JULY AND AUGUST 2010

COMMISSION DECISIONS AND ORDERS
07-02-2010
07-14-2010
07-14-2010
07-19-2010
07-22-2010
07-22-2010
07-22-2010
07-22-2010
07-22-2010
07-27-2010
07-27-2010
07-27-2010
07-27-2010
07-29-2010
07-29-2010
07-29-2010
07-29-2010
08-03-2010
08-13-2010
08-17-2010
08-24-2010
08-24-2010
08-24-2010
08-26-2010
08-26-2010
08-26-2010
08-30-2010
08-30-2010
08-30-2010
08-30-2010
08-30-2010
08-30-2010
08-30-2010
08-31-2010
08-31-2010
08-31-2010
08-31-2010

Sec. Labor, MSHA on behalf of Lawrence Pendley
v. Highland Mining Company
C. S. & S. Coal Corporation
Dodge Hill Mining Company, LLC.
United Rock Products Corp.
Mainline Rock and Ballast, Inc.
Vulcan Construction Materials, LP
National Lime and Stone Company
Genesis, Inc.
Dunlap Stone, Inc.
Pan American Electric, Inc.
Martin Marietta Materials, Inc.
BMC Aggregates, LC
Town Of Bethel
Pinky's Aggregates, Inc.
Basic Materials Corporation
Dolezal Sand & Gravel
Quikrete Companies, Inc.
Crawford Lime and Material, Inc.
J. S. Redpath Corporation
Performance Coal Company
James Hamilton Construction
Rogers Group, Inc.
Blue Haven Energy, Inc.
Ardrunan & Associates, Inc.
Amerikohl Mining, Inc.
Onsite Krushing Company
Ohio County Coal Company
Carbo Ceramics, Inc.
Barrick Turpuoise Ridge, fuc.
Naselle Rock & Asphalt Company
Brooks Run Mining Company, LLC.
Rome Construction, fuc.
Lone Star Aggregates Acquisition, LLC.
Mach Mining, LLC.
E. S. Stone and Structure, fuc.
Bonita Steel Builders, Inc.
Barrick Goldstrike Mines, Inc.

KENT 2007-265-D

Pg. 745

VA 2010-51
Pg. 751
KENT 2010-197
Pg. 754
WEST 2010-308-M Pg. 757
CENT 2009-757-M
Pg. 761
Pg. 764
SE 2010-173-M
LAKE 12010-158-M Pg. 767
WEST 2009-1098-M Pg. 770
Pg. 774
SE 2009-750-M
CENT 2010-151-M
Pg. 778
VA 2010-338-M
Pg. 781
Pg. 784
CENT 2010-390-M
YORK 2010-226-M Pg. 787
CENT 2009-848-M
Pg. 790
CENT 2010-392-M
Pg. 794
CENT 2010-138-M
Pg. 798
CENT 2010-448-M
Pg. 801
CENT 2010-177-M
Pg. 804
WEST 2010-516-M Pg. 807
WEVA 2010-1190-R Pg. 811
CENT 2010-150-M
Pg. 826
KENT 2010-274
Pg. 830
WEVA 2010-904
Pg. 834
SE 2010-178-M
Pg. 837
PENN 2010-108
Pg. 840
WEST 2010-698-M Pg. 843
KENT 2010-1122
Pg. 846
SE 2010-151-M
Pg. 849
WEST 2010-696-M Pg. 853
WEST 2010-1389-M Pg. 857
WEVA 2010-1152
Pg. 860
YORK 2010-71-M ·Pg. 863
CENT 2010-346-M
Pg. 866
LAKE 2010-714
Pg. 870
WEST 2010-149-M Pg. 874
WEST 2010-542-M Pg. 878
WEST 2010-637-M Pg. 881

ADMINISTRATIVE LAW JUDGE DECISIONS
07-02-2010 Sec. Labor, MSHA on behalf of Douglas Pilon
v. ISP Minerals, Inc.
07-06-2010 Peabody Midwest Mining, LLC.
07-07-2010 Knife River Corporation, Northwest
07-19-2010 Eugene Badonie v. Peabody Western Coal Co.
07-21-2010 Eureka Rock, LLC.
07-22-2010 General Drilling, Div. Of GE
07-23-2010 Consolidation Coal Company
07-26-2010 Timothy S. Sheffer v. Advent Mining, LLC.
08-04-2010 Little Buck Coal Company
08-10-2010 Baker Rock Crushing Company
08-12-2010 Sec. Labor, MSHA on behalf of Lawrence Pendley
v. Highland Mining Company
08-13-2010 Charles Scott Howard v. Cumberland River Coal Co.
08-16-2010 Consolidation Coal Company
08-26-2010 Big Ridge, Inc.
08-31-2010 Thomas Bewak v. Alaska Mechanical Inc.

LAKE 2010-766-D

Pg.

885

LAKE 2010-769-E
Pg. 892
WEST 2010-1319-RM Pg 912
WEST 2009-1342-D Pg. 917
WEST 2009-137-M
Pg. 922
Pg. 927
KENT 2007-508
WEVA 2009-371
Pg. 930
KENT 2010-15-D
Pg. 951
PENN 2009-12
Pg. 960
Pg. 968
WEST 2008-936-M
KENT 2007-265-D
Pg. 981
KENT 2008-736-D
VA 2010-489-E
LAKE 2009-377
WEST 2008-161-DM

Pg. 983
Pg. 995
Pg. 1020
Pg. 1044

WEST 2010-18-DM
PENN 2009-803
VA 2008-400
WEVA 2009-1123
SE 2009-261-R

Pg. 1061
Pg. 1071
Pg. 1074
Pg. 1079
Pg. 1081

ADMINISTRATIVE LAW JUDGE ORDERS
07-02-2010
07-12-2010
07-13-2010
07-19-2010
08-19-2010

Justin Nagel v. Newmont USA Limited
Consol Pennsylvania Coal Co.
Knox Creek Coal Corporation
Pinnacle Mining Company, LLC
Oak Grove Resources, LLC.

11

JULY AND AUGUST 2010

Review was granted in the following cases during the months of July and August 2010:
Secretary of Labor, MSHA v. Spartan Mining Company, Docket No. WEVA 2009-403. (Judge
Miller, June 23, 2010)
Secretary of Labor, MSHA v. Manalapan Mining Company, Docket No. KENT 2008-737.(Judge
Feldman, June 30, 2010)
Secretary of Labor, MSHA v. Performance Coal Company, Docket No. WEVA 2010-1190-R.
(Unpublished order, July 8, 2010, of Judge Miller denying application for Temporary relief)

Review was denied in the following cases during the months of July and August 2010:
Secretary of Labor, MSHA on behalf of Ricky Lee Campbell v. Marfork Coal Company, Docket
No. WEVA 2010-1030-D. (Judge Gill, June 11, 2010)
Secretary of Labor, MSHA on behalf of Douglas Pilon v. ISP Minerals, Inc., Docket No. LAKE
2010-766-D. (Judge Rae, July 2, 2010)
Secretary of Labor, MSHA v. Independence Coal Company, Docket No. WEVA 2009-1067.
(Judge Miller, June 17, 2010)
Secretary of Labor, MSHA v. Brody Mining, LLC, Docket No. WEVA 2009-1445. (Unpublished
order, April 9, 2010, by Chief Administrative Law Judge Robert Lesnick, Denying Brody's motion
to Dismiss)
Secretary of Labor, MSHA v. Eureka Rock, LLC., Docket No. WEST 2009-137-M. (Judge
Melick, July 21, 2010)

ll1

COMMISSION DEQSIONS AND ORDERS

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

July2, 2010

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of LAWRENCE L. PENDLEY

Docket No. KENT 2007-265-D

v.

HIGHLAND MINING COMPANY, LLC

BEFORE: Jordan, Chainnan; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER ON TEMPORARY REINSTATEMENT
BY.: Jordan, Chairman; Cohen and Nakamura, Commissioners
This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act" or "Act"). Under section 105(c)(2) of the Mine Act, "if the
Secretary [of Labor] finds that [a discrimination] complaint was not frivolously brought, the
Commission, oµ an expedited basis upon application of the Secretary, shall order the immediate
reinstatement of the miner pending final order on the complaint." 30 U.S.C. § 815(c)(2). On
May 30, 2007, Administrative Law Judge David Barbour issued an order temporarily reinstating
Lawrence L. Pendley to employment with Highland Mining Company, LLC ("Highland"). 29
FMSHRC 424, 428 (May 2007) (AU). Pendley had been suspended by Highland on March 21,
2007, and terminated five days later. Id. at 427.
·
A complaint of discrimination regarding Pendley's discharge was brought by the
Secretary pursuant to section 105(c)(2) and was heard by the judge in a separate proceeding. The
judge subsequently ruled that Highland did not discriminate against Pendley when it terminated
his employment with the company. Sec '.Y ofLabor on behalf ofPendley v. Highland Mining Co.,
29 FMSHRC 459, 494-96 (May 2008) (ALJ) (Docket KENT 2007-383-D). Pendley's right to
reinstatement continued, as the Commission reviewed the judge's discrimination decision. 1

1

While review was pending, the judge, at the request of the parties, modified the order of
reinstatement to reflect that Pendley was to be economically reinstated going forward.
32 FMSHRCPage 745

A Commission majority later upheld the judge's decision. 31 FMSHRC 61, 75-80 (Jan.
2009). The order of temporary reinstatement was subsequently dissolved.
The Secretary of Labor did not appeal the Commi!?sion's decision, but Pendley, through
private counsel, did. In Pendley v. FMSHRC, 601 F.3d 417, 429 (6th Cir. 2010), the court
granted Pendley's petition for review in part, and denied it in part. Consequently, the
Commission's order affirming the judge's decision was reversed and the matter remanded to the
Commission for further proceedings consistent with the opinion issued by the court. Id.
The mandate of the court issued on May 28, 2010. On June 3, 2010, the Secretary filed a
motion to revive temporary reinstatement with Judge Barbour in this docket. On June I 5,
Highland filed a response to that motion, and on June 18 the Secretary filed a reply.
The court of appeals decision has returned the discrimination docket to the Commission
for further proceedings. Because the motion to revive before the judge in the temporary
reinstatement docket is contingent upon the status of the discrimination docket that has been
remanded to the Commission, the Commission will rule upon the motion to revive. Cf Sec '.Y of
Labor on behalf ofBernardyn v. Reading Anthracite Co., 21FMSHRC947 (Sept. 1999). On
this date, the Commission is also issuing a briefing order in the discrimination docket.
The Secretary argues that Pendley again has a right to reinstatement because his previous
right to reinstatement was only extinguished by the finality of the Commission's decision in the
discrimination docket, and with the remand to the Commission in that docket there no longer is a
"final" order in that docket. We agree.
fu Bernardyn, the Commission held that "the language of the Mine Act requires that a
temporary reinstatement order remain in effect while the Commission reviews the judge's
decision" on the complaint of discrimination. 21 FMSHRC at 949 (emphasis added). Because
the discrimination docket has been remanded so that the Commission can conduct further review
of the judge's decision that Pendley's discharge was not discriminatory, we hold that Pendley
must be reinstated during the further course of the discrimination proceedings before the
Commission with respect to that discharge.
Highland objects to a Commission order reviving Pendley's reinstatement on a number of
grounds. The first is that the court remanded the discrimination case to the Commission for a
limited purpose, and thus the Commission is without authority to go beyond that and order that
Pendley be again temporarily reinstated. H. Resp. at 3-4.
We do not interpret.the court's opinion to so constrain the Commission on remand. First
of all, the issue of Pendley' s right to temporary reinstatement was not before the court because,
while that right had coincided with the Commission's resolution of the discrimination proceeding

Unpublished Order (Aug. 14, 2008).
32 FMSHRC Page 746

that was the subject of court review, Pendley's temporary reinstatement was the subject of an
entirely separate proceeding. Pendley's temporary reinstatement ended with the issuance of the
Commission's decision upholding thejudge in the discrimination docket. In that decision the
Commission did not even mention that Pendley' s temporary reinstatement would thus end, so it
is hardly surprising that the court would not address the issue of temporary reinstatement in its
decision remanding the discrimination case.
Secondly, while the court remanded the discrimination proceeding to the Commission for
specific purposes, it also reversed the Commission's decision upholding the judge. 601 F.3d at
429. Priorto the issuance of the Co:mrilission's discrimination decision, Pendley had a right to
temporary reinstatement. Because the discrimination proceeding is back before the Commission,
that right is revived.
Finally, Highland would have us deny the Secretary's motion because only Pendley,. and
not the Secretary, continued to pursue Pendley' s discrimination complaint in the court of appeals.
According to Highland, the Secretary thus lacks standing to seek to revive Pendley' s right to
temporary reinstatement. H. Resp. at 5. We do not view the Secretary's litigation decision in the
court of appeals as having a bearing on the miner's right to temporary reinstatement in this
instance. It is undisputed that the pendency of the complaint brought by the Secretary was the
basis for Pendley' s original right to temporary reinstatement, and it is that complaint that is back
before the Commission. Under the terms of the Mine Act, we fail to see the relevancy of the
Secretary's decision not to pursue that complaint beyond the "final order on the complaint" that
.
the Commission issued.2

2

The question of the Secretary's standing to seek review of a judge's order dissolving
temporary reinstatement, upon the Secretary's notice that she will not further pursue before the
Commission a discrimination complaint under section 105(c)(2), is presently at issue in another
Commission case. See Sec'y on behalf of Gray v. North Fork Coal Corp., Docket No. KENT
2009-1429-D, Unpublished Order, at 2 (Jan. 8, 2010). In this case, however, the Secretary has
given every indication that she intends to continue to participate in the section 105(c)(2)
proceeding that is back before the Commission. Consequently, our action here has no bearing on
the issues raised in North Fork.
32 FMSHRC Page 747

Accordingly, we order that Pendley be reinstated immediately, with back pay retroactive
to May 28, 2010, the date of the court's mandate,3 and until such time as the Commis.sion issues
a final order upon remand in the discrimination proceeding. Jurisdiction over his reinstatement
will otherwise rest with the judge. See Secy on behalfof York v. BR&D Enter., Inc., 23
FMSHRC 386, 389 (Apr. 2001).

Robert F. Cohen, Jr., Commissioner

%L·

Patrick K. Nakamura, Commissioner

3

In the event that the operator claims an offset should apply against Pendley's retroactive
compensation between May 28, 20 l 0 and the date of this order, the operator may raise this matter
before the judge.

32 FMSHRC Page 748

Commissioners Duffy and Young, dissenting in part:
While we agree with our colleagues that, with the discrimination proceeding back before
the Commission, the miner's right to reinstatement in this case is revived, the issue is one of first
impression. Accordingly, we believe the order of reinstatement here should have prospective
effect only, and would thus order reinstatement to take effect as of the date of the order. 1

1

Significantly, the Secretary, in moving to revive reinstatement, did not request any sort
of retroactive relief for Mr. Pendley.
32 FMSHRC Page 749

Distribution: by e-mail and regular mail
Melanie J. Kilpatrick, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
2333 Alumni Park Plaza
Suite 310
Lexington, KY 40517
Matthew N. Babington, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22ndFloor West
Arlington, VA 22209-2247
Wes Addington, Esq.
Appalachian Citizens Law Center, Inc.·
52 Broadway, Suite B
Whitesburg, KY 41858

32 FMSHRC Page 750

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

July 14, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 2010-51
A.C. No. 44-07025-179671

v.
C.S. & S. COAL CORPORATION

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 3, 2009, the Commission received from
C.S. & S. Coal Corporation a motion by counsel seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a). On December 1, 2009, the Commission received a response from the Secretary of
Labor stating ~at she does not oppose the request to reopen the assessment.
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 fmal Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 751

for a failure tq tim,ely respond, the case may be reopened and appropriate proceedings on the
merits permitted. SeeCoa/ Prep. Senis., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

~L

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 752

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

32 FMSHRC Page 753

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

July 14, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2010-197
A.C. No. 15-18335-193080

v.
DODGE HILL MINING COMPANY, LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 10, 2009, the Commission received from
Dodge Hill Mining Company, LLC ("Dodge Hill") a motion by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessment$ that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (".!WR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
754

On August 4, 2009, the Department of Labor's Mine Safety and Health Administration
(''MSHA") issued Proposed Assessment No. 000193080 to Dodge Hill for 16 citations MSHA
had issued to the operator in June of that year. Dodge Hill states that it intended to contest six of
the proposed penalties, but because of a "clerical error" it failed to return the contest form to
MSHA. The Secretary of Labor states that she does not oppose the motion.
Having reviewed Dodge Hill's request and the Secretary's response, we conclude that
Dodge Hill has failed to provide a sufficiently detailed explanation for its failure to timely
contest the proposed penalty assessment. Dodge Hill's explanation that it failed to file a timely
contest due to a "clerical error," without any further elaboration, does not provide the
Commission with an adequate basis to justify reopening of the assessment. Accordingly, we
deny without prejudice Dodge Hill's request. See, e.g., Eastern Associated Coal LLC, 30
FMSHRC 392, 394 (May 2008); James Hamilton Constr., ?-9 FMSHRC 569, 570 (July 2007).
Any amended or renewed request by Dodge Hill to reopen Assessment No. 000193080
must be filed within 30 days of the date of this order. Any such request filed after that time will
be denied with prejudice.

Micha

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner
755

Distribution:
Michael T. Cimino, Esq.
Jackson Kelly, PLC
1600 Laidley Tower
P.O. Box 553
Charleston, WV 25322
K. Brad Oakey, Esq.
Jackson Kelly, PLLC
175 East Main St., Suite 500
P.O. Box 2150
Lexington, KY 40588-9956
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Admi:Qistrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

756

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

July 19, 2010

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2010-308-M
A.C. No. 04-01763-199053

v.
UNITED ROCK PRODUCTS,
CORP.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On December 7, 2009, the Commission received from United
Rock Products, Corp. ("United Rock'') a request to reopen a penalty assessment that had become
a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, th,at 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"). fu evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 11FMSHRC1529, 1530 (Sept. 1995).
32 FMSHRC Page 757

On October 1, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA'') issued Proposed Assessment No. 000199053 to United Rock, proposing civil
penalties for eleven citations. United Rock maintains that the employee who received the
assessment and was in charge of distributing the assessment to management was terminated as a
result of a reduction in force before she brought the assessment to the attention of management.
United Rock further submits that it did not learn of the delinquency until another employee
assumed the responsibilities of the former employee and brought the matter to the company's
attention. At that point, United Rock allegedly attempted to contest the penalty assessment with
MSHA. When its contest was rejected as untimely, it promptly sought reopening with the
Commission.
The Secretary does not oppose United Rock's request to reopen the proposed penalty
assessment. However, she urges the operator to take all steps necessary to ensure that future
penalty assessments are contested in a timely manner.

32 FMSHRC Page 758

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

1ss1oner

~L

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 759

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

32 FMSHRC Page 760

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

SUITE9500
WASHINGTON, DC 20001

July 22, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)
Docket No. CENT 2009-757-M
A.C. No. 29-02269-189806

v.
MAINLINE ROCK AND
BALLAST, INC .

.BEFORE: Jordan, Chainnan; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal.Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2006) ("Mine Act"). On August 21, 2009, the Commission received from
Mainline Rock and Ballast, fuc. ("Mainline") a motion by counsel to reopen the penalty
assessment for Citation No. 7885927 that had become a final order of the Commission pursuant
to section 105(~) of the Mine Act, 30 U.S.C. § 815(a). On September 8, 2009, the Commission
received a response from the Secretary of Labor stating that she does not oppose the request to
reopen the assessment.
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 operato.r 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"). fu evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
32 FMSHRC Page 761

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen the assessment for Citation No. 7885927 and remand it
to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R.§ 2700.28.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 762

Distribution:
Laura E. Beverage, Esq.
Jackson Kelly PLLC
1099 18th Street, Suite 2150
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. OfLabor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 763

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

July 22, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. SE 2010-173-M
A.C. No. 40-00098-179839

v.

Docket No. SE 2010-174-M
A.C. No. 40-2871-179844

VULCAN CONSTRUCTION
MATERIALS, LP

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Ad"). On November 24, 2009, the Commission received from
Vulcan Construction Materials, LP (''Vulcan") motions by counsel to reopen two penalty
assessments that had become final orders of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a). 1 On December 16, 2009, the Commission received a response
from the Secretary of Labor stating that she does not oppose the requests to reopen the
assessments.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed 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(May1993) ("JWR"). In evaluating requests to

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers SE 2010-173-M and SE 2010-174-M, both captioned Vulcan
Construction Materials, LP and both involving similar procedural issues. 29 C.F.R. § 2700.12.
32 FMSHRC Page 764

reopen final section l05(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (..the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, Vulcan's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

~

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 765

Distribution:
Denise E. Giraudo, Esq.
()gletree,Deakins,Nash,
Smoak & Stewart, P.C.
2400 N Street NW, 5th Floor
Washington, DC 20037
W. Christian Schumann, Esq.
()ffice of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
()ffice of Civil Penalty Compliance, MSHA
U.S. Dept. ()fLabor
1100 Wilson Blvd., 251h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
WasQington, D.C. 20001-2021

32 FMSHRC Page 766

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

July 22, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. LAKE 2010-158-M
A;C. No. 33-00125-193422

v.

Docket No. LAKE 2010-159;.M
A.C. No. 33-00127-193423

NATIONAL LIME & STONE COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 17, 2009, the Commission received from
National Lime & Stone Company ("National Lime") letters from its safety compliance officer to
reopen two penalty assessments that had become final orders of the Commission pursuant to
section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 1 On December 14, 2009, the Commission
received a resp9nse from the Secretary of Labor stating that she does not oppose the request to
reopen the assessment.
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 I 05(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). fu evaluating requests to

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers LAKE 2010-158-M and LAKE 2010-159-M, both captioned
National Lime & Stone Company, and both involving similar procedural issues. 29 C.F.R.
§ 2700.12.
32 FMSHRC Page 767

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

Robert F. Cohen, Jr., Commissioner

~

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 768

Distribution:
Kevin Kitzler
Safety Compliance Officer
National Lime & Stone Co.
P.O. Box 120
Findlay, OH 45839-0120
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., z5t1t Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20()01-2021

32 FMSHRC Page 769

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

July 22, 2010
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-1098-M
A.C. No. 24-01467-182351

v.
GENESIS, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On July 13, 2009, the Commission received from Genesis,
Inc. ("Genesis") a motion by counsel seeking to reopen a penalty assessments that had become a
final order of the Commission pursuant to section IOS(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 l 05(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure");JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

32 FMSHRC Page 770

On April 15, 2009, the Department of Labor's Mine Safety and Health Administration
(''MSHA") issued Proposed Assessment No. 000182351to Genesis. Genesis states that prior to
receiving the proposed assessment, it requested a safety and health conference on the underlying
citations in a phone conversation with an MSHA conference and litigation representative.
Genesis states that it was infonned to submit its request in writing and that the conference might
be delayed until penalties were proposed. Genesis also states that, after receiving the proposed
assessment, it subsequently submitted a letter to MSHA's Regional Office in Denver, Colorado,
indicating that it wished to contest the citations and requesting a conference. Genesis states that
its safety director believed that this was adequate to contest the proposed assessment as well,
conversation with MSHA. Genesis further states that on June 5, 2009, its
based on
accounting department submitted the proposed assessment to MSHA with payment for the
violations it did not wish to contest. The Secretary wrote Genesis on June 24, 2009, and notified
the operator that its hearing request of June 5, 2009 was untimely. Genesis explains that it only
realized that it had not successfully contested the proposed assessment when it received this letter
from MSHA on or after July 1, 2009.

his

The Secretary opposes reopening the proposed penalty assessment, maintaining that the
operator provides no reason why the fact that it requested a conference should excuse its failure
to contest the proposed assessment in a proper and timely manner. The Secretary points to
MSHA's regulations, the Commission's procedural rules, the Mine Act and the proposed
assessment as unequivocally indicating that an operator is required to contest the proposed
assessment within 30 days of receipt.
The Commission finds that Genesis has established that, although its fonnal contest of
the proposed assessment on June 5, 2005 was late by approximately two weeks, the failure
resulted from inadvertence or mistake. Genesis believed that its previous, very detailed, letter of
May 14, 2009 was sufficient to affect the contest. Moreover, Genesis acted very promptly in
submitting its request to reopen the assessment.

32 FMSHRC Page 771

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

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 772

Distribution:
Karen L. Johnston, Esq.
Jackson Kelly, PLLC
1099 18th Street, Suite 2150
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 773

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

July 22, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. SE 2009-750-M
A.C. No. 40-00031-179837

DUNLAP STONE, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. {2006) {"Mine Act"). On July 13, 2009, the Commission received from Dunlap
Stone, hie. {"Dunlap") a letter from the company 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(May1993) ("JWR"). fu evaluating requests to
reopen final section 105{a) orders, the Commission has found guidance in Rule 60{b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l{b) {''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 {Sept. 1995).
32 FMSHRC Page 774

The Department of Labor's Mine Safety and Health Administration (''MSHA'') issued
Proposed Assessment No. 00017983 7 to Dunlap on March 19~ 2009. Dunlap alleges that
previously it had contacted MSHA's field office in Birmingham, Alabama, to inquire about its
conference request with regard to the citations involved and was informed that it needed to file a
contest of the proposed assessment when it received that proposed assessment. Dunlap contends
that it submitted the contest as instructed. However, Dunlap does not indicate which proposed
penalties it intended to contest. It alleges that it inquired with MSHA's field office a few weeks
later to check on the status of its request and was told that there was no information yet on its
case. Dunlap contends that it then received a letter from MSHA on June 10, 2009 informing it
that the penalties were delinquent. The Secretary does not oppose Dunlap's request to reopen.
Having reviewed the facts and circumstances of this case, Dunlap's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for furtherproceedillgs pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700.

32 FMSHRC Page 775

Within 30 days of the date of this order, Dunlap must notify the Secretary as to which
citations it wishes to contest on Proposed Assessment No. 000179837. Consistent with Rule 28,
the Secretary shall file a petition for assessment of penalty within 45 days of notification by the
operator. See 29 C.F.R. § 2700.28.

Robert F.

ohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 776

Distribution:
Jeremy Thomas
Dunlap Stone, fuc.
P.O. Box 1595
Dunlap, 1N 37327
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 777

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

SUITE9500
WASHINGTON, DC 20001

July 27, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2010-151-M · ·
A.C. No. 34-01905-154656 H094

v.
PAN AMERICAN ELECTRIC, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 18, 2009, the Commission received from
contractor Pan American Electric, Inc. (''Pan American") a letter seeking to reopen a penalty
assessment that may have 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 fmal Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (''JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
32 FMSHRC Page 778

On June 24, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Penalty Assessment No. 000154656 to Pan American. The record
indicates that the assessment was returned undelivered, as was a later delinquency notice sent by
MSHA. Pan American states that it only learned of the assessment when it was contacted by a
collection agency on November 13, 2009. The Secretary states that she does not oppose the
reopening of the proposed penalty assessment, but stresses that contractors are obligated to keep
their addresses of record current with MSHA. She also notes that soon after filing its request to
reopen, the contractor submitted an address change.
Having reviewed Pan American's request and the Secretary's response, we conclude that
Assessment No. 000154656 has not become a final order of the Commission because ,it was
never received by Pan American. Accordingly, we deny the request to reopen as moot and
remand this matter 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. Consistent with Rule
28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of this
order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 779

Distribution:
Ted Anderson, Safety Coordinator
Pan American Electric, Inc.
978 Hwy., 77 South
Davis. OR 73030
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. DepartmentofLabor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25t11 Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 780

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

SUITE9500
WASHINGTON, DC 20001

July 27, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. VA 2010-338-M
A.C. No. 44-00045-208036

MARTIN MARIETTA MATERIALS, INC.

BEFORE: Jordan, Chainnan; Duffy, Young, Cohen, and Nakamura, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (''Mine Act''). On April 9, 2010, the Commission received from Martin
Marietta Materials, fuc., a request to reopen a penalty assessment that had become a final order of
the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). On May 17,
2010, the Comfilission received a response from the Secretary of Labor stating that she does not
oppose the request to reopen the assessment.
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''). fu evaluating requests to
reopen final section 105(a} orders, the Commission has found guidance in Rule 60(b} of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"}; JWR, 15 FMSHRC at 787. We have also observed
32 FMSHRC Page 781

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 proc~edings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, 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 ~s order. See 29 C.F .R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 782

Distribution:
Charles A. Fisher
Martin Marietta Materials, Inc.
9613 Hull Street Road
Richmond, VA 23236
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500 ·
Washington, D.C. 20001-2021

32 FMSHRC Page 783

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

July 27, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)

Docket No. CENT 2010-390-M
A.C. No. 13-01701-198586
Docket No. CENT 2010-391-M ·
A.C. No. 13-02173-195121

v.
BMC AGGREGATES LC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine'Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (''Mine Act"). On January 21, 2010, the Commission received from
BMC Aggregates LC a letter seeking to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 1 On
February 2, 2010, the Commission received a response from the Secretary of Labor stating that
she does not oppose the request to reopen the assessment.
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(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers CENT 2010-390-M and CENT 2010-391-M, both captioned BMC
Aggregates LC, and involving similar factual and procedural issues. 29 C.F.R. § 2700.12.
32 FMSHRC Page 784

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

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

Robert F. Cohen, Jr., Commissioner

'~Jb

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 785

Distribution:
Kurt J. Behrens
Engineer/Safety Director
BMC Aggregates, LC
P .0. Box 2277
Waterloo, IA 50704
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Perialty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 786

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

July 27, 2010
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK 2010-226-M
A.C. No. 30-03688-208182-02

v.
TOWN OF BETHEL

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On April 26, 2010, the Commission received from
the Town of Bethel a request by counsel to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). On
May 7, 2010, the Commission received a response from the Secretary of Labor stating that she
does not oppos~ the request to reopen the assessment.
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(May1993) ("JWR''). fu evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 787

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

~

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 788

Distribution:
Robert S. McEwan, Jr.,
514 State Street,
Schenectady, New York 12305
W. Christian Schwnann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 789

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

SUITE9500

WASHINGTON, DC 20001

July 29, 2010
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2009-848-M
A.C. No. 32-00793-188600

V.

PINKY'S AGGREGATES, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2006) ("Mine Act"). On September 22, 2009, the Commission received from Pinky's
Aggregates, Inc. ("PA'') a letter seeking to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). On
January 12, 2010, the Commission denied the motion without prejudice. Pinky's Aggregates,
Inc.', 32 FMSHRC 1, 3 (Jan. 2010). On January 27, the Commission received a second request to
reopen the penalty assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from
a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See
29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable by
the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that
default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a

32 FMSHRC Page 790

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).
On June 18, 2009, the Department of Labor's Mine Safety and Health Administration
('MSHA") issued Proposed Assessment No. 000188600 to PA, which listed proposed civil
penalties for three citations. PA failed to contest the penalties as required by section 105{a) of the
Mine Act. As a result, the proposed penalties were deemed final orders of the Commission.
On September 22, 2009,.the operator. filed a request to reopen the final orders with the
Commission. The operator stated that it failed to contest the proposed assessment in a timely
manner because the assessment was ..misplaced." The operator attached to its request a
delinquency notice from MSHA dated September 10, 2009, and copies of the citations. The
Secretary did not oppose PA' s request to reopen the proposed assessment.
On January 12, 2010, the Commission issued an order denying PA's request without
prejudice because PA had not provided a sufficiently detailed explanation for its failure to time
contest the proposed penalty assessment. 31 FMSHRC at 3. The Commission explained that the
operator's statement that it failed to contest the proposed penalties because the proposed
assessment was misplaced did not provide the Commission with an adequate basis to reopen
without further elaboration. Id. It further stated that if PA submitted another request to reopen, it
must establish good cause for not timely contesting the citations and proposed penalties and
include a full description of the facts supporting its claim and submit any supporting
documentation. Id. at 3 n. l.
On January 27, 2010, the operator resubmitted a copy of the September 10 delinquency
notice that it had received from MSHA. The delinquency notice has hand-written notations
apparently indicating that a petition to reopen had been filed with the Commission, but the
notations do not provide any additional explanation for the operator's failure to timely contest the
proposed assessment. A copy of an MSHA civil penalty collection report was attached which
indicates that the penalties have not been paid.

32 FMSHRC Page 791

fu its January 27 submission, PA failed to set forth a sufficiently detailed explanation for
its failure to timely contest the proposed penalty assessment. PA has again failed to fully explain
the circumstances involving its misplacement of the proposed penalty assessment, and how those
circumstances prevented PA from timely contesting the proposed penalty. Accordingly, PA' s
request to reopen is denied. See Left Fork Mining Co., 30 FMSHRC 8, 11 (Jan. 2009).

~

Micllacl'.Uffi,sione;.

Robert F. Cohen, Jr., Commissioner

r~
Patrick K. Nakamura, Commissioner

32 FMSHRC Page 792

Distribution:
JennyLetvin
Office Administrator
Pinky's Aggregates, Inc.
3731 86th Street, N. E.
Rollette, ND 58366
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 793

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

July 29, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2010-392-M
A.C. No. 13-02381-197853 H8Y

v.
BASIC MATERIALS CORPORATION

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (''Mine Act"). On January 21, 2010, the Commission received from
Basic Materials Corporation ("Basic") a letter seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR."). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

32 FMSHRC Page 794

On.September 22, 2009, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Proposed Assessment No. 000197853 to Basic, proposing a
civil penalty for Citation No 6494830. The safety director of BMC Aggregates LC C-BMC") 1
explains that after BMC received the proposed assessment on September 29, 2009, he sent a
contest of the proposed penalty to an MSHA district office rather than to MSHA's Civil Penalty
Compliance Office in Arlington, Virginia. After discovering the error, BMC promptly filed a
request to reopen. The Secretary does not oppose the request to reopen.

1

The request to reopen was filed by Kurt J. Behrens, who identifies himself as an
engineer/safety director ofBMC. Commission Procedural Rule 3 provides that, in order to
practice before the Commission, a person must either be an attorney or fall into one of the
categories in Rule 3(b), which includes parties, representatives of miners, an "owner, partner,
officer or employee" of certain parties, or "[a]ny other person with the permission of the
presiding judge or the Commission." 29 C.F.R. § 2700.3(b). It is unclear whether Mr. Behrens
satisfied the requirements of Rule 3 when he filed the request on behalf of Basic. We have
determined that, despite this, we will consider the merits of the request in this instance.
However, in any future proceeding before the Commission, including further proceedings in this
case, Mr. Behrens may represent Basic only if he demonstrates to the Commission or the
presiding judge that he fits within one of the categories set forth in Rule 3(b)(l)-(3) or seeks
permission to practice before the Commission or the judge pursuant to Rule 3(b)(4). Otherwise,
Basic must be represented by an attorney or by an owner, partner, officer, or employee.
32 FMSHRC Page 795

Having reviewed Basie's request and the Secretary's response, in the interests ofjustice,
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 assesstti:ent of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

r-~}-.
~__Id:i:::Ub~·--.!,...-----. Patrick K. Nakamura, Commissioner

32 FMSHRC Page 796

Distributions:
Kurt J. Behrens
Engineer/Safety Director
BMC Aggregates, LC
P.O. Box 2277
Waterloo, IA 50704
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25•h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. ·w., Suite 9500
.
Washington, D.C. 20001-2021

32 FMSHRC Page 797

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

July 29, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2010-138~M
A.C. No. 25-01052-191502

v.
DOLEZAL SAND & GRAVEL

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 10, 2009, the Commission received from
Dolezal Sand & Gravel ("Dolezal'') a letter seeking to reopen a penalty assessment that may have
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section IOS(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
The Secretary submits that upon reviewing the records in this proceeding, she has
discovered that the proposed pellalty was timely contested and is the subject of an active civil
penalty proceeding (Docket No. CENT 2010-142-M). In that proceeding, the Secretary has filed
a penalty petition, and the operator has filed an answer.

32 FMSHRC Page 798

Having reviewed Dolezal's request and the Secretary's response, we find the request to
reopen to be moot. Dolezal has properly contested the proposed penalty assessment and
therefore it did not become a final order of the Commission. Accordingly, the request to reopen
is dismissed as moot.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 799

Distribution:
Larry Dolezal
Dolezal Sand & Gravel
1011W7th St.
P.O. Box 523
North Bend, NE 68649

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

32 FMSHRC Page 800

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

July29., 2010
SECRETARY OF LABOR,.
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2010-448-M
. A.C. No. 23-01597-201871

v.
QUJKRETE COMPANIES, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On February 10, 2010, the Commission received from
Quikrete Companies, Inc. ("Quikrete") a request to reopen a penalty assessment that had become
a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under sec~on 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)iave become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

32 FMSHRC Page 801

On November 4, 2009, the Department of Labor's Mine Safety and Health
Administration ("MSHA'') issued Proposed Assessment No. 000201871 to Qllikcrete proposing
penalties for two citations that had been issued to the operator on September 21, 2009. ·
According to Quikcrete, it had planned to contest both proposed penalties, but because of the
absence of, and misunderstanding between, key decision makers, it failed to do so. The Secretary
opposes the request to reopen the ground that Quikrcrete's explanation for the failure to file a
timely contest is conclusory and thus insufficient to establish grounds for reopening the
assessment.

Having reviewed Quikcrete's request to reopen and the Secretary's response, we conclude
that the operator has not provided a sufficiently detailed explanation for its failure to timely
contest the proposed penalty assessment. Without further elaboration, the operator's explanation
has not provided the Commission with an adequate basis to reopen. Accordingly, we hereby
deny the request for relief without prejudice. See Eastern Assoc. Coal, LLC, 30 FMSHR.C 392,
394 (May 2008); James Hamilton Constr., 29 FMSHRC 569, 570 (July 2007). The words
''without prejudice" mean that Quikcrete may submit another request to reopen Assessment No.
000201871 so that it can contest the two proposed penalties.
At a minimum, the operator must provide an explanation of how it normally decides to
contest proposed penalties and specific information regarding why that process did not work in
this instance. Any amended or renewed request by Quikcrete to reopen Assessment
No. 000201871 must be filed within 30 days of the date of this order. Any such request filed
after that time will be denied with prejudice.

Robert F. Cohen, Jr., Commissioner

r~L
Patrick K. Nakamura, Commissioner
32 FMSHRC Page 802

Distribution:
Scott Bailey, CSP
Quikrete Companies, Inc.
701 Marshall Rd.
Valley Park, MO 63088
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief,
Office of Civil Penalty Compliance, MSHA,
U.S. Dept. of Labor,
1100 Wilson Blvd., 25th Floor,
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001"."2021

32 FMSHRC Page 803

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

August 3, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2010-177-M
A.C. No. 23-01325-193369

v.

CRAWFORD LIME AND
MATERIAL, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On December 1, 2009, the Commission received from
Crawford Lime and Materials, Inc. ("Crawford Lime") a request to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a). On December 24, 2009, the Commission received a response from the
Secretary of Labor stating that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
32 FMSHRC Page 804

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 805

Distribution:
Jennifer Voss ·
Crawford Lime & Materials, fuc.
63 Weber Road
Cuba, MO 65453
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 806

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

August 13, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2010-516-M
A.C. No. 26-02300-197930

v.
J.S. REDPATH CORPORATION

BEFORE: Jordan, Chainnan; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On January 14, 2010, the Commission received a request
from J.S. Redpath Corporation ("Redpath") 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(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits pennitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

32 FMSHRC Page 807

The Department of Labor's Mine Safety and Health Administration ("MSHA") issued
Proposed Assessment No. 000197930 to Redpath on September 22, 2009, proposing civil
penalties for nine citations that had been issued to Redpath in August 2009. Redpath contested
the penalties but sent the penalty contest and a conference request to the MSHA district office
rather than to MSHA's Civil Penalty Compliance Office in Arlington, Virginia. The operator
explains that it made a similar error in Docket No. WEST 2010-93-M, but that it was not
informed of its error until it had already made the same mistake in the subject proceeding. The
operator discovered that it had made the same mistake as it had in Docket No. WEST 2010-93-M
after it received a delinquency notice from MSHA, and promptly submitted its request to reopen.
The Secretary of Labor opposes reopening in this instance on the basis that the operator
has made no showing of circumstances that warrant reopening. She points out that both the
proposed assessment form and the letter Redpath received from the regional MSHA district
office, acknowledging a conference request, specified that any contest of a proposed penalty is to
be sent to MSHA's Arlington office.

32 FMSHRC Page 808

Having reviewed Redpath' s request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. See JS. Redpath Corp., 32 FMSHRC 15, 17 (Jan. 2010). Redpath sent its contest to
the regional MSHA district office within the 30-day period for contests, fully explained and
documented its error, and promptly filed its request for relief upon discovering the error.
Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty
within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 809

Distribution:
Mark N. Savit, Esq., Patton Boggs LLP
1801 California Street, Suite 4900
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor,
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 810

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

August 17, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2010-1190.:.R

v.
PERFORMANCE COAL COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
DIRECTION FOR REVIEW AND ORDER
BY: Jordan, Chairman; Cohen and Nakamura, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On July 21, 2010, Performance Coal Company
("Performance") filed with the Commission a petition for review which the company styled as an
"Emergency Petition for Expedited Discretionary Review." On August 2, 2010, the Secretary
filed an opposition to Performance's petition. In its petition, Performance seeks review of
Commission Administrative Law Judge Margaret A. Miller's unpublished order dated July 8,
2010, denying the company's application for temporary relief. 1 Unpublished Order (July 8,

1

Temporary relief is available under section 105(b)(2) of the Mine Act, which states as

follows:

An applicant may file with the Commission a written
request that the Commission grant temporary relief from any
modification or termination of any order or from any order issued
under section 104 together with a detailed statement giving the
reasons for granting such relief. The Commission may grant such
relief under such conditions as it may prescribe, if(A) a hearing has been held in which all parties were given
an opportunity to be heard;
·
(B) the applicant shows that there is substantial likelihood
that the findings of the Commission will be favorable to the
32 FMSHRC Page 811

2010). (As explained in section II.A, infra, Performance has sought review on several other
issues which concern interlocutory rulings made by the judge that are not appropriate for review
at this time.) Performance had sought temporary relief from an order issued by the Secretary of
Labor's Mine Safety and Health Administration ("MSHA") pursuant to section 103(k) of the
Mine Act,2 30 U.S.C. § 813(k), under which MSHA established protocols governing the
investigation of the mine accident at Performance's Upper Big Branch Mine that occurred on
April 5, 2010, and which resulted in the deaths of29 miners. We grant in part the petition for
discretionary review filed by Performance. We grant review only as to the issue of whether
temporary relief may be sought under section 105(b)(2) from the modification or termination of
an order issued by the Secretary pursuant to section 103(k) of the Mine Act. For the reasons that
follow, we affirm the judge's decision denying Performance's application.

I.
Factual and Procedural Background
Performance operates the Upper Big Branch Mine-South near Montcoal, West Virginia.
The explosion at the mine that occurred on April 5, 2010, is still under investigation by MSHA

applicant; and
(C) such relief will not adversely affect the health and
safety of miners.
No temporary relief shall be granted in the case of a citation issued
under subsection (a) or (f) of section 104. The Commission shall
provide a procedure for expedited consideration of applications for
temporary relief under this paragraph.
30 U.S.C. § 815(b)(2).
2

Section 103(k) states as follows:
In the event of any accident occurring in a coal or other mine, an
authorized representative of the Secretary, when present, may issue
such orders as he deems appropriate to insure the safety of any
person in the coal or other mine, and the operator of such mine
shall obtain the approval of such representative, in consultation
with appropriate State representatives, when feasible, of any plan
to recover any person in such mine or to recover the coal or other
mine or return affected areas of such mine to normal.

30 u.s.c. § 813(k).
32 FMSHRC Page 812

and State authorities, who have not yet determined a cause. As the Secretary explains in her
opposition to Performance's petition, "[t]he investigation remains ongoing," artd ''MSHA
continues to confrontsafety issues at the mine." Sec'y Opp. at 3. Under its section 103(k) order,
MSHA has allowed representatives from Performance to accompany investigation teams entering
the mine, but has limited the number of persons doing so and the nature of their participation on
safety grounds. Id. at 3-4.
On June 28, 2010; Performance filed an application for temporary relief seeking
modifications to MSHA's control order. On July 8, 2010, the judge denied Performance's
application on the grounds that under Commission precedent, "section 104 [is] the only section
[of the Mine Act] underwhich temporary relief may be sought pursuant to [section] 105(b)(2)." ·
Unpublished Order at 2 (July 8, 2010) (citing Utah Power and Light Co., 11FMSHRC953, 956
(June 1989) ("UP&L")).

II.
Disposition
Performance maintains that the plain language of section 105(b)(2) supports its position.
According to the company, the language of that section stating that an applicant may request that
the Commission grant temporary relief "from any modification or termination of any order"
necessarily includes relief from a modification of a section I 03(k) order. In her opposition to
Performance's petition, the Secretary contends primarily that the issues raised in the petition,
including whether the company may seek temporary relief from the section 103(k) order, should
be subject only to interlocutory review under the requirements of Commission Procedural
Rule 76, 29 C.F.R. § 2700. 76. She maintains further that Performance has failed to demonstrate
that the requirements for interlocutory review have been met.

In a motion-to dismiss for lack of jurisdiction filed with the judge on July 2, 2010,
however, the Secretary argued that the language of sectfon 105(b)(2) should be read to foreclose
the Commission from granting temporary relief from a modification to a section 103(k) order.
She argued that the phrase ''issued under section 104" modifies the entire phrase "any
modification or termination of any order or from any order." Mot. Dismiss at 7-8. The Secretary
further contended that her interpretation of the statute was reasonable and thus entitled todeference by the Commission, as well as consistent With Commission precedent. Id. at 9-1 O
(citing UP&L, 11 FMSHRC at 956).
A.

The Propriety of Appellate Review

Before turning to the merits of Performance's petition, we must address the threshold
question of whether a judge's decision denying or granting temporary relief in a proceeding
under section I 05(b)(2) is properly the subject of a petition for discretionary review. We
conclude that it is.

32 FMSHRC Page 813

In section 105(b)(2), Congress clearly gave the Commission jurisdiction to consider
applications for temporary relief from the issuance, modification, or termination of certain orders
issued by the Secretary. We have explicitly recognized that section 105(b)(2) is one of the Mine
Act provisions which "grant subject matter jurisdiction to the Commission by establishing
specific enforcement and contest proceedings and other forms of action over which the
Commission judicially presides." Kaiser Coal Corp., 10 FMSHRC 1165, 1169 (Sept. 1988).
Because Congress created a specific right to seek temporary relief in section I 05(b)(2), it follows
that any party should have the corresponding right to seek Commission review of an adverse,
conclusive decision issued by a judge in a section I 05(b)(2) proceeding. Moreover, because the
right to request temporary relief under section 105(b)(2) is specifically granted in the statute, the
appropriate procedural vehicle for obtaining review of an adverse decision is a petition for
discretionary review filed pursuant to section 113(d)(2)(A)(i) of the Mine Act, 30 U.S.C.
§ 823{d)(2)(A)(i) ("Any person adversely affected or aggrieved by a decision of an administrative
law judge, may file and serve a petition for discretionary review by the Commission of such
decision").
Because we conclude that a party may seek Commission review of a section 105(b)(2)
decision by filing a petition for discretionary review, it follows that Performance's petition in the
instant proceedings need not satisfy the requirements for interlocutory review set forth in
Commission Rule 76. In particular, Performance need not show that the matter "involves a
controlling question oflaw and that immediate review may materially advance the final
disposition of the proceeding." 29 CF.R. § 2700.76(a)(2). It is sufficient that the petition seek
review of an adverse decision denying or granting temporary relief in a section 105(b)(2)
proceeding. We thus conclude that it is well within our discretion to consider the petition for
discretionary review filed by Performance in this matter.
However, this is true only as to the proceedings before the judge related to Performance's
application for temporary relief. In its petition, Performance enumerates several other issues,
including whether the judge constructively denied the company's motion for an expedited
hearing, and erred in holding that the Commissioner is not authorized by law to modify section
103(k) orders, granting the Secretary"s motion to dismiss before providing the company an
opportunity to respond, holding that the company did not sufficiently present a challenge to the
section 103(k) order at issue, and granting a motion to strike made by the Secretary.
Performance Pet. at 13-14. All.of these issues relate to interlocutory rulings made by the judge
which were not properly preserved for appellate review on an interlocutory basis, i.e., through a
request to the judge to certify to the Commission that any one ruling "involves a controlling
question of law and that ... immediate review will materially advance the final disposition of the
proceeding," or, if the judge denies a motion to certify, through the filing of a petition for
interlocutory review. 29 C.F.R. § 2700.76. We thus do not reach any of them. We note that
these issues may be properly raised in an appeal from the judge's final order.

32 FMSHRC Page 814

B.

The Scope of Relief Available under Section 105(b)(2) of the Mine Act

Based on our review of the· statutory language and legislative history of section 1OS(b)(2),
we conclude that Congress did not intend for temporary relief to be available from a modification
to or termination of a section 103(k) order. Tue statute provides that temporary relief is available
from "any modification or termination of any order or from any order issued under section 104."
30 U.S.C. § 815(b)(2). Performance argues that in the phrase "any modification or termination
of any order," the words ''any order" mean literally any order. This reading of the statute treats
the two phrases "any modification or termination of any order" and "any order issued under
section 104" as independent clauses, an interpretation that implicitly places a comma after the
first clause ("any modification or termination of any order[,] or from any order issued under
section 104").

In this case, we construe the qualifying phrase "under section I 04" in section I 05(b )(2) as
modifying the entire phrase "modification or termination of any order or from any order." In
other words, we conclude that a grant of temporary relief is only available for orders issued under
section 104, whether one is seeking temporary relief from the modification, termination or
issuance of the order. This construction avoids the anomalous result of allowing a party to seek
temporary relief from the modification or termination of any order the party would not have been
able to challenge when it was issued.
We recognize that a qualifying word or phrase usually applies to the provision or clause
immediately preceding it. This construct is commonly referred to as the "last antecedent"
principle of statutory construction. However, where the sense of the entire statute requires that a
qualifying word or phrase apply to several preceding clauses, the word or phrase will not be
restricted to its immediate antecedent. 2A Singer, Sutherland Statutory Construction § 47.33
(7th ed. 2008). Here, although application of the "last antecedent" principle might suggest that
the phrase "issued under section I 04" modifies only the phrase immediately preceding it, i.e.,
"from any order," this leads to the anomalous result mentioned above. Moreover, it would
permit temporary relief in situations Congress did not intend.
For example, under the construction urged by Perforinance, an operator could seek
temporary relief from the modification of an imminent danger order. If an MSHA inspector
issues an imminent danger order requiring the withdrawal of miners from a section of the mine
but subsequently concludes that the danger is greater in scope than first determined, the inspector
would modify the order to require withdrawal of miners from the entire mine. Under the
construction urged by Performance, it could seek temporary relief from the inspector's decision
to withdraw miners from the additional area, although the company was precluded from seeking
temporary relief from the initial withdrawal order. 3 · Statutes should be construed to avoid such
loopholes which here would undermine the purposes of the Mine Act.

