negligence determination, a Commission judge is not limited to an evaluation of
allegedly mitigating circumstances but may consider the totality of the circumstances

44 FMSHRC Page 272

holistically. Under such an analysis, an operator is negligent if it fails to meet the requisite high
standard of care under the Mine Act. Brody Mining, 37 FMSHRC at 1701.
A.

General Background

BC Quarries operates the Shirvan Quarry, a surface mine in Susquehanna, Pennsylvania.
MDRS. The mine produces dimension stone. Id.
This matter involves inspections conducted by MSHA over a series of months. In April
2020, Inspector Gary C. Merwine conducted the first set of relevant inspections. See, e.g., Sec’y
Ex. 8 at 7. On June 16 and 30 and July 9, 2020, Inspector Timothy H. Lindsay conducted the
second set of inspections. See, e.g., Sec’y Ex. 5 at 1; Id. at 7; Sec’y Ex. 15 at 7. On July 30,
2020, Inspector Lindsay again inspected the Mine. Due to events not relevant to the alleged
violations, Inspector Lindsay left the Mine without issuing orders or citations for alleged
violations found during the July 30 inspection. See, e.g., Sec’y Ex. 5 at 7. On August 3, 2020,
Inspector Lindsay issued the orders and citations for alleged violations found during the July 30
inspection. Finally, in October 2020, Inspector Merwine returned to the Mine and terminated
several pending citations and orders. See, e.g., Sec’y Ex. 12 at 11.
The facts specific to each remaining alleged violation will be discussed in separate
sections below.
B.

Order No. 9523936

In Order No. 9523936, part of Docket No. PENN 2020-0116, the Secretary alleges that
BC Quarries violated section 104(b) when it failed to abate the preceding Citation, Citation
No. 9522144. Sec’y Ex. 7 at 1. On April 2, 2020, Inspector Merwine issued Citation No.
9522144 for a John Deere 330LC excavator missing all its mirrors in violation of 30 C.F.R.
§ 56.14100(b).5 Id. at 7. BC Quarries did not contest the proposed penalty or file a motion to
reopen for Citation No. 9522144, which has become a final order of the Commission and the
violation cannot be challenged. MDRS; 30 U.S.C. § 815(a); Apogee Coal, 38 FMSHRC at 32;
Kemper, 35 FMSHRC at 377. Inspector Merwine gave two extensions for termination of Citation
No. 9522144 and set a final extension for June 1, 2020. Sec’y Ex. 7 at 7-8.
On June 16, 2020, Inspector Lindsay observed that the John Deere 330LC excavator was
still missing all its mirrors. July 13 Tr. at 203. A foreman told Inspector Lindsay that the
excavator had been operated for two weeks in the cited condition after the citation had been
written. Sec’y Ex. 7 at 2.
In testimony, David Karp admitted that he had not fixed the mirrors. July 13 Tr. at 212.
Mr. Karp also stated that the equipment had not been tagged out. Id. at 215-16. Mr. Karp did
allege that the equipment was in a designated area for equipment that is out of service, but also
5

This regulation states that “[d]efects on any equipment, machinery, and tools that affect
safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.”

44 FMSHRC Page 273

admitted that there was no sign indicating that there was such an area. Id. at 216. Based on the
lack of any indication that the area was posted or otherwise designated for equipment out of
service, the undersigned concludes that this area was not a designated area posted for out-ofservice equipment under 30 C.F.R. § 56.14100(c).6 In short, BC Quarries took no effective steps
to correct the missing mirrors “in a timely manner to prevent the creation of a hazard to persons.”
30 C.F.R. § 56.14100(b).
Consequently, the Secretary has shown by a preponderance of the evidence that BC
Quarries failed to abate the preceding Citation No. 9522144 in violation of section 104(b).
Accordingly, Order No. 9523936 is AFFIRMED, and contest Docket No. PENN 2020-0116 is
DISMISSED. The Secretary did not assess a penalty for this violation, and the undersigned declines
to do so now.
C.

Order No. 9523937

In Order No. 9523937, part of Docket No. PENN 2020-0118, the Secretary alleges that
BC Quarries violated section 104(b) when it failed to abate the preceding Citation, Citation
No. 9522143. Sec’y Ex. 8 at 1. On April 2, 2020, Inspector Merwine issued the preceding
Citation after he observed that the same John Deere 330LC excavator discussed above, was
missing a step to access the operator’s cab and the step for accessing the fuel cap was severely
bent and missing a trackpad. Inspector Merwine issued the preceding Citation7 for failing to
provide a safe means of access in violation of 30 C.F.R. § 56.11001.8 Sec’y Ex. 8 at 7. BC
Quarries did not contest the proposed penalty for the preceding citation or file a motion to
reopen, and the preceding citation has become a final order of the Commission and the violation
cannot be challenged. MDRS; 30 U.S.C. § 815(a); Apogee Coal, 38 FMSHRC at 32; Kemper,
35 FMSHRC at 377. Inspector Merwine gave two extensions for terminating the preceding
citation, setting a final extension for June 1, 2020. Sec’y Ex. 8 at 8-9.
On June 16, 2020, Inspector Lindsay observed that a step to the cab of the John Deere
330LC excavator was still missing and that no repairs had been made. July 13 Tr. at 221.
Inspector Lindsay testified that the John Deere 330LC excavator was not locked and tagged out.

6

This regulation states that “[w]hen defects make continued operation hazardous to
persons, the defective items including self-propelled mobile equipment shall be taken out of
service and placed in a designated area posted for that purpose, or a tag or other effective method
of marking the defective items shall be used to prohibit further use until the defects are
corrected.”
7

The original citation stated that it was for a violation of 30 C.F.R. § 56.10001. Inspector
Lindsay explained that Inspector Merwine had entered the incorrect regulation and that
§ 56.11001 is the correct regulation for the violation described in the preceding citation. July 13
Tr. at 218.
8

This regulation states that “[s]afe means of access shall be provided and maintained to
all working places.”

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Id. As noted above, a foreman told Inspector Lindsay that the excavator had been operated for
two weeks in the cited condition after the citation had been written. Sec’y Ex. 7 at 2.
Mr. Karp admitted that he had not repaired the excavator and had not properly tagged it
out, but he again alleged that the excavator had been moved to an out-of-service area. July 13 Tr.
at 223, 225. The undersigned again rejects this argument for the reasons set forth above because
the area was not a designated area posted for out-of-service equipment under 30 C.F.R.
§ 56.14100(c). See Section B supra.
Consequently, the Secretary has shown by a preponderance of the evidence that BC
Quarries failed to abate the preceding Citation No. 9522143 in violation of section 104(b). Order
No. 9523937 is AFFIRMED, and contest Docket No. PENN 2020-0118 is DISMISSED. The
Secretary did not assess a penalty for this violation, and the undersigned declines to do so now.
D.

Order No. 9523938

In Order No. 9523938, part of Docket No. PENN 2020-0119, the Secretary alleges that
BC Quarries violated section 104(b) when it failed to abate the preceding Citation, Citation
No. 9522147. Sec’y Ex. 9 at 1. On April 2, 2020, Inspector Merwine issued the preceding
Citation for a John Deere 790ELC excavator that did not have a functional travel alarm and horn
in violation of 30 C.F.R. § 56.14132(a).9 Id. at 6. BC Quarries did not contest the proposed
penalty or file a motion to reopen for the preceding citation, and the preceding citation has
become a final order of the Commission and the violation cannot be challenged. MDRS;
30 U.S.C. § 815(a); Apogee Coal, 38 FMSHRC at 32; Kemper, 35 FMSHRC at 377. Inspector
Merwine gave two extensions for terminating the preceding citation, setting a final extension for
June 1, 2020. Sec’y Ex. 9 at 7-8.
On June 16, 2020, Inspector Lindsay issued Order No. 9523938. He observed that the
cited excavator was in use in the southeast corner of the pit. Lindsay’s documentation indicates
the foreman told him that repairs had been made, but no repair or maintenance records were
provided. Id. at 2. The foreman did not testify at hearing. Inspector Lindsay testified that when
the operator’s representative Rodriguez tested the travel alarm by starting the excavator and
moving it in forward and in reverse, the travel alarm and horn did not function. July 13 Tr. at
232-33, 235; see also Sec’y Ex. 9 at 1.
BC Quarries questioned Inspector Lindsay as to the use of a spotter in lieu of a backup
alarm. July 13 Tr. at 250. Inspector Lindsay conceded on cross that BC Quarries did not need a
travel alarm or horn if it used a spotter. Id. at 236. However, BC Quarries provided no testimony
or evidence that it used a spotter on June 16, 2020. Further, Inspector Lindsay never received
training records or any other indication that BC Quarries had a trained spotter, and BC Quarries
did not produce any such records for this tribunal. Id. at 251, 254. Accordingly, the undersigned

9

This regulation states that “[m]anually-operated horns or other audible warning devices
provided on self-propelled mobile equipment as a safety feature shall be maintained in functional
condition.”

44 FMSHRC Page 275

finds insufficient evidence to conclude that BC Quarries used a spotter in lieu of a backup alarm
on June 16, 2020.
Mr. Karp testified that to activate the travel alarm, “[y]ou physically have to start the
machine to operate it.” Id. at 237. However, Mr. Karp was not present for the June 16 inspection,
and he provided no credible testimony to contradict Inspector Lindsay’s testimony that the
excavator was physically moved during the June 16 inspection when the travel alarm did not
work. Id. at 238.
Mr. Karp admitted that the horn did not work but testified that the fuse was blown. Id.
at 237. He further testified that that whenever the excavator is run, it is inspected, and fuses are
kept behind the seat, but that he
d[id]n’t know what it is, if some soda got down in there at some
time and shorted something out—or some Gatorade. The dealer
seems to think that every once in a while, it just blows the fuse
. . . . [MSHA] keep coming on days we’re not operating any of
these machines and writing a citation when none of them are being
r[u]n.
Id. at 237-38. Mr. Karp reiterated that “we have problems with the horn on the 790 excavator.
The dealer thinks some soda or Gatorade got down behind the seat into the fuse box.” Id. at 239.
He further reiterated that pre-operational inspections are done on the horn, and, if it doesn’t
work, the fuse is replaced. “If the MSHA guy comes and does an inspection, if we’re operating
the machine and it doesn’t work, that’s our problem.” Id. “And as we start the machine on a daily
inspect, if the fuse is blown, we put it in.” Id. at 240.
The undersigned discredits Mr. Karp’s testimony that the 790 excavator was not in
operation and his implicit suggestion that any blown fuse would have been caught during the
pre-operational inspection or might have occurred mid-shift on June 16. The Secretary has
shown that the 790 excavator was in operation and the horn and back-up alarm did not work.
BC Quarries proffered no documentation or testimony that a fuse had been replaced on or after
April 2 and before Inspector Lindsay’s June 16, 2020 inspection. Given the extent of failure to
abate violations on this record, the undersigned discredits BC Quarries’ apparent rebuttal
defenses that it had timely abated the violation, but the violation recurred. Rather, the
undersigned finds that the Secretary has shown by a preponderance of the evidence that BC
Quarries failed to abate the preceding Citation No. 9522147 in violation of section 104(b). Order
No. 9523938 is AFFIRMED, and contest Docket No. PENN 2020-0119 is DISMISSED. The
Secretary did not assess a penalty for this violation, and the undersigned declines to do so now.
E.

Order No. 9523958

In Order No. 9523958, part of Docket No. PENN 2020-0120, the Secretary alleges that
BC Quarries violated section 104(b) when it was “working in the face” of the preceding Order,
Order No. 9523938, part of Docket No. PENN 2020-0119. Sec’y Ex. 10 at 1. The preceding
Order was a section 104(b) withdrawal Order that was issued on June 16, 2020, requiring that the

44 FMSHRC Page 276

Operator cease the use of the John Deere 790ELC excavator. Sec’y Ex. 9 at 1. The undersigned
affirmed the preceding Order and dismissed the Operator’s contest of the preceding Order in
Section D above.
Order No. 9523958 originally alleged a violation of section 104(a), but Inspector Lindsay
testified that there was a clerical error, and the violation was modified to a violation of section
104(b). Sec’y Ex. 10 at 1-2; July 13 Tr. at 246. However, as explained above, a violation of a
valid withdrawal order as alleged in Order No. 9523958 is a violation of section 104(a).
30 U.S.C. § 814(a) (stating that it is a violation to violate “any . . . order . . . promulgated
pursuant to this Act”). Consequently, the undersigned MODIFIES Order No. 9523958 from a
violation of section 104(b) to a violation of section 104(a).10
On June 30, 2020, Inspector Lindsay issued Order No. 9523958 after observing that the
hour meter on the John Deere 790ELC excavator indicated that the excavator had been operated
between June 18 and June 30, 2020. Sec’y Ex. 10 at 1; July 13 Tr. at 248-49. The Secretary also
introduced photographs showing the difference in the hour meter on those two dates. Sec’y Ex.
10 at 4-5. These photos, along with Inspector Lindsay’s testimony, indicate that the excavator
had been operated for 23.4 hours during that 12-day period. The preceding withdrawal Order was
still in place. Id. at 1.
BC Quarries again raised the issue of a spotter (July 13 Tr. at 250), but for the same
reasons set forth above, the undersigned does not find sufficient evidence to support the
existence of a spotter. See Section D supra. BC Quarries did not offer evidence or testimony to
rebut the evidence of the hour meter indicating that the excavator had been operated between
June 18 and June 30, 2020.
The specific charge of Order No. 9523958 is that BC Quarries operated the John Deere
790ELC excavator while it was under withdrawal Order No. 9523938. The undersigned finds
that the Secretary has shown by a preponderance of the evidence that the excavator was operated
between June 18 and June 30, 2020, in violation of the withdrawal order and section 104(a).
Order No. 9523958 is AFFIRMED as modified, and contest Docket No. PENN 2020-0120 is
DISMISSED. The Secretary did not assess a penalty for this violation, and the undersigned declines
to do so now.
F.

Order No. 9523972

In Order No. 9523972, part of contest Docket No. PENN 2020-0142 and penalty Docket
No. PENN 2021-0007, the Secretary alleges that BC Quarries violated section 104(a) when it
continued to use a 100-gallon fuel tank and a 500-gallon fuel tank without proper labeling and
after the issuance of a preceding withdrawal Order, Order No. 9523952. Sec’y Ex. 12 at 1. The
10

In making this modification, the undersigned does not add new factual allegations
outside of the original Order and finds that BC Quarries had notice of these allegations and is not
unfairly prejudiced. See Mettiki Coal Corp., 13 FMSHRC 760, 765 (May 1991).

44 FMSHRC Page 277

Secretary issued the preceding withdrawal Order No. 9523952 on June 30, 2020, for failing to
abate Citation No. 9523943. Id. at 10. The preceding Citation No. 9523943 found a violation of
30 C.F.R. § 47.41(a)11 because the tanks “were not labeled with [their] contents.” Sec’y Ex. 5
at 1. BC Quarries did not contest or file a motion to reopen the preceding Order, and the
undersigned dismissed the challenge to Citation No. 9523943. See Section II supra. As a result,
the preceding Order and Citation are “admitted and unreviewable.” 30 U.S.C. § 815(a); Apogee
Coal, 38 FMSHRC at 32; Kemper, 35 FMSHRC at 377. Inspector Merwine terminated the
preceding Order on October 6, 2020. Sec’y Ex. 12 at 11.
On July 30, 2020, Inspector Lindsay saw that the same 100-gallon and 500-gallon fuel
tanks did not have labels indicating the contents of the tanks and the hazards posed by those
contents. July 13 Tr. at 289. These tanks contained diesel fuel, a fire hazard. Id. at 329.
Inspector Lindsay also observed that the tanks were being used at that time. Id. at 291-92.
Mr. Karp acknowledged that the tanks had been moved and used between June 30 and
August 3, 2020. Id. at 293-95.12 Brandon Karp testified that he had written “no smoking” on the
tanks on June 16 and “flammable” “combustible” by June 19, 2020. Id. at 306, 308. Although
Brandon Karp initially testified that he “wrote diesel on the tanks or diesel storage,” he later
admitted that the tanks did not have the word “diesel” on them or have other labelling that would
indicate the contents of the tanks. Id. at 298-99, 315. Given the subsequent testimony and the
lack of supporting photographic or other evidence, the undersigned discredits Brandon Karp’s
initial testimony that he wrote “diesel” or “diesel storage” on the tanks and credits his subsequent
admission that he did not do so.
BC Quarries submitted a photo that showed a manufacturer’s label on the 100-gallon
tank. Op. Ex. 2. However, that label—a diamond with a red background, a picture of a flame, the
word “combustible,” and the number three—only indicates that tank contained a flammable
liquid and does not indicate what type of liquid was in the tank. See 49 CFR § 172.419 (defining
11

This regulation states that “[t]he operator must ensure that each container of a
hazardous chemical has a label. If a container is tagged or marked with the appropriate
information, it is labeled.” As relevant here, 30 C.F.R. § 47.42 states that a label must “[d]isplay
appropriate hazard warnings” and “[u]se a chemical identity that permits cross-referencing between
the list of hazardous chemicals, a chemical's label, and its MSDS.” Additionally, § 47.11 defines
“Identity” as “[a] chemical’s common name or chemical name” and “Label” as “[a]ny written,
printed, or graphic material displayed on or affixed to a container to identify its contents and convey
other relevant information.”
12

In relation to another citation, BC Quarries obliquely argued that it was not liable
because the tanks belonged to a subcontractor and not BC Quarries. July 13 Tr. at 279-80. But
even if the tanks belonged to a contractor, BC Quarries—as the operator of the mine—is liable
for the actions of its contractors. Mingo Logan Coal Co., 19 FMSHRC 246, 249 (Feb. 1997)
(confirming that an operator is “strictly liable for all violations of the Act that occur on the mine
site, whether committed by one of its employees or an employee of one of its contractors” (citing
Bulk Transp. Servs., Inc., 13 FMSHRC 1354 (Sept. 1991)).

44 FMSHRC Page 278

the hazard label for flammable liquids). As such, the manufacturer’s label does not satisfy the
requirements of § 47.41(a).
BC Quarries introduced no credible evidence that the tanks were labelled as containing
diesel fuel at any time between June 30 and July 31, 2020. Based on that failure and the
testimony provided by Inspector Lindsay, the undersigned finds that the tanks were not labelled
to identify their contents.
Consequently, the undersigned finds that the Secretary has shown by a preponderance of
the evidence that BC Quarries continued to use the 100- and 500-gallon fuel tanks without labels
identifying their contents and did so despite the preceding withdrawal Order No. 9523952, thus
violating section 104(a). Order No. 9523972 is AFFIRMED, and contest Docket No. PENN
2020-0142 is DISMISSED.
After the issuance of the withdrawal Order, BC Quarries did attempt to label the tanks to
comply with MSHA regulations. Despite its failure to conform to these regulations, the actions
of BC Quarries demonstrate that it was acting with only moderate negligence in this violation.
Because the preceding withdrawal Order and Citation were still in effect on July 30, 2020, the
violation described in Order No. 9523972 would not, itself, result in any additional likelihood of
injury or illness. Therefore, the gravity of Order No. 9523972 is none. Through its repeated
attempts to correct the violation, BC Quarries demonstrated some good faith.
The amount of a proper penalty will be discussed in Section IV.
G.

Order No. 9523974

In Order No. 9523974, part of contest Docket No. PENN 2020-0144 and penalty Docket
No. PENN 2021-0007, the Secretary alleges that after the issuance of a preceding section 104(b)
withdrawal Order No. 9523954, BC Quarries violated section 104(a) when it continued to use the
above-mentioned 100-gallon and 500-gallon fuel tanks without signs prohibiting smoking and
open flames. Sec’y Ex. 14 at 1. The Secretary issued the preceding withdrawal Order
No. 9523954 on June 30, 2020 for failing to abate Citation No. 9523946. Id. at 12. The preceding
Citation No. 9523946 was for a violation of 30 C.F.R. § 56.4101.13 BC Quarries did not contest
the preceding Order or Citation. As a result, the preceding Order and Citation are “admitted and
unreviewable.” 30 U.S.C. § 815(a); Apogee Coal, 38 FMSHRC at 32; Kemper, 35 FMSHRC at
377. Inspector Merwine terminated the preceding Citation on October 6, 2020. July 13 Tr. at
332.
On July 30, 2020, Inspector Lindsay observed a 100-gallon fuel tank and a 500-gallon
fuel tank at the Mine. Id. at 329. These tanks contained diesel fuel, a fire hazard. Id. The 100gallon fuel tank had the manufacturer’s label, but neither fuel tank had any signs prohibiting
smoking or open flames. Id. at 330-31. BC Quarries stipulated that miners used the 100-gallon
and the 500-gallon fuel tanks from June 16 to August 3, 2020. Sec’y Prehearing Report at 3-4;
13

This regulation states that “[r]eadily visible signs prohibiting smoking and open flames
shall be posted where a fire or explosion hazard exists.”

44 FMSHRC Page 279

July 13 Tr. at 13-26; see also id. at 347 (Brandon Karp testifying that the tanks were never taken
out of service).
Brandon Karp also testified that the words “no smoking” were written on the tanks with a
Sharpie pen, but he admitted that there was no sign prohibiting smoking and open flames. July
13 Tr. at 347. BC Quarries submitted a photo taken on August 10, 2022 showing the words “no
smoking” and “combustible” written in Sharpie on the 500-gallon tank. Op. Ex. 3. However,
based on the photo, the undersigned finds that the words in thin black Sharpie on the rust-colored
500-gallon tank are not “readily visible” as required by the regulation. 30 C.F.R. § 56.4101. No
similar photo with words written in thin black Sharpie was proffered by BC Quarries for the 100gallon tank. See Sec’y Ex. 14 at 5 and 6. The undersigned concludes that on July 30, 2020, the
100-gallon fuel tank and the 500-gallon fuel tank did not have readily visible signs prohibiting
smoking and open flames.
The undersigned concludes that the Secretary has shown by a preponderance of the
evidence that BC Quarries violated section 104(a) by continuing to use the 100- and 500-gallon
fuel tanks without signs prohibiting smoking and open flames while the preceding withdrawal
Order No. 9523954 was in effect. Accordingly, Order No. 9523974 is AFFIRMED, and contest
Docket No. PENN 2020-0144 is DISMISSED.
After the issuance of the withdrawal Order, BC Quarries did attempt to label the tanks to
comply with MSHA regulations. Despite its failure to conform to these regulations, the actions
of BC Quarries demonstrate that it was acting with only moderate negligence in this violation.
Because the preceding withdrawal Order and Citation were still in effect on July 30, 2020, the
violation described in Order No. 9523974 would not, itself, result in any additional likelihood of
injury or illness. Therefore, the gravity of Order No. 9523974 is none. Through its repeated
attempts to correct the violation, BC Quarries demonstrated some good faith.
The amount of a proper penalty will be discussed in Section IV.
H.

Order No. 9523975

In Order No. 9523975, part of contest Docket No. PENN 2020-0145 and penalty Docket
No. PENN 2021-0007, the Secretary alleges that BC Quarries violated section 104(a) when it
used a sea container housing oxygen acetylene tanks and gasoline cans without signs prohibiting
smoking and open flames after the issuance of a preceding section 104(b) withdrawal Order,
Order No. 9523955. Sec’y Ex. 15 at 1. The Secretary issued the preceding withdrawal Order No.
9523955 on June 30, 2020 for failing to abate Citation No. 9523948. Id. at 5. The preceding
Citation No. 9523948 was for a violation of 30 C.F.R. § 56.4101.14 BC Quarries did not contest
the preceding Order or Citation. As a result, the preceding Order and Citation are “admitted and
unreviewable.” 30 U.S.C. § 815(a); Apogee Coal, 38 FMSHRC at 32; Kemper, 35 FMSHRC at
377. The preceding Citation was terminated on October 6, 2020. July 13 Tr. at 352.

14

This regulation states that “[r]eadily visible signs prohibiting smoking and open flames
shall be posted where a fire or explosion hazard exists.”

44 FMSHRC Page 280

On July 30, 2020, Inspector Lindsay observed a sea container that had oxygen acetylene
tanks and gasoline tanks inside. Id. at 352. Inspector Lindsay did not observe any signs on the
outside of the container indicating that smoking and open flames were prohibited. Id.
Inspector Lindsay also observed the inside of the sea container and did not see the required
signage. Id. at 355. Inspector Lindsay also testified that the doors of the container were open, and
that he did not observe any signs on the interior sides of the doors either. Id. at 354-55. Inspector
Lindsay also testified that the container presented a fire hazard because of its contents and the
risk that a dropped match or lit cigarette would ignite the dry grass surrounding the container. Id.
at 358-57, 362-63; Sec’y Ex. 15, at 8-9.
Mr. Karp testified that, on July 30, 2020, there were labels on the inside of the doors of
the sea container. July 13 Tr. at 360. This testimony conflicts with Inspector Lindsay’s testimony
that there were no labels on the inside of the doors of the container. Id. at 354-55. On this record,
the undersigned credits Inspector Lindsay who had clear recall on cross examination of his
observations and discussions concerning the open container and its contents on August 3, 2020.
Id. at 354-60. However, whether there were signs on the insides of the doors is ultimately
irrelevant. The standard requires that the required signage be “readily visible.” 30 C.F.R.
§ 56.4101. Even if there were signs on the interior sides of the doors, once those doors are
closed, the signs are no longer visible to miners on the outside of the container filled with oxygen
acetylene and gasoline tanks. If there were signs on the interior of the doors, they were not
“readily visible” and would not, alone, satisfy the standard. July 13 Tr. at 359.
Consequently, the undersigned finds that the Secretary has shown by a preponderance of
the evidence that BC Quarries continued to store materials that posed a fire or explosion hazard
in the sea container without readily visible signs prohibiting smoking and open flames and did so
despite the preceding withdrawal Order No. 9523955, thereby violating section 104(a). Order
No. 9523975 is AFFIRMED, and contest Docket No. PENN 2020-0145 is DISMISSED.
BC Quarries had been repeatedly warned to label the sea container, which had oxygen
acetylene and gasoline tanks inside, with signs prohibiting smoking and open flames. The failure
to do so and the continued use of the sea container despite the withdrawal Order constitutes high
negligence. Because the preceding withdrawal Order and Citation were still in effect on July 30,
the violation described in Order No. 9523975 would not, itself, result in any additional likelihood
of injury or illness. Therefore, the gravity of Order No. 9523975 is none. Despite the preceding
Order and Citation, BC Quarries did not correct the violation. This demonstrates a lack of good
faith on the part of BC Quarries.
The amount of a proper penalty will be discussed in Section IV.
I.

Order No. 9523970

In Order No. 9523970, part of contest Docket No. PENN 2020-0146, the Secretary
alleges that BC Quarries violated section 104(b) when it failed to abate the preceding Citation,
Citation No. 9523967. Sec’y Ex. 16 at 1. The Secretary issued the preceding Citation No.

44 FMSHRC Page 281

9523967 on July 9, 2020 for a violation of 30 C.F.R. § 56.14207.15 Id. at 7. BC Quarries did not
contest the preceding Citation. As a result, the preceding Order and Citation are “admitted and
unreviewable.” 30 U.S.C. § 815(a); Apogee Coal, 38 FMSHRC at 32; Kemper, 35 FMSHRC at
377. The preceding Citation was terminated on October 6, 2020. Sec’y Ex. 16 at 2.
During the July 9, 2020 inspection, Inspector Lindsay observed a Volvo A25C haul truck
that was parked with no chocks. July 14 Tr. at 6. At that time, Inspector Lindsay used the level
on his phone and determined that the truck was on a two-degree incline. Id. at 7. Inspector
Lindsay also took a picture of the truck and the level indicating the two-degree incline. Sec’y Ex.
16 at 11. Based on this inspection, Inspector Lindsay issued the preceding Citation No. 9523967.
Id. at 7.
During the July 30, 2020 inspection, Inspector Lindsay again observed the haul truck
parked with no chocks. July 14 Tr. at 7. Although it was the same haul truck, it was in a different
location during the July 30 inspection. Id. at 12. The Secretary submitted two photos of the haul
truck taken during the July 30 inspection. Sec’y Ex. 16 at 5-6. Inspector Lindsay also testified
that the haul truck was on an incline. July 14 Tr. at 7. However, Inspector Lindsay did not
provide any measurements of the angle of the incline during the July 30 inspection. Additionally,
Inspector Lindsay admitted that one of the photos (Sec’y Ex. 16 at 5) did not show an incline and
that he could not tell how far the truck might roll in the second photo (Sec’y Ex. 16 at 6). Id. at 9,
11, 16.
Mr. Karp testified that the haul truck was on level ground during the July 30 inspection.
Id. at 18.
As noted above, to prove a failure to abate a preceding violation, the Secretary must show
that the violation that existed in the preceding citation existed at the time the Secretary issued the
order. Mid-Continent Resources, Inc., 11 FMSHRC at 509. Here, the Secretary has failed to
provide sufficient evidence to show that the haul truck was on an incline on the date he issued
the Order. Of the two photos used as support for this Order, the first shows—and the Inspector
admitted it shows—the truck on level ground. Sec’y Ex. 16 at 5; July 14 Tr. at 9, 16. The second
photo is more ambiguous, but the undersigned finds that the second photo does not show, by a
preponderance of the evidence, that the haul truck was on an incline during the July 30
inspection. Sec’y Ex. 16 at 6. Even assuming the second photo showed an incline, the Secretary
did not provide any evidence as to the degree of any incline or demonstrate that it was more than
de minimis.
Although the Secretary need only show that the violation described in the preceding
Citation existed at the time of the issuance of the Order, the different locations of the haul truck
present a changed circumstance. Because the haul truck had been moved sometime between the
July 9 and 30 inspections, the Secretary cannot rely on Inspector Lindsay’s testimony that he
15

This regulation states that “[m]obile equipment shall not be left unattended unless the
controls are placed in the park position and the parking brake, if provided, is set. When parked
on a grade, the wheels or tracks of mobile equipment shall be either chocked or turned into a
bank.”

44 FMSHRC Page 282

determined that the truck was on a two-degree incline during the July 9, 2020 inspection. The
Secretary must show that haul truck was on an incline in the new location on July 30, 2020. The
Secretary has failed to do so.
As noted, Mr. Karp testified contrary to Inspector Lindsay that the haul truck was on
level ground during the July 30 inspection. July 14 Tr. at 18. Although Inspector Lindsay
testified that the haul truck was on an incline, he did not provide any measurements of the angle
of the incline during the July 30 inspection and he admitted that one of the photos did not show
an incline and he could not tell how far the truck might roll in the second photo. In these
circumstances, the undersigned discounts Lindsay’s testimony and credits Karp’s testimony that
the haul truck was on level ground during the July 30 inspection consistent with Sec’y Ex. 16 at
5.
Consequently, the Secretary has failed to show by a preponderance of the evidence that
BC Quarries failed to abate Citation No. 9523967, and the undersigned VACATES Order
No. 9523970.
J.

Order No. 9523976

In Order No. 9523976, part of contest Docket No. PENN 2020-0147, the Secretary
alleges that BC Quarries violated section 104(b) when it failed to abate the preceding Citation,
Citation No. 9523968. Sec’y Ex. 17 at 1. The Secretary issued the preceding Citation No.
9523968 on July 9, 2020 for a violation of 30 C.F.R. § 56.11001.16 Id. at 8. BC Quarries did not
contest the preceding Citation. MDRS. As a result, the preceding Order and Citation are
“admitted and unreviewable.” 30 U.S.C. § 815(a); Apogee Coal, 38 FMSHRC at 32; Kemper,
35 FMSHRC at 377. The preceding Citation was terminated on October 6, 2020. Sec’y Ex. 17 at
2.
On July 9, 2020, Inspector Lindsay observed a Volvo A25C haul truck with damaged
steps. July 14 Tr. at 25, Sec’y Ex. 17 at 8. Specifically, Inspector Lindsay observed that the
bottom step of the engine access step was missing and that the next step was damaged, making it
uneven. Id. at 27. Based on the damaged steps, the Secretary issued the preceding Citation No.
9523968 for a failure to provide safe access for the haul truck. Sec’y Ex. 17 at 8.
On July 30, 2020, Inspector Lindsay inspected the haul truck again and found that the steps
were still damaged. July 14 Tr. at 28. Inspector Lindsay also took photos of the damaged steps. Id.;
Sec’y Ex. 17 at 5.
Although Mr. Karp argued that he had personal reasons for not repairing the steps, he
admitted that an inspector had told him how to fix the damaged steps, but he had not done so. July 14
Tr. at 35-37, 38.
The Secretary has demonstrated by a preponderance of the evidence that BC Quarries did not
abate the preceding Citation No. 9523968 in violation of section 104(b). Order No. 9523976 is
16

This regulation states that “[s]afe means of access shall be provided and maintained to
all working places.”

44 FMSHRC Page 283

AFFIRMED, and contest Docket No. PENN 2020-0147 is DISMISSED. The Secretary did not
assess a penalty for this violation, and the undersigned declines to do so now.
K.

Order No. 9523977

In Order No. 9523977, part of contest Docket No. PENN 2020-0148, the Secretary
alleges that BC Quarries violated section 104(b) when it failed to abate the preceding citation,
Citation No. 9523957. Sec’y Ex. 18 at 1. The Secretary issued the preceding Citation
No. 9523957 on June 30, 2020 for a violation of 30 C.F.R. § 56.14100(d).17 Id. at 5. BC Quarries
did not contest the preceding Citation. MDRS. As a result, the preceding Citation is “admitted
and unreviewable.” 30 U.S.C. § 815(a); Apogee Coal, 38 FMSHRC at 32; Kemper, 35 FMSHRC
at 377. The preceding Citation was terminated on October 8, 2020. July 14 Tr. at 41; Sec’y Ex.
18 at 2.
On June 30, 2020, Inspector Lindsay requested pre-shift examination and workplace
examination paperwork. July 14 Tr. at 39-40. At that time, BC Quarries did not produce any
paperwork, despite the multiple pieces of defective equipment at the Mine. Id. at 39. Inspector
Lindsay then issued the preceding Citation No. 9523957 for violating § 56.14100(d). Sec’y Ex.
18 at 5. The original Citation referenced several pieces of defective equipment that should have
been documented under § 56.14100(d). Id.
On July 30, 2020, Inspector Lindsay returned to the mine and again requested pre-shift
and workplace exam paperwork. July 14 Tr. at 40. BC Quarries did not provide the requested
paperwork. Based on BC Quarries’ continued failure to produce the paperwork, Inspector
Lindsay issued Order No. 9523977.
At the hearing, Mr. Karp argued that, because no equipment needed repairs during preshift examinations, there was no need for such equipment to be listed in pre-shift and
workplace-exam paperwork. July 14 Tr. at 49. Inspector Lindsay admitted that, under
§ 56.14100(d), a mine operator does not need to provide paperwork where there are no defects.
Id. at 50. The evidence throughout this hearing demonstrates, however, that there were known
defects that BC Quarries never documented, and that BC Quarries failed to abate. For example,
Orders No. 9523937 and 9523938 involve defects that had been originally cited as violations on
April 2, 2020, were part of Citation No. 9523957—the preceding Citation—and had not been
abated until October 2020. BC Quarries did not produce these records until the preceding
Citation was abated on October 8, 2020. Id. at 41. As such, the evidence demonstrates that there
were at least several months when BC Quarries was aware of the defects but did not record them
as required by § 56.14100. This evidence further indicates that BC Quarries was in violation of
this regulation when Order 9523977 was issued.

17

This regulation states that “[d]efects on self-propelled mobile equipment affecting
safety, which are not corrected immediately, shall be reported to and recorded by the mine
operator. The records shall be kept at the mine or nearest mine office from the date the defects
are recorded, until the defects are corrected. Such records shall be made available for inspection
by an authorized representative of the Secretary.”

44 FMSHRC Page 284

Consequently, the Secretary has demonstrated by a preponderance of the evidence that
BC Quarries did not abate the preceding Citation No. 9523957, thereby violating section 104(b).
Order No. 9523977 is AFFIRMED, and contest Docket No. PENN 2020-0148 is DISMISSED.
The Secretary did not assess a penalty for this violation, and the undersigned declines to do so
now.
L.

Order No. 9523978

In Order No. 9523978, part of contest Docket No. PENN 2020-0149, the Secretary
alleges that BC Quarries violated section 104(b) when it failed to abate the preceding citation,
Citation No. 9523961. Sec’y Ex. 19 at 1. The Secretary issued the preceding Citation
No. 9523961 on June 30, 2020 for a violation of 30 C.F.R. § 56.4430(a).18 Id. at 19. BC Quarries
did not contest the preceding Citation. MDRS. As a result, the preceding Citation is “admitted
and unreviewable.” 30 U.S.C. § 815(a); Apogee Coal, 38 FMSHRC at 32; Kemper, 35 FMSHRC
at 377. The preceding Citation was terminated on October 6, 2020. Sec’y Ex. 19 at 2.
During the July 9, 2020 inspection, Inspector Lindsay saw five-gallon fuel cans
containing gasoline that were not “maintained in a manner to prevent leakage.” July 14 Tr. at 51.
Specifically, the cans “had a plastic bag with trash inside draped over the fill port and the cap
[was] placed on it to prevent leakage.” Id. at 51. Inspector Lindsay issued the preceding Citation
to that effect. Sec’y Ex. 19 at 9.
During the July 30, 2020 inspection, Inspector Lindsay saw five-gallon fuel cans that
“didn’t have any ventilation” and had caps “screwed on tight.” July 14 Tr. at 52. The Secretary
proffered a photo of the cans taken during this inspection. Sec’y Ex. 19 at 4. The photo does not
show any bag filled with trash. Id. Inspector Lindsay also admitted that there was no plastic bag
during this inspection and that BC Quarries had “made an adjustment.” July 14 Tr. at 56.
Mr. Karp also testified that the cans had been changed between the two inspections. Id. at 57.
Order 9523978 is for a violation of 104(b) for a failure to abate the preceding Citation
No. 9523961. The Secretary needs to prove that the violation described in the preceding Citation
existed at the time the Order was issued. Sec’y Br. at 32 (citing Mid-Continent Resources, Inc.,
11 FMSHRC at 509). However, the Secretary has failed to prove that here. The original citation
described the violation as a fuel can “not maintained in a manner that prevents leaks” and “had a
18

As relevant here, this regulation states that “[s]torage tanks for flammable or
combustible liquids shall be:
(1) Capable of withstanding working pressures and stresses and compatible with the type
of liquid stored;
(2) Maintained in a manner that prevents leakage;
(3) Isolated or separated from ignition sources to prevent fire or explosion; and
(4) Vented or otherwise constructed to prevent development of pressure or vacuum as a
result of filling, emptying, or atmospheric temperature changes. Vents for storage
of Class I, II, or IIIA liquids shall be isolated or separated from ignition sources.
These pressure relief requirements do not apply to tanks used for storage of Class
IIIB liquids that are larger than 12,000 gallons in capacity.”

44 FMSHRC Page 285

plastic bag with trash inside draped over the fill port then the cap placed on it.” Sec’y Ex. 19 at 4.
In contrast, Inspector Lindsay, on July 30, 2020, issued the Order for a fuel can that “didn’t have
any ventilation” and “the cap was screwed on tight.” July 14 Tr. at 52. Inspector Lindsay also
admitted—and the photo clearly demonstrates—that there was no plastic bag with trash in it
during the July 30 inspection. Id. at 56; see also, Sec’y Ex. 19 at 4.
The violation described in the preceding Citation did not exist on July 30, 2020. Not only
was there no “plastic bag with trash inside draped over the fill port” with a cap on it, but the
description of the violation was also different during the July 30 inspection. Inspector Lindsay
testified that the July 30 inspection showed fuel cans that lacked ventilation, but the preceding
Citation was for failure to prevent leakages. Compare id. at 52 (describing the fuel can that
“didn’t have any ventilation”) with Sec’y Ex. 19 at 4 (“The five gallon fuel can . . . was not
maintained in a manner that prevents leakage”). While § 56.4430(a) concerns both leakage and
ventilation, the preceding Citation described a violation for a condition—that is, leakage—that
was not present at the time of the subsequent Order.
The Secretary has failed to demonstrate that the violation described in Citation
No. 9523961 existed at the time he issued Order No. 9523978, and the undersigned VACATES
Order No. 9523978.
IV. Penalty Assessment
It is well established that Commission Administrative Law Judges assess civil penalties
de novo for violations of the Act. Section 110(i) of the Act delegates to the Commission the
“authority to assess all civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act
delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). When an
operator contests the proposed penalty, the Secretary petitions the Commission to assess the
proposed penalty. 29 C.F.R. § 2700.28. The Act requires, that “in assessing civil monetary
penalties, the Commission [ALJ] shall consider” six statutory penalty criteria:
[1] the operator’s history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator's ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.
30 U.S.C. § 820(i).
In keeping with this statutory requirement, the Commission has held that “findings of fact
on the statutory penalty criteria must be made” by its judges. Sellersburg Stone Co.,
5 FMSHRC 287, 292 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). Once factual findings on
the statutory penalty criteria have been made, a judge’s penalty assessment for a particular
violation is an exercise of discretion, which is bounded by proper consideration of the statutory
criteria and the deterrent purposes of the Act. Id. at 294; Cantera Green, 22 FMSHRC 616, 620
(May 2000). In exercising this discretion to determine the amount of a penalty, the Commission

44 FMSHRC Page 286

has recognized that a judge is not bound by the penalty proposed by the Secretary. Spartan
Mining Co., 30 FMSHRC 699, 723 (Aug. 2008).
When determining a proper assessment for the violations, the undersigned considered the
following facts: 1) BC Quarries’ history of violations of the relevant standards in the 15 months
prior to the accident (Sec’y Ex. 25); 2) BC Quarries’ size as an operator, who logged 3,000 hours
worked at the mine in 2020 (MDRS); and 3) the fact that the penalties will not have an effect on
BC Quarries’ ability to continue in business (July 13 Tr. at 26).
In addition, the undersigned considered the high level of negligence and zero gravity of
Order No., and 9523975, as well as the failure in good faith to timely correct the violations. For
Orders No. 9523972 and 9523974, the undersigned considered the moderate levels of
negligence, the zero gravity, and BC Quarries’ good faith.
Based upon the undersigned’s consideration of the section 110(i) penalty criteria and the
deterrent purposes of the Act, the undersigned assesses penalties of $125.00 each for Orders No.
9523972 and 9523974 and a penalty of $137.00 for Order No. 9523975. This amount is the result
of an independent determination of the penalty amount based on the statutory criteria that
responds to the seriousness of the violations and will deter future violations. American Coal Co.
v. FMSHRC, 933 F.3d 723, 728 (D.C. Cir. 2019).
V. CONCLUSION
For the foregoing reasons, it is ORDERED that Docket No. PENN 2020-0110 contesting
Citation No. 9523939, Docket No. PENN 2020-0111 contesting Citation No. 9523940, Docket
No. PENN 2020-0112 contesting Citation No. 9523941, Docket No. PENN 2020-0113
contesting Citation No. 9523942, Docket No. PENN 2020-0114 contesting Citation
No. 9523943, Docket No. PENN 2020-0115 contesting Citation No. 9523945, Docket No.
PENN 2020-0141 contesting Citation No. 9523971, and Docket No. PENN 2020-0143
contesting Citation No. 9523973 be DISMISSED.
It is ORDERED that Orders No. 9523936, 9523937, 9523938, 9523975, 9523976, and
9523977 be AFFIRMED, and contest Dockets No. PENN 2020-0116, 0118, 0119, 0145, 0147,
and 0148 be DISMISSED.
It is ORDERED that Order No. 9523958 be MODIFIED from a violation of section
104(b) to a violation of section 104(a); that Orders No. 9523972 and 9523974 be MODIFIED
from high negligence to moderate negligence; that Orders No. 9523958, 9523972, and 9523974

44 FMSHRC Page 287

be AFFIRMED as modified; and that contest Dockets No. PENN 2020-0120, 0142, and 0144 be
DISMISSED.
It is ORDERED that Orders No. 9523970 and 9523978 be VACATED.
It is further ORDERED that the Operator pay a total penalty of $387.00 within thirty
days of this order.19

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

Distribution:
David Karp
BC Quarries, LLC
908 Fox Road
Factoryville, PA 18419
bigfish6344@gmail.com
Ryan Atkinson
Matthew R. Epstein
Office of the Solicitor
U.S. Department of Labor
The Curtis Center
170 S. Independence Mall West
Suite 630 East
Philadelphia, PA 19106-3306
atkinson.ryan.c@dol.gov
epstein.matthew.r@dol.gov
BC Quarries, LLC
Miner’s Representative
908 Fox Road
Dimock, PA 18419

19

Payment should be sent to: Pay.gov, a service of the U.S. Department of the Treasury,
at https://www.pay.gov/public/form/start/67564508 or, alternately, Mine Safety & Health
Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO
63179-0390.

44 FMSHRC Page 288

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

April 19, 2022
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 2021-0090
A.C. No. 41-00009-527340

v.
CACTUS CANYON QUARRIES INC.,
Respondent.

Mine: Fairland Plant & Qys

DECISION AND ORDER
Appearances:

Tina D. Davila, U.S. Department of Labor, Office of the Solicitor, 525
Griffin Street, Suite 501, Dallas, TX 75202
Andy Carson, Cactus Canyon Quarries Inc., 7232 Co. Road 120, Marble
Falls, TX 78654

Before:

Judge Simonton
I.

INTRODUCTION

This case is before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration, against Cactus
Canyon Quarries, Inc. (“Cactus Canyon” or “Respondent”), pursuant to the Federal Mine Safety
and Health Act of 1977 (Mine Act), 30 U.S.C. § 801.1 This case involves three Section 104(a)
citations.
The parties presented testimony and documentary evidence at a virtual hearing held on
September 21–22, 2021. MSHA Inspector Ty Fisher testified for the Secretary. Cactus Canyon
employees Esmael Garcia and Jesus Garcia and president Andy Carson testified for Respondent.
After fully considering the testimony and evidence presented at hearing and the parties’ posthearing briefs, I AFFIRM Citation No. 9641812, as modified herein, and VACATE Citation
Nos. 9641813 and 9641814.
1

In this decision, the joint stipulations, transcript, Petitioner’s exhibits, and Respondent’s
exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. P–#,” and “Ex. R–#,” respectively.

44 FMSHRC Page 289

II.

STIPULATIONS OF FACT

At hearing, the parties agreed to the following stipulations:
1. Cactus Canyon Quarries, Fairland Plant & Qys is a mine as defined under section 3(h) of
the Mine Act, 30 U.S.C. § 802(h).
2. The mine is subject to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq.
3. Respondent is subject to the jurisdiction of the Federal Mine Safety and Health Review
Commission and the presiding Administrative Law Judge has the authority to hear the
case and issue a decision.
4. At all times relevant to these proceedings, the products of the subject mine enter into
commerce or the operations of products thereof which affect commerce within the
meaning and scope of the Mine Act.
5. Copies of the citations and contest are authentic, and a copy was served on the
Respondent by an authorized representative of the Secretary employed by the Mine
Safety and Health Administration.
6. The individual whose signature appears on block 22 of the citation at issue in this
proceeding is an authorized representative of the United States of America, Secretary of
Labor assigned to MSHA, and was acting in his official capacity when issuing the
citations at issue in this proceeding.
7. Respondent timely contested the violations.
8. Respondent abated the citations timely and in good faith.
Tr. 10-18.
III.

FINDINGS OF FACT AND SUMMARY OF TESTIMONY

Cactus Canyon operates Fairland Plant and Qys, a small mine located in Marble Falls,
Texas, that produces and sells over thirty colors of various size marbles to the terrazzo industry.
Tr. II 79. On November 5, 2020, MSHA mine safety and health specialist Ty Fisher,2 who was a
mine safety and health inspector for MSHA at that time, conducted an inspection of the mine.
Tr. I 117-18. During the inspection, Fisher issued the three citations contested in this proceeding.
Fisher testified that he issued one citation when he determined that the low brake pressure alarm
on the #34 yellow International end dump truck at the mine was not functioning. Tr. I 118; Ex.
2

At the time of the hearing, Ty Fisher had worked at MSHA for two years and ten
months. Tr. I 117. He has worked in the mining industry for well over 30 years. See Tr. I 287.

44 FMSHRC Page 290

P-3. He explained that the purpose of the vehicle’s low brake pressure alarm is to alert the driver
when the reservoir air tank reaches 50 or 60 percent of its normal operating capacity. Tr. I 11819. When pressure is lost in the tank, less pressure is applied when the driver engages the brakes,
and the alarm exists to warn the driver of this reduced braking capability. Tr. I 118-19. Fisher
testified that the cited truck was loaded at the time of inspection, and a loaded truck with reduced
braking capacity is hazard because an operator may not be able to stop the vehicle. Tr. I 121,
184. To terminate the citation, the mine repaired the alarm that same day. Ex. P-3 at 2.
Cactus Canyon employee Esmael “Izzy” Garcia3 confirmed that at the time of the
inspection the truck was loaded and available to be driven, and that the low brake pressure alarm
on the truck did not function when tested. Tr. I 53-54. He said this truck is used two to three
times per day. Tr. I 57-58. He accompanied the inspector during the inspection and helped him
test all of the trucks. Tr. II 28. He recounted that, on this truck, every component of the brake
system was fully functional other than the low brake pressure alarm. Tr. II 31. When asked if the
low brake pressure alarm is part of the truck’s brake system, he answered that it is not. Tr. II 72.
Esmael Garcia expressed his understanding that a low brake pressure alarm does not affect any
part of the brake system. Tr. II 37. In other words, whether the alarm is working or not, it has no
bearing on whether the vehicle can properly brake or not; a nonfunctioning alarm will not cause
the truck to lose braking capability. Tr. II 39-40. He further explained that in a situation where
the air pressure was low and the alarm did not activate, the driver of the vehicle would
nevertheless be on notice that the pressure was low because the truck is equipped with pressure
gauges for both the air tanks in the vehicle. Tr. II 38, 72. Both of these gauges were functioning
properly. Tr. I 216.
Cactus Canyon employee Jesus Garcia4 also testified that the low brake pressure alarm
was not working during the inspection, and that the truck in question is generally used two to
three times per day. Tr. I 91-93. Before the inspection at issue, he did not know the purpose of
the low brake pressure alarm and said at hearing that in his 40 years at the mine, “no one has
ever said anything about those alarms.” Tr. I 92. Jesus Garcia fixed the low brake pressure alarm
to terminate the citation. Tr. II 7.
At hearing, mine president Andy Carson did not contest that the low brake pressure alarm
on the #34 truck was not functioning. However, he asserted that the alarm was not a part of the
truck’s brake system, since it “reports on the status of the system” but “does not affect the system
itself.” Tr. II 94. He testified that the alarm was essentially unnecessary at the mine because the
gauges worked, and the alarm’s purpose was to give a driver time to pull off the road or
highway, which would not be necessary at the mine because it has no traffic and imposes a speed
limit of 10 miles per hour. Tr. II 93, 97.

3

Esmael Garcia has worked at Cactus Canyon for 15 years as a general laborer and
mechanic. Tr. I 43-47. He holds a commercial driver’s license. Tr. II 27.
4

Jesus Garcia has worked as a laborer at Cactus Canyon for approximately 40 years. Tr. I

81-83.

44 FMSHRC Page 291

After issuing the citation for the brake pressure alarm, Fisher issued citations for two
other trucks in service at the mine, both of which were cited for inoperable windshield wipers.
Tr. I 151-52, 158-59; Exs. P-8, P-10. The first was the yellow #3 International end dump truck,
and the second was the white Ford F8000 end dump truck parked next to it. Exs. P-8, P-10; Tr. I
158. Through conversations with the miners on site, Fisher determined that both trucks were
available and ready to be used. Tr. I 152, 158-59. When tested, the windshield wipers on both
trucks failed to function. Tr. I 151, 158. Fisher testified that he believed the nonfunctioning
wipers posed a hazard because, if a storm were to come on suddenly and the trucks were not near
a parking area or somewhere else that they could be parked instantaneously, they may need to be
operated in the inclement weather. Tr. I 155. He also noted that the wipers are necessary because
there could be dusty conditions where dust needs to be wiped off the windshield if the sunlight
hits it and causes a reflection the driver cannot see through. Tr. I 156. To terminate these
citations, the mine repaired the wipers on both trucks. Exs. P-8 at 2, P-10 at 2.
Esmael Garcia, Jesus Garcia, and Andy Carson all acknowledged that the windshield
wipers were not functioning on these two trucks. See Tr. I 60-61, 69, 110; Tr. II 102. However,
they all testified that windshield wipers are essentially unnecessary on the trucks at the mine
because of certain unique facts about this operation and the product it produces. Cactus Canyon
produces terrazzo marbles as well as some landscaping stones. Tr. II 79-81. While the
landscaping stones can get wet, Carson explained that the terrazzo marbles cannot get wet or
dusty. Tr. II 81. This is because the product is eventually mixed with epoxy, so water will ruin
the mixture, and any dust will likewise ruin the final product by changing the end color. Tr. II 81.
Accordingly, the mine needs to pay particular attention to keeping the product dry and dust free.
Tr. II 81-82. Both Esmael Garcia and Jesus Garcia confirmed that the mine does not operate in
inclement weather and testified that all employees at the mine are aware of this policy. Tr. I 65;
Tr. II 9, 57, 59. Further highlighting the mine’s adherence to the policy, Esmael Garcia testified
that in his 15 years of working at the mine he has never been driving one of the trucks when it
started raining. Tr. I 65.
Due to the unique nature of the product the mine produces, Cactus Canyon must wash its
trucks very frequently. Andy Carson testified that the mine produces over 30 colors of terrazzo
marbles. Tr. II 79-80. Esmael Garcia testified that the trucks need to be clean so that the various
colors do not mix with one another. Tr. I 55. He specified that the trucks are washed out between
uses, and that the windshields are washed in addition to the bed and back of the trucks. Tr. I 5556. Jesus Garcia also testified that the trucks are washed before being loaded with a different
color and that when performing this task, employees wash the entire truck, not just the truck bed.
Tr. II 14-15.
Fisher testified that if there had been signage in the vehicles prohibiting their use during
any hazard that would occur because of obstructed vision, he would not have written the citations
for nonfunctioning windshield wipers. Tr. I 286. He did explain that had this been the case, he
would have still recommended that the mine fix the wipers because, though sometimes
acceptable, “administrative controls are never a good way to go.” Tr. I 286.

44 FMSHRC Page 292

IV.

DISPOSITION

A. Citation No. 9641812
During his inspection on November 5, 2020, Fisher issued section 104(a) Citation No.
9641812, which alleged:
The air brake system on the #34 yellow International end dump truck with serial
#1HSLCHYN5GHA6607 & model #1754 with a Manufactures date of
06/27/1986 was not maintained in functional condition. When inspected the
operator (CDL license holder) demonstrated the correct method of testing the low
brake pressure alarm, the low brake pressure alarm system failed to work in two
attempts. This safety defect is an intricate part of the air brake system and when it
is not maintained in a functional state affects the safe operation of the truck
exposing the operator to injuries from a failed brake system.
Ex. P-3 at 1. Fisher designated the citation as a non-significant and substantial violation of 30
C.F.R. § 56.14101(a)(3) that was unlikely to cause an injury that could reasonably be expected to
result in “lost workdays or restricted duty,” would affect one miner, and was caused by Cactus
Canyon’s moderate negligence. Ex. P-3; Tr. I 134-35.
i.