3

Congress specifically prohibited the grant of temporary relief from the issuance of an
imminent danger order in section 107(e) of the Mine Act. 30 U.S.C. § 817(e)(l).
32 FMSHRC Page 815

Similarly, section 103(k:) of the Mine Act provides that where a mine accident has
occurred, such as that at the Upper Big Branch mine, the authorized representative of the
Secretary "may issue such orders as he deems appropriate to. insure the safety of any person in the
coal or other mine." 30 U.S.C. § 813(k). The scope of the Secretary's authority under section
103(k) is reflected in the Senate report, which states:
The unpredictability of accidents in mines and uncertainty as to the
circumstances surrounding them requires that the Secretary or his
authorized representative be permitted to exercise broad discretion
in order to protect the life or to insure the safety of any person.
The grant of authority under section [I 03(k:)] to take appropriate
actions and ... to issue orders is intended to provide the Secretary
with flexibility in responding to accident situations, including the
issuance of withdrawal orders.
S. Rep. No. 95-181, at 29 (1977), reprintedin Senate Subcomm. on Labor, Comm. on Human
Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 617 (1978)
("Legis. Hist."). The scene of a mine accident is similar to an area from which miners have been
withdrawn because of an imminent danger. In fact, a mine that has experienced a major
explosion can be far more dangerous than an operating mine because of, for example,
interruptions in ventilation. As a mine is recovered after an accident, conditions in the mine are
ever changing as recovery proceeds. Under such dynamic circumstances, an initial control order
must be repeatedly modified to take into account changes in the mine. Yet under Performance's
interpretation of section 105(b)(2), we are met with the same anomaly with regards to section
103(k) as with section 107(a)-thatPerformance could seek temporary relief from MSHA's
decision to modify a section I 03(k) order in response to ever changing conditions, although the
company would be precluded from seeking temporary relief from the initial withdrawal order.
Moreover, if Performance could seek temporary relief from protocols adopted after the
initial issuance of a section 103(k) order, this would be inconsistent with the "plenary power"
section 103(k) gives MSHA ''to make post-accident orders for the protection and safety of all
persons." Miller Mining Co. v. FMSHRC, 713 F.2d 487, 490 (9th Cir. 1983). For the
Commission to attempt in any way to micro-manage section l 03(k) orders in a temporary relief
proceeding would in our view be ill-advised, especially given that parties can obtain review of
such orders after the fact in contest proceedings. See American Coal Co. v. Dep 't ofLabor, 639
F.2d 659, 661 (10th Cir. 1981);EastemAssociated Coa/Co., 2 FMSHRC 2467, 2469-71 (Sept.
1980).
We are particularly unwilling to extend the scope of temporary relief to include
pre-contest litigation over MSHA' s discretion to respond - as it deems appropriate - in the
aftermath of a major mine disaster. We reject the interpretation of the Mine Act offered by
Performance because such a reading would interfere with the flexibility Congress intended the

32 FMSHRCPage 816

Secretary to have when she responds to disasters of such enormity as the explosion at
·
Performance's Upper Big Branch Mine.
We also find Performance's reading of section 105(b)(2) to be at odds with that section's
textual history. The predecessor to section 105(b)(2) was section 105(d) of the Federal Coal
Mine Health and Safety Act of 1969, 30 U.S.C. § 815(d) (1976) ("Coal Act"). It provided that
temporary relief was available "( 1) from any modification or termination of any order, or (2)
from any order issued under section 104 of this title." The two explicit provisions were modified
by the clause: "Pending completion of the investigation required by this section, the applicant
may file with the Secretary a written request that the Secretary grant temporary relief." The
"investigation" to which this clause referred was mandated under section 105(a)(l), which
provided that an operator could apply to the Secretary for review of an order issued ''pursuant to
the provisions ofsection 104." (Emphasis added.) Section 105(a)(l) went on to provide: "Upon
receipt of such application, the Secretary shall cause such investigation to be made as he deems
appropriate." (Emphasis added.) In other words, by its plain terms, the temporary relief afforded
mine operators under the Coal Act was limited to orders issued "pursuant to the provisions of
section 104" of that Act. When Congress enacted section 105(b)(2) of the Mine Act, it did not
intend to depart from the scope of temporary relief afforded under the Coal Act. In conference,
the scope of temporary relief was limited to "all the situations encompassed by the House
amendment," which in turn were situations drawn from section 104 of the Coal Act - which did
not include accident control orders. See S; Conf. Rep. No. 95-461, at 51 (1977), reprinted in
Legis. Hist. at 1329.
We thus affirm the judge's denial of Performance's application for temporary relief. 4
Because we conclude that the judge was correct in concluding that temporary relief was not
available to Performance as a matter of law, we need not consider what relief may have been
appropriate if the company could have pursued such relief.

4

In reaching this conclusion, we note that it is in accord with the Secretary's views
expressed in her motion to dismiss made to the judge. On review, however, the Secretary has not
requested that we accord deference to her interpretation of section 105(b)(2). Thus, although we
are in accord with the Secretary, we do not reach the question of whether deference is due to the
Secretary's interpretation. See United Mine Workers Local 1248 v. Maple Creek Mining Co., 29
FMSHRC 583, 591 & n.l (July 2007) (concluding that the Commission "need not defer to
another agency's interpretation of the statutory language at issue" where "the Secretary has not
requested that [the Commission] accord deference to her interpretation").

32 FMSHRC Page 817

III.
Conclusion
For the foregoing reasons, we affirm the judge's decision denying Performance's
application for temporary relief

Robert F. Cohen, Jr., Commissioner

~

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 818

Commissioners Duffy and Young, dissenting:
We agree with the majority's position that Performance Coal Company's appeal of the
judge's decision denying its request for temporary relief is the appropriate subject of a petition
for discretionary review and join our colleagues in granting Performance's petition. We also
agree that the other issues raised by Performance in its petition are interlocutory in nature and
decline to consider those issues at this time. However, we depart with the majority on the issue
of whether section I OS(b)(2) permits temporary relief of a modification or termination of a
section I 03(k) order. We conclude that it does.
The first inquiry in statutory construction is ''whether Congress has directly spoken to the
precise question at issue." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). If a statute
is clear and unambiguous, effect must be given to its language. See Chevron, 467 U.S. at 842- ·
43; accord Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C. Cir. 1990). Deference
to an agency's interpretation of the statute may not be applied "to alter the dearly expressed
intent of Congress." K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (citations omitted).
fu ascertaining the plain meaning of the statute, courts utilize traditional tools of construction,
including an examination of the "particular statutory language at issue, as well as the language
and design of the statute as a whole," to determine whether Congress had an intention on the
specific question at issue. Id.; Local Union 1261, UMWA v. FMSHRC, 917 F.2d at 44; Coal
Employment Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989). The examination to
determine whether there is such a clear Congressional intent is commonly referred to as a
"Chevron I" analysis. See Coal Employment Project, 889 F:2d at 1131; Thunder Basin, 18
FMSHRC at 584; Keystone Coal Mining Corp., 16 FMSHRC 6, 13 (Jan. 1994).
Section 1OS(b)(2) reads as follows:
An applicant may file with the Commission a written
request that the Commission grant temporary relieffrom any
modification or termination ofany order or from any order issued
under section 104 together with a detailed statement giving the
reasons for granting such relief The Commission may grant such
relief under such conditions as it may prescribe, i:f-

(A) a hearing has been held in which all parties were given
an opportunity to be heard;

· (B) the applicant shows that there is substantial likelihood
that the findings of the Commission will be favorable to the
applicant; and

32 FMSHRC Page 819

(C) such relief will not adversely affect the health and
safety of miners.
No temporary relief shall be granted in the case of a citation issued
under subsection (a) or (:f) of section 104. The Commission shall
provide a procedure for expedited consideration of applications for
temporary relief under this paragraph.
30 U.S.C. § 815(b)(2) (emphasis added).
Based on our review of the statutory language and legislative history, we conclude that
Congress.intended that parties could seek temporary relief from a modification or termination of .
a section 103(k) order pursuant to section 105(b)(2). This is an instance where Congress ••has
directly spoken to the issue" under Step 1 ofthe test set forth in Chevron, 467 U.S. at 842. As
stated above, the key language in section 105(b)(2) is ••the Commission [may] grant temporary
relief from any modification or termination of any order or .from any order issued under section
104." 30 U.S.C. § 815(b)(2) (emphasis added). The most natural reading of that language is that
the phrase before the disjunctive "or" (in italics) is parallel to, and distinct from, the phrase after
that disjunctive "or." fu other words, an applicant may seek relief "from any modification or.
termination of any order" or it may seek relief "from any order issued under section 104." If
Congress had wanted the words "issued under section 104" to apply to both of these phrases, it
could certainly have indicated so.
Indeed, both the majority and the Secretary concede that the "last antecedent" principle of
statutory construction1 would lead to the conclusion that the words "issued under section 104"
modify only the second phrase. Slip op. at 5; S. Opp'n. to Emergency Appl. & Memo to Support
Mot. to Dismiss at 8. However, the majority attempts to show that Congress would not have
intended such a result by relying on the structure of the Mine Act as a whole. We find their
reasoning unpersuasive.
First, section 105(b)(2) is a marvel of Congressional clarity: brief, clear, direct and
susceptible to harmonization with other provisions in the Act. If our colleagues were to assume
for argument's sake that Congress intended to include within the scope of the subsection "any
order," we must ask how it might otherwise have secured that objective without using this term,
as it has, here? Divining Congressional intent from cloudy or uncertain language in the Mine Act
is sometimes necessary. It is not necessary or proper in this instance, unless one wishes to
conclude that Congress did not mean what it precisely and unequivocally said.
The plain meaning of plain language in subsection (b)(2) is further buttressed by the
express exclusion of some orders from its scope. This further evinces the directness and clarity

1

See, e.g., 2A Singer, Sutherland Statutory Construction§ 47.33 (7th ed. 2008).

32 FMSHRC Page 820 .

of the provision. Had Congress intended to further constrain the applicability of section
105(b)(2) to· withdrawal orders under Section 104, it could have said so. It did not.
The majority attempts to avert the plain meaning of section 105(b)(2) by contorting the
predecessor pfovisions of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S:C. § 801
et seq. (1976) ("Coal Act"), to divine Congress' intent of a limited reading of section 105(b)(2),
which is not in the language. Slip op. at 7. Again, the majority ignores the plain language of the
relevant provision in. the Coal Act. We find it persuasive that the plain language of the same
provision in the Coal Act, upon which section 105(b)(2) is based, clearly supports our
interpretation. Section 105(d) of the Coal Act, as enacted, stated:
[T]he applicant may file with the Secretary a written request that
the Secretary grant temporary relief (1) from any modification or
termination of any order,, or (2) from any order issued under section
104 ....
30 U.S.C. § 815(d) (1976). Thus, the relevant language in both the Coal Act and the Mine Actis
nearly identical. However, it is very significant that section 105(d) of the Coal Act contained the
numbers "(1)" and "(2)" before thetwo phrases in question. The inclusion of the two numbers
leaves no doubt as to Congress' intent: the two phrases were meant to be parallel and to provide
two distinct avenues of review. 2 Thus, the reference to· "section 104" in the second phrase clearly
does not apply to orders included within the first phrase.· Congress has directly spoken to the
issue, and there is no doubt that an applicant can seek temporary relief froin the modification or
termination of an order that is not issued under section 104, i.e., a section 103(k) order.
The majority notes that section 104 is, indeed, mentioned in section 105 ·of the Coal Act,
and relies on this to foreclose temporary relief for other orders. Slip op. at 7. However, what the
majority ignores is that the design of the statute clearly provides for broader relief from orders
issued under section 104 - which may have punitive or deterrent purposes in addition to
protective ones - to include amendments or terminations of other orders more closely associated
with direct protection of miners. Thus, operators may not seek temporary relief from orders that
require abatement of hazardous conditions pursuant to subsectfons (a) and (:Q, because the statute
says so, clearly and directly. 30 U.S.C. § 815(b)(2).
Yet some orders, including those issued under section 103(k), 30 U.S.C. § 813(k),
implicate directly the Secretary's judgments on measures needed to protect miners in a :fluid
situation. As those circumstances change, and orders are amended orterminated, it is important
to allow not only operators but representatives of miners to challenge amendments or

2

·The fact that the drafters of the Mine Act subsequently omitted the two numbers in
section 105(b){2) of the Mine Act does not affect our analysis. There is no absolutely no
indication in the legislative history that deletion of the numbers was intended to change the
clearly expressed meaning of the Coal Act provision.
32 FMSHRC Page 821

terminations which change the status quo in the mine.3 These changes or terminations may pose
difficulties or may present hazards to miners sent into the environment. Allowing those thus
affected to seek temporary relief from the effects of the Secretary's decisions is wholly consistent
with the Mine Act's graduated, measured approach to temporary relief, as reflected in the Act's
express exclusion of some orders, and we submit is the only reasonable reading ofthe clear and
direct language of the statute.
Our colleagues also look to the legislative history of the Mine Act to further support their
interpretation of section I 05(b)(2) .. Slip op. at 6-7. We find the legislative history unavailing.
What they fail to acknowledge is that the legislative history is silent on whether temporary relief
under section 105(b)(2) extends to section 103(k) orders.

The majority seeks to avoid any reading of the Mine Act which results in a party being
able to seek temporary relief from the modification or termination of any order the party would
not have been able to challenge when it was issued, going as far as to characterize any reading
which results in such as "anomalous." Slip op. at 5. Yet section 107 of the Mine Act plainly
provides for such a result with respect to imminent danger orders:
(e)(1) Any operator notified of an order under this section
or any representative of miners notified of the issuance,
modification, or termination of such an order may apply to the
Commission within 30 days ofsuch notification for reinstatement,
modification or vacation of such order. The Commission shall
forthwith afford an opportunity for a hearing (in accordance with
section 554 of title 5, United States Code, but without regard to
subsection (a)(3) of such section) and thereafter shall issue an
order, based.upon findings of fact, vacating, affirming, modifying,
or terminating the Secretary's order. The Commission and the
courts may not grant temporary relieffrom the issuance of any
order under subsection (a).

30 U.S.C. § 817(e)(I) (emphases added). fu other words, section 107(e)(I) only prohibits' the
granting of temporary relief from the issuance of an imminent danger order, not the modification
or termination of such an order.
Thus, while the majority touts. its interpretation of section 105(b)(2) as driven by the
"sense" of the entire statute (slip op. at 5), it is, in fact, flatly inconsistent with the plain language

3

By distorting the language of the statute, the majority prevents representatives of miners
from seeking temporary relief from amendments and terminations of orders under subsection
103(k). We need not address the parameters of such challenges in this decision, but foreclosing
them altogether may significantly and adversely affect miners' advocacy on behalf of their own
safety.

32 FMSHRC Page 822

of other sections of the Mine Act that appear to us to have been drafted to be consistent with .the
plain meaning of section 105(b)(2) that we have set forth. Moreover, any attempt to perfectly
reconcile the language of section 105(b)(2) with the language and placement of a similar
provision in the Coal Act, which is what the majority appears to be attempting (slip op. at 7), is
bound to founder, because the Coal Act did not provide for imminent danger orders in a section
separate from its section 104, and the Mine Act does in its section 107.4
We would thus find the order at issue here to be within the scope of section I 05(b)(2).
However, we are mindful of the Secretary's special responsibility in this area, and operators
should not have an untrammeled right to seek, in effect, a preliminary injunction against the
enforcement of an amended order issued under subsection 103(k). As the majority correctly
notes, the Secretary's authority in command of an accident site is, and must be, plenary. Slip op.
at 6. Where the Act charges her with direct responsibility for protection of miners, we must
preserve that authority against challenges that may distract her from that duty.
We would therefore hold that an operator may only seek temporary relief:
1) From amendments that present a clear abuse of discretion, such as a failure to
articulate a safety-related reason for the provision at issue. In those cases, the
judge should presume, in the absence of compelling evidence to the contrary, that
the Secretary's agents are acting in good faith to advance her duty under the law,
and the burden of proving an abuse of discretion must be on the applicant; and
2) For relief oflimited duration and scope to permit the operator to engage in
activities necessary to protect the health and safety of miners. Again, the burden
would be on the operator to establish that relief is warranted. 5

4

The majority justifies its clearly erroneous reading of the Mine Act based on its fear that
giving effect to the plain meaning of section 105(b)(2) (and, though they don't state it, section
107(e)(I)) would permit operators to challenge modifications expanding the scope of a section
107 imminent danger order. Slip op. at 5. The Mine Act can be easily read, however, to permit
the Secretary to terminate an inadequate section I 07 order and issue a new one when an
inspection or investigation shows the area affected by the danger is more extensive. Thus, the
majority's concern about "loopholes" is entirely misplaced.
s We would therefore hold that Performance would be permitted in this case to seek
temporary relief from the modified section I 03(k) order, if it could demonstrate that the
modification prevents it from carrying out its obligation to conduct its own investigation
pursuant to 30 C.F.R. § 50.l l(b), but only if the operator can show that the refusal to permit such
activities represents a clear abuse of discretion or that the grant of temporary relief is necessary to
effect the purposes of the Act and will not interfere in any way with the Secretary's duty to
ensure the safety of any person in the mine.

32 FMSHRC Page 823

We therefore respectfully dissent and would remand this case to the judge to determine
whether limited temporary relief is warranted in this instance.

32 FMSHRC Page 824

Distribution:
Robert Luskin, Esq.
Patton Boggs LLP
2550 M Street, N. W.
Washington, D.C.
(202) 457-6315
Miner's Representative
Performance Coal
130 Frontier Street
Naomi, WV 25140-9550
Derek J. Baxter, Esq.,
Office of the Solicitor,
U.S. Department of Labor,
1100 Wilson Blvd., 22nd Floor West,
Arlington, VA 22209-2247
Robert S. Wilson, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-:-2247
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Robin Rosenbluth, Esq.,
Office of the Solicitor,
U.S. Department of Labor,
1100 Wilson Blvd., 22nd Floor West,
Arlington, VA 22209.-2247
Administrative Law Judge Margaret A. Miller
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
721 19th Street, Suite 443
Denver, CO 80202-2500

32 FMSHRC Page 825

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

SUITE9500
WASHINGTON, DC 20001

August 24, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)

v.

Docket No. CENT 2010-'-150-M
A.C. No. 29-000708-148523 AB8

JAMES HAMILTON CONSTRUCTION

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (''Mine Act"). On November 17, 2009, the Commission received from
James Hamilton Construction ("JHC") 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 that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable

32 FMSHRC Page 826

neglect. 1 See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also
held that a Rule 60(b) motion shall be made within a reasonable time, and for reasons (1), (2),
and (3) not more than one year after the judgment, order, or proceeding was entered or taken. 2
Celite Corp., 18 FMSHRC 105, 107 (Apr. 2006) (citations and quotations omitted).
On April 24, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000148523 to JHC. JHC states that on March 31,
2008, it had requested a conference, which MSHA denied on the grounds that the information
provided was insufficient. JHC states on April 7, 2008, it again requested a conference providing
additional information, but its request was denied as untimely. JHC claims it was unaware of the
proposed assessment until it received a call from a collection agency. It subsequently submitted
its request to reopen the proposed assessment to the Commission on November 17, 2009.
The Secretary opposes JHC's request to reopen. She states that the penalty assessment
became a final Commission order on May 30, 2008, and asserts that the proposed assessment was
successfully delivered by FedEx on April 30, 2008, and that a delinquency notice was mailed
July 16, 2008. She also notes that this case was listed as delinquent on another proposed
assessment which was subsequently issued and successfully contested by the operator. The
Secretary states that because JHC filed its request more than one year after the assessment
became a final order, the request should be denied.
Here, although JHCclaims it was unaware of the proposed assessment until it was
contacted by a collection agency for payment, it appears that the operator did receive the
proposed assessment. Moreover, JHC does not identify when it was contacted by the collection

1

Rule 60(b) provides that a court may relieve a party from a final judgment, order, or
proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence ... ;
(3) fraud ... ;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is
based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
2

Rule 60(c) provides that "[a] motion under Rule 60(b) must be made within a
reasonable time- and for reasons (1), (2), and (3) no more than a year after the entry of the
judgment or order or the date of the proceeding. Fed. R. Civ. P. 60(c).
32 FMSHRC Page 827

agency or explain the significant delay in filing its request to reopen. At the very least, it appears
that JHC had several opportunities to discover the delinquent assessment, but failed to take note
of it and address it in a timely fashion.
Finally, because JHC waited over a year to request relief with regard to Proposed
Assessment No. 000148523, its motion is untimely. JS Sand & Gravel, Inc., 26 FMSHRC 795,
796 (Oct. 2004). Accordingly, we deny JHC's request to reopen.

Patrick K. Nakamura, Conlm.issioner

32 FMSHRC Page 828

Distribution:
Jeffrey A. Dahl, Esq.
Keller & McLeod, P.A.
P.O.BoxAa
Albuquerque, NM 87103
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
501 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 829

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

August 24, 2010
Docket No. KENT 2010-274
A.C. No. 15-00003-193324

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

Docket No. SE 2010-291:..M
A.C. No. 40-00059-196466
Docket No. SE 2010-292-M
A.C. No. 40-03148-196476

v.
Docket No. SE 2010-293-M
A.C. No. 40-00082-196470
Docket No. SE 2010-294-M
A.C. No. 40-00063-196467

ROGERS GROUP, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 19 and December 18, 2009, the Commission
received from Rogers Group, me. ("Rogers Group") requests to reopen five penalty assessments
that had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a). 1 On December 16, 2009 and January 8, 2010, the Commission received
responses from the Secretary of Labor stating that she does not oppose the requests to reopen the
assessments.

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers KENT 2010-274, KENT 2010-291-M, KENT 2010-292-M, KENT
2010-293-M and KENT 2010-294-M, all captioned Rogers Group, Inc., and all involving similar
procedural issues. 29 C.F.R. § 2700.12.
32 FMSHRC Page 830

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(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

32 FMSHRC Page 831

Having reviewed the facts and circumstances of this case, the operator's requests, and the
Secretary's responses, 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.

~-\3~.!GL~'.

7.'"'-"'et-:-_---MiCfulei~-~--s

Robert F. Cohen, Jr., Commissioner

~

.

~~L

PLN.

32 FMSHRC Page 832

Nakamura, Commissioner

Distribution:
Karomica Glover
Safety Mngr.
Rogers Group, fuc.
P.O. Box 25250
Nashville, TN 37202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 251h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 833

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

WASHINGTON, DC 20001

August 24, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION"(MSHA)
Docket No. WEVA 2010-904
A.C. No. 46-08581-208515

v.
BLUE HAVEN ENERGY, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C
§ 801 et seq. (2006) ("Mine Act"). On April 19, 2010, the Commission received from
Blue Haven Energy, Inc. ("Blue Haven") a motion to reopen a penalty assessment that may have
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

On January 12, 2010, the Department of Labor's Mine Safety and Health Administration
("MSHA'') issued Proposed Assessment No. 000208515 to Blue Haven, proposing penalties for
two citations that had been previously issued to the operator. According to the Secretary,
because of a problem with Federal Express delivery, the assessment was never received by Blue
Haven and was returned undelivered. Blue Haven states that it learned of the assessment when it
checked the MSHA web site sometime in March 2010. The Secretary does not oppose
reopening.
Having reviewed Blue Haven's request and the Secretary's response, we conclude that
Assessment No. 000208515 has not become a final order of the Commission because it was
never received by Blue Haven. Accordingly, we find the request to reopen to be moot and
remand this matter to the Chief Administrative Law Judge for further proceedings pursuant to the
32 FMSHRC Page 834

Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. If the operator has not
already done so, it should submit the proposed assessment form to MSHA within 30 days of the
date of this order. See 29 C.F.R. § 2700.26.

Robert F. Cohen, Jr., Commissioner

~

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 835

Distribution:
W. Fred St. John
Secretary/Treasurer
Blue Haven Energy, Inc.
416 Tanglewood Dr.
Princeton, WV 24740 .
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of the Penalty Compliance
U.S. Dept Of Labor, MSHA
1100 Wilson Blvd.
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 836

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

August 26, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2010-178-M
A.C. No. 08-01308-194693 2UV

v.
ARDAMAN & ASSOCIATES, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 30, 2009, the Commission received from
Ardaman & Associates, Inc., a motion by counsel seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a). On December 14, 2009, the Commission received a response from the
Secretary ofLapor stating that she does not oppose the request to reopen the assessment.
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) (".!WR"). fu evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); .!WR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 837

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the contractor's request, and
the Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

·~
I

L
Patrick K. Nakamura, Commissioner

32 FMSHRC Page 838

Distribution:
Bill C. Berger, Esq.
Stettler Mill, P.C.
1050 17m Street, Suite 700
Denver, CO 80265
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22°d Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of the Penalty Compliance
U.S. Dept. of Labor, MSHA
1100 Wilson Blvd.
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission .
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 839

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

SUITE9500
WASHINGTON, DC 20001

August 26, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2010-108
A.C. No. 36-06905-193165

v.
AMERIKOHL MINING INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 12, 2009, the Commission received from
Amerikohl Mining Inc. 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). On
December 2, 2009, the Commission received a response from the Secretary of Labor stating that
she does not oppose the request to reopen the assessment.
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(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 840

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 841

Distribution:
Craig P. Sutton, CMSP
Amerikohl Mining, Inc.
202 Sunset Drive
Butler, PA 16001
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Penalty Compliance
U.S. Dept. Of Labor
1100 Wilson Blvd., 22nd Fl. West
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 842

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

SUITE9500
WASHINGTON, DC 20001

August 26, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2010-698-M
A.C. No. 44-05772-175611

v.
ONSITE KRUSHING COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
. This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act'} On February 23, 2010, the Commission received from Onsite
Krushing Company ("OK") a request to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section l 05(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must n~tify-the Secretary 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).

of

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

32 FMSHRC Page 843

The Department of Labor's Mine Safety and Health Administration ("MSHA") issued
Proposed Assessment No. 00017S61 l to OK on February 4, 2009, proposing penalties for 15
citations that had been issued to the operator. OK states that it never received the proposed
assessment and alleges that it was sent to an incorrect address. The Secretary of Labor does not
oppose reopening, but states that because it sends assessments to the Address of Record on an
operator's Legal Identity Report, it is incumbent upon operators to update MSHA when that
address changes.
Having reviewed OK's request and the Secretary's respo~e, we conclude that because
OK apparently never received the proposed assessment there is no final order and therefore that
OK's request to reopen is moot. 1 Accordingly, this matter 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. 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.

.

c~t ~oou
Patrick K. Nakamura, Commissioner

1

Nevertheless, as the Secretary states, it is OK's responsibility to keep MSHA informed
of changes in its Address of Record on its Legal Identity Report.
32 FMSHRC Page 844

Distribution:
Raffie Y eremian, Project Mgr.
Onsite Krushing Company
P.0.Box309
Brea, CA 92822
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of the Penalty Compliance
U.S. Dept. of Labor, MSHA
1100 Wilson Blvd.
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 845

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

August 30, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMlNISTRATION (MSHA)
Docket No. KENT 2010-1122
A.C. No. 15-17587-215176

v.

omo COUNTY COAL COMPANY, LLC
BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act''). On Junel, 2010, the Commission received from
Ohio County Coal Company, LLC, a motion by counsel seeking to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a). On June 16, 2010, the Commission received a response from the Secretary of
Labor stating that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however; that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 846

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529; 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the.
Secretary's response, 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.

Mic

Robert F. Cohen, Jr., Commissioner

~

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 847

Distribution:
Jonathan R. Ellis, Esq.
Steptoe & Johnson, PLLC
Eighth Floor, Bank One Center
P.O. Box 1588
Charleston, WV 25326-1588
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of the Penalty Compliance
U.S. Dept. of Labor, MSHA
1100 Wilson, Blvd.
Arlington, VA 22209
Keith E. Bell, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 848

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

August 30, 2010
Docket No. SE 2010-151-M
A.C. No. 09-01108-193876

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

Docket No. SE 2010-359-M
A.C. No. 09-01164-196903

v.

Docket No. SE 2010-889-M
A.C. No. 09-01164-200122

CARBO CERAMICS, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federat Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 18, 2009, the Commission received from
Carbo Ceramics, Inc. ("Carbo") a letter seeking to reopen a penalty assessment issued to the
operator that had become a final order of the Comn:,tission pursuant to section 105(a) of the Mine
Act, 30 U.S.C. § 815(a). On January 12, 2010, the Commission received a request from Carbo
seeking to reop,en two more such assessments. 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that inappropriate circumstances, we posses~jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b)ofthe
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers SE 2010-151-M, SE 2010-359-M, and SE 2010-889-M, all
captioned Carbo Ceramics, Inc., and involving similar procedural issues. 29 C.F.R. § 2700.12.
32 FMSHRC Page 849

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700. l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

On August 11, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000193876 to Carbo for eight citations MSHA had
previously issued to the operator. Carbo states in its November 18 request that it mailed the form
indicating that it intended to contest three of the citations along with its payment of the other five
penalties to MSHA's St. Louis address for such payments, not to MSHA's Civil Penalty
Compliance Office as it should have. The Secretary of Labor does not oppose Carbo' s request to
reopen, but urges the operator to make sure that it sends notices of contest to MSHA' s Civil
Penalty Compliance Office in Arlington, VA.
In its January 12 request, Carbo states that it intended to contest four citations in
Proposed Assessment No. 000196903, issued by MSHA on September 15, 2009, and one citation
in Proposed Assessment No. 000200122, issued byMSHA on October 13, 2009, but that the
assessment sheets marked for contest were not "included with the final payments that were sent
to the Treasurer due to an Accounting Department oversight." The Secretary opposes these
requests to reopen on the ground that Carbo's statement does not explain why the contests were
not filed on a timely basis.
Having reviewed the facts and circumstances with respect to Proposed Assessment
No. 000193876, the operator's November 18 request, and the Secretary's response, we hereby
reopen the assessment 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.
With regard to the other two proposed penalty assessments, however, we conclude that
the operator has not provided a sufficiently detailed explanation for its failures to timely contest
the assessments. The operator's statement that it failed to include its contests with the "final
payments that were sent to the Treasurer due to an Accounting Department oversight" does not
provide the Commission with an adequate basis to reopen without further elaboration regarding
when these internal mistakes occurred, and how Carbo's Treasurer and Accounting Department
were involved in the operator's process for filing notices of contest. Accordingly, we hereby
deny without prejudice Carbo's January 12 request as to the two assessments. See Eastern
Assoc. Coal, LLC, 30 FMSHRC 392, 394 (May 2008); James Hamilton Constr., 29 FMSHRC

32 FMSHRC Page 850

569, 570 (July 2007). The words ''without prejudice" mean Carbo may submit another request to
2
reopen the cases so that it can contest the citations and penalty assessments.
Any amended or renewed request by Carbo to reopen Assessment Nos. 000196903 and
000200122 must be filed within 30 days of the date ofthis order. Any such request filed after
that time will be denied with prejudice.

~Comnll~ion~.
Patrick K. Nakamura, Commissioner

2

If Carbo submits another· request to reopen, it must establish good cause for not
contesting the citations and proposed assessments within 30 days from the date it received the
proposed penalty assessments from MSHA. Under Rule 60(b) of the Federal Rules of Civil
Procedure, the existence of "good cause" may be shown by a number of different factors
including mistake, inadvertence, surprise, or excusable neglect on the part of the party seeking
relief, or the discovery of new evidence, or fraud, misrepresentation, or other misconduct by the
adverse party. Carbo should include a full description of the facts supporting its claim of"good
cause," including how the mistake or other problem prevented Carbo from responding within the
time limits provided in the Mine Act, as part of its request to reopen. Carbo should also include
copies of all documents supporting its request to reopen.
32 FMSHRC Page 851

Distribution:
Chris Dibiase
Mcintyre Plant Mngr.
2295 Wriley Rd.
Mcintyre, GA 31054
Daniel DiMartino
Carbo Ceramics
Safety Engineer
1880 Dent Rd.
Toomsboro, GA 310090
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 852

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

August 30, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2010-696-M
A.C. No. 26-02286-205417
Docket No. WEST 2010-697-M
A.C. No. 26-02286-196384

v.
BARRICK TURQUOISE RIDGE, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2006) ("Mine Act"). On February 23, 2010, the Commission received from
Barrick Turquoise Ridge, Inc. ("BTR") motions made by counsel seeking to reopen two penalty
assessments that had become final orders of the Commission pursuant to section 105(a) of the
Mine Act, 30U.S.C. § 815(a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, th.at in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEST 2010-696-M and WEST 2010-697-M, both captioned
Barrick Turquoise Ridge, Inc., and both involving similar procedural issues. 29 C.F .R.
§ 2700.12.
32 FMSHRC Page 853

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F .R. § 2700.1 (b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
According to the motions, BTR's failures to file notice of contests with respect to the
assessments were attributable to miscommunications between counsel and BTR in both
instances. Proposed Assessment No. 000196384 was issued by the Department of Labor's Mine
Safety and Health Administration ("MSHA") in September 2009. At that time, BTR's then
safety director was out of the office for weeks due to emergency surgery, so a member of his staff
requested that counsel look at the 37 citations covered by the assessment. Only later did counsel
learn that he was also supposed to file the notice of contest for the assessment. Counsel states
that he learned of the delinquency regarding the assessment from the MSHA web site on
February 22, 2010, and that BTR never received a delinquency notice from MSHA.
By December 2009 the Safety Director had returned. When Assessment No. 000205417
was issued by MSHA, he and counsel spoke regarding BTR's intention to contest the penalties
associated with two of the 23 citations included in the assessment. Counsel was left with the
impression the BTR would filed the notice of contest, but it was never filed. Counsel also
learned of this delinquency from the MSHA web site.
The Secretary of Labor states that she does not oppose the reopening of either of the
proposed penalty assessments.

32 FMSHRC Page 854

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

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 855

Distribution:
William K. Doran, Esq.
Ogletree, Deakins, Nash
Smoak & Stewart, P.C.
2400 N Street NW, 5th Floor
Washington, DC 20037
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue,N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 856

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

August 30, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2010-1389-M
A.C. No. 44-00063-217180

v.
NASELLE ROCK & ASPHALT CO.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION: ·
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2006) ("Mine Act"). On June 16, 2010, the Commission received from
Naselle Rock & Asphalt Co.~ a letter seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
On July 9, 2010, the Commission received a response from the Secretary of Labor stating that
she does not oppose the request to reopen the assessment. .
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(May1993) ("JWR"). fu evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 857

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the contractor's request, and
the Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 858

Distribution:
Brian M. Wirkkala, CEO
Naselle Rock & Asphalt Co.
P.O. Box 5
Naselle, WA 98638
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of the Penalty Compliance
U.S. Dept. Of Labor, MSHA
1100 Wilson Blvd.
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 859

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

SUITE 9500
WASHINGTON, DC 20001

August 30, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA2010-ll52
A.C. No. 46-06263-213326

v.
BROOKS RUN MINING COMPANY, LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On June 14, 2010, the Commission received from
Brooks Run Mining Company, LLC, a motion from counsel to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a). On June 30, 2010, the Commission received a response from the Secretary of
Labor stating that she does not oppose the request to reopen the assessment.
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(May1993) (''JWR"). In evaluating requests to
reopen final section IOS(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 860

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529;, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Adniinistrative
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 ofpenaltywithin 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

\

<?t:L

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 861

Distribution:
Matthew H. Nelson, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of the Penalty Compliance
U.S. Dept. Of Labor
1100 Wilson Blvd.
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 862

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

August 30, 2010
SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK 2010-71-M
A.C. No. 27-00386-172927

v.
ROME CONSTRUCTION, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 17, 2009, the Commission received a request
from counsel for Rome Construction, Inc., to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
On December 22, 2009, the Commission received a response from the Secretary of Labor stating
that she does n?t oppose the request to reopen the assessment.
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(May1993) ("./WR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) «'the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); .!WR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 863

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F .R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

\

~

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 864

Distribution:
John G. Cronin, Esq.
Cronin & Bison, P.C.
722 Chestnut St.
Manchester, NH 03104
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 865

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

August 31, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION{MSHA)
Docket No. CENT 2010-346-M
A.C. No. 41-04474-187306

v.
Docket No. CENT 2010-347-M
A.C. No. 41-04474-196142
LONE STAR AGGREGATES
ACQUISITION, LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. {2006) {''Mine Act"). On January 5, 2010, the Commission received requests to
reopen two penalty assessments issued to Lone Star Aggregates Acquisition, LLC ("Lone Star")
that became final orders of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815.(a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a :final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers CENT 2010-346-M and CENT 2010-347-M, both captioned Lone
Star Aggregates Acquisition, LLC, and involving similar factual and procedural issues.
29 C.F.R. § 2700.12.
32 FMSHRC Page 866

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l{b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, ifthe defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
On April 16, and July 14, 2009, the Department of Labor's Mine Safety and Health
Administration (''MSHA") issued Citation Nos. 6470620 and 6470664, respectively, to Lone
Star. On June 9, and September 8, 2009, MSHA issued Proposed Assessment Nos. 000187306
and 000196142, respectively, to Lone Star, which proposed civil penalties for Citation Nos.
6470620 and 6470664, and other citations. Lone Star states that at around the time of the
issuance of the citations, Fred Weber, Inc. ("Weber") had recently acquired the mine property.
The vice president for safety of Lone Star and· Weber states that, at the time, the sharing and
forwarding of information and record.keeping and the replacement of the workforce was ongoing
and, consequently, he was not aware of the proposed assessments. The operator states that on
December 16, 2009, it received a delinquency notice regarding Proposed Assessment No.
000196142. It explains that on approximately December 21, 2009, the operator called MSHA
and was informed for the first time by return call on December 28, that the proposed penalty
assessments related to both citations had become final orders.
The Secretary opposes Lone Star's request to reopen. She explains that according to
MSHA's records, Weber took over the mine on February 6, 2009, four and seven months before
the proposed assessments were delivered. The Secretary states that by the time that the proposed
assessments were delivered, the operator should have had adequate procedures in place for
processing the proposed assessments. The Secretary also notes that, contrary to the operator's
assertion that it learned of the final orders for the first time on December 28, a delinquency notice
was sent to the operator on September 3, 2009 (Proposed Assessment No. 000187306) and
December 9, 2009 (Proposed Assessment No. 000196142).
Having reviewed Lone Star's request to reopen and the Secretary's response thereto, we
agree that Lone Star has failed to provide an adequate basis for the Commission to reopen the
penalty assessment. Lone Star has failed to adequately explain its failure.to timely contest the
proposed assessments when the change in ownership occurred four and seven months before it
received the proposed assessments. Furthermore, Lone Star has failed to explain the
circumstances surrounding its receipt of the September delinquency notice. 2

In considering whether an operator has unreasonably del~yed in filing a motion to
reopen a final Commission order, we find relevant the amount oftime that has passed between an
operator's receipt of a delinquency notice and the operator's filing of its motion to reopen. See,
e.g., Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009).
2

32 FMSHRC Page 867

Accordingly, we hereby deny without prejudice Lone Star's request. FKZ Coal Inc., 29
FMSHRC 177, 178 (Apr. 2007); Petra Materials, 31 FMSRRC 47, 49 (Jan. 2009). The words
..without prejudice" mean that Lone Star may submit another request to reopen the assessments.
Any amended or renewed request by Lone Star to reopen Assessment Nos .000187306 and
000196142 must be filed within 30 days of this order. Any such request filed after that time wil
be denied with prejudice.

M~~.
~~
Robert F. Cohen, Jr.,.Commissioner

Patrick K. Nakamura, Commissioner

3

If Lone Star submits another request to reopen, it must establish good cause for not
contesting the proposed penalties within 30 days from the date it received the assessment from ·
MSHA. Under Rule 60(b) of the Federal Rules of Civil Procedure, the existence of"good cause"
may be shown by a number of different factors including mistake, inadvertence, surprise, or
excusable neglect on the part of the party seeking relief, or the discovery of new evidence, or
fraud, misrepresentation, or other misconduct by the adverse party. Lone Star should.include a
full description of the facts supporting its claim of"good cause," including how the mistake or
other problem prevented it from responding within the time limits provided in the Mine Act, as
part of its request to reopen. Lone Star should also submit copies of supporting documents with
its request to reopen and specify which proposed penalties it is contesting.
32 FMSHRC Page 868

Distribution:
Jason Bish, V. Pres., - Safety
Lone Star Aggregates, I Fred Weber, Inc.
2320 Creve Coeur Mill Rd.
Maryland Heights, MO 63043
W. Christian Schwnann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021 ·

32 FMSHRC Page 869

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

August 31, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2010-714
A.C. No. 11-03141-0201809

v.
MACH MINING, LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act ofl977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On May 7, 2010, the Commission received from Mach
Mining, LLC ("Mach Mining") a motion by counsel to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

32 FMSHRC Page 870

On September 29, 2009, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Citations Nos. 6680550 and 6680551 to Mach Mining,
alleging violations of a ventilation plan. The citations were issued because MSHA alleged
deficiencies in the operator's plan, and the parties had reached an impasse. Mach timely
contested the citations, and the matter proceeded to hearing before Administrative Law Judge
Margaret Miller on November 3 through November 5, 2009, in Docket Nos. LAKE 2010-1-R
and LAKE 2010-2-R. The Judge issued her decision in the contest proceeding on January 28,
2010, upholding the citations. 32 FMSHRC 149, 168 (Jan. 2010). Mach Mining then filed a
Petition for Discretionary Review, which was granted by the Commission on March 5, 2010.
Meanwhile, on November·4, 2009, MSHA issued Proposed Assessment No. 000201809
to Mach Mining, proposing civil penalties for violations associated with 16 unrelated citations,
including Citations Nos. 6680550 and 6680551. On November 30, 2009, Mach Mining paid the
penalties for ten of the citations, including Citations Nos. 6680550 and 6680551. Mach Mining
states that it inadvertently overlooked the fact that these two citations were the subject of the
ventilation plan dispute before Judge Miller, and that payment had been authorized by mistake.
The operator's mine manager explains in an affidavit that he was preoccupied during the month
of November with the hearing and resolving the ventilation plan impasse with MSHA. Mach
Mining states that its c_ounsel first became aware that the penalties had been paid on April 30,
2010, when counsel for MSHAinformed the operator's counsel. The operator then promptly
filed the subjectmotion to reopen.
The Secretary opposes Mach Mining's request to reopen. She explains that the operator
has not shown the extraordinary circumstances that warrant reopening. The Secretary states in
part that, given the hearing, Mach Mining should have been acutely aware of any developments
related to the case. 1

1

We note that the Secretary did not inform Judge Miller of the status of developments in
the case, such as informing her during the hearing that the penalties for Citation Nos. 6680550
and 6680551 had been proposed, or that the operator had paid the penalties after the hearing but
before the Judge issued her decision.
32 FMSHRC Page 871

Having reviewed Mach Mining's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to Judge Miller 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.2 See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

~

Patrick K. Nakamura, Commissioner

2

The Judge's January 28, 2010, decision remains in effect as of the date of its issuance.
32 FMSHRC Page 872

Distribution:
Daniel W. Wolff, Esq.
Crowell & Moring LLP
1001 Pennsylvania Avenue NW
Washington, DC 20004-2595
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of Civil P.enalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Administrative Law Judge Margaret Miller
Federal Mine Safety & Health Review Commission
721 19th St, Suite 443
Denver, CO 80202-2500

32 FMSHRC Page 873

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

August 31, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2010-149-M
A.C. No. 24-02265-196647
Docket No. WEST 2010-150-M
A.C. No. 24-02386-196648

v.
E.S. STONE AND STRUCTURE, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 2, 2009, the Commission received from E.S.
Stone and Structure, Inc. ("E.S. Stone") two motions by counsel to reopen penalty assessments
that had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a fmal 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) (".!WR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEST 2010-149-M and WEST 2010-150-M, both captioned
E.S. Stone and Structure, Inc., and involving similar procedural issues. 29 C.F.R. § 2700.12.
32 FMSHRC Page 874

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
E.S. Stone seeks to reopen Proposed Assessment Nos. 000196647 and 000196648, each
issued by the Depa.rtrllent ofLabor's Mine Safety and Health Administration ("MSHA'') on
September 10, 2009. The operator states that, in July 2009, when it received from MSHA the 21
citations at issue in the two assessments, it immediately faxed the citations to counsel, expecting
them to be contested. It further states that, consequently, when it received the two assessments, it
did not believe it had the additional obligation to contest the proposed penalties. The failure to
file any contests was discovered in late October 2009, and the motions to reopen were filed soon
thereafter. The Secretary of Labor states that she does not oppose the motions.
Having reviewed E.S~ Stone's requests and the Secretary's responses, we conclude that
E.S. Stone has failed to provide a sufficiently detailed explanation for its failure to timely contest
the proposed penalty assessments. Its motions explain that the citations were faxed to counsel,
but do not address why counsel· never contested the citations as the operator expected. They also
do not explain what happened to the proposed assessment forms when they were received by
E.S. Stone. Accordingly, we deny without prejudice E.S. Stone's requests. See, e.g., Eastern
Assoc. Coal LLC, 30 FMSHRC 392, 394 (May 2008); James Hamilton Constr., 29 FMSHRC
569, 570 (July 2007).

32 FMSHRC Page 875

Any amended or renewed request by E.S. Stone to reopen the two assessments must be
filed within 30 days of the date of this order. Any such request filed after that time will be
denied with prejudice.

Michael

Robert F. Cohen, Jr., Commissioner

~

..

Patrick K. Nakamura, Comm1ss10ner

32 FMSHRC Page 876

Distribution:
Joshua Schultz, Esq.
Law Office of Adele L. Abrams, P.C.
4 740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 877

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

August 31, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2010-542-M
AC. No. 02-00144-'198040-02

v.
BONITA STEEL BUILDERS, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2006) ("Mine Act"). On January 19, 2010, the Commission received from
Bonita Steel Builders, Inc. (''Bonita") a request to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
On January 29, 2010, the Commission received a response from the Secretary of Labor stating
that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however,_ that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure");JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
32 FMSHRC Page 878

Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand itto the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. 1 Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date ofthis order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

crrl

Patrick K. Nakamura, Commissioner

1

We reopen Proposed Assessment No. 000198040 only as to Citation No. 6453780 and
its associated penalty.
32 FMSHRC Page 879

Distribution:
Paul Atherton
Bonito Steel Builders, Inc.
P.O. Box, 77777
Tucson, AZ 85703-7777
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance; MSHA
U.S. Dept. of Labor
·
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 880

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

August 31, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2010-637-M
A.C. No. 26-02246-198651

v.
BARRICK GOLDSTRIKE MINES, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On February 5, 2010, the Commission received from Barrick
Goldstrike Mines, fuc. ("Barrick") a motion by counsel seeking to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under S,ection 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
However, we have held that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700. l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

32 FMSHRC Page 881

On September 29, 2009, the Department of Labor's Mine Safety and Health
Administration (''MSHA") issued Proposed Assessment No. 000198651 for 19 citations and an
order issued to Barrick in August 2009. In its original motion, Barrick stated that a member of
its staff attempted to fax the assessment to Barrick's counsel, and thought she had done so, but
failed to notice the ''undelivered" notation on the confirmation sheet. The operator further states
that it learned that it was delinquent with respect to the assessment when it checked the MSHA
web site, and its counsel soon thereafter filed its request to reopen.
·
The Secretary of Labor filed a response in opposition to Barrick's initial request. The
Secretary states that the operator made no showing of circumstances that warrant reopening, and
points to a relatively recent instance in which fax communication problems between Barrick and
its counsel resulted in an assessment becoming a final order. See Barrick Goldstrike Mines, Inc.,
31FMSHRC1013 (Sept. 2009).
In reply to the Secretary's response in opposition, Barrick filed a modified request to
reopen, by which it is only requesting reopening of the assessment as to Citation No. 6477873,
Order No. 6477875, and the penalties associated with that citation and that order. The citation
and order are each the subject of a pending notice of contest. The Secretary did not respond to
Barrick's modified request to reopen.

32 FMSHRC Page 882

Having reviewed Barrick's request, the Secretary's response, and Barrick's modified
request, in the interests of justice, we hereby grant Barrick's modified request, reopen the penalty
assessments in Citation No. 6477873 and Order No. 6477875, and remand the case 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.

Mich

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 883

Distribution:
Michael T. Heenan, Esq.
Ogletree, Deakins, Nash
Smoak & Stewart, P.C.
2400 N Street NW, 5th Floor
Washington, DC 20037
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA,
U.S. Dept. Of Labor,
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative taw Judge Robert J. Lesnick
Federal Mine Safety & Health.Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 884

ADMINISTRATIVE LAW JUDGE DECISIONS

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

July2, 2010
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on
behalf of DOUGLAS A. PILON,
Complainant

TEMPORARY REJNSTATEMENT
PROCEEDING
Docket No. LAKE 2010-766-D
NC-MD-10-03

v.
ISP MINERALS, INC.,
Respondent.

Mine ID: Kremlin Plant

DECISION
AND
. ORDER OF TEMPORARY REINSTATEMENT

Appearances: Travis W. Gosselin, Esq., U.S. Department Of Labor, Office of the Solicitor,
Chicago, Illinois, for the Complainant;
.
Brent I. Clark Esq. and Meagan Noel Newman~ Esq., Seyfarth Shaw LLP, Chicago,
Illinois, for the Respondent.
Before:

Judge Rae

This matter, heard on June 28, 2010, in Green Bay, Wisconsin, is before me based on an
application for temporary reinstatement filed by the SecretarY, pursuant to section 105(c)(2) of the
Federal Mine Safety and Health Act of 1977 (the Mine Act), 30 U.S.C. § 815(c)(2), against ISP
Minerals, Inc., on behalf of Douglas Pilon. This statutory provision prohibits operators from
discharging or otherwise discriminating against miners who have complained about alleged safety
or health violations, or who have engaged in other safety related protected activity. Section
105(c)(2) of the Mine Act authorizes the Secretary to apply to the Commission for the temporary
reinstatement of a miner pending the full resolution of the merits of his discrimination complaint.
The parties' briefs, filed on June 4, 2010, and June 14, 2010, have been considered. The Secretary
found that the discrimination complaint was not frivolously brought and filed her petition on
behalf of Pilon.
For the reasons that follow, I GRANT the application and order Douglas Pilon's
temporary reinstatement.