Fact of Violation

The Commission has long held that “[i]n an enforcement action before the Commission,
the Secretary bears the burden of proving any alleged violation.” Jim Walter Res., Inc., 9
FMSHRC 903, 907 (May 1987); Wyoming Fuel Co., 14 FMSHRC 1282, 1294 (Aug. 1992). To
prevail, the Secretary must prove any cited violation “by a preponderance of the evidence.”
Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989). For the reasons that
follow, I find that the Secretary has presented sufficient evidence to show that Cactus Canyon
violated 30 C.F.R. § 56.1401(a)(3).
The regulation mandates that “[a]ll braking systems installed on the equipment shall be
maintained in functional condition.” 30 C.F.R. § 56.1401(a)(3). The parties agree that the #34
yellow International end dump truck in question was equipped with a low pressure warning
signal, and that the signal was not functioning at the time of the inspection. Tr. I 53, 91, 118. The
Secretary maintains that the low brake pressure alarm on the truck is a part of the equipment’s air
brake system. Tr. I 150; Petitioner’s Post-Hearing Brief (“Sec’y Br.”) at 3. The
Secretary asserts that because the alarm is a component of the braking system, and because the
alarm was not functioning, the fact of violation should be affirmed. Sec’y Br. at 3.
Cactus Canyon asserts that 30 C.F.R. § 56.14101(a)(3) is inapplicable to the
nonfunctioning low brake pressure alarm cited by the inspector. Respondent’s Post-Hearing
Brief (“Resp. Br.”) at 17-20. Respondent argues that the low brake pressure alarm is not a part of
the vehicle’s “brake system” because the alarm cannot cause the brakes to fail; it is merely a

44 FMSHRC Page 293

signal that reports on the functioning of the air brake system. Id. at 19. Accordingly, Respondent
maintains the violation should be vacated. Despite Respondent’s fixation on this point, this
inquiry does not center on a determination of whether the alarm’s status as functional or not
functional affects the braking capability of the vehicle. In fact, it is reasonably apparent from the
facts established at hearing that the nonfunctioning alarm, which had not functioned in a long
time, had no bearing on the actual braking capability of the truck. The low brake pressure alarm
is a signal that alerts the vehicle’s operator to a loss of air pressure. Tr. I 118-19, 190-91. The
signal was not functioning, but at the time of inspection, the truck’s brakes worked just fine. Tr. I
58, 141; Tr. II 31-32.
The proper inquiry here is simply whether the low brake pressure alarm is a component
of the #34 truck’s “braking systems,” and thus must be maintained in functional condition under
30 C.F.R. § 56.14101(a)(3). In Daanen & Jansen, Inc., the Commission considered this same
standard in a case involving rear adjusting bolts that had become frozen in place. 20 FMSHRC
189 (Mar. 1998). In that case, the respondent asserted that “the standard’s plain language
requires a finding of violation only when the braking system fails to serve its primary purpose of
stopping and holding the vehicle.” Id. at 191-92. The Secretary countered that “the plain
language of the standard mandates a finding of violation when a component of the braking
system is not maintained in functional condition, regardless of whether the braking system is
capable of holding and stopping the vehicle.” Id. at 192. Alternatively, the Secretary argued that
her interpretation of the standard, as outlined in MSHA’s Program Policy Manual, was
reasonable and entitled to deference. Id. The Commission determined that the language of
section 56.14101(a)(3) supported at least two plausible and divergent interpretations, and
accordingly found that it was ambiguous. Id. at 192-93. The Commission then examined the
Secretary’s interpretation and found that it was consistent with the language of the regulation,
that it advanced the Mine Act’s goal of protecting miner safety, that it had been consistently
applied, and that it gave meaning to all subsections of the standard. Id. at 193-94.
In making its findings, the Commission in Daanen & Jansen looked at the common
usage of the word “system,” and determined that, “[b]ecause the definition of the term ‘system’
entails an interrelationship of component parts, it follows that for the system to be considered
functional, each of its component parts must be functional.” Id. at 193. Additionally, the
Commission explained that the Secretary’s interpretation of the standard allows for a violation to
be issued before the entire braking system fails, and that this preventative interpretation advances
the Mine Act’s goal of protecting miners because it seeks to cure defects before accidents occur.
Id. The Commission also determined that the Secretary’s interpretation of the standard embodied
in the citation had been consistently applied and was succinctly stated in MSHA’s Program
Policy Manual. 5 Id. at 194.

5

MSHA’s preventative interpretation analyzed in Daanen & Jansen remains the same all
these years later: “Standard [56].14101(a)(3) should be cited if a component or portion of any
braking system on the equipment is not maintained in functional condition even though the
braking system is in compliance with (1) and/or (2) above.” IV MSHA, U.S. Dep’t of Labor,
Program Policy Manual, Parts 56/57, at 51 (2003).

44 FMSHRC Page 294

As in Daanen & Jansen, it is undisputed in this case that the component at issue failed to
perform its designated function—the low brake pressure alarm did not work. As anyone who
drives a car can understand, a brake system on a vehicle serves the common purpose of slowing
and stopping the vehicle when its operator determines that doing so is desired or necessary. Even
if the low brake pressure alarm does not actually cause the vehicle to slow or stop, it serves this
common purpose by alerting the driver of the truck to reduced braking capacity. As Fisher
explained at hearing, if the brake pressure is low and the alarm is not working, an operator may
not be on notice that the truck has reduced braking capability and the truck might become a
runaway. Tr. I 184, 198, 211. Obviously, this functionality is directly related to the purpose of
the braking system as a whole. The alarm’s inclusion as part of the system is further
demonstrated in a handout carried by the inspector to help him explain the components of brake
systems to mine operators. Ex. P-7, at 5; Tr. I 149-50.
Respondent highlighted the fact that the low brake pressure alarm is essentially redundant
where the truck in question had fully functional, accurate pressure gauges that convey to the
operator the air pressure in both air tanks at any given time. Resp. Br. at 20. This safety feature,
though it may be redundant, does not obviate the requirement to maintain the alarm under section
56.14101(a)(3). The standard requires that “all” components be functional, and, since the
warning signal is a component of the braking system and was not functioning, Cactus Canyon
has violated the standard.
I find that the low brake air pressure alarm is, unquestionably, a component of the brake
system of the #34 dump truck, that the alarm was not functioning at the time of inspection, and
thus conclude that Cactus Canyon violated section 56.14101(a)(3). Accordingly, Citation No.
9641812 is AFFIRMED, as modified below.
ii.

Gravity

Fisher designated the citation as unlikely to cause an injury that could reasonably be
expected to result in lost workdays or restricted duty. Ex. P-3. He explained at hearing that he
marked the citation as “unlikely” because the brakes had no air leaks at the time of inspection,
the horn on the truck is electric and would not use any air from the air tank when used, the air
tanks are drained of moisture daily, and there is only one slope on the mine site. Tr. I 140-41. He
further explained that he marked “lost workdays or restricted duty” because the driver is the only
person who was likely to be affected by the hazard, and whiplash would be the most likely
injury. Tr. I 143-44.
I find the gravity designations made by the inspector to be appropriate. The
nonfunctioning low brake pressure alarm was unlikely to cause an injury because the air tanks
were holding pressure, the tanks are drained of moisture daily, and there is only one slope at the
mine site. The #34 truck is only used two or three times per day on mostly flat ground at low
speeds. Tr. I 143-44. Fisher determined only one person—the driver—would be affected by this
violation. Tr. I 144. I find that Fisher properly designated this violation as unlikely to cause an
injury that could result in lost workdays or restricted duty and as affecting one person.

44 FMSHRC Page 295

iii.

Negligence

Under the Mine Act, operators are held to a high standard of care, and must “be on the
alert for conditions and practices in the mine that affect the safety or health of miners and to take
steps necessary to correct or prevent hazardous conditions or practices.” 30 C.F.R. § 100.3(d).
Fisher determined this violation was the result of Cactus Canyon’s moderate negligence because
“no one seemed to know that the trucks had a low brake pressure alarm system.” Tr. I 144-45.
Pursuant to the Secretary’s regulations, negligence is considered moderate when “the operator
knew or should have known of the violative condition or practice, but there are mitigating
circumstances.” 30 C.F.R. § 100.3: Table X.
Unlike MSHA, however, the Commission and its judges determine whether an operator
has met its duty of care using a traditional negligence analysis, considering the “totality of the
circumstances holistically,” including “what actions would have been taken under the same
circumstances by a reasonably prudent person familiar with the mining industry, the relevant
facts, and the protective purpose of the regulation.” Brody Mining, LLC, 37 FMSHRC 1687,
1702 (Aug. 2015). In this case, Carson and his employees were unaware of the existence of the
low brake pressure alarm but should have been aware of it. Esmael Garcia had his commercial
driver’s license and had been trained to perform the tests that would have detected the
nonfunctioning alarm. Tr. II 29-30. A reasonably prudent person familiar with the mining
industry likely would have taken the vehicle out of service until each component of the braking
system was working properly. However, since Carson and his employees were not aware of the
alarm and utilized the functioning gauges to determine whether the air tanks were holding
pressure, I reduce Cactus Canyon’s negligence from moderate to low for this citation.
B. Citation Nos. 9641813 and 9641814
Fisher issued nearly identical citations for the yellow #3 International end dump truck
and the white Ford F8000 end dump truck, stating for each that the windshield wipers:
did not work when tested. This condition increases the risk of collision with other
equipment during dusty or inclement weather conditions exposing miners to
injury. The loader was not taken out of service, marked or tagged out of service,
parked in a designated area for equipment with defects, or was there any posting
warning of this defect. Mine operator stated that the truck was parked in an area
for operational and ready to be used equipment with another truck. There was no
tag or energy isolation locking device on the truck.
Exs. P-8 at 1, P-10 at 1. Fisher designated the citations as non-significant and substantial
violations of 30 C.F.R. § 56.14100(c) that were unlikely to cause injuries that could reasonably
be expected to result in “lost workdays or restricted duty,” would affect one miner, and were
caused by Cactus Canyon’s moderate negligence. Exs. P-8 at 1, P-10 at 1.

44 FMSHRC Page 296

i.

Fact of Violation

The cited standard mandates that
[w]hen defects make continued operation hazardous to persons, the defective
items including self-propelled mobile equipment shall be taken out of service and
placed in a designated area posted for that purpose, or a tag or other effective
method of marking the defective items shall be used to prohibit further use until
the defects are corrected.
30 C.F.R. § 56.14100(c).
Fisher testified that at the time of inspection the windshields of the two cited trucks were
not perfectly clean but were “good.” He explained, however, that the defective wipers made
continued operation hazardous because dust can come up from equipment traveling throughout
the mine site, and obstructed vision could cause an injury. Tr. I 273. He also testified that a storm
requiring the use of the wipers could come on suddenly, even though the mine does not generally
operate in inclement weather. Tr. I 155-56. Accordingly, the Secretary asserts that these citations
should be upheld because the operation is inherently dusty, and the water used to control dust as
well as the water used to wash out the trucks could cause dust to stick to the windshields and
impair visibility. Sec’y Br. at 9-10. The Secretary contends that because the windshields could
get dusty, continued operation of these two trucks was hazardous.
Cactus Canyon argues that these citations should be vacated because there was “no
likelihood” of an obscured windshield that could be corrected by functioning windshield wipers.
Resp. Br. at 16-17. At hearing, Carson expressed his opinion that “the hazard determination that
there was some sort of danger. . . to health or safety does not have support.” Tr. II 101.
Given the relevant facts, I agree. The standard mandates that defective equipment be
taken out of service “[w]hen defects make continued operation hazardous to persons.” 30 C.F.R.
§ 56.14100(c). It is undisputed that the windshield wipers were not functioning on either of these
two trucks. See Tr. I 60-61, 69, 109-110. The broken wipers made the equipment defective.
However, these defects did not make continued operation hazardous to persons at the mine. It is
well established that Cactus Canyon does not operate in windy or rainy conditions and washes its
trucks very frequently. Additionally, these vehicles are never operated outside of the mine, and
are only used on site over a short distance at a maximum speed of 10 miles per hour. Tr. II 48,
93. Given these very unique facts, I find that the Secretary has failed to establish that the broken
windshield wipers made continued operation of these two trucks hazardous.
I find it is worth noting here that Fisher acknowledged that Cactus Canyon employees
told him they shut down operations in the rain and that he considered the fact that employees
shut down the plant “when they’re supposed to.” Tr. I 236, 238. He later testified that had there
been a notice in the vehicles informing employees not to operate in the rain, he would not have
written the citations for the nonfunctioning wipers. Tr. I 283-84. While it may not have been
established to the inspector’s liking at the time of inspection, I find that there was a wellunderstood policy at the mine to discontinue operations in windy and rainy conditions or when
there was a sufficient chance of such conditions. Though unwritten, the very policy that would

44 FMSHRC Page 297

have prevented Fisher from issuing these citations was in place and adhered to by all employees.
In almost any other situation involving motor vehicles, it would be hazardous to operate without
functioning wipers. In this unique circumstance, however, I find the Secretary has failed to meet
its burden of proving a violation of section 56.14100(c) by a preponderance of the credible
evidence. Accordingly, Citation Nos. 9641813 and 9641814 are VACATED.
V.

PENALTY

It is well established that Commission administrative law judges have the authority to
assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Co., 5 FMSHRC
287, 291 (Mar. 1983). The Act requires that in assessing civil monetary penalties, the
Commission ALJ shall consider the six statutory penalty criteria:
(1) the operator’s history of previous violations, (2) the appropriateness of such penalty to
the size of the business of the operator charged, (3) whether the operator was negligent,
(4) the effect on the operator’s ability to continue in business, (5) the gravity of the
violation, and (6) the demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of a violation.
30 U.S.C. § 820(i).
For Citation No. 9641812, the Secretary proposed a regularly assessed penalty of
$123.00. Ex. P-2. Cactus Canyon has a minimal violation history and is a relatively small
operation. Id. Respondent presented no evidence regarding whether payment of the proposed
penalty would affect its ability to continue in business. As discussed above, I find that this nonsignificant and substantial violation was unlikely to result in an injury causing lost workdays or
restricted duty and was the result of Cactus Canyon’s low negligence. Finally, Cactus Canyon
demonstrated good faith in achieving rapid compliance after the citation was issued. Jt. Stip. 8.
Considering these factors, I find that the proposed penalty of $123.00 is appropriate for this
violation.
VI.

ORDER

It is hereby ORDERED that Citation No. 9641812 is AFFIRMED, as modified to
reduce the degree of negligence to “low,” and that Citation Nos. 9641813 and 9641814 are

44 FMSHRC Page 298

VACATED. Respondent is hereby ORDERED to pay the Secretary $123.00 within 40 days of
this order.6

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

Distribution: (Electronic and U.S. First Class mail)
Tina D. Davila, U.S. Department of Labor, Office of the Solicitor, 525 Griffin Street, Suite 501,
Dallas, TX 75202, davila.tina@dol.gov
Andy Carson, Cactus Canyon Quarries Inc., 7232 County Road 120, Marble Falls, TX 78654,
acarsonmarblefalls@aol.com

6

Please pay penalties electronically at Pay.Gov, a service of the U.S. Department of the
Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment
(check or money order) to: U.S. Department of Treasury, Mine Safety and Health Administration
P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. Numbers.

44 FMSHRC Page 299

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE N. W., SUITE 520N
WASHINGTON, D.C. 20004-1710
TELEPHONE NO.: 202-434-9933
TELECOPIER NO.: 202-434-9949

April 29, 2022
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 2021-0019
A.C. No. 36-07230-524717

v.
CONSOL PENNSYLVANIA COAL
COMPANY LLC,
Respondent

Mine: Bailey Mine

DECISION AND ORDER
and
RULING ON MOTION FOR ADVERSE INFERENCE
Appearances:

Ryan M. Kooi, Esq., U.S. Department of Labor, Office of the Solicitor,
Philadelphia, Pennsylvania for the Petitioner
Patrick W. Dennison, Esq., Fisher & Phillips LLP, Pittsburgh,
Pennsylvania for the Respondent

Before:

Judge William B. Moran

This matter involves an accident which occurred on July 17, 2020 at Respondent Consol
Pennsylvania Coal Company’s Bailey Mine when six fully loaded rail supply cars broke loose
from the brakeman car and traveled out of control down the mine’s Crabapple slope some 1,600
feet before crashing into the coal seam at the slope’s bottom. The case primarily1 concerns the
validity of two citations which were issued following that accident, Citation Nos. 7033990 and
7033991. The citations were issued upon reliance of two notices to provide safeguards, which
notices were issued nearly nine years earlier, on October 25, 2011. Respondent challenges the
applicability of those safeguard notices to the July 2020 accident. Throughout the hearing the
1

Well over 90% of the hearing involved the safeguard issues. A third citation cited a
non-functional parking brake on a truck. This is not to say that the brake issue was
inconsequential but only that it did not consume much time. For that matter, the Respondent
admits to the brake violation, but challenges the “significant and substantial” finding. As
explained within, the Court finds that the violation was significant and substantial. Two other
matters were also part of this docket, Citation Nos. 9203766 and 9201843. The Secretary vacated
Citation No. 9203766. Vol. I, Tr. 9-10. Citation No. 9201843 was settled. Already assessed at the
minimum penalty, $123.00, the settlement, which is APPROVED, modified the evaluation to
lost workdays/restricted duty.

44 FMSHRC Page 300

“accident” was often referred to as the “incident.” Both terms apply to the same event. During
the course of the three-day hearing, a secondary issue arose concerning the appropriateness of
the Court making an adverse inference on the grounds of spoliation of evidence, to wit a failure
by the Respondent to preserve evidence of a component of a car’s coupler known as a key stock.
For the reasons which follow, the Court finds that the underlying notices to provide
safeguard are fully applicable to the conditions identified in the citations and that an adverse
inference is warranted.
Preliminary Information
Before addressing the particular findings of fact, it is necessary to set forth the Notices to
provide safeguards which were the foundation for the citations in this litigation. Safeguards are
derived from 30 U.S.C.874(b) of the Mine Act which provides “Other safeguards adequate, in
the judgment of an authorized representative of the Secretary, to minimize hazards with respect
to transportation of men and materials shall be provided.”
First, there is Notice to Provide Safeguard No. 7070545, issued on October 25, 2011. It
provided: “Condition or Practice. During an accident investigation which began on 10-19-2011 it
was determined the Company No. 32 general supply car was not being properly maintained.
The supply car was the lead car attached to the Slope Hoist Brakeman Car that became uncoupled causing six rail mounted cars to travel approximately 1700 feet down the slope track
uncontrolled. The #32 supply car was found at the bottom of the Slope Track with the metal
eyelets used to connect the safety chains broken off. The condition exposes miners to serious
injury resulting in a fatality from being struck by runaway supply cars. This is a notice to
provide safeguard requiring all rolling stock to have properly maintained safety chains and
safety chain connection points. It also requires all rolling stock to be examined prior to
being hoisted or transported in or out of the slope as well as throughout the mine. If any
defects are found the rolling stock shall be immediately removed from service. Finally all
persons involved in the operation or movement of rolling stock and other types of rail
mounted equipment equipped with couplers will be trained in an inspection procedure to
determine when defects are present.”2 Ex. P 2 (emphasis added).
The Court finds that the safeguard notice is plain and direct with its requirements that all
rolling stock is to have properly maintained safety chains and safety chain connection points and
that all rolling stock is be examined prior to being hoisted or transported in or out of the slope
and if defects are found, the stock is to be immediately removed from service. Last, those
involved with the operation or use of rolling stock must be trained as to the inspection procedure
so that they can determine when defects are present.

2

Later, the safeguard was modified to eliminate the phrase “as well as throughout the
mine.” It added that “[t]here are safeguards already in place that do not require the use of both
safety chain connection points to be used when transporting rolling stock through the mine. Ex. P
2.

44 FMSHRC Page 301

The second Notice to Provide Safeguard, No. 7070546, arising out of the same accident
that resulted in Safeguard, No. 7070545, was also issued on October 25, 2011. It provided:
“Condition or Practice. Based on an accident investigation conducted on 10-19-2011 it was
determined that the coupler and mounting bracket on the Slope Brakeman Car is not being
maintained. The condition resulted in four supply cars and two dollies becoming uncoupled
from the brakeman car and travel uncontrolled down the slope track into the mine. This condition
exposes miners to serious injury from being struck by runaway supply cars. This is a notice to
provide safeguard requiring that the slope brakeman car and all rolling stock will [be]
provided with properly maintained couplers. This also requires all couplers on rolling
stock to be examined prior to being hoisted and prior to being transported throughout the
mine. When defects are found the couplers will be removed from service. Finally[,] all persons
involved in the operation or movement of rolling stock and other types of rail mounted
equipment equipped with couplers will be trained in an inspection procedure to determine when
defects are present.” Ex. P 4 (emphasis added).
The Court finds that this safeguard notice is equally plain and direct with its requirements
that the slope brakeman car and all rolling stock will provided with properly maintained
couplers. As with the first notice to provide safeguard, the second notice also required that all
couplers on rolling stock are to be examined prior to being hoisted and prior to being transported
throughout the mine. So too, it required that when defects are found, couplers are to be removed
from service and, to make that requirement effective, it also required that all persons involved in
the operation or movement of rolling stock and other types of rail mounted equipment equipped
with couplers must be trained in an inspection procedure to determine when defects are present.
Accordingly, based on the two safeguard notices issued in October 2011, when reduced
to their core requirements, as pertinent to this proceeding, the Court is to determine, by a
preponderance of the evidence, whether the Secretary established that the rolling stock did not
have properly maintained safety chains and safety chain connection points and whether the slope
brakeman car and all rolling stock were not provided with properly maintained couplers.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The hearing, a three-day affair, commenced on November 30, 2022. The Secretary called
Joseph A. Vargo as his first witness. Vol. I, Tr. 26.3 Vargo is an electrical specialist with MSHA,
working out of its Waynesburg field office. An interesting aspect of his work history, Vargo had
been employed at the Bailey Mine. The mine is located in Crabapple, Pennsylvania. He left that
employment to join MSHA in August of 2007. Tr. 152.
Vargo informed that MSHA’s Walter ‘Bud’ Young participated in the accident
investigation involved in this case and that he was the administration’s lead person in the matter.
Tr. 33-34, 45. Directed to his notes for this event, Vargo confirmed that he arrived at the mine to

3

Once a new day and therefore a new Transcript Volume occurs, the Court marks that
event with the new Volume involved, but it does so only once, with subsequent transcript pages
referring only to the new transcript pages for the succeeding day.

44 FMSHRC Page 302

start his investigation on July 17, 2020, at 13:55.4 Tr, 39, 42. At that time they met with Randy,
‘Rusty,’ McHenry, mine foreman and Mike Tenant, mine safety director. The MSHA
investigators spoke with Danny Williams, the hoist operator. Williams informed that at the start
of the shift “they had a trip of cars that was already loaded, and he [Williams] had the cars
pushed up to the brakeman car where he made the connection point for the couplers, and he
checked the safety chains on the trip at that time.” Tr. 45-46. The cars are lowered into the mine
on an incline (i.e. on a slope). Tr. 226. Six loaded cars, weighing some 94 tons, were to be
dropped into the mine. Tr. 47. The cars were rail mounted. Tr. 123. The cars were connected to
the brakeman car as follows: “The first car that was attached to the brakeman car was the strap5
car. [That strap car] … would be No. 1. No. 2 and 3 would be general cars. No. 4 and 5 would be
slag cars, and the last car would be another strap car.” Tr. 49. The first strap car was further
identified as the ‘187 strap car.’ Vol. II, Tr. 124.
Importantly, the brakeman car, which was also referred to as the “hoist car” and “brake
car,” during the hearing, was connected to the first strap car by a coupler and two safety chains.
Id. The coupler is the primary connection point between cars, and that is the case whether that be
the brake car to a car, or a car connected to another car. Tr. 87. Thus, couplers also connect
supply cars to each other. Safety chains are secondary connection points; there are two such
chains on each car connection. For the chains connecting the brakeman car to the first strap car,
one was measured to be 52 inches and the other was 61 inches. Tr. 50. Plainly, the two chains
were not of equal length. As the process to drop the cars into the mine began, the cars went over
“the knuckle,” which is a small hill, and from that point started down the slope track. That
brakeman car, which is connected to the drum cable, pushed the six cars initially, but once the
cars passed the knuckle, it’s gravity that is causing the cars to move down the slope. Tr. 51.
However, at about 400 feet, the cars went into overspeed. That overspeed caused the hoist drum
to activate the brakes on the brake car. Id.
6

Vargo elaborated that “[o]nce the overspeed condition activated, the hoist acted as it
should when in overspeed condition. It stopped the brake car immediately. Which at that point,
the coupler failed on the strap car, pulled out [from it], and then simultaneously, one of the
chains failed. And in exactly milliseconds after that, the other chain failed. And at that
point, the six cars traveled to [the] slope bottom in an uncontrolled manner.” Tr. 52.
(emphasis added). The cars then sped down the slope at a rate of more than 600 feet per minute.
Id. To be clear, all six cars went down the slope; all that remained at the top of the slope was the
hoist car and the detached coupler from the first car. See also, Transcript VII at 88, testimony of
hoist operator Williams. The 600 feet per minute rate of speed is intended for personnel travel,
not for supplies. Tr. 54. For supplies, the normal rate of speed is to be 300 feet per minute. Tr.

4

Ex. P-8, consisting of 111 pages, which exhibit includes Vargo’s notes. Tr. 38.

5

The ‘strap’ car refers to contents of straps, bolts and resins. Tr. 47.

6

As noted, the terms ‘brakeman car,’ ‘brake car’ and ‘hoist car,’ all refer to the same car
in this litigation. VII Tr. 41.

44 FMSHRC Page 303

56. When the event occurred, the hoist man initially thought that the hoist rope7 had broken. He
then went to the slope track opening, where he discovered that the hoist [i.e. brake] car was still
present. Tr. 56. That meant that the hoist rope did not break. The hoist man then traveled down
the slope track and when he came to the brakeman car8 he saw that the coupler had pulled out of
strap car and was still attached to the brakeman car. Tr. 57-58.
After checking the hoist house itself, and finding nothing wrong there, Vargo then
inspected the brakeman car, where he found, as just noted, “a coupler that was pulled out of a car
and was still attached to the brakeman car.” Tr. 58. Vargo observed some damage to the coupler.
It was pulled out and its “sandwich plates, the rubber plates were bent back a little bit, and the
draft gear9 had some rounded edge on it, on the front of it.” Id. He also saw that “two couplers,
clevises that [were] still attached to the brakeman car.” Tr. 59. A clevis is horseshoe shaped
piece of metal that has a pin through it. It is also called a shackle. V II, Tr. 135. Its primary use is
as a connection point. Vol I, Tr. 89. Vargo informed that those clevises “were spread apart
slightly, and the pin was broke out, and the part that screws into the clevis was still remaining
inside of the clevis.” Tr. 59. The clevis is not part of the coupler. It functions to connect the
safety chains to the brakeman car. Id.
Following that first visit, on July 23rd Vargo made a second visit to the mine,
accompanied by Mike Snyder with MSHA’s Tech Support. They went underground to the
location where the cars crashed. Tr. 63-64. Vargo described Snyder as an engineer and a wire
rope specialist. Id. and Ex. P 6, photos taken on that earlier, July 17, visit by Bud Young. Tr. 6768.
Vargo was then directed to Ex. P 7, which consists of 76 pages. They pertain to photos
that were taken on July 23, 2020 by Mr. Snyder. Vargo was present when they were taken. Tr.
73. There is no dispute that the first strap car, the car attached to the brakeman car, shows that its
coupler is missing. Tr. 77-78. This was the car from which its coupler pulled out. Tr. 79. Vargo
identified, within photos 2 and 3 of P 7, the compartment or hole where the coupler assembly is
normally to reside and the key stocks, which are also in that location. In part, key stocks serve to
keep the draft gear assembly from moving back towards the center of the car. Vargo expressed
the view that the key stocks looked like something was rubbing on them. Tr. 83. A different
photo showed the front key stock. For those front key stocks, their purpose is to prevent the
coupler from coming out. Tr. 84. However, the left front key stock was missing. Vargo did not
find any indication that the key stock was present at the time of the accident. Key stocks are
welded to the car frame. Id. In support of his opinion, Vargo stated that if a piece of metal breaks
away, the remaining surface will be shiny, but he observed no such shiny or light spots. Id.
While underground, Vargo found no key stocks on the ground. Id. In response to a question from
7

Vargo explained that the ‘rope,’ meaning a wire or hoist rope, connects the brakeman
car to the hoist drum. Tr. 60.
8

At times, Vargo called the brakeman car, the ‘slope’ car, but he clarified that its proper
name is the brakeman car. Tr. 57-58.
9

The draft gear is attached to the coupler and it is part of it, fitting inside the car pocket.
Tr. 58-59.

44 FMSHRC Page 304

the Court, Vargo informed that in his opinion the missing key stock was not something that
recently occurred. Tr. 85-86.
The Court also inquired of Vargo how the coupler is secured to a car. Vargo stated:
“that’s the importance of the key stocks. The key stocks from the back, once they're there, the -we'll call this the pocket, the draft gear fits inside of there, and then the key stocks are welded
against the pocket to keep it from moving either direction. That's what the key stocks are for, to
keep them from coming in or to keep it from traveling outward, an outward direction.” Tr. 86.
Vargo also affirmed that “in order to effectively secure the coupler, there needs to be a key stock
at least on both sides of this photograph, and one is missing on the left side.” He added, “It's an
importance that all four key stocks be in place, or at that point, you're weakening the coupler.
You're setting it up for failure is what you're doing.” Tr. 87. Vargo affirmed that the key stocks
are integral to the coupler system, stating, “Yes, they are. All four -- all four should be in place
for the coupler to act as the way it should. If not, as I stated before, if not, you're setting up for
failure at that point.” Tr. 88.
Questioning by the Secretary then turned to the chains. The chains, described as
secondary connections, were found by Vargo to have one longer than the other.10 As referred to
above, Ex. P 6 at Bates 0052 is a photo of a new, 12-ton, clevis, with its pin. Tr. 90.11 The photo
depicts the exact type of clevis used in this event. Ex P 7, Bates stamp 0105, is a photo of the
clevis from the accident, showing that it had spread apart. Tr. 92. That clevis was the one
attached to the brakeman car. Tr. 93.
Following the investigation, Vargo issued two citations on August 12, 2020. Tr. 105106. Ex. P 1. In issuing the citation, No. 7033990, reflected in Ex. P 1, Vargo stated that it
referenced the safeguard that was in already in place. He determined that the cause of the
accident was that “the safety chains were not properly maintained, because they were not
connected up the same length. And that caused the cars to separate from the brakeman car.” Tr.
107. That referenced safeguard is No. 7070545. Id. As mentioned, that prior-issued safeguard
was issued to the Bailey Mine on October 25, 2011. Tr. 107 and Ex. P 2. Vargo stated that the
safeguard, No. 7070545, requires the mine “to properly maintain safety chains and safety chain
connection points, between two -- between the cars.” Tr. 109. Vargo stated that safeguard was

10

Though Vargo explained the chain arrangement connections, the salient point is that
the chains were not of equal length. Nevertheless, for the sake of completeness here is his
description: “the chains were welded to the brakeman's car, … [the mine’s] supply cars are
staggered. One has a chain on one side, and diagonal has it welded on the other side. The pin is
welded, not the chain. So this car could not be fastened to the ear of the strap car. So at that
point, they connected it up to another chain.” That additional connection was by using a clevis.
The clevises were welded on the brake car. Tr. 88-89.
11

There was a problem with some of the Secretary’s exhibits during the hearing, as the
Bates numbers were missing. Per the Court’s instruction, Counsel for the Secretary corrected this
on December 13, 2021, by filing on e-CMS the admitted exhibits with the Bates stamp numbers
on them.

44 FMSHRC Page 305

issued because “there was a cause an uncoupling of cars, six rail mounted cars.” Id. Thus, he
affirmed that in 2011 six rail mounted cars became uncoupled, just as occurred in this matter.
Vargo stated that to be considered ‘properly maintained,’ chains used for the secondary
connection must be the same length. He elaborated that “[t]he reason being so anything that
would create a shock is if the couplers would -- the coupler would separate the primary
connection point. The secondary would apply equal action to each chain.” Tr. 109-110. By
‘equal action’ Vargo explained, if there is separation, both chains can be shared to the same
amount of load. Tr. 110. If there is slack in one chain, the other chain will bear 100 percent of the
load. Id.
Also on August 12, 2020, Vargo issued Citation No. 7033911. Ex P 3. Id. This, second,
citation was issued on the basis that it “was also a contributory factor to the accident, because of
the key stock missing.” Tr. 112. That second citation referenced Safeguard No. 7070546. That
safeguard, as with the one just referenced, was also issued to the Bailey Mine on October 25,
2011. Tr. 112. For this second safeguard, Vargo stated that it requires “all couplers and rolling
stock to be examined prior to being hoisted and prior to being transported throughout the mine.”
Tr. 112. It also required that “all rolling stock will be provided with proper maintained couplers.”
Tr. 113. Vargo asserted that each coupler was not properly maintained because he “determined
the key stock was never in place when the car was being hoisted.” Id. Vargo added that the key
stock is part of the coupler, because, without it, the coupler will not function. Id.
In the evaluation section of the citations issued by Vargo, Ex. P 1 and P 3, he marked the
gravity as “reasonably likely” that an injury would occur because of “[t]he way those cars
traveled down the slope at a tremendous speed uncontrolled, and if it struck somebody, that
would be a reasonable likelihood it was going to cause injury.” Tr.114. There were two people
down the slope when the event occurred. He was told they were in the shanty. The shanty is
located “directly at the bottom of the slope track. From the track itself, the cars, it's up a little
elevated step, in a crosscut, maybe 12 feet, 15 feet away.” Id. This was an estimate, as Vargo did
not measure the distance. Vargo further described the shanty, informing “[i]t's a little room,
maybe 12 foot by -- 12 foot by 12 foot, 12 foot by 10 area. There's a bottom person when the
cars are being hoisted. That's their job. They stay in that shanty. They've got phones there. They
can communicate. Heater to keep warm in the wintertime. Stay out of the elements.” Tr. 115. It
is constructed out of block or corrugated metal. Id.
The hoist operator did not immediately call down to the shanty but did so after he saw
that the brakeman car was still there. He told them to stay in the shanty. Tr. 115-116. Others
were potentially exposed to the hazard created by the event. Vargo described it as “a frequently
traveled area. You've got mine examiners walk through there, you've got motor men that always
bring their trips in. You might have a mechanic doing permissibility on cables, or what have you
down in the area of the shanty. They could be in the area, contractors walking through.” Tr. 116.
Slope cars are also used to hoist miners out of the mine. Tr. 117. However, when stock or cars
are being lowered in the slope, a siren and a light are employed as a warning. Id.
Vargo marked the injury reasonably to be expected as ‘fatal,’ expressing, “Well, just
looking at the cars, the seven or six cars traveling down the slope at such a high speed with the

44 FMSHRC Page 306

weight involved. If it would strike a miner, there wouldn't be a chance he could survive.” Tr.
118. And though in the past miners have told him that they could get out of the way if a car is
coming down, that they could hear the car coming, he did not buy into such claims. Tr. 119.
Vargo confirmed that the hoist man informed that when the event occurred there were
two motor men in the shanty. Tr. 120. Listing the negligence as moderate, Vargo’s rationale was
that the “cars are used every day in the workforce, in and out of the mine, and somebody needs
to take -- take account of the cars when checked. They need to be examined somehow.” Tr. 120.
Vargo could not find any documentation that the cars had been checked. Id. In the records he
saw, Vargo saw no problems noted as to the “the conditions of the coupler or the conditions of
the secondary connections, the chains and the clevises.” Tr. 121.
Speaking again to the chains, he stated, “they're supposed to be of equal length. I believe
each link, there's a total of 11, and they're all -- they're all 11 links. That way, they get the same
stretch point where both are going to execute the same, share the load. That would be failure,
disconnection of couplers.” Id. Vargo brought some experience to the subject, informing that he
ran a “motor previously on the job when [he] was working [at the Bailey Mine].” Id. During that
time he observed “cars that would actually uncouple from each other, and the safety chains held,
because they was of the equal length. We always made sure they was equal length. Because
you're defeating the purpose if one's longer than the other.” Tr.121-122. Although he could not
say definitively, it was his opinion that if the chains had been of equal length, the cars would not
have disconnected. Tr. 122. Similarly, Vargo believed that if the key stock was in place and it
was properly welded, the coupler would not have pulled out of the car as the primary connection
point. Tr. 122-123.
In response to a question from the Court, Vargo answered that he believed that one of
cars went off the rails in the event. Tr. 124. Vargo also affirmed that the sequence of events once
things got out of hand, was the coupler detached, then the chains failed. Restated, the coupler
broke away and then the chains failed, with the shorter chain failing first and then, milliseconds
later, the other chain failed. Tr. 124-125. All the remaining cars had couplers and chains. Tr. 125.
Further, the only coupler and chain failures occurred between the brakeman’s car and the No. 1
strap car. Tr. 125. The Court remarked, after seeing a number of photographs of the wreckage
following the event, as discussed at transcript pages 136-144, that they showed “quite a mess”
from the accident. Tr. 144. Vargo’s description was more vivid, expressing that calling it a mess
was putting it “lightly.” Instead, he said it was “almost say like a bomb went off and exploded.
Things are everywhere. I mean, everything's all spread out.” Tr. 145.
Upon cross-examination, Inspector Vargo acknowledged that he has no background in
mechanical or structural engineering, nor has he ever performed maintenance on hoists, or slope
ropes. Tr. 150. However, he had done some welding on cars, with one of those involving cutoffs,
disconnecting the pin in the coupler. Tr. 151. Vargo agreed that to become a hoist man one has to
learn how to conduct examinations of the hoist, and how to operate the hoist, including operation
with supply cars. That job also includes conducting examinations of supply cars and couplers
before they are hoisted. He also affirmed that to become a hoist man one has to learn how to

44 FMSHRC Page 307

operate the hoist with supply cars and “to conduct examinations of supply cars and the couplers
before you hoist them.”12 Tr. 152.
The Respondent raised several challenges to Inspector Vargo about the safeguard, with
the inspector agreeing that Safeguard No. 7070545 does not describe what properly maintained
safety chains and safety chain connection points mean, though the inspector did opine that the
safety chains being of equal length would be one such proper maintenance requirement, and that
for a safety chain connection point, in his opinion, it would require that “the eyelets or what the
clevis would be attached to. That would be a connection point. Whatever the clevis is attached
to.” Tr. 161. In a similar challenge, Respondent obtained the inspector’s agreement that the
safeguard notice itself does not describe what a defect means. Tr. 162. So too, Vargo was asked
what criteria were used to determine whether a defect in rolling stock exists. He answered, “one
of the connection -- connection points, if it would be not properly welded, not properly made -fit into the car correctly. If the hole is too big or it started to split where the eyelet was, or any
unusual thing with the clevis.” Id.
Despite the inspector’s agreement with many of the assertions raised by Respondent’s
Counsel, Vargo did not agree that Safeguard No. 7070545 does not describe how a hoist man
should examine the rolling stock to look for defects. He responded, “[p]roperly maintain safety
chains and safety chain connection points. I've never seen a connection point going from a clevis
to another chain. It typically goes from an eyelet to an eyelet.” Tr. 162-163.
Some of Respondent’s Counsel’s questions presented inherent conflicts in them. For
example, Vargo was asked by the Respondent with the assertion “[i]f an adequate inspection was
conducted of the rolling stock, but no defect was found during that inspection, it would not be a
violation of the safeguard to fail to remove the rolling stock from service.” Tr. 164. Vargo
agreed, but the Court would note that the problem with the question is whether an inspection
could be deemed “adequate” if no defect was found but in fact, there was a defect, and if a closer
exam would have detected it. The clear evidence is that a missing key stock would be detectable,
though it would require some effort.
Turning to Safeguard No. 7070546, Vargo acknowledged that it provided “a notice to
provide safeguard requiring that the slope brakeman car and all rolling stock will be provided
with properly maintained couplers … [and that] it requires all couplers on the rolling stock to be
examined prior to being hoisted and prior to being transported throughout the mine; [and that]
[w]hen defects are found, the couplers will be removed from service … [and that] all persons
involved in the operation or movement of rolling stock and other types of rail mounted
equipment, equipment couplers will be trained in an inspection procedure to determine when
defects are present.” Tr. 165. As with his previous responses to the other safeguard, Vargo again
agreed that this safeguard does not describe “what properly maintained couplers means.” Tr. 166.
Seemingly confining himself after describing the criteria to determine whether a coupler is
properly maintained, he answered “[w]ell, one of the things is the coupling device,
12

These cross-examination questions were obviously aimed to diminish Vargo’s
background and experience. However, for the limited expertise and background required, the
inspector was fully qualified to offer his opinions about the cause of this accident.

44 FMSHRC Page 308

another thing is the slop in it, the up and down movement of it. The connecting device, I always
called it the tongue that's inside the coupler to see if that will push in and out, lock and unlock
freely.” Id. Respondent’s Counsel then asked in light of his answer, “if all of those things are
okay during the inspection or the examination prior to hoisting, you would think that the coupler
would be okay; would you agree with that?” Tr. 166-167. Vargo answered “Yes.”
From the Court’s perspective, such responses have to be taken in the context of the facts
at hand. That is, the inspector’s opinion can’t be used to defeat a safeguard if, for some other
reason, a coupler was shown to be improperly maintained and the same result would apply to an
improperly maintained chain.
Vargo gave some examples of defects in couplers, stating, “a defect is one of the things I
just said. It wouldn't uncouple. The uncoupling device wouldn't work, the tongue wouldn't work,
sloppy play, dirt inside of the couplers.” Tr. 167.
In issuing Citation No. 7033990, Vargo agreed he referenced Safeguard No. 7070545. Tr.
167. For Citation No. 7033991, he referenced Safeguard No. 7070546. Tr. 168. Vargo further
acknowledged that the loaded trip began to accelerate until it reached an overspeed condition at
about 600 feet per minute. Once that happened, the hoist supervisory system, or ‘HSS,’ actuated
an emergency stop. This caused the hoist drum brakes to engage to stop the load with the effect
of having the brakeman car stop rapidly. Following that, the coupler disengaged from the strap
car. Tr. 168-169. None of this is in dispute.
Though he tried, Respondent’s Counsel could not obtain Vargo’s agreement that the
coupler would not have disengaged if the speed of the cars had been 300 feet per minute. Tr.
169. Vargo did agree that the coupler itself did not fail, that is, the coupler on the brakeman’s car
as connected to the coupler on the strap car, those couplers didn’t separate from one another. Id.
The missing key stock, an integral part of the coupler, was the culprit here.
Vargo acknowledged that the hoist man, Daniel Williams, told MSHA that he did an
inspection of the safety chains and connection points. Specifically, Williams told the MSHA
inspectors that he “checked the couplers, safety chains, clevises, 3/8 figure 8 chains on the
adjoining couplers, … [and] conducted the pre-op checks on the brake car and everything
checked out to be okay with the brake car.” Tr. 176. Further, Williams informed that he called
Mr. Minear, who was on the bottom of the slope, to make sure they were ready to receive the
cars, in order to make sure no one was on the slope track or slope bottom. Tr. 176-177.
Vargo agreed that it was his contention that the left key stock, as Respondent’s Counsel
expressed it, may not have been in place when the accident occurred. Tr. 179. Of course, Vargo
did not view the key stock before the accident, but it was his view that it was not in place before
the accident, an opinion based on “from what [he] visualized on that, [he] would say it was not in
place.” Id. He was not contending that Mr. Williams knew there was a missing key stock before
the accident. Tr. 180.
Vargo’s understanding was that a coupler is inserted into a supply car and gets pushed
back into the back key stocks, then additional key stocks are put in the front of the draft gear

44 FMSHRC Page 309

assembly and they are welded in place. Tr. 181. If a coupler was inside the supply car hole, it
would be hard to see the key stock. Id. Ex. P 7. Ex. 7 at MSHA 0055, Vargo stated, shows the
back key stocks, but that on the left side the front key stock was missing. He agreed that there
was some weld material present but it was not continuous and he described it as a poor weld. Tr.
183. Vargo maintained that if the key stock was in place, one could still determine if there was a
poor weld. This would require having one look at the weld on the key stock to determine if the
weld was good or bad. Tr. 184. He asserted that the examiner is supposed to make a visual
examination. Id.
Turning to the subject of safety chains, Vargo reaffirmed that one of the safety chains
was longer than the other. Tr. 184-185. He acknowledged that Safeguard notice No. 7070545
does not specify that those chains must be of a certain length, nor that they must be of equal
lengths. Tr. 185. MSHA has not contended that there was any issue with the hoist rope, finding
that it was compliant. Id. He also agreed that before a trip is dropped down a slope, the hoist man
notifies the bottom personnel. Tr. 186-187. There is also a visual warning device and there is no
claim that it was not working on July 17, 2020. Tr. 187. The same is true for the audible warning
device; it too was found to be working. Tr. 187-188.
It was Vargo’ position that if the key stock was properly welded, it would have held the
coupler in place. Tr. 189. This view, he asserted, was based upon his “experience of seeing loads
travel throughout the mine.” Id. However, he conceded that he had no information to support his
view that “the couplers would have withstood the force exerted on the supply car when the
brakeman car suddenly stopped.” Tr. 190. The Court would point out that such a result would not
be necessary to uphold a violation. Similarly, while he could not state that the safety chains could
have withstood that same force when the brakeman car suddenly stopped, he did maintain that if
those chains were of equal length, they could have shared the load, instead of one chain taking
the load. Id.
Vargo reaffirmed that key stocks must be present for the coupler to function. Tr. 218.
Speaking to the secondary chains, he reasserted that one chain was shorter than the other; with
one measured at 52 inches and the other at 61 inches. Tr. 219.
On the subject of testing or evaluating the integrity of key stocks, Vargo maintained that
“by looking at the weld on the key stocks. I mean, those cars could be -- those cars could be
turned upside … when they're in the yard before they're actually used. Like to get a better
representation. Sometimes there's a cover on it. It's called an inspection plate. And I don't know
if they're welded over top of it. The inspection plate should be kept open just for that reason, to
inspect the coupler.” Tr. 191. Although he was not asserting that the hoist man is to turn over a
supply car every time before he sends the hoist down into the mine to load supplies, because to
so assert would be impracticable, he did contend that “there ought to be some inspection
procedure put in place for [the mine] to check the cars.” Tr. 191-192. Still, he agreed there was a
visual inspection procedure in place at the mine on July 17, 2020 and that the procedure was
sufficient on that date. Tr. 192. The question, however, is whether the visual inspection was
sufficient, not just the procedure. The Court finds that it was not.

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There was then a reference to Ex. P 9. Tr. 195. This stemmed from a question by
Respondent’s Counsel regarding whether MSHA’s tech support tested or evaluated the structural
integrity of the safety chain connection points. Vargo could not confirm that Tech Support did
such an evaluation of the structural integrity, noting only that “[i]n the report, the mine operator
went with an 18 ton clevis an equal length of 30 millimeter chain.” Tr. 198-199. On that issue of
structural integrity, the Court commented that the principle of res ipsa loquitur could come into
play. Tr. 196. The chains, of unequal length, broke away.
Vargo confirmed that he issued a new safeguard on the same day that he issued the
citations in this matter. Tr. 200. In that safeguard Vargo agreed that he concluded that “the hoist
brakes engaged causing the brake car to come to an abrupt stop, and the force applied to the strap
car caused the car coupler to sever and separate.” Tr. 200. Reading further from that safeguard,
Vargo agreed it reflects “that two 30 millimeter safety chains with one and a quarter inch retainer
pins tied the cars together. Each chain attached by a 12-ton clevis and that, quote, both retainer
pins broke from the shock load.” Tr. 201. Thus, he also agreed by using the term ‘shock load’ it
refers to “when the overspeed brake stopped the brakeman car, and the force exerted from that
resulted in those pins severing.” Tr. 202.
Respondent’s Counsel also had Vargo’s agreement that the hoist was designed to operate
at 600 feet per minute but that Consol has since removed that ability to operate at that speed. Id.
Counsel also had Vargo’s agreement that the state of Pennsylvania approved the hoist. Id.
However, the Court would note that Pennsylvania’s approval of the hoist is not determinative of
the issues in this matter. That is to say, approval by the state of the hoist cannot be used to
insulate Consol if it is determined that either or both of the safeguard notices were violated.
Counsel for Consol then turned to MSHA’s modification of the k order that was issued in
connection with this matter. That modification “permit[ed] the operator to start to clean debris
and supplies on the slope track between the bottom of the slope and the inbound No. 4 slope
bottom switch.” Tr. 204 and Ex. P 8, 9203689. A subsequent modification occurred on July 20,
2020, permitting “the operator to clean up the slope bottom track from the No. 4 slope bottom
switch to the wreck at the end of the slope track … from the slope bottom to the wreck site …
and place the slope bottom tracks back into operation.” Tr. 205.
Turning next to photos in Ex. P-7, which were taken on July 23, 2020, Vargo stated that
he did not see any debris in those photos. Tr.206. He agreed that, in the words of Respondent’s
attorney, that he didn’t “see any photos that look like the photos from 7/17 that showed roof bolts
and plates and channels and pipes sticking up vertically when [he] testified about those.” Tr. 206.
Vargo further acknowledged that, per photos within Ex. P 7, the strap car and the chain
were covered with some sort of material, though he couldn’t say that it was mud and dust. Tr.
207. He also agreed that he was not contending that the clevis, per those photos, was spread apart
before the accident, meaning that the event itself spread the clevis apart. Tr. 208-209. The point
of these questions was apparently to show that the photos did not reflect the rust or material on
the equipment at the time of the accident, but rather as a consequence of the equipment having
been brought to the surface, and, being outside, it was exposed to the elements. Vargo did not
walk to the bottom of slope until July 23rd. Neither he nor Bud Young ever found the missing

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key stock. Tr. 210. Vargo agreed that the key stock was not found on the slope, nor were the pins
and clevises found there either. Tr. 213-214.
Questioning then turned to the shanty at the bottom of the slope. This line of questioning
was obviously designed to show that those at the slope bottom were in no danger. However, the
Court views such a suggestion as a bit much. Vargo agreed that the shanty is a small room
“where persons are supposed to go when they're hoisting supply cars to make sure they're in a
safe area …[a]nd [it’s] elevated above the floor at the bottom of the slope [and one has] to climb
up steps to get into the shanty where miners go to be in a safe place when Bailey's hoisting
material down the slope.” Tr. 211. Beyond that, Vargo also agreed that the shanty “is set at a 90degree angle and crosscut, which protects it from anything falling down the slope at the bottom.”
Tr. 214.
Vargo has never known of examination of hoist cars when they are underground; the
point being that such exams are done on the surface. Tr. 216. Regarding the subject of defects, he
acknowledged that the word ‘key stock’ does not appear in Safeguard notice, No. 7070546. In
response to the Court, Vargo did clarify that a missing key stock would be a defect because a
coupler can’t function properly if key stocks are missing. Tr. 217. Thus, he affirmed that key
stocks are integral to couplers functioning. Id.
Why was a new safeguard issued?
Regarding Safeguard notice No. 7033989, which Vargo issued on August 12, 2020, Ex. P
8, at page 14, MSHA Bate stamp 0142, he was asked why he issued a new safeguard, if he felt
that the existing safeguards were sufficient. He explained that it related to the changing of the
remote from 600 to 300 feet per minute. Tr. 220. He elaborated that it was brought about because
of “what the select mode is in.” Tr. 221. That new safeguard spoke to this because it was a
contributing factor to the accident, and it also addressed “hoisting rates and the weights …
nobody knew … how much weight … to drop and not to drop.” Tr. 221. Thus, the Court finds
that the 2020 notice to provide safeguard addressed a new and distinct hazard with respect to the
transportation of men and materials.
The Court pressed Vargo further asking, given the length of the text in the new
safeguards, if it would be fair to view them as undercutting the existing safeguards, that is, to
assert that the existing safeguards didn’t cover the accident here. Vargo answered that the
Respondent was asserting that the existing safeguards didn’t point out every little thing. He
stated that was the mine operator’s point of view, not his. He then noted the safety chains with
their mismatched lengths as such an issue. Tr. 222-223.
Returning to the violations at hand, Vargo then elaborated that the key stocks are
arranged so that there is a set, fore and aft, on each side to secure the coupler. Tr. 227. He
informed that it will be difficult, but possible, to see the fore key stocks if the coupler is moved
to one side. Tr. 227-228. The coupler can move left or right by 40 degrees. Tr. 228. When the car
is being moved, the coupler will be directly in the middle. Tr. 228. In such a position, while one
would have to kneel, one could see the key stocks. Tr. 228-229. Pressed further, the Court asked
if it would be difficult to view an intact key stock. Vargo agreed, but emphasized the importance

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of making such exams because of safety concerns. Tr. 229. Summing up his opinion, Vargo
expressed that during a regular inspection one could miss seeing an issue with a key stock and a
coupler. Tr. 230. On re-cross-examination, Vargo agreed that key stocks and couplers are not the
same thing, but “key stocks [are] critical to the draft gear of the coupler working as designed.”
Tr. 231.
Regarding the issue of whether a safeguard can be modified and if that occurs if that
means there can be no violation following such a modification until there is a subsequent
violation of the then modified safeguard, the Court commented “if I issue a safeguard on July
1st, and on July 3rd, two days later, I add additional information, that's different in my mind
from a safeguard where three months down the road, I modify the safeguard. Because one
originates from the original issuance and is part of it, much like a citation can have an extended
page to it, and it doesn't mean it's a separate citation. It's just a clarification, really, of the original
safeguard versus one that's issued two months down the road as a hypothetical.” Tr. 234.
On re-direct, referring again to the length of safety chains, the Secretary’s attorney asked
of Vargo if he had any experience with the issue. Vargo offered anecdotal information that the
chains are to be of equal length. Tr. 235. The Court then commented that it just makes common
sense, so that the dual chains care share the load, stating, “I would also observe in this process,
we don't have to park our common sense. In the sense that … it stands to reason that if you have
two chains of unequal length, and then you have to stop suddenly, the chain of the shorter length
will necessarily feel the force first, and, therefore, if the purpose of having two chains to provide
additional -- adequate support, then it's not working as intended, that the second chain is not for
decoration. And so I would just say, again, common sense leads to the conclusion that both
chains perform[ ] their function in tandem.” Tr. 235-236.
Following the Court’s comment, Respondent’s counsel asked Vargo if either of the
safeguards in issue in this matter mention anything about the length of safety chains, to which he
responded that they do not. Tr. 236-237. Under redirect to that point, Vargo was then asked if the
safeguard includes maintaining them of equal length. Vargo answered it does not mention chains
being of equal length, but he then added that chains of different lengths defeats their purpose. Tr.
237.
Given so much back and forth between the parties on the length of chain issue and the
suggestion that perhaps the chains had been adjusted to be of the same length before the
accident, the Court asked of Vargo if anyone from the mine ever asserted to him that the chains
were in fact of the same length, to which he responded no such claim was made. Tr. 242.
As a factual matter, Vargo confirmed that the clevises were attached to the brakeman car
and that the chains were attached to those clevises. Tr. 242. Further, Vargo informed that the pins
on the clevises were welded to them, so the pins could not be moved. Accordingly, being
welded, the chain lengths could not be changed on that end. Tr. 243. With the chains on the slope
car still attached, the suggestion by the Respondent that perhaps the chains had been altered to
make them of equal length amounts to unsupported speculation. The Court finds that the subject
chains were in fact at least functionally of different lengths.