32 FMSHRC Page 885

Statement of the Case
This temporary reinstatement proceeding is analogous to a preliminary hearing. Unlike a
discrimination complaint that is tried on the merits where the Secretary bears the burden of proof
by the preponderance of the evidence, the scope in a temporary reinstatement proceeding is
limited by statute. Section 105(c) of the Mine Act, as well as Commission Rule 45(d), 29 C.F.R.
§ 2700.45(d), limit the issue in an application for temporary reinstatement to whether the subject
discrimination complaint has been "frivolously brought." Courts and the Commission have
concluded that the ••not frivolously brought" standard of section 105(c) is satisfied when there is a
''reasonable cause to believe" that the discrimination complaint "appears to have merit."
Centralia Mining Company, 22 FMSHRC 153, 157 (Feb. 2000) (citations omitted).
The Secretary filed a Motion in Limine to exclude evidence that the Claimant made threats
to mine employees as set forth in Respondent's responsive pleadings to the Petition for
Reinstatement. 1 In his written motion, Respondent stated that the alleged threats were made
"subsequent to his termination" and argued that a change in circumstances post-termination could
make reinstatement inappropriate. I granted the. motion by Order issued on June 25, 2010.
Respondent filed a Motion for Reconsideration and, in the alternative, certification for
interlocutory review. In his written motion for reconsideration, counsel stated that the alleged
threats were made at some unknown time but only made known to the investigator after
termination. The motion was argued by counsel at the hearing on June .28, 2010. Respondent
asserted that my ruling on the motion in limine was incorrect as a matter oflaw as it was based
upon the timing of the threats being prior to termination. They also asserted that I abused my
discretion when failing to consider changes in circumstances, particularly post-termination
conditions, that may render temporary reinstatement inappropriate. This argument was asserted in
the first written motion in which they stated that the threats were made after termination. Counsel
cited three cases as controlling: Secretary ofLabor o/b/o Robert Gatlin v Kenamerican Resources,
Inc. 31FMSHRC1050 (October 8, 2009); Chadrick Casebolt v. Falcon Coal Company, Inc. 6
FMSHRC 485 (February 29, 1984); and, Robert Simpson v. Kenta Energy, Inc. and Roy Dan
Jackson, 11 FMSHRC 770 (May 11, 1989). In the alternative, Respondent requested
certification for interlocutory review under 29 C.F.R. § 2700.76. During the testimony, counsel
attempted to introduce evidence of these threats made by the claimant now allegedly made prior to
termination. I excluded this evidence.
I denied the request to reconsider my order on the motion in limine for the reasons set forth
in my order of June 25, 2010, and further set forth my this decision. As stated in my order, citing
Secretary ofLabor ex rel Pasula v Consolidation Coal Co., 2 FMSHRC 2796 (1980), that the
employee engaged in various acts and/or omissions or that he deserved to be fired does not

1

Respondent also moved to dismiss the petition for failure to state a claim upon which
relief could be granted or otherwise depriving him of due process. I denied that motion by Order
dated June 17, 2010.
32 FMSHRC Page 886

overcome a finding of a causal connection between the protected activity (the safety complaint)
and the termination. Whether he engaged in misconduct during or after this employment is not
relevant to a finding that the complaint was not frivolously brought. (emphasis added.) Further,
such evidence is only relevant on the merits of the discrimination complaint, not at a temporary
reinstatement hearing. While counsel alleges differing accounts of when these alleged threats were
made, he has misinterpreted the basis for my order as resting only upon the alleged threats being
made after termination. Regardless of whether they were made, or when, they are not relevant to
these proceedings. This evidence, in fact, invites the necessity for a resolution of conflicts in
testimony or entertainment of rebuttal or affirmative defenses not properly before me at a
preliminary stage of proceedings, Secretary a/Labor o/b/o Williamson CAM Mining LLC, 31
FMSHRC __, slip op at 7 (Oct. 2009). Furthermore, the cases counsel provided in support of
his argument that a change in circumstances post-termination can render reinstatement
inappropriate all involve one narrow issue of fact. That is, whether economic impossibility would
render an order to reinstate inappropriate when the job to which the miner would be returned has
been eliminated through a reduction in force or other similar economic crisis. These cases~ are
clearly off point and wholly inapplicable to this case. I further find that interlocutory review
cannot be granted on a matter such as this prior to a hearing under 29 C.R.F. §2700.76 as
Respondent seeks. The appropriate remedy available in temporary reinstatement proceedings is
found at 29 C.F.R. § 2700.45(f).

v.

Summazy of the Evidence
The parties stipulated that ISP is an operator of a mine within the meaning of the Mine
Act, that the Kremlin Plant is a mine subject to the jurisdiction of the Mine Act, that this matter
comes under the jurisdiction of the Mine Act sections 105 and 113, that Douglas Pilon was a
miner under the Mine Act at all relevant times, and that on February 25, 2010, an accident report
was submitted on behalf of Douglas Pilon.
Mr. Pilon testified that he was fired from ISP Minerals after seven years of employment
with the mine. (Tr. 12.) He worked as a kiln operator responsible for maintaining the machinery,
controlling the temperature of the kiln and related other duties. (Id.) He was working 48 hours per
week, eight of which was overtime. {Tr. 13.) His hourly rate was $23.50 per hour and he received
time and one half for overtime prior to his discharge. 2 (Id.) On February 25, 2010, while he was
checking the coolers; he walked across the catwalk and a puff of steam from a cooler blew in his
face which he breathed in. (Ex. S-1; Tr. 14-15.) He believed the steam he inhaled was aluminum
chloride vapor, which is a toxic gas. (Id.) His belief was based upon having been exposed to it in
the past and suffering some injuries as a result and from the fact that the steam contained no
oxygen; it was like ammonia. (Id.) He reported the accident that same day. (Ex. S-1; Tr.. 15, 19.)
The following day, he was presented with a written accident report (Secretary's Exhibit #1),
prepared by Lee Schlais, foreman, dated February 26, 2010. (Ex. S-1; Tr. 15-16.) The accident

2

In his discrimination complaint, Complainant reported he earned $22.54 per hour
regular pay 40 hours per week and $33.81 per hour overtime, eight hours per week.

32 FMSHRC Page 887

report later signed by Mark Coombs on March 8, 2010, indicates the determined cause of the
incident was a raised slide in the air duct which pulled steam off cooler #6. (Ex. S-1.) It was
noted on the report that #5 and #6 coolers had been kicking out for some time and that the
employee was instructed, to wear protective gear, and to stay away from the discharge end of the
cooler while it was running. "Especially'' when it was using "chloride products." (Id.)

Mr. Pilon further testified that the report went from Lee Schlais to the supervisor, Mr. HilL
(Tr. 16.) The report was made on a Friday night. (Tr. 17.) He next reported for work on Monday
night and on Tuesday, March 2, 2010, he was suspended without pay and thereafter terminated on
March 15, 2010. (Id.; Tr. 18.) He was informed of his termination at a meeting at which Mr. Hill
told him that he had demonstrated unacceptable performance. (Tr. 18.)
On cross- examination, Mr. Pilon testified that he did not receive medicaltreatment forthe
inhalation incident but believed that he had breathed in aluminum chloride based upon .the nature
of the gas and past experience. (Tr. 20-21.) He stated that he reported the incident because he
believed that he would be in trouble if he did no~ do so. (Tr. 29.) He believed his report caused
his termination. (Id.) Mr. Pilon identified Respondent's Exhibit R-1, page l, as the letter
presented to him upon his termination, on March 15, 2010. He also identified the letter, dated
August 28, 2009, relating to a suspension for misconduct. 3 (Tr. 32-33, 40-41; Ex-R-1.)
Counsel for Respondent called Messrs. Dan Gedazlinski, Tyler Hill and Mark Coombs as
witnesses to testify to various alleged acts of misconduct and/or poor performance exhibited by
Mr. Pilon and to say that it was their decision to fire Mr. Pilon solely for misconduct, not for the
filing of the accident report. 4 (See Tr. 50-59, 63-69, 70-75.) Mr. Coombs acknowledged that he
signed the accident report on March 8, 2010. {Tr. 74.) Mr. Gedazlinski acknowledged thatin the
process of running the kiln and coloring the materials for roofing shingles, various chemicals,
including chlorides are regularly used. (Tr. 48.)
Aoolication of the Law
S~tion 105(c) of the Mine Act prohibits discrimination against miners for exercising any
protected right under the Mine Act. The purpose of the protection is to encourage miners "to play
an active part in the enforcement of the [Mine] Act'' recognizing that "if miners are to be
encouraged to be active in matters of safety and health they must be protected against any possible
discrimination which they might suffer as a result of their participation." S. Rep. No. 181, 95th
Cong. 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong. 2nd Sess., Legislative History of the Federal Mine Safety and Health Act

3

~ Respondent did not offer previously marked exhibits R-1 pages 2, 4, 5, and 6 or R-2
through 4 to be entered into evidence and they are, therefore, not part of this record.
4

Counsel for the Secretary objected to the testimony of these witnesses as being outside
the scope of the temporary reinstatement hearing.
32 FMSHRC Page 888

of 1977, at 623 (1978).
Unlike a trial on the merits of a discrimination complaint brought by the Secretary where
the Secretary bears the burden of proof by the preponderance of the evidence, the scope of this
temporary reinstatement proceeding is limited by statute. Section 105(c) of the Mine Act, as well
as Commission Rule 45(d), 29 C.F.R. §·2700.45(d), limit the issue in an application for temporary
reinstatement to whether the subject discrimination complaint has been "frivolously brought;"
Rule 45(d) provides:
The scope of a hearing on an application for temporary reinstatement is limited
to a determination by the Judge as to whether the miner's complaint is
frivolously brought. The burden of proof shall be upon the Secretary to
establish that the complaint is not frivolously brought. In support of his
application for temporary reinstatement the Secretaryinay limit his presentation
to the testimony ofthe complainant. The respondent shall have an opportunity
to cross-examine any witnesses called by the Secretary and may present
testimony and documentary evidence in support of its position that the
complaint is frivolously brought.
29 C.F.R. § 2700.45(d)

In its decision in Jim Walter Resources, Inc., v. FMSHRC, 920 F.2d 738 (11th Cir. 1990),
the Court noted the "frivolously brought" standard is entirely different from the scrutiny
applicable to a trial on the merits of the underlying discrimination complaint. In this regard, the
Court stated:
The legislative history of the Act defines the 'not frivolously brought standard'
as indicating whether a miner's 'complaint appears to have merit' - an
interpretation that is strikingly similar to a reasonable cause standard. [Citation
omitted]. In a similar context involving the propriety of agency actions seeking
temporary relief, the former 5th Circuit construed the 'reasonable cause to
believe' standard as meaning whether an agency's 'theories oflaw and fact are
not insubstantial or frivolous.'
920 F.2d at 747 (emphasis in original) (citations omitted).
While the Secretary is not required to present a prima facie case of discrimination to
prevail in a temporary reinstatement proceeding, it is helpful to review the elements of a
discrimination claim to determine if the evidence at this stage satisfies the "not frivolously
brought" standard. As a general proposition, to demonstrate a prima facie case of discrimination
under section 105(c) of the Mine Act, the Secretary must establish that the complainant
participated in safety related activity protected by the Mine Act, and, that the adverse action
complained of was motivated, in some part, by that protected activity. See Secretary on behalf of
32 FMSHRC Page 889

David Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (Oct. 1980) rev'd on
other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981);
Secretary on behalf of Thomas Robinetter v. United Castle Coal Co., 3 FMSHRC 803, 817-818
(Apr. 1981).
It is not the judge's duty to resolve conflicts in testimony or to entertain the operator's
rebuttal or affirmative defenses at the preliminary stage of the proceedings. Secretary ofLabor
o/b/o Albu v. Chicopee Coal Co., 21 FMSHRC 717(July1999). It is sufficient to find the
Complainant engaged in protected activity, the respondent had knowledge of that activity and
there was a coincidence in time between the protected activity and adverse action. CAM Mining
LLC, supra.
Respondent argues that: 1) there was no protected activity involved in this case and, 2) that
the history of disciplinary action as recently as March 2, 2010, is relevant and admis$ible because
it negates the "temporal proximity'' nexus between any protected activity engaged in by the
Claimant and his termination two working days later. The Respondent cites no controlling case
law on point. 5
The evidence at the hearing was clear that Mr. Pilon believed he inhaled noxious steam
from the cooler while walking across the catwalk. Whether he suffered injuries necessitating
medical treatment is immaterial. He knew from past experience that he was supposed to report
such an incident and did so in a timely fashion. The report was reduced to an accident form by the
foreman and signed off by Mr. Coombs, (Exhibit S-#1 ). The report prepared by management
indicates that it was known for at least some period of time that two coolers were kicking out
presenting a need to use a respirator and stay away from the discharge end of the coolers. Mr.
Gedazlinski confirmed that use of chemicals such as chlorides was ususal to color the products in
the kilns. I find that this evidence confirms the very real possibility that whatever Mr. Pilon
inhaled was a dangerous substance and that he had- good cause to believe so, thereby necessitating
the filing of a safety report. Mr. Pilon was engaged in protected activity
I also find that the evidence of Mr. Pilon's alleged past employment violations is a matter
left to a later proceeding on the merits of the discrimination complaint. In order to find that the
past conduct was the sole role in the termination of Mr. Pilon, it would necessary to make
evidentiary findings on the affirmative defenses and to resolve conflicts in testimony between the
Secretary's witness and the Respondent's witnesses. This is not the role of the Administrative
Law Judge at this stage of the proceedings. Additionally, making such a finding here would be
tantamount to deciding the discrimination case in chief which is not before me and would deprive
the Secretary of the right to conduct discovery and present witnesses to rebut the defenses raised
by this evidence.

5

Respondent did not raise this issue in the Answer to the Petition and offered no releyant
case law at the hearing in support of this argument.
32 FMSHRC Page 890

In summary, all elements of the analytical framework discussed above are satisfied to the
level required by the relevant statutes, rules and case law precedents. The Secretary has carried
her burden of presenting substantial evidence to support a reasonable cause to believe that Pilon
engaged in protected activity, and that there was a nexus between the protected activity and the
adverse action of suspension and termination. I conclude that the complaint of discrimination is
not frivolously brought.

ORDER
For the reasoris set forth above, ISP Minerals, Inc. is ORDERED to immediately reinstate
Douglas Pilon to the position he held on February 25, 2010, at the rate of pay of$22.54 per hour
for 40 hours per week and $33.81 per hour for eight (8) hours of overtime per week with
restoration of all benefits to which he was then entitled.
Mr. Piton's reinstatement is not open-ended. It will end upon a final order on the
underlying discrimination complaint case in chief, 30 U.S.C. §815(c)(2). Therefore, the Secretary
must promptly determine whether or not she will file a complaint with the Commission under
section 105(c)(2) of the Act and so advise the Respondent. Otherwise, I shall entertain a motion
to terminate this Order.

?-

Priscila
Administrative Law Judge

Distribution:
Travis W. Gosselin, Attorney, U.S. Dept. Of Labor, Office of the Solicitor, 230 South Dearborn
Street, Chicago, IL 60604
Brent Clark, Esq., Seyfarth Shaw LLP, 131 S. Dearborn Street, Suite 2400, Chicago, IL 60603
Meagan Newman, Esq., Seyfarth Shaw, LLP, 131 S. Dearborn Street, Suite 2400, Chicago, IL
60603
Douglas A. Pilon, 496 A. Peterson Memorial Drive, Niagara, WI 54151

32 FMSHRC Page 891

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
12119t11 Street, Suite 443
DENVER, CO 80202-2500
303-844-3577/FAX 303-844-5268

July 6, 2010
EMERGENCY RESPONSE PLAN
DISPUTE PROCEEDINGS

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

Docket No. LAKE 2010-769-E
Citation No. 7563769; 0610412010
Wildcat Hills Mine-Underground
Mine ID 11-03156

v.

Docket No. LAKE 2010-770-E
Citation No. 7563800; 06/04/2010
Francisco Mine-Underground Pit
Mine ID 12-02295

PEABODY MIDWEST MINING, LLC,
Respondent

DECISION

Appearances:

Lynne B. Dunbar, Esq., and Tracy B. Agyemang, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington, Virginia, for Petitioner;
R. Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Manning

These cases are before me on Referrals of Emergency Response Plan Disputes by the
Secretary of Labor, acting through the Mine Safety and Health Administration (''MSHA"),
pursuant to section 316(b)(2)(G) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
876(b)(2)(G) (the "Mine Act"), as amended by the Mine hnprovements and New Emergency
Response Act of2006 ("MINER Act"). At issue are two citations issued on June 4, 2010,
charging Peabody Midwest Mining, LLC ("Peabody'') with violations of section 316(b) of the
Mine Act at the two mines. The citations allege that Peabody failed to develop, adopt, and
submit emergency response plans ("ERPs") that provided electronic tracking capability sufficient
to adequately protect miners on the working sections in the mines. An evidentiary hearing was
held on June 21, 2010, in St. Louis, Missouri, and the parties presented closing arguments and
filed post-hearing briefs.
Although the two citations were issued at different mines, they are the same in all
material respects. As a consequence, I do not discuss the citations separately. Both mines utilize
conventional mining techniques using continuous mining machines. Each mine has at least one
"super section" in which two continuous mining machines are cutting coal in a single working
section. The parties entered into stipulations prior to the hearing in which they agreed that the
citations were issued after the district manager concluded that the parties had reached an impasse
32 FMSHRC Page 892

following lengthy discussions. (Stip. 21). They also agreed that the parties had negotiated the
issues, as set forth in the Secretary's referral, in good faith: (Stip. 27). The issue before me is
whether Peabody was properly cited by MSHA for failing to submit revised ERPs for the two
mines that can be approved under section 316(b)(2)(C) of the Mine Act.

I. BACKGROUND
Section 316 of the Mine Act requires underground coal mine operators to develop and
submit an ERP for MSHA approval and periodic review. 30 U.S.C. § 876(b)(2)(A). The goal of
an ERP is to provide for the evacuation of miners who are endangered by a mine emergency and ..
to assure the survival of miners who are trapped underground because they are not able to
evacuate the mine. Within three years of enactment of the MINER Act, each underground coal
mine operator was required to develop and submit an ERP that includes, among other provisions,
a system for wireless, two-way communications and the electronic tracking of miners
underground. 30 U.S.C. § 876(b)(2)(E) & (F)(ii). The MINER Act also provides that if the mine
operator believes that "such provisions cannot be adopted," the ERP must state the reasons why
and must "set forth the operator's alternative means of compliance." 30 U.S.C. §
876(b)(2)(F)(ii). This alternative means must "approximate, as closely as possible, the degree of
functional utility and safety protection provided by the wireless two-way medium and tracking
system." Id. In order to obtain MSHAapproval, any ERP submitted by an operator after June
15, 2009, must satisfy these requirements. The legislative history of this section of the MINER
Act states that the intent "is for operators to use the most advanced technology available that
works best in their particular mine, to provide a means for the [ERP] to be continuously adapted
to changes in the mine or in the commercial technical equipment market, and to avoid the
'behave only to the letter of the standard' syndrome that stifles innovation and delays the
implementation of new methods or equipment." S. REP. 109-365, at 13 (2006) ("S. REP.").
The present cases only involve the electronic tracking requirements of the MINER Act.
Peabody developed a revised ERP that contained electronic tracking provisions for each mine
and, after continuing.discussions with MSHA, submitted several revisions of the plan. (Exs. JXB, JX-C, JX-F, JX-G, JX-J, and JX-K). The final revised plans were submitted to MSHA on or
about May 21, 2010. (Exs. JX-J, and JX-K). These plans are identical with respect to electronic
tracking.
MSHA rejected these final plans and issued the subject citations on June 4. In letters
dated June 4, 2010, Hubert Payne, District Manager for MSHA District 8, stated that Peabody's
ERPs failed to provide that its "tracking system will be installed in such a manner such that it
effectively can be used to assist miners on the working section during an emergency." (Exs. JXL and JX-M). Peabody proposed to use a tracking system at each mine that would be capable of
identifying the miners who are on a working section, but the system would not be installed in
such a manner that surface personnel would be able to determine the location of the miners on a
working section ''with an acceptable degree of precision." Id. The letters go on to state that the
ERPs fail to set forth valid reasons for not providing "acceptable tracking capability on the

32 FMSHRC Page 893

working sections." Id. Most importantly, Payne stated in each of these letters that District 8
representatives "have discussed the ERP's electronic tracking provisions with Peabody
representatives, explained the deficiency in the ERP, and explained [his] rationale for believing
that the capability to track miners to within 200 feet of their actual locations on the working
sections is necessary to adequately protect miners and rescuers given mine-specific conditions
and circumstances likely to exist in an emergency." It is this 200-foot guideline that is at the
crux of the dispute in these cases.
The citations, which are identical, contain the same allegations. Each citation states, for
example, that District 8 representatives "have discussed the ERP's electronic tracking provisions
with Peabody representatives, explained the deficiency in the revised ERP, and explained the
district manager's rationale for believing that the capability to track miners to within 200 feet on
the working section is necessary to protect miners and rescuers given mine-specific conditions
and circumstances likely to exist in an emergency." (Exs. JX-L and JX-M). Each citation goes
on to state that "Peabody has refused to modify the ERP to provide such tracking capability on
the working section or to provide justification for alternative tracking capability that would meet
the Mine Act's electronic tracking requirement." Id.
The requirement that Peabody install an electronic tracking system that can track miners
to within 200 feet on the working sections comes from MSHA's Program Policy Letter P09-V-Ol
(the "PPL"), that became effective on January 16, 2009. (Ex. G-5). This PPL is entitled
"Guidance for Compliance with Post-Accident Two-,Way Communications and Electronic
Tracking Requirements of the Miner Improvement and New Emergency Response Act (MINER
Act)." With respect to electronic tracking systems, the PPL states that "[w]hile operators and
District Managers must consider mine-specific circumstances in determining an appropriate
electronic tracking system, this guidance outlines features MSHA believes would provide the
protection contemplated in the MINER Act in many underground coal mining environments."
(Ex. G-5, P~ 6). The key provisions in the PPL related to tracking systems as relevant in these
cases are as follows:
2. Performance
a. While the required capabilities of a particular tracking system will
depend on mine-specific circumstances, an effective electronic tracking system
generally should be capable of:
1.
Determining the location of miners on a working section to within
200 feet.
n.
Determining the location ofminers in escapeways at intervals not
exceeding 2000 feet.
m.
Determining the location of miners within 200 feet of strategic
areas. Strategic areas are those locations where miners are
normally required to work or likely to congregate in an emergency
and can include belt drives and transfer points, power centers,

32 FMSHRC Page 894

iv.
v.

loading points, SCSR caches, and other areas identified by the
District Manager....
Determining the direction of travel at key junctions in escapeways.
Determining the identity of miners within 200 feet of refuge
alternatives.

Id.
Peabody's ERP plans provide that its electronic tracking systems will be capable of
"[d]etermining the identity of miners on each working section" and it does not represent that its
system is capable of tracking miners within 200 feet of their actual location. (Ex. JX-J and JXK). The tracking plans submitted by Peabody meet all of the other elements listed in the PPL for
electronic tracking systems.
Peabody has chosen an electronic tracking and two-way communications system offered
by a company called Mine Site Technologies ("MST"). This system has been approved by
MSHA. The tracking system works in a manner that is not dissimilar to cell phone systems. A
series of devices called nodes or sensors are attached to the mine roof at strategic locations.
These nodes are connected to the surface by fiber optic cables which carry data to and from a
computer system on the surface and also provide AC power to the nodes. The nodes also have
rechargeable back-up batteries. Directional antennae can be attached to these nodes that provide
it with greater coverage along entries and crosscuts. Each miner then wears a tag that emits a
signal. The signalidentifies the particular miner. The signal is picked up by one or more nodes.
The computer program on the surface takes the information and attempts to determine the
miner's location by comparing the signal strengths at each node that detects the miner's signaL
Under the plan it submitted to MSHA, Peabody will place about three or four of these nodes in
each working section. These nodes will generally be parallel to the belt feeder (tailpiece) for that
section. (Ex. JX-J, pp. 20-26). In this manner, the electronic tracking system can easily
determine who· has entered each working section and who has left the working section. The
system would not be able to determine where any particular miner is within the working section.
As stated above, Peabody also proposes to place nodes at other strategic locations, such as at
SCSR caches and at refuge chambers. MSHA has estimated that, in order to determine where
each miner is within 200 feet in a working section, Peabody would need to install an· additional
eight to ten nodes per working section. These nodes are large round boxes that will be affixed to
the roof of the mine in or near intersections.

U. SUMMARY OF THE PARTIES' ARGUMENTS

A. Secretary of Labor.
The Secretary argues that the district manager, after careful consideration of Peabody's
position, did not act arbitrarily or capriciously in refusing to approve Peabody's ERPs for the two
mines. Sec'y Br. 2-3, 9. She contends that she provided adequate notice ofMSHA's expectations
for the ERPs and of the Secretary's general interpretation of the MINER Act's requirements. The

32 FMSHRC Page 895

Secretary argues that she notified Peabody through "letters, emails, and discussions that its revised
ERPs lacked features critical to the protection of miners ... [including] that its ERPs failed to
provide electronic tracking capability sufficient to protect miners on working sections." Id. at 3.
In spite of that notice, Peabody failed to offer alternative tracking capability or an explanation as
to why MSHA's recommendations could not be adopted. Id.

In rejecting the ERPs submitted by Peabody, the district manager properly relied on his
own extensive experience, consultations with a nwnber of other MSHA personnel; information
specific to the mines, and guidance from the PPL. Id. at 4.,.5, 9. The Secretary argues that the
district manager properly applied the PPL as guidance and· not as a binding rule. Further,
MSHA' s authority to issue the PPL may not be considered in the hearing, as such challenges must
necessarily be made to a United States District Court of Appeals. Id. at 4.
The Secretary argues that Peabody's proposed setup of the MST tracking system fails to
provide the necessary precision of the locations of miners. underground. Id. at 6. Limited
visibility, unsupported roof, post.,.accident :fires/explosions, and lethal mixes of noxious gases are
potential conditions in an underground mine environment following an emergency event. Id. at 6.,.
7. Knowing the locations of miners with a greater degree of specificity helps to limit the exposure
of rescuers, and facilitate quicker rescue. Additionally, it allows boreholes to be accurately
drilled, through which food and water can be lowered to the miners, while at the same time
providing a source of fresh air, light, and means of communication. Id. at 6-7. The Secretary
contends that MST' s tracking system,. when properly manufactured, installed and maintained, is
technologically feasible, MSHA approved, and not an ignition s~urce. Id. at 7-8. However,
Peabody's proposed ERP implementation of the MST system would not sufficiently determine the
location of miners in a hazardous, post-accident, underground environment. Id. at 8. Further,
Peabody failed to provide an explanation in response to the district manager's inquiry as to. "how
rescue operations could be conducted effectively and efficiently with lesser tracking capability,"
i.e., not following the 200-foot recommendation set forth in the PPL. Id. at 9.
As a result; the Secretary argues that, for the foregoing reasons, the district manager did
not act arbitrarily or capriciously in refusing to approve the ERPs and, therefore, Peabody must
submit compliant ERPs to the district manager.

B. Peabody.
Peabody asserts that plan approval is a unique process for creating requirements/rules for
mine operators without the need for notice and comment. Peabody Br. 2-3. However, given the
lack of notice and comment, limitations are placed on the Secretary. Specifically, Peabody argues
that "[t]he Secretary may not unilaterally impose terms on operators when rendering approval
decisions" or "impose binding norms that would apply to all mines," and instead, the Secretary
must base her approval of a plan on "mine-specific factors." Id. at 3.

32 FMSHRC Page 896

Peabody argues that MSHA impennissibly based its ERP approval decisions in these
matters on the PPL and, in turn, violated the requirement that plans be mine specific. Peabody
contends that MSHA will not approve an ERP without a provision in the plan that specifies that
the tracking system can identify the location of miners in the working section within 200 feet. Id.
at 5-6. Therefore, the PPL, which was not subject to notice and comnient rulemaking, is being
applied as a binding rule and is, therefore, "violative of the 'individualized approach to ERPs and
miner safety that is directed in the MINER Act."' Id. at 5 (quoting Twentymile Coal Co., 30
FMSHRC 736, 771-772 (Aug. 2008) (opinion of Chairman Duffy and Commissioner Young)).
Peabody contends that the Secretary's charaeterization of the PPL as "not binding" is not
itself dispositive, and that the "actual language and effects of her pronouncements" are of much
more importance in determining whether the PPL may qualify as an exception to the
Administrative Procedure Act's ("APA") notice and comment rulemaking requirements. Peabody
Br. 7. Peabody believes that the PPL does not qualify as an exception, and may not be applied as
a binding rule in the absence of notice and comment rulemaking. Id. at 7-9. By improperly
applying the PPL as a binding rule, the Secretary has abused her discretion and acted in an
arbitrary and capricious manner. Id. at 9.
Finally, Peabody argues that the Secretary has failed to satisfy her burden of proof, which
requires a showing that the plan provision proposed by the operator is unsuitable for this
particular mine. Id. at 10 (Citzng Peabody Coal Co., 18 FMSHRC 686, 690(May1996)). The
plans submitted by Peabody took into account that "tracking readers" were potential ignition
sources which should be limited and that the particular system chosen had significant problems
when additional ''tracking readers" were added. Id. at 10-11. Further, there remains some
question as to the technical feasibility of MST system's ability to satisfy the PPL's 200-foot
requirement. Id. at 12. As a result, the plans submitted by Peabody were consistent with the
MINER Act's requirements, and therefore suitable for the conditions at the mines in question.
Peabody asks that the citations be vacated and that MSHA be ordered to approve the plans.

DI. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
The requirement that mine operators include post-accident tracking in their ERPs is
contained in section 3 l 6(b)(2)(F)(ii) of the Mine Act, which states, in part:
Not later than 3 years after the date of enactment of the
[MINER Act], a plan shall, to be approved, ... provide for an
electronic tracking system permitting surface personnel to determine
the location of any persons trapped underground or set forth within
the plan the reasons such provisions can not be adopted. Where
such plan sets forth the reasons such provisions can not be adopted, ·
the plan shall also set forth the operator's alternative means of
compliance. Such alternative shall approximate, as closely as

32 FMSHRC Page 897

possible, the degree of functional utility and safety protection
provided by the ... tracking system referred to in this subpart.
30 U.S.C. § 876(b)(2)(F)(ii). Section 316(b)(2)(E)(ii) describes in more detail what the ~king
system should be able to achieve. This provision states:
Consistent with commercially available technology and with
the physical constraints, if any, of the mine, the plan shall provide
for above ground personnel to determine the current, or immediately
pre-accident, location of all underground personnel. Any system so
utilized shall be functional, reliable, and calculated to remain
serviceable in a post-accident setting.
30 U.S.C. § 876(b)(2)(E)(ii).
The process for approving ERPs is set forth in section 316(b)(2)(C), as follows:
The [ERP] ... shall be subject to review and approval by the
Secretary.... Approved plans shall -

(i) afford miners a level of safety protection at least
consistent with existing standards, including standards mandated by
law and regulation;
(ii) reflect the most recent credible scientific research;
(iii) be technologically feasible, make use of current
commercially available technology, and account for the specific
physical characteristics of the mine; and
(iv) reflect the improvements in mine safety gained from
experience under this Act and other worker safety and health laws.
30 U.S.C. § 876(b){2){C).

A. Discussion of.the Evidence.
The evidence establishes that District Manager Payne rejected Peabody's ERPs because
the plans did not provide·that Peabody's tracking systems would be able to locate miners to within
200 feet of their actual location in the working sections. The ERPs also did not provide an
alternative, except to state that Peabody's tracking systems would be able to determine who was
in any given working section at the mines. As stated above, Peabody's tracking system provisions
for other areas of the mines were approved by MSHA.

32 FMSHRC Page 898

District Manager Payne testified that an accurate tracking system is important for a
ntimber of reasons. If, during an emergency, the tracking system proposed by Peabody showed
that all of the miners passed by the tracking nodes installed at the entrance of the working section
on their way out of the section, then the rescue team on the surface would know that they did not
need to search the working section to find injured or incapacitated miners. (Tr. 65). Likewise, if
the nodes at or near a refuge chamber showed that all of the miners who had been in the working
section were at that location, the rescue team would know to rescue them at the chamber or, if that
were not possible at that time, to drill a bore hole at that location to provide fresh air, water, food,
and communication devices ifthe built-in system were no longer functioning. If, on the other
hand, one or more miners were unaccounted for and the nodes at the entrance to the working
section did not indicate that these miners had left the working section, the mine rescue team
would not know where they were within the working section under Peabody's proposed tracking
system. He testified that the area inby the belt feeder for a working section can involve over four
miles of entries and crosscuts at the two subject mines depending on the areas being mined. (Tr.
64-65). On that basis, Payne testified that he could riot approve the ERPs submitted by Peabody.
One of the primary purposes of the tracking requirements in the MINER Act is to provide rescue
teams with as much inforination as possible regarding the location of miners trapped underground
following a mine explosion, mine fire, innundation, roof fall, or other accident ("accident'').

If the tracking system survives the accident, in full or in part, the information provided to
the computers on the surface can help the rescue team determine where to look for survivors and
where to attempt to drill a bore hole to provide aid to trapped miners. If a mine has an array of
nodes within a working section and some of them are destroyed in the accident, the remaining ·
nodes may be able to provide important information to the rescue team in the event that not all of ·
the miners were able to escape out of the working section. If the nodes within the working section
are totally destroyed in the accident, the nodes by the refuge chamber and along the escapeway
will provide information that is useful to the mine rescue team. In such a situation, if some
miners are unaccounted for, the rescue team might not know where the miners are within the
working section or ·where they moved to after the accident, but the team will know that they did
not escape and will know where they were immediately before the accident.
Tracking the locations of miners serves two important functions wheri there has been an
accident. First, it helps the mine rescue team do its job in a more efficient manner and with more
precision. The team will have a better idea where to search for any trapped miners and where to
drill a borehole near their location, if necessary. Second, an effective tracking system reduces the
exposure of the rescue team members to the hazards found in the mine after the accident. If the
team knows the approximate location of miners, the team members will not expose themselves to
hazards looking in other areas of the mine. The testimony at the hearing established that miners in
emergency situations often do not behave in a rational manner. They sometimes split up and go in
different directions. They sometimes believe that they are in one location in the mine when, in
fact, they are in a totally different area of the mine. A tracking system helps rescue efforts and
reduces the exposure of team members.

32 FMSHRC Page 899

District Manager Payne testified that the process of searching in the working section can
be slow, especially if the area is filled with smoke or if there have been roof falls or if methane is
found. Ronald Hixson, a staff assistant in MSHA District 2 with extensive mine rescue
experience, testified that it can be a real "struggle to go in there and locate" injured miners. (Tr.
174). I credit this testimony.
I find that the evidence clearly establishes that the more precisely a tracking system is able
to identify the location of a miner, the more likely he will be able to be rescued following an
accident, assuming he is unable to travel down an escapeway and exit the mine. Knowing that the
miner is still in the working section following an accident is helpful information. All other things
being equal, knowing a miner's whereabouts within a working section is better than knowing that
he is somewhere in the working section. I base this finding on the testimony of the Secretary's
witnesses. As stated in the MINER Act and the Senate Report, the intent is that ERPs should
incotporate the latest.developments in mine safety while remaining technologically feasible. With
respect to tracking systems, the goal is to require that mines install tracking systems that identify
the location of miners as accurately as possible using current technology. Congress chose to use
the plan approval prpcess to implement the tracking requirement so that the ERP could be adapted
to changes in the "commercial technical equipment market, and to avoid the 'behave only to the
letter of the standard' syndrome that stifles innovation and delays the implementation of new
methods or equipment." S. REP. at 13.
Juliette Hill testified for the Secretary. She is a mining engineer who works in MSHA 's
certification and approval center in Tridelphia, West Virginia. (Tr. 106; Ex. G-7). She.currently
works in the electrical safety division. She has reviewed, for approval and certification,
components of post-accident communication and tracking systems. (Tr. 108). More importantly,
she was a member of the emergency communications and tracking committee that was established
by MSHA in 2006 (the "committee"). The first responsibility of the committee was to determine
what was av~lable in the commercial market that would be suitable for an underground coal
mine. On January 25, 2006, MSHA issued a request for information ("RFf') in the Federal
Register and received about 100 responses. 1 (Tr. 109). The committee chose six or seven
manufacturers and had them test their equipment at an underground mine in April 2006 to see
how the systems might work in an underground environment. The committee drafted a.formal
report on its findings. The committee then met with potential vendors of this type of equipment to
learn about the capabilities of their systems and to explain MSHA's approval and certification
process to them. Id.
Ms.. Hill testified that the committee began drafting the PPL in the summer of2008. (Tr.
109-110, 112). MSHA decided to "pursue a policy letter as opposed to rule making'' because of
the deadline of June 2009 imposed by the MINER Act and because of the state of technology for

1

Underground Mine Rescue Equipment and Technology; Proposed Rule, 71 Fed. Reg.
4223 (Jan. 25, 2006), available at http://www.msha.gov/regs/fedreg/proposed/2006prop/06722.asp.
32 FMSHRC Page 900

use in underground mines. (Tr. 112-113). It would have been difficult for MSHA to "pursue a
rule making effort for technologies that for the most part didn't have any track record so to speak
in the underground mining environment." (Tr. 113). The committee based the framework for the
PPL on the underground demonstrations, the interactions with vendors; the state of technology
that existed at the time, and the language of the MINER Act. Id. The MINER Act requires that
the "above-ground personnel be able to determine the currerit or immediately pre-accident
location of all underground personnel." (Tr. 115). When the committee reviewed the term
"immediately pre-aecident" in the MINER Act, it determined that Congress "meant working
section; because immediately prior to an accident, most miner8 are going to be in the working
section." Id. Thus, on working sections, the guidance in the PPL had to provide some definition
of accuracy. The committee reasoning was that, "in a post-accident situation, you've got a much
broader area to provide coverage" in a working section than in an escapeway. (Tr. 116). The
committee decided that, given the state of technology, it would be difficult for mine operators to
provide continuous communications throughout the working section but that it was important to
provide specific guidance for tracking miners within working sections. (Tr. 117).
The committee originally had 500 feet in its draft document but it was changed when it
''went around for review." (Tr. 134, 142-143). Kevin Stricklin, MSHA's Administrator for Coal
Mine Safety and Health, and Richard Stickler, the former Assistant Secretary for Mine Safety and
Health, attended a meeting with the committee.at a facility of the National Institute of
Occupational Safety and Health. The distance was changed to 200 feet at that meeting, but Ms.
Hill was not in attendance. (Tr. 134-13 5). Hill testified that the 200 feet number was based on
"recent disaster[s], mine rescue activities, and what would have helped." (Tr. 135). The recent
disasters referred to are the accidents at the Sago Mine and the Crandall Canyon Mine.
On December 18, 2008, the Secretary published the PPL in the Federal Register to get
feedback from interested persons. 2 The comment period ended on January 8, 2009. The Secretary
issued the PPL·without any change to the 200-foot guideline with an effective date of January 16,
2009. The comments received from mine operators were negative and they suggested that
tracking systems should only be required to indicate who has entered or exited working sections.
(Tr. 117, 147): MSHA responded to the comments received on April 29, 2009. 3 This document
states that mine operators generally replied that the 200-foot tracking coverage on working

2

Wireless Communications and Electronic Tracking Systems Guidance, 73 Fed. Reg.
77069 (Dec. 18, 2008), available at http://www.msha.gov/regs/fedreg/notices/2008misc/e829943.asp.
3

MINE SAFETY AND HEALTH ADMINISTRATfON, RESPONSE TO COMMENTS ON THE
PROGRAM POLICY LETTER (PPL) CONCERNING GUIDANCE FOR COMPLIANCE WITH POST*
ACCIDENT Two-WAY COMMUNICATIONS AND ELECTRONIC TRACKING REQUIREMENTS OF THE
MINE IMPROVEMENT AND NEW EMERGENCY RESPONSE ACT (MINER ACT) OF 2006 (Apr. 29,
2009), available at http://www.msha.gov/regs/complian/ppls/2009/responseppl09vi.pdf
(hereinafter "PPL Response").
32 FMSHRC Page 901

sections is unreasonable and lacks justification. PPL Response at 7. They also questioned the
reliability of "micro-tracking" in working sections. 4 ·Id. In response, MSHA stated that "[b]ased
on MSHA's experience in previous mining emergencies and rescue efforts, the Agency believes
that the distances in the PPL meet the intent of the MINER Act given currently available
technology." Id. at 8. ''Tracking ()f miners in the working section is technologically feasible and
provides important information to rescuers." Id.
Hill also testified that the MST nodes and other devices to be used in its tracking system
are intrinsically safe, which means that there is not enough energy in the circuits to ignite an
explosive mixture of air and methane. (Tr. 119, 125-126). The MST system would also be safe
following an accident assuming that the components were not damaged. She recommended that
the nodes be protected from such damage by the mine operator. (Tr. 127). The MST system is
designed .to provide both communications and tracking. On working sections, the nodes can be
placed at or near intersections and, by using coaxial cables with antennae attached, sensors can
extend out from the nodes in four directions. (Tr. 233-235). She estimated that the nodes are
about 18-inches square with a height of about 6 inches. (Tr. 122). The tags that the miners carry
send out a signal that the nodes pick up. Any phones in use on the section also communicate
through the nodes and their locations can be identified on the surface. Hill testified that MST
representatives told her that, if configured appropriately, the·system could identify miners to
withing 200 feet of their actual location. {Tr, 130). MST has installed systems at mines outside
the United States, but she had no information as to how accurately these systems can track
individual miners. MSHA enforcement personnel have tested other systems at underground coal
mines in this country and have said that they seem to work. (Tr. 132, 146).
Hill testified that Peabody, in order to meet the 200-foot guideline in the PPL, would need
to install eight to ten additional nodes in each working section beyond those shown in the :ERPs
for the two mines. (Tr. 139). The nodes would have to be moved when the belt is moved up. (Tr'.
139-140). This would require moving the optic cables, the coaxial cables, and the antennae.
David Beerbower, Peabody Energy's Vice President of Safety, testified at the hearing. He
stated that Peabody wants to use advanced technology that can serve as both a communications
system and a tracking system. (Tr. 182, 186). Based on his review ofMST's. system, he believes
that it will be the most reliable and effective. He also testified that if part of the system is
damaged, the communications and tracking system can be reactivated by dropping a node down a
borehole. (Tr. 196). He doubts that this system, or any other system, is capable of tracking
miners within 200 feet of their actual location in a working section. He communicated his
concerns to MSHA. {Tr. 201-202). Up to 14 miners work in the mines' working sections during
a shift. Beerbower does not believe that the tracking system could accurately identify the location
of these people if an array of nodes was installed in the working section as required by the
citation. Each tag for each miner would be picked up by three of four nodes and the system would

4

Copies of all the comments filed can be found at http://www.msha.gov/REGS/
Comments/E8-29943/twowaycommo.asp.

32 FMSHRC Page 902

communicate this information to the computers on the surface. As a consequence, people looking
at the computer monitors on the surface would likely see this miner at multiple locations or his
location would be vague. (Tr. 194-95). With 14 people on the section walking around and
operating mobile equipment, as well as the presence of stoppings and other impediments, the
location of miners presented on the computer screens would be hazy at best. (Tr. 195).
Beerbower is also concerned about placing all of these electrical components in the working
section. The nodes are easily damaged by shuttle cars and, during an accident, it is likely that
some of the nodes would· be damaged. (Tr. 202). Beerbower testified that the MST chief
executive officer told him that he cannot guarantee that a node could not become an ignition
source if it were damaged. Id. Lithium batteries can also be an ignition source.
Beerbower believes that the "picket fence" systeni it proposes to use would accurately
. track the location of miners and provide the level of protection mandated by the MINER Act. (Tr.
203-204). This system would not place as many nodes in the working section, would be easy to
maintain and move, and would be less likely to become damaged. It would accurately and
affirmatively tell those on the surface who is on a particular working section and who has left that
working section. When he discussed the ERP with District 8 personnel, he was told that the plan
had to locate miners within 200 feet on working sections. (Tr. 204). They exhibited no flexibility
with regard to this requirement. He also talked to MSHA personnel at MSHA headquarters in
Arlington, Virginia. They made some suggestions concerning how to better cover rooms in
working sections that are off the main entries, but they were inflexible about the 200 feet
requirement. (Tr. 207; Ex. P-1). Beerbower testified that he was also told that if he put 200 feet
into the plan then "we'll work With you." (Tr. 209). This gave him the impression that this 200foot requirement was being imposed by Arlington and that it was "chiseled in concrete." (Tr.
210). Beerbower testified that he did not feel comfortable putting any specific distance in the
ERPs because he would not know if it could be met until it was installed.
Peabody takes the position that knowing whether miners are still in the working section
after an accident or whether they safely left the working section is all the information that a mine
rescue team needs. Beerbower testified that once a rescue team reaches the working section of a
mine, it only takes 15 to 20 minutes to search all the entries and crosscuts to see if there are any
injured or incapacitated miners. (Tr. 219).

B. Analysis of the Issues~
The framework for resolution of ERP disputes has been established by the Commission.
Emerald Coal Res. L.P., 29 FMSHRC 956, 965 (Dec. 2007); Twentymile Coal Co., 30 FMSHRC
736, 747 (Aug. 2008).
One of the cornerstone principles with regard to plan
formulation under the Mine Act is that MSHA and the affected
operator must negotiate in good faith for a reasonable period
concerning a disputed plan provision. Carbon County Coal Co., 7

32 FMSHRC Page 903

FMSHRC 1367, 1371(Sept.1985). The Commission has noted,
"Two key elements of good faith consultation are giving notice of a
party's position and adequate discussion of disputed provisions."
C. W. Mining Co., 18 FMSHRC 1740, 1747 (Oct. 1996).
While the contents of a plan are based on consultations
between the Secretary and the operators, the Commission has
recognized that "the Secretary is [not] in the same position as a
private party conducting arm's length negotiations in a free market."
Id. at-1746. As one court has noted, ''the Secretary must
independently exercise [her] judgment with respect to the content of
... plans in connection with [her] final approval of the plan."
UMWA v. Dole, 870 F.2d 662, 669 n.10 (D.C. Cir. 1989), quoting S.
Rep. No. 181, 95th Cong., 25 (1977), reprinted in Senate Subcom.
on Labor, Com. on Human Res., 95th Cong., Legislative History of
the Federal Mine Safety andHealth Act of 1977, at 613 {1978).
Ultimately, the plan approval process involves an element of
judgment on the Secretary's part. Peabody Coal Co., 18 FMSHRC
686, 692 (May 1996) ("Peabody II''). "[A)bsent bad faith or
arbitrary action, the Secretary retains the discretion to insist upon
the inclusion of specific provisions as a condition of the plan's
approval." C. W. Mining, 18 FMSHRC at 1746; see also Monterey
Coal Co., 5 FMSHRC 1010, 1019 (June 1983) (withdrawal of
approval of water impoundment plan was not arbitrary or capricious.
where MSHA's conduct throughout the process was reasonable).

Emerald, 29 FMSHRC at 965.
The Secretary must show that the district manager did not abuse his discretion when he
determined that Peabody's tracking systems must be able to locate every miner on each working
section within 200 feet of their actual location and display that information at the computer center
on the surface. The Secretary must establish that the actions of the district manager were not
arbitrary and capricious in his review and decision-making regarding the plans.
District Manager Payne relied upon the PPL when insisting on this 200-foot requirement.
Payne had never been in either of the two mines at issue in these.cases. Indeed, he only became
the district manager on or about May 17, 2010, less than three weeks before he rejected Peabody's
ERPs. (Tr. 57, 61). Prior to becoming district manager, he worked in a different MSHA district.
He testified that he "sought information from coal mine inspectors who were at the mine the
previous quarter" as well as other MSHA employees. {Tr. 72). Based on his review of the
conditions in the mines, he concluded that Peabody's tracking system must have the capability to
track miners to within 200 feet of their actual locations on working sections. He stated that he
used the PPL for guidance only, but he admitted that he "has always enforced 200 feet." (Tr. 74-

32 FMSHRC Page 904

76). He believes that 200 feet is an appropriate number but he does not "know how [MSHA] got
to that number." (Tr. 76).
The Commission in Twentymile Coal applied the following guidance in determining if the
actions of the district manager were arbitrary and capricious:
The scope of review under the "arbitrary and capricious" standard is
narrow and a court is not to substitute its judgment for that of the
agency. Nevertheless, the agency must examine the relevant data
and articulate a satisfactory explanation for its action including a
"rational connection between the facts found and the choice made."
In reviewing the explanation, we must "consider whether the
decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment." Normally, an ·
agency rule would be arbitrary and capricious if the agency has
relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise.
30 FMSHRC at 754-755, quoting Motor Vehii:le Mfr's Ass'n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983).

1. The PPL as Rulemakin&.
As stated above, Peabody contends that the Secretary is applying the 200-foot tracking
guideline in the PPL as a binding norm and that she was required by the APA and section 101 of
the Mine Act to go through notice and comment rulemaking. The Secretary argues that she is not
using the PPL to circumvent notice and comment rulemaking requirements because she is not
applying the PPL as a binding norm. She also contends that this issue is not before me in this
expedited proceeding.
The Secretary correctly states that, pursuant to Commission Procedural Rule 24(e)(2)(iii),
29 C.F.R. § 2700.24(e)(2)(iii), "the scope of[ an ERP dispute] hearing is limited to the disputed
plan provision or provisions." Relying on that language, as well as two Commission cases, the
Secretary argues that the authority to issue a PPL may not be considered in this matter and,
therefore, Peabody may not challenge the PPL as an illegal act taken by MSHA in violation of the
obligation to conduct notice and comment rulemaking. In essence, the Secretary asserts that the
Commission does not have jurisdiction to hear the issue.
While I find no legitimate support for the Secretary's argument in either of the cases cited,
I agree that the courts of appeals have exclusive subject matter jurisdiction over challenges to
32 FMSHRC Page 905

mandatory standfil.ds. 5 30 U.S.C. § 81 l(d). However, the question whether the PPL is a
mandatory standard, and the subsequent potential challenge of such, need not be addressed in this
matter. For the reasons discussed below, I find that the PPL itself is not at issue; rather, this case
turns on the actions of the district manager in making his decision regarding the ERPs at issue.

National Mining Association v. Sec '.Y ofLabor, 589 F .3d 1368 (11th Cir. 2009) is
instructive. In that case the court addressed whether a Procedural Instruction Letter ("PIL") issued
by MSHA functioned as a mandatory standard and, if so, whether MSHA violated the APA and
the Mine Act by not following standard notice and comment procedures. Id. at 1371. In the
decision, the court stated:
We have previously delineated the difference between a legislative
rule, to which notice and comment requirements apply, and a
general statement of policy, to which they do not:
Generally, whether a particular agency proceeding
announces ·a rule or a general policy statement
depends upon whether the agency action establishes
a binding norm. The key inquiry, therefore, is the
extent to which the challenged policy leaves the
agency free to exercise its discretion to follow or not
to follow that general policy in an individual case, or
on the other hand, whether the policy so fills out the
statutory scheme that upon application one need only
to determine whether a given case is within the rule's
criterion. As long as the agency remains free to
consider the individual facts in the various cases that
arise, then the agency in question has not established
a binding norm.