44 FMSHRC Page 313

Following Inspector Vargo, witness Justin Jones, was called by the Respondent.
Presently, Mr. Jones is a maintenance officer for the United States Air Force. Tr. 247. Prior to
that, he worked for Consol Energy at the Bailey Mine, and had been so employed there for eight
years. Tr. 249. For the majority of that time he was a safety inspector for Consol. He confirmed
that the purpose of the slope hoist is to raise and lower equipment in and out of the mine. Tr.
251. As part of his duties, he was involved in inspecting the slope hoist with MSHA inspectors.
Besides the hoist itself and its rope, the inspectors would also check the supply cars, checking
couplings, making sure the safety chains were on, and checking the wheels on the cars to make
sure they weren’t locked up. Tr. 252. Jones was employed at the Bailey Mine at the time that the
alleged safeguard violations in issue in this proceeding were invoked. Tr. 253. In fact, he was
working at the mine on the day the “event” occurred on July 17, 2020 and on that day, he went
underground with MSHA Inspector Bud Young. Tr. 254.
Jones described a key stock as a metal piece inside the coupler pocket that holds the
coupler assembly inside the car. Tr. 255. He added that the key stock is attached to the car, not
the coupler. Incorrectly, he stated it was bolted. Id. The overwhelming evidence is that key
stocks are welded.
Addressing Safeguard No. 7070545, Ex. P-2, Jones was asked if that safeguard referred
to the safety chain length, answering it did not. Tr. 256. He admitted to having a discussion with
some MSHA personnel about the “different lengths” of the safety chains. Id. Jones also stated
that while he and the MSHA people looked at the connection points, no one saw anything wrong
with them. Tr. 257.
It must be said that Jones’ memory was short on details. For example, after Counsel for
the Respondent, referring to Ex. P-3, made a long assertion about the allegation that “it was
determined that the coupler of the No. 187 supply car was not being maintained. Says that the
left front key stock inside a coupler pocket was missing. There were no markings or weld
materials on the pocket,” he then asked Jones: “Did you inspect the couplers on July 17th, 2020
with Mr. Young?” Tr. 257.
Jones answered: “I mean, to say specifically we did, it's hard to remember. But we went
over the entire wreck, looked at everything, so, yes.” Id. And when then asked if there was any
mention of a missing key stock on July 17, 2020, Jones responded only, “[n]ot to my
recollection, no.” Tr. 258. When counsel for the Respondent stated that Citation No. 7033991
was issued based on safeguard No. 7070546, referencing Ex. P-4, Jones stated that he was
familiar with it but that it does not refer to key stocks. Tr. 259. Jones had no information to offer
about the basis for the safeguard that was issued on October 19, 2011. Id.
Asked if he agreed with MSHA’s allegations regarding the missing left key stock, he
responded that he did not agree because he believed “it's impossible to prove or even assume that
the key stock was missing prior to the accident. [He thought] the tremendous force that that key
stock and pocket -- or coupler pocket was under, very easily could have likely caused the
damage to the key stock, to rip it out.” Tr. 260. Jones then identified Respondent’s Exhibits 1
and 2 as his notes for the citation issued by Vargo. Referring to his notes, Jones believed the
mine did not “break that section of law.” Tr. 262. For example, he took issue with the

44 FMSHRC Page 314

“mechanically sound safety chains connection points, [asserting that] our safety chains and
connection points were completely fine. There was nothing wrong with them. They likely failed
well past.” Tr. 262.
Jones also disagreed with the likelihood of anyone being injured from the event,
expressing “[j]ust because of the safety mechanisms we had in place on the slope bottom make it
near impossible for anybody to get hurt [because] before a load is even put over top of those
Crabapple slope, an alarm goes off [and] [a] phone call is made, first of all, down to the bottom
of the slope to ensure that the entire area is clear. Then an alarm is sounded, which is a very loud
alarm, which lets you know you need to get out of the way. In addition, the way that the slope is
designed. It's shaped like an umbrella with all of the switch points facing away from the rail that
comes down. So even if someone was back behind in a switch, the way it's designed, the trip
cannot go with the switch. So the likelihood of this -- I checked it, the likelihood of someone
getting hurt is zero at the bottom of the slope. Because everyone that's down there -- in addition,
everyone that's down on the slope is a trained person for that area, and they know the phone call
comes, and they know the alarms that go off.” Tr. 263-264. (emphasis added). That alarm, Jones
added, “[i]t sounds like an air raid siren. It's the loudest thing you've ever heard.” Tr. 264. There
is also, he believed, a “red flashing light … right at the bottom of the slope where it starts to level
off.” Id.
Jones acknowledged that there are people that work at the bottom of the slope, but he
maintained that they would be out of harm’s way by being either in a break room area or in the
“umbrella portion of the slope” that he referred to earlier. Tr. 264-265. Jones reasserted his belief
that if, as in this event, equipment broke loose and traveled down the slope, there was “[z]ero
percent chance” that anyone would be affected.13 Tr. 265. Jones also was of the opinion that as
“[n]ever once did any of these clevises or chains come into question. We've never experienced
broken chains or clevises in a setting like this. So I don't know how we could be considered
negligence [sic] being as that has never happened in the past.” Id.
The Court does not share Mr. Jones’ sanguine evaluation. This is because it is founded
upon everything going according to plan when cars are being dropped. But obviously that didn’t
happen here with six cars screaming out of control down the slope. A controlled drop is a very
different event from what occurred here. Further, while Jones is entitled to express his opinions
about negligence and whether anything like this had happened before, as affecting negligence,
ultimately such determinations are for the Court. In that regard, the Court finds that a nearly
identical event had occurred before and resulted in the 2011 safeguards being issued.
Respondent’s Counsel then turned to Ex. R-2, involving Citation No. 7033991, the
coupler violation. For this citation too, Jones did not believe it was a “valid citation, because [ ]
13

Later Jones elaborated about the shanty at the slope bottom, expressing that “[i]t's up
three steps, and it's recessed into the rib probably eight feet. So it -- you can open the door and
still have two steps to probably four or five or six feet until you get within the rib line. Then it
would be another three or four feet to get to the rail. So it's pretty well back out of the track -- off
the track” and that it’s back in the crosscut. Tr. 280.

44 FMSHRC Page 315

there's no way to know the key stock was missing prior to this accident. There's just no way to
know that after the violent event that happened.” Tr. 267 (emphasis added). Jones was “[p]retty
sure” that on July 23rd Mr. Snyder and Mr. Vargo walked the slope and that those two were
looking for a missing key stock. Asked if they found a key stock, Jones answered “[t]o my
knowledge, no.” Id. Asked if those two looked for the clevis pin at that time on the slope, Jones
affirmed they did. As to whether they found one, he did not remember. Id. He only remembered
“we had some stuff at the top of the slope. I don't know if they recovered all of it.” Tr. 268.
(italics added, as ‘stuff’ was not explained).
Jones repeated his view of the likelihood of an injury occurring as based on the same
reasons he gave in his testimony about the other citation. Id. Though he was present when the
MSHA personnel spoke with the hoist man, he could only recall “bits and pieces” of what was
said, explaining he “[j]ust got the gist.” Id. His recollection was that it was about the speed
setting being too fast for the amount of weight involved and they simply forgot to put the hoist
back to the slower speed. Tr. 269.
On cross-examination by the Secretary, Jones agreed that he didn’t do any calculations in
support of his opinion about the forces that would be applied to the clevises, coupler or safety
chains. Tr. 270. Jones also agreed that the warning is given before a load is dropped to make sure
that miners are out of the way. Tr. 271. He did not believe it was a “highly traveled” area, stating
that there would only be two to three people down there on a shift. Id.
Asked about anyone finding the missing key stock, Jones again repeated “[t]o [his]
knowledge, no.” Tr. 272. He did see the coupler pocket where the key stock was missing. Id.
Asked if he saw any marking showing that the key stock had been ripped out, Jones answered,
“[n]o, but it went under a severe wreck with lots of dust.” Id. The Court then asked Jones about
the dimensions of a key stock, to which he informed it was about 7 inches long with thickness of
about one inch. Id. As a point of reference, the Court notes that the width of the paper for this
decision is 8½ inches, with the point being that the key stock length is not especially short.
Jones was then referred to Ex. P-6, a photo, date stamped 7-17-20 at 15:50, with Bates
stamp 0034. He identified it as a coupler pocket, presuming it was of the supply car that had the
missing key stock. Tr. 273-274. Jones agreed that as to the back key stocks there are indications
that something was rubbing against the key stocks. Id. When asked the important question of
whether there was any indication that a key stock had broken away, Jones at first responded that
he didn’t know if he understood the question. The Court then interceded, stating that it was not a
hard question. The Court noted that the Secretary was asking about the left side and the two
welding marks or welding sites present. When asked the same question again, this time Jones
agreed that there was no indication that metal had been torn away or ripped away from that
location. Tr. 275. Also, when asked if the outside key stocks are missing does the coupler still
work to keep the cars together, Jones responded, that he couldn’t “answer that. I don't know. I
would think so.” Id. Yet, he then agreed that the purpose of key stocks is to keep the coupler in
place and that key stocks are an integral part of the system. Tr. 275.
Asked if one can see the key stocks, even if the coupler is present, Jones responded it
was difficult to answer that and that he could not recall if it’s easy to see them. Tr. 276. Jones

44 FMSHRC Page 316

agreed that the bottom of the coupler pocket is open and therefore one could see from the
underside if a key stock was missing, at least on the car in the photo. Id. Even on basic issues,
such as if chains are normally of equal length, Jones said normally yes, but could not “speak to
that a hundred percent.” Tr. 277. He did agree however that with chains of equal length they
would share the load, each catching 50% and further that if he saw one chain nine inches longer
than the other it would cause him to question if the chains were adequate. Id.
On redirect from Respondent’s Counsel, referring to the same MSHA photo 0034, Jones
was asked where the rub marks were located. He responded that they were on the key stocks
themselves. Asked the hypothetical if the key stock broke and was no longer present, Jones again
expressed that the rub marks would be on key stock itself, not on the welds. Tr. 279.
On December 1, 2021, the second day of testimony began with the Respondent calling
Daniel Williams, an employee of Consol for 21 years. Holding several positions over those
years, his most recent position is outside hoist operator in the yard. Vol II Tr. 6.14 In July 2020 he
was the hoist operator. That position includes lowering equipment and supplies into the mine and
raising those things out of the mine as well. Describing his day-to-day duties for that job, he
stated:
If I'm running the hoist that day, come in, and if you'd have cars on the hoist, you're
to look at all the cars, make sure your chains are all in place. There should be a 30millimeter chain on each side of the car. There should be a figure eight gold chain
on the coupler. Just do a general exam of the couplers. Any visible, noticeable
damage, we take the cars out of service and put them in the shop and have them
repaired. Then we have daily checks that are written down, what we're expected to
do as far as with the hoist. We check the brakes, we check the over travel switches.
We check the emergency tops. We check for accumulation. There's a few tests like
we call them roll back tests, in case the car would be coming out of the mine and
roll back. The brakes would automatically set. It's in our computer program on the
hoist car. There's an overspeed, in case the hoist would break loose then travel faster
than what it's allowed on the computer, that the brakes would automatically set.
Tr. 8. (italics added)
He continued:
Down at the main hoist house is where the main cable comes off of that holds the
hoist car in place. We're to go down there and check for -- there's a bar at the
window that shows if there's slack in the rope. We check that and make sure it's
working properly. There's an indicator underneath the drum that shows if there's
slack underneath the drum. If something would happen, that's to -- it will
automatically take the system -- shut the system down, so we need to check and
make sure that's working. We check the key stocks down there. Just check the fire
14

Until references move to day three of the hearing, citations are now referring to Vol. II
of the transcript.

44 FMSHRC Page 317

extinguishers. It's a pretty detailed list of things that we check off every morning,
that we're looking and make sure that everything's safe to transport. Mainly, it's to
check and make sure that the equipment is safe to transport men if we have to bring
people out of the mine. But it's also to check in case something would happen.
Another one of our checks would be to contact the men on the bottom and make
sure that we have communication with our bottom people, because every time we
move that car, we talk to the people on bottom and make sure that the track is clear.
There's also a light audio and visual alarm at the bottom of the slope. Our bottom
guys check that, make sure it's working.
Tr. 9-10. (italics added).
Mr. Williams has a federal hoist certification card. He has held that certification since
about 2015 – 2016. Tr. 11-12. Williams was the hoist operator on the day of the accident, July
17, 2020. Though not positive, his recollection was that when he began work that day “the last
shift had left cars on the hoist. They were loaded and ready to be dropped in the mine. So
honestly, I can't remember if they was loaded before we loaded the cars ourselves. But anyhow, I
checked, did all my checks like I do every day … we checked every car to make sure that
the chains were in place. Did a visual exam of the cars, and did all my checks that I previously
talked about, as far as checking the brakes and everything on the hoist car itself.” Tr. 12.
As for checking the chains, Williams stated “[w]e're just basically making sure that the
chains are in place. Sometimes the clevises, the pin that actually goes through the clevis will
back out. We like to make sure that the pin[s] are all secure. Looking for any obvious wear. If
there would be a real thin chain that had been used for years, you noticed it was getting thin, then
you would replace that.” Tr. 12-13.
Regarding the couplers, Williams stated that “[w]e do a check of the couplers. The cars
are already hooked up. It's hard to see the complete coupler, because it's coupled to another car.
But it's a general check to look and make sure that there's no obvious damage of anything that
would affect the safety or the working of the general cars.” Tr. 13.
In terms of indications that there could be an issue with a coupler, Williams stated “[i]f
you're just looking at the coupler itself, and it's not coupled to another car, you would notice that
the coupler would be hanging down a lot farther than what it normally does. I think the standard
is the coupler should be 12 inches off the ground. There's a jaw on the side of the coupler. If the
cars aren't coupled, you can see that jaw. Sometimes the impact of [ ] those cars coming together
will break that jaw in half. We would replace that.” Id.
Williams, further describing the arrangement, added that “there's a hood on the car -- on
the couplers, … and that's kind of hard to explain … [b]ut when the cars go over the knuckle to
drop down the slope, we're basically on a flatter area, and the cars would drop over that hump.
And there's a hood on there that protects the cars from when they come over the knuckle, they
could separate from one another if that hood wasn't there. So we make sure those hoods are on
every car.” Tr. 13-14.

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For cars that are coupled, he looks for “obvious damage that it would have to be
something that the cars would be -- had to be wrecked to tell that the coupler was bent
or there was some type of extreme wear on the coupler. You look at just basically anything
that would look out of place on the coupler to make it look like it had some substantial wear
or anything like that.” Tr. 14. Supply cars are treated the same way. Tr. 14-15. However, he then
added “[w]e're just looking that the chains are in place. And looking at the coupler.” Tr. 15.
Referring to the incident on July 17, 2020, when the supply car disengaged from the
brakeman car, overspeed was an issue. Overspeed refers to situations where cars go too fast and
when that occurs, brakes are activated. Tr. 17. However, Williams distinguished that from the
event here. He explained that the hoist car didn’t take off. Instead, he pulled the hoist car and the
supply cars up the hill to clear the switch. Once sure that miners at the bottom knew there would
be drop of the cars, he threw the switch to begin the drop process. The cars are put in
“automatic” mode, which is done by hitting a button, at which point “the computer is actually
dropping the cars.” Tr. 19. As this process begins, Williams stated it’s the “last chance right there
to check and make sure that your chains are in place, to check and make sure that everything is
proper on your cars. So we watch out the window as the cars go by the hoist house and [we]
look[ ] at all of our chains and everything.” Tr. 20. After passing the portal approach area, the
cars automatically enter the full speed area, which is supposed to be at 300 feet per minute. Id.
Williams recounted that, almost immediately, he knew something had gone awry, as he heard a
bang and it sounded like he had a runaway train. He could not recall if he hit the emergency stop
or if the computer activated that, but through a camera he “could see the cars flying” by. Tr. 21.
Soon thereafter, Williams alerted mine foreman Rusty McHenry that he had “just lost a trip of
cars.” Tr. 22.
In what the Court views as a natural defensive reaction, an attempt to absolve himself
from fault in the accident, Williams stated he told McHenry “I know I did everything right. I
know my chains were there. Every chain was on them cars. Because every time I walked past
them cars, I look at those chains. Because this is a major event. You know, you're talking about,
you know, way over any type of weight that you can really fathom on a job above ground.
You're talking, I guess, hundred ton. And I said, Rusty, the chains are on. I know they're on.” Id.
This is an appropriate point for the Court to express that it finds that Williams did look at
the chains. The Court also determined that Mr. Williams was a forthright, credible witness.
Distinct from that however are two different issues: Were the chains connecting the supply car to
the brakeman car of different lengths and was the left front key stop missing from the coupler on
that supply car prior to the accident?
Following McHenry’s instructions, Williams did go to see the brakeman car. There, he
saw that the hoist car (which car, as noted, has also been identified as the brakeman car) was
“still in place. It was connected to the rope. … [b]ut the coupler was still in place and [its coupler
was still] connected to the hoist car.”15 Tr. 24. Asked if, when inspecting safety chains, he has
15

Williams stated that he never made it to see the wreckage. He was instructed to walk
the slope and clear anything off the tracks, to throw everything to the side if there was any
materials that came off the cars. Tr. 24-25.

44 FMSHRC Page 319

ever looked at the length of the chains, Williams responded that he has done that, but now there
is a different system in place. Tr. 25. The system was such that “any time that you coupled two
cars together, there is two chains in place.” Tr. 26. He asserted that “it's the very rare situation
that there would be different lengths of chain. Because when we welded them altogether, they
was all the same length chains put on all the cars.” Tr. 26-27 (emphasis added).
Thus, the Court notes that, by that remark, implicitly the Respondent knew the chains had
to be of equal length. Adding to the importance that the chains be of equal length, Williams
continued “[l]ike if one gets damaged and replaced, somebody could replace it with a different
size chain. I have come across that. And if you would visibly notice that it was a longer chain,
you might see it dragging the ground more than what they normally do. Then that would be a
situation where you would cut that chain off and replace it with the right length chain.” Tr. 27.
(emphasis added). Williams stated that on the date of the incident, he did not observe different
length safety chains. Id.
Turning to the issue of key stocks, Williams described it as “a solid square piece of metal.
That could be a one inch by one inch piece of steel. But basically a key stock is just a solid piece
of square stock.” Id. As applied to couplers, key stocks involve “those couplers have steel built
around them. So where the coupler, when it makes a turn, it will only allow the coupler to turn so
far. So there's solid pieces of steel welded in between -- inside the car, basically, and at the end
of that piece of steel, there's normally a piece of key stock that is welded to the piece of steel.”
Tr. 28.
Williams expressed that, when inspecting couplers before dropping cars, he is not looking
for key stocks. They are difficult, but not impossible, to visualize. One would need to get down
on hands and knees to see a key stock. “It would be like trying to see something that's under the
car, you know. It's something that takes a little bit to see,” as opposed to just a glance. Id.
Williams denied seeing any missing key stocks on July 17, 2020. Tr. 29. Given that there were
only six cars to examine, not dozens, the Court believes that perhaps it was not too much to
expect that the key stocks be examined more closely, especially when considered in the context
of the event that occurred, the risk to safety presented by the runaway cars, and the time involved
in cleaning up the wreck, and further, in the Court’s assessment, that this was a repeat occurrence
of the 2011 runaway cars accident.
On cross-examination, Williams, referring to speed settings on the hoist, informed that
there are two speed settings, operated by a toggle switch, between speeds of 300 feet or 600 feet
per minute, with the latter, faster, speed only used when “pulling the fire boss out or pulling men
or dropping men out of the mine.16 It should never be [at the 600 speed] when you're dropping
equipment in the mine.” Tr. 32. Williams shared the blame for having the speed set at 600; the
person running the hoist before him did not turn the speed down to 300 and when he “did [his]
drop, [he, Williams] neglected to see that it was left at 600 feet.” Tr. 33.
16

The term “fire boss” refers to one whose duties are to walk a certain area to check for
safety problems, air quality and things like that, including riding the car and examining the track.
The expression ‘pulling the fire boss’ refers to pulling that person out of the mine. Vol II, Tr. 9091.

44 FMSHRC Page 320

On the morning of the incident, the weight of the full trip was, at most, 94 tons. Tr. 3435. The mine had previously been written up for excessively filling the cars, as gravel was falling
off the over-filled cars. Id. That problem, and the solution for it, occurred before the incident in
this matter.
Turning to the subject that some clevises were welded, Williams confirmed that it was
the left side clevis which was welded. Tr. 36. The right side was not welded. Id. The pin in the
clevis is threaded. For the supply car which became detached, the left clevis was welded but
“[t]here was no clevis or chain along the right side. Just the connection point.” Tr. 37. Asked
about the arrangement when the supply car was connected to the brakeman car, Williams
responded, “There's two chains on our hoist car. It's not like our supply cars. So the chain from
the hoist car on the side that we're calling the right side, the clevis was hooked directly into the
connection point. On the left side of the car, which we've already spoken about, there
was a 30-millimeter chain hooked to the connection point already. So the chain that came from
the hoist car to that supply car was connected into a link of the chain that was on
the supply car.” Tr. 37-38.
The Secretary informed that his question was directed about the right side of the supply
car. Williams answered, “The chain from the hoist car went directly to the connection point on
the supply car.” Tr. 38. It was connected with a clevis, but it was not welded. Id. He confirmed
that on the right side, the chain connection consisted of a clevis inserted into the connection point
on the right side. That chain connected to the clevis and that chain was connected to another
clevis, which was connected to the brakeman car. Id. The clevis connected to the brakeman car
was welded. Tr. 38-39.
Explaining the different lengths in the chains, Williams explained “on my hoist car that
has the same chain as the right side had, but my clevis was hooked into a link of the 30
millimeter chain that was coming off the supply car. I think there was a discrepancy in two
different lengths of chains. There wasn't two different length[s] of chains. The chain on the right
side was connected directly to the connection point. The chain on the left side was connected to
the chain that was welded to the connection point on the left side. That is where the discrepancy
in the different length was. Where the[y] … are saying there was different length of chains. So it
was actually connected to another chain. So it did make it longer on one side than the other.” Tr.
40-41 (emphasis added). The Court would comment that the nuances of the connections should
not obscure the fact that, functionally, the chains were of different lengths. Williams admitted
this.
Importantly, Williams agreed that was the source for the difference in the chain lengths,
when the Secretary asked “And that was nine inches longer; correct?” Williams responded, “I've
never measured it, sir, but I would assume that is probably a good estimate.” Tr. 40-41.
But again, the Court notes that the key point is that the chains were attached in such a manner as
to create different lengths.
Williams agreed that the standard length of the chains is 11 (eleven) lengths. This is
done, he stated “just so all the cars will have the same chains on them.” Tr. 42 (emphasis added).
Though Williams asserted that no inspector has ever told him that the chains must be of the same

44 FMSHRC Page 321

length, he agreed that it would be a good practice in that “in case the cars come apart, that they
would tighten up at the same time.” Tr. 43 (emphasis added). Williams amplified that response,
explaining that “[f]or the cars if they would separate, that the chains would tighten up at the same
time.” Id. To be precise, Williams agreed that the purpose is “to share the load that the supply
cars are putting on those chains.” Id. The Court notes that again this is an acknowledgement that
chains need to be of the same length. It is certainly not an aesthetic thing.
In fact, Williams agreed that if the chains are of different lengths, “one takes a load
before the other, and it takes a hundred percent of the load.” Id. And further that the chains are
designed so that each chain takes 50 % of the load, Williams agreed. Tr. 43-44. Williams agreed
that if he observed two different chain lengths, one side being longer than the other, he would
want to address such a condition. Tr. 44.
Returning to the subject of key stocks, Williams stated he wasn’t familiar with the term
“draft gear,” but he agreed that the end of the coupler assembly goes in the back of the car Tr.
46-47. However, he could not speak knowledgeably at all about the role that the key stock
serves, mechanically. Tr. 47. The Court intervened at that point, asking Williams if he knew the
purpose of the key stock, to which he responded, “I know that there's a piece of key stock welded
in there.”17 Id. (emphasis added).
As for Williams earlier remark about walking the slope, he stated that while debris was
removed from the path of the tracks, nothing was removed from the slope. Tr. 50. Regarding
safety concerns associated with the incident, Williams stated there are manholes, but no
crosscuts until one gets down into the mine. Tr. 51. He did not know if it occurred in this
accident, but he stated that debris or supplies from the runaway cars could have ended up in the
manholes. Id.
Returning to the topic of key stocks, Williams described them as “just a solid square
piece of steel. The ones that you're referring to, they're angled at each end, and they're welded
into place.” Tr. 52. Concerning to the Court, when Williams was asked if he found any key
stocks while he was walking the slope, he responded, he “[didn’t] recall seeing anything like
that. But that’s really not what [he] was looking for. [He] was just throwing stuff out of the
railway so the hoist car could pass.” Tr. 52-53.
In terms of alerting miners before a load is lowered, Williams spoke to the importance of
that, as “[i]n the mornings, that's when our motor men goes down there. Obviously, that's where
our supplies go to. So when the motor men need to come do their job in the morning, they most
likely, there could be motor men down there in the switches pulling their supplies out of the
17

A follow-up question by the Court underscored Williams’ very limited understanding
of key stocks. When asked again if he understood their purpose, he only answered “I do not
know if it's there to hold that rubber piece in, or if it's there to keep the coupler from turning a
certain distance. I don't know. I don't weld these things on or I don't work on the cars. … I'm not
a mechanic, so I really don't get into that depth of what all the pieces inside the car do.” Tr. 48.
Knowledge about how key stocks function or their purpose was not part of his training. Id.
However, as noted, he did know they are welded in place.

44 FMSHRC Page 322

switches into the mine.” Tr. 54. The switches are located “off to either side of the slope track
after you get down into the bottom of the coal mine. … [they] lead[] [miners] from the slope
track into other parts of the mine.” Id. Throwing a switch from the slope track will take one to
another track. Id. Motor men could be working at those switches. Tr. 54-55.
As to the speed of the runaway trip, Williams noted that the slope is steep and the cars
were freewheeling. They were, in his words, “moving pretty fast.” Tr. 56. And on the day of the
incident, there were miners working at the bottom of the slope. Tr. 57. There is a break room at
the bottom of the slope, which room is also referred to as a shanty or hen house. Miners are to
stay in that room when a trip is coming down the slope. Tr. 58. While he could only speculate,
Williams admitted that if one was not in the shanty, one would “have to jump out of the road
pretty quick to get away from it. But you would have to have a death wish to be in that area.” Tr.
59. Fire bosses also travel along the slope bottom. Tr. 60.
It is fair to state that Williams believed that the procedures, their “safety protocol” that
the mine had in place, protected against miners being in the slope area when loads are dropped.
Those procedures, including alarms and lights have been noted earlier. Williams did admit that
a danger to safety was presented by “94 tons of runaway trip running down the slope.” Tr.
64 (emphasis added).
On redirect, Williams described, again, the connection points and chains on July 17,
2020. Tr. 67-70. The Court observes that, as this has been discussed earlier, there is no purpose
served by repeating that information.18 Further, as noted, the paramount determination is that, at
18

Yet, the parties’ continued to address the connections, but in the Court’s opinion it was
of no added value. For the sake of completeness only, the go-round is presented here. On
subsequent redirect, Respondent’s Counsel again revisited the subject of chains. Williams
confirmed that there are three chains connecting the brakeman car to the supply car. Asked
again, later, Williams reconfirmed that three chains connected the hoist car to the supply car. Tr.
95. As Williams described it “there was one on the right. There was the one on the left that was
welded fast to the supply car, and there was one coming off of the hoist man car on the left side.”
Tr. 93, and Ex. P-7. MSHA 0057, time stamp 10:19. Speaking with reference to that photo,
Williams confirmed the presence of two chains, stating on the left “[t]hat's the one that was
welded fast to the supply car, and the other one is the one that pulled out of the hoist -- the
brakeman car, the hoist car.” Id. Thus, he stated, the one on the right side that was not welded
fast, pulled out of the brakeman car. He identified it as located in the middle of the picture. The
chains were discussed yet again on recross exam, with the Secretary referring to the same photo,
as above. Williams confirmed that the chain with a “J” type shape in the middle of the photo was
connected to the brake car, but he added that “[t]here was two connected to the brake car. The
two on the right that has no clevises are the two that was connected to the brake car, because the
clevises are still at the brake car.” Tr. 96. However, it appears that the Respondent’s Counsel was
trying to portray that there were three chains connecting the cars, but in fact as Williams
ultimately acknowledged there were really just two (2) chains. Williams admitted as much,
stating that one end of the three (3) chains “was not connected to the brakeman car.” Id. at 99.
The point, to which Williams agreed, is that on the left side there was one connection that
happened to use two chains. Tr. 99. All of this, in the Court’s estimation, simply serves to
obscure the critical fact – the chains were functionally of different lengths. Full stop.

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a minimum, functionally, the chains were connected in such a manner as to result in different
lengths. The Court finds that such a condition, as explained further infra, constitutes a failure to
properly maintain the chains because, to work as intended, they need to be of equal lengths.
A point of clarification on re-cross examination, Williams agreed that it is the clevis, not
the chain, that is welded to the supply car. Tr. 71, Ex. P-7, Bates stamp 0053, with a time stamp
of 7/23/2020 at 10:12. Tr. 72. Williams identified the photo as the supply car that was connected
to the brakeman car. Tr. 73. But again, to avoid muddying the waters, it should not be lost that,
essentially, Williams agreed that the chain lengths were not the same. Tr. 75.
In what the Court views as a concise summary of the arrangement, Williams was asked
“considering that there was a clevis welded in place on the left side of the supply car with a chain
attached, and on the same side of the brakeman car, or the hoist car, there was a welded clevis
with a chain attached, the only way for you to connect, or anybody to connect the chains so you
have a secondary connection, was with another clevis, was it not?” Williams responded, “Yes,
sir.” Tr. 77. Importantly, from that admission, Williams was asked if one has “to run the clevis
through one of the links of the chain?” Again, Williams agreed that was true. Id. Last, given his
two affirmations, Williams was then asked, “And so that will make it longer than the connection
on the right?” Williams answered without equivocation, “Correct.” Id. (italics added).
The Court then asked some questions under the topic of “back to the basics.” Williams
agreed that the hoist car was connected to the number one supply car. Tr 78. He then agreed that
the connection points between the hoist car and the supply car consisted of the coupler and the
two chains adding that there is the “figure 8 chain that goes around the couplers.” Tr. 79. Then
the Court inquired about the ‘gold’ colored chain, which gold chain, Williams informed, did not
break. Williams knew this because he saw that the clevis from the first supply car was still
connected to the hoist car, which hoist car still had the gold chain wrapped around the clevis. Tr.
80. Williams added that the two clevises were still connected, and that is the idea behind the gold
chain. Id.
The Court then turned to Williams’ testimony about the many checks that are done
concerning safety issues, such as the visual checks, inquiring if those checks were done solely by
Williams. His answer was that most of the time there is another hoist man with him during those
checks. Tr. 81. Williams also informed that, following the incident, he did see the car with the
missing key stock. Williams’ opinion was that with the immediate stop that occurred and the
break which followed, the weight of the car “made that coupler and the rubber piece that’s
connected to the coupler pull out with such force that it tore all that steel up.” Tr. 81-82. Thus, it
was his view that the “key stock would have been ripped out with the force of the coupler being
pulled out.” Tr. 82.
The Court was struck by Mr. Williams’ remark that the first thing he said to Mr.
McHenry was that all the chains were on and therefore asked why he said that first. Williams
answered that “Because when something like this happens at the mine, you're concerned for your
job, and I wanted to assure Rusty [McHenry] that I had done my job … I did my job right ...my
chains were there.” Tr. 83. The Court views this as an understandable human reaction and it
holds Mr. Williams in high regard in connection with this unfortunate, but avoidable, accident.

44 FMSHRC Page 324

The Court then asked what lessons were learned from the event. Williams responded that
“there was a mistake on [his] part … in [ ] leaving the switch in the 600 position.” Tr. 84-85.
Williams then added that he learned that the different length of chains, “making one chain
tighten up faster than the other” could have been a factor. Tr. 86. In further response to the Court,
Williams confirmed that he, with the help of another person, still examines the cars before a drop
is made. However, key stocks are still not examined before a drop is made. Tr. 89. Thus, he
agreed that the exam involves looking at the couplers and the chains, not the key stocks, because
it is “pretty difficult to see that piece of key stock.” Tr. 90.
Following the testimony of Mr. Williams, the Secretary called Michael Paul Snyder, who
is employed by MSHA as an engineer in their technical support office. Tr. 102. Although Mr.
Snyder’s title is mechanical engineer, he does not claim to be one. Instead, he is a registered
professional engineer (“PE”) in mining. Tr. 103. His experience includes inspecting hoists and
elevators. Snyder informed that a hoist needs five essential things: “[t]hey need to have
overspeed protection, they need to have overtravel protection, automatic stop, the brakes on the
hoist have to be capable of stopping the fully loaded system. And they also need safety catches.
Where in the case of a slope hoist, a brakeman car. That would function as the safety catches.”
Tr. 106.
Within his years of experience, he has investigated at least two incidents where slope cars
separated from a brakeman (hoist) car. Tr. 118. The Secretary offered Snyder as an expert in
mining engineering and hoisting and he was accepted as such. He is not an expert about chains or
couplers on hoist or supply rail cars. That determination does not mean that his testimony on
those subjects was without value.19 As Counsel for the Respondent acknowledged, and the Court
agrees, Mr. Snyder “can testify as a fact witness about what his investigation and report was.” Tr.
122-123.
With that issue resolved, Snyder testified that, in connection with MSHA’s investigation
of this incident, he was at the Bailey Mine on July 23, 2020. Tr. 124. He saw that
the “whole coupler assembly came right out of that first car, [aka the 187 strap car, the first car
that was connected to the brakeman car.]” Tr. 130. In fact, as also noted earlier in testimony, that
coupler was still attached to the brakeman car after the accident. Id. Snyder viewed that first
strap car where it and the other cars ended up, at the bottom of the slope. Ex. P 7. His testimony
included descriptions of photos showing the pocket where the coupler assembly had resided,
before being torn out. Tr. 136.
Speaking to the pocket of the strap car where the coupler had resided, Snyder described it
as “a rectangular piece of steel that's welded to another piece of steel that has torn and flapped up
away from the front of the 187 car. …[and] there's a block of steel, a rectangular piece -segment of steel on the inside right of the pocket. And then there's steel shaped like a U on the
inside of the pocket … [with that steel on the right side called] a key stock.” Tr. 137. There are
supposed to be four key stocks in the coupler pocket. Id., and photo at P-7, page 2, 7/23/2020 at
19

Snyder tested the hoist rope and examined the primary hoist house. Tr. 125-126. He
also went underground and viewed the wreckage. He created a report based on his visit to the
mine on that day. Ex. P-9, (MSHA 0240, a 16-page exhibit).

44 FMSHRC Page 325

10:12, MSHA 0054. Snyder confirmed what other witnesses had stated; that it is difficult to see
the key stocks without getting on one’s knees. Id.
Snyder then described the photo at page 3 of Ex. P-7, as looking into the opening “where
the draft gear portion of the coupler assembly would [normally] reside.” Tr. 138. The ‘draft gear’
refers to the plates and the compression pads that are part of the coupler where it sits in the
pocket. This arrangement is to prevent the coupler from coming out. Snyder stated that key
stocks are present in that photo. He identified three such key stocks: “two in the rear. [On the left
side he stated seeing] “considerable dust present, and [he saw] a little bit of rust on the left key
stock, and then some shiny material on the right key stock. Shiny steel. [He saw] a key stock to
the right, and [but he did] not see a key stock on the left front.” Tr. 139.
Asked about the rust and shiny spot, referring to the key stocks in the rear, Snyder’s
answer was non-responsive, as he stated those “would be used to provide support to the coupler
assembly when cars are engaging together on the surface. Or when you have a coupled car
pushing, there is some give within the -- the draft gear itself, because it's comprised of steel
plates with compression pads that do give it a little bit of cushion. They're not 100 percent rigid.”
Tr. 139. Counsel for the Secretary then asked again if Snyder knew why the rust and shiny metal
was present. He then answered, “[p]resumably impact. You know, just use. Before this was last
used, you know, steel on steel rubbing. In reference to the right rear key stock.” Tr. 140. Then,
when asked about the absence of a key stock on the left front and ridges of material with a
shadow behind them, Snyder stated he believed “that they're welded material welds that would
have been applied when -- in order to attach another key stock to this -- to this unit. … as well as
the right key stock.” Id.
On the important question of whether the key stock was present just before the accident,
Snyder responded that was part of what he was trying to determine when he looked at the car. He
stated that he “didn't see any evidence that the welds were disturbed to the point where we had
any type of recent metal failure in them. Nothing indicated -- nothing indicated that it was there
before the accident.” Tr. 141 (italics added). Supporting his view, when asked if the key stock
had been there immediately before the accident, he responded that he would expect “if it were
there, and you had, say, a weak weld or something like that. I would think you would at least see
some type of shiny metal similar to other areas of the car, this car, the metal pulled out, that
would indicate a presence of something steel being attached that was torn off or removed. I did
not see any evidence that indicated that anything was there.” Id. Thus, it was Snyder’s view that
the key stock had not been present immediately before the incident.
Snyder was then directed to the photo with the time stamp of 7/23/2020, at 10:13, Bates
stamp 0056. He identified it as “the right side of the -- of the 187 car, as you're looking at the car.
As evidenced by the blue pin in the silver paint on the shackle clevis.” Tr. 142. Asked if he could
tell if the coupler was new at the time, Snyder remarked “there had been a repair to this at some
point.” Tr. 143. To him, “[i]t looks like any old piece of key stock was taken here and welded in.
That's not something I would expect from a manufactured unit that has been in service as new.”
Id.

44 FMSHRC Page 326

Addressing the photo showing the secondary chains, MSHA 0057, with the date/time
stamp of 7/23/2020 at 10:19, Snyder expected to see only two chains, not three. He didn’t know
what purpose was served by the additional chain. Tr. 147. Importantly, Snyder, speaking to the
two chains, stated that “[t]he connection on the right of the strap car had 11 links of chain, as
well as the chain on the left. However, the chain on the left also included one shackle and two
additional links of chain. So it was longer than the secondary on the right.” Tr. 150. (emphasis
added). He added that “[t]he shorter one was 52 inches, and the longer one was 61 inches, as
measured.” Id.
Snyder saw no fresh metal in the photo on page 22, with the time stamp 10:55 and the
Bates stamp as MSHA 0074. That photo is of the left side of the pocket, showing the left rear
key stock in place. He brushed away the dirt to see the existing welds and the left rear key stock.
Tr. 164. Snyder saw no fresh metal in the photograph and further saw no evidence to lead him to
believe that the left front key stock was present immediately before the accident. Id.
Another photo of note has a time stamp of 13:16, MSHA 0107. It is a picture of one of
the shackle clevises from the brakeman car, showing the remnants of the pin that failed when the
secondary took the load. Tr. 179-180. The other clevis shackle on the brakeman car also failed.
Tr. 181, time stamp 13:16, MSHA Bates stamp 0109.
Reaching a summary of his investigation, Snyder expressed his “understanding of the
sequence of events that occurred from the time that the fully loaded trip started being lowered …
down the slope.” Tr. 186. Referring to Snyder’s testimony at the point when all the cars were set
to go down the slope, the trip went from 50 feet per minute up to 600 feet per minute, a rate far
more than the 300 feet per minute it was to travel. That rate activated the electronic overspeed of
the hoist, causing the brakes on the hoist to set. The brakes come on to try and stop the load but
when that happens, “the draft gear -- the coupler assembly pulls out of the strap car, and at this
point, at this point in time, the slack has not been taken up yet. So as -- as that's occurring, the
slack starts taking up, because the secondary chains are of unequal length, the first one loads up,
and to the point where it fails. The coupler has already pulled out of the car. The right side chain
to the right of the strap car looking into the mine, that fails. And then the secondary from the left
side takes up the load, and it also fails. So the trip continues down at an uncontrolled rate, and
miraculously winds up at the back of the mine.” Tr. 188-189.
Questioning by the Secretary then returned to the subject of key stocks, asking about their
purpose. Snyder responded “[w]ell, the best example is looking at the rear key stock because
that, when you push something, that stops it. That's what you have in place. That stops
movement of that assembly further into the pocket. And in the same fashion, front key stocks
prevent it from being pulled out of the pocket.” Tr. 189-190.
When asked if the key stocks are missing, does the coupler hold into the car, Snyder
responded “[i]t can hold -- up to [a] point, it can hold. But this was a shock loading event.” Tr.
190. Without a key stock “there's enough room for that draft gear to get out of it.” Id.
The Court then inquired, “[w]hat holds the coupler in place apart from the key stocks …
what secures the coupler?” Id. In that regard, the Court noted that Snyder informed that under

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nonstress conditions, the coupler would still stay in place and therefore it wanted to know why
that is so. That is, the Court was asking how does the coupler remain secured? Tr. 191. Snyder’s
answer was nonresponsive as he informed that even with a key stock missing and one was
dragging the car around the yard, another key stock may be able to hold and grab the coupler. Id.
The Court tried again and then Snyder informed that the coupler was not designed to stay in the
pocket without the key stocks. Id. Making sure it was clear about Snyder’s statement, the Court
asked “[b]y design, the key stock is essential -- is it fair to say it's essential for a coupler to be
secured with key [ ] stocks.?” Snyder answered, “Yes, sir.” Tr. 191-192.
Snyder was unequivocal that when a shock load occurs, as happened here, the secondary
connections have to share the load. Consequently, the chains must be of equal lengths. As he
stated, “You can't have unequal lengths. You don't have even a chance unless they're the same
length.” Tr. 198. But because the chains were not of equal length, when the shock load occurred
the pins on the shackles failed. Tr. 198-199.
Based upon his investigation and his engineering background, Snyder’s view was that the
left front key stock was not present at the time of the incident. Tr. 199. In his view, the missing
key stock “absolutely” contributed to the incident. Id. In terms of the sequence of the events,
Snyder stated that the coupler came out first. After that, with the mismatched chain lengths, the
shackles failed. Tr. 200.
Questioned about his report, Ex. P-9, MSHA 0242, under cross-examination and, within
that report, the remark that “no markings or failed portions of weldments were observed
indicating that the left key stock may not have been in place when the accident actually
occurred,” Snyder agreed that the key stock is not a coupler, but it is the device that holds the
coupler in place. Tr. Tr. 205- 207. Snyder reaffirmed that he took measurements, finding that one
chain was 61 inches long and the other 52 inches. Tr. 209-210.
Snyder held to his view that the key stock was not present when the incident occurred,
stating that it was not speculation on his part “because [he had] no evidence of anything fresh on
the weldment, when it was actually cleaned looked at and, you know, there was nothing there.”
Tr. 226. However, he did allow that “if the weldment had been rusted and broke off, [he]
wouldn't have any indication of a weldment or disturbance there.” Id. From that he agreed it was
possible that the key stock could have been in place and the weld may have been rusted. Tr. 226227.
On day three of the hearing, December 2, 2021, Russell McHenry testified. Presently, he
is the assistant superintendent. Before that, for about seven years, he was the mine foreman. Vol
III, Tr. 6.20 McHenry was notified when the accident occurred on July 17, 2020. Tr. 12. The
hoistman, Williams, informed him that the hoist switch was on 600 feet per minute and had
tripped off on overspeed. Tr. 14. Later, McHenry stated what others had said, that the hoist
switch had been inadvertently left at 600 feet per second, which he believed caused the
overspeed condition. Tr. 20. When he went to the bottom of the slope he checked the safeties –
lights and siren. Tr. 14. He also looked at the brakeman car, where it was found that the clevises
20

Hereinafter, unless otherwise indicated, transcript page references are to Volume III.

44 FMSHRC Page 328

were broken. Tr. 15. McHenry was then asked about July 23, 2020, the date of MSHA’s second
visit to the mine, and Ex. P-9 at page 0242. Along with others, including MSHA inspector
Vargo, there was an examination of the wire rope and hoist equipment and the group also looked
at the cars on the bottom. McHenry recalled that they also looked at the coupler pocket on the
furthest outby car [i.e. the No. 187 supply car]. Tr. 17. In that regard, he stated, “looking at the
car, the left -- I believe it was the left hand key stock was at that point missing. You could see
where the weld and things was there, but, you know, we tried to determine what was the failure
in the system. And what we did notice it was missing.” Tr. 18.
McHenry then stated that they “did have guys look for the key stock” up the slope, but he
did not believe anybody ever located it. Id. He described a key stock as “just a square or just a
piece of metal that would have been welded inside the car, inside the coupler pocket as a stop.”
Tr. 20. (emphasis added).
As for the safety chains, McHenry stated that they were not broken, “they were actually
still the -- coupled to the car on the bottom. It had broke the clevises on the brakeman car. They
(they, meaning the chains) were all equal lengths, and the -- one of the brakeman car chains had
actually -- was coupled to the chain on the -- the welded chain on the car.” Tr.18. (italics added).
The Court notes that while McHenry’s remark that the clevises broke, is true, it sidesteps that
they broke because the chains, one being longer than the other, caused them to break. There is
substantial credible evidence that the chains were not of equal length, either functionally, or as
secured.
Further speaking to the allegation, regarding Citation 7033990, that the safety chains and
safety chain connection points were not properly maintained, McHenry restated that “none of the
safety chains were broken, nor the connection points on the cars.” Tr. 21. He added that by
connection points, he meant “the welded pieces of the cars were damaged.” Id. What broke were
the “two clevises that were attached to the brakeman car,” not the chains. Id.
Asked about the length of the safety chains, and the allegation that the left inby safety
chain measured approximately 52 inches in length and the right inby safety chain measured
approximately 61 inches in lengths, McHenry answered that “[i]t wasn't the safety chain
themselves. As [he] said before, on that side that was longer. The safety chain for the brakeman
car was brought up and attached to the safety chain on the car itself which extended the length of
the overall system.” Tr. 21-22.
Asked if he had ever heard before this incident about the length of safety chains with
anybody, McHenry responded that he didn’t “believe so.” Tr. 22. Nor was he aware of any
literature or documents about the length of safety chains. Id.
Turning to Citation No. 7033991 and the allegation that alleges that the left front key
stock inside the coupler pocket was missing, and that there were no marking or weld material on
the pocket where the key stock should have been located, McHenry stated he did not agree with
that claim, “[b]ecause there was. There was key stock. It was welded on either side. On the
internal side and the[ ] external side, there was weldment left.” Tr. 22-23.

44 FMSHRC Page 329

Upon cross-examination McHenry, made important concessions, agreeing that the safety
chains were all 11 links long and agreeing that the purpose is to ensure that the secondary
connections are of equal length and that is to ensure that those connections share the load of any
car that becomes uncoupled, and further agreeing that if those connections are of unequal
length, the load is not shared. Tr. 25. (italics added). Then, McHenry agreed that “[w]ith the left
side secondary chain connected to the welded chain on the supply car, that made it longer than
the one -- the secondary connection on the right; correct,” answering “[y]eah with the two chains
coupled together made it longer.” Id. (emphasis added).
Turning to the weldments in the pocket and his remark that they were there, McHenry,
when asked to confirm that he saw no fresh breaks where it looked like metal had broken away,
answered “[t]o be honest with you, where the cars had crashed on the bottom was all covered in
dust and dirt, and it was -- nothing was -- looked fresh or clean. I mean, I couldn't tell.” Tr. 26.
Then McHenry was asked about no one finding the missing key stock when they were
looking, and he confirmed that, to his knowledge, no one found it and it had never been
recovered. Tr. 26. McHenry also agreed that the secondary chains are a safety feature but
admitted that safety feature did not work as “there was a failure in the coupler pocket, and it
failed the safety chain on the one side -- failed the clevises on the car.” Tr. 27-28. Moreover, he
admitted that he doesn’t know if the key stock was present immediately prior to the accident. Tr.
28. McHenry then acknowledged that he was present when Mr. Snyder from MSHA’s technical
support investigated the site and that he observed “him use a wire brush to clean off the
portions of the pocket.” Id. When Snyder used the wire brush for that cleaning, McHenry
admitted that he didn’t see any fresh breaks in metal where those weldments were, answering “I
don't believe so.” Id.
On redirect, Counsel for the Respondent asked McHenry regarding the subject of the key
stocks and the ability to see any fresh breaks in metal, “if the weld was rusted, would [he have
been able to] see a fresh break.” McHenry answered that it depended on the way it's broke. Tr.
31. The rust could be internal and therefore not visible. In such a case the only way to determine
if there's a crack in metal is with an X-ray or some like process. Tr. 32.
In another round on the same issue, upon further cross-examination, McHenry agreed,
with reference to Ex. P-7, and the photo with time stamp 10:12 and Bates stamp 0055, identified
as the pocket of the No. 187 supply car, that the rear key stock has a shiny bit of metal, but on
the front key stock where the weldments appear, there was no shiny spot. Tr. 33-34. Then,
staying with the same exhibit, but directed to the page with a time stamp of 11:03 and Bates
MSHA 0078, McHenry confirmed that photo depicts the left weldments and that he saw no shiny
metal. Tr. 36. He also agreed that if a weld were to fail, there would be some indication of metal
tearing away and fresh metal. Id. McHenry then admitted that “[n]o, [he] didn’t see anything that
something immediately happened here.” Tr. 37.
Not yet over, on redirect McHenry, upon being directed to Ex. P-6, with a 7/17/2020 date
and a time stamp of 17:28, Bates stamp 0051 and described by counsel as an “accordion looking
thing,” identified it as “a series of rubber and steel plates that absorb the shock of the coupler,”
which he believed is called the “draft gear.” Tr. 38. For this, directed to the square plate at the

44 FMSHRC Page 330

beginning of the draft gear toward the brakeman car, McHenry was asked if he saw “any damage
on the front plate on the front of that draft gear that appears fresh?” Id. McHenry responded yes,
that “it appears like there's a strand at the bottom coming up at least three-quarters of the way or
further that is worn -- it's freshly worn metal,” and he confirmed that it is on the same side of the
draft gear that would have been in contact with the left key stock. Id.
The Court asked if McHenry, as the general mine foreman, and after speaking with
Consol people, came to a conclusion as to whether the key stock was missing prior to the
incident. McHenry responded that he believed “the key stock was there, and the extra force
caused by the -- it running at 600 feet per minute, when the stop happened, it ripped it off of
there and turned that coupler pocket sideways, and as a result, broke the safety chains.” Tr. 43.
However, when asked if any Consol person expressed a different point of view on the issue of
whether the key stock was not present, he responded, “I don't believe so.” Tr. 44. The Court
dismayed by the answer, continued, “[w]ell you say you don't believe so. That would be
something you'd remember, is it not?” McHenry responded, “I would think so, yes. But I don't
recall anyone mentioning that that key stock was missing prior to or anything like that.” Id.
The Court, continued, asking, “[s]o what is the basis for your opinion that the
key stock was there prior to the accident?” Tr. 44. His responded it was on “[w]hat [he saw] on
the base of this metal here that there was wear there. And if that was not wore -- I mean, if that
was rusted, the only way for that to be wore there and be shiny is if it was rubbing against
something.” Id. McHenry added that he was referring to Ex. P 6, MSHA photo 0051 when he
made that remark, elaborating that Consol “saw wear on the front of that, like it was there, like,
you know, there was damage to the front of that. Like something was there, and it -- something
happened there at that point. It wasn't all rusted.” Tr. 45.
The Court then asked of McHenry if Consol “made a thorough investigation of the area
to find that key stock,” to which he responded, “Yes, sir,” and then confirmed that Consol did not
find a key stock, answering “[d]id not, no sir.” Tr. 46. (italics added).
The matter still not finished, on further re-cross-examination, McHenry conceded that if
the key stock had broken off, that would have happened closer to the knuckle and that, not
anywhere near the 1,700 feet of the slope, and that the area around the knuckle would only be a
few hundred feet. Tr. 49. Thus, he conceded that the key stock, if it broke away at the time of the
accident, it would have been “[i]n that general area.” Tr. 50. Later he admitted that if it broke
away at the time of the accident, it should have been somewhere around there. Tr. 52.
The obvious and important point of those questions is that the area to search for the key
stock was not lengthy.
McHenry confirmed that he had people look for the key stock, though he could not be
precise if that direction was immediately after the accident. Id. As to whether he directed that the
search be focused on the area where the cars broke away, he could not recall. Id. Further, in the
area where one would expect to find the key stock, if it had come off at the time of the accident.
McHenry described the area as having a “concrete base” with some gravel from the cars. Tr. 51.

44 FMSHRC Page 331

The Court notes that, given the modest area to search, if the key stock had indeed torn off
during the accident, one would have expected to find it. He then admitted that the key stock does
not look like gravel, as it is of rectangular shape, about six to eight inches long and about an inch
or two thick. Tr. 50-51. Significantly damaging to the Respondent’s contentions, McHenry
agreed, half-heartedly, that finding the key stock to show that it existed and was in place on the
car prior to the accident would be important evidence for Consol, answering “I guess so, yes.”
Tr. 51.
Michael Craig Tennant was then called by the Respondent as a witness. He has been
employed by Consol for more than 20 years. In 2008 he was promoted to safety supervisor, a
position he held at the Bailey Mine at the time of the accident in this matter. Tr. 56. In that
capacity, his responsibilities include accident investigations. Tr. 59. Tennant then related his
version of the events on the day of the accident, which version as to the basic facts, was in line
with the other witnesses in this proceeding.21 Tr. 60-61.
Mr. Tennant did offer his view regarding the two safeguards which formed the basis for
two of the citations in this case. With Counsel for the Respondent asserting that Citation No.
7033990 was issued “based on the length of safety chains,” he asked Tennant if safeguard No.
7070545, per Ex. P-2, addresses the length of safety chains. Tennant responded that it did not,
but rather the “condition of the metal eyelets used to connect the safety chain.” Tr. 68.
Respondent’s Counsel then directed Tennant to the condition or practice of the safeguard,
reading from it that “this is a notice to provide safeguard requiring all rolling stock to have
properly maintained safety chains and safety chain connection points.” Tr. 69. Having read that
passage, Counsel asked Tennant if there “[w]as any issue with maintenance of safety chains in
the July 17th of 2020 incident?” Tennant responded, [t]here was not.” Id. When next asked
“[h]ow about the safety chain connection points,” Tennant gave the same response, “[t]here was
not.” Id.
The Court would comment again that, while Mr. Tennant and other witnesses who
testified in this proceeding, as well as counsels for the parties, are free to express their views of
the scope of the two preexisting safeguards, as well as the new safeguard issued in the wake of
the accident at the mine, ultimately, at least in the first instance, it is up to the Court to rule on
these issues. It is noted that Mr. Tennant went on to opine on more of these safeguard related
issues. Tr. 69. The Court takes the same stance on those views as well.

21

When the Court describes Tennant’s testimony as in line with those witnesses who
proceeded him, it is referring to the hoist speed being set at 600 instead of 300 feet per minute,
and the overspeed sensor triggering the brakes. However, for some details, he misspoke by
describing the effect of the brakes as “[w]hich caused the coupler pocket of the first car hooked
to the brake car to come out of the coupler pockets. Obviously breaking the safety chains that
were on each side of the car.” Tr. 61. The weight of the evidence is that the coupler “pocket” did
not come out; the coupler did, and there is general agreement that the chains didn’t break, the
clevis did. Later, he corrected himself about the chains, informing that the shackle pin broke. Tr.
67. His corrected statement is in line with the testimony of others.