Ryder Truck Lines, Inc. v. United States, 716 F.2d 1369, 1377 (11th
Cir. 1983) (quotation marks and internal citations omitted).
·
Additionally, in determining whether an agency has issued a
binding norm or.a policy statement, courts have looked at : (1) the
agency's expressed intentions as reflected by its characterization of
the statement, (2) whether the statement was published in the
Federal Register or the Code of Federal Regulations, and (3)

5

Jn Emerald, the Commission acknowledged that there was no requirement in the

MINER Act that mandated the use of notice and comment rulemaking in the particular matter
that was at issue. 29 FMSHRC at 970 (Dec. 2007). Further, the Commission cited with approval
that cou.rts have granted broad discretion to administrative agencies in deciding whether to
address issues through either rulemaking or adjudication. Id.
·
32 FMSHRC Page 906

whether the action has binding effects on private parties. Center for
Auto safety v. Nat'! Highway Traffic Safety Admin., 452 F.3d 798,
806 (D.C. Cir. 2006).
Id. The court, in finding that the PPL was not a binding norm or mandatory standard; relied
heavily on the "advisory and permissive language" of the document, as well as the fact that any.
action taken pursuant to the PIL was contingent on facts particular to each case. Id.

All the Secretary's witnesses denied that the 200-foot tracking guideline is an absolute
rule. In addition, the Secretary presented the declarations ofKevinStricklin and Charles Thomas,
the Acting Deputy Administrator for Coal Mine Safety and Health, who both stated that adhering·
to the guidance in the PPL is not a condition for approving any operator's ERP. (Bxs. G,.9 and G10). Peabody argues that the characterization of the document by the Secretary, as well as the
Secretary's view of the nature of her actions, should not be accorded as much weight as the actual
language and effect of the Secretary's pronouncements. Brockv. Cathedral Bluffs Oil Shale Co.,
796 F.2d 533 (D.C. Cir. 1986).
The PPL states that its purpose is to be a "general statement of policy that provides.mine
operators guidance in implementing ... electronic tracking systems, ... [as] required by the ·
MINER Act." (Ex. G-5 at 1). The PPL goes on to state that "[w ]hile the required capabilities of a
particular tracking system will depend on mine-specific circumstances, an effective electronic
tracking system generally should be capable of ... [d]etermining the location of miners on a
working section within 200 feet. Id. at 6. The district manager is free to exercise his discretion to
follow or not follow the guidance in a particular case and, more importantly, he is instructed to
make his decision based on the specific circumstances at each mine. The PPL does not require the
district manager to apply the guideline to every underground coal mine in his district.
On April 29, 2009, MSHA issued an informational bulletin on the PPL, which is in
question and answer format. (Ex. G-6). This bulletin, which was issued to provide information to
mine operators, seems to advise operators that they should expect district managers to follow the
PPL. For example, Question 22 states: "Would it be acceptable to install a reader [node] at the
loading point, inby the loading point in any entry, or at the load center for each entry, to track the
location of miners?" Id. at 3. In response, MSHA stated, in part: "Yes, ifthe electronic system
determines a miner's location within 200 feet on the working section." Id. at 4. Another question
asked whether the 200-foot tracking provision applies to a longwall face, to which MSHA replied
in the affirmative. Id.

I find that MSHA, acting through its district managers, remains free to consider individual
circumstances at a mine and to approve ERPs that do not include a 200-foot tracking capability in
working sections. Although district managers may, as a matter of practice, rarely approve such
plans, they remain free to do so in individual situations. Although the PPL was published in the
Federal Register, this was done to give notice to interested persons and to provide a very brief
comment period.

32 FMSHRC Page 907

I find that, although the Secretary will likely require that the vast majority ofERPs include
a provision for 200-foottracking in working sections, district managers.have the authority under
the PPL to allow for tracking systems that do not have that capability. As a consequence, I hold
that the 200-foot tracking guideline in the PPL is not a binding norm that is necessarily applicable
to all underground coal mines and formal rulemaking under the APA was not required. Although
I personally believe that notice and comment rulemaking would have been more appropriate and
effective than issuing a PPL given the complexity of communication and tracking systems, I
cannot order the Secretary to engage in a rulemaking. In a rulemaking, the regulated community,
as well as other interested parties, would have had the opportunity to more formally participate in
the process and to provide meaningful suggestions on how best to implement the MINER Act's
tracking requirements. The MINER Act gave the Secretary three years to implement the
communication and tracking provisions of the Act, which was sufficient time for notice and
comment rulemaking. That decision, however, is committed to agency discretion.

2. Abuse of Discretion.
Based on the evidence presented at the hearing, I find that the 200-foot guideline contained
in the PPL for tracking miners in the working sections was treated as a binding norm by the
district manager in these cases. I find that the district manager abused his discretion when he
imposed a 200-foot tracking requirement in the working sections of both mines based on the PPL
because he mechanically applied the PPL to the two mines. His decision was arbitrary because he
based that requirement, not on any particular conditions present at the mines, but on the language
of the PPL. He did not know where the 200-foot tracking guideljne originated or why that
particular figure was used in the PPL. As discussed below, he stated that he always enforces the
200-foot tracking guideline. He had only been the district manager at District 8 for a few weeks
and his knowledge of the conditions at the mines was based on a few discussions with MSHA
inspectors and staff. The record establishes District Manager Payne has extensive experience in
all facets of coal mine safety issues and that he has wide-ranging knowledge and experience in
mine rescue. He reviewed the information provided to him but he simply concluded that a
tracking system capable of locating miners within 200 feet of their actual location should be
installed in all conventional mines with "square sets and square blocks." (Tr. 75).

It is important to understand that no explanation was provided at the hearing as to how the
Secretary decided that tracking systems should generally have the capability to track miners to
within 200 feet of their actual locations on working sections. District Manager Payne did not
know where the number came from but he testified that he "has always enforced 200 feet." (Tr.·
76). Ms. Hill testified that the committee started with 500 feet as a placeholder, and that upon
subsequent review the 200-foot guideline was substituted. (Tr. 134, 142-143). Ms. Hill was not
at the committee meeting when the change w:as made, but Mr. Stricklin and Mr. Stickler were
present. She testified that the 200-foot figure was based on the Sago and Crandall Canyon
disasters and what would have helped in the recovery efforts at those mines. (Tr. 135). The
''Notice of Availability of Program Policy Letter'' that MSHA published in the Federal Register on
December 18, 2008, did not provide any explanation for the 200-foot guideline and MSHA' s

32 FMSHRC Page 908

response to the comments filed did not explain why that figure was used either. MSHA simply
stated,
Based on MSHA's experience in previous mining emergencies and
rescue efforts, the Agency believes that the distances in the PPL
meet the intent of the MINER Act given currently available
technology. Tracking of miners in the working section is
technologically feasible and provides important information to
rescuers.
(PPL Response at 8). MSHA's responsejust sets forth its conclusion, but it does n:ot provide the
regulated community with any information as to how it reached this conclusion.

It is important to recognize that providing a tracking system that is capable of locating
miners within 200 feet of their actual location in a working section is an extremely complex
endeavor. Such a tracking system would also be very difficult to maintain in good order given the
conditions that exist in underground coal mines. The nodes are rather large and, in the case of the
two Peabody mines, it has been estimated that approximately 12 to 14 nodes will need to be
installed in each working section. Optic cables will serve the nodes and coaxial cable will
connect antennae to the nodes. When the belt feeder is moved forward as mining progresses, the
network of nodes, cables, and antennae will need to be repositioned or reconfigured. 'Evidence of
the frequency that the network will need to be repositioned was not presented at the hearing.
During retreat mining, the network will also need to be repositioned as the pillars are mined. It is
safe to say that a communication and tracking system will be one of the most complex and
difficult installations to establish and maintain in underground coal mines. Determining whether
such a tracking system should be required in a working section requires a comprehensive review
of the specific physical characteristics of that mine and should take into consideration the type of
tracking system being installed.
Peabody does not believe that the 200-foot tracking system that MSHA wants to require is
necessary or suitable for its mines. It has raised questions as to whether such a tracking system
will :function correctly and whether it can be maintained in working order given the conditions in
underground mines. The regulated community also raised these issues when commenting on the
PPL. Peabody is concerned about adding so many electrically-powered components into the
working sections of its mines. It is concerned that nodes will be damaged during an accident and
these damaged nodes could ignite methane that is liberated. Beerbower stated that other operators
have had difficulty keeping the nodes from being damaged by mobile equipment during normal
operations.
Despite the complexity of these tracking systems, the district manager chose to simply
require Peabody to amend its ERP to include a 200-foot tracking system in its working sections.
An administrative agency must "examine the relevant data and articulate a satisfactory
explanation for its action including a 'rational connection between the facts found and the choices

32 FMSHRC Page 909

made.'" Twentymile Coal at 754. The district manager did not do this in the present cases. His
statement that he always enforces the 200-foot guideline confirms that he only superficially
considers the specific conditions in the mines in his district, if at all, when reviewing ERPs.
It is important to understand the limits of my ruling. I am not holding that Peabody may
implement the ERPs it submitted as if they have been approved by MSHA. I am not holding that
the district manager cannot seek to establish tracking distances forworking.sections in Peabody's
underground coal mines through negotiations with the operator. Because these cases involve
mine plans, the parties must adopt ERPs that account for the specific physical characteristics of
each mine. I am simply holding that the district manager cannot mechanically apply to Peabody's
mines the 200-foot tracking guideline contained in the PPL. The parties are still obligated to
negotiate and develop ERPs that are tailored to the conditions at the mines The district manager
must be able to establish that, given the specific conditions present at the mines and the current
state of technology, Peabody should be required to install tracking systems that can track miners
within the working section with an acceptable degree of precision. The degree of accuracy must
be negotiated between the parties. The district ma:nager is not prohibited from considering the
PPL, but he must explain to Peabody why the particular tracking distance he wants to include in
the ERP is appropriate for these particular mines and he must seriously consider any objections or
comments given by Peabody. ''Use of a guideline does not per se make it suitable or unsuitable to
a plan, nor does 'across the board' use of a policy automatically make it unsuitable for this
particular mine." Prairie State Generating Co., 32 FMSHRC _ _,slip op. at 8 (May 21, 2010)
(ALJ) (Pet.for disc. rev. granted by Comm., June 30, 2010).

My holding in this case is consistent with the Commission's decision in Carbon County
Coal Co., 7 FMSHRC 1367 (Sept. 1985). In that decision, the Commission determined that
MSHA's insistence on a part;icular ventilation plan provision was "the result of a rote application
of the ... guideline and ... was not based upon particular conditions at the ... [m]ine." Id. at
1373 (emphasis added). The Commission stated that its decision was not based "upon the merits
of the [ventilation provisions]," but rather upon the fact that MSHA was using the plan approval
process to impose general rules applicable to all mines instead of provisions "based on particular
circumstances at the ... [m]ine." Id. at 1375. The Commission qualified its holding by stating
that:
This does not mean that the ... [disputed provision at issue] may
not be applied at the ... [m]ine. If negotiations on the ventilation
plan resume, MSHA may determine, and may be able to establish,
that particular conditions at the mine warrant the inclusion of the
... [disputed provision at issue] in the ventilation plan.
Id.
Based on the foregoing findings and conclusions, I find that the Secretary, acting through
her district manager, abused her discretion and acted in an arbitrary and capricious manner, when

32 FMSHRC Page 910

she, in rejecting Peabody's ERPs, demanded that the ERPs include a 200-foot tracking guideline
without seriously considering the specific condition in the mines and the capabilities of the mines'
chosen tracking systems. Whether this 200-foot tracking guideline should be required in the
working sections of Peabody's mines has not been established. The two citations at issue in these
proceedings were issued because the ERPs failed to include a 200-foot tracking provision. As a
consequence, the citations are vacated.
IV. ORDER
For the reasons set forth above, Citation Nos. 7563769 and 7563800 are VACATED and
these proceedings are DISMISSED.

Richard W. Manning
Administrative Law Judge

Distribution:
Lynne B. Dunbar, Esq., and TracyB. Agyemang, Esq., Office of the Solicitor, U.S. Department of
Labor, 1100 Wilson Blvd., 22nd Floor, Arlington, VA 22209-2296 (via e-mail and certified Mail)
R. Henry Moore, Esq., Jackson Kelly LLC, 3 Gateway Center, Suite 1340, 401 Liberty Ave.,
Pittsburgh, PA 15222 (via e-mail and certified Mail)

RWM

32 FMSHRC Page 911

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9958 I FAX: 202-434-9949

July 7, 2010
CONTEST PROCEEDING

KNIFE RIVER CORPORATION,
NORTHWEST,
Contestant,

Docket No. WEST 2010-1319-RM
Citation No. 8559470; 0602/2010

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

Coffee Lake Pond
Mine ID 35-03022

DECISION
Appearances by Brief: Jeannie Gorman, Esq., Office of the Solicitor, U.S. Department of Labor,
Seattle, Washington, on behalf of the Respondent
Adele L. Abrams, Esq., Law Office of Adele L. Abrams, P.C., Beltsville,
Maryland, on behalf of the Contestant

Before: Judge Rae

Findin& of Facts and Procedural History
On April2-3, 2010, Inspector Richard Roethle of the Mine Safety and Health
Administration's ("MSHA") conducted an inspection of KRC's Coffee Lake Pond Mine
("Coffee Lake"). Coffee Lake is a surface sand and gravel operation in Salem, Oregon, and is a
mine, as defined by the Mine Act. On April 2, 2010, Inspector Roethle issued Citation Number
8559470 having found:

[T]he existing rubrail ori the truck scales were not mid-axle height to the dump trucks
using them. This condition could allow trucks to cross over the rail and drop down
to the front axles. The existing 5 inch diameterrubrail was 12 foot wide, 80 feet long
and 9 inches above the scale deck. This is a manufactured scale with a rubrail. The
truck scales are used daily to weight trucks in and out. If a person were to drop an
axle off the scale they could be seriously injured.
(Cit. 8559470.)
Roethle found the gravity level of the alleged violation to be "unlikely" to cause injury or
illness and that the injury could result in "lost workdays or restricted duty." (Res- Exh. 2.) The
negligence level was found to be "moderate." (Id.)
32 FMSHRC Page 912

The two truck scales' platforms are approximately 80 to 100 feet long and 12 feet wide
and 36" above the ground at the highest point. They have the manufacturer-installed rub rails
along the length of their inner and outer edges. (Con- Exh. D; Res- Exh. 2.) The rub rails are
approximately 5 inches thick and 9 inches high and the distance from the truck scale deck to the
pavement is approximately 26 to 36 inches. (Id.; Con. Brief, at 2; Res.-1-a) To meet MSHA's
demands, the rub rail would have to be 20 inches high. ( C - Exhibit D; Res.- Declaration of .
Breland, at 2; Res.- Exh.1-a.) This is determined by subtracting by half the wheel height of the
largest truck which usually travels the roadway. (Id.) In this case, the height of the wheel of the
largest truck that uses the scales is 40-inches high. (Id.)
The two truck scales in question have been in operation since March of 1998. (C - Exh.
B; C.- Exh. C.) Between then and May of2010 the scales have weighed approximately9.630
million tons of aggregate. (Con.- Exh. E.) Based on the approximation that each truck can carry
23 tons per load, on average 33,496 trucks (excluding light weights) cross the scales per year and
approximately 401,952 trucks have passed over the scales since they have been in operation. (Id.)
When trucks are approaching the scales they are guided by a set of traffic lights that
require the trucks to come to a complete stop before entering and exiting the scale. Also, trucks
must stop when on the scale to be weighed and again to pick up a weigh ticket after they have
moved off the scale. (Con.- Exh. G.) When entering and exciting the scales the trucks travel at
approximately 4-5 mph. (Id.) MSHA regulations and KRC's company policy requires that
occupants of the trucks wear seatbelts while the trucks are in operation. 30 C.F.R.§§ 56.14130
and 56.14131, (Con.- Exhibit H; C- Exhibit Y.) There have been no seatbelt violations at Coffee
Lake while the scales have been in operation. (Con.- Exh. 0.) The scales are adjacent to two
main traffic rcmtes within the facility, but they are not part of any main artery. (Con.- Exh. Q.) ·.
The scales, and the roads that travel directly to them from the main arteries, are only accessed to
weigh trucks and are not intended to by used as a thoroughfare. (Id.; C.:- Exhibit E.)
Coffee Lake has been inspected by MSHA 43 times since 1998 and during that time the
scales have not-been cited for deficient guardrails. (Con:- Exh. S.) The manufacturer, UniBridge
Systems, is also not aware of any accidents in which a truck has gone off the side of this
particular type of scale, (Con.-Exh. P.), nor are any of the management personnel at the mine.
(Con.- Exh. D and E.) Two other KRC operations in Oregon have been cited because of similar
circumstances where guardrails were found by MSHA to not meet the required height, however,
the Solicitor's brief does not specify whether these citations involved scales or other roadways.
(Res.- Brief at 3.) KRS requested· additional time to comply with MSHA's requirement that they
raise the guardrails and it was granted. (Res.- Brief, at 2.) KRC has since requested estimates
from outside contractors to determine the cost of retrofitting the scales with guardrails 20 inches
high or higher. (Con,- Exh. V.) According to these estimates, the cost would be $38,418 per
scale. (Con.- Exh. V.) In addition to the two scales at Coffee Lake, KRChas a number of other
facilities throughout the country that use similarly-configured scales with- the original
manufacturer's guardrail. (Con. Brief, at 5.) K.RC estimated that it would cost $1.3 million in
order to retrofit their 34 operational scales. (Id.)
On June 8, 2010, the Commission received, through their representative, KRS 's motion'
for an expedited proceeding. In a telephone call with the parties on June 16, 2010, I granted the

32 FMSHRC Page 913

Contestant's request for an expedited proceeding. The parities stipulated that in lieu of an inperson hearing, they would submit briefs and exhibits. On June I 8, 2010, I issued an Order
reiterating that the expedited proceeding was granted and that the briefs would be submitted by
June 28, 2010.

Arinment and Application of Law
30 C.F.R. §56.9300(a) states that "[b]erms or guardrails shall be provided and maintained
on the banks of roadways where a drop-off exists of sufficient grade or depth to cause a vehicle
to overturn or endanger persons in equipment." 30 C.F.R. § 56.9300(a). 30 C.F.R. § 56.9300(b)
states that these "berms or guard.fails" need to be "at least mid-axle height of the largest selfpropelled mobile equipment which usually travels the roadway." 30 C.F.R. § 56.9300(b).
Contestant asserts two reasons for its request to dismiss the citation issued by MSHA.
First, that the cited standard does not apply to the operation because the truck scales cannot be
considered a roadway or, alternatively, because there is neither a grade nor elevation that would
require a berm or guardrail. Secondly, the operator was not given fair notice that the cited
standard applies to the scales at Coffee Lake as they had never been cited before.
Having considered couns~ls' briefs and exhibits I find that the Contestant's argument that
the scales are not roadways or that they have been deprived of fair notice are not meritorious.
Contestant asserted that trucks traverse the scales at a rate of 5 mph, and stop on either
end of the scales and to be weighed, and then continue onto the roadway to exit the mine. Only
the dump trucks being weighed use the scales; other vehicles use the adjacent roadway to enter
and exit the mine without the necessity of crossing the scales. Relying on the definition of a
"roadway'' from Merrian-Webster Online and dictionary reference.com, Coffee Lake contends
that a roadway is the same as a road which is used for travel to or from a destination. The scales,
to the contrary, are for the purpose of selling the mined material and are equipment. (Res.
Motion for Summary Decision 8-9). Moreover, Respondent contends that there is a dissimilar
purpose for regulating scales as opposed to mine roads. Additionally, the manufacturer opined
that should the scales be used as roadways, their precision would be diminished. (Con-Exh. P).
I do not find Respondent's argument persuasive. While there is a roadway adjacent to the
scales which can be used by vehicles, by Respondent's own admission, all trucks carrying the
products from the mine must cross the scales in order to sell the material to the end user.
Approximately33,496 trucks cross the scales each year (almost 100 per day). The scales are an
integral part of the road used by the trucks and are an essential part of the commercial trek from
the pit to the consumer. I find Judge Weisberger's opinion that the common meaning of the term
roadway is the entire route traveled by the trucks including the scales. The assertion that scales
are merely equipment because travel across them is limited to 5 mph, stopping in route, is too
narrow an interpretation of the word. Secretary ofLabor v. APAC-Mississippi, Inc., (October
2004). I also note the decision by Judge Manning, Secretary ofLabor v. Carder, Inc., 27
FMSHRC 839 (November 2005), which found that scales fit within the scope of the standard
under §56.9300.

32 FMSHRC Page 914

The Contestant's assertion that they have been deprived of fair notice because they have
never been cited for the scales before or specifically notified of the application of the standard to
the scales is also not persuasive. An operator is deprived of fair notice of the applicability of a·
standard when it is "so incomplete, vague, indeterminate or uncertain that persons of common
intelligence must necessarily guess at its meaning and differ as to its application." Secretary of
Labor v. Ideal Cement Co., (November, 1990) quoting Alabama By-Products Corp., 4 FMSHRC
2128, 2129 (December 1988). Explicit notice to the operator is not required. Put another way,
"when the language of a regulatory provision is clear, that terms of the provision must be
enforced as they are written unless the regulation clearly intended the words to have a different
meaning or unless such a meaning would lead to absurd results," Secretary ofLabor v. Lode Star
Energy Inc., 24 FMSHRC 689 (July 2002), citing Dyer v. United States, 832 F. 2d 1062 (9th Cir.
1987).
The standard for requiring a berm is sufficiently clear and the language is meant to apply
to a variety of circumstances, Ideal Cement Co., supra; Alabama By-Products Corp., supra;
Secretary ofLabor v. IMCO Services, 5 FMSHRC I (January, 1983).

I do find, however, that the Secretary has failed to meet her burden of proving by a
preponderance of the evidence that the scales are of a depth and/or grade that would trigger the
application of the standard.
Respondent addresses the issue of whether the scales are considered to be a roadway in
her brief as well as whether Coffee Lake has been deprived of fair notice of the application of the
standard to these scales. However, the determination that the scales are a roadway is only one
prong of the standard triggering the need for a guardrail. She has not addressed the depth and
grade issue.
While the operator's argument that there has never been an accident on the scales is
irrelevant as the Mine Act demands strict compliance once the standard is found applicable, there
is no evidence provided in this case upon which to find the standard applies to these particular
scales. The Secretary alleges that the scales are 36" at their highest point and nothing further.
(Contestant alleges that the scales are only 26 Yi" from the scale's deck to the pavement in her
brief at page 3). Lacking is an expert's statement, case law or any other authoritative guidance as
to how or why a 26 Yi" to 36" elevation for some undetermined distance on the scales is of
sufficient depth as to pose a danger of a vehicle overturning or endangering persons in
equipment.
The inspector who issued the citation found merely that a truck could drop an axle
resulting in injuries but that it was unlikely. (Res. Exh. 2.) The statement of Supervisor Brad
Breland indicates that he is considering amending the citation to read "reasonably likely'' to
occur with "permanently disabling" results (Res.-Brief Declaration of Breland). However, Mr.
Breland gives his reasons for these contemplated changes as his familiarizing himself with the
conditions without giving any underlying factual basis for this statement. His statement is silent
on information regarding how the height or grade of the scales considering all other relevant
factors such as their width, size of the trucks and the like would trigger the standard. The
Secretary has also provided photographs of the scales, however, it would be inappropriate for me
to draw inferences from photographs alone without some authority upon which to rely in finding
32 FMSHRC Page 915

that they depict an elevation or grade sufficient to cause a truck to overturn or endanger persons
in the trucks. I have also reviewed case law and find nothing that sets a standard or minimum
height at which the standard would apply.
Having provided no case law.setting a precedent, any authority or expert opinion, I find
that the Secretary has not met her burden of proof by a preponderance of the evidence as
required, Secretary ofLabor v. United States Steel Corp., 5 FMSRC 3(January 1983); Secretary
ofLabor v. Keystone Coal Mining Corp., 151F3d1096 (11th Cir. 1998); Omiet Primary
Aluminum Corp., 23 FMSHRC 1330 (December 2001).

ORDER
It is ORDERED that Citation No. 8559470 be DISMISSED.

g_Ra_e___
Administrative Law Judge

Distribution:
Jeannie Gorman, Esq., Office of the Solicitor, U.S. Department of Labor, 1111 Third Avenue,
Suite 945, Seattle, WA 98101-3212
·
Adele L. Abrams; Esq., Law Office of Adele L. Abrams, P.C., 4740 Corridor Place, Suite D,
Beltsville, MD 20705

32 FMSHRC Page 916

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

July 16, 2010
DISCRlMINATION PROCEEDING

EUGENE BADONIE,
Complainant

Docket No.
Case No.

WEST 2009-1342-D
DENV-CD-2009-15

Mine Name:
Mine ID:

Kayenta Mine
02-001195

v.
PEABODY WESTERN COAL CO.,
Respondent

DECISION
Appearances: Eugene Badonie, Kayenta Arizona pro se;
Margaret S. Lopez, Esq., Ogletree, Deakins, Nash, Smoak, Stewart, P.C.,
Washington DC on behalf of the Respondent.
Judge Melick

Before:

This case is before me upon the complaint of Mr. Eugene Badonie pursuant to Section
105(c)(l) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C § 801 et seq., the "Act",
alleging that on May 1, 2009 he was transferred by the Peabody Western Coal Company (Peabody)
from a position as a day shift (first shift) supervisor to the ''undesirable" position as a midnight shift
(third shift) supervisor in violation of Section I 05(c)(1) ofthe Act. 1 Mr. Badonie acknowledges that
he suffered no, loss of pay, benefits or seniority as a result of the transfer. He had since been
transferred to the second shift but wants to·be returned permanently to the first shift.

1

Section 105(c)(1 )of the Act provides, in relevant part, as follows:

No person shall discharge or in any manner discriminate against or cause to be discharged
or cause discrimination against or otherwise interfere with the exercise of the statutory
rights of any miner, representative of miners or applicant for employment in any coal or
other mine subject to this Act, because such miner, representative of miners or applicant
for employment has filed or made a complaint under or related to the Act, including a
complaint notifying the operator or the operator's agent, or the representative of the
miners at the coal or other mine of an alleged danger or safety or health violation in a coal
or other mine .....

32 FMSHRC Page 917

fu order to establish a prima facie case of a violation of Section 105(c)(1) of the Act, the
complainant must prove that he engaged in an activity protected by that section and that the adverse
action complained of was motivated in any part by that activity. See Secretary ofLabor on behalf
ofPasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds,
sub nom. Consolidation Coal Co. v. Marshall 663 F. 2d 1211 (3rd Cir. 1981); Secretary Labor on
behalfofRobinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981) ·
It is undisputed that Mr. Badonie engaged in protected activities on April 30, 20092.0n that
date, Badonie was working the third (midnight) shift filling in for the absent regular supervisor. The
truck drivers were complaining to him about ''the perpendicular angle at the push". According to
Badonie, the drivers were "not being permitted to be perpendicular to the dump" at the J-28 stockpile
causing them to operate in a "rough" area. More particularly, it appears that the trucks were being
driven over four-foot-high windrows and the drivers were complaining, as a result, that some were
suffering back pains . Mr. Badonie then filed "a safety alert-life threatening notification" byway of
a "BD02" (a form of electronic messaging) complaint regarding this matter to corporate headquarters
around 7: 18 a.m (Exhibit C-11 ). Badonie designated the condition as "life threatening" and, under
the DB02 system, such a report results in an automatic E-mail back to mine management informing
them of the complaint. It is clear therefore that all senior managers were aware of Badonie's "life
threatening notification" by 7:18 a.m. on April 30, 2009, (Exhibit C-11). The records indeed show
that Senior Production Manager Barry Grass was already responding to the complaint by 8:43 a.m.
(Exhibit C-11).
Around 5:00 or 6:00 a.m. on May 1, 2009, Barry's brother, Jonas Grass, called Badonie into
his office and told him that he had been called by Barry thirty minutes before and was told to inform
him thathe had been transferred to the third shift. According to Badonie, Jonas provided no reason
for the transfer. Badonie testified that he considered resigning over the weekend but the following
Monday he met with Scott Williams who was in a superior position to the Grass brothers and was
told onlythat "moving men around was a tradition at the company''. At some point in time Badonie
also asked Barry Grass why he had been reassigned and Barry told him that he had been replaced
with Norman Sneddy because he had never before evaluated Sneddy and wanted to move him to day
shift to evaluate him. There is no dispute that the first shift supervisor is considered the leadsupervisor for all three shifts and has greater responsibilities for assigning work on all three shifts.

2

At hearings, Mr. Badonie also claimed six other alleged protected activities. I find
however that the two safety grievances filed on behalf of another employee when Badonie was a
union representative (and before he was promoted to management) in January 1998, and letters to
Mr. Grass in January and April 2008 complaining about equipment being returned from the
maintenance shop without the correction of certain safety defects, were too remote in time and of
a nature to be expected in the ordinary course of his duties to have been a motivating factor in his
shift change in May 2009. I further find that a grievance filed in December 2001 on behalf of an
employee initially denied family leave and a complaint of alleged sexual harassment in February
2004 were not protected under the Act.
32 FMSHRC Page 918

At the conclusion ofthe Complainant's case at trial, I found that he had engaged in protected
activity and that he had met his initial burden of showing that his transfer to the third (night) shift
was motivated at least in part by that protected activity. Here, not only was there clearly knowledge
of Badonie's protected activities on the part of Barry Grass, the official who recommended the
transfer of Badonie, but the transfer was made less than a day after his April 30, 2009, protected
activity.
The operator may rebut the prima facie case by showing either that no protected activity
occurred, or that he adverse action was in no part motivated by protected activity. See Robinette, 3
FMSHRC at 818 n. 20. While acknowledgingBadonie' s protected activities, Peabody maintains that
it made the decision to transfer Badonie in late April 2009, prior to his April 30th safety complaint
and that, accordingly, the transfer was not, and could not have been, motivated by that protected
activity. In this regard, Peabody presented credible evidence that Badonie's assignment to the third
shift was part of an overall reorganization of management and supervisory responsibilities at the
mine to be effective May 1, 2009. (Exhibits. R-1, R-2 and R-3).
The reorganization was the result ofa company-wide initiative called "Center ofExcellence"
(COE) which entails reviews by a team of managers studying organization and procedures at an
operation and making recommendations for improvement. The COE at the Kayenta Mine was
completed on April 17, 2009. According to the undisputed evidence it was recommended in the
review that management of the operating pits be divided so that one set of managers would be in
charge of one pit and a separate set of managers would be in charge of the other pit. This was
deemed necessary because ofthe mine' s large size (one hundred square miles ofpermitted property)
and because the two main operating pits are located 14 miles apart. Previously, one set of managers
and supervisors would work both pits, which involved excess travel time between the pits.

In the reorganization, Barry Grass and RandallHendrix (in an equivalent position to Grass)
were made production managers overseeing the supervisors at the separate pits: Grass was over the
J19 and J21 and Hendrix over the N9 pits (Exhibit R-2). They were each to have their own respective
sets of supervisors (Exhibit R-2). In the reorganization, Norman Sneddywas placed on first shift as
pit supervisor in the J 19 and J21 pit area, Lewis Pavinyama was in that position on the second shift
and Badonie was placed in that position on the third shift. This is the pit area under Barry Grass. The
pit supervisors manage the dump truck and backhoe operations at their assigned pit.
Badonie' s position before the reorganization involved supervising reclamation activities and
managing the dozers. In the reorganization, that position was eliminated and the supervision of the
dozers was placed under the pit supervisors for each respective pit. According to the credible
evidence, Sneddy was placed on first shift rather than Badonie because Barry Grass wanted to
directly supervise Sneddy to evaluate him. In the first shift position, Sneddy would be given more
responsibility than the pit supervisors on the other shifts, because the first shift supervisor is the lead
supervisor responsible for planning the work on all three shifts. Since Barry Grass works on the day
shift, Sneddy would have to work on the first shift in order for Grass to be able to directly supervise
Sneddy. Before this, Sneddy had been working on the third shift for a long time . He had not been
a lead shift supervisor before and had not worked directly for Barry Grass before.
32 FMSHRC Page 919

According to the credible evidence, the details on job responsibilities and assignments in the
reorganization were completed in various meetings involving the director of production, Gregg
Kitchen, Randall Hendrix, Barry Grass and Renee Lorents, the senior manager of human resources.
These meetings began around Monday, April 20th and the final decision on the new job assignments
wa:s made by April 24th.

Jn one of the meetings that week, the reorganization was diagramed out on a "white board"
and the resulting chart and notes were printed out directly from the "white board" using its internal
printer~ (Exhibit R-3). That chart shows that Badonie was to be IJ!ade a pit supervisor on the third

shift in the reorganization and that the change would be effective May I si (Exhibit R-3). That chart
was brought to Lorents by the end of the week of April 20th· for her to use in preparing the final
organization chart for the reorganization. Gregg Kitchen made the final decision on the
reorganization, including Badonie's new position on the third shift, prior to Badonie's April 30th
complaint and was based on recommendations from Barry Gra.ss and Randall Hendrix.
It is undisputed that it had been, and is, standard practice for the company to move people
around. Indeed, prior to the transfer at issue in this case, Badonie had been moved approximately
every twelve months to a different supervisory job or to a different shift and Badonie acknowledge_d
that he was aware that the company moves supervisors to different positions and different shifts due
to promotions, reorganizations and other operational reasons. Jn fact, Badonie had previously been
assigned to the first and second shifts and had filled in for others on the third shift. As of May· 151,
Badonie had already been working the third shift for three months, while the regular third shift
supervisor was on leave.

Within this framework of credible evidence, l find that, indeed, the decision by Peabody to
transfer Badonie to the third shift had been finalized by April 24, 2009, six days before his protected
safety complaint on April 30, 2009. Accordingly, the decision to transfer him was not motivated by
that safety complaint and this proceeding must be dismissed.

ORDER
Discrimination proceeding Docket No:, West 2009-1342-D is hereby dismissed.

32 FMSHRC Page 920

Distribution:
Eugene Badonie, P.O. Box 1712, Kayenta, Arizona 86033
Margaret S. Lopez, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 2400 N Street NW,
5m Floor, Washingto~ DC 20037

Ito

32 FMSHRC Page 921

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

SECRETARY OF LABOR,
MlNE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
EUREKA ROCK, LLC,
Respondent

July 21, 2010
CIVIL PENALTY PROCEEDING
Docket No. WEST 2009-137-M
A.C. No. 02-02683-163944

Mine: Eureka Portable Screening Plant

DECISION
Appearances: Jan M. Coplick, Esq., Office of the Solicitor, U.S. Department of Labor, San
Francisco, California, on behalf of the Petitioner;
Thomas Mattics, President, Eureka Rock, LLC, Ashfork, Arizona, on behalf of the
Respondent.
Before:

Judge Melick

This case is before me upon a petition for civil penalty filed by the Secretary of Labor
pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq., the "Act," charging Eureka Rock, LLC, (Eureka) with multiple violations of the standard at
30 C.F.R. § 50.30(a) and proposing civil penalties $448.00 for those violations. The general issue
before me is whether Eureka Rock violated the cited standards as charged and, if so, what is the
appropriate civil penalty for those violations. Additional specific issues are addressed as noted.
Eureka first argues that the operations and products of its mine do not affect interstate
commerce and that therefore its mine is not subject to the Act. Section 4 of the Act provides that
"each 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 ofthis Act." In D.A.S. Sand and Graveline. v. Chao. 386 F .3d 460 (2nd Cir.
2004), the Circuit Court, relying on the language of section 4 of the Act, held that Congress
unambiguously expressed its intent to regulate mines to the .full extent of its power under the
Commerce Clause. The Court ofAppeals in that case further noted that the Supreme Court has long
held that "the Commerce Clause does not preclude Congress from regulating the activities of an
economic actor whose products do not themselves enter interstate commerce, where the activities
of such local actors taken together have the potential to affect an interstate market the regulation of
which is within Congress' power''. 386 F.3d at 463.
It is undisputed that the Eureka mine crushes volcanic rock (although the crusher has been
inoperative since 2004) and screens that product for sizing to use in the local region primarily for
landscaping and as a base for driveways. Eureka also produces a sand product for use as a bedding
32 FMSHRC Page 922

material around outside water tanks and gas and sewer lines to protect them from rocks. There is
no evidence that Eureka directly gives or sells any mine product out of the State of Arizona. Within
this .framework of evidence and consistent with prior decisions, however I find that interstate
commerce was nevertheless affected in this case because of the "cumulative effect small scale
operators can have on interstate pricing and demand. See United States v. Lake, 985 F.2d 265 (6th
Cir. 1993); Tide Creek Rock, Inc., 24FMSHRC 201(February2002)(ALJ); Darwin Stratton and
Son, Inc., 24 FMSHRC 403 (January 2002)(ALJ).

It is further undisputed that in his business, Mr. Mattics, Eureka' s president, uses a Verizon
cell phone and the U.S. Postal Service and a post office box. He also obtains diesel fuel for his
screen and utilizes a Hough front end loader manufactured by International Harvester in his mining
activities. It may reasonably be inferred that the diesel fuel was obtained from an out- of- state
source and that the manufacturer of his front end loader was located out of state. These factors are
indicia of interstate commerce. U.S. v Dye Construction Co., 510 F.2d 17, 83, (l0 1h Cir. 1975)
Eureka next argues that owner/operators, having no employees cannot be a ''mine" within
the purview of the Act. I find no such exclusion in the mine Act and indeed Federal Courts have
agreed. See Marshall vs. Conway, 491F. Supp. 1123 (D.C. PA 1980).

The Alleged Violations
Citation number 6416594 alleges a violation of the standard at 30 C.F.R. § 50.30(a) and
charges as follows:
The operator did not report total hours worked on MSHA Form 7000-2 for the second quarter
of 2007. The operator acknowledges hours worked during this quarter but refuses to report
the hours. Each operator of a mine in which an individual worked during any day of a
calendar quarter shall complete an MSHA Form 7000-2 in accordance with the instructions
and criteria in Sec. 50.30-1 and submit the original to the MSHA Office of Injury and
Employment Information, P.O. Box 25367, Denver Federal Center, Denver, CO 80225,
within 15 days after the end of each calendar quarter.
Citations Number 6416595, 6416596 and 6416597 allege the same violation of30 C.F.R.
§ 50.30(a) but with respect to the third quarter of 2007, the fourth quarter of 2007 and the first
quarter of2008, respectively.
The cited standard, 30 C.F.R. 50.30(a), requires, in essence, that each operator of a mine in
which an individual worked during any day of a calendar quarter shall complete an MSHA form
7000-2 in accordance with instructions and criteria in Section 50.30-1 and submit the original to the
MSHA Office offujury and Employment fuformation within 15 days after the end of each calendar
quarter.

32 FMSHRC Page 923

30 C.F.R. § 50.30-l(g)(3) provides, in relevant part, as follows:
Total employee-hours worked during the quarter: show the total hours worked by all
employees during the quarter covered.
MSHA form 7000-2 also provides a space for the mine operator to report •'total employee
hours worked during the quarter''. (Exhibit G-lA)
·
·
Eureka argues that since Mr. Mattics is the owner of Eureka and has no "employees" it is in
full compliance with both the cited standard and the instructions on form 7000-2 in not reporting the
number of "employees". It therefore argues that it is not in violation as charged and the citations
should be vacated. In reading the language of30 C.F.R §50.30-l(g)(3) and applying the ordinary
definition of the term "employees" Eureka' s interpretation is understandable .
The Secretary notes however that the term "employees" is definedin another subsection of
the cited standard as including "all classes of employees (supervisory, professional, technical,
proprietors, owners, operators, partners, and service personnel) on your payroll full or part time."
See 30 C.F.R. § 50.30-l(g)(2). The Secretary argues therefore that under the rules of regulatory
construction, that definition applies as well to the term "employees" used in 30 C.F.R §50.30l(g)(3) The Secretary is clearly correct in this regard. Administrative regulations are generally
subject to the same principles of construction as statutes. Miller v. United States, 294 U.S. 435, 442
(1935). fu analyzing the rules of statutory construction, the Supreme Court of the United States has
stated that the established canon of construction is that similar language contained within the same
section of a statute must be accorded a consistent meaning". Nat 'I Credit Union Admin. v. First Nat 'l
Bank & Trust Co., 522 U.S. 479, 501 (1998). The Supreme Court has further held that ''there is a
natural presumption that identical words used in different parts of the same acts are intended to have
the same meaning. Atlantic Cleaners & Dryers, Inc. v United States, 286 U.S. 427 (1932).
Furthermore, in Morton Int 'l Inc., 18 FMSHRC 533 (Apr 1996), this Commission held that
''regulations should be read as a ·whole giving comprehensive, harmonious meaning to all
provisions". Id at 536.
Therefore, as a matter oflaw, the definition of the term "employees" found in 30 C.F.R §
50.30- l(g)(2) is applicable to the term "employees" found in 30C.F.R. § 50.30-l(g)(3) and,
accordingly, Mr. Mattics as owner/operator of Eureka is required to report bis own hours as an "
employee" on MSHA Form 7000-2. His failure to do so constitutes a violation of 30 C.F.R § 50.30
(a) as charged.

Civil Penalties
Under section, l lO(i) of the Act, in assessing civil monetary penalties the Commission and
its judges must consider the operator's history ofprevious violations, the appropriateness ofa 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

32 FMSHRC Page 924

faith of the person charged in attempting to achieve rapid compliance after notification of the
violation. No evidence of the operator's history of"final" violations was presented at the hearings
nor was clear evidence of abatement. It is likely that the violation was not "abated" because Mr.
Mattics continued to maintain that he was not an employee. The Secretary has alleged that the
violations were oflow gravity and I cannot disagree. Eureka is also a small business and there is no
evidence that the proposed penalties would affect its ability to stay in business. The Secretary also
alleges that the violations were the result of Eureka's high negligence on the grounds that it is
undisputed that Eureka's owner, Mr. Mattics, has previously been cited for the same violations as
those at bar and had been repeatedly warned by MSHA officials of the Seeretary's alleged
interpretation of the cited standard i.e. owners and operators must report themselves as "employees"
under the provisions of30 C.F.R. § 50.30-l(g)(3).
I disagree with the Secretary's position and find that Eureka is chargeable with but little
negligence. A lay person, such as Mr. Mattics, cannot, without an authoritative and binding legal
opinion, be expected to understand the arcane and sometimes bizarre legal concepts of regulatory
construction as applied herein and that the term "employees" as used in 30 C.F.R. § 50.30.-l(g)(3)
is the definition that one would not ordinarily find in common usage and in a standard dictionary.
The arcane legal definition of the term "employees" found in 30 C.F.R. § 50.30.-l(g)(2) would not,
to a layman, appear to be applicable to 30 C.F.R. § 50.30.-l(g)(3). In particular, considering the
threats posted on the reverse of MSHA Form 7000-2 that "an individual who knowingly makes a
false statement in any report shall, upon conviction, be punished by a fine of not more than
$10,000.00 or imprisonment for not more than five years, or both", the failure ofMr. Mattics to have
reported himself as an employee is even more understandable.(Exhibit G- IA page 2). I find therefore
that Mr. Mattics was complying in good faith with the terms of the cited standard and MSHA form
7000-2. I further find that his persistent non-compliance on the unique facts of this case should not
result in a finding of high negligence.. However, if Mr. Mattics does not choose to seek review
before this Commission of the instant decision or, upon seeking review, this decision is affirmed by
the Commission, Mr. Mattics would be on notice regarding the interpretation to be placed on the
cited standard and further non- compliance would likely result in findings of high negligence in the
future with commensurate higher levels of civil penalties.
Under all the circumstances, I find that civil penalties of $50.00 each for the citations at bar
are appropriate.

32 FMSHRC Page 925

ORDER
CitationsNumber6416594, 6416595, 6416596, and 6416597 are hereby affirmed with civil·
penalties of $50.00 each. Eureka Rock, LLC, is hereby directed to pay civil penalties totaling
$200.00 with 40 days of the date ofthis decision.

ary e ck
Admimstrative Law udge
(202) 434-9977

Distribution: (Certified Mail)
Jan M. Coplick, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 3-700, 90 7'11 Street,
San Francisco, CA 94103
Thomas G. Mattics, Eureka Rock LLC, P.O; Box 1455, Ashfork, AZ 86320

Ito!

32 FMSHRC Page 926

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9958 I FAX: 202-434-9949

July 22, 2010
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 2007-508
A.C. No. 15-18752-123358-Y68

v.

GENERAL DRILLING, Div. of GE,
Respondent

Mine: Lake City Quarry

ORDER OF DISMISSAL
Before: Judge McCarthy

Factual and Procedural Background
This case was assigned to me on July 12, 2010. It is before nie on a Petition for
Assessment of Civil Penalties under section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(d). The Respondent has filed a motion to dismiss the Civil Penalty
Proceeding on the basis of the Secretary's inexcusable and prejudicial delay in filing the petition.
The Secretary filed an Answer to the Motion to Dismiss, with attached affidavits.
Citation No. 6110609 was issued on January 9, 2007 while General Drilling was
performing contract drilling services at the Lake City Quarry mine owned by Florida Rock
Industries. The violation cited involved a cracked windshield in the operator cab of a drill,
creating a line of vision hazard that was reasonably likely to result in fatal injuries from high
negligence and constituted an unwarrantable failure to comply with a mandatory standard set
forth in 30 C.F.R. § 56.14103(b). An informal conference was held with the MSHA District
Office on January 30, 2007, but rto modification of the citation occurred.

On July 26, 2007, the Secretary issued a proposed assessment of penalty in the amount of
$2,000.00. It is undisputed that the Respondent filed a timely contest that was received by the
Secretary on August 28, 2007. Pursuant to Commission Rule 28(a), 29 C.F.R. 2700.28(a), upon
receipt of the mine operator's penalty contest, the Secretary had 45 days to issue her Petition for
Assessment of Civil Penalty. That is, the Petition was due on or about October 13, 2007. The·
Petition was not filed until on or about February 9, 2010. The Secretary gave no explanation in
her Petition why it was filed 28 months late.
After receiving the Petitioner's belated filing, Respondent promptly filed its Answer and
32 FMSHRC Page 927

Motion to Dismiss on February 12, 2010. Respondent argues that no adequate cause has been
established for the egregious delay under Commission precedent, and that such delay is both
inherently and actually prejudicial to the operator's preparation of a proper defense.
On March 23, 2010, the Secretary filed an Answer to the Motion to Dismiss, with
attached affidavits. According to Petitioner's affidavits, MSHA's Civil Penalty Compliance
Office prepared a contest package and transmitted it to MSHA's District Office on September 14,
2007. Petitioner concedes that the District Office never transmitted the contest package to the
Solicitor's Office so that a Petition for Assessment of Civil Penalty could be filed. Rather, more
than two years later, on or about November 25, 2007, the Commission informed the Solicitor's
Office that no Petition had been filed. After additional investigation, the Solicitor's Office
eventually mailed the Petition to Respondent on February 9, 2010. Thereafter, in June 2009, the
procedure for processing contests to proposed assessments was upgraded to a web-based
program.

Disposition
The Commission has held that in order to survive a motion to dismiss an untimely
petition, the Secretary must first establish adequate cause for the late filing. Once adequate cause
is established, the Commission then examines whether the delay has been prejudicial to the
operator. MSHA v. Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089, 2093 (Oct. 13, 1993),
citing MSHA v. Salt Lake County Rd. Dep 't, 3 FMSHRC 1714 (July 28, 1981) and MSHA v.
Medicine Bow Coal Co., 4 FMSHRC 882 (May 26, 1982).
Concededly, the Commission has permitted the filing of untimely petitions in a number of
cases based on factors such as the Secretary's extraordinarily high caseload, lack of clerical
personnel, and confusion of filing deadlines because of amended standards. See, e.g., Salt Lake
County, 3 FMSHRC at 1714; MSHA v. Lone Mountain Processing Inc., 17 FMSHRC 839 (May
31, 1995). In the present matter, by contrast, the Secretary does not specifically establish any
such factors or make any such contention, she just c.ites such precedent without demonstrating.
that such factors played any role in the late filing. In fact, the Secretary contends and the record
establishes that the filing delay occurred solely because the contest file(s) were misplaced or
never received by the MSHA District Office, and no procedures were in place to catch the error.
fu these circumstances, the Secretary has failed to establish adequate or good cause for the stale
petition. Moreover, the cases relied on to establish adequate cause for late filing involved
significantly shorter delays. For example, in Salt Lake County, the delay was less than two
months. 3 FMSHRC at 1714. fu Lone Mountain, the delay was only 16 days. 7 FMSHRC at
839. In Rhone.,.Poulenc of Wyoming Co., the delay was only 11 days. 15 FMSHRC at 2094. As
emphasized above, in the present case, the delay was two years and four months, and only
discovered after Commission inquiry.
Even assuming arguendo that good cause has been demonstrated by the Secretary on this
record, I find in the alternative that dismissal is warranted because Respondent has established
that the two-year, four-month delay has resulted in actual prejudice to the Respondent's ability to
32 FMSHRC Page 928

;_

defend itself in this matter. Respondent contends, and the Secretary does not dispute, that
Florida Rock Industries sold the mine property to Vulcan Materials Company in November 2007,
and Vulcan subsequently suspended mining at this operation. Respondent also contends, and the
Secretary does not dispute, that Respondent will no longer be able to locate and subpoena those
employees of Florida Rock Industries, Who could support its defense to the contested citation
through trial testimony. fu addition, Respondent asserts that even if such witnesses can be
located, their ability to recall events that occurred more than three years ago, with specificity, is
questionable. Although the Secretary had adequate opportunity to respond to Respondent's
arguments of actual prejudice in its Answer to Respondent's motipn to dismiss, the Secretary
failed to address the facts asserted or rebut the arguments presented. In these circumstances, I
find that Respondent has established a sufficient factual basis to demonstrate actual prejudice in
the preparation of its case based on the stale Petition.
In light of the foregoing, the Respondent's Motion to Dismiss is hereby GRANTED and
the Petition for Assessment of Civil Penalty is DISMISSED.

/lvmA:J f. frt "(~
Thomas P. McCarth; - . (}
Administrative Law Judge

Distribution:
Willow E. Fort, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite
230, Nashville, TN 37219-2440
Adele L. Abrams, Esq., CMSP, Law Office of Adele L. Abrams, P.C., 4740 Corridor Place, Suite
D, Beltsville, MD 20705
/cp

32 FMSHRC Page 929

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
72119th STREET, SUITE 443 .
DENVER, CO 80202-2500
303-844~267/FAX 303-844~268

July 23, 2010
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA2009-371
A.C. No. 46-01318-168124

v.
Mine: Robinson Run #95

CONSOLIDATION COAL COMPANY,
Respondent

DECISION
Appearances:

Jodeen Hobbs, Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for Petitioner;
Carol Marunich, Dinsmore & Shohl, LLP, Morgantown, West Virginia,
for Respondent.