44 FMSHRC Page 332

Turning to the citation based on Safeguard No. 7070546, requiring properly maintained
couplers, issued on October 25, 2011, per Ex. P 4, and the citation based on that, Tennant was
asked whether, regarding that safeguard’s requirement “that all slope brakeman car and all
rolling stock will be provided with properly maintained couplers,” if the couplers associated with
the accident were “properly maintained.” Tennant responded that they were maintained properly
on July 17, 2020. Tr. 70.
Asked about a key stock, Tennant described it as “a piece of metal that is installed inside
the coupler pocket to hold a set of baffles that ultimately holds the coupler inside the car.” Tr.
70-71. (italics added).
Respondent’s Counsel continued with his questions directed at Tennant’s take on the
safeguards in this matter, noting that Safeguard No. 7070546 “also requires all couplers on
rolling stock to be examined prior to being hoisted and prior to being transported throughout the
mine.” Tr. 71. Tennant’s view was that the term ‘examination’ required “[t]o make sure that the
couplers seat together. There's -- they're a -- they're designed to snap together to not allow them
to come apart. That would be the -- the exam that would need to be done to make sure that those
couplers -- one coupler can be attached to another.” Id.
When then asked if key stocks would be part of such an examination, Tennant expressed
that would not be required under the safeguard, because it would be impractical since most, but
not all of the rolling stock would have to be “flipped upside down to see all of the key stocks
involved with holding the coupler pocket in place.” Id.
Tennant agreed upon further recross, that examining safety chains is part of the car
inspection process. Tr. 74. He also agreed that the shackles or clevises are part of the connection
with the safety chains. Id. As to the length of the chains, when asked if they are “all 11 links
long,” he responded, “[t]hey are now, yes, sir.” Tr.75. (italics added). As to whether it is
important that the chains be the same length, he answered “I would say yes, sir.” Id. He also
agreed that being the same length is important “because they need to bear the load equally in the
event that the primary connection fails,” adding, “[g]oing down the slope, yes, sir.” Id.
Continuing, when asked the following: “in this case, the safety chain was on the left
connection looking inby. That safety chain was connected to the links of another safety chain …
[a]nd that made it longer than the one on the right … [s]o when the accident occurred, the right
side connection, after the coupler failed, the right side connection loaded first … [a]nd that bore
100 percent of the load … [t]hen that failed … [a]nd then the other side, the left side that was
longer, then that bore 100 percent of the load,” Tennant agreed with each of those assertions. Tr.
75-76. He also agreed that at least post the accident he would not permit different lengths for the
chains. Tr. 76. Further, he admitted that the purpose of the chains is to stop the cars if the
primary connection failed. Tr. 77. Previously, he had thought, incorrectly, that one chain would
suffice. Id.
Regarding the key stocks, Tennant expressed that, without turning the cars upside down,
one couldn’t see all the key stocks. Id. However, he admitted that he has never done such an
inspection of the key stocks without the car being upside down, and so his remark about seeing
key stocks when the car was not upside down was “speculating” on his part. Tr. 78. It was his

44 FMSHRC Page 333

understanding that Consol never examined or inspected key stocks. Tr. 78-79. He informed that
he simply did not know if the missing key stock was present before the accident, and to his
knowledge, no one at Consol found it. Tr. 80.
Then, a dramatic moment occurred in the hearing, when the Court commented that
Tennant, as the mine’s safety supervisor, would be the person who would know if a key stock
was found. Tennant then reversed his previous statement, this time responding, “I believe that
there was a key stock found, Your Honor. But I'm not sure where that key stock came from. A
key stock is just a square piece of metal. I wouldn't know where a square piece of metal came
from. I believe there was one found on the slope track when they were initially walking down.
I'm not sure if it was a key stock or something that came off of a car. They're not any different
than any other rectangular piece of metal.” Tr. 80-81.
As Tennant seemed to back off his earlier remark, the Court noted that he “just said a
minute ago, did you not, that a key stock was found.” Tennant then reaffirmed his revised
remark, stating “[t]o my knowledge it was. It was not given to me.” Tr. 81. Yet, surprisingly,
upon being informed that a key stock was found, Tennant stated he asked no questions about it.
Id. In fact, displaying a remarkable lack of curiosity, he never even looked at it.
Tennant then modified his remark again, stating that “[s]omeone told [him] that they
found a piece of metal on the slope track that they called a key stock or that resembled a key
stock,” but he couldn’t recall who told him about this. Tr. 81-82. (emphasis added).
When then asked whether “Consol retain[ed] the key stock” he answered he “did not
retain that key stock, so I'm going to say no.” Tr. 82. Seemingly confused why it would be
important to retain it, Tennant offered “[a]t that time, it was not our concern to show a key stock
to someone. It was our concern to figure out what caused this incident, and figure out how we
can prevent it in the future.” Id.
The Court cannot help but comment that Tennant’s answer was perplexing, as a missing
key stock could have been a significant aspect in Consol’s task of figuring the cause of the
accident. Nevertheless, Tennant had a different take on the value of the key stock that was,
allegedly, found in determining the cause of the accident. When asked if “it would be important
to know whether that key stock was there before the accident,” he responded only that “[i]t
would be -- it would be handy to know that, but it wouldn't change what we found in our
investigation.” Tr.82 (emphasis added). Yet, he conceded its value. When asked if it was correct
that “if that key stock wasn't present immediately prior to the accident, then that connection
would have been compromised,” he answered, “yes sir.” Tr. 82-83. Tennant also disclosed that
the key stock or, as he alternatively described it, a piece of metal, was found on the day of the
accident. Id. He then admitted to being aware that there was a 103(k) order that had been issued
“to preserve the scene of the accident on that date.” Tr. 83. He also admitted the piece of metal
would have been considered to be evidence, and important evidence at that. Tr. 84.
At that point in the proceeding a sidebar conference was held at the request of the
Secretary of Labor. Attorney Kooi, for the Secretary, stated “this is the first time we've heard
anything about, you know -- anything resembling a key stock missing, being found. This wasn't

44 FMSHRC Page 334

preserved by Consol. There was an active 103(k) order at the time of the accident -- or not at the
time of the accident. Shortly after the accident, issued verbally by the inspector. Consol did not
preserve the evidence.” Tr.87. For that reason, the Secretary moved for “an adverse inference
that the key stock was not found and was not present at the time of the accident. Because they
didn't preserve the evidence that they claim to have found, this one witness, and it's integral to
the case, and it should be no surprise that that is a key piece of evidence. And they were under an
obligation to maintain it. If -- not only because of the 103(k) order, but because it was an
accident, and the -- you know, it was very easy to anticipate litigation stemming
from this.” Tr. 87-88.
The Respondent countered that the 103(k) order permitted Consol to clean up the debris.
And that Tennant “never followed up on it, because at that time, there had not been an allegation
or any investigation that a key stock was at issue. That investigation didn't commence until six
days later.” Tr. 89. The Court is not impressed with the argument advanced by counsel for
Consol because it runs counter to the purpose of the 103(k) order. The government can’t be
clairvoyant and therefore it could not know of the significance of a key stock moments after the
accident occurred. The Court made an initial adverse inference but advised that there would need
to be a motion filed with regard to it and, following a response to the motion, it would issue a
final ruling.
Following the sidebar discussion, testimony from Mr. Tennant resumed, with Attorney
Dennison asked the witness about the (k) order, including the day and time it was issued, and the
same information regarding modifications of it. Tr. 100-101. Though Tennant recalled someone
mentioning a key stock he could not recall who told him that. Tr. 103. Asked if he had any
reason to take notice of that information at that time, Tennant responded he did not, informing,
though he was then the mine’s safety supervisor, he didn’t know what a key stock was. Tr. 104.
Yet, with that perplexing answer, and that he felt no need to ask questions upon being told of the
key stock, he then stated “and there was no reason to believe that a key stock had anything to do
with the incident.” Id. That is a remarkable answer: after asserting he didn’t know what a key
stock is, and that he was bereft of such knowledge, and yet he was still able to conclude that
“there was no reason to believe that a key stock had anything to do with the incident.” Id.
The Court taken aback by Tennant’s responses, asked, “[y]ou mean to say, sir, that
someone tells you there's a key stock found, you didn't know what a key stock was, and you
didn't say, well, what do you mean by a key stock? You didn't ask?” Id. He answered that he did
not ask but he tried to explain the omission by adding that there was a lot of metal and debris
along the slope and “it did not sink in that key stock was that big of a deal.” Tr.104. Regarding
that remark, the Court observes that compliance with MSHA’s 103(k) order was not dependent
upon Consol personnel determining what was a “big deal.”
The Court’s Ruling on Secretary of Labor’s Motion for an Adverse Inference, namely that
a key stock was not in place at the time of the accident. Sec’s Motion at 12, 13.
This very interesting issue arose in the context of the hearing in this matter involving
allegations of two violations of notices to provide safeguards. The adverse inference sought by

44 FMSHRC Page 335

the Secretary is that a key stock was not in place at the time of the accident and that the missing
key stock was not found. Sec’s Motion at 12, 13.
Though described above, it is useful to summarize the relevant facts. One of the
safeguard notices is involved with the Motion for an adverse inference, Safeguard notice No.
7070546. That safeguard notice informed that “it was determined that the coupler and mounting
bracket on the Slope Brakeman Car is not being maintained.” Id. (emphasis added). The notice
summed up its requirement that “that the slope brakeman car and all rolling stock will [be]
provided with properly maintained couplers.” Id. It is plain from the text of that notice that it
pertained to the determination that the coupler and its mounting bracket were not being
maintained. In this instance, after the accident occurred, it was found that the No. 187 supply car
was missing its left front key stock.
The Secretary’s Motion begins, as it must, with a brief summary of the undisputed facts,
to wit that, on July 17, 2020, around 10:30 a.m. “a non-injury accident occurred at Respondent’s
Bailey Mine on the Crabapple slope track … [when] six fully loaded supply cars weighing a total
of approximately 94 tons became disconnected from the brakeman car or hoist car that was
lowering the slope cars into the mine via the slope hoist. … After they disconnected, the six
supply cars traveled uncontrolled at a high speed from approximately 100 feet inby the slope
entrance for approximately 1,600 feet until the supply cars crashed into the coal seam at the
bottom of the slope track.” Motion at 2.
The same day, as noted by the Secretary, a 103(k) Order (“Order”) was issued on July 17,
2020 at 1357 (1:57 p.m.), which was about 3 ½ hours after the accident event. That 103(k) Order
announced that it was being issued to protect the safety of all persons on-site but also “including
those involved in … the investigation of the accident.” Importantly, under the Order it provided
that “[t]he Mine Operator shall obtain prior approval from an Authorized Representative of the
Secretary for all actions to recover and/or restore operations in the affected area. Additionally,
the mine operator is reminded of its existing obligations to prevent the destruction of
evidence that would aid in investigating the cause or causes of the accident.” Motion at 2,
and Ex. P-8 at MSHA0133 (emphasis in original).
It is true that, following the issuance of the Order, it was modified twice, once, about four
(4) hours later, to “permit the Operator to start to clean debris and supplies on the slope track
between the bottom of the slope and the inby number 4 slope bottom switch” and a second time,
about an hour and a half following the first modification, “to permit the Operator to clean the
slope track and slope bottom track of debris prior to restoring the slope track and hoist car to it's
[sic] normal use of operations.” Id., Ex. P-8. (emphasis added).
It is undisputed that a coupler connects each slope car to one another and that, when the
accident occurred, the coupler for supply car No. 187, which was joined to the coupler on the
brake car, failed, coming out of the supply car’s coupler pocket. Couplers are held in place in the
coupler pocket by key stocks. There are four key stocks securing each car’s coupler; two are in
the rear, and two are in the front, with both on the left and right side of the coupler. Key stocks
act like a sandwich, fore and aft, on the coupler as it sits in the coupler pocket.

44 FMSHRC Page 336

In support of its motion, the Secretary cited Lincoln Leasing, 37 FMSHRC 1551 (July 13,
2015) (ALJ). There, the Secretary sought an adverse inference “based on Respondent’s failure to
produce pre-operational examination records for the two weeks prior to the event in question.”
Id. at 1553. Regarding the principle, Judge L. Zane Gill stated:
“It is well-recognized that if a party has control over a writing or other type of evidence,
which is relevant to an issue, and fails to produce the evidence, an inference can be drawn that
the evidence would be adverse to the party.” IO Coal Co., Inc., 31 FMSHRC 1346, 1359, n.11
(Dec. 2009). Indeed, ‘[w] hen a party intentionally destroys evidence in its control, a judge has
discretion to draw an adverse inference that the evidence destroyed would have been unfavorable
to the destroying party.’ Dynamic Energy, Inc., 33 FMSHRC 1998, 2006-07 (Aug. 2001) (ALJ
Paez) (citing Kronsich v. U.S., 150 F.3d 112, 126 (2d Cir. 1998)). McCormick on Evidence
provides that “[w]hen it would be natural under the circumstances for a party to … produce
documents or other objects in his or her possession as evidence and the party fails to do so,
tradition has allowed the adversary to use this failure as the basis for invoking an adverse
inference.” 2 McCormick on Evid. § 264 (6th ed. 2006) at 220-21. Additionally, the Commission
has held that an Administrative Law Judge must address missing preshift examination reports
because the operator had them within its control and should have anticipated litigation. See IO
Coal Co., Inc., 31 FMSHRC at 1359’” Id. at 1553.
Finding that it was “troubling and highly suspect that Lincoln Leasing was able to
produce reports for only three days, yet its pre-operational records were kept in a bound 30-day
book,” Judge Gill concluded that “[w]hen Lincoln Leasing destroyed or misplaced the preoperational reports, it had control over the reports and knew it had an obligation to preserve them
in anticipation of litigation. The Secretary is entitled to an adverse inference …” Id. at 1554. The
judge limited the adverse inference to the citation for inadequate brakes. Id.
In a similar case, cited by Judge Gill in his Lincoln Leasing decision, Judge Alan G. Paez
also made an adverse inference in Dynamic Energy, Inc., 33 FMSHRC 1998 (Aug. 31, 2011),
where Respondent, Dynamic, had missing preshift reports regarding a portal bus and CAT
Loader. Judge Paez stated: “[i]n light of Dynamic’s unexplained and questionable selective
retention of records, [he] determined that when Dynamic destroyed the preshift reports, it knew it
had an obligation to preserve them in anticipation of litigation. .. [b]ecause operators are required
to maintain preshift report records for 30 days …” Id at 2009-2010. He therefor drew the adverse
inference that concluded that “the preshift reports would have shown the defects to have
existed.” Id. at 2018.
Respondent’s Response in Opposition to the Secretary’s Motion for an Adverse Inference
Respondent maintains that the Secretary has not established that Respondent spoliated
evidence. Response at 2-3. Respondent contends that it had no obligation to preserve the key
stock because “at the relevant time, Respondent did not know that the key stock would assist in
investigating the cause or causes of the incident … [and Mr. Tennant, Respondent’s safety
supervisor] testified that he had no reason to believe a key stock had anything to do with the
incident at the time of the investigation.” Id. at 3.

44 FMSHRC Page 337

To this, the Court responds that, particularly given Mr. Tennant’s own description of his
lack of any knowledge about key stocks, it was very clearly not for him to decide what evidence
would assist in investigating the accident.
The Respondent also contends that it was excused from any duty to preserve a key stock
because modifications of the Section 103(k) order by MSHA permitted the cleanup of debris
from the slope track. Id at 4. The Court rejects this contention. The term “debris” is not
synonymous with “evidence,” and Mr. Tennant’s own testimony reveals that he was informed
that a key stock was found. That he may have been ignorant about its import, his role as the
mine’s safety supervisor required a proactive reaction when so informed. Though, as the
Respondent notes, the modifications permitted clean-up of the slope track and slope bottom track
of all debris prior to restoring the slope track and the hoist car to its normal use of operation, the
duty to preserve potential evidence remained intact.
Respondent also maintains that it did not spoliate the evidence knowingly or negligently.
Id. at 5. The problem with this assertion is that the 103(k) Order put the Respondent on notice of
its obligation to preserve the scene of the accident on that date and Tennant himself admitted that
the piece of metal would have been considered to be evidence, and important evidence at that. In
fact, Tennant’s claim that “he ‘didn’t know what a key stock was, for one, and there was no
reason to believe that a key stock had anything to do with incident [and that] [a]t the time, [he]
did not - it did not sink in that key stock was that big of a deal,’” does not excuse his action. Id.
at 3, citing Tr. III at 104. Rather, it highlights that he should have taken charge of the key stock
when so informed of it.
So too, the Respondent’s attempt to sidestep its responsibility to preserve evidence, by
shifting the blame to the Secretary for failing to conduct discovery, is rejected.
The issue presents a conundrum – did the Respondent in fact find a key stock after the
accident or was no key stock actually found? Resolution of either alternative does not enhance
the Respondent’s claim that the missing left front key stock from the first strap car was present
before the accident occurred.
In the event that it fails in attempting to persuade the Court regarding its contentions on
this issue, the Respondent asserts that “an adverse inference is an extreme and inappropriate
sanction.” Id. at 9. For this argument, the Respondent contends that bad faith must be shown and
that to establish that “in the context of spoliation, generally [this] means destruction for the
purpose of hiding adverse evidence.” Id. at 8. Lacking a showing of intentional or willful
conduct by the Respondent, Mr. Tennant’s mere ignorance when informed of the key stock does
not amount to such conduct. Id. at 9. Instead, the Respondent urges that the Court “consider[ ]
the applicable testimony regarding the key stock and g[ive] proper weight to the applicable
testimony and evidence.” Id. at 10.
As noted below, in fact, in ruling on this issue the Court applies both approaches. That is
to say, the Court finds that the adverse inference is warranted and, apart from that determination,

44 FMSHRC Page 338

the weight of the credible evidence, as discussed, establishes as a finding of fact that the left key
stock was missing before the accident occurred.
Having reviewed and considered the Secretary’s Motion and the Respondent’s Response
thereto, the Court finds that the missing key stock was solely in Respondent’s control and is
relevant to an issue in this case. In connection with those findings, the Court also finds that that
the “Respondent and its personnel were the only entities or people in control of the accident
scene, equipment, and wreckage before the MSHA inspectors arrived at the mine. Further, any
evidence found would have remained under Respondent’s control as no missing key stock was
discovered by or turned over to MSHA.” Sec. Motion at 10.
The Court further finds that the Respondent withheld evidence when it failed to preserve
the missing key stock which the Mine Act, and MSHA’s 103(k) Order, required Respondent to
preserve.
If, in fact, a key stock was found, a difficult proposition to support, as Respondent’s
witness Michael Tennant, the mine’s safety supervisor, presently, and at the time of the accident,
was the only Consol employee to make that claim, then the duty to preserve that evidence is clear
and the Secretary’s Motion for the adverse inference is supported by the facts and case law.
It is clear that where spoliation of evidence occurs, a court has the discretion to impose
sanctions for that, which include drawing an adverse inference from such spoliation. Sec’s
Motion at 8, citing Gentex Corp. v. Sutter, 827 F. Supp. 2d 384, 391 (M.D. Pa. 2011).
Under this first alternative, the Court makes the adverse inference that the missing
key stock was not found and was not in place at the time of the accident.
Alternatively, apart from the adverse inference that the Court has made, given the shaky
testimony of Mr. Tennant on the subject, it is reasonable to conclude that no key stock was found
and that, at most, if something was found at all, it was a nondescript piece of metal. Under this
alternative, no key stock was ever found, leaving the Court to make a determination whether the
missing key stock was missing before the accident occurred or came out as a consequence of it.
For the reasons set forth in several locations in this decision, the Court finds that the more
credible evidence is that the key stock was missing before the accident happened.
Analysis
Safeguard Case Law
Section 314(b) of the Mine Act grants the Secretary authority to issue “[o]ther safeguards
adequate, in the judgment of an authorized representative of the Secretary, to minimize hazards
with respect to transportation of men and materials …”
As this Court noted in its decision in Oak Grove Resources, 35 FMSHRC 842, (April
2013) (ALJ), aff’d 38 FMSHRC 1273 (June 2016), “[t]he Commission has spoken to the issue of
safeguards on many occasions, but its … decision on the subject in American Coal neatly ties in

44 FMSHRC Page 339

and summarizes its law on the issue. 34 FMSHRC 1963, 2012 WL 4026649, Aug. 2012. In
American Coal the Commission reviewed its precedent, beginning with its holding in Southern
Ohio Coal Co., 7 FMSHRC 509, at 512, (“SOCCO I “), noting that a safeguard notice must
identify with specificity the “nature of the hazard” at which it is directed and “the conduct
required” to remedy that hazard. It explained that the requirement to identify “the nature of the
hazard” is met where the safeguard specifically identifies hazardous conditions. In SOCCO I,
rocks and cement blocks in a travelway were identified as the hazard and the safeguard required
the mine to provide at least 24 inches of clearance on both sides of conveyor belts. The
Commission held that the attempt to apply that safeguard to water accumulation in the travelway
was beyond the class of hazards identified in the safeguard notice. Accordingly, it held that an
obstructed travelway created by water accumulation was not covered by the safeguard notice
identifying rocks and blocks as the source of impeding the clear travelway. *857
In the second of the three well-known Southern Ohio Coal Company safeguard cases.,
SOCCO II, 14 FMSHRC 748, (May 1992), the Commission reiterated that a safeguard which
specifies hazardous conditions and provides a remedy is valid. It added that where a safeguard is
based on the specific conditions at the cited mine and a determination that those conditions
presented a transportation hazard, it is valid. Particularly important as applied to this litigation,
the Commission stated in SOCCO II that the safeguard facially specified a hazardous condition.
Notably, the safeguard notice did not formally utter the words that it was hazardous that the mine
lacked a sufficient number of shelter holes. Instead, it stated that there were no shelter holes
along a 400 foot section of the mine's supply track and that shelter holes were to be provided.
Because the lack of shelter holes along that 400 foot section presented a plainly hazardous
condition, there was no need to express the obvious.
The Commission repeated this principle in its third Socco decision, 14 FMSHRC 748
(May 1992) (“SOCCO III ”), where the safeguard notice identified that only 6 inches of
clearance was present for a scoop being operated along a supply track. The safeguard required
that at least 36 inches of clearance be provided. In upholding the safeguard's statement that there
was only 6 inches of clearance as sufficiently identifying the hazard, the Commission did not
treat the notice's sufficiency by applying a grammatical test. Thus, while true that the safeguard
did not assert that 6 inches of clearance was insufficient clearance nor that such small clearance
thereby created a hazard, the Commission would not allow the notice to be invalidated, because
it was both obvious that 6 inches of clearance was insufficient and because the safeguard
informed the mine that the remedy to be provided was at least 36 inches of clearance.
Accordingly, the Commission's review, in American Coal, of its safeguard decisions
summed up that if the safeguard specifies a hazardous condition and specifies a remedy, the
safeguard will be deemed valid. American Coal at *5. It added that the word “hazard” in the
safeguard provision means “hazardous conditions” and asserting a hazardous condition expresses
the nature of the hazard and that the notice need not express the particular harm. Emphasizing
this point, the Commission agreed with the judge's expression that there was no requirement to

44 FMSHRC Page 340

name the harm or risk because any hazard may pose multiple risks and therefore the inspector
need not identify each and every risk or harm. Id.”
Oak Grove Resources, 35 FMSHRC 842, 857-859.
The Secretary established by a preponderance of the evidence that Notices to Provide
Safeguards, Nos. 7070545 and 7070546, were violated per Citation Nos. 7033990 and
7033991.
The parties post-hearing briefs regarding the safeguard violations
The parties’ contentions in their post-hearing briefs have been addressed earlier in this
decision. However, a few additional comments are in order.
The Court does not buy into the assertions in the Respondent’s Reply Brief that because
the length of the safety chains and because key stocks were not specifically addressed in the
Safeguard Notices, the Notices failed to adequately describe the hazard and the remedy expected.
R’s Reply at 1-3. The reason for the Court’s rejection of these contentions is not complicated. By
requiring in Safeguard No. 7070545 that “all rolling stock [ ] have properly maintained safety
chains and safety chain connection points,” there can be no proper maintenance of the chains if
their lengths are not the same, as they cannot perform their function as a secondary connection
point in that state. The necessity of the same lengths was well established by the testimony.
By the same token, the requirement in Safeguard No. 7070546 that “the slope brakeman
car and all rolling stock will [be] provided with properly maintained couplers,” necessarily
includes key stocks. Just as shoelaces are integral to tie shoes, so too are key stocks integral to
and essential for a properly maintained coupler. Like a shoe and its laces, a coupler cannot be in
any sense be properly maintained without all four key stocks properly in place. This too is not
complicated. As the Commission plainly stated in Gatliff Coal, 13 FMSHRC 1370 (Sept. 1991),
“Maintain” means “to preserve or keep in a given existing condition, as of efficiency or good
repair.” Id. at 1374.22 Both Notices also required examination of the chains and couplers prior to
being hoisted and transported throughout the mine. Respondent fell short of effective
examinations of the couplers and the chains.

22

Fully applicable to these safeguards, the Commission has also held “that the term
“‘maintain’ [means] that warning devices shall be capable of performing on an uninterrupted
basis and at all times…. [and] imposes a continuing responsibility on operators to ensure that
safety alarms [i.e. devices] do not fall into a state of disrepair.” Natty & Hamilton Enter., Inc.,
33 FMSHRC 1759, 1763 (Aug. 2011); see also Sedgman, 28 FMSHRC 322, 329 (June 2006);
Jim Walter Res., Inc., 28 FMSHRC 983, 987 (Dec. 2006); Jim Walter Res., Inc., 19 FMSHRC
1761, 1765 (Nov. 1997).” Wake Stone, 38 FMSHRC 825,827 (emphasis added). Obviously, the
Commission, in speaking to the requirement of performing on an uninterrupted basis and the
continuing responsibility that devices not fall into disrepair, was not limiting its statement to
safety alarms.

44 FMSHRC Page 341

Citation No. 7033990
In sum, the Respondent violated Notice to Provide Safeguard No. 7070545 in failing to
maintain the safety chains by not having both those chains of equal length. The notice
specifically identified the hazard and the remedy to address it. It would be hard to conjure up a
violation more aligned with the safeguard notice invoked as it required all rolling stock to have
properly maintained safety chains and safety chain connection points. It also required that all
rolling stock to be examined prior to being hoisted or transported in or out of the slope
Citation No. 7033911
In sum, the Respondent also violated Notice to Provide Safeguard No. 7070546 by failing
to maintain the coupler and mounting bracket on rolling stock. As noted above, the Court has
determined that the adverse inference sought by the Secretary is appropriate regarding this
citation, namely that the left front key stock on the 187 strap car was not present at the time of
the accident. However, apart from that determination, the Court finds that the reliable evidence at
the hearing also establishes that the left front key stock was not present on that strap car.
Although set forth above in the findings of fact, the Court notes that, based upon his
investigation, Inspector Vargo concluded that the missing key stock was not something that
recently occurred. That means the key stock was missing prior to the accident. Further, there is
no dispute that the key stocks are part of the coupler because they must be present for the coupler
to effectively function. Accordingly, properly maintained couplers must have intact key stocks.
Much other evidence from the hearing supports the Court’s conclusion on this issue.
Respondent’s witness Jones agreed that the purpose of key stocks is to keep the coupler in place
and that key stocks are an integral part of the system. On the issue of whether the key stock was
present, Jones was agnostic. However, he agreed that there was no indication that the key stock
had been torn away or ripped out from its location. Despite Jones concession on that point, he
still believed that, given the force causing the cars to separate, the key stock would have been
ripped out. Why only one of the two front key stocks would be ripped out, not both, was not
asked, nor volunteered, but in the Court’s view such a result seems odd. Hoist operator Williams
agreed that key stocks are welded in place in the coupler pocket.
Mike Snyder, with MSHA’s Tech Support, and who was part of the investigation, like
Inspector Vargo, reached the conclusion that the key stock had not been present immediately
before the accident. Respondent’s Russell McHenry, who at the time of the accident was the
mine foreman and who is presently the assistant superintendent, admitted that he didn’t know if
the key stock was present immediately prior to the accident. Further, he acknowledged that he
didn’t see any fresh breaks in the weldments within the coupler pocket.
Another consideration for the issue involves the agreement that if the key stock had
indeed broken off at the time of the accident, it would have broken right at the top of the slope.
This is significant because it means there was no lengthy area to search for the key stock, only
amounting to few hundred feet. The Court considers it to be telling that no key stock was found.

44 FMSHRC Page 342

Accordingly, on this basis also, the Court finds that the key stock was missing before the
accident.
So too, as with the violation of the safeguard addressing the chains, the safeguard notice
pertaining to the couplers, as applied to the facts in this case, also meets the Commission’s test.
The notice specifically identified the hazard and the remedy to address it. The absent key stock
violated the safeguard’s requirement to examine and properly maintain the couplers. It was
undisputed that key stocks are an integral part of the couplers.
The Court finds that both violations were significant and substantial, as each element of
the Mathies test was established. Mathies Coal, 6 FMSHRC 1, 3 (1984). The violation pertaining
to the coupler, as noted, has been proven. The inadequately maintained coupler posed a discrete
safety risk, namely the likelihood that the cars may separate, as happened here. An inadequately
maintained coupler presents, inherently, a reasonable likelihood of a reasonably serious injury.
Even apart from the fact that the accident occurred, an inadequately maintained coupler, in this
instance one missing a key stock, is an accident waiting to happen. That no one was hurt in this
instance does not translate into diminishing the reasonably serious injury element of Mathies. To
claim that there is no reasonable likelihood of a reasonably serious injury occurring under
circumstances of six rail cars weighing some 94 tons freewheeling down a steep slope of 1600
feet would, in the Court’s opinion, render the term “significant and substantial” meaningless.
The missing key stock, as an inadequately maintained coupler, could have failed under
other circumstances of transporting the cars. This is so because the key stocks aren’t ornaments;
they are an essential and integral part of the coupler arrangement. While a formal, i.e. controlled,
drop of cars down the slope may, by procedures, alert those down the slope of the drop by
activating lights and sirens, there is no guarantee that the coupler’s insufficient key stock
arrangement would not produce a decoupling in other situations when the cars are in motion and
then stop. Further, as the lights and siren come into play during an anticipated controlled drop,
there is no intensified warning when cars are literally screaming out of control, as such an event
is anything but a controlled drop.23 The same significant and substantial analysis is equally
appropriate to the chains of uneven lengths.

23

The Court considered the Respondent’s arguments, disputing that it was significant and
substantial and asserting that no negligence was involved. The Respondent provides a single
discussion of those issues for both safeguard violations and the Court, agreeing and adopting that
approach, follows suit. Respondent contends that “the occurrence of an accident does not
confirm that a condition is reasonably likely to result in an injury.” R’s Br. at 30. The Court
would agree that more is required than the occurrence of an accident. But, given what happened
here, and in consideration of the twin defects established – an inadequately maintained coupler
and inadequately maintained chains – that the accident occurred without anyone being injured
does not foreclose the S&S finding either. Based on the uncontested facts, there was a reasonably
likelihood that those two defects would combine to create uncontrolled cars upon an abrupt stop,
as happened here. Further, with six cars then unleashed, it is undeniable that any contact with
them would produce a reasonably serious injury.