Before:

Judge Miller

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration, against Consolidation Coal
Company, pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. §§ 815 and 820 {the "Mine Act" or "Act"). The case initially involved nine violations
assessed at $40,919.00. The parties have agreed to resolve four (4) of the violations, leaving five
(5) for decision here. The five remaining violations were issued by MSHA under section 104(a)
and (d) of the Mine Act at the Robinson Run #95 mine operated by Consolidation Coal
Company, Inc. The parties presented testimony and documentary evidence at the hearing held in
Morgantown, West Virginia on May 12, 2010.
The parties entered into certain stipulations that were accepted by the Court and entered as
Exhibit 1 in the case.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Consolidation Coal Company, Inc., ("Consol") operates the Robinson Run #95 mine (the
"mine''), an underground, bituminous, coal mine, in Marion County, West Virginia. The mine is
subject to regular inspections by the Secretary's Mine Safety and Health Administration
{"MSHA") pursuant to section 103(a) of the Act. 30 U.S.C. § 813(a). The parties stipulated that
Consol is an operator as defined by the Act, and is subject to the jurisdiction of the Federal Mine
Safety and Health Review Commission. Ct. Ex. 1. At the end of the hearing, the parties

32 FMSHRC Page 930

stipulated that the operator does not contest the violations, but raises issues only as to the S&S
designations and, where applicable, the unwarrantable failure findings.
In August and September, 2008, MSHA inspector Aaron Wilson conducted regular
inspections at the Robinson Run #95 mine. He was accompanied during portions of his
inspections by Larry Jones and Michael Jacquez, both of whom were Consol employees in the
company's safety department, as well as by a representative of miners. A number of citations
and orders were issued during the inspections, including the five discussed herein.

a.

Order No. 6608537

On August 18, 2008, Inspector Aaron Wilson issued Order No. 6608537 to Consolidation
Coal Company, Inc., for a violation of section 75.400 of the Secretary's regulations. The
citation alleges that:

[c]ombustible material in the form of loose lump coal and coal
fines, wet in nature, has accumufated underneath the 14-A (091-0
mmu) coal conveyor belt at 90 block from the tail roller outby a
distance of 17 feet. These accumulations are on the wide side of
the belt extending underneath of the belt half way (approximately
2 Y:z feet). The accumulations are up to 1·foot in height and are in
contact with the belt for a short distance. These same type of
accumulations are present piled up around the tail roller for a
height of 20 inches on the inby side and across the length of the 64
inch tail roller. The accumulations around the tail roller are wet in
nature but starting to dry out in the outer layer along the outer tight
[sic] side edge.
The tail roller is warm to the touch.
Accumulations are present on top of the feeder in.the from [sic] of
fine and·lump coal, dry in nature, 55 inches in length, up to 2 feet
high and approximately 1 foot less than the width of the feeder.
The condition of the spillage at the tail piece has been listed in the
preshift record book with no corrective action since midnight shift
on 8/17/08 (5 shifts).
The inspector found that an injury was reasonably likely to occur, that the violation was
significant and substantial, that two persons would be affected, and that the violation was the
result of high negligence on the part of the operator. The Secretary has proposed a civil penalty
·
in the amount of$6,115.00.
1. The Violation·

32 FMSHRC Page 931

.Aaron Wilson is an MSHA mine inspector who has worked in mines since 2001 and has
been employed by MSHA since September 2006. He has a degree and holds a number of
certifications, including mine foreman papers.
Section 75.400, the cited section of the Secretary's regulations, requires that "[c]oal dust,
includip.g float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and. not be permitted to accumulate in active workings, or on
diesel-powered and electric equipment therein." 30 C.F.R. § 75.400. Wilson's testimony
directly reflected the facts as set forth in the citation, i.e., accumulations of loose coal, coal
chunks, and coal fines existed for the distance, and in the amounts, listed in the citation.
Consol's witnesses did not dispute that the violation occurred as cited.
2. Significant and Substantial Violation
A significant and substantial ("S&S") violation is described in section 104(d)(l) of the Act
as a violation "of such nature as could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard." 30 U~S.C. § 814(d)(l). A violation is
properly designated S&S "if, based upon the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature." Cement Div., Nat'/ Gypsum Co,, 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:
[i]n order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (I) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard--that is, a
measure of danger to safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the m3ury m
question will be of a reasonably serious nature.

Mathies Coal Co., 6 FMSHR.C 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861F.2d99,
103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021(Dec.1987) (approving
Mathies criteria).

As discussed·above, there existed a violation of the mandatory safety standard as alleged by
the Secretary. Further, I find that a discrete safety hazard existed as a result of the violation, i.e.,
accumulations of coal rubbing against the belt and in the feeder create a significant risk of smoke
and fire in an underground mine environment. The fact that coal was drying out,. and was dry
around the edges, created a situation in which the accumulations could have been easily ignited.

32 FMSHRC Page 932

The difficulty with finding a violation S&S nonnally comes with the third element of the
Mathies fonnula. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the
Commission provided additional guidance:
We have explained further that the third element of the Mathies
formula "requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in
which there is an injury." U.S. Steel Mining Co., Inc., 6 FMSHRC
1834, 1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d)(l ), it is the
contribution of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining Co., Inc., 6
FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc.,
6 FMSHRC 1573, 1574-75 (July 1984).
This evaluation is made in consideration of the length of time that the violative condition existed
prior to the citation and the time it would have existed if normal mining operations had
continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc.,
6 FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the
particular facts surrounding the violation. Texasgu.lf, Inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
I find that the hazard described, i.e., smoke and/or fire, would reasonably result in an injury
which would have been of a serious or potentially fatal nature. Inspector Wilson credibly
testified regarding the hazard that was created by the coal accumulations he cited. Wilson stated
that the coal was dry around the edges of the tail piece and that the tail piece was wann to the
touch. The coal accUrn.ulations were alongside and underneath the belt and; in some places, were
in contact with. the belt. Frictional heat from the belt dries and heats the accumulations and, in
tum, can cause a fire. (Tr. 18-20). Additional accumulations that were drying out were also
found at the tail roller. Wilson stated that if the tail roller continued to operate in the condition
as he observed it, the coal would dry out, grind to smaller particles and easily ignite. While he
acknowledged that the general area was wet, he described a.teas that had dried or were drying
out. He explained that the coal accumulations would continue to heat up and become drier and
drier as the tail roller continued to generate frictional heat which, in tum, would make the
accumulations extremely susceptible to a.ti ignition sotirce, such as the heat generated from the
belt. (Tr. 21, 137). Wilson testified that the cited accumulations were reasonably likely to ignite
if mining operations continued. (Tr. 23-24).
Wilson suggested that, at a minimum, one would expect the hazard to result in lost work
days due to the injuries caused by the smoke from accumulations and the belt. He listed two
miners, who would respond to the fire, as those affected. However, if a belt fire were to occur,
the smoke would be thick and black, which would in turn reduce the visibility and make it
difficult for miners to breath and/or find their way out of the mine; If that were to occur, the
entire crew of 13 miners would be exposed to the hazard. (Tr. 24-25). Given that the
32 FMSHRC Page 933

Secretary's assessment considered only two persons affected, I find that the proposed penalty
should be modified to reflect the exposure of the entire crew.
Wilson's testimony is bolstered by Richard Sandy, a safety representative from the
UMWA, who was very clear about what he observed during the course of the inspection. (Tr 35,
108-109). Sandy was present when the feeder was moved for cleaning and could see that, in
addition to the coal cited by Inspector Wilson, there were further coal accumulations packed
underneath the feeder, which he believed indicated that the accumulation had existed for some
time. (Tr. 110). Sandy observed coal around the bearing block, coal that was dry and drying
out, and that the tail roller was turning in the coal. (Tr. 110). He believed that the rubbing of the
belt against the frame of the belt conveyor created a "dangerous condition." (Tr. 111-112).
Wilson and Sandy agreed that, althoughthe accumulations were wet and damp in some areas,
the accumulations were drying out in other areas and, therefore, smoke and fire were likely. I
find that if this violation were left unabated, it would continue to worsen.
Consol argues that the S&S. designation was improper given that the accumulations were, in
large part, wet and that the area around the edges of the tail roller was the only one area that was
drying out or dry. The mine argues that the wet nature of the coal reduced the likelihood of a
fire breaking out as well as the potential of such fire to spread. Finally, the mine argues that
safety measures, including rock dust, carbon monoxide monitors, and fire fighting equipment,
reduced the degree of danger presented by the violative condition. (Tr. 161-1 ~2).

Larry Jones, a member of the mine's safety department, accompanied the inspector and
described a much different scene than the one described by Wilson. (Tr. 139). In Jones' view,
the accumulations were not extensive, were wet, and were not near the tail piece or rubbing
against the rollers. I find Jones' testimony to be rehearsed and credit the testimony of Wilson
and Sandy in describing the violation and its seriousness. Photos taken by Jones, which were
offered into evidence, show the subject area from the side opposite of that viewed by the
inspector, arid at least one photo shows the coal drying out, not in the water, and against the
conveyor structure. Consol. Ex. 39, photo E.
The Commission has addressed the issue of accumulations and conveyor belts a number of
times. In Amax Coal Co., 19 FMSHRC 846(May1997), the Commission upheld an All's·
finding that a belt running on packed coal.was a potential source of ignition for accumulations of
loose, dry coal and float coal drist along a belt line, and that the condition presented a reasonable
likelihood of an injury causing event. In addition, in Mid-Continent Resources, Inc., 16
FMSHRC 1218, 1222(June1994), the Commission held that accumulation violations may
properly be designated as S&S where :frictional contact between belt rollers and the
accumulations, or between the belt and frame, results in a potential ignition source for the
accumulations. The Commission in Mid-Continent found that it was immaterial that there was
no identifiable hot spot in the accumulations because continued normal mining operations must
be taken into account when evaluating the circumstances. In the present case, if the violative
condition had been allowed to persist, it would have reasonably led to smoke, fire and,
potentially, an explosion. Further, an additional potential ignition$ource was present in the form

32 FMSHRC Page 934

of the belt rubbing the structure, which could generate a spark. hi any event, even if the coal was
wet, the Commission has recognized that wet coal can dry out and ignite. See Black Diamond
Coal Mining Co., 7 FMSHRC 1117, 1121(Aug.1985).
The mine operator argues that all of the other protections required by the Mine Act and its
regulations, which
it alleges were properly in
.
. place at the time of the order, reduced the
possibility of an injury producing event, thereby rendering it non-S&S. The Courts and the
Commission have found to the contrary. In Buck Creek Coal, 52 F.3d 133, 136 (7th cir. 1995),
the mine operator argued that carbon monoxide detectors, a fire-retardant belt, a fire suppression .
system, a fire brigade team, a rescue team, fire fighting equipment and ventilation all
undermined the likelihood of a serious injury that would result from a coal accumulation
violation. The Seventh Circuit, in upholding the decision of the ALJ regarding the serious nature
of the accumulations, determined that the fact that there were other safety measures to deal with
a fire does not mean that fires are not a serious safety hazard and, rather, the precautions are in
place because of the "significant dangers associated with coal mine fires." While extra
precautions may help to reduce some risks, they do not de facto make accumulations violations
non-S&S.
.

I conclude that the preponderance of the evidence establishes that it was reasonably likely
that the coal accumulations would result in injury causing events, and that the injuries would be
serious or fatal. I rely primarily on the testimony of Inspector Wilson in reaching this
conclusion. I find that the Secretary has satisfied the four Mathies criteria and established the
violation as S&S.
3.

Unwarrantable Failure

The term ''unwarrantable failure" is defined as aggravated conduct constituting more than
ordinary negligence. Emery Mining Corp,, 9 FMSHRC.1997, 2004 (Dec. 1987). Unwarrantable
failure is characterized by such conduct as "reckless disregard," "intentional misconduct,"
"indifference," or th~ "serious lack of reasonable care." Id. at 2003-04; Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189,194 (Feb. 1991). Aggravating factors include the length of time that
the violation has existed, the extent of the violative condition, whether the operator has been
placed on notice that greater efforts are necessary for compliance, the operator's efforts in
abating the violative condition, whether the violation was obvious or posed a high degree of
danger, and the operator's knowledge of the existence of the violation. See.Consolidation Coal
Co., 22 FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb.
1994); Windsor Coal Co., 21FMSHRC997, 1000 (Sept. 1999); Consolidaiion Coal Co., 23
FMSHRC 588, 593 (June 2001 ). All of the relevant facts and circumstances of each case must
be examined to determine if an actor's conduct is aggravated, or whether mitigating
circumstances exist. Consolidation Coal Co., 22 FMSHRC at 353.
The day the subject citation was issued, Wilson described the condition as extensive,
obvious and as having existing for an extended period of time. When Wilson and Jones arrived
in the area, Jones immediately shut down the belt. He did so because the condition was obvious
32 FMSHRC Page 935

and needed to be cleaned up immediately. Sandy described the violative condition as "plain as
day" when he arrived at the tail roller. (Tr. 111 ).
There is some dispute as to how long the conditions existed. Wilson reviewed the preshift
books and found spillage listed in the preshift record beginning on Saturday, August 16m, 2010,
and again on the 17th and 18th. Sec'y Ex. 41; (Tr. 36). Each time the'pre-shift report failed to
mention that any action was taken, leading Wilson to believe that nothing was done to correct
the problem. (Tr. 29-34). Jones explained that the reports indicated that the conditions were
"carried over" from Saturday and Sunday because the mine did not produce coal on Sunday and
the belts were not running. However, he also testified that clean-up was often conducted on
Sundays. Jones advanced the theory that the "spillage" listed on the preshift for five shifts was
somehow cleaned up and the spillage cited by Wilson occurred only on that day. However,
when pressed, Jones admitted that he didn't "think it was (the same], but [he didn't] know." (Tr.
151 ). Sandy, like other witnesses, agreed that the accumulations had been there for some time,
given that when the feeder was lifted up to begin the clean-up, the belt ''was packed full of coal
around the rollers." (Tr. 112).
Based on the fact that the preshift reports were signed by management, Wilson believed
that the mine knew of the problem and too no corrective action. He saw this as a dangerous and
obvious condition that should have been corrected immediately. He indicated that the violation
was the result ofhigh negligence because the condition had been listed in the preshift book for
five shifts, agents of the operator had been in the area, and no corrective action had been taken
by an examiner or anyone else. In Buck Creek Coal, Inc. v. FMSHRC the Seventh Circuit Court
of Appeals concluded that extensive accumulations that were present for at least one shift, and
not removed after one pre-shift examination, provided an adequate basis to establish an
unwarrantable failure :finding based on the length of time that the condition existed. 52 F.3d
133, 136 (7th Cr. 1995); see also Windsor Coal Co., 21FMSHRC997 (Sept. 1999).
Wilsoll'testified that, based on the numerous accumulations violations that the mine had
been issued prior to this one, the mine was aware that greater efforts were necessary for
compliance with accumulations. Wilson found no mitigating factors and determined that the
mine did not take accumulations seriously and made no effort to clean up the area. Based on the
testimony of the Secretary's witnesses that the accumulations existed from Saturday until the
inspector arrived on Monday, and my finding that the conditions existed as noted in the preshift
books yet nothing was done to clean up the area, I find that the mine exhibited high negligence.
Pascal Eddy, a mine foreman at Robinson Run #95, was present on the day of the issuance
and arrived at the belt tailpiece shortly after fuspector Wilson. Upon his arrival, he assessed the
area by determining what needed to be cleaned up and immediately began doing so. (Tr. 190).
In all, he called four or five miners to clean up the accumulations. It took approximately two
hours for those miners to clean the area which, I find, is a strong indication of the extensiveness
of the accumulations. Eddy confirmed that coal had been mined the shift before the inspector's
arrival and that the belts were running just prior to the inspector's arrival, although coal had not
yet been produced on that shift. (Tr. 192-195). He testified further that the accumulations were

32 FMSHRC Page 936

wet, and therefore not S&S, and that the tail piece was checked at least once each shift. (Tr.
205-209). However, he also said that he "really can't tell you when it happened." (Tr. 210).
The extensive history of assessed violations for this mine, i.e., over 100 accumulation
violations in a short period of time, lends further support to its high negligence in this instance.
Sec'y Exs. 43, 45, 46, 47 and 48. Furthermore, in examining an unwarrantable failure finding
related to section 75.400, the Commission has recognized that:
past discussions with MSHA about an accumulation problem serve
to put an operator on heightened scrutiny that it must increase its
efforts to comply with the standard. Enlow Fork Mining Co., 19
FMSHRC 5, 11-12 (Jan. 1997). Likewise, a high number of past
violations of section 75.400 serve to put an operator on notice that
it has recurring safety problem in need of correction and the
violation history my be relevant in determining the operator's
degrees of negligence. Peabody, 14 FMSHRC at 1263-64.

Consolidation Coal Co., 23 FMRSHR 588, 595 (June 2001).
All relevant facts and circumstances of each case must be examined to determine if an
actor's conduct is aggravated, or whether mitigating circumstances exist. Consolidation Coal
Co., 22 FMSHRC at 353. The record supports a finding that Consol was on notice of the
violative condition by virtue of the mine manager's signature on the pre-shift examination
reports for the five shifts in which the condition had been recorded. It has also been established
that the violation posed a significant degree of danger, in that the accumulations were reasonably
likely to lead to or propagate a mine fire or explosion. Therefore, I find that sufficient evidence
exists to support a conclusion that the cited conditions were the result of Consol's unwarrantable
failure.

b.

Order No. 6608544

On August 26, 2008, Inspector Aaron Wilson issued Order No. 6608544 to Consolidation
Coal Company, Inc., for a violation of section 75.370(a)(l) of the Secretary's regulations. The
citation alleges that:

The operator is not following the approved ventilation plan on the
15-A (073-0 mmu) continuous miner section. In the face of the #1
entry inby the #36 crosscut, only 2,160 cfin of air is being
maintained. The approved mine ventilation plan plainly states on
page 3, part 14, line D that "a minimum of 3,000 cfin will be
maintained at each working place" for development of cross-cut
centers of 275 feet with a maximum distance of 300 feet without
an air connection when driving in excess of 200 feet. Management

32 FMSHRC Page 937

was put on notice on the date of driving in excess of 200 feet.
Management was put on notice on the date of 7/30/2008 after the
issuance of citation #6608359 that the next time this condition was
observed by this inspector stronger enforcement actions would be
taken.
The inspector found that a fatal injury was reasonably likely to occur, that the violation was
significant and substantial, that two persons would be affected, and that the violation was the
result of high negligence on the part of the operator. The Secretary has proposed a civil penalty
in the amount of$15,971.00.
I. The Violation
Inspector Wilson testified that the Robinson Run #95 mine is a gassy mine and on the date
in question he was there for a 5-day spot inspection. He started in the belt entry and began
checking air velocities. The mine plan requires 3,000 cfm in idle places. Upon reaching the idle
face of the #1 entry he used an anemometer at the end of the line curtain to determine air
velocity and found only 2, 160 cfm of air. As a result of the reading, he issued the order for a
violation of30 C.F.R. § 75.370(a)(l), which requires that "the operator shall develop and follow
a ventilation plan approved by the district manager." (Tr. 325,..326). Jones also took a reading
and agreed that the area did not have the 3,000 cfm required by the ventilation plan.
The MSHA ventilation supervisor, John Hayes, testified that the ventilation plan of the
mine requires that a minimum of 3,000 cfm of air be provided at the idle places. Sec'y Ex.14,
14(D). Hayes acknowledged that there are no exceptions and therefore the lack of air was a
violation. The violation is admitted by Respondent and I accept the citation as issued by Wilson
and find that the violation occurred as stated.
·
2.

Significant and Substantial Violation 1

I have found that there existed a violation of the mandatory safety standard as alleged by
the Secretary. Further, I find that a discrete safety hazard existed as a result of the violations,
i.e., the danger of methane accumulation resulting in explosion. Third, the hazard described, i.e.,
an accumulation of methane and subsequent ignition and explosion, will result in an injury; and
fourth, that injury will be serious or even fatal. The Secretary is not required to show that it is
more probable than not that an injury will result from the violation. U.S. Steel Mining Co., 18
FMSHRC 862, 865 (June 1996).
Wilson explained, and Hayes agreed, that a hazard develops where there is an accumulation
of methane in an area without the requisite amount of air to dilute it. A miner, unaware that
methane has accumulated, may enter the area or, as often occurs, may bring a piece of equipment
into the area for use or to park temporarily. Wilson noted that this mine has a history of having
1

The law relevant to the S&S analysis is set forth in section I(a)(2) of this decision.

32 FMSHRC Page 938

impermissible equipment and he observed a roof bolting machine in the #1 entry. As Hayes
described, this is an idle area and a logical place to park equipment until it is started up and used
again. (Tr. 256). Further, equipment regularly operates near or passes by this area. (Tr. 255).
On the day the order was issued, the mine was in the process of moving the belt. Equipment was
being powered up and moved throughout the shift. At the same time, the methane level was
rising and adequate air was not being provided. Wilson found methane levels at .45, however,
an hour earlier the examiner had recorded .2, which indicated to Wilson that the methane level
was rising. (Tr. 336-3371 344). Wilson and Hayes explained that, while miners should conduct
a gas check prior to energizing equipment, the reality is that they do not do so.
Hayes, an MSHA representative who specializes in ventilation and has an engineering
degree, agreed that the violation was significant and substantial. He explained that Robinson
Run is a gassy mine, that the idle areas are important to ventilate, and that failure to keep
adequate air movement Will result in a build:..up of methane and a potentially fatal explosion. He
added that equipment is often used or parked in the area, and is restarted without knowledge as
to whether methane has accumulated to a dangerous level. (Tr. 255-256).
Consolidation added the requirement of 3,000 din of air in idle places to its ventilation plan
when it determined that it would benefit by talcing longer cuts, resulting in fewer crosscuts.
When there is no continuous miner working in the area, it is considered an idle place and subject
to the 3,000 cfm requirement. If the continuous miner is in the area, a greater quantity of air is
required. (Tr. 248-249). This method of extending the development means mining is faster
which, necessarily, equates to greater levels of methane liberation. The methane tends to reduce
over time if the area remains idle, but it could be days or weeks before the methane levels reduce
significantly. (Tr. 254). In order to control methane MSHA requires a minimum amount of air
in idle places, since equipment is running past the idle places and there is a tendency to park
equipment in those places and restart them to move them on. (Tr. 255-256).
The mine 'argues that the lower air velocity serves to sufficiently dilute methane to a nonexplosive level, that there was no float coal dust present and that, in its view, there were no
ignition sources. Michael Rene Nestor, safety supervisor at the mine, stated that the quantity
of air present was adequately diluting the methane. Jones and Nestor both testified regarding the
ventilation violations. Given their attitude and demeanor, and the fact that the majority of the
testimony they provided was in response to leading questions, I give their testimony little
weight. They both believed that the ventilation violations were not significant and substantial
because there was still air movement, and no ignition source. They require, in essence, an
imminent danger to exist in order for the violation to be significant and substantial. During
continued mining operations, air movement would continue to diminish in the idle areas, and the
methane would build, thereby creating an explosion hazard.

a

Ann Martin, a member of the UMWA and chairman of the safety committee at Robinson
Run #95, described in detail the methane problems encountered at the mine during the summer
of 2008, i.e., the time the ventilation and accumulation violations herein were issued. The
methane problem was encountered in the I SA section, where Inspector Wilson issued the two

32 FMSHRC Page 939

ventilation violations addressed in this decision. Martin explained that she received an
abnormally high number of complaints about methane liberation in the 15A section in the
summer of 2008. She described complaints of miner and bolter operators that methane was
increasing, the union fire boss was picking up more methane, and that the dinner hole had gassed
off. Further, areas in off headings and idle places were picking up more methane than the miners
were accustomed to seeing. It was a common complaint during the summer of 2008 that the roof
bolters and continuous miners would "gas off' (i.e., shut down) four to five times in a cycle
which, according to Martin, was unusual. (Tr. 305-307). The 15A section was the worst. As a
result, she and other individuals discussed the problem with management, who had also been
receiving the same complaints directly. A number of meetings were held with mine
management that summer regarding the problems. {Tr. 309-310).
The miners were afraid of what would happen as a result of the high methane readings, and
worried that something "bad" would occur if they didn't take care ofit. At one point, a curtain
was removed by a foreman and methane levels went to 7. 7%, i.e., explosive range. Martin
explained that removing the curtain is violative in and of itself, yet the mine continues to do it.
(Tr. 311).
The presence of unusually high levels of methane during a shift, and the lack of ventilation
where it was demonstrated that the methane level was rising, is a recipe for disaster when an
ignition source is added to the mix. Wilson ably explained the many ignition sources available.
The Commission and courts have observed that an experienced MSHA inspector's opinion .that a
violation is S&S is entitled to substantialweight. Harlan Cumberland Coal Co., 20 FMSHRC
1275, 1278-79 (Dec. 1998); Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135-36 (7th Cir. 1995).
Wilson certainly qualifies as an experienced MSHA inspector and I accept his assessment that .
the violation was significant and substantial.
3. Unwarrantable Failure2
Robinson Run has been issued many previous citations for ventilation plan violations and,
specifically, for violations of the particular provision in the ventilation plan that is at issue in this
matter. (Tr. 327-328). The mine was aware that there was heightened concern about methane
during the months preceding the violation. Wilson and other inspectors had met with the mine to
discuss ventilation problems prior to the issuance of the citations here. For that reason, and other
reasons that follow, I find that the violation was a result of the unwarrantable failure of the mine.
fuspector Wilson and other inspectors, through communications with the mine, put the
mine on notice that compliance with the ventilation plan was a problem that needed to be
corrected. Wilson told management directly that he would take harsher action if it continued.
(Tr. 402). He testified that "[t]he basis of [him] writing [the order] as unwarrantable failure was
... the previous violation history, the conversation [he] had with management, and the fact that
2

The law relevant to the unwarrantable failure analysis is set forth in section I(a)(3) of this decision.

32 FMSHRC Page 940

management instituted nothing to prevent this condition, which [he had] cited multiple times,
from recurring." (Tr. 402). As Martin described, it had been brought to the attention of
management that this particular section of the mine was experiencing increased methane
liberation around the time the order was issued. The mine however, denies that discussions took
place regarding methane and the ventilation plan violations issued by Wilson.
In AMAX Coal Co., an evenly divided Commission affirmed an ALJ's finding that an
operator's admitted violation of its ventilation plan resulted from ..unwarrantable failure" where
the section foreman knew that a line curtain had not been advanced. 19 FMSHRC 1542
(Sept.1997). There, the ALJ had found that the violation was "obvious" and that the evidence
showed the section foreman had been in the entry for five minutes, ignored the condition and, in
so doing, miscalculated the risk involved. Id. The Robinson Run #95 mine is a gassy mine
subject to 5-day spot checks by MSHA and was experiencing unusual levels of methane: By
ignoring the violative condition, the operator ignored the risk of a methane explosion.
In C.W. Mining Co., Commission ALJ Manning found that an operator unwarrantably
failed to comply with its ventilation plan where previous citations had placed it on notice that it
needed to do more to ensure adequate ventilation. 7 FMSHRC 138 (Feb. 2005) (ALJ). Hayes
testified that, in reviewing the mine's history of violations of its ventilation plan, it was clear that
this mine had been issued many, many violations under that specific provision at issue, i.e.,
paragraph 14(D) of the ventilation plan. He described violations of the provision that were
issued on June 4, June 24, July 9 and July 30 of2008. (Tr. 268-269). All of these violations
were issued at a time when the mine was experiencing excessive methane liberation during
mining. In addition, the mine was issued other ventilation violations during this time frame. See
Sec'y Ex. 15-35. Finally, during 2007 and thfough 2008 up until the time this order was issued,
the mine had received eleven citations and orders for not having 3,000 c:fin at the idle working
places as required by the plan. Further, there had been three face ignitions reported in the
development sections in the eighteen months prior to this violation. As described below, Wilson
issued a citation for violation of the same provision again in September. (Tr. 338-339).
The danger posed by the condition has been addressed in the S&S findings. It is unknown
how long the condition existed, but it is clear from the methane readings that the methane levels
were nsmg. The mine took no action to correct the violation and Wilson found no mitigating
factors.
Todd McNair, the mine superintendent, testified on behalf of the company that he was
aware that the methane liberation had increased in the face area of the 15A section. While he
didn't recall any complaints, he did recall speaking to the miners working at the face and trying
various changes to help allay their fears. (Tr. 481-485). He was aware that fuspector Mehaulic
issued a citation on July 30, but the meeting held with him was not due to the Citation; rather, it
was to talk about Ventilation and suggestions for controlling the methane. In essence, McNair
denies that the mine had any notice that it was required to take additional steps to address the
ventilation violations. McNair didn't recall talking about paragraph 14(D) of the vent plan with
Mehaulic or with Wilson. Instead, he asserted that the conversations were all geared toward the

32 FMSHRC Page 941

face where coal was being produced, and not the idle areas referred to in this violation issuance
or the previous ones. McNair could not remember any meetirig with Wilson about controlling
methane in l 5A section. I find McNair' s testimony was almost exclusively leading and he
recalled very little, therefore, I afford it little weight.
The attitude of management toward the importance of ventilation is troubling. The
testimony of both McNair and Nestor, the safety supervisor, do not demonstrate any serious
concern about the ventilation issues raised by MSHA. Instead, the mine management attempts
to put the burden on the miners and argues that the mine addressed the methane issues as the
miners sought to have them addressed. They simply don't believe it is a serious matter.
I credit the testimony .of Wilson, which is contrary to both Nestor and McNair.
Management demonstrated a serious lack of interest in the safety of the miners, and in following
the ventilation plan. Nestor and McNair insist they did not attend a meeting with Wilson where
they discussed the ventilation in the idle places. (Tr. 526). I credit Wilson's memory of the
event and his notes that clearly point to the fact of the meeting. (Tr. 347). The mine obviously
gave little credence to what Wilson or Mehaulic had to say about ventilation and, specifically,
about ventilation in the idle faces.
The record supports a finding that Consol was on notice of the need to address the violative
condition by virtue of the numerous citations issued in the months prior to this violation and the
meetings with MSHA inspectors. Consol admitted that its efforts consisted of only attempting to
deal with the higher than normal methane liberation and did not address this portion of the
ventilation plan. It has also been established that the.violation posed a significant degree of
danger, and that the violation was obvious. Further, the mine, by way of the management's
actions and testimony, has demonstrated an attitude that the subject section of the ventilation
plan was of little importance. Therefore, I find that sufficient evidence exists to support a
conclusion that the cited conditions were the result of Consol's unwarrantable failure.

c.

Citation No. 6608551

On September 4, 2008, Inspector Aaron Wilson issued Citation No. 6608551 to
Consolidation Coal Company, Inc., for a violation of section 75.523-3(b)(3) of the Secretary's
regulations. The citation alleges that:

[t]he automatic emergency parking brakes, when applied using the
panic bar, does not engage and bring the equipment to a complete
stop. During several attempts, the scoop would continue to roll up
hill after the panic bar was hit, stop due to gravity or terrain, then
roll back down grade. The operator removed the scoop from
service.

32 FMSHRC Page 942

The inspector found that an injury was reasonably likely to occur, that the violation was
significant and substantial, that one person would be affected, and that the violation was the
result of moderate negligence on the part of the operator. The Secretary has proposed a civil
penalty in the amount of$1,203.00.
1. The Violation
Inspector Wilson testified that, while checking a scoop, he found that the emergency/panic
bar did not engage when tested several times. When the scoop was on an incline it traveled
uphill and then rolled back down. The panic bar is within easy reach of the scoop-operator, who
can operate it by tapping it with his hand. The panic bar is intended to stop the scoop in an
emergency but it also functions as a common way to shut down the scoop. This scoop had been
used during the shift prior to the inspection to haul equipment and supp lies to another area of the
mine. Wilson issued a citation for a violation of75.523-3(b)(3), which requires that "automatic
emergency-parking brakes shall - safely bring the equipment when fully loaded to a complete
stop on the maximum grade on which it is operated." 30 C.F.R. § 75.523(b)(3).
The parties agree that a violation did occur. The only issue before me is whether the
violation is significant and substantial.

2.

Significant and Substantial Violation3

As discussed above, there existed a violation of the mandatory safety standard as alleged by
the Secretary. Further, I find that a discrete safety hazard existed as a result of the violation, i.e.,
the danger ofbeing unable to safely stop the equipment in an emergency.
As is often the case, the primary issues in the S&S analysis is whether the violation is
reasonably likely to result in an injury causing event, i.e., runaway equipment injuring another
miner or injuring the operator of the equipment. The Secretary maintains that the nonfunctioning brake would have resulted in an inability to safely stop the scoop, especially in an
emergency situation where the driver would use it to avoid hitting a miner or running into the rib
or other equipment.
The operator argues that a separate brake can be used to stop the scoop and it is not likely
that there will be anyone or anything in the way of the machine. Further, the operator argues
that there were no other safety violations for the equipment, the area was very flat and, prior to
using the equipment, the next equipment operator would have conducted a check and discovered
the defective brake.

3

The law relevant to the S&S analysis is set forth in section I(a)(2) ohhis decision.

32 FMSHRC Page 943

The subject scoop is used to haul mining equipment to and from rail-mounted cars. A
spotter directs the scoop operator during loading and unloading. The panic bar is designed to be
used in an emergency, but it is commonly used to shut down the equipment during everyday use.
Wilson described the scoop as a heavy piece of equipment which, if its panic bar is not
functioning properly, would cause crushing injuries, which would be "at least permanently
disabling if not worse," to any individual that it hits. Further, in the event the scoop cannot be
stopped and it slams into a rib or a rail-mounted car, the scoop operator, as well as any person in
the way, would be severely injured. The inspector explained that the violation is reasonably
likely to occur and result in an accident because miners expect the safety device to work.
However, when the panic bar does not work, miners naturally panic and don't have enough time
to stop or shut down the scoop in another way. (Tr. 57). Inspector Wilson noted that it wasn't a
question of the panic bar brakes being slow or loose; rather, the issue was that the brakes never
engaged. (Tr. 54). While the scoop was not operating at the time of the inspection, Jacquez
testified that he "hop[ed]" that the last operator prior to the inspection had checked the panic bar
brake prior to use. (Tr. 235).
I find that the preponderance of the evidence establishes that it was reasonably likely that
the hazard created by the non-functioning panic bar would contribute to an injury in the event of
an emergency. I rely on the testimony of Inspector Wilson in reaching this conclusion. He
believed that a miner directing the scoop or walking in the area could be crushed by the scoop if
the scoop operator were not able to engage the brakes through the use of the panic bar. In
addition, the operator of the scoop would be in danger if the scoop did not stop and ran into a
wall or other piece of equipment. Wilson credibly testified that there were uphill slopes in the
area and that the scoop operator would rely on the panic bar to stop. Further, "hoping" that a
scoop operator would have checked the brake prior to operation does not convince me that an
operator would have done so. I am persuaded by Wilson's argument and find thatthe third
Mathies requirement is met. .Also, as discussed above, I find that arty injury would be a serious
one, and permanently disabling at best. I therefore find that the violation was significant and
substantial. ·

d.

Citation No. 6608553

On September 4, 2008, Inspector Aaron Wilson issued Citation No. 6608553 to
Consolidation Coal Company, Inc., for a violation of section 75.1002(a) of the Secretary's
regulations. The citation alleges that:
[t]he #2 bolter (serial # 83092, approval # 2G-26740-A-4) being
operated on the 13-A (084-0 mmu) longwall recovery face is not
being maintained in permissible condition. There is an opening of
greater than 0.008" in the step flange joint in the permissible cover
for the area light opposite the operator[']s compartment in front of
the cable reel compartment.

32 FMSHRC Page 944

>;

The inspector found that an injury was reasonably likely to occur, that the violation was
significant and substantial, that two persons would be affected, and that the violation was the
result of moderate negligence on the part of the operator. The Secretary has proposed a civil
penalty in the amount of$1,304.00.
I. The Violation

. j

Inspector Wi1son testified that he issued this 104(a) citation for a roof bolter in the
recovery face that was not in permissible condition. Permissible condition is vital because it
prevents a possible ignition of methane as the equipment is energized. In this case, the cover
that encloses the light on the roof bolter contains the flame path between the cover and the
enclosure when it is permissible. That path must be .007'' or less, but when Wilson measured·
the gap with a feeler gauge, he found it be .008". Section 75.1002(a) requires that "[e]lectric
equipment must be permissible and maintained in a permissible condition when such equipment
is located within 150 feet of pillar workings or longwall faces." 30 C.F.R. § 75.1002(a).
The parties agree that a violation did occur. The only issue before me is whether the
violation is significant and substantial.
2. Significant and Substantial Violation4

I have found that there was a violation of themandatoiy standard as alleged by the
Secretary. Further, I find that a discrete safety hazard existed as a result of the violations, i.e.,
the danger of allowing an ignition source to be available. in this gassy mine, ·

;

The Secretary must demonstrate that the hazard described, that of an ignition created by the
impermissible equipment, is reasonably likely to result in an injury causing event. The purpose
. of the regul.atio:n cited· by Wilson is to prevent equipment that is exposed to methane from ··•·
allowing the spark: or .flame path in the •light to igllite the methane. As Wilson .described, the·.
electrical components.of the light will likely create a spark which will ignite methane that has·
migrated into the area. (Tr. 61-63). Simply stated, permissibility is designed to limit the number
of ignition sources in a gassy mine. Given the location of the bolter, and the fact that methane is
often emitted as the bolter drills into the roof, it's highly likely that the ignition source in the
light will be exposed to meth~e, thereby making an ignition and subsequent explosion likely to
occur. When.an ignition does occur it will cause a burn injury to, at a minimum, the two persons
assigned to work on the roof bolter. (Tr. 66): Given that methane is emitted as a roofbolter ·
drillslinto the coal, as well as the gassy nature of this particular mine, the -likelihood of an
explosion related to an ignition source provided by the roof bolter is greater than that of other
equi1'ment. (Tr. 64). In light of the conditions at this mine; and assuming the continued course
of mining, there is a reasonable likelihood of an injury occurring as a result ofthe permissibility
violation.

4

The law relevant to the S&S analysis is set forth in section I(a)(2) of this decision.

32 FMSHRC Page 945

Consol asserts that the permissibility violation does not create the likelihood of an
explosion because there is adequate ventilation, no arcing was observed, no methane was .
detected and the roof bolter operator would have checked for methane before starting up the
equipment. (Tr. 228). Jacquez explained his belief that, since there·were no other defects in ti
equipment and this type of problem would normally be detected and repaired in the weekly
permissibility check, it was unlikely that the violation would have remained unabated long
enough for an accident to occur. I accept Wilson's opinion as to the likelihood of the ignition
occurnng..
I find that the preponderance of the evidence establishes that it was reasonably likely that
the hazard presented by the lack of a permissible light on the roof bolter would contribute to 3.1
injury and that the injury would be permanently disabling or fatal. I find that the Secretary has
satisfied the four Mathies criteria and established the violation as significant and substantial.

e.

Citation No. 8014053

On September 17, 2008, Inspector Aaron Wilson issued Citation No. 8014053 to
Consolidation Coal Company, Inc., for a violation of section 75.370(a)(l) of the Secretary's
regulations. The citation alleges that:

The operator is. not· following the approved ventilation plan on the
15-A (073-0 mmu) continuous miner section. 3,000 cfin of air is
not being maintained ·in the #2 entry inby 40 cross-cut. When
checked by this inspector, there was not enough air flow at the end
of the line canvas to spin the wheel of an anemometer.
The inspector fo1Jlld that an injury was reasonably likely to occur, that the violation was
significant and substantial, that one person would be affected, and that the violation was the
result of low negligence on the part of the operator. The Secretary has proposed .a civil penalty
in the amount of $7,578.00.
1. The Violation
Wilson testified that he issued the subject citation for failing to meet the requirements of
paragraph 14(D) of the mine's ventilation plan, Sec.'y Ex.14, 14(D). As Wilsonwalked to the
face, the miners w~e moving from the #2 entry to the #l entry and were ·attempting to move th<:
auxiliary fan, which provides air to the working face, and, in so doing, caused the air to short
circuit,. ~lowing down the ventilating curtain in the #2 entry, resulting in no air movement in tha
now idle face. Wilson found that the mine violated section 75.370(a)(l}which requires "the
operator shall develop and follow a ventilation plan approved by the district manager." 30 C.FJ~
§ 75.370(a){l)

32 FMSHRC Page 946

The parties agree thatthere was not the 3,000 cfin required by the ventilation plan in the·
area. ·The violation is admitted by Respondent and I accept the citation as issued by Wilson and
find that the violation occurred as stated.
2. Significant and Substantial Violation5
As discussed above, there existed a violation of the mandatory safety standard as alleged by
the Secretary. Further, I find that a discrete safety hazard existed as a result of the violation, i.e.,
the danger of respirable dust in the air as well as methane accumulation resulting in explosion.
Third, the hazards described will result in an injury; and fourth, that injury will be serious or
even fatal. Much of the discussion above regarding the significant and substantial violation of
this same standard, and identical provision of the ventilation plan, relates here.
Inspector Wilson found that there was not enough air to move the settings on his hand-held
anemometer and, therefore, the required cfi:n of air was not reaching the two entry face. (Tr.
355). The miners working in the area were in the process of moving the auxiliary fan that was
used to ventilate the working face. As he approached the face, Wilson observed two miners
struggling while attempting to hook the "baloney skin" to the back of the fan in order to direct
air. When they could not successfully attach the skin, they dropped it and returned to other jobs.
(Tr. 356). Their actions caused a short circuit of air which, in turn, blew down the ventilating
curtain in the #2 entry. Wilson opined that this system is not a good one. He had spoken to
Todd McNair, the superintendent of the mine, about the location of the fans during phases of
mining, but McNair was not interested in Wilson's suggestions. (Tr. 359).
Wilson found I% of methane and testified that, if left unabated, the methane would
continue toaccumulate and quickly reach explosive levels. (Tr. 361). Once it reached those
levels, there were a number of ignition sources in the area, including the roof bolter that was in
place and ready for service, andthe energized auxiliary fan found in the last open cross cut.
While the bolter and fans are required to be maintained in permissible condition, this mine is not
good about doing so. (Tr. 364~365). Wilson testified that the equipment operators in this area
should take a methane reading before energizing the bolter but, in his experience, the equipment
operator flips the switch at the power center several cross-cuts away and then walks to the
bolting machine without first going to the bolter to take a reading. As a result of the methane
build-up and an ignition source, an explosion would certainly cause fatal injuries to at least the
two miners working in the area. I credit Wilson's testimony that the condition created by the
violation, i.e., the accumulation of methane in an area with ignition sources easily accessible,
'
would result in an iajury-causing event.
Consol argues that the methane levels were not high enough and that the possibility of an
ignition was remote. The mine points to the fact that the equipment was permissible, and that
the condition was created just as Wilson approached the area, and would have been corrected.
Nestor testified on behalf of Consol that the violation was not S&S because the inspector did not
5

The law relevant to the S&S analysis is set forth in section I(a)(2) of this decision.

32 FMSHRC Page 947

fear for his own safety. He also testified that the mine "took care of the problem," as soon as
Wilson pointed it out. The Secretary is not required to show that it is more probable than not
that an injury will result from the violation. US. Steel Mining Co., 18 FMSHRC 862, 865 (June
1996). Nestor tried to avoid responsibility for the ventilation violations and his attitude is
evident in the miners working in the area who moved a fan without regard to the consequences.
Nestor also suggested the limited view that the methane problems in the face had nothing to do
with the ventilation in idle places. I find that the Secretary has satisfied the four Mathies criteria
and established the violation as S&S by a preponderance of the evidence..
3. Additional Negligence Findings
This mine has been issued a series of citations and orders for failing to comply with paragraph
14(D) of its ventilation plan. A similar violation, issued shortly before this one, is addressed
supra. For purposes of penalty, I find that the there is far greater negligence them assessed
originally. Further, given the problems at this mine with high methane levels during this time.
period, management had a responsibility to see that everyone was involved in following the
ventilation plan. Wilson testified that he had issued a number of citations for failing to meet the
3,000 c:fm required in idle places. The mine disregarded the MSHA inspector's instructions
regarding adherence to this particular section of the ventilation plan and did not see that the
miners were aware of the ventilation plan's requirements ..
The Commission and the courts have uniformly held that mine operators are strictly liable
for violations of safety and health standards. Asarco v. FMSHRC, 868 F.2d 1195(10'11 Cir. 1989).
"When a violation of a mandatory safety standard occurs in a mine, the operator is automatically
assessed a civil penalty." Id at 1197. In the instant case, any negligence on the part of the
miners who changed the ventilation by moving the fan, is attributed to the operator. Given that
the mine was experiencing linusually high levels of methane, that MSHA inspectors continued to
raise the issue of ventilation and had issued a number of citations for violations of the subject
paragraph of the ventilation plan, along with the fact that the mine has the responsibility to
ensure that all miners are aware of the plan and how to comply with such, I find the negligence
to be moderate, rather than low.

II. PENALTY

The principles governing the authority of Commission administrative law judges to assess
civil penalties de novo for violations of the Mine Act are well established. Section 110(1) of the
Mine Act delegates to the Commission and its judges "authority to assess all civil penalties
provided in [the] Act." 30 U.S.C. § 820(1). The Act delegates the duty of proposing penalties to
the Secretary. 30 U.S.C. §§ 815(a) and 820(a). Thus, when an operator notifies the Secretary
that it intends to challenge a penalty, the Secretary petitions the Commission to assess the
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:

32 FMSHRC Page 948

[l] 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(1).
fu 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 findings on the statutory
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
purpose[s] ... [of] the Act. Id. at 294; Cantera Green, 22 FMSHRC 616, 620 (May 2000).
The parties entered into an agreement as to four of the violations. The Secretary has filed a
motion to approve settlement and has agreed to modify Citation No. 6608546 to non-S&S with a
penalty of $308.00, to modify Citation No. 8014049 to fewer persons affected with a penalty of
$243.00, and to modify Citation No. 6608422 to a non-S&S violation with a $308.00 penalty.
Consol agrees to pay Citation No. 6607663 as issued with a penalty of$4,000.00. The original
proposed assessment amount for these four citations is $8,721.00 and the proposed modified
amount is $4,859.00. I have considered the representations and documentation submitted and I
conclude that the proposed settlement is appropriate under the criteria set forth in section 11 O(I)
of the Act. The motion to approve settlement is GRANTED and Consolidation Coal, is hereby
ORDERED to pay the Secretary of Labor the sum of $4,859.00 for these four violations.
I accept the stipulation of the parties that the penalties proposed are appropriate to this
operator's size, i.e., large, and ability to continue in business. The violations were abated in
good faith, and no evidence has been presented to the contrary. The history shows a number of
citations for ventifation violations as discussed above. I find that the following penalties are
appropriate in this case, given the statutory criteria.
·
Order No. 6608537: I assess a penalty of$7,500.00 based upon the negligence and gravity
findings discussed above, the extensive and obvious nature of the accumulation, and the fact that
a fire at this location would affect everyone working in the mine.
Order No. 6608544: I assess a penalty of$16,000.00 based upon the high degree of negligence
and the gravity of the violation.
Citation No. 6608551: I assess a penaltyof$1,203.00 as proposed by the Secretary for the
reasons set forth above.
Citation No. 6608553: I assess a penalty of 1,304.00 for the reasons set forth above.

32 FMSHRC Page 949

Citation No. 8014053: I assess a penalty of$10,000.00 based upon the negligence for this
violation. Although the ventilation change was made by non-management personnel, it is
management's responsibility to assure that all persons are familiar with the ventilation plan and
the nature of any changes made. I find that the negligence is moderate, rather than the low
negligence assessed by MSHA.

A total of $36,007.00 is assessed for the violations that were heard and decided herein. The
total penalty for this docket amounts to $40,866.00.

ill.ORDER
Based on the criteria in section l lO(I) of the Mine Act, 30 U.S.C. § 820(I), I assess a
penalty of $40,866.00 for the nine violations in this docket. Consolidation Coal Company is
ORDERED TO PAY the Secretary of Labor the sum of$40,866.00 within 30 days of the date
of this decision. 6

Distribution:
Jodeen Hobbs, Office of the Solicitor, U.S~ Department of Labor, 170 S. Independence Mall
·
West, Curtis Center, Suite 630 East, Philadelphia, PA 19106
Carol Marunich, Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501

6

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

32 FMSHRC Page 950

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

July26, 2010
DISCRIMINATION PROCEEDING

TIMOTHY S. SHEFFER,
Complainant,

Docket No. KENT 2010-15-D
Case No. MADI-CD-2009-13

v.
ADVENT MINING, LLC,
Respondent

Mine ID 15-18547
Mine: Onton #9

DECISION GRANTING RESPONDENT'S MOTION TO DISMISS
ORDER OF DISMISSAL
Before: Judge Paez
This proceeding is brought by Timothy S. Sheffer ("Sheffer" or "Complainant") against
Advent Mining, LLC ("Advent'' or "Respondent"), pursuant to section 10S(c)(3) of the Federal
Mine Safety and Health Act of 1977 ("the Mine Act" or "the Act"), 30 U.S.C. § 815(c)(3), and
29 C:F.R. § 2700.40 et seq. Sheffer alleges that due to prior physical disabilities, including a
crushed hand and a seizure disorder, he was discriminated against and terminated from
employment at Respondent's Onton No. 9 facility. Respondent filed a motion to dismiss in
which it denies Sheffer' s claims of discrimination but argues that, even if they are accurate, he is
not entitled to relief under the Mine Act. Sheffer filed a transcript of his discussion with a Mine
Safety and Health Administration ("MSHA") investigator and a statement to support his claim.
At issue is whether Sheffer has stated a claim which, if true, would constitute
discrimination under section 1OS{c) of the Act. Commission Procedural Rule 42 requires
Sheffer to submit a short and plain statement of the facts, setting forth the alleged discrimination
and a statement of the reliefrequested. 29 C.F.R. § 2700.42. 1 Should Sheffer's complaint fail to
meet this minimal burden, the case may be dismissed for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6).2 Fed. R..Civ. P. 12(b)(6).

1

Commission Procedural Rule 42 provides as follows: "A discrimination complaint
shall include a short and plain statement of the facts, setting forth the alleged discharge,
discrimination or interference, and a statement of the relief requested." 29 C.F.R. § 2700.42.
2

Commission Procedural Rule 1(b) directs that in the event the Mine Act does not
control on a question of procedure, "the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure." 29 C.F.R. § 2700.l(b).

32 FMSHRC Page 951

For the reasons discussed below, I determine that Sheffer has not stated a claim that can
be granted relief under section 105(c) of the Mine Act. Accordmgly, I grant Respondent's
Motion to Dismiss. The facts below are either not in dispute or are facts provided by Sheffer.