44 FMSHRC Page 343

In addition, as the Secretary has noted, “[d]efendant’s redundant safety features are
irrelevant in the case of an S&S violation. See, Cumberland Coal Res., LP, 717 F.3d at 1029
(citing Sec’y of Labor v. FMSHRC, 111 F.3d at 917). [Further] [a]ny injury that occurred would
have certainly been serious. Tr. I at 119:12-24. Inspector Vargo marked these violations as fatal,
specifically because he stated that if these cars hit a miner, “there wouldn’t be a chance he could
survive.” Tr. I at 118:15-20.” Sec.Br at 10.
As to negligence, the Secretary maintains that moderate negligence is the appropriate
designation. To the Court, the Secretary’s characterization of the negligence is generous, as it
accepts the presence of “mitigating circumstances,” although no such mitigation is identified by
the Secretary. The Court accepts as some mitigation that, once the cars were in service, it is
difficult, though by no means impossible, to observe the key stocks.24
The new Notice to Provide Safeguard, No. 7033989, issued on August 12, 2020, does not
diminish the applicability of the 2011 Safeguard Notices
The Court finds that MSHA’s issuance of a new Notice to Provide Safeguard, No.
7033989, on 08/12/2020, in connection with its investigation of the accident at Respondent’s
Bailey Mine, is not relevant to the issues in dispute in this proceeding, nor does that new
safeguard notice detract from the validity of the two Notices to Provide Safeguard, Nos. 7070545
and 7070546, issued on October 25, 2011. That new safeguard notice establishes that it is distinct
from the 2011 notices, as the 2020 safeguard notice speaks to a newly identified hazard, per
Section 314(b) of the Mine Act, with respect to transportation of men and materials, by requiring
“that the Mine Operator shall develop a fail proof system or safety notification method that will
allow the hoist operator, bottom attendants, and other attendants or miners in close proximity of

24

Similarly, regarding negligence, the Court cannot adopt the Respondent’s assertion that
no negligence was involved. Although the Respondent maintains that the hoist operator checked
the couplers and the chains and found no conditions requiring that the equipment be removed
from service, that does not establish that the inspection was adequate. This is particularly true of
the mismatched chain lengths, but the couplers too were inadequately inspected. The missing key
stock could have been identified, though it would have required some effort, as one would need
to be on hands and knees. As mentioned above, another consideration is that, as only six cars
would need to have the couplers inspected, the effort was not inordinately burdensome. The
balance of the Respondent’s arguments stray into subjects that are outside of the S&S and
negligence analysis, as they involve the unchallenged remarks that the visual and audible alarms
were working. As noted above, those features are not properly part of either analysis.

44 FMSHRC Page 344

the hoist trip as to what particular hoisting mode the select switch is in, if more than one
automatic mode is available to hoist.” (emphasis added).25
25

The text of the new safeguard notice, issued on August 12, 2020 provides:
“On July 17, 2020, at approximately 10:30 a.m., a non-injury accident occurred on the Crabapple
slope track entry while 6 loaded supply cars were being hoisted down the slope track. The Hoist
Safety Supervisor (HSS) system faulted on "overspeed" at 692 feet per minute (FPM) causing
the hoist drum brakes to engage. When the hoist brakes engaged, the brake-car, located at a slope
depth of approximately 100 feet in the mine, came to an abrupt stop. The force applied to the
strap car caused the car coupler to sever and separate. This action disconnected the strap car from
the brake-car. Two 30mm safety chains with 1 1/4 inch retainer pins tied the cars together, each
chain attached by a 12 ton clevis. Both retainer pins broke from the shock load. The 12 ton
clevises were the connecting points at the brake-car to the supply car safety chains. The result
was 6 loaded supply cars traveling uncontrolled at high speed to the slope bottom. The modeselect switch in the remote hoist house was in “person” mode, which is 600 fpm instead of
“normal” supply car mode, which is 300 fpm. This contributed to the overspeed fault of the
hoist. The total supply trip weighed approximately 94.39 tons (2 oil cars at 22.8 tons, 2 slag cars
at 31.48 tons, and 2 strap cars at 32.86 tons = approximate total supply weight of 87.14 tons).
Adding the weight of the Brake-car (7.25 ton) the total trip weight was 94.39 tons. The
maximum hoisting weight capacity is not posted in the hoist house. Therefore, miners do not
have a visual means to know what the rated capacity is for the hoist. The weight breakdown of
each car or equipment being hoisted is not posted at any location. There are no safety device or
measures in place to let the hoist operator and/or attendants know the mode of the hoisted trip.
There are no postings of hoisting speed rates for various transportation load ratings, such as for
hoisting personnel, supplies cars, or mining equipment. This slope bottom is a high traffic area
where miners travel on foot. Motormen bring the locomotive and supply cars from a spur switch
over into the slope bottom track frequently during any given work shift. Broken bones, crushing
type injuries up to and including death is foreseeable to occur with runaway supply cars traveling
down the slope track.
This is a Notice to Provide Safeguard that the Mine Operator shall develop a fail
proof system or safety notification method that will allow the hoist operator, bottom
attendants, and other attendants or miners in close proximity of the hoist trip as to what
particular hoisting mode the select switch is in, if more than one automatic mode is
available to hoist. This speed position shall be determined by the full work load weight of the
cars and equipment that is being hoisted, if more than one automatic mode is available to hoist,
as well as when hoisting personnel. The hoisting speed rates shall be posted and maintained as
per different types of mode of transportation, if more than one automatic mode is available to
hoist. The maximum hoisting weight of 107.25 tons shall be posted and maintained in the hoist
house, remote hoist house, bottom attendants’ shanty on the slope bottom, and in the supply yard
where cars are loaded. The maximum hoisting weight shall at no time be exceeded. The weight
of the hoist car (7.25 tons) shall be included when figuring total hoisting weight of trips being
raised or lowered in the slope. A weight list in tons for each supply car and equipment being
hoisted shall be posted and maintained in the hoist house, remote hoist house, at the motormen
attendants’ shanty on the slope bottom, and in the supply yard where the cars are loaded. If
(continued…)

44 FMSHRC Page 345

Citation No. 9203757; The now-admitted parking brake violation
This Citation alleges a violation of 30 C.F.R. § 77.1605(b). A plainly worded standard, it
requires that “[m]obile equipment shall be equipped with adequate brakes, and all trucks and
front-end loaders shall also be equipped with parking brakes.” (emphasis added).
On September 1, 2020, MSHA Inspector Bryan Yates was conducting an EO1 inspection
at the Bailey Mine’s prep plant. Tr. 121. Regarding Citation No. 9203757, Ex. P-12, Bates Stamp
MSHA 0263, Yates confirmed he issued it on that date. Ex. P 13, Yates’ inspection notes relating
to that citation. On that date he conducted an inspection of the mine’s Kodiak lube truck. That
inspection revealed other alleged problems with the truck, but this citation only addressed the
parking brake, which he found to be not working. Tr. 126. For testing parking brakes, Yates
informed they “take the equipment to a grade, [and] have the operator of the equipment set the
parking brake to hold against the load of the vehicle.” Tr. 118. The vehicle is stopped before the
parking brake is applied. The operator does not apply the accelerator during the test. Id.
The subject truck is used around the mine servicing other equipment for the operator. Tr.
126. The vehicle operator told the inspector that the vehicle goes everywhere it is needed at the
mine. Id. Yates described the mine having miles of roads and hills, adding that the prep plant is
the largest in the United States. Tr. 127. He described the test as follows: “[w]e took it to a grade
outside the Bin 6 [where he had] the operator go down to the bottom, [to] a large flat area and
pull the truck back up the hill. As soon as the back wheel started up on to the grade, I had the
operator start, set the emergency brake, and test it that way. He put it in neutral, and the brake
would not hold [and then] [t]he truck started to roll backwards down on to the flat.” Id.
Being familiar with the type of parking brake on the vehicle, the inspector gave the
operator the opportunity to see if the brake could be adjusted down and thereby correct the
problem. However, “the adjustment on the knob was maxed out. There was no more
adjustment.” Tr. 128. The truck was then taken out of service. When it is performing its normal
tasks at the mine, servicing other vehicles, the truck may need to be running so that its
compressor is operating for tasks. The hazard is that the truck will need to be neutral at those
times; consequently, the emergency brake needs to be working. The truck’s tires are also
chocked on those occasions. Tr. 129-130. However, in the process of setting the chocks, it is
possible that the vehicle may move. Inspector Yates articulated, satisfactorily in the Court’s
opinion, the basis for his evaluation of the gravity and negligence involved, along with his
conclusion that it was a significant and substantial violation. Tr. 131-135. While it did not affect
the issuance of the citation, Yates noted that it was the operator’s truck, though it was being
operated by a contractor, while affirming that the operator remains liable in such circumstances.
Tr.135. The bottom line for this matter is that the inspector found the parking brake to be
inadequate. Tr.137. The operator concedes this. The inspector also informed that the grade he
25

(continued…)
future modification of the hoist controls occurs, the intent of this safeguard shall be complied
with at any mine slope hoist at this mine. Upon issuance, initial training on this safeguard shall
be given to all hoist operators, persons who load supply cars and bottom attendants at this mine.”
(Bold text added.)

44 FMSHRC Page 346

tested the vehicle on was slight and that the mine has many other steeper inclines on the
property. Tr. 148.
The Respondent, as noted, admits to the violation, challenging only the appropriateness
of the significant and substantial designation. Tr. 150. As the Court then noted, that test
examines whether there is a reasonable likelihood of a reasonably serious injury, adding that the
test is measured under continued normal mining operations. Thus, it is not a static test,
examining only where a particular violation is discovered, whether it be on flat ground or
whatever. Tr. 151- 152.
The Respondent called Shane Reynard, who is an employee of RICO Equipment, which
is a heavy equipment service dealer. Tr. 156. His position with the company is a heavy
equipment field mechanic. He described himself as a “resident for the Consol Bailey Prep Plant,”
meaning he is there every day. Tr. 157. Reynard was at the plant on September 1, 2020, when the
citation for this truck was issued. Tr. 160. He described the truck as “a medium duty 4500 series
GMC truck that [it] use[s] as a lube truck, … [it] [j]ust carries oils and filters for all of the stuff
that operates on our mine site here. … [to help picture it, he described it as] very similar to like a
U-Haul moving van or moving truck of that nature.” Tr. 160. “It's used to drive to the equipment
that cannot be brought to our shop to refill oil levels, do routine maintenance like greasing the
machine or changing the oil and filters in that machine.” Id. The back of the truck contains “four
oil tanks that hold [ ] engine oil, hydraulic oil, gear oil, and then there is also a fifth tank for
waste oil, from whenever you drain the engine or drive trains on the trucks or dozers.” Tr. 161.
The truck also has a hydraulic driven air compressor on it. Id.
Of relevance to this citation, Reynard described the parking brake as “a drum brake that
is actually mounted to the transmission right on the drive shaft ….[i]t would be used as a
stationary brake. If you were to come to a complete stop, apply the parking brake, it would keep
the unit from rolling away or allow you to leave the vehicle. Because it is a standard
transmission, so you really can't leave it in gear with the engine running.” Tr. 163-164. Though
beside the point, Reynard stated it is not an “emergency” brake. Tr.164. When the inspector
directed that the brake be tested, it held on flat ground. Tr. 165. At the time of the inspection the
truck was not being used during that shift. Tr. 166.
The Respondent’s argument seems to be that the truck would be serviced in its shop,
which is on a level service. The problem is the truck doesn’t stay in a shop. It’s used at the mine,
and therefore it’s not a display. Although the shop may not present a risk of the truck rolling,
because it presents a flat surface, that ignores two considerations. First, the cited standard
requires working parking brakes and the Respondent concedes the standard was violated. In fact,
Reynard confirmed that he had to fix the brake. Though the adjustment was not time consuming,
that it beside the point. Second, the reasonable likelihood of a reasonably serious injury was
established by the fact that the truck is used throughout the mine and that the mine has many
hills. It is not uniformly flat.
On cross-examination, Reynard, after confirming that the brake held on level ground,
then agreed that the inspector had him “pull up the grade, roll the vehicle backwards, and then
set the brake,” but that it did not hold under that circumstance. Tr. 172-173. Reynard offered that

44 FMSHRC Page 347

it didn’t hold “because it is not designed to hold the unit. It's not designed as an emergency
brake, like if the unit was in a roll or any type movement like that.” Tr. 173. He admitted that the
truck was available for use. Tr. 174.
The standard requires that all trucks shall also be equipped with parking brakes. This
means, of course, that the parking brake is working and able to perform its function. As noted,
the Respondent has conceded that the standard was violated, limiting its challenge to the
“significant and substantial” designation. In its Reply Brief the Respondent contends that the
Secretary ignored the particular facts surrounding the violation. R’s Reply at 9. The arguments
made by the Respondent miss the point; the particular facts are that the parking brake was tested
and failed. That “the truck was parked on flat ground, was not being operated and had not been
operated during the shift and that the lube truck is used sparingly since most of the equipment
fits inside of the Bin No. 6 shop” are beside the point. Id. at 10. This is because, as the
Respondent concedes, the “truck may be driven around the preparation plant grounds, which
includes hills.” Id. In the context of continued normal mining operations, a truck without a
parking brake that can hold it on a grade is an accident waiting to happen.26 Level ground and the
inertia it may bring is not a substitute for a working parking brake. As noted, the truck is used
throughout the mine and the mine has many hills. Accordingly, the violation meets the Mathies
significant and substantial test.
Assessment of Civil Penalties
Statutory Penalty Considerations common to all violations
In assessing civil monetary penalties, the Commission shall consider the operator’s
history of previous violations, the appropriateness of such penalty to the size of the business of
the operator charged, whether the operator was negligent, the effect on the operator’s ability to
continue in business, the gravity of the violation, and the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after notification of a violation. In proposing
civil penalties under this chapter, the Secretary may rely upon a summary review of the
information available to him and shall not be required to make findings of fact concerning the
above factors. 30 U.S.C. §820(i)
Mine size MSHA Exhibit A reflects a mine size of 15, placing it in the upper third of
that criterion and a controller size of 10, placing it in the top of that size criterion. Accordingly,
the mine is at least a medium to a large entity. Petition for Civil Penalty at 10.
Ability to continue in business The Respondent has stipulated that payment of the total
proposed penalties for this docket, an amount of $7,626.00, will not affect its ability to continue
26

See, for example, MSHA’s December 12, 2007, report of a fatal powered haulage
accident attributable to “a failure in the parking brake system of the loader, which did not allow
the parking brakes to apply.” That fatality report also is instructive in pointing out that the use of
a parking brake is not limited to the equipment’s normal duties, as it arose in the context of a
truck becoming stuck on a road. https://arlweb.msha.gov/FATALS/2007/FTL07c31.asp

44 FMSHRC Page 348

in business. Sec’s PH Brief at 5, Stipulation 6. The total penalty imposed by the Court in this
matter is slightly less.
History of previous violations Under 30 C.F.R. Part 100, MSHA Exhibit A lists the
Respondent’s violations per inspection day (“VPID”), across the board for all five citations at
“2” points, which translates into the second lowest category for that at over 0.3 to 0.5. The other
three citations, that is, those not involving safeguards, received zero (“0”) points for the repeat
violations per inspection day (“RPID”) category. More will be said later about the violation
history for the three citations litigated in this proceeding.
Statutory Considerations common to the safeguard violations
The two safeguard generated violations, Citation Nos. 7033990 and 7033991, were each
assessed at a proposed penalty of $3,299.00
History of previous violations As noted, under 30 C.F.R. Part 100, MSHA Exhibit A
lists the Respondent’s violations per inspection day (“VPID”), across the board for all five
citations at “2” points, which translates into the second lowest category for that at over 0.3 to 0.5.
For repeat violations per inspection day (“RPID”), the two safeguard citations in this docket
come in at 3 points which, at over 0.02 to 0.025, is also on the low end of that measure.
However, it is clear that the Court is not constrained by Part 100. The Court considers
that the safeguard- related violations in this docket amount to déjà vu accidents and therefore, in
context, the Court deems the Respondent’s violation history for those two citations to be
significant.
Negligence The Court considers the negligence associated with these two violations to
be moderate with respect to the key stocks and high with respect to the chains. The burden,
though not extraordinary, regarding checking the key stocks, constitutes some mitigation.
However, the chain length deficiency does not present any mitigation. Consideration of this
penalty criterion must take into account the nearly identical accident years before which
precipitated the two notices to provide safeguard.
Gravity The analysis of the gravity involved, as discussed above, cannot be constrained
by the fact that no one was injured, nor that, through alarm and light warnings, those below, if all
goes according to plan, will be alerted to an imminent car drop. But those advance warnings
operate on the premise that a controlled drop is about to occur, not a mishap, with its unintended
and unforeseeable consequences, when cars are running out of control as they race to the bottom
of the mine.
Good faith The Court also does not subscribe to a salutary assessment of the
Respondent’s good faith in attempting to achieve rapid compliance after notification of a
violation. This criterion is inapplicable to the citations stemming from the 2011 Notices to
provide safeguards and therefore does not work to benefit the Respondents. Given the history
prompting the issuance of the original safeguards in 2011 that, in almost an eerie sense, the

44 FMSHRC Page 349

runaway cars event was repeated in 2020, no good faith penalty reduction is warranted here.
Given the wreck of the six cars, the mine operator had no choice but to clean up the mess at the
bottom of the slope.
Upon consideration of the statutory criteria, though higher penalties could be justified,
the Court imposes a civil penalty of $3,299.00 for each of the safeguard violations.
Statutory Considerations for the brake violation per Citation No. 9203757
Three of the statutory considerations; mine size, ability to continue in business, and
violation history have been discussed above, albeit with a limited discussion for the violation
history regarding this admitted violation. No previous violations for this standard are reflected
under the history category. Therefore, that element benefits the Respondent in determining the
civil penalty.
Negligence There does appear to be some mitigation in that the Respondent had a
designated independent contractor using and servicing the lube truck. Moderate negligence is
appropriate.
Gravity The Court does not agree with the Respondent’s position that the event was
unlikely to occur. This is because the lube truck travels throughout the mine and therefore there
are many opportunities for one to be injured from the truck’s brake not being able to hold, even
on a slight grade. Lost workdays or restricted duty is a moderate characterization of the injury
which could reasonably be expected to occur. Given the breadth of the mine and the scope of the
truck’s use throughout it, is not outlandish to suggest that a more serious injury could also have
been reasonably expected. Accordingly, the Court rejects the Respondent’s contention that the
violation was not significant and substantial.
Good faith Certainly the Respondent demonstrated ‘good faith’ in attempting to achieve
rapid compliance after notification of the violation.
Taking into account the entirety of the evidence for this conceded violation, the Court,
upon application of the statutory criteria, imposes a civil penalty of $200.00 (two hundred
dollars) for this citation.
ORDER
For the reasons set forth above, Citation Nos. 7033990 and 7033991 involving the
safeguard are AFFIRMED, with each assessed a civil penalty of $3,299.00. Citation No.
9203757 is AFFIRMED, and assessed a civil penalty of $200.00. Citation No. 9201843 has been
settled. The minimum penalty, $123.00, was assessed for that citation. That Citation is modified
to “lost workdays/restricted duty.” Citation No. 9203766 has been VACATED by the Secretary.
Accordingly, the total amount due is $6,921.00.

44 FMSHRC Page 350

Payment is to be made to the Mine Safety and Health Administration within 30 days of
the date of this Decision. Upon timely receipt of payment, the captioned civil penalty matters are
DISMISSED.27

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

Distribution:
Ryan M. Kooi, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 1835 Market
Street, Mailstop SOL/22, Philadelphia, PA 19103-2968 kooi.ryan.m@dol.gov
Patrick W. Dennison, Esq., Fisher & Phillips, LLP, Six PPG Place, Suite 830, Pittsburgh, PA
15222 pdennison@fisherphillips.com
Douglas Sciotto, CLR, U.S. Department of Labor, MSHA, 631 Excel Drive, Suite 100, Mt.
Pleasant, PA 15666 sciotto.douglas@dol.gov
Craig Aaron, CONSOL Energy Inc., 1000 Consol Energy Drive, Suite 100, Canonsburg, PA
15317 craigaaron@consolenergy.com

27

It is preferred that penalties be paid electronically at Pay.Gov, a service of the U.S.
Department of the Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively,
send payment (check or money order) to: U.S. Department of Treasury, Mine Safety and Health
Administration, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C.
Numbers.

44 FMSHRC Page 351

ADMINISTRATIVE LAW JUDGE ORDERS

44 FMSHRC Page 352

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19TH STREET, SUITE 443
DENVER, COLORADO, 80202-2500
TELEPHONE: (303) 844-5267
FAX: (303) 844-5268

April 27, 2022
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 2022-0010-M
A.C. No. 41-00009-542457
Fairland Plant & Qys

v.
CACTUS CANYON QUARRIES INC,
Respondent

ORDER GRANTING MOTION TO STAY, IN PART
ORDER CONCERNING MOTION TO COMPEL ANSWERS TO DISCOVERY
Before: Judge Manning
This case is before me upon a petition for assessment of a civil penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977. On March 21 the Secretary filed a
Motion for Stay (“Sec’y Mot.”). Subsequently, on April 19, Respondent filed a Response to the
Secretary’s Motion for Stay and its own Motion to Compel Answers to Interrogatories and
Production Requests (“Cactus Canyon Resp.”). The Secretary then filed an objection to Cactus
Canyon’s motion to compel (“Sec’y Obj.”). For the reasons set forth below, the Secretary’s
motion for stay is granted, in part. Respondent’s motion to compel is denied but the parties are
ordered to continue working on discovery, as described below, so that discovery can be
completed expeditiously. A preliminary jurisdictional issue must be addressed before reaching
these issues. I am discussing this jurisdictional issue because both parties raised it in their
filings.
A. Commission Jurisdiction
On December 1, 2021, the Commission’s Chief Administrative Law Judge issued an
order granting the Secretary’s request for an extension of time to file the Petition for Assessment
of Penalty in this case.1 Both the Secretary’s motion and Cactus Canyon’s response make
reference to the appeal Cactus Canyon filed to the Fifth Circuit Court of Appeals regarding the
Chief Judge’s December 1, 2021 order.2 In its brief to the Fifth Circuit, as well as in its response

Respondent’s counsel refers to this order of the Chief Judge as the “Outlaw Order.”
Cactus Canyon Resp. 1.
1

Cactus Canyon filed its appeal of the Chief Judge’s order to the Fifth Circuit on or about
January 14, 2022, after the Commission denied its petition for discretionary review on January 4,
2022. Cactus Canyon filed its brief to the Fifth Circuit on April 18, 2022.
2

44 FMSHRC Page 353

to the Secretary’s motion for stay, Cactus Canyon asserts that Commission jurisdiction does not
attach in a civil penalty case until the Secretary files his Petition for Assessment of Penalty under
Commission procedural Rule 28. 29 C.F.R. § 2700.28. Consequently, it argues, the Chief Judge
did not have jurisdiction to issue an order granting the Secretary’s request for an extension of
time to file the penalty petition in this case. Cactus Canyon’s assertion is not correct.
Commission jurisdiction attaches in a civil penalty case at the time the mine operator files its
Notice of Contest of Proposed Penalty Assessment under Commission Procedural Rule 26. 29
C.F.R. § 2700.26. In this case, counsel for Cactus Canyon signed the Notice of Contest on
October 4, 2021, and it was mailed to the Mine Safety and Health Administration (MSHA) via
USPS 2-day priority delivery on October 5, 2021. The Commission’s jurisdiction over this case
began when this notice of contest was filed by counsel for Cactus Canyon in October 2021.
The Commission has long held that once a mine operator contests a citation, neither the
citation nor the associated penalty can be compromised by the parties without the consent of the
Commission. The Commission summarized the law in this regard in Black Beauty Coal Co., 34
FMSHRC 1856, 1862 (Aug. 2012), as follows:
As the Commission has long recognized, after “an operator
contests the Secretary's proposed assessment of penalty, …
Commission jurisdiction over the matter attaches.” Sellersburg
Stone Co., 5 FMSHRC 287, 291 (Mar. 1983), aff'd, 736 F.2d 1147
(7th Cir. 1984) (emphasis in original). It is clear that the
Commission's jurisdiction attaches to a proposed penalty after it has
been contested due to the language of section 110(k), which
specifies that “[n]o proposed penalty which has been contested
before the Commission under section 105(a)” shall be settled
without the approval of the Commission. 30 U.S.C. § 820(k)
(emphasis added).
When an operator files its notice of contest with MSHA’s Civil Penalty Compliance
Office in Arlington, Virginia, detailed information about the notice of contest and the particular
citations contested is transmitted to the Commission’s electronic case management system
(“eCMS”) within a short period of time.3 The Commission creates a docket number which is
transmitted to MSHA. If a case is settled after the operator files its notice of contest but before
the penalty petition is filed, a Commission administrative law judge must still review the
proposed settlement for compliance with the terms of section 110(k) of the Mine Act. 30 U.S.C.
§ 820(k). Thus, established law provides that the Commission’s jurisdiction commences in a
civil penalty case at the time the mine operator files its notice of contest of the proposed penalty
assessment.

Indeed, all information contained within a contested citation is transmitted to the
Commission at this time, including the safety standard cited, the description of the alleged
violation written by the inspector, the inspector’s determinations as to gravity, negligence, and
significant and substantial (S&S), as well as the penalty proposed by the Secretary.
3

44 FMSHRC Page 354

B. Motion for Stay
The Secretary asks that this case be stayed “while the Fifth Circuit Court of Appeals
resolves Cactus Canyon’s appeal of a procedural order.” Sec’y Mot. 1. He argues that “it makes
no sense for the parties to continue litigating this case while there is a pending appeal that could
result in the case’s dismissal.” Id. at 2. The Secretary maintains that because the Commission’s
administrative record has already been filed with the Fifth Circuit, section 106(a)(1) provides
that the court of appeals has “exclusive jurisdiction of the proceeding.” Sec’y Obj. 1 (citing 30
U.S.C. 816(a)(1)). He also asserts that staying the case will not prejudice Cactus Canyon. Sec’y
Mot. 2.
In response, Cactus Canyon argues that the Secretary’s Motion for Stay “is an attempt to
breathe life into the Outlaw Order.” Cactus Canyon Resp. 2. It goes on to argue that I have “no
jurisdiction to consider any matter set forth in the Commission’s Certified Index of
Administrative Record to the Fifth Circuit.”4 Id. Finally, counsel argues that the “Secretary’s
Motion to Stay seeks a bond where none is possible.” Id.
For good cause shown, the Secretary’s Motion for Stay is GRANTED, in part, to the
extent that I will not set the case for hearing during the pendency of the stay. Cactus Canyon
seemingly asks me to ignore the fact that it filed an appeal of the Chief Judge’s December 1,
2021, order granting the Secretary an extension of time to file the petition for penalty. The case
before me can only progress so far while this appeal is pending. Consequently, staying the case is
prudent and will not prejudice Respondent.
C. Motion to Compel Answers to Discovery.
Cactus Canyon states that it served discovery upon the Secretary on February 11, 2022,
and that the Secretary has not responded despite repeated attempts to secure responses. It
contends that the Secretary filed its motion for stay to avoid having to respond to discovery.
As stated above, the Secretary objects to the motion to compel and maintains that “[f]or
procedural simplicity, and to avoid this Court’s conducting litigation inconsistent with the Fifth
Circuit’s disposition of this case, this Court should stay the case . . . and deny Respondent’s
motion to compel.” 5 Sec’y Obj. 1-2.
For good cause shown, the motion to compel is DENIED to the extent that, at this time, I
am not ordering the Secretary to respond by a certain date. Consistent with my analysis above, I
believe it is likely the Fifth Circuit will deny Cactus Canyon’s motion to dismiss and will remand
the case back to the Commission. Accordingly, the parties should be prepared to resume active
litigation of this matter as soon as the stay is lifted. The Secretary is ORDERED to begin
This index includes everything filed with the Commission or issued by the Commission
in eCMS between November 28, 2021, and January 4, 2022.
4

Nevertheless, the Secretary makes clear that he “believes that the Fifth Circuit lacks
subject-matter jurisdiction over Cactus Canyon’s appeal and has filed a motion to dismiss . . .”
Sec’y Obj. 1.
5

44 FMSHRC Page 355

gathering the information necessary to respond to Cactus Canyon’s interrogatories and prepare
draft answers. The Secretary is also ORDERED to begin gathering the documents requested by
Cactus Canyon’s request for the production of documents. Finally, the Secretary is ORDERED
to begin drafting his own interrogatories and document requests, if any, for prompt service to
Cactus Canyon if the case is remanded to the Commission.
If the case is remanded to me, I intend to set it for hearing and order the parties to quickly
complete discovery.6 The parties would be wise to use this time to move discovery along.

/s/ Richard W. Manning
Richard W. Manning
Administrative Law Judge

Distribution (First Class Mail and email):
Chris Lopez-Loftis, Esq., Office of the Solicitor, U.S. Department of Labor, MSHA, 525 S.
Griffin Street, Suite 501, Dallas, TX 75202 (lopez.christopher.d@dol.gov)
Andy Carson, Esq., Cactus Canyon Quarries, 7232 CR 120, Marble Falls, TX 78654
(acarsonmarblefalls@aol.com)

6

This case involves three non-S&S citations and a total penalty of $375.

44 FMSHRC Page 356