I.PROCEDURALBACKGROUND
On June 18, 2009, Sheffer filed a discrimination complaint with MSHA after Advent laid
off employees, including Sheffer, during April 2009 in what Advent claims was an economically
motivated reduction in its workforce. (Resp't Mot. to Dismiss at 1.) MSHA conducted an
investigation, which included an interview of Sheffer, and notified Sheffer by letter dated
September 15, 2009, that it had found no violation of the Mine Act. (Letter from Carl E. Boone,
II to Tim Sheffer of Sept. 15, 2009; Resp't Mot. to Dismiss: Ex. B.)

After being informed that the Secretary of Labor did not intend to file a discrimination
complaint on his behalf, Sheffer filed his own complaint with the Federal Mine Safety and
Health Review Commission ("Commission'') on October 1, 2009, pursuant to section 105(c)(3)
of the Mine Act, 30 U.S.C. § 815(c)(3). (Resp't Mot. to Dismiss: Ex. C.) Sheffer retained an
attorney, Kyle F. Biesecker, who entered his appearance and submitted a detailed list of the
relief sought by Sheffer on November 2, 2009. (Resp't Mot. to Dismiss: Ex. E.) On November
17, 2009, Advent filed its motion to dismiss. Attorney Biesecker did not file a response to the
motion. This case was assigned to me on February 1, 2010. In response to my law clerk's
inquiry on the status of this case, Attorney Biesecker filed a notice on March 8, 2010, that he had
withdrawn from his representation of Sheffer. (Notice of Withdrawal as Att'y.) By letter dated
March 19, 2010, my law clerk provided Sheffer with a copy of the motion to dismiss and
requested a response. (Letter from Shannon Fitzgerald to Tim Sheffer of Mar. 19, 2010.)
Sheffer responded by facsimile on March 26, 2010, in a handwritten note that stated, "I disagree
with the motion to dismiss and would like to proceed with this case."
Due to the skeletal nature3 ofSheffer's complaint, his prose status, and the lack of any
factual statement in Sheffer' s response to the motion to dismiss, I issued an Order to Show
Cause why this case should not be dismissed on April 28, 2010. Specifically, I instructed
Sheffer to present a short and plain statement of the facts, setting forth the alleged discrimination
or discharge, in compliance with Commission Procedural Rule 42.4 In response, Sheffer
3

The complaint in its entirety states as follows: "I am requesting an appeal on the
decision by MSHA. I have read Section 105(c) over and over and I see discrimination all
through this section. If the agency can't see that there was definite discrimination in my case, or
does not fall within your rules, would you please direct me to the proper authority.. There is
definitely a case here." (Resp't Mot. to Dismiss: Ex. C.)
4

Sheffer was given 10 days to respond upon his receipt of the Order to Show Cause.
Sheffer received the Order on May 12, 2010. On May 17, 2010, he called to ask for an extension
of time, which was granted. Sheffer thus had until May 27, 2010 to respond in a timely manner,
which he did.

32 FMSHRC Page 952 .·

submitted to the Commission a copy of a Freedom of Information Act ("FOIA") request. The
request was for a transcript of his interview taken by MSHA on June 29, 2009, during its
investigation of his case. Thereafter, Sheffer submitted a statement along with the transcript on
June 17, 2010. 5 Given Sheffer's prose status and that he was awaiting a reply from MSHA to
his FOIA request, I accept these documents as Sheffer' s response to my order to show cause and
have considered them in my examination of this case. The facts below are those set forth by
Sheffer in these collective pleadings, also referred to a8 "Complainant's Response."

II. STATEMENT OF FACTS
In February 2006, Sheffer began work at Advent's Ontort #9 Mine. (Compl. Resp. 3.) In
his more than three years with Advent, he worked underground as a roof bolter and car driver.
(Id.) At the time of his interview with MSHA, Sheffer was 41-years old and had been working
in the coal mines for ten years. (Id. at 3, 6.)
Sheffer has suffered throughout his adult life from a medical condition which causes him
to have seizures, and he takes medication to control his attacks. (Compl. Resp. 4, 11.) While
employed at the Onton #9 Mine, he suffered at least two attacks. (Id. at 1, 4, 11.) fu addition,
one of Sheffer' s hands was crushed in a prior accident at another mine, a fact he brought to
Advent's attention during his employment. (Id. at 9.) Otherwise, Sheffer has tried not to let his
disabilities interfere with his work, his attitude being to "deal with it and carry on."· (Id. at 1.)
While assigned to the position of roof bolter, Sheffer requested that he be given other
work. (Compl. Resp. 14.) "I begged and pleaded you know to get me off ofit. They were
wearing me out." (Id.) Advent eventually responded by assigning him to a shuttle car after his
co-worker made the request. (Id.) However, according to Sheffer, he and his co-worker were
given inferior equipment after being assigned to a shuttle car and then were harassed for not
meeting production standards. (Id.) "[T]he whole time they are hammering us to run coal, ruri
coal and it was impossible; So now we've got reputations of we are no good." (Id.)
Sheffer alleges that during his employment less experienced miners were promoted ahead
of him, and although he was "griped at" for being slow, he was a steady roof bolter yet was often
reprimanded or written up for common work mistakes that were overlooked when displayed by
other miners. (CompI. Resp. 2, 9-10, 12-16.) He was also frequently required to take drug tests
during the course of his employment, usually after sustaining minor injuries. (Id. at 11.) On at
least one occasion around Father's Day the year before, Sheffer communicated to a supervisor
that he felt he was being singled out, and for sometime thereafter ''they all left [him] alone." (Id.
at 8.) In addition to his medical condition, Sheffer states that management's animus toward him
may stem from his family's antagonistic history with one supervisor who had fired Sheffer at
another mine and then was hired by Advent sometime after Sheffer began working at Advent.
(Id. at 12-16.)
5

On June 17, 2010, Respondent filed its Statement in Opposition to Complainant's
Untimely Response to Order to Show Cause of April 28, 2010, wherein it renews its motion to
dismiss.
32 FMSHRC Page 953

Advent terminated Sheffer on April 25, 2009, along with about 20 other employees.
(Compl. Resp. 4-5.) Three weeks prior to his termination, he suffered a seizure while
underground, an event which he believes prompted Advent to fire him. (Id.) He takes
medication for his seizures, and in the past only suffered them when he forgot to take his
medication. (Id. at 11.) Sheffer had suffered a seizure above ground about one year after he had
started with Advent, when he was taken to the hospital and underwent a drug test at that time.
(Id.) Sheffer argues that instead of firing him, "a simpler solution would have been to give me a
lesser job with lesser pay if need be." (Id. at 4.) He adds that he suffered harassment in the form
of a "hostile" and "intimidating" workplace environment. (Id. at 2.) Sheffer alleges these facts
constitute "obvious discrimination and can be proven." (Id.) In support of this contention,
Sheffer lists damages, including an amount for "pain, suffering, and emotional distress" and cites
to Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the
Americans with Disabilities Act. (Id. at 1-2.)

III. PRINCIPLES OF LAW
Section J05(c) oftheMineAct
In drafting the Mine Act, Congress recognized the need to protect miners who report
safety violations, arguing "if miners are to be encouraged to be active in matters of safety and
health, they must be protected against any possible discrimination which they might suffer as a
result of their participation." S. Rep. No. 95-181, at 35 (1977), reprinted in 1977 U.S.C.A.A.N.
3401, 3435. Section 105(c) of the Mine Act thus prohibits discrimination against miners for
exercising any protected right under the Act. 30 U.S.C. § 815(c).
A miner alleging discrimination under the Mine Act establishes a prima facie case of
prohibited discrimination hy presenting evidence sufficient to support a conclusion that he
engaged in protected activity and suffered adverse action motivated in any part by that activity.
Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Secy ofLabor v.
United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981 ); Sec '.Y ofLabor v. Consolidation
Coal Co., 2 FMSHRC 2786, 2797-800 (Oct. 1980), rev'd on other grounds sub. nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981).

Motion to Dismiss
When a complaint alleges facts that cannot possibly amount to a violation of any legal
right, the opposing party may move to dismiss the complaint for failure to state a claim. Fed. R.
Civ. P. 12(b)(6); Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, both the Supreme
Court and the Commission have explicitly held that this form of dismissal is very difficult to
achieve, particularly when the complainant has filed pro se. Ribble v. T & M Dev., 22 FMSHRC
593 (May 2000); Perry v. Phelps Dodge Morenci, Inc., 18 FMSHRC 1918 (Nov. 1996). In
Ribble, the Commission quoted from its earlier decision in Perry regarding Rule (12)(b)(6):

32 FMSHRC Page 954

It is well settled that "[t]he motion to dismiss for failure to state a claim is viewed
with disfavor and is rarely granted." The Supreme Court has held that "a
complaint should not be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Additionally, we hold the pleadings of prose
litigants to less stringent standards than pleadings drafted by attorneys. In cases
brought by pro se complainants, motions to dismiss for failure to state a claim
should rarely be granted. Instead, in such a case, a judge should ensure that he
informs himself of all the available facts relevant to his decision, including the
·complainant's version of those facts.

Ribble, 22 FMSHRC at594-95 (quoting Perry, 18 FMSHRC at 1920 (internal citations
omitted)). Consequently, the threshold for dismissal under Rule 12(b)(6) is high; it must be clear
that no legal relief can be granted, even after all allegations made by the complainant are
assumed to be true, and all necessary inferences made in the complainant's favor. Erikson v.
Pardus, 551 U.S. 89, 94 (2007); Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

IV. ANALYSIS
Because Sheffer is a pro se complainant opposing a motion to dismiss, the entire record
must be read and considered in the light most favorable to him. Ribble, 22 FMSHRC at 594-95.
Sheffer does not need to establish his prima facie ca.Se at this stage, although he is obligated to
meet the minimal pleading requirements of Commission Procedural Rule 42, 29 C.F.R.
§ 2700.42. Id. at 595. This means he must provide at least some fact, or set of facts, that could
constitute an allegation of discrimination.
Although Sheffer lists his claims against Advent in his complaint, I have in my review
also considered the claims and facts he asserts in his statement of facts and interview transcript
with MSHA. (Compl. Resp. 1-20.) In these pleadings, Sheffer relates how he has coped with a
number of especially difficult circumstances. If his allegations are true, they detail a lamentable
state of affairs and render his frustration -understandable. Nevertheless, the Mine Act was not
drafted to remedy any of the inequities he describes, and as such, I am precluded from finding a
·
possible violation of section 105(c ). ·

Protected Activity and Work Refusal Doctrine
A finding that Advent discriminated against Sheffer would require that Sheffer
(1) engaged in a protected activity and (2) suffered adverse treatment as a result of the protected
activity. Sec'y ofLabor v. Consolidation Coal Co., 2 FMSHRC at 2797-800. In his list of
allegations and throughout his interview, Sheffer claims he suffered discriminatory treatment as
a result of his medical condition and injured hand. However, this cannot amount to
discrimination under section 105(c) if it is not based on a protected activity. Here,· no protected
activity with regard to mine safety and health, real or perceived, is even alleged. Rather, Sheffer
states in the MSHA transcript his belief that management's animus toward him may stem from a
combination of his seizure disorder and his and his family's antagonistic history with one of his
32 FMSHRC Page 955

supervisors. (Comp. Resp. 12-16.) Thus, I must examine the facts related by Sheffer to see
whether a protected activity can be inferred from the record.
Under the plain language of section 105(c), it is clear that a protected activity occurs
when a miner makes a safety complaint or refuses to work under dangerous conditions.
30 U.S.C. § 815(c) ("No person shall ... discriminate against ... any miner ... because such
miner ... has filed or made a complaint under or relating to this Act, including a complaint ...
of an alleged danger or safety or health violation."). A miner's disclosure of a pre-existing
disability to his superVisors is not in and of itself a protected act. Yet, in some instances, the
Commission has recognized that a miner's own physical limitation may serve as the basis for
that miner's protected refusal to work. Bjes v. Consolidation Coal Co., 6 FMSHRC 1411, 1417
(June 1984). Though not statutorily defined, the "work refusal doctrine" emerged as a
consequence of the Senate Report on the 1977 Mine Act, which supported a miner's right to
refuse "to work in conditions which are believed to be unsafe or unhealthful." Price v. Monterey
Coal Co., 12 FMSHRC 1505, 1514 (Aug. 1990) (quoting S. Rep. No. 95'.".181, at 35 (1977)).
Thus, the Commission has found that a miner's refusal to work can be a protected act, when the
refusal is elicited by a reasonable and good faith belief in hazardous working conditions. Secy
ofLabor v. United Castle Coal Co., 3 FMSHRC 803, 812 (Apr. 1981).
The Commission has further held that a miner establishes a refusal to work when he or
she engages in "some form of conduct or communication manifesting an actual refusal to work."
Sammons v. Mine Servs. Co., 6 FMSHRC 1391, 1397 (June 1984). The Commission found no
such communication occurred in the case of a miner who, due to a medical condition aggravated
by her normal work environment, requested an alternative placement. Perando v.. Mettiki Coal
Corp., 10 FMSHRC 491, 494-95 (Apr. 1988). fu Perando, the complainant developed bronchitis
while working underground; on the advice of her doctors, she requested a transfer from her
underground assignment to a surface position. Id. at 492. The Commission held no.work refusal
occurred where the complainant and her doctors only made recommendations, and not an
ultimatum, regai:ding her job placement, and where she accepted her employer's offer of a
surface position. Id. at 494.
fu Shepard v. ]3lack Hills Bentonite, 25 FMSHRC 129 (Mar. 2003) (ALJ), Judge
Manning granted the operator's motion to dismiss after reaching a similar conclusion regarding
the work refusal doctrine on facts analogous to the present case. fu Shepard, the complainant
strained bis neck while lifting extremely heavy bags of clay. Id. at 129. The complainant and
his doctor requested that he be given a less strenuous assignment, but he was told by his
supervisor there was no other work available. Id. at 130. He thus continued with his heavy
lifting assignments, even though he was in pain and believed his supervisor had found easier
work for other injured employees. Id. He alleged he did not refuse to work because he did not
know the Mine Act might protect him in such an instance. Id. at 131. Rather, he argued he
engaged in a protected act when he told his supervisor he could not performh~avy-duty work,
and suffered disparate treatment when he was not assigned a lighter-duty alternative. Id. Judge
Manning dismissed his complaint for failure to state a claim under section 105(c), emphasizing
that a request for.a change in work assignments does not amount to a refusal to work. Id.

32 FMSHRC Page 956

Here, as in Perando and Shepard, the work refusal doctrine is of no avail to Sheffer for
the simple reason that Sheffer never refused to work. As a roof bolter, he claims he "begged and
pleaded" to have his assignment changed. These requests were likely motivated by the
discomfort he experienced while performing onerous work with an injured hand. It is possible
that such work presented a hazard to his health: given his condition he may have had less control
while lifting equipment, less precision while drilling, and the exertion required by such activities
may have indeed caused Sheffer to honestly believe his health was at risk. However, Sheffer
never suggested, much less communicated, to Advent that he would discontinue working if
supervisors failed to meet his requests for reassignment. Furthermore, Advent eventually
responded by moving him to a shuttle car job, and he accepted the position. Just like the
complainant in Perando, Sheffer asked to be accommodated due to a preexisting physical
condition, and his supervisors granted the request. Advent's accommodation of Sheffer went
one step beyond the supervisor in Shepard, who claimed he was unable to provide alternative
work fot the complainant. Consequently, as Sheffer in no way indicated he would not perform
his assigned tasks, I cannot find that he engaged in a work refusal.
Asswning argu.endo that Sheffer refused to work and Advent failed to accommodate him,
his presumptive refusal would not necessarily be protected under section 105(c). In Shepard,
Judge Manning noted that "[sJection 105(c) does not grant a miner the right to refuse his
assigned duties because he is no longer capable of performing them as a result of an injury." Id.
at 134. This observation is instructive in so much as it clarifies that a miner who refuses to work
solely on the basis of a disability is not automatically protected under the Mine Act. Like the
complainant in Shepard, Sheffer performed grueling manual labor in spite of a physical injury
and disability that for most individuals would render the prospect of such work unimaginable.
Notwithstanding the impressive resolve displayed by both men, the Mine Act was not designed
to "provide continuing compensation or disability benefits for individuals who, because of
certain physical impairments or injuries, would find working most jobs in the mining industry
impossible." Collette v. Boart Longyear Co., 17 FMSHRC 1121, 1126 (July 1995)(ALJ). In
alleging that he suffered adverse treatment as a result of his disabilities, and not due to some
other protected activity, Sheffer effectively brings his case outside the scope of the Act. As
noted in Collette, "[i]t is clearly not the purpose of the Act, but rather worker's compensation,
social security disability and other similar laws to provide loss of income protection under these
circumstances." Id. Consequently, I find that no protected activity under the Mine Act is even
alleged nor can be inferred from the record.

Adverse Treatment
In his list of allegations and throughout his interview, Sheffer claims he suffered
discriminatory treatment as a result of his medical condition and injured hand. He claims he was
passed over for promotions, harassed by management because he was not a fast worker and for
common work mistakes as a roof bolter that were overlooked in other employees, and eventually
fired. These claims, if true, are certainly adverse to Sheffer. However, they cannot amount to
32 FMSHRC Page 957

discrimination under section 105(c) because they are not based on a protected activity. As
discussed above, not only is the alleged disparate treatment not based on a protected activity, but
no protected activity is even alleged or can be inferred from the record.
Sheffer also alleges disparate treatment that closely resembles the allegations made in
Shepard. Both men claim they saw other similarly situated employees treated better than they
were treated. The complainant in Shepard saw other injured workers given lighter-duty
assignments, while he was told he could not be accommodated. Likewise, Sheffer saw
employees less tenured than himself given better positions in the mine. In addition, Sheffer feels
when he was reassigned to a shuttle car, he was given inadequate equipment. He also alleges
that he was subjected to a hostile work environment because he did not.work fast, was subject to
more drug tests than warranted, and was being written up for common work mistakes when
others were not. Lastly, he claims that he was discriminated against because Advent fired him,
rather than giving him "a lesser job with lesser pay." (Compl. Resp. 4.) However unfair such
claims might appear to be, none of them constitute discrimination under section l 05(c) because,
as in Shepard, Sheffer did not engage in a protected act. Rather, Sheffer' s statement to MSHA
reflects his belief that management's animus toward him may stem from a combip.ation of his
seizure condition and his and his family's antagonistic history with one of his supervisors, who
had fired Sheffer at another mine and then was hired by Advent after Sheffer began work at the
Onton #9 mine. (Comp. Resp. 12-16.) Neither allegation has a remedy under section 105(c).
Moreover, the Commission has warned against adjudication influenced by broader
notions of fairness, rather than guided by the more limited purpose of the Mine Act: "the
Commission does not sit as a super grievance board to judge the industrial merits, fairness,
reasonableness, or wisdom of an operator's employment policies except insofar as those policies
may conflict with rights granted under section 105(c) of the Mine Act." Delisio v. Mathies Coal
Co., 12 FMSHRC 2535, 2544 (Dec. 1990)(intemal citations omitted). The allegations raised by
Sheffer in his complaint and pleadings square with the Commission's cautionary words, but do
not give rise, to relief under the Mine Act's anti-discrimination provisions.
Commission precedent mandates that a pleading filed by a pro se complainant be
liberally construed in the complainant's favor. Ribble, 22 FMSHRC at 594-95. At the same
time, Commission Procedural Rule 42 requires a complainant to state at least some fact or set of. ·
facts that can establish discrimination under the Mine Act, lest the case be dismissed because no
violation of the law is alleged. 29 C.F.R. § 2700.42; Fed. R. Civ. P. 12(b)(6). This is one of
those rare occasions, such as in Shepard, where it is beyond doubt that the complainant can
prove no set of facts in support of his claim under the Mine Act. In reviewing the entire record
that is before me, particularly Sheffer's version of the facts contained in the transcript of his
MSHA investigative interview, I am unable to perceive any facts that would allow Sheffer to
satisfy his burden of pleading under Commission Procedural Rule 42 and thus survive dismissal.
I therefore conclude that Respondent's Motion to Dismiss must be granted.

32 FMSHRC Page 958

V. ORDER
For the reasons set forth above, Advent Mining's motion to dismiss is GRANTED and
the complaint of discrimination filed by Tim Sheffer under section 105(c) of the Mine Act is
DISMISSED~

Administrative Law Judge
Distribution: (Via Certified Mail)
Timothy S. Sheffer, 3871 State Route 666, Morganfield, KY 42437
Peter Gould, Esq., and CarolineA. Anderson, Esq., Patton Boggs LLP, 1801 California Street,
Suite 4900, Denver, CO 80202

/jk

32 FMSHRC Page 959

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

202-434-9981 /tele 202-434-9949/fax

August 4, 2010
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 2009-12
A.C. No. 36-09491-162638

v.
LITTLE BUCK COAL COMPANY,
Respondent

Bottom Split Slope

DECISION
Appearances: Paul A. Marone, Esq., Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, on behalf of the Secretary ofLabor;
Edmund C. Neidlinger, Partner, Little Buck Coal Company, Pine Grove,
Pennsylvania, Little Buck Coal Company.
Before:

Judge Zielinski

This case is before me on a Petition for Assessment of a Civil Penalty filed by the
Secretary of Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815(d). The Petition alleges that Little Buck Coal Company is liable for one
violation of the Secretary's Mandatory Safety Standards for Underground Coal Mines. The
violation was originally designated as "flagrant."1 At the commencement of the hearing, counsel
for the Secretary announced the withdrawal of the flagrant designation, and a specially assessed
civil penalty in the amount of $6,624.00 is now proposed for the violation. A hearing was held
in Reading, Pennsylvania, and the parties filed briefs following receipt of the transcript. For the
reasons set forth below, I find that the Secretary failed to prove by a preponderance of the
evidence that Little Buck violated the standard, and vacate the order.
Findings of Fact - Conclusions of Law
On March 4, 2008, Gregory Mehalchick, a mining engineer and ventilation and roof
control specialist employed by MSHA, conducted an inspection of Little Buck Coal Company's
1

A flagrant violation "means a reckless or repeated failure to make reasonable efforts to
eliminate a known violation of a mandatory health or safety standard that substantially and
proximately caused, or reasonably could have been expected to cause, death or serious bodily
injury." 30 U.S.C. § 820(b)(2).
32 FMSHRC Page 960

Bottom Split Slope Mine, located in Schuylkill County, Pennsylvania. He was accompanied by
Thomas Garcia, a supervisory ventilation and roof control specialist. Both men were authorized
agents of the Secretary. They generally review ventilation and roof control plans, and consult on
related issues. They also periodically conduct inspections of mine facilities. They arrived at the
mine around 6:00 a.m., and were accompanied by Ronald Bender, a foreman and limited partner,
as he performed his preshift inspection. Mehalchick cited several violations of the Secretary's
regulations establishing mandatory safety and health standards for underground coal mines. Only
one of the enforcement actions is at issue in this proceeding, Order No. 7010827, charging that
Little Buck failed to properly support the roof of the mine. Little Buck timely contested the
Order and the assessed civil penalty.
OrderNo.7010827
Order No. 7010827 alleges a violation of 30 C.F.R. § 75.202(a}, which requires that the
"roof, face and ribs of areas where persons work or travel shall be supported or otherwise
controlled to protect persons from hazards related to falls of the roof, face or ribs and coal or rock
bursts."
The violation was described in the "Condition and Practice" section of the Order as
follows: 2
A slant was developed off the 6 112 chute approximately thirty feet above the
gangway level. This slant was approximately fifteen feet deep. No roof control
was installed in this slant, that being wooden props. Hitches for these props were
not evident in the floor. The slant was also observed to be free of loose, broken
coal. The normal mining cycle for this mine is to drill holes in the coal face, load
the holes with explosives, caps and stemming, and then detonate the explosives to
break approximately 7 112 feet of coal for removal. As the developed depth was
approximately fifteen feet, all above factors indicate that miners were directed by
the operator and his foreman to work under unsupported roof.
The operator and his foreman engaged in· aggravated conduct constituting more
than ordinary negligence by allowing this to occur. This violation is an
unwarrantable failure to comply with a mandatory standard.
Ex. G-1.
Mehalchick determined that it was reasonably likely that the violation would result in a
fatal injury, that the violation was significant and substantial, that one person was affected, and

2

Grammar and spelling errors have been corrected in quotations from documents
prepared in the field.
·

32 FMSHRC Page 961

that the operator had acted with reckless disregard. As noted above, a specially assessed civil
penalty in the amount of $6,624.00 has been proposed for this violation.
The Violation
Little Buck's Bottom Slope Mine extracts anthracite coal by blasting off the solid, and is
configured like a typical anthracite mine. The lowest horizontal level of the mine, the "gangway''
heading, is 10 feet wide, and serves as the primary entry and the intake slope, as well as the level
at which coal is loaded out of the mine. The "monkey" heading run.s parallel to the gangway,
approximately 30 feet above it in the coal seam. The gangway and monkey are connected by 12foot wide "chutes," at 30-foot intervals. 3 Developments above the monkey heading, essentially
extensions of the chutes, are referred to as "breasts," and are permitted to be 20 feet wide.
Anthracite coal seams typically run close to vertical, e.g., 70 degrees from horizontal. The
Bottom Slope Mine is somewhat unusual, in that the slope of the coal vein is only about 20
degrees from horizontal.
The mine's approved roof control plan requires the installation of timbers, or props, and
lagging to support the mine roof and upper ribs. 4 Ex. G-5. Typically, two props are required
every 5 feet in the gangway, and one row of props, on five-foot centers, is required in the
monkey. Props in the monkey heading are required to be made of untreated hardwood, with a
minimum diameter of five inches. Ex. G-5 at 8. Because of the slope of the coal seem, the highside rib of the monkey and gangway headings are considered part of the roof. For.that reason, the
props in those headings are installed at the high-side ribs, and lagging or lining is required along
the surface of the ribs. Ex. G-5 at 7-8.
Little Buck's normal mining cycle involved the drilling of holes approximately seven feet
deep into the coal face. Seven holes were drilled in the four-by-six-foot face, four on the lower
side and three on the upper side. The holes were then loaded with explosives, caps and
stemming, and the explosives were detonated to break the coal for removal. Typically 7 and 1/2
feet of coal would be extracted in each cycle. fu the monkey heading, the broken coal would then
be washed out into the chute and down to the gangway with a high pressure water hose.
Explosives were generally detonated toward the end of the work day and, after the mine
atmosphere cleared, the broken coal would be washed out. Props and lagging would be installed
at the beginning of the next work day. Tr. 165-66.
Mehalchick and Garcia were inspecting the area of the 6-112 chute and its extension, the
breast directly above the monkey heading. At that location the monkey headings on each side of

3

The chutes were numbered in whole and half-numbers, e.g., #5, #5-112, #6, #6-1/2, etc.

4

Underground coal mine operators are required to "develop and follow a roof control
plan, approved by the [MSHA] District Manager, that is suitable to the prevailing geological
conditions, and the mining system to be used at the mine." 30 C.F.R. § 75.220(a)(l).
32 FMSHRC Page 962

the chute were being developed at upward angles. The left side monkey heading had been
developed and appropriately supported with props and lagging. The right side monkey heading
had been advanced a significant distance, but no roof support had been installed, and there was
no evidence that any temporary supports had been placed in the heading while it was being
mined. The floor of the heading was clean and damp, from the washing out of the coal the
evening before. Tr. 43, 139. Garcia used a tape and measured along the low-side rib. The
distance from the edge of the chute to the face was 15 feet. That was the only measurement
taken during the inspection. In response to a discovery request, Little Buck reported that the
high-side rib measured 8.5 feet from the edge of the breast to the face, and that the face was six
feet wide and four feet high.
About two weeks before the hearing, Mehalchick prepared a diagram of the area, using a
computer program, "AutoCAD." Tr. 55-61; Ex. G-3. A copy of the diagram, an overview of the
area ofthe six-112 chute and monkey heading, at a right angle to the coal seam, is attached as an
appendix to this Decision. The diagram is not an exact depiction of the area, because the only
dimensions used were the measurement on the low rib and Respondent's report of the length of
the high rib and the width and height of the monkey heading. Mehalchick used the roof control
plan's maximum allowable figures for the widths of the chute and breast, and assumed that the
various elements were arranged symmetrically along a straight centerline. Tr. 54-60, 111. He
also assumed that the transition from the 12-foot width of the chute to the 20-foot width of the
breast occurred on "some kind of slant." Tr. 92-93, 111. When he entered the measurement
from the low rib and the other dimensions into the computer program "everything tied in," that
is, "all the dimensions fit," and the diagram was generated. Tr. 57-58, 111. The diagram also
conformed with his recollection of his observations of the scene some two years earlier. Tr. 58,
111.
Mehalchick's and Garcia's concern was that Bender had worked under unsupported roof
when he mined the second 7.5-foot cut in the heading. As shown on the diagram, the Secretary
contends that the roof was not supported in a 2.3-foot wide trapezoidal area along the low-side
rib, labeled "area under unsupported roof," and that Bender would have been in that area when he
drilled and loaded the three holes closest to the low-side rib for the last cut. Ex. G-3.
While the Order was not written as a violation of the approved roof control plan, it is
useful to consider the plan when considering whether the roof was adequately supported or
otherwise controlled. Unfortunately, the roof control plan does not specifically address the
situation where a monkey heading is developed at an upward angle, at the point where the
allowable 12-foot width of the chute changes to the allowable 20-foot width of the breast. Also
unspecified is where the first prop on the high-side rib of the monkey :rimst be placed, i.e., at the
comer, five feet inby, or somewhere in between. Mehalchick was unaware of any interpretations
of the roof control plan requirements, or general roof support requirements, for headings
developed at an angle. Tr. 115.

32 FMSHRC Page 963

When Mehalchick and Garcia made their inspection the entire depth of the cut was open
and clear, and there was no roof support of any kind. There is little question that the roof of the
right-side monkey heading was not adequately supported at that time. However, no miners had
traveled or worked in that area after the second cut had been blasted. Bender had washed the
coal out of the heading with a high pressure hose while he was situated iii the breast. 5 Tr. 167.
Under Little Buck's established mining cycle, props and lagging would have been installed in the
heading at the start of that morning's shift.

As noted above, the violation is alleged to have occurred on the previous shift, when the
holes for the last cut were being drilled and prepared for blasting. At that time the high-side rib
had been advanced only about one foot, and no props would have been required under the roof
control plan. Nevertheless, Mehalchick and Garcia believed that the area within 2.3.feetofthe
low-side rib was not adequately supported, and that Bender had worked in that area. They
believed that temporary roof support should have been installed while the holes were being
drilled .and prepared for blasting. Tr. 113, 158. Bender undoubtedly worked in the subject area
when he drilled and prepared the three holes nearest the low-side rib. However, it is not at all
clear that the roof in the area was not adequately supported.
Most significantly, the relative strength of the coal block, as compared to a single 5-inch
diameter wooden prop, strongly suggests that the subject area should not have been considered
unsupported. Mehalchick and Garcia agreed that the only action necessary to support the roof of
the monkey, as they observed it, was the installation of one prop on the high-side rib within five
feet of the breast. 6 Tr. 89-91, 156-58. Consistent with the approved roof control plan, that single
prop would have rendered safe for travel the entire area of the monkey heading up tQ the 15"."foot
deep face, including the area in the diagram labeled "area under unsupported roof." Of course, at
the time of the alleged violation, when the holes for the second cut were being drilled and
prepared, ther.e was no prop in that area. The last 7.5 feet of coal, shown as a cross-hatched area
in the drawiI;lg and labeled "coal removed from single pull," was still in place, and the high-side
rib was only one foot long.
However, if it is assumed for purposes of analysis, that at the time of the violation the
monkey heading was considered to be as Mehalchick and Garcia observed it, i.e., 15 feet deep on
the low-side rib, then rather than the single five-inch diameter wooden prop that they agree
would have provided adequate. support, the roof was supported over an area of 45 square feet by

5

Bender had demonstrated how the coal was washed out to Mehalchick and Garcia, who
agreed that it could have been done from a safe area. Tr. I 02, 141.
6

Garcia testified that had one prop been installed five feet from the breast on the
monkey's high-side rib, the roof of the monkey would have been adequately supported, and there
would have been no violation. Tr. 157-58. fu fact, two props were installed to terminate the
order, most likely one five feet from the intersection of the high-side rib and the breast, and one
at the intersection to support lagging between the props. Tr. 91.
32 FMSHRC Page 964

hard anthracite coal. I find it inconceivable that a single 5-inch diameter wooden prop could
have provided more roof support than the solid block of coal that was in place at the time of the
alleged violation. If it would have been safe to work and travel in the "area under unsupported
roof," and a further 7.5 feet inby, with one wooden prop on the high-side rib, it surely would
have been safe to work and travel in the subject area with the coal in place.
fu addition, the Secretary's theory does not account for support provided by props that
were installed in the chute and breast. While there was some disagreement on the location of
props, the inspectors and Bender agreed that a prop had been installed close to the comer of the
chute and the low rib, as depicted in the drawing. Tr. 59, 145, 174. The alleged unsupported
area extends nearly to that prop. It appears, from the diagram, that other props are considered to
have supported roof as much as five feet away, but that the prop on the lower comer of the
trapezoid provided no support in the subject area. When questioned on that issue, Mehalchick
stated that the prop provided support in the chute, but "nothing significant" in the monkey. Tr.
112. However, he later agreed that the prop "may" .provide "a little" support in subject area. Tr.
122. Another concern is that, under the roof control plan, the 20-foot wide breast is supported by
three rows of props at five-foot spacings, one down the center and one five feet from each rib.
As depicted in the drawing, the row of props closest to the right rib of the breast was intact all the
way down to the low-side rib of the monkey. It seems that those props may have provided
adequate support in the breast up to the extension of the breast's right rib line down to the lowside rib of the monkey. A dotted line has been added to the drawing showing the extension of
the rib line. If so, the area considered unsupported would have been reduced by more than fifty
percent, and would have extended only about two feet from the face where the subject holes were
drilled. Bender may not have been that close to the face when he drilled and prepared the holes.

It may be that the placing of temporary support while the holes were being drilled and
prepared would have been prudent, or even necessary to adequately support the mine roof. While
I am reluctant to reject the opinions of experienced inspectors, I find no acceptable explanation
for the apparent inconsistency between what would have been acceptable roof support under the
approved plan, and the conditions at the time of the alleged violation. Upon consideration of the
above, I find that the Secretary has failed to prove by a preponderance of the evidence that Little
buck violated the standard as alleged. Accordingly, the Order will be vacated.

32 FMSHRC Page 965

ORDER
Order No. 7010827 is VACATED.

Distribution:
Paul A. Marone, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center,
Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106..;3306
Edmund C. Neidlinger, Partner, Little Buck Coal Company, 57 Lincoln Road, Pine Grove, PA
17963

32 FMSHRC Page 966

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, DC 20001-2021
Telephone No.: 202-434-9980
Telec:opier No.: 202-434-9949

August 10, 2010
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 2008-936-M
A.C. No. 35-00634-145767;.0l
Docket No. WEST 2008-937-M
A.C. No. 35-00634-145767-02

v.
BAKER ROCK CRUSHING COMPANY,
Respondent.

Mine: Farmington Pit

DECISION
Appearances: John Pereza, Conference & Litigation Representative, U.S. Department of Labor,
Vacaville, CA, on behalf of the Secretary
Todd Baker, Beaverton, OR, on behalf of Baker Rock Crushing Company
Judge Barbour

Before:

This is a civil penalty proceeding brought pursuant to sections 105 and 110 of the Federal
Mine Safety and Health Act of 1977 ("Mine Act" or "Act"), 30 U.S.C. §§ 815, 820. The
Secretary of Labor ("Secretary''), acting through the Mine Safety and Health Administration
("MSHA"), petitions for the assessment of civil penalties totaling $376.00 for 3 alleged
violations of mandatory safety standards found at 30 C.F.R. Part 56, standards applicable to
surface metal and nonmetal mines. The alleged violations are set forth in citations issued
pursuant to section 104(a) of the Mine Act. 30 U.S.C. § 814(a). 1

1

Section 104(a) states in pertinent part:

If, upon inspection or investigation, the Secretary or his
authorized representative believes that an operator of a ...
mine subject to this Act has violated ... any mandatory health
or safety standard ... or regulation promulgated pursuant to
this Act, he shall, with reasonable promptness, issue a citation
to the operator.
32 FMSHRC Page 968

On February 12, 2008, a regular inspection of Baker Rock Crushing Company's
Farmington Pit was conducted by MSHA Inspector Larry Orton. i · (Tr. 19.) The Farmington Pit
is a quarry operation consisting of primary and secondary crushing, screening, and stockpiling.
fuspector Orton issued three citations based on alleged violations of section 56.2003(a), which
requires workplaces to be kept clean and orderly; section 56.14112(a)(l), which requires guards
preventing access to moving parts of equipment and machinery to be constructed and maintained
to withstand the vibration of the shock and wear of which they are subjected during normal
operation of the equipment; and section 56.12004, which requires electrical conductors to be
protected if exposed to mechanical damage. After the penalties were assessed for the alleged
violations, the company challenged the assessments. The matter was assigned to me by the Chief
Judge and was heard in Salem, Oregon.

STIPULATIONS
The parties have agreed to the following stipulations:
I.

Baker Rock Crushing, Farmington Pit, is engaged in mining in the United States,
and its mining operations affect interstate commerce, and is subject to the Federal
Mine Safety and Health Act of 1977, 30 U;S.C. § 801, et seq.

2.

With regard to the company's history ofviofations, the Secretary agrees that the
company's history of violations did not result in any additional perialty points.

3.

With regard to timely compliance, the Secretary agrees that the conditions were
abated in a timely manner.

4.

For the calendar year 2008, Respondent reported 42,987 hours worked at the mine
based on submitted MSHA quarterly reports.

(Joint Ex. 1.)
CONTENTIONS RELATING TO CITATION NO. 6438533
fuspector Orton testified on behalf of the Secretary of Labor and stated that he issued
Citation No. 6438533 after observing a violation of mandatory safety standard section
56.2003(a), which requires workplaces and passageways to be kept clean and orderly. 30 C.F.R.
§ 56.2003(a).
Orton inspected the rock breaker area at the upper deck of the crushing car and observed a
build up of dirt and dust throughout the rock breaker area, specifically on the hand railing, boxes

2

Larry Orton is a mine inspector with more than 22 years of experience inspecting and
working in mines. Inspector Orton has completed sessions of electrical training, and he is a
certified electrician.
32 FMSHRC Page 969

and walkways. (Tr. 20-21; Gov. Ex. 1.) Inspector Orton noticed a dark discoloration on the
walkway and along the beruns underneath the walkway from the build-up of dirt and material.
(Tr. 23.) Orton determined that some of the buildup was from a previous spill of hydraulic fluid. 3
(Tr. 20-21; Gov. Ex. l.)
Inspector Orton concluded that the accumulation of dirt and the spillage of hydraulic oil
posed a slip hazard, a health hazard, and a fire hazard. (Tr. 23.) Orton discussed the possibility
that the conditions of the rock breaker area could present a slip and fall hazard if a person tracked
some of the excess hydraulic oil on his or her boots and walked into a room where the flooring
had a smooth surface (such as the control booth located directly next to the rock breaker area).
(Tr. 25.) Orton stated he assumed the control room would be accessed every day the plant was
operational. (Tr. 27.) He found that at least one person would be affected by the slip and fall
hazard. Id.
Nevertheless, Inspector Orton believed an injury was unlikely due to the fact that the
walkway was clear of tripping hazards, a hand rail was provided, the area was level, and the
grating on the floor provided traction. (Tr. 25, 28.) Orton determined that moderate negligence
was present because the buildup of dirt and spillage was fairly obvious and the area was traveled
regularly. (Tr. 28; Gov. Ex. 2.) However, he admitted that due to the numerous safety
precautions (i.e., clear pathway, hand rail and the grated flooring), the area was probably not
viewed as a hazard.. {Tr. 28.) Although Inspector Orton determined that an injury was unlikely,
he stated that if an injury occurred, it would result in lost workdays or restricted duty. (Tr. 26.)
Therefore, he found the violation was not serious. (Tr. 27.)
The citation was terminated after the rock breaker area was sterun cleaned and the dirt and
excess hydraulic fluid was removed. (Tr. 28.) Inspector Orton found that the sterun cleaning
eliminated the hazardous conditions. (Tr. 28; Gov. Ex. 3.)
David Lemen, the quarry superintendent, testified on behalf of the operator. 4 Lemen
stated that the floor of the walkway in the rock breaker area was made out of expanded metal
grating. He explained that the metal grating was used instead of a screen cloth to provide better
traction from slipping if fluid was spilled. (Tr. 65-66.) After looking at Government Exhibit No.
1, Lemen stated he believed the dark and discolored areas were shadows, not spillage from oil.
(Tr. 66; Gov. Ex. 1.) Lemen admitted that there was a buildup of dirt on the beruns underneath
the walkway, but stated that they were not accessible to the miners. Id. Lemen stated that the
rock breaker is operated through remote controls that are located in the control room next to the

3

The Secretary states Baker Rock Crushing Company "agreed ... that a hydraulic hose
had broken at some time prior to the inspection which resulted in [Citation No. 6438533]."
(Pet'r's Pre-hearing Report~ 2, August 4, 2009).
4

David Lemen has worked for Baker Rock Crushing Company for 30 years and has been
the superintendent for 17 years.
32 FMSHRC Page 970

walkway. (Tr. 67.) He also stated that the control booth is accessed daily for inspections. Id.

CONTENTIONS RELATING TO CITATION NO. 6438534
Inspector Orton testified that he issued Citation No. 6438534 after observing a violation
of mandatory safety standard section 56.14112(a)(l), which requires guards preventing access to
moving parts of equipment and machinery to be constructed and maintained to withstand the
vibration of the shock and wear of which they are subjected during normal operation of the
equipment. (Tr. 30-31); 30 C.F.R. § 56.14112(a)(l).
Orton inspected the primary screen unit where larger rocks are separated and sent to be
shipped, stored, or re-crushed. (Tr. 30.) Orton stated that he noticed the fly wheel on the primary
screen unit was not properly guarded. He observed that the guard was leaning outward exposing
approximately two inches of the back side of the fly wheel. Id.· Inspector Orton determined that
the fly wheel was exposed because the braces mounting the guard in place were worn out. (Tr.
35.) Although Inspector Orton did not see the fly wheel operating during his inspection, he did
test the guard to see if it was loose and found that it wiggled back and forth approximately four to
six inches. (Tr. 43-44.)
Orton described the fly wheel as having a smooth top side with spokes and bolts
protruding from its lower backside. (Tr. 33-34.) He noted thatthe fly wheel rotates at a high rate
of speed. (Tr. 33.) Orton considered the poor guarding to be a hazard because a person could be
exposed to a rapid moving piece of machine equipment. (Tr.· 31.) Inspector Orton stated that if a
person came into contact with the back side of the fly wheel, the person could become entangled
and break, rip, or lose a limb. (Tr. 34.) He further stated that if a person came into contact with
the smooth outer part of the fly wheel, "the shear force of the thing spinning would probably
break a wrist, a finger, or something of this nature." Id. Orton noted that the exposed fly wheel
was less than seven feet above the walkway. (Tr. 34.) Orton acknowledged that there are
handrails in the area, but stated.that the handrails had no effect on a person's exposure to the
guard or the fly wheel. (Tr. 36.)
Inspector Orton found the guard violated the standard because he believed the guard
could not withstand the vibration of the shock or wear from operation. (Tr. 36.) He issued a
citation for the violation and found that it was a significant and substantial ("S&S") contribution
to a mine safety hazard. (Tr. 39.) Orton testified that the likelihood of an injury was high and
reasonably likely to occur due to the fact that a person accessing the primary screen unit would
have to travel passed the guard which is next to the walkway. (Tr. 37; see Gov. Ex. 5.) Orton
explained that a person entering the walkway could slip and grab onto the guard for support and
come into contact with the moving fly wheel which could leave behind "a ripping, crushing
injury." (Tr. 38.) Orton admitted that the primary screen unit is not accessed on a daily basis and
stated that the area is accessed for maintenance and observation of the crushing cycle. Id. As
such, Inspector Orton estimated that at least one person would be affected by the condition of the
fly wheel's guard. He also determined that the negligence was moderate because the area was ·

32 FMSHRC Page 971

clear, the unit provided good handrails, and the toe boards were in place. (Tr. 40.) He further
noted that the faulty guarding on the fly wheel was not something that would have been easily
seen by others. Id.
The citation was terminated after Baker Rock Crushing Company remounted the guard
properly and added rubber to the back of the guard to completely seal off any access to the fly.
wheel. 5 (Tr. 41-42.) Inspector Orton stated that after the guard was reinstalled and straightened,
the potential for contact with moving machinery was eliminated. (Tr. 42.)
David Lemen, the quarry superintendent, described the fly wheel as smooth and stated
that the fly wheel did not have any spokes or bolts. (Tr. 67.) Lemen stated that if a person came
into contact with the fly wheel while it was operating it would result in a burn to the skin, yet
admitted to the possibility that the force of the rotating fly wheel could cause a person's hand to
bend backwards or break fingers. (Tr. 79.) Lemen also stated that he did not believe that a
person could become entangled in the fly wheel because of its smooth surface. (Tr. 82.) Lemen
explained that a person would have to reach behind the guard to make contact with the fly wheel.
Id. Lemen further stated that he believed that the handrails in front of tli.e guard would in fact
protect a person from falling and touching the exposed fly wheel. Id. Lemen testified that he
was not certain whether the company had actually reinstalled the guard or whether the company
only added rubber to the guard. (Tr. 68.) Nevertheless, Lemen did admit the guard looked
straighter after the remedial steps were taken. Id.

CONTENTIONS RELATING TO CITATION NO. 6438535
Orton testified that he issu,ed Citation No. 6438535 after observing a violation of
mandatory safety standard section 56.12004, which requires that electrical conductors be
protected if exposed to mechanical damage. (Tr. 46); 30 C.F.R. § 56.12004.
Orton inspected the upper finish screen area and observed that the outer sheath of an
electrical cord was worn through and exposed approximately three inches of the inner
conductors. (Tr. 44.) Orton stated that this cable was located "off to the side on an access area"
where a person could walk up to .it. (Tr. 45.) He also testified that the cable was hanging off of a
metal structure.. Id. Inspector Orton determined that the damaged cable was a violation because
the inner conductors were covered with insulation that was not mechanically protected. (Tr. 47.)
Orton explained that vibrations and other outside conditions could easily breach the inner
conductors' insulation which would lead to two metal conductors rubbing against each other.
(Tr. 48.) This could result in an entire area being energized without kicking a breaker, id.,
because all metals have the ability to. conduct electricity (Tr. 55).
Inspector Orton stated the cable was a 277 volt cable that was previously used to power a

5

Adding rubber to the back of the guard was an additional precaution taken by the
company to secure the area even more than what was required. (Tr. 41).
32 FMSHRC Page 972

light. (Tr. 49-50.) Although Orton did not go to the power source site to check if the cablewas
connected (Tr. 58), he did ask a representative of the company who was in charge and present ·
during the inspection whether the damaged cable was energized (Tr. 49-50). The company's
representative told Inspector Orton the cable was not energized and Orton believed the cable was
not energized from his own observations. (Tr. 49.) Orton did not recall whether the cable had
been physically disconnected from its source. Id. Orton testified that he believed that the cable
could and would be used in the normal course of mining operations at some time in the future.
(Tr. 61.) He stated that the cable could be used to feed a motor or a pump (Tr. 62), but believed
that it would most likely be used for a light (Tr. 63).
Inspector Orton found the violation was not S&S. (Tr. 52.) He further determined the
alleged violation was unlikely to cause an injury, because at the time of the inspection, there was
no damage to the inner conductors (no bare Wire of any kind was exposed) and the cable was not
energized. (Tr. 50.) Inspector Orton discussed the seriousness of electrical shock hazards and
explained that although unlikely, if an injury occurred, it could reasonably be expected to be
fatal. (Tr. 51.) He determined that one person could be affected by the damaged cable during the
course of inspections, maintenance, or simply observing the area. Id. Inspector Orton found the
company's negligence was low because the cable was not energized; the company did not view
the condition as a problem, and the condition was not one that could be easily noticed (the
insulation was worn through exposing just three inches of the inner conductors). Id. He further
supported his reason for determining the negligence to be low by describing some of the
precautionary measures taken by the company to prevent an electrical injury. (Tr. 54.) ·Orton
stated that the company installed phase lights which are used as a monitoring device to detect a
potential problem with the electrical system. Inspector Orton admitted though, that the phase
lights are merely preventative and will only detect a problem, but will not trip the circuit. Id.
The citation was terminated after the company removed the damaged portion of the cable
that was exposing the inner conductors. (Tr. 52.) Inspector Orton stated the company's actions
eliminated the potential electrical shock hazard. (Tr. 53.)
David Lemen stated that the cable was originally hard-wired into a light above and went
down and fed another light, one that had been taken out of service. {Tr. 70.) Although, at the
time of the inspection, the company only knew the cable was disconnected at one end, Lemen
testified that the cable was in fact-disconnected at both ends. (Tr. 69.) As a result, Lemen
explained that in order for the cable to be reconnected, it would have to be rewired with the
proper connections. Id. Lemen testified that because there was no plug on the end of the cord, it
would be impossible to use the cable without rewiring it. (Tr. 70.)
Lemen testified that he believed there was no way the wire could have become energized
on its own (Tr. 71) because the cable was disconnected from the light above and also
disconnected from the light to which it supplied its power (Tr. 70). Lemen also noted that the
inner insulation was never breached. (Tr. 71.) Lemen admitted that the damaged cable was
within five feet of the light that had been taken out of service and was eight feet from the light

32 FMSHRC Page 973

that had served as the cord's power source. (Tr. 80.) Nevertheless, Lemen explained that the
damaged cable would not be used because the company keeps spare cable on-site in a storage
area. (Tr. 71.) Lemen further stated that the employees are aware of this fact and have
knowledge ofwhere the spare cable is stored in the event that it is needed. Id.

RESOLUTION OF THE ISSUES
CITATION NO. 6438533
Citation No. 6438533 states:
The access way around the rock breaking hammer and oil pump on the upper deck
of the crushing tower area was not maintained in a clean condition. A hydraulic
hose had ruptured and fluid had spilled in the access area creating a slip and fall
hazard. The flooring on the access way was made of expanded metal and
provided with hand rails. The area is exposed to vibrating outside conditions.
The hammer was controlled from inside the control booth. The only time the area
was access [sic] was for maintenance on the hammer unit and hydraulics as stated
by the crusher operator. If a person were to slip and fall they could be [sic]
receive a lost time or restricted duty injury. The condition was not reported on the
inspection of the work place.
(Gov. Ex. 2.)
Section 56.2003(a) states in pertinent part: "Workplaces, passageways, storerooms, and
service rooms shall be kept clean and orderly." 30 C.F .R. § 56.2003(a).

THE VIOLATION
I conclude the Secretazy established a violation of section 56.2003(a). The evidence
clearly shows that the walkway on the upper deck of the rock breaking area was not "kept clean
and orderly" as required by the standard. Inspector Orton's testimony and the Government's
photographs established the existence of an accumulation of dirt, dust and hydraulic fluid
spillage throughout the rock breaker area. (Gov. Ex. 1.) Moreover, I do not find Lemen's
testimony that he believed the dark and discolored areas were shadows instead of dirt and excess
oil spillage convincing; especially after examining the Government Exhibit No. 3 which depicts
the walkway without any buildup of dirt or fluid after the rock breaker area was steam cleaned.
(Gov. Ex. 3.)

GRAVITY
Inspector Orton properly believed the violation was not serious. Despite the presence of
dirt, dust and hydraulic oil, I agree with Orton's determination that it was unlikely for an injury to
occur because of the numerous safety precautions taken by the operator. Specifically, the

32 FMSHRC Page 974

walkway had a hand rail, it was free of tripping hazards, and the metal grated flooring was level
and provided adequate traction to prevent slipping. Therefore, like Orton, I conclude that the
lack of a clean and orderly walkway was not a serious violation.

NEGLIGENCE
Inspector Orton believed the company was moderately negligent. (Gov. Ex. 2.) I agree
with this assessment. Looking at the.Government's photographs it is clear that buildup of dirt,
dust and hydraulic fluid was obvious. (Gov. Exs. l, 3, 11.) The company had a duty to keep the
entire rock breaker area clean and orderly, including the walkway on the upper deck of the
crushing car. Nevertheless, due to the numerous safety precautions and the unlikely chance of an
injury occurring, I conclude the company was moderately negligent.·

CITATION NO. 6438534
Citation No. 643854 states:
The fly wheel on the primary screen unit was not adequately guarded. The guard
had broken loose due to vibration and was leaning out to words [sic] the walk
way. This condition exposed about 2 inches of the back of the fly wheel. The
open is about one foot wide and about three feet high. The unit is located next the
[sic] walk way next to the screen and rotates at a high speed. Guards are require
[sic] to be maintained in good conditions to prevent a person from contacting
moving machine parts and becoming entangled. The walk way is about 40 inches
wide and exposed to vibrating out side [sic] conditions. If a person was to be
entangled they could be permanently disabled or seriously injured. The condition
was not reported on the inspection of the work place. The company has
established a system of inspecting the screen unit and documenting the defects.
(Gov. Ex. 5.)
Section 56.14112(a)(l) states in pertinent part: "Guards shall be constructed and
maintained to withstand the vibration, shock, and wear to which they will be subjected during
normal operation." 30 C.F.R. § 56.14112(a)(l).

THE VIOLATION

I conclude the Secretary established a violation of section 56. l 4112(a)( I). The evidence
clearly shows that the fly wheel was not properly guarded. The photograph taken by Inspector
Orton shows the guard was leaning away from the fly wheel and exposing approximately two
inches of the moving machinery. (Gov. Ex. 4.) Therefore, I find the guard was not adequately
maintained to withstand the vibration, shock and wear it was subjected to during normal
operations.

32 FMSHRC Page 975

S&S & GRAVITY
Inspector Orton incorrectly believed the lack of proper guarding was serious and
designated the violation as S&S. An S&S violation is a violation "of such nature as could
significantly and substantially contribute to the cause and effect of a ... mine safety or health
hazard." 30 U.S.C. § 814(d). A violation is properly designated S&S, "if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature." Cement Div.,
Nat'/ Gypsum Co., 3 FMSHRC 822, 825 (April 1981). As is well recognized; in order to
establish the S&S nature of a violation, the Secretary must prove: (1) the underlying violation;
(2) a discrete safety hazard - that is, a measure of danger to safety- contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury will be of a reasonably serious nature. Mathies Coal
Co., 6 FMSHRC 3-4(January1984); accord Buck Creek Coal Co., 52 F.3d 133, 135(7th Cir.
1995); Austin Power Co. v, Sec'y ofLabor, 861F.2d99,103 (5th Cir. 1988) (approving Mathies
criteria).
It is the third element of the S&S criteria that is the source of most controversies
regarding S&S findings. The element is established only if the Secretary proves "a reasonable
likelihood the hazcµ-d contributed to will result in an event in which there is an injury." U.S. Steel
Mining Co., 7 FMSHRC 1125, 1129 (Aug. 1985). Further, an S&S determination must be based
on the particular facts surrounding the violation and must be made in the context of continued
normal mining operations. Texasgulf, Inc., 10 FMSHRC 1125 (Aug. 1985); U.S. Steel, 7
FMSHRC at) 130.

Finally, the S&S nature of a violation and the gravity of a violation are not synonymous.
The Commission has pointed out that the "focus of the seriousness of the violation is not
necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry,
but rather on the effect of the hazard ifit occurs." Consolidation Coal Co., 18 FMSHRC 1541,
1550 (Sept. 1996).
I have found the Secretary has established a violation of section 56.14112(a)(l)
presenting a safety hazard if a person were to slip and contact the moving fly wheel. However, I
find the violation was neither serious nor S&S because there is insufficient evidence to establish
a reasonable likelihood of an injury. It is clear from the testimony that the primary screen unit is
not accessed frequently. I credit Inspector Orton's testimony that only individuals performing
maintenance duties or observing the crushing cycle would be exposed to the hazard.
Furthermore, the walkway is clear of any slipping or tripping hazards and the area has good
handrails in front of the guard to provide support. Moreover, If a person were to slip and fall, in
order to contact the moving fly wheel he would have to fall in such a way as to reach behind the
guard. Thus, I find that it is unlikely that a person would slip and fall into the moving fly wheel
under these circumstances.

32 FMSHRC Page 976

NEGLIGENCE
Inspector Orton believed the company was moderately negligent. (Gov. Ex. 5.) I agree
with this determination. The company had a duty to maintain guards to withstand the vibration,
shock and wear of the rock crushing operation. After viewing the photographs of the guarding
before the violation was abated, I find that the condition was not one that would be easily noticed
by others. Additionally, as previously discussed, the walkway was clear and provided a handrail
for support. Based on the safe conditions of the walkway and the unlikely chance of an injury
occurring, I conclude the company was moderately negligent.

CITATION NO. 6438535
Citation No. 6438535 states:
The insulation on the 277v cable feeding the lights on the upper east deck of
finish [sic] screen area was worn through exposing the Inner conductor to
mechanical damage. The area of out [sic] insulation damaged is about three
inches long. The inner conductors did not appear fo be damaged. The cable was
not energized. The electrical system is monitored by a ground fault detector
device (phase lights). There a [sic] person in the plant area daily contacting
conductive materials. These conditions create a shock and electrocution hazard.
If a person was to be shocked or electrocuted they could be fatally or seriously
injured. The condition was not reported on the inspection of the work place. This
area is not travel [sic] daily and the condition was not easily seen.
(Gov. Ex. 8.)
Section 56.12004 states: "Electrical conductors shall be of a sufficient size and currentcarrying capacity to ensure that a rise in temperature resulting from normal operations will not
damage the insulating materials. Electrical conductors exposed to mechanical damage shall be
protected." 30 C.F.R. § 56.12004.

THE VIOLATION
I conclude the Secretary did not establish a violation of section 56.12004. The purpose of
section 56.12004 is to eliminate electrical shock hazards by requiring that all electrical
conductors be protected. The importance of this standard is paramount because, as Inspector
Orton testified, if an injury occurred it could be fatal. However, although the cable was worn
through exposing three inches of the inner conductors, other facts reveal that no actual safety
hazard existed. Both Inspector Orton and the company's quarry superintendent, Lemen, testified
that the cable was not energized. Moreover, Lemen's testimony revealed the cable was
disconnected at both ends at the time of the inspection. Therefore, although the damaged cable
exposed approximately three inches of the inner conductors, it would have been impossible for
the wire to become energized on its own because it was disconnected from both the light and its

32 FMSHRC Page 977

power source. I find it would be unlikely that the company would rewire the cable without
noticing the exposed inner conductors and remedying the hazard. Furthermore, the company had
a designated area on-site for storing spare cable and had set up phase lights to monitor the
electrical system.
The Secretary's regulations define the term "conductor"· as "a material, usually in the
form of wire, cable, or bus bar, capable of carrying an electrical current." 30 C.F.R. § 56.2. The
record shows that because the damaged cable had no plug on the end of the cord and was
disconnected at both ends, in order for it to be used, the cable would need to be rewired with the
proper connections. Therefore, the cable was not capable of carrying an electrical current at the
time of the inspection. Consequently, I find the cited cable was not an electrical conductor for
purposes of the safety standard set forth in section 56.12004. Because there was no possibility of
an electrical shock hazard without rewiring the cable, I conclude that these circumstances did not
present a safety hazard and the Secretary has not met her burden of proving a violation occurred.

REMAINING CIVIL PENALTY CRITERIA
The Act requires that I assess a civil penalty for each violation. It also requires that in
doing so, I consider the statutory civil penalty criteria. 30 U.S.C. § 820(i). Several of the civil
penalty criteria are equally applicable to all ofthe violations.

HISTORY OF PREVIOUS VIOLATIONS
The parties agree that the company's history of violations did not result in any additional
penalty points. {Joint Ex. 1.) I find, based on the record in this case, the applicable history of
previous violations is not an aggravating factor. Therefore, when assessing penalties I will not
increase them on account of Baker Rock Crushing Company's prior history.

The parties stipulated to the fact that there were 42,987 hours worked at the mine in 2008.
(Joint Ex. 1.) This means Baker Rock Crushing Company's facility is characterized by MSHA
as a small mine. See 30 C.F.R. § 100.3. As there is no evidence to contradict this, I find the
mine to be small in size. Therefore, when assessing penalties, I will assess lesser amounts than I
would for medium or large operations.

ABILITY TO CONTINUE IN BUSINESS
There is no evidence the size of any penalties assessed will adversely-affect Baker Rock
Crushing Company's ability to continue in business, and I find they will not. Therefore, when
assessing penalties, I will neither increase nor decrease them on account of this criterion.·

32 FMSHRC Page 978

GOOD FAITH ABATEMENT
Finally, the parties agree that the alleged violations were abated in good faith by Baker
Rock Crushing Company and in a timely manner. (Joint Ex. 1.)
CIVIL PENALTY ASSESSMENTS
CITATION NO.
6438533

DATE
2/12/08

30 C.F.R. §
56.20003(a)

PROPOSED ASSESSMENT
$100.00

I have found the violation occurred, it was not serious, and it was due to Baker Rock
Crushing Company's moderate negligence. Given the other civil penalty criteria, especially the
company's low history of prior violations and its numerous safety precautions, I conclude a civil
penaltyof$100.00 is appropriate.
CIVIL PENALTY ASSESSMENTS
CITATION NO.
6438534

DATE
2/12/08

30 C.F.R. §
56.14112(a)(l)

PROPOSED ASSESSMENT
$176.00

I have found the violation occurred, it was not S&S, and it was due to Baker Rock
Crushing Company's moderate negligence. Given the other civil penalty criteria, especially the
company's low history of prior violations and its numerous safety precautions, I conclude a civil
penalty of $100.00 is appropriate.
CIVIL PENALTY ASSESSMENTS
CITATION NO.
6438535

DATE
2/12/08

30 C.F.R. §
56.12004

PROPOSED ASSESSMENT
$100.00

I have found the Secretary did not establish a violation. The damaged cable was not
energized and was disconnected at both ends. Based on the record, I conclude the cable was not
capable of carrying an electrical current at the time of inspection. Thus, the conditions presented
did not violate the safety standard: For the reasons set forth above, Citation No. 6438535 shall
be vacated.

32 FMSHRC Page 979

ORDER
Consistent with this Decision, IT IS ORDERED that Citation No. 6438533 IS
AFFIRMED.
IT IS ORDERED that Citation No. 6438534 IS MODIFIED to reduce the likelihood of
injury from "reasonably likely" to ..unlikely'' and to delete the significant and substantial (S&S)
designation.
IT IS ORDERED that Citation No. 6438535 IS VACATED.
Within 40 days of the date of this decision, Respondent IS ORDERED to pay civil
penalties totaling $200.00 for the violations found above. Upon payment of the penalties and
modification of the citation and orders, these proceedings ARE DISMISSED.

j)t#lrlf~
David F. Barbour
Administrative Law Judge
Distribution:
John D. Pereza, Conference & Litigation Representative, U.S. Department of Labor, MSHA,
2060 Peabody Road, Suite 610, Vacaville, CA 95687
Wendy Ortman, Balcer Rock Crushing Company, 21880 SW Fannington Road, Beaverton, OR
97007

/aw

32 FMSHRC Page 980

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

August 12, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MISHA), on behalf:
of LAWRENCE PENDLEY,
Complainant,
v.

HIGHLAND MINING COMPANY, LLC,
Respondent

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. KENT 2007-265-D
MISHA Case No. MADI CD 2007-05

Mine ID: 15-02709
Mine: Highland No. 9 Mine

ORDER DENYING MOTION FOR PROSPECTIVE APPLICATION
'OF
REVIVED TEMPORARY REINSTATEMENT
On July 2, 2010, a Commission majority agreed with the Secretary that Lawrence
Pendley's right to temporary reinstatement was revived because the 6th Circuit Court of Appeals
in Pendley v. FMSRHC, 601F.3d417, 429 (6th Cir. 2010), had divested the Commission's
decision in Mr. Pendley's discrimination case of its "final" nature and had remanded the case to
the Commission. The Commission stated: "While the court remanded the discrimination
proceeding to the Commission for specific purposes, it also reversed the Commission's decision
upholding the judge. Prior to issuance of the Commission's discrimination decision, Pendley had
a right to temporary reinstatement. Because the discrimination proceeding is back before the
Commission, the right is revived." 32 FMSHRC, KENT 2007-265-D (June 2, 2010) (Order On
Temporary Reinstatement) at 3. The Commission then ordered that Mr. Pendley '1'e reinstated
immediately, with back pay retroactive to May 28, 2010, the date of the court's mandate, and
until such time as the Commission issues a final order upon remand in the discrimination
proceeding. Jurisdiction over his reinstatement will otheiwise rest with the judge." Id. at 4 (n.
omitted).
Counsel for Highland has moved that I order the revived temporary reinstatement to be
effective as of the date the Commission issued its order - July 2, 20 I 0. Counsel argues revival of
the temporary reinstatement was a matter of first impression before the Commission and because
it was not dealt with by the Court in its opinion, the first notice Highland had of the
Commission's interpretation of the law on the issue was on July 2, 2010, when the Commission
issued its Order on Temporary Reinstatement. Because Highland had no notice of the retroactive
nature of the reinstatement, the reinstatement should be effective as of the date of the
Commission's order. Respondent's Mot. at 2. Highland's motion is opposed by the Secretary

32 FMSHRC Page 981

and by Mr. Pendley, both of whom argue that because the Commission has reinstated Mr.
Pendley "retroactive to May 28, 201 O," I do not have authority to modify that part of the
reinstatement. Secretary's Opposition at 2 (quoting Commission's July 2 Order at 4); Letter of
Wes Addington to David Barbour (August 3, 2010). fu addition, the Secretary asserts that even
ifl have jurisdiction, the concept of fair notice is inapplicable here, because the remedy of back
pay has a "make whole" purpose, not a civil penalty or civil sanction purpose. Secretary's
Opposition at 3-4.
Highland's motion IS DENIED. As both counsel for the _Secretary and Mr. Pendley
correctly note, the Commission ordered Mr. Pendley' s reinstated "immediately, with back pay
retroactive to May 28, 2010, the date of the court's mandate." Order at 4. It is true that the
Commission has returned jurisdiction over the reinstatement to me, but not as to the effective
date of the reinstatement. That issue has been decided by the Commission. Other than that, I
may rule on matters concerning Mr. Pendley' s revived reinstatement. Or, as the Commission put
it, "Jurisdiction over [Mr. Pendley' s] reinstatement will otherwise rest with the judge." Id.

~~,../'rf£~v/hz____.

· '

· Dav.id F. Barbour

Administrative Law Judge

Distribution:
Matthew N. Babington, Esq., Office of the Solicitor, U.S. DepartmentofLabor, 1100 Wilson
Blvd, 22nd Floor, Arlington, VA 22209
Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 2333 Alumni Park
Plaza, Suite 310, Lexington, KY 40517
Wes Addington, Appalacian Citizens Law Center, 317 Main Street, Whitesburg, KY

Mr. Lawrence Pendley, P.O. Box 84, Browder, KY 42326

/sa

32 FMSHRC Page 982

41858

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

August 13, 2010
DISCRIMINATION PROCEEDING

CHARLES SCOTT HOWARD,
Complainant

Docket No. KENT 2008-736-D
BARB CD 2007-11

v.
CUMBERLAND RIVER COAL COMPANY,
Respondent

Mine ID 15-18705
Band Mill No. 2 Mine

DECISION
Appearances: Tony Oppegard, Esq., Lexington, Kentucky, and Wes Addington, Esq.,
Appalachian Citizens Law Center, Whitesburg, Kentucky, for Complainant;
Timothy M. Biddle, Esq., and Willa B. Perlmutter, Esq'., Crowell & Moring LLP,
Washington, D.C., for Respondent.
Before:

Judge Hodgdon

This case is before me on a Complaint of Discrimination brought by Charles Scott
Howard against Cumberland River Coal Company, pursl,lant to section 105(c) of the Federal
Mine Safety and Health Act of 1977, as amended, 30 U.S.C'. § 815(c). A trial.was held in
Whitesburg, Kentucky. For the reasons set forth below, I find that the Complainant was
discriminated against because he engaged in activities protected by the Act.
Backeround
On April 20, 2007, Charles Scott Howard, an employee of Cumberland River Coal
Company, took video footage of s.eals at Cumberland's Band Mill No. 2 Mine. A few months
later, on July 12, the video was shown as part of Howard's testimony at a Mine Safety and Health
Administration (MSHA) public hearing regarding an emergency temporary standard on mine
seals. Almost immediately after the video was shown, MSHA inspectors visited the Band Mill
No. 2 Mine. One day later, MSHA issued a citation to the company for an alleged failure to
conduct a preshift examination of the seals prior to beginning work. On July 19, a second .·
citation was issued for Cumberland's alleged failure to maintain the seals. On July 27, a written
warning of disciplinary action was given to Howard for taking a non-permissible video camera
underground.
Averring that the written warning was given to him for engaging in activity protected
32 FMSHRC Page 983

under the Act, Howard filed a discrimination complaint with MSHA, under section 105(c)(2) of
the Act, 30 U.S.C. § 815(c)(2), on August 3, 2007. 1 On February 12, 2008, MSHA informed him
that, on the basis of a review of the information gathered during its investigation, "MSHA has
determined that the facts disclosed during the investigation do not constitute a violation of
Section [sic] 105(c)." On March 19, 2008, Howard then instituted this proceeding with the
Commission, under sectiori 105(c)(3), 30 U.S.C. § 815{c)(3). 2
Cumberland maintains that the written warning of disciplinary action was not an adverse
action and, even if it were, it was issued solely because Howard created an unsafe condition, in
violation of company policy, and not because he engaged in protected activity. I find that the
warning was issued as the result of Howard's protected activity, that the warning was an adverse
action and that the company's claim that it was issued only because he violated company policy
is a pretext.

Findinis of Fact
Cumberland River Coal Company, a division of Arch Coal, operates the Band Mill No. 2.
Mine in Letcher County, Kentucky. Howard was employed by Cumberland as a ''beltman" at the
mine. His job responsibilities included performing preshift examipations of the beltlines and
seals for hazardous conditions. (Tr. 419.) During the performance of his duties in March and
April 2007, Howard noted in the examination book that numerous seals atBand Mill were
"leaking water." (Comp. Ex. 8.) Howard also expressed his concern over the conditions of the
seals to many mine foremen including John Scarbro, Terry Mullins, Bob Kilbourne, Ronnie
Adams, and James Turner. {Tr. 420.)
Besides Howard, at least one other preshift examiner had brought the leaking seals to the
attention of management. {Tr. 118.) As the water that had built up behind the seals subsided,
Cumberland began to repair them. (Tr. 120.) This included a method known as "block-bonding"
{plastering) over the leaks. (Tr. 478.) The repair process lasted approximately two to three
months. (Tr. 120.)
On April 20, 2007, Howard took video footage of a number of seals at the mine. (Tr.
423, 445, 470.) Management had not given him permission to take a camera underground.
1

Section 105{c)(2) provides, in pertinent part, that: "Any miner ... who believes that he
has been discharged, interfered with, or otherwise discriminated against by any person in
violation of this subsection may, within 60 days after such violation occurs, file a complaint with
the Secretary alleging such discrimination."
2

Section 105(c){3) provides, in pertinent part, that: "If the Secretary, upon investigation,
determines that the provisions of this subsection have not been violated, the complainant shall
have the right, within 30 days of notice of the Secretary's determination, to file an action in his
own behalf before the Commission .... "
32 FMSHRC Page 984

On May 22, 2007, MSHA published Sealing of Abandoned Areas, 72 Fed. Reg. 28798
(2007). A public hearing regarding this rule was held on July 12, 2007, in Lexington, Kentucky.
Howard testified at the hearing and, as part of his testimony, showed the video with the audio off.
(Tr. 41-43.) He did not tell the audience that the video was of the Band Mill mine. Up until this
point, Howard had never shown the video to anyone other than his lawyer. (Tr. 467.)
Ronnie Biggerstaff, the Manager of Safety at Lone Mountain Processing, another facility
owned by Arch Coal, attended the MSHA hearing. He observed Howard's testimony and
witnessed the video of seals displaying water seepage. (Tr. 43.) Biggerstaff suspected that the
video was of seals in a Cumberland River mine. (Tr. 44.)
After seeing the video, Biggerstaff called his manager at Lone Mountain, Thurman
Holcomb. (Tr. 44.) Holcomb had formerly been the General Manger at Cumberland River.
(Tr. 44.) Biggerstaff informed Holcomb of the video he witnessed at the public hearing and
anticipated that it would probably be on the evening news. (Tr. 44-45, 47.) In response,
Holcomb called the current General Manager of Cumberland River, Gaither Frazier. (Tr. 58.)
Frazier left a management meeting to take Holcomb's phone call. (Tr. 58.) When he returned to·
the meeting, Frazier informed the other members of management that he had been advised that
Howard had shown a video ofleaking seals at the MSHApublic hearing. (Tr. 59.) As a result,
they realized that "MSHA and the state" would be coming to the property. (Tr. 59.)
Approximately thirty minutes after this phone call, MSHA inspectors arrived at the mine.
(Tr. 61.) Scarbro, Superintendent at the Band Mill mine, went underground with the inspectors
to check on the seals. (Tr. 61.) State and federal inspectors were frequently at the mine in the
following weeks. Between July 12 and July 27 inspectors were on the property during 16
different shifts. (Tr. 66-67.) On July 13, an MSHA inspector issued Citation No. 6665554 for an
alleged failure to perform preshift examinations of the seals in violation of section 75.360(b)(5),
30 C.F.R. § 75.360(b)(5). (Comp. Ex. 3.) Additionally, Citation No. 7502210 was issued by
MSHA on July 19, for an alleged failure to maintain the seals for their intended purpose in
violation of section 75.333(h), 30 C.F.R. § 75.333(h). (Cotnp. Ex. 4.)
·
The day after the public hearing, July 13, Frazier spoke with Scarbro, Valerie Lee, Human
Resources Manager, and Leroy Mullins, Saf~ty Manager, about disciplining Howard. (Tr. 72,
484.) Consequently, on July 27, Howard was issued a written warning of disciplinary action. The
letter, which serves to put an employee on notice of the potential of further discipline, was placed
in Howard's personnel file. (Tr. 485.) After one year, July 27, 2008, the letter was removed.
(Tr. 232, 485.) The disciplinary letter stated:
On April 20, 2007 you potentially created an unsafe work
environment at the Band Mill # 2 mine by using a non permissible
[sic] video camera underground. This action is not only an unsafe
mining practice, but it is a violation of company policy to take
photos or video tape at any active site on company property
32 FMSHRC Page 985

without the prior written approval from the General Manager.
Based on your disregard for safety precautions in a potentially
hazardous situation, and violation of company policy you are
hereby given a written warning of disciplinary action.
(Comp. Ex. 7.)
Cumberland's policy on photography was initially established in an e-mail authored by
Holcomb. The e-mail was sent to Cumberland management personnel on August 25, 2004. 3
Approximately one year later, a letter regarding the photography policy was distributed to
Cumberland employees in their pay envelopes. It stated: "No one is allowed to take photos or
shoot video on any of the active sites on company property without prior, written approval from
the General Manager." (Comp. Ex. 6.)
Despite Cumberland's dissemination of its policy on photography, the totality of the
testimony by both employees and managers was that the photography policy was not enforced
during the period relevant to this proceeding. 4 Both employees and managers testified that
photographs were taken on Cumberland property and that some were even publically posted or
othetwise circulated. No employee or manager testified that he or she had receivecl written
permission from the General Manager, before taking a photograph. No employee or manager,
other than Howard, was disciplined for violating this policy.
Photographs taken by managers
Numerous managers for Cumberland testified that they had taken photographs without
the written consent of the General Manager. Scarbro took photographs underground, using a
3

The e-mail stated, in pertinent part:

In response to a recent fatality in the area, we should establish a
policy regarding video or photography on the property. Effective
immediately, no one is allowed to take photos or shoot video on
any of the active sites on company property Without written
approval from the General Manager. In eastern Kentucky recently
an employee decided to video a pillar fall underground, and he was
fatally injured when the roof collapsed.
(Comp. Ex. 5.)
4

The relevant period for this proceeding begins at the creation of the photography policy
(August 25, 2004) until the issuance of the disciplinary letter for a violation of the policy on July
27, 2007.
32 FMSHRC Page 986

non-permissible camera, four or five times. (Tr. 76, 79.) Although he believed that he had
permission to take photographs underground, it was not written permission. (Tr. 79, 90.)
Severalphotos were taken beyond the last open cross cut. (Tr. 91-92, 96-97, Comp. Ex. 9.)
Photography beyond the last open cross cut with a non-permissible camera is against MSHA
regulations. (Tr. 93.)
Keith Pinson, Load Out Plant Manager at the Preparation Load Out Facility, took
photographs on Cumberland property 40 to :So times withoutwritten permission. (Tr. 308, 310.)
Lee also took photographs on company property and three were published in the mine hewsletter,
Miner News, Vol. III, No. 1. (Comp. Ex. 15 at p. CRCC 0605, Tr. 190.) She did not have
written permission to take the photos. (Tr. 191.)
Mullins took about 16 photographs at various times in various location at the mine.
(Comp. Ex. 18, Tr. 292-296.) Mullins had verbal rather than written approval. (Tr. 269-272.)
Danny Webb, Mine Manager at Blue Ridge Surface and Highwall Miners for Cumberland River,
took about 12 photographs, during the relevant period, without written permission. {Tr. 302306.)
Holcomb was the General Manager at Band Mill from August 2004 to August 2006~
(Tr. 326.) During that time he asked managers to take photographs for business related purposes.
(Tr. 334-35.) According fo him, managers had implied permission to take photographs and
cameras were provided by the company. (Tr. 346.) He also claimed to have issued and denied
permission slips in response to employees' requests to take photographs, although the only one
he could remember was for Mike Yates, the Belt Portal manager. (Tr. 336, 344-45.) It turned
out, however, that the incidence with Yates occurred after Howard was disciplined and a year
after Holcomb had moved on to Lone Mountain. (Tr. 501.)
Photographs taken by employees
Employees of Cumberland also testified that they had taken photographs on company
property without the written consent of the General Manager. For example, at Lee's request,
Catina Ridings, Payroll and Human Resources Clerk, took about 20 photographs with a company
camera at an awards banquet held on Cumberland property. (Tr. 141, 156.) On another occasion
Pinson asked Ridings to take pictures at a retirement celebration. {Tr. 142.) The photographs
were taken in the parking lot, and later published' in the company newsletter. (Tr. 142-43.) She
did not have written permission from the General Manager, but instead had verbal permission
from her immediate boss. (Tr. 154-55.)
Terry Price, Maintenance Planner, testified that he took photographs on company
property from July 2005 to July 2007. (Tr. 364, 367.). Since a camera was issued to him and
taking photographs was an important part of his job, he did not believe that the policy applied to
him. (Tr. 374.)

32 FMSHRC Page 987

Further Findin&s of Fact and Conclusions of Law
Section 105(c)(l) of the Act, 30 U.S.C. § 815(c)(l), provides that a miner cannot be
discharged, discriminated against or interfered with in the exercise of his statutory rights because:
(1) he "has filed or made a complaint under or related to this Act, including a complaint ... of an
alleged danger or safety or health violation;" (2) he "is the subject of medical evaluations and
potential transfer under a standard published pursuant to section 101;" (3) he "has instituted or
caused to b~ instituted any proceeding under or related to this Act or has testified or is about to
testify in any such proceeding;" or (4) he has exercised "on behalf of himself or others ... any
statutory right afforded by this Act."

Jn order to establish a prima facie case of discrimination under section 105(c)(1 ), a
complaining miner must show: (1) That he engaged in protected activity; and (2) That the
adverse action he complains of was motivated at least partially by that activity. Driessen v.
Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Sec '.Y on behalf ofRobinette v.
United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981 ); Sec '.Y on behalfofPasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev'd on other grounds sub nom
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981). The operator may rebut the
prima facie case by showing either that no protected activity occurred or that the adverse action
was in no part motivated by the protected activity. Pasula, 2 FMSHRC at 2799-800. If the
operator cannot rebut the prima facie case in this manner, it, nevertheless, may defend
affirmatively by proving that it was also motivated by the miner's unprotected activity and would
have taken the adverse action for the unprotected activity alone. Id. at 2800; Robinette,
3 FMSHRC at 817-18; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F .2d 639, 642 (4th
Cir. 1987).
Protected Activity
Cumberland does not "dispute that [Howard] showing the video o[r] participating in the
MSHA hearing was protected activity." (Tr. 26.) Instead; Cumberland maintains that the Mine
Act does.not protect Howard's act of videotaping underground without the General Manager's
permission. (Resp. Br. at 15.) Cumberland alleges that "[t]here is a difference between
communicating a complaint about an allegedly hazardous condition, which is a protected activity,
and merely taking a picture of it, which is not." (Resp. Br. at 15.) Cumberland further asserts
that Howard did not make the video to ensure that the leaks were fixed, because he did not show
it to MSHA or the company until long after they had been repaired. (Resp. Br. at 16.)
As the courts have noted, the purpose of the Mine Act is "to protect the health and safety
of miners." Sewell Coal Co. v. FMSHRC, 686 F .2d 1066, 1071 (4th Cir. 1982). The antidiscrimination provision is to be interpreted expansively to effect this purpose. See Brock on
behalf ofParker v. Metric Constructors, Inc., 766 F.2d 469, 472 (11th Cir. 1985); Secy ofLabor
on behalf ofKeene v. Mullins, 888 F.2d 1448, 1452 (D.C. Cir 1989). Accordingly, I find that
Howard's vid~otaping of the condition of the seals was protected activity.
32 FMSHRC Page 988

The video camera was the method Howard used to document his safety concerns. He
then used the videotape to communicate those concerns to MSHA and the public at a hearing on
that very topic. Cumberland's assertion that it is protected activity to observe an unsafe
condition and tell someone about it, but not protected activity to take a picture of it and show it
unless one has the written permission of the General Manager is disingenuous. While the failure
to obtain written permission may have provided an independent basis for disciplining Howard, it
does not remove his videotaping of leaking seals from being protected activity, anymore than his
not wearing a hard hat while taking the video would make the videotaping unprotected. The
company does not argue that videotaping can never be protected activity, only that it is not if
done without written permission.
Nor is the operator's argument that Howard was not engaging in protected activity when
he videotaped the leaking seals, because he did not show it to anyone, other than his attorney,
until three months later, persuasive. He had already notified mine authorities of his concerns
about the seals when he recorded his observations in the preshift book and spoken to his
supervisors. It would make little sense for him to subsequently videotape the leaking seals ifhe
did not still have those concerns and believe that they were not being addressed.
Consequently, I conclude that Howard engaged in protected activity when he made the
videotape and when he showed the videotape at the MSHA hearing.
Adverse Action
The Commission has held that an adverse action is an act of commission or omission by
the operator subjecting the affected miner to discipline or to a detriment in his employment
relationship. Sec '.Y ofLabor on behalf ofJenldns v. Hecla-Day Mines Corp., 6 FMSHRC ·1842,
1847-48 (Aug. 1984). Cumberland maintains that Howard suffered no adverse action when he
was given the written warning ofdisciplinary action and it was placed in his personnel file. I
find that the written warning of disciplinary action was adverse.
Cumberland's position is based on the Supreme Court's decision in Burlington Northern
& Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). In that case, the court held that for an
action to be adverse under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3, the
complainant "must show that a reasonable employee would have found the challenged action
materially adverse, which in this context means it well might have 'dissuaded a reasonable
worker from making or supporting a charge of discrimination. "'5 Id. at 68 (Citations omitted).

5

Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), states that:
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees ... because he has

32 FMSHRC Page 989

Based on this, the company maintains that Howard suffered no adverse consequence because the
letter in his file did not deter him from making further discrimination claims.
Interestingly, the Complainant also cites the case in support of his claim. In describing
actions that were not materially adverse, the court said that "[a]n employee's decision to report
discriminatory behavior cannot immunize that employee from those petty slights or minor
annoyances that often take place at work and that all employees experience." Id. Howard argues
that the letter was not such a petty slight or minor annoyance.
At the outset, it should be noted that it is not clear whether Burlington Northern even
applies to section 105(c) cases. The Sixth Circuit Court of Appeals specifically declined to find
that the case applied to the Mine Act, .holding that such "[a] fundamental change in Mine Act
jurisprudence ... ought first to be considered by the Secretary and the Commission, neither of
whom is an active litigant here." Pendley v. FMSHRC, 601F.3d417, 428-29 (6th Cir. 2010).
The Secretary is not a litigant in this proceeding either.
However, it is not necessary to decide whether the Burlington Northern definition of
adverse action applies to Mine Act cases. I find that the warning of disciplinary action was
adverse both under existing law or under the Supreme Court's definition.
The disciplinary letter was a discrete act of discipline, issued for an alleged violation of
Cumberland's policy on photography. The issuance of a letter, rather than a verbal warning, is a
more severe form of discipline at Band Mill. 6 (Tr. 485.) It served to put Howard on notice that
further ~ction could be taken. (Tr. 485.) It wasn't until one year later that the letter was removed
from his personnel file. Therefore, the letter had potential consequences that remained long after
its issuance.
A rea,sonable miner, in a similar situation, might well be apprehensive about exercising .
protected rights under Section 105(c) for fear of future mor~ severe disciplinary action. The
letter could have had a potential chilling effect on further documentation of hazardous conditions
by Howard or by other miners aware of the disciplinary action. Thus, the fact that Howard
apparently was not deterred does not mean that the action was not adverse. Accordingly, I

fn. 5 (continued)
opposed any practice made an unlawful employment practice by
this subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.
6

The company has a three step disciplinary process-verbal warning, written warning or
discharge. (Tr. 484.)
32 FMSHRC Page 990

conclude that the issuance of the disciplinary letter was an adverse action.
Motivated by Protected Activity
The pertinent question in this case is whether the "adverse action" was motivated in any
part by protected activity. The Commission has recognized that direct evidence of motivation is
rarely encountered; more often, the only available evidence is indirect. Sec'y ofLabor on behalf
of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd on other grounds,
709 F.2d 86 (D.C. Cir. 1983). The Commission has identified several circumstantial indicia of
discriminatory intent: (1) hostility or animus toward the protected activity; (2) knowledge of the
protected activity; and (3) coincidence in time between the protected activity and adverse action.
Id.
Cumberland learned ·that Howard had shown a videotape of leaking seals in the Band Mill
mine at a public hearing on seals held by MSHA on July 12. The next day, Scarbro, Frazier, Lee
and Mullins began having discussions about disciplining him. (Tr. 72.) At that time, no one in
management had seen the video or talked to Howard about it. (Tr. 74-75, 484.) Obviously; they
were reacting to the fact that the mine's leaking seals were going to be in the news and that
MSHA had already been to the mine to inspect the seals. They did not even know for sure that
Howard was the one who had taken the videotape; all they knew was that he had shown it.
It is apparent that, almost immediately after gaining knowledge of the videotape showing,
management decided to discipline Howard. The fact that they did not actually issue the letter
until two weeks later because they were discussing the exact type of discipline and clearing the
language in the letter with counsel does not diminish the close coincidence in time between the
protected activity and the adverse action. Further, there can be little doubt that as a result of their
displeasure with Howard's actions that subjected the mine to MSHA and public scrutiny,
management decided to respond by disciplining him. Consequently, I have no trouble
concluding that, at a minimum, the issuance of the written warning of discipline was motivated,
in part, by Howard's protected activities.
The Operator's Affirmative Defense
Cumberland River has failed to show that no protected activity occurred or that the
adverse action was in not motivated by the protected activity. It has attempted to show, however,
that it also was motivated by the Howard's violation of the camera policy and would have taken
the adverse action for that unprotected activity alone. I find that it has failed to establish that
assertion.
·

In Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982), the Commission·
enunciated several indica of legitimate non-discriminatory reasons for an employer's adverse
action. These include evidence of the miner's unsatisfactory past work record, prior warnings to
the miner, past discipline consistent with that meted out to the complainant, and personnel rules
32 FMSHRC Page 991

or practices forbidding the conduct in question. Id. The Commission has explained that an
affirmative defense should not be "examined superficially or be approved automatically once
offered." Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982). In reviewing
affirmative defenses, the judge must "determine whether they are credible and, if so, whether
they would have motivated the particular operator as claimed." Bradley, 4 FMSHRC at 993.
The Commission has held that "pretext may be found ... where the asserted justification is
weak, implausible, or out ofline with the operator's normal business practices." Sec'y ofLabor
on behalfofPrice v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990).
I find that enforcement of the video policy with Howard was a pretext for disciplining
him for his protected activities. Although the camera policy stated that no one could take photos
or shoot videos without the prior, written approval of the General Manager, it is well established
that other employees of Cumberland routinely failed to abide by the photography policy. 7 Some
of the violations of the policy were open and obvious. Scarbro even admitted to taking
photographs, with a non-permissible camera, beyond the last open cross cut (in violation of
MSHA regulations). 8 Additionally, other members of the managerial staff routinely failed to
abide by the policy or instruct employees to abide by the policy. Indeed, prior to Howard, there
is no evidence that anyone had ever complied with the policy, much less been disciplined for not
following it.
The company argues that the managers who violated the policy had implied permission to
take photographs. Yet the written policy contains no exceptions. If all of the managers and
employees who testified about taking pictures had implied permission to take photographs then
there really W3$ no policy. It is obvious that the only reason the company decided to enforce the
policy with Howard was to. contrive a basis for disciplining him that ostensibly did not involve
his protected activities.
Conclusion
Charles Scott Howard, while performing his job as a preshift examiner, made numerous
entries in the preshift examination book about leaking seals in the Band Mill No. 2 Mine. When
action had not been taken to his satisfaction to correct the situation, he made a videotape of the
leaking seals. Three months later he showed the videotape at an MSHA public hearing on
improving seals in mines. When the company learned of his protected activities, it decided to
discipline him. As a result, a written warning of disciplinary action was placed in his file for
7

The same policy memo provided that cell phones could not be used on the job, but if
they had to be used, employees had to "clear the call with his or her immediate supervisor."
(Comp Ex. 6.) (emphasis added.) It is apparent that the company was aware of how to provide
for exceptions in the photography policy if that was the intention.
8

Howard's videotape was not made beyond the last open cross cut and, therefore, he was
not in an area of the mine where permissible equipment was required. (Tr. 283-84.)
32 FMSHRC Page 992

failing to get the written permission of the general manager before making the videotape and for
using a non-permissible camera in the mine. As the photography policy had never been adhered
to or enforced prior to its use with Howard, it clearly was used by the company to cover its
disciplining of him for engaging in protected activity. Consequently, I conclude that Howard was
discriminated against for engaging in.protected activities in violation of section 105(c) of the Act.
Order

Having determined that Howard was discriminated against unlawfully, it follows that he
is entitled to the relief sought in his complaint. Accordingly, it is ORDERED that the
Respondent:
1. Expunge from Howard's personnel file all references to the unlawful issuance
of the written warning of disciplinary action, and to expunge such references from
any other records maintained by the company. 9
2. Reimburse Howard for all reasonable and related economic losses or expenses
incurred in the institution and litigation of this case, including reasonable
attorney's fees.
3. Post this decision at all of its mining properties in Letcher County, Kentucky,
in conspicuous, unobstructed places where notices to employees are customarily
posted, for a period of 60 days.
The parties are. ORDERED TO CONFER within 21 days of the date of this decision for
the purpose of arriving at an agreement on the specific actions and monetary amounts that the
Respondent will undertake to carry out the remedies set out above. If an agreement is reached, it
shall be submitted with 30 days of the date of this decision.
If an agreement cannot be reached, the parties are FURTHER ORDERED to submit
their respective positions, concerning those issues on which they cannot agree, with supporting
arguments, case citations and references to the record, within 30 days of the date of this decision.
For those areas involving monetary damages on which the parties disagree, they shall submit
specific proposed dollar amounts for each category of relief. If a further hearing is required on
the remedial aspects of this case, the parties should so state.
In accordance with Commission Rule 44(b), 29 C.F.R. § 2700.44(b), a copy of this

9

The letter itself was removed from Howard's file one year after its issuance. (Tr. 23132.) However, there also may be pending lawsuits between Howard and the company which
reference the letter. (Tr. 243.) As long as those lawsuits, if any, are pending, the company may
maintain references to the letter in its litigation files.
32 FMSHRC Page 993

decision will be sent to the Regional Solicitor having responsibility for the Commonwealth of
Kentucky so that the Secretary may take the actions required by that rule.
The judge, or his duly appointed successor, retains jurisdiction in this matter until the
specific remedies to which Howard is entitled are resolved and finalized. Accordingly, this
decision will not become final until an order granting specific relief and awarding monetary
damages has been entered.

~~~

Senior Administrative Law Judge

Distribution:
Tony Oppegard, Esq., Attorney at Law, P.O. Box 22446, Lexington, KY 40522
Wes Addington, Esq., Appalachian Citizens Law Center, 3 I 7 Main Street, Whitesburg,
KY 41858
Timothy M. Biddle, Esq., Willa B. Perlmutter, Esq., Crowell & Moring LLP, 1001 Pennsylvania
Avenue, NW, Washington, DC 20004
Regional Solicitor, Office of the Solicitor, U.S. Department of Labor, 618 Church St., Suite 230,
Nashville, TN 37219-2456
/rps

32 FMSHRC Page 994

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N.W., SUITE 9500
WASHINGTON, D.C. 20001
(202) 577-6809
August 16, 2010
EMERGENCY RESPONSE PLAN
DISPUTE PROCEEDING

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

Docket No. VA 2010-489-E
Citation No. 7307437;07/2112010

CONSOLIDATION COAL COMPANY,
Respondent

Buchanan Mine #1
Mine IO 44-04856

DECISION
Appearances: Stephen Turow, Esq., Ashton Phillips, Esq., U.S. Department of Labor, Office of
the Solicitor, on behalf of the PetitioneL
R. Henry Moore, Jackson Kelly PLLC, for Respondent, Consolidation Coal Company
Before: Judge Moran
This case is before. the undersigned administrative law judge ("Court") on a Referral of an .
Emergency Response Plan Dispute by the Secretary of Labor ("Secretary") pursuant to
Commission Rule 24(a), 29 C.F.R. § 2700.24(a) and section 316(b)(2)(G) of the Federal Mine
Safety and Health Act of 1977 (the "Mine Act" or "Act"), as amended by the Mine Improvement
and New EmergencyResponse Act of2006 (the ''MINER Act"), 30 U.S.C. § 876(b)(2)(G).
Consol's Buchanan Mine No. 1 is an underground coal mine located in Mavisdale, Virginia.
The citation in issue, No. 7307437, a Section 104(a) citation, was issued on July21, 2010,
pursuant to Section 316(b) of the Mine Act. That citation notes MSHA's concern that the ERP
failed to demonstrate that it woul<i "effectively provide for the safe maintenance of individuals
who may be trapped underground in the mine for a sustained period of time" on the basis that the
Strata refuges can only maintain interior apparent temperatures at or below 95 °F when the mine ·
temperatures surrounding the refuges are 70° or less. MSHA advised that it needed "reliable
technical data that demonstrates that the Strata refuge alternatives ... can safely maintain miners
given the mine's specific conditions." Jt. Ex. 14 (emphasis added). Specifically, the Citation
states that, under its ERP, Consol will be using Strata Safety Products' ("Strata") Fresh Air Bays
for the refuge alternatives but that Consol has not shown that those units will provide a safe
environment for miners who may need to use them.

32 FMSHRC Page 995

Background
Section 2 of the MINER Act requires underground coal mine operators to develop and
submit for MSHA approval an emergency response and preparedness plan ("Emergency
Response Plan" or "ERP"). The ERP is intended to address the evacuation of miners who are
endangered by a mine emergency and to maintain miners who are trapped underground, unable to
evacuate the mine. 30 U.S.C. §876(b)(2). A central tenet of the MINER Act is to provide for the
maintenance of miners.who cannot evacuate and are forced to remain underground. S.Rep. No.
109-365, I 09th Cong., at 4 (2006) at 4. The legislative history for the MINER Act noted that,
where miners are unable to escape and therefore must await rescue, "breathable air is essential."
S.Rep. at 6. fu carrying out the legislation's directive, the Secretary issued guidance to the
mining community and this included Program Information Bulletin No. PO 7-03 ("PIB"), which
directed that ERPs must include a provision specifying how breathable air will be maintained.

The parties' stipulation as to the issues in this proceeding:
The parties stipulated that the following are the issues relevant to the resolution of the abovecaptioned ERP Dispute Proceeding.
a.
Did MSHA District Manager Ray McKinney act arbitrarily and capriciously in revoking
or withdrawing his approval of the refuge alternative provisions associated with the ERP adopted
by Consol for implementation at the Buchanan Mine #1?
b.
Did 30 C.F .R. § 75.1506(a)(3) obligate MSHA District Manager Ray McKinney to accept
the use of the ERP-specified Strata refuge units and prohibit him from revoking or withdrawing
his approval of the ERP as submitted by Consol for implementation at the Buchanan Mine #1?
c.
Given the course of interaction between Consol and MSHA's District 5 .office concerning
the use of Strata refuge units at the Buchanan Mine # 1, did MSHA act in accordance with 30
U.S.C. § 876(b)(2)(G) in issuing Citation No. 7307437.

The standard to be applied.
The Commission has niost recently addressed the subject of emergency response plans,
and disputes arising under those plans, in Twentymile Coal Co., 30 FMSHRC 736, 2008 WL '
4287782, August 2008, ("'Twentymile"). A review of the guidance in that decision is useful
here. 1 Jn ERP disputes, the scope of a hearing is limited to review of the disputed provision(s) of
the Plan. The Secretary has the burden of proving that MSHA's refusal to approve the disputed
The Commission, then composed of four members, divided evenly on the application ~f
the principles to be applied in ERP disputes, but there was unanimity as to the test itself. This
decision's reference to Twentymile speaks only to the aspects of that decision where the
Commission members were in agreement.
1

32 FMSHRC Page 996

aspects of the Plan was not "arbitrary and capricious:"2 That term is expressed in various ways.
For example, in Twentymile, Judge Manning described the inquiry as to a District Manager's
requirement to include a provision in the Plan as whether it was "not unreasonable." Still
another way to pose the question is whether the District Manager's decision was "reasonable in
light of the particular circumstances."
The Commission also noted that the concept of plans is not new under the Mine Act and
that the process of devising ERPs, as with the development of other plans, must address the
specific conditions of the particular mine involved. 3 The process of the development of plans in
general, including ERPs, is that the operator and MSHA first negotiate in good faith over
disputed provisions and that the negotiation continue for reasonable period of time. Thus, the
parties must identify and give notice of their respective positions and then engage in adequate
discussion of the disputed issues. Once that has occurred, however, as the negotiation process
cannot be unending, it is the Secretary's responsibility to "independently exercise [her] judgment
with respect to the content of ... plans in connection with [her] final approval of the plan." Id. at
* 10, quoting UMWA v. Dole, 870 F.2d 662, (D.C. Cir. 1989), involving mining plans. The point
is that, the negotiation process is not identical to that which may occur between private parties.
Rather, the Secretary, having made the effort to negotiate the issues, can ultimately "insist upon
the inclusion of specific provisions as a condition of the plan's approval." Id. This is bounded
only by the Secretary's duty to act in good faith and to not impose conditions arbitrarily. 4

~In Emerald Coal Res., LP, 29 FMSHRC 956(Dec. 2007), the Commission earlier upheld
the "arbitrary and capricious" standard of review, noted the applicability of the 'plan' model for
ERPs, stated that, as with other plans such as ventilation or roof control, ERPs must address "the
specific conditions of a particular mine," and that MSHA has a duty to negotiate differences over
ERPs in good faith and for a reasonable period of time. In upholding the Secretary's denial of
more time for the mine operafors to place purchase orders for refuge chambers, the Commission,
upon examining the "totality of [the] circumstances" concluded that the Secretary acted
reasonably.
3

The MINER Act includes six areas that must be addressed in all ERPs, one of which is
there must be post-accident breathable air for trapped miners which is sufficient to maintain them
"for a sustained period of time." Id. at* 10.
4

Consistent with its view of the process, the Commission rejected the contention that
mine operators may unilaterally implement their ERPs, expressing that ''the approval process,
with the involvement ofMSHA district office personnel, is an integral part of the plan
formulation process." Id. at *11.
32 FMSHRC Page 997

Jn examming the "breathable air" provision in Section 316 of the Mine Act, as amended
by the MINER Act, the Commission referenced the "Chevron" standard,5 and also noted that the
Section imposes additional breathable air requirements which are sufficient to maintain trapped
miners "for a sustained period of time." Id. at *13. The Commission expressly rejected the
argument that the test for a particular requirement applies only to "likely" risks, and instead
subscribed to the Secretary's standard that a "reasonable possibility'' is sufficient to justify a
requirement. 6 Id. It noted that the Senate Report expressed that the "emergency plan should
address possible incidents7 and the attendant need for sufficient breathable air [and that] [t]he
projected need is[] fact specific." Id. at *14.

The parties stipulations:
Consolidation Coal Company ("Consol") and the Secretary of Labor, by her undersigned counsel,
and stipulate and agreed, through counsel, as follows:

1.
The Buchanan Mine No. 1 ("Buchanan") is an underground bituminous coal mine located
near Mavisdale, Virginia.
2.
Buchanan produces coal by the use of longwall mining and utilizes continuous miners to
develop entries around blocks of coal to facilitate such mining.
3.

Buchanan is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977

5

Chevron U.S.A Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, (1984)
represents the foundation stone for statutory construction in the administrative law sphere. Its
essence is that, first, under the "Chevron Step One inquiry," one must determine if the statute
clearly speaks to the particular issue in dispute and if it does, such expressed Congressional
intent is applied.· However, where the statute is not clear, the "Chevron Step Two" analysis is
applied. That inquiry examines whether the agency's interpretation of the statutory provision is
reasonable.
6

Although the Commission was considering "reasonable possibility" in the context of
determining whether the miners could become trapped, and rejected the contention that the
measure was to show a "likely" risk of entrapment, the Court believes that the "reasonable
possibility" measure applies to the issue faced here; whether there was a 'reasonable possibility'
that miners awaiting rescue could be exposed to temperatures in the rescue chamber exceeding
95° F. Wliile the Commission did not find, applying the Chevron I analysis, that a "reasonable
possibility'' measure was compelled by the statute, it then applied the Chevron II analysis and
concluded that the Secretary's interpretation was reasonable.
7

The Commission also made it clear that, in reviewing challenges to disputed provisions
of an ERP, it is not germane to consider and compare how ERP's were being addressed in other
mining districts.
32 FMSHRC Page 998

("the Act"), 30 U.S.C. § 801 et seq.
On June 15, 2006, the Mine Improvement and New EmergencyResponseAct of2006
("the MINER Act") was enacted.

4.

5;
Section 316(b)(2) of the MINER Act requires that each underground coal mine operator
develop and adopt a written emergency response plan ("ERP").
6.
Section 316(b)(2) states that an adopted plan is subject to review and approval by the
Secretary.
7.
Among the elements required in each ERP are provisions with respect to supplying postaccident breathable air to trapped miners. Section 3 l 6(b)(2) of the Act contains, in part, the
following:
The plan shall provide for- (I) emergency supplies of breathable air for
individuals trapped underground sufficient to maintain such individuals
for a sustained period of time.
The use of refuge alternatives/chambers or shelters is a method of complying with the
requirements with respect to post-accident breathable air.
8.

9.
ERPs were initially submitted prior to the promulgation of the mandatory standards for
refuge chambers or refuge alternatives on·December 31, 2008.
10.
Consol developed an ERP that was initially approved in June 2007. A copy of such
initial plan has been marked as Joint Exhibit 1 and is offered into evidence.

11.
Such plan contemplated the use of refuge alternatives manufactured by Strata Safety
Produets LLC ("Strata"). It stated as follows:
The emergency shelters to be installed are the Strata Products 35 person Inflatable Refuge
Chambers (IRC).
12.
MSHA issued, on December 31, 2008, the finaJ rule relating to Refuge Alternatives for
Underground Coal Mines. A copy of the final rule is identified as Joint Exhibit 2 and is offered
into evidence.

The final rule specifies in 30 CFR § 75.1506(a) as follows:
Each operator shall provide refuge alternatives and components as follows:
(1) Prefabricated self-contained units, including the structural, breathable air, air
monitoring, and harmful gas removal components of the unit, shall be approved under 30 CFR
part 7; and
(2) The structural components of units consisting of 15 psi sfoppings constructed prior to
an event shall be approved by the District Manager, and the breathable air, air monitoring, and
13.

32 FMSHRC Page 999

harmful gas removal components of these units shall be approved under 30 CFR part 7.
(3) Prefabricated refuge alternative structures that states have approved and those that
MSHA has accepted in approved Emergency Response Plans (ERPs) that are in service prior to
March 2, 2009 are permitted until December 31, 2018, or until replaced, whichever comes first.
Breathable air, air-monitoring, and harmful gas removal components of either a prefabricated
self-contained unit or a unit consisting of 15 psi stoppings ... that states have approved and those
that MSHA has accepted in approved ERPs that are in use prior to March 2, 2009 are permitted
until December 31, 2013, or until preplaced, which ever comes first. ...
14.

The Strata unit is a prefabricated refuge alternative produced by Strata Safety Products

LLC.
15.
The Strata unit with a 36 person capacity, the type of units Consol utilizes, was approved
for use by the State of West Virginia.

16.

Such Strata units were in service at Buchanan prior to March 2, 2009.

17.
On October 15, 2009, Consol submitted a revised ERP for approval. It provided for the
continued use of Strata units. A copy of the October 15ERP is identified as Joint Exhibit 3 and
is offered into evidence.
18.
By letter dated November 12, 2009, MSHA approved Consol's proposed Buchanan ERP
in its entirety. A copy of the November 12, 2009 approval identified as Joint Exhibit 4 is offered
into evidence.

In his January 27, 2010 letter to Consol General Superintendent William Meade, MHSA
District Manager Ray McKinney sought to revoke Consol's October 15, 2009 ERP as it pertained
to refuge alt~atives in use at Buchanan. The letter served as the initial notice in the approval
revocation process. A copy of the January 27, 2010 letter is identified as Joint Exhibit 5 and is
offered into evidence.
19.

20.
On February 9, 2010, Mr. Meade responded to Mr. McKinney and addressed ambient
mine temperatures. A copy of the February 9, 2010 letter is identified as Joint Exhibit 6 and
offered into evidence.
21.
On April 8, 2010, Mr. McKinney replied to Mr. Meade's letter. Mr. McKinney indicated
the letter was intended to serve as the second notice in the plan revocation process. The letter
addressed Mr. McKinney's concerns about the Strata units' ability to maintain an internal
apparent temperature below 95 degrees where ambient mine temperatures exceeded 70 degrees.
A copy of the April 8, 20 IO letter is identified as Joint Exhibit 7 and it is offered into evidence.
22.
Buchanan General SuperintendentBrent Holbrook sent Mr. McKinney an April 30, 2010
letter memorializing discussions that he had with District 5 officials regarding Consol's interest
32 FMSHRC Page 1000

in the solutions identified by Mr. McKinney (e.g. de-rating refuge capacity and use of cooling
systems). The letter also addressed Mr. Holbrook's inquiries regarding the Strata's grandfathered
status. Mr. Holbrook requested a meeting and sought an extension to submit additional
information. A copy of the April 30, 2010 letter is identified as Joint Exhibit 8 and offered into
evidence.
23.
A May 4, 2010 letter from Mr. McKinney approved an extension request uhtil May 21,
2010. A copy of the May4, 2010 extension is identified as Joint Exhibit 9 and offered into
evidence.
24.
A May 21, 2010 letter from Mr. McKinney further extended the deadline, until June 4,
2010, to submit additional information regarding the efficacy of the use of Strata units at
Buchanan. A copy of the May 21, 2010 letter is identified as Joint Exhibit 10 and offered into
evidence.
25.
On July 13, 2010, Mr. McKinney sent Consol another letter and repeated his prior
concerns about the effect of temperatures in excess of70 degrees on the deployed Strata's
interior. Mr. McKinney indicated his intention to revoke the ERP at Buchanan on July 20, 2010
absent a compelling explanation for allowing additional time to provide the requested
information or the submission of a revised ERP specifying updated means for safely maintaining
trapped miners. A copy of the July 13, 2010 letter is identified as Joint Exhibit 11 and offered
into evidence.
26.
On July 20, 2010, Mr. Holbrook wrote Mr. McKinney proposing revisions to Buchanan's
ERP. The revised plan would limit the number of miners allowed on a section based upon the
temperature-adjusted refuge alternative capacity. A copy of the July 20, 2010 letter is identified
as Joint Exhibit 12 and offered into evidence.
27.
On July 21, 2010, Mr. McKinney sent a letter revoking Buchanan's ERP. Mr. McKinney
acknowledged that "in the abstract," Consol's "de-rating plan," which would reduce refuge
chamber capacity in areas of the mine with higher temperatures, "may be a viable approach," but
he rejected the revisions because they were inadequately supported. Mr. McKinney also
expressed concerns about the man:i:ler in which Consol had proposed to determine ambient mine
temperatures in the areas of the mine where the Strata units are located. A copy of the July 21,
2010 rejection letter is identified as Joint Exhibit 13 and offered into evidence.
28.
Citation No. 7347437 was issued on July 21, 2010, pursuant to Section 316(b)(2) of the
Act, 30 U.S.C. § 816(b)(2). A copy of the citation is identified as Joint Exhibit 14 and is offered
into evidence.
29.
Under the heading and caption "Condition or Practice" the Citation alleges as follows:
Consolidation Coal Company ("Consol") violated § 316(b)(2) of the Federal Mine Safety and
Health Act of 1977 ("Mine Act") by failing to develop, adopt, and submit to MSHA an
32 FMSHRC Page 1001

Emergency Response Plan ("ERP'') for use at the Buchanan Mine #1 that has been demonstrated
to effectively provide for the safe maintenance of individuals who may be trapped underground
in the mine for a sustained period of time.
Consol's ERP provides that Strata Safety Products' ("Strata") Fresh Air Bays will be used for the
refuge alternatives, but Consol has failed to demonstrate that these units will provide a safe
environment for miners who may need to seek refuge. Strata specified that their units can only
maintain miners at int~al apparent temperatures not exceeding 95° F when mine temperatures
surrounding the units are 70° F and below. However, temperatures in the mine have been
recorded as high at [sic] 78° F by mine examiners in locations where these units may be used,
and temperatures have regularly been measured in excess of 70° F by mine examiners and
MSHA inspectors in such locations. After repeated requests and significant opportunity, Consol
has failed to demonstrate that, as provided in the ERP, the Strata refuge alternatives will be
capable of maintaining interior apparent temperatures not exceeding 95° F.
MSHA has discussed this ERP provision with the operator over a period of seven months,
highlighted its concerns with respect to the use of the Strata refuge alternative as proposed in the
[Buchanan] Mine #1 , and explained the Agency's rationale for demanding reliable technical data
that demonstrates that the Strata refuge alternative as used at Buchanan Mine #1 can safely
maintain miners given the mine' s specific conditions. MSHA has carefully considered the
operator's position and reviewed all proposals the operator has submitted to address these
concerns. However, Consol has failed to provide reliable information to demonstrate that the
Strata refuge alternatives can safely maintain miners for a sustained period of time at Buchanan
Mine #1 given the manner that the refuges are proposed for use in the ERP.
30.
Strata has represented that, when used at maximum capacity, refuge units specified for
use in the Buchanan Mine #1 's ERP are capable of maintaining internal apparent temperatures at
or below 95 µegrees Fahrenheit when used in mining environments with ambient temperatures at
or below 70 degrees Fahrenheit.
31.
Both MSHA and Buchanan Mine #1 representatives have measured ambient mine
temperatures in excess of 70 degrees Fahrenheit at locations where Strata refuges are located
pursuant to Buchanan's existing ERP during certain of the warmer months ofthe year.
32.
The presiding Administrative Law Judge has jurisdiction over these proceedings,
pursuant to Section 105 of the Act.
33. . The parties stipulate to the authenticity of their exhibits, but not to the relevance or truth
of the matters asserted therein. The parties stipulate that the correspondence and attachments
between Consol and MSHA may be admitted into evidence without objection.
34.

Consol's operations affect interstate commerce.

32 FMSHRC Page 1002
.1"'

35.
The subject Citation was properly served by duly authorized representatives of the
Department of Labor upon an agent for Consol on the date and at the place indicated therein.

Findings of Fact
MSHA witness Gregory Meikle is the Assistant District Manager for the Technical
Division in Coal District · 5, Norton Office. His immediate supervisor is District Manager Ray
McKiml.ey. Meikle's duties include the oversight, review and maintenance of all required plans,
including emergency response plans. fu Mr. McKinney's absence, he is also the acting Distrid
Manager.
Regarding this dispute, Meikle explained that, with all plans, they are submitted to the
District Manager, and it is that individual who has the authority to either approve or deny, for
reason, any plan that is submitted under the regulation. 8 Here, the District Manager's concern
was with Consol's ERP. Particularly involved was the survivability of miners trapped
underground, an issue amplified by the agency's concerns about deep cover mines9 and their
ambient temperatures. As a consequence of those concerns, MSHA took measurements at the
Buchanan Mine. Those measurements were taken with an eye towards the worst case conditions,
that is, the temperatures during the hottest time of the year. Accordingly, a MSHA ventilation
specialist, David Woodward, took temperature measurements in August and September 2008 at
that mine at the location of the refuge alternatives. 10 These were, of course, taken in unsealed
areas ofthe mine. Government Exhibitl3 is a spreadsheet developed from those temperature
readings. The concern which was articulated from those temperature readings was that the Strata
units could be used at specifications higher than those for which the units were intended.

8

Meikle stated that with any plan, including ERPs, all parties with a stake in the matter
have an opportunity for input and that such input includes that derived from operators, miners,
miners' representatives, MSHA inspectors, both techillcal and enforcement, and the agency's
technical supervisory support group.
9Meikle expressed that MSHA had concerns over temperatures in deep cover mines as
they could impact upon the refuge chambers and the concern that temperatures above 70 degrees
could exceed the capabilities of the Strata units.
1

°Both 'dry bulb' an 'wet bulb' temperatures were taken. With the latter, employment of
a wet sleeve over the thermometer bulb enables one to calculate the humidity, while the former is
simply a 'bare' thermometer reading. For demonstrative p1lrposes, Gov~ Ex. 13A, was entered
into the record. It is a map, supplied by Consol Which presented, for demonstrative purposes, ·
a rough approximation of the location of the Strata units at the mine and the places where MSHA
took its thermometer readings.
32 FMSHRC Page 1003

Subsequently, MSHA learned from Strata, around November 2009, that the survivability
of miners inhabiting their units would be maintained as long as the mine ambient temperature,
(the mine air temperature) remained at 70 degrees or below. Meikle explained that the 70 degree
temperature could result in a 95 degree apparent temperature inside the unit when occupied at its
full capacity. This was significant because both NIOSH and the state of West Virginia had.
determined that temperatures in such refuges could not be more than 95 degrees without risking
survivability to those in them.
MSHA did not feel that the February and March 2005 bore hole temperatures, supplied
by Consol, and indicating that the mine's temperatures would not exceed 70 degret1s, were a ..
reliable indicator of ambient temperatures to which miners could be exposed. Rather, MSHA
preferred to rely upon other temperatures, taken by Consol, as reflected in Gov. Ex. 14. Those
temperatures were derived from the Buchanan Mine No. 1 examination books, and they recorded
the apparent temperatures around the mine' s refuge chambers.
Gov. Exhibits 14A and 14B were offered to drive home the point established by Consol's
own temperature readings. Exhibit 14A is a spreadsheet developed from Consol's temperature
readings. While the spreadsheet does not reflect all of the temperature data from Consol, it
would have made no sense to include all of the readings, as MSHA was concerned, in the context
of the survivability of miners in a rescue chamber, about those readings above 70 degrees.
Exhibit 14B is an e-mail sent from Bill Fisher, an engineer for Consol and Buchanan Mine No. 1,
in connection with the operator plan submittal to MSHA. Attachments with that email consisted
of charts developed of temperatures at certain locations in the Buchanan Mine and they involved
July 2010 temperatures. These also show temperatures at the mine in excess of 70 degrees. The
point of this information is that Consol itselfhas recorded temperatures in 2010 which were
above 70 degrees at this mine at locations of the refuge chambers. Accordingly, there can be no
serious dispute that mine temperatures at this mine at the relevant locations for this dispute (i.e.
the location of the Strata refuge units) can and do exceed 70 degrees.
This information, that is, the temperature readings and the information from Strata,
prompted the District Manager's concern about the survivability of miners in those rescue
chambers under those temperatures 11 and resulted in the January 27, 2010 MSHA letter to
Consol. Joint Ex. 5. The letter, from District Manager McKinney, expressed his concern about
the Strata units being used in conditions beyond their intended use and that miners would not be
protected under such conditions. 12 Accordingly, the letter sought information from Consol to

11

The information from Strata advising about the problem associated with temperatures
above 70 ° was received by MSHA in late November, 2009.
12

Govemment Exhibit 23 is a letter from Strata Safety Products discussing the refuge
chamber internal heat/humidity statement. It references that a 70-degree ambient mine
temperature is the temperature at which their fresh air base could maintain a 95-degree apparent
temperature. Tr. 98
32 FMSHRC Page 1004

support the continued use of the Strata units under those adverse conditions. Reducing the
number of persons occupying such refuges or employing a suitable cooling system were
mentioned as possible solutions to the problem.
Consol's initial response was that the mine's temperatures would not exceed 70 degrees.
Its theory was that cooler mine air flowing over the refuges from the mine' s ventilation would
reduce the temperatures inside the rescue unit. Consol also cited to bore hole temperatures 13 but
MSHA concluded that the information it provided did not support the use of the refuge chambers
in the conditions that concerned MSHA. That is, conditions where the mine temperature
exceeded 70°. MSHA could not subscribe to the bore hole temperatures because most of them
were taken from sealed areas of the mine. 14 In contrast, the temperatures taken by MSHA were
derived, as previously mentioned, from the relevant active areas of the mine. Miners, of course,
by definition, cannot take refuge in 'sealed' areas of a mine.
Further discussion of the mine temperatures is clearly unwarranted. There is no credible
information to rebut that mine temperatures at this mine exceed 70°, at least at certain times of
the year. Not surprisingly, these temperatures are experienced in the summer months. So too,
the claim that the mine's ventilation system would act to cool the refuge chamber down so that
effectively the temperature would not exceed 70° and therefore that the refuge interior would not
exceed 95 °does not warrant further discussion because, even if the ventilation had that effect, it
provides no answer to a scenario where the ventilation had shut down during a mine emergency.
Joint Ex. 7 represents MSHA's response, identifying the expression of its concerns to the
information offered by Consol. That letter, which referenced possible solutions to the problem
MSHA identified, gave Consol until April 30, 2010 to provide the information to support the use
and conditions for the refuge units. Consol's response asked for more time to submit the
information requested by MSHA and the request was granted. Jt. Ex. 9. The extension gave
Consol until May 21 51 • Then, another extension was allowed by MSHA, this time until June 4,
2010. Jt. Ex. 10. At Consol's request, MSHA also had a meeting with the Respondent on May
24, 2010. Gov. Ex 8 reflects Meikle's notes of that meeting. Tr. 80. Among other aspects of
that meeting, Consol advanced its belief that MSHA had to accept the Strata units as they had
been 'grandfathered.' Tr. 81. Meikle expressed that both he and the District Manager were not

13

A bit of an audacious offering on the part of Consol, at least in terms of the data's
genesis, the bore hole temperatures it cited to support its claim that the mine does not experience
temperatures above 70°came about after methane explosion fires in 2005 and 2007. The bore
holes were drilled to determine gas concentrations and to assess whether there was any active fire
going on in the sealed area. Tr. at 71-72.
14

Consol' s theory was that temperature measurements from a sealed area of the mine·
would be most indicative of the temperatures the refuge chambers would experience if the mine's
ventilation shut down in an emergency. Tr. 119-120. Based on the record as a whole, for the
reasons advanced by MSHA, the Court does not subscribe to this claim.
32 FMSHRC Page 1005

asserting that the Strata units could not be used. Rather, they were questioning how the units
were being used in the context of the adverse temperatures that had been recorded.
According to Meikle, Consol agreed to provide information to support the use of the units
in temperatures above 70°. Although the expectation was that Consol would provide
information, that is supporting documentation, to justify the use of the refuge under those
elevated temperature conditions, Consol never provided it by the new deadline of June 4th.
Tr.83. Following that, the MSHA District Manager again wrote to Consol on July l 31h. Jt. Ex.
11. Among other reasons, the letter was prompted by the District Manager's concern about the
hot summer months that had arrived. This time, the letter gave Consol until July 20th to provide
the information it needed regarding "the use of the refuge alternatives in the mine, in the
conditions we expected and had measured." Tr. 86.
Consol did provide information to MSHA on July 20th. Jt. Ex. 12. Meikle received a
draft ofthis information early the same day and he expressed to Consol that it did not provide the
information MSHA was seeking. Tr. 87. No additional information was provided after that and
Consol did not refer MSHA to any other source for that information.. However, Consol did
provide a table or chart, proposing to limit the number of miners that would occupy the refuges,
based on mine temperatures and this information was apparently derived through Strata.
Appendix C. Tr. 88. Meikle contacted MSHA's Tech Support to learn about Strata's
discussions with that MSHA division and he learned that Tech Support advised that they didn't
have information to support the proposed derating chart. Tr. 89.
The critical point, as expressed by Mr. Meikle, was that the information Consol provided
in its July 201h submission did not enable MSHA to conclude that the refuges would maintain
miners under the conditions that concerned it. Tr. 91. Thus, Consol did not submit any
additional information to support the Appendix C deration table it presented. Tr. 96. As Meikle
noted, the District Office did have discussions with MSHA's Technical Support Division, about
the reliability of the data submitted by Consol. He related that Tech Support had questions over
whether the derating table could be substantiated and that, without such data, they simply were
not in a position to assert whether it was reliable or not. Tr. 96. Nor did Strata have such data by
July 20th. Instead, as Meikle recollected, there were efforts to have such data from tests but they
would not be conducted for weeks. Tr. 97.

In further explaining why MSHA decided to issue the citation on July 21 51, Meikle noted
''we were approaching the time of year where we knew, and already had credible relevant
information that the temperatures were exceeding the 70 degrees, and that was a part of our
concern, that if miners had to utilize those refuge alternatives, they would not have been
afforded, through the use of this refuge alternative, the opportunity to remain at a 95 degree
ambient temperature inside, if at full capacity, or derated capacity. We didn't have the
information to support that." Tr. 93.

32 FMSHRC Page 1006

'

Not only did MSHA have problems with the lack of data to support the deration chart, it
also had issues with the proposal to average temperatures from the previous week. Tr. 92. As
Meikle succinctly put it, " It's not the temperature last week that's going to get me if rm in that
refuge. It's the temperature at the time rm in the refuge." Tr. 92. (emphasis added).
Meikle stated that the mine was being cited, not for violating the safety standard that
contained the grandfather clause, but rather for failing to demonstrate that the refuges would
provide a safe environment for miners. Tr. 94. Joint Exhibit 14 is the citation that was issued
and Joint Exhibit 13 was a letter which accompanied that citation, explaining the rationale for the
citation's issuance. Speaking further to the contention of Consol that the grandfather provision
made any citation a nullity, Meikle noted by analogy that as part of his duties he reviews other
mine operator plans, such as ventilation and roof control plans. In that role he has rejected plans
that proposed to use a piece of equipment in an unsafe manner, even though the equipment itself
was otherwise approved. Tr. 95.
As brought out through its cross-examination of Meikle, one of Consol's contentions is
that MSHA, in its "questions and answers" related to refuge chambers, dated April 29, 2009, it
stated that the capacity of grandfathered state-approved units does not have to be reduced to
comply with Section 75.1506(b)(l). Tr. 108-109. Consol Ex. 1., Gov. Ex. 8. As MSHA pointed
out, the Final Rule discussing 75.1506(b)(l) provided in the answer to that question that "Refuge
alternatives shall provide at least 15 square feet of floor space per person and 30 to 60 cubic feet
of voiume per person, according to the following chart. The air lock can be included in the space
and volume if waste is disposed outside of the refuge alternative." Accordingly, MSHA took
note that those issues are not present in this litigation. Tr. 126. Joint Ex. 2, the Final Rule at
page 80698
Another contention of Consol is that MSHA did not do enough when it was aware, on
July 20th and on the 21 51 , that Strata was doing tests. Consol believes that MSHA should have
contacted Strata about this. However, this contention overlooks that it is the mine operator's
plan and that it is the mine operator's responsibility to obtain supporting data. Tr. 124.
MSHA's second witness, Wesley Shumaker, is a general engineer with the Applied
Engineering Division, Approval and Certification Center, Director of Technical Support. Tr.
138. He noted that Tech Support-is not the entity that determines whether an ERP should be
approved. Rather, approval is made by theindividual MSHA districts. Tr. 144. Shumaker
explained that the term "apparent temperature," sometimes referred to as "effective temperature"
is a way of characterizing the effects of temperature and humidity on humans and how it relates
to "core temperatirre" and its effects. Tr. 147. In this regard the witness identified the NIOSH
report on refuge alternatives and its reference to a 95 degree apparent temperature threshold. He
noted that West Virginia has established an upper limit of 95 degrees Fahrenheit for this as well.
Tr. 148-149. Gov. Exhibit 15. Gov. Exhibit 16, an excerpt from tJ;ie West Virginia Mine Safety
Technology Task Force report, reiterates this maximum apparent temperature for refuges. Tr.
150-151.

32 FMSHRC Page 1007

In other testimony, Shumaker explained that derating calculations are not simple matters
to carry out. Further, he noted that, while NIOSH can conduct such tests, Tech Support does not
have authority to test refuge units. Tr. 156-157. Gov. Exhibit 15, a December 2007 report by
NIOSH, involved the same 36 person Strata unit at issue in this litigation. However, those tests
were conducted at 60 degrees Fahrenheit ambient temperatures and as such he could not assert
that the unit would pass at 70 degrees, for example. Tr. 158. Importantly, beyond the
deficiencies noted, making comparisons at different temperatures and with different size refuge
units, Shumaker noted that before the citation was issued here he did not have the "actual test .
report'' from Strata. 15 Tr. 160-161. Shumaker' s overarching point was that, while it had done
some "rough calculations," Tech Support simply did not have the information it needed to assess
whether the units would work safely. While Strata has asserted that their units were effective to
70 degrees, Tech Support lacked the mechanism to verify that claim. Tr. 167, As he again
noted, such calculations are ''very complicated." Tr. 165. As Tech Support only had a
summation of that testing, it could not evaluate it, as it did not know how the testing was done.
Then too, another problem was that it involved testing on a 26 man, not a 36 man unit. Tr. 168.
Accordingly, speaking as an engineer, Shumaker could not say, based on the limited information
Tech Support had, that the unit could work above 70 degrees without exceeding the maximum
apparent temperatures. Tr. 170. Nor did the meeting which ensued between Strata and Tech
Support lay those concerns to rest. Shumaker described Strata's results regarding the 26 man
unit as "off-the-cuff," meaning that supporting data was not presented. As for the more
pertinent information regarding its 36 man refuge unit, Strata advised only that they had
contracted with an engineering firm to do computer modeling for derating information. Tr. 173.
There was also the matter of when the engineering firm would have the testing results. Thus, as
of the July 13, 2010 meeting with Strata, there was no set timetable as to when the results would
be presented, but as Shumaker understood it, the data was at least four weeks away. Tr. 177.
Accordingly, while Strata believed that its ratio comparison, as adapted for a 36 man unit, from
its 26 man information, would work, the fact it was pursuing modeling was an acknowledgment
that data to h,ack up their belief was still needed. Tr. 174-1 77.
In summing up his concerns, Shumaker agreed with the Court's characterization of the
heart of the problem that, even ifthe derating proposal he had at the time of the July 13th meeting
with Strata were delivered by a priest, a rabbi and a minister, and thus could be no doubt about
earnest belief that the derating would effectively protect miners from temperatures above 95
degrees, Tech Support would still need to independently understand the basis for their
conclusions, as it cannot take such assertions on faith. Rather it needs to understand the
underlying basis for the conclusions being asserted. Tr. 182. More precisely, Shumaker stated:
"[W]e thought that there had to.be more information available to be able to make a good decision
that the derating chart was a safe one to use." Tr. 180. Thus, while he believed that derating can
be used, the information was needed to know what a safe level is and this is accomplished

15

Tech Support, prior to the issuance of the citation here, had Strata's initial submission to
the state of West Virginia which included its methodology calculation for apparent temperature
in one of its refuge chamber models, but it was not for a 36 person unit. Tr. 163.
32 FMSHRC Page 1008

through validation. Tr. 180.
Michael Canada is a Manager for Safety for Consol's Central Appalachia Operations. Tr.
202. Although he stated initially that far fewer than 36 persons would ever occupy the Strata
units in this litigation, he later allowed that under some circumstances such numbers could occur.
Circumstances such as "hot seat" change outs as shifts change and during a long wall move could
present the potential for as many as 40 people working at such a location. However, Mr. Canada
then maintained that there would be two chambers available and consequently that only 20
miners would need to seek refuge in a given chamber. Tr. 222-223. Even ifthatis the case, as
the Secretary pointed out through cross-examination, Consol never brought such a contention to
MSHA prior to the issuance of the citation. Tr. 225-226.
Mr. Canada also asserted several times that he "felt good," and in fact "felt real good"
about his conclusion that temperatures in the shelters would not go above the 95 °F mark because
the mine' s ventilation would keep things below that. He felt the same way about the scenario
presented if the ventilation shut down. Tr. 208-209. While the Court in no way challenges Mr.
Canada's feelings that such temperatures would not exceed 95°, it illustrates the fundamental
problem over which MSHA'sTech Support division and the District Manager were grappling.
They needed data, not simply good faith belief, to support those claims. Canada conceded the
point, admitting that he lacked a basis and data to support his feeling, and relied upon his
experience that told him that when air moves it cools~ Tr. 227. However, as lives could be at
stake, MSHA reasonably concluded that it needed data to intelligently assess the beliefs.
The second, and last witness called by Consol, was John Reinmann, who is the Vice
President of engineering and operation for Strata. His testimony, in its critical aspects, may be
summarized quite briefly. 16 He acknowledged that Strata met with Tech Support representatives
on July 13th and that they discussed Strata's cooling development work and the "concept of
derating as an option." Tr. 240. Realizing that it would have to do additional testing and that
they could not rely on NIOSH to do that, Reinmann expressed that Strata knew it would "have to
set up and contract to get our units tested." This resulted in testing in February 2008 to "simulate
the mine conditions and to simulate the people inside [refuge] chambers." Tr. 241. Later that
same year Strata did tests on a 26 man refuge unit. 17 For that 26 man unit, Strata determined
that, at 76 degrees, ten men would be the most it would recommend occupying its refuge. Tr.
244. The refuge units at the Buchanan mine were "never mentioned during the entire meeting."
Tr. 245. Significantly, Mr. Reinmann acknowledged that the modeling t9 determine
temperatures in these refuge units "having to deal with both the temperature issue and the
humidity issue and what's going on at all the surfaces in there, ... it gets to be a very
complicated problem." Tr. 246. (emphasis added). Thus Mr. Reinmann effectively conceded
that the simple ratio attempted to be employed by Consol to their 36 man units is not so simple a

16

Mr. Reinmann's testimony was brief by any measure, covering 23 pages of transcript.

17

The testing is done using 'simulated' people, in the form of electrical coils. Tr. 243.
32 FMSHRC Page 1009

leap and by that statement as well as by the testing Strata was contracting to have done, he
admitted that the ratio is no genuine substitute for data. 18

Discussion 19
There are several aspects of this matter that, on this record, cannot be considered to be in
genuine dispute. First, there is no reasonable dispute that adverse physical results occur when
people are subjected to apparent temperatures above 95 ° Fahrenheit. Thus, that is at the
top-most tolerable temperature for miners to exist, for sustained periods of time, while in a refuge
chamber, awaiting a rescue. This is, in the Court's view, important to bear in mind, as the 95 °
mark represents the maximum temperature; it is not as if there is then available some margin
above that under which miners can stay in a refuge chamber and not risk adverse physical
effects. 20 A second, undisputed, fact is that the Strata 36-:person units used at this mine can only
keep miners at or below that critical 95 °mark when the ambient temperature around the refuge
chamber is 70° For less. 21 With those important facts in mind, the record establishes that the
mine' s ambient temperatures in fact exceeded 70 ° ·during the warmer months of the year at
locations where the refuge units were located. 22 Accordingly, the reasonableness of District
Manager McKinney's decision to issue the citation in issue here must be assessed both in the
context that the discussions between MSHA and Consol had gone on for six months and also,
given McKinney's justifiable concerns, in view of Consol's failure to provide sufficient, reliable,
as opposed to anecdotal, information for MSHA to reasonably conclude that miners would not in
fact be subject to temperatures above the maximum tolerable,.should they have to seek refuge in
the Strata unit.

The contention that the District Manager prematurely ended the discussions regarding the
disputed issue.
Consol contends that the District Manager acted arbitrarily and capriciously in that he
"prematurely terminated [the] ERP discussions." Consol Br. at 15. Under this perspective, when

18

Mr. Reinmann. could only offer ''we think 15 men in a 36-man chamber at 76 degrees
ambient, [that] the· conditions will· stay below the 95 degrees ambient." Tr. 248 (emphasis added).
19

This portion of the decision incorporates the contentions made the parties in their posthearing submissions.
20

Gov. Ex. 15 & 16, Tr. At 36, 151-156.

21

Gov. Ex. 23 & 24, Tr. 44, 52, 252-253.

22

Gov. Ex. 13, 14, 14A, 14B, and Tr. at 44-45, 54-56.
32 FMSHRC Page 1010

Consol submitted its derating plan on July 20, 2010,23 the District Manager's act of rejecting it
the next day was on its face arbitrary and capricious because that was an insufficient amount of
time to review and further discuss Consol's offering. In the Court's view, the problem with that
contention is that it views the District Manager's action as a snapshot and by doing that it ignores
that the whole matter had been in discussion since late January 2010, some six months earlier.
Although the turnaround time for the District Manager's response was short, only a day, MSHA
knew, within that time frame, that the supportive data it needed was still lacking andit knew,
even in that brief time, that Consol's idea that one could use the previous week's average
temperatures to determine the derating schedule for the following week was inherently suspect,
as it is clear that such a predictive method may miss the actual temperatures of the following
week by a significant amount. Further discussion would not cure either deficiency.
Although Consol asserts that the District Manager could only revoke the plan ''where the
parties reach an impasse in which the operator refuses to comply with the District Manager's
plan demands," that view is not consistent with the guidance the Commission has provided in
matters involving ERPs. 24 This view also fails to consider the context in which the District
Manager acted; the hottest months of the year were then present. Thus, in the context of the
discussion that had been going on for six months and that the hottest months had now arrived,
the Court does not agree with the assertion that the District Manager acted "prematurely and
precipitously'' in deciding to issue the subject citation.
Further, the discussions between MSHA and Consol during the six months preceding the
issuance of the citation, MSHA did not dictate how Consol was to assure that the refuge
chambers not exceed the 95 ° maximum, as it allowed that this could be achieved, potentially;25
through air conditioning for the units or at least through the more basic method of simply
"de-rating" the units, a term which simply means reducing the maximum number of miners that

23

Consol acknowledges that it was not until July 20, 2010 that it first "submitted a
specific derating proposal for the refuge alternatives." Consol Br. at 6.
24

While Consol argues that the District Manager's statement that Consol's plan offered a
potentially viable approach demonstrates that it was premature for MSHA to end the discussions,
as it was made only a day after Consol's July 20th submission, this contention ignores that MSHA
had concluded that further talk would not be a suitable substitute for the supporting data and that
the talk had been going on for a half a year. This contention folds into Consol's related assertion
that, at that point, it was MSHA 's responsibility to obtain such data from Strata. Consol Br. at
20. Last, in this regard, while Consol also contends that Strata had the needed data and that it
was available to the District Manager, the claim that Strata had the data is not supported by the
record and consequently the idea that it was "available" is not supported either.
25

The approach of reducing refuge chambers through air conditioning is not realistic at
this point in time as there are no approved units presently. Tr. 105. Thus, only derating is a
viable remedy to this issue.
32 FMSHRC Page 1011

would occupy a chamber, down from the 36 person maximum each unit could accomodate. 26
But "de-rating" is more complex than simply plucking a reduced occupancy nwpber out of the air
and then declaring that, with that reduced number, the 95°mark would not be exceeded. MSHA
must be able to independently evaluate, by being provided with some reasonably supported
scientific data, that the de-rated number of miners occupying the chamber would not endure
temperatures above 95 degrees. Under such a standard of review, Consol did not provide MSHA
with any reliable information so that it could independently assess the impact of the proposed derated number on the ambient temperature. 27
Accordingly, while Consol attempted, on July 20, 2010, a date at the very end of a sixmonth period of time, during which period discussions occurred with MSHA, 28 to provide soQ:Ie
information to support its de-rating proposal, it lacked the critical supporting data, for MSHA to
thoughtfully assess it. Accepting the proposal in that state would have required MSHA to adopt it
on faith, instead of science. The late-in-the-discussion data, provided through Strata, was a
simply a linear extrapolation. As set forth in footnote 6 of the Secretary's Post-hearing
Statement, when Strata met with MSHA on July 13, 2010, they "explained that the de-rating
calculation for the 36-person unit was based on a single test on a Strata 26-person unit at 76°F
[and that] they calculated the appropriate de-rating value for the 36-person unit at 76°F by
merely performing a proportional calculation based on the de-rating result obtained from the
single test on the 26-person unit." See See's Stmt at n. 6 p. 8. With these variables at work,
MSHA's Technical Support section could not agree with any independent degree of confidence
that the simple linear extrapolation was sufficiently reliable. Strata admitted as much, since it
acknowledged that computer modeling would be needed to support the claim that the linear
extrapolation would be a reliable predictor of the temperatures. Tr.174-175.
It was against this backdrop, the elapsing of six months of opportunity for discussion and
the late-presented linear extrapolation approach to de-rating, an approach unsupported with any
computer m9deling data, that the District Manager, aware that the hottest months of the year

26

Brief mention may be made of Consol's assertion that it was extremely unlikely that 36
miners would ever need to use a given Strata unit. First, the Court agrees that because, as of the
time of the citation's issuance, Consol had not made that claim, and because the Court agrees
with the Secretary's contention-that the District Manager's decision to issue the citation must be
evaluated on the basis of what he knew at the time that citation was issued, that argument cannot
be considered now. Even though that is dispositive of the contention, it is also noted that
Consol's witness at the hearing conceded that there can be circumstances when as many as 40
miners may be at work in a particular part of the mine at a given point in time.
27

To be clear, neither Strata, nor Consol, provided such reliable information to MSHA.

28

To be sure there were some delays in responses during the six month period of
discussion time but, given the requested extensions by Consol, it can hardly be claimed that this
was attributable to one side exclusively.
32 FMSHRC Page 1012

were at hand, reasonably decided he could wait no longer and issued the subject citation. 29
Neither the information provided by Consol which tended to show how mine ventilation
can cool the temperatures inside a refuge, nor its mine temperature readings from sealed areas of
the mine, assuaged the District Manager's concerns that there could be days when the
temperature in the refuge could exceed 95 degrees. The Secretary asserts, and the Court agrees,
that this information was not dispositive, in the case of ventilation's cooling effect, as that
assumption takes as a given that the mine's ventilation will continue to operate after a mine event
in which miners cannot evacuate. Just as Consol's argument that, for most of the year,
temperatures in the mine are at or below 70 °, will not help miners awaiting rescue in a refuge
chamber if the mine's temperatures are above that on the day of a disaster, nor can the
assumption that ventilation will cool a rescue chamber actually have such an effect ifthe
ventilation, for whatever reason, shuts down during a mine disaster. By their very nature, plans
to save miners, in the event of a disaster, cannot be built upon the odds that the mine ventilation
will keep running any more than such plans can 'play the percentages' that the disaster will·
cooperate and occur on a day when the mine's temperatures are at the year's average. 30
As to the temperatures Consol presented from sealed off areas of the mine, offered to
show the ambient temperatures, if there is no ventilation operating in an event requiring the use
of a refuge chamber, MSHA points out that Consol did not provide information showing how
long it would take for the ambient temperatures to match up with those of the surrounding rock.
While, at some point, such equilibrium may occur, there was no data to show the time it would
take for this to happen. 31

29

The District Manager's concerns were not limited to the lack of independent
information to support the linear extrapolation proposal. He also had issues with Consol's idea
that it would determine the ambient temperature for an upcoming week by averaging the previous
week's temperatures. That concern stemmed from the fact that a previous week's temperatures
can not guarantee those of a current week.
3

°The Secretary also points out that Consol, as with the lack of supporting data for the
linear de-rating, failed to provide data or analysis, to show the efficacy of forced convection. JT
Ex. 7 at p. 2; and at 8, 9 and 12. See's Stmt at 12.
31

The Secretary notes this was not the only problem with the 'surrounding rock'
temperature theory advanced by Consol. For example, the temperatures Consol took were taken
in the cooler months of February and March and the ambient temperatures in the sealed area had
between 7 to 30 days to attain the levels recorded. But, in the event of a mine disaster and the
need to retreat to a mine refuge, there is no such time luxury for temperatures to even out.
Indeed, the refuge chamber is designed with the hope that, within 96 hours, those trapped will be
rescued. Though this is certainly enough to justify MSHA's rejection of the 'surrounding rock'
temperatures as a gauge of the ambient temperatures, MSHA considered and then rejected that
theory in its final rule for the refuge alternative. JT Ex. 2 at p 80663. Tr. at 258.
32 FMSHRC Page 1013

Further addressing the timing of the District Manager's decision to issue the citation on
July 21, 20 I 0, the Secretary observes that Congress provided a mechanism for resolving ERP
disputes which emphasized promptness. 32 As mentioned, beyond that clear expression of
Congressional will, there was the practical consideration facing the District Manager: the very
months he was concerned about, the warm months of summer, were at hand. In short, the
dialogue had gone on long enough. Congress and the .Mine Act made it clear that, certainly by
July, it was time for this dispute to be referred to the Commission. 33 Beyond satisfying the
procedural requirement to discuss the refuge chamber temperature issues, the Secretary notes
that, substantively, the District Manager was also conferring with MSHA's Technical Support
division during this process. These consultations with MSHA's Tech Support caused him to
conclude that Consol had not provided the reliable support needed for him to accept their derating plan. Given that no reliable support would be forthcoming until the computer modeling
was completed, and as that the date for that information's delivery was uncertain, the District
Manager reasonably concluded that, as the hottest months were upon the mine, the citation had to
be issued.
The contention that the grandfathering provision precludes MSHA from raising objections
concerning refuge chambers until 2018.
It is Consol's contention that "MSHA was aware of the issue of mine temperatures
[which were] above the apparent temperature criteria used by the State of West Viriginia in
approving shelters" and that, in 30 C.F.R. § 75.1506, it 'grandfathered' such approved shelters
anyway. 34 Consol Br. at 7-8.
Consol argues that 30 CFR § 75.1506(a)(3) exempted the ERP-provided Strata refuge
units from the compliance standards and that, as a consequence of that exemption, the District
Manager had no choice but to accept their use at the Buchanan Mine No. I. Con.Sol Br. at 21.
Consol contends that the language of this provision could not be clearer; it maintains that such
"grandfathered refuge alternatives are exempt from compliance with the standards as they relate
to ERPs." Consol Br. at 22. For Consol, this means that ifrefuge has deficiencies, as long as it
is "grandfathered" the ERP cannot be denied or revoked, no matter what. All that needs to be

32

The Secretary points to S. Rep. I 09-365, 109th Cong., 2d Sess (Dec. 6, 2006), in which
Congress spoke to "the need for expedition in the resolution of [ERP] disputes." See's Stmt at
15.
33

0n this point, the Secretary notes that the Commission has spoken about this expressly.
In Cumberland Coal, it held that although the District Manager must negotiate, in good faith,
disputed plan provisions for a time, once that has occurred the Secretary ultimately has the
authority to insist upon the inclusion. of particular provisions if approval is to occur.
34

Consol contends that the grandfathering provision at 30 C.F.R. § 75.1506, makes the
District Manager's request for "all inclusive data" arbitrary and capricious. Consol Br. at 14.
32 FMSHRC Page 1014

shown for this insulated status to take effect is that the ERP be state approved and in service in
an MSHA-approved ERP before March 2, 2009. If that is the case, then the refuge is "preapproved" and as such exempt from compliance with 30 CFR Part 7. While Part 7 specifies that
the apparent temperature of a refuge not exceed 95 °F that requirement is ignored· if the unit is
both state approved and in service in an MSHA-approved ERP before March 2, 2009. fu effect,
Consol's argument here is that, even if survivability cannot be sustained, in this case if
temperatures in the refuge exceed 95 °F, what really counts is the refuge's grandfathered status,
not survivability.
While the Court rejects Consol's interpretation, nevertheless it is still surprising that the
Respondent would make the contention, its.legal merits aside, given the possible result in taking
such a stance. Despite the potential consequences, of such a stance ifthe contention were to
prevail, Consol asserts that the legislative history also supports its position. fu this regard it notes
that the final rule expressly spoke of allowing refuges that do not meet the requirements of the
final rule and that such refuges are to be afforded a"reasonable time for manufacturers to meet
the safety and approval.requirements of the final rule." Consol Br. at 23 (emphasis added).
Consol finds further support for its position in MSHA's "Questions and Answers" to its final rule
on these refuges, noting that the agency stated that the capacity of the grandfathered state
approved units did not have to be reduced in order to comply with§ 75.1506 (b)(l). 35
Undeterred by the potential consequence of its argument if it carried the day, Consol contends
that everyone understood that these refuges would not be 'perfect' and that their effectiveness in
sustaining lives would be "an evolutionary process"36 for which manufacturers would be given a
reasonable period of time to meet the final rule's requirements. Consol Br. at 24 (emphasis
added). However, the problems the District Manager has with Consol's refuge units is not about
the units themselves. Rather, it is about ambient temperatures above 70° and the number of
miners that would be using the refuges under such conditions and that is a matter for which
Consol must make adjustments, not Strata.

35

Consol also rejects as inapplicable the testimony ofMSHA witness Meikle that one
could have a single boom roof bolter which is approved for permissibility but not for roof control
use, because the refuge chambers in issue here are approved for apparent temperature. Consol
Br. at 25. Thus, Consol maintains that the Strata units being in compliance with Section
75.1506(a)(3) means that the units are approved, period, without regard to whether the refuges
meet 30 CFR part 7. As previously stated by the Court, the units are approved but the use of
those units is a distinct matter which can be addressed where such use can impact whether the
refuge can function to support miners awaiting rescue.
36

While a mine operator may contend that there is a 'low probability' of an event
occurring, one can imagine that, despite low odds, such an event may strike and that the
occurrence of a disaster does not depend on the odds. Should such an event occiir, the public
may rightly ask why MSHA and Consol too for that matter, did not err on the side of caution
where sustaining the lives of those awaiting rescue is involved.
32 FMSHRC Page 1015

Regarding the contention advanced by Consol that the Refuge Alternative Final Rule
precluded the District Manager from reviewing the existing EPR at the Buchanan Mine #1, the
Secretary asserts that such a claim runs contrary to "the essential fabric of the Mine Act" and is
refuted by the final rule addressing the subject. See's Stmt at 19, citing JT Ex 2 at 80694-80700.
The Secretary notes that the District Manager concluded that, even if the Strata units were
covered under 30 C.F.R. § 75.1506 (a)(3), that did not preclude him from considering the manne.
in which those units were used in specific settings. The Secretary takes the position that, since
the District Manager is the "MSHA representative formally authorized to conduct the periodic
review of [Consol's] ERP, the [District Manager's] reading of the provision is the Agency's
formal application of the provision for purposes of this proceeding, and is entitled to significant
deference." Sec'sStmt at 20.37 The Court agrees and it adds that, taken to its logical extreme,
Consol's position in this regard would lead to outrageous results. For example, if one assumes,
hypothetically, that the ambient temperature would be such that miners in the refuge chamber
would be subjected to temperatures of 100°F, Consol would.have it that, as the units had been
approved, even those extremes could not be addressed until 2018. While Counsel suggested that
under such circumst3!1ces, of its own volition, Consol would act, it lays bare the untenable stance
it takes. Clearly Congress would not have intended such a result, a scenario which ignores the
distinction between approving the use of the units generally and approving the manner of their
use.

fu addition, the Secretary contends that its interpretation of the regulatory provision is
"consistent with its function as an exception to§ 75. 1506(a)(l)'s mandate that all refuge unit
components be approved pursuant to 30 CFR Part 7." See's Stmt at 21. While it concedes that
MSHA permitted a limited exception to that provision,.it did not permit a mine operator to then
use an approved refuge unit beyond the manufacturer's recognized capability for such units. In
this regard it notes that such exceptions are to "be read narrowly to achieve the remedial purposes
of the statute and the final rule." See's Stmt at 23, citing The Helen Mining Co., 1 FMSHRC
1796, 1979. fu sum, the view expressed by Consol would mean that the provision would allow
mine operators to have refuge units that could not safely maintain miners, a patently untenable
result under the Mine Act.38 See's Stmt at 23-24.

37

The Secretary cites to Plateau Mining Corp. v. FMSHRC, 519 F.3d 1176 (10th Cir.
2008) as one example of this principle.
38

As referred to earlier, Consol's position would operate to bar District Managers from
conducting periodic reviews ofERP's to assure real world compliance with Part 75 provisions
until December 31, 2018, at which time the structural components are to be approved, per Part 7.
Besides, as the Secretary has noted, MSHA is not acting here to prohibit the use, per se, of the
existing Strata refuge units, even though they lack Part 7 approved components. Rather, it is for
now only insisting on the proper manner of such use of those units.
32 FMSHRC Page 1016

The contention that the District Manager acted arbitrarily and capriciously by seeking
perfection in Consol's ERP
Although Consol concedes that the "District Manager [is required] to periodically review
[emergency response] plans,"39 it is Consol's contention that in this instance the District Manager
acted arbitrarily and capriciously in not approving Consol's plan. Consol Br. at 12. It contends
that the District Manager sought 'perfection' from Consol's ERP and, by that view, his rejection
of Consol's "derating schedule and associated temperature calculation method was arbitrary and
capricious." Consol Br. at 12. It notes there is agreement that, at least when temperatures are
70 degrees or less for the refuge chambers involved in this litigation, the apparent temperature in
those refuges will be 95 degrees or less. While Consol agrees that there will be times during the
course of the year when the ambient mine temperature will exceed 70 degrees, its proposal to cut
the number of persons who would use the refuge in such circumstances by "over 50%" should
have been accepted by the pistrict Manager. It argues that such acceptance should have been
forthcoming because the heat and humidity sources come from the number of people occupying
the refuge and because, with fewer people, the heat from the C02 scrubbers would also be
reduced.
Oddly, while Consol admits that the District Manager's rejection was based on the lack of
sufficient information to support the claimed effects of the reduction of the number of.miners
who would occupy the refuge, it maintains that Strata's derating schedule should have been
sufficient, a view it urges in the context of its position that such ERPs aren't perfect anyway but
rather are an 'evolving' phenomena. 40 It also contends that its plan for managing the derating,
that is, by looking at the. average temperature in the preceding week, was a 'reasonable'
touchstone for formulating the upcoming week's derating schedule.41 The shortcomings of this
temperature prediction method have already been discussed.

39

The Court finds that it is part of the District Manager's statutory obligation to
periodically review the mine's ERP every six months in order to continue to conclude that the
Strata units could safely maintain miners consistent with the ERP. 30 U.S.C. § 876(b)(2)(D).
40

Consol also maintains that the MSHA shares the burden for developing the supporting
information. Thus, it is critical of MSHA for failing to come up with its own derating proposal,
and for failing to obtain additional information from Strata on its own. Consol Br. at 13.
41

This is another example of Consol's position that, ifMSHA didn't like the plan to
average a prior week's temperature and apply those results for the following week's derating,
then it was incumbent on MSHA to present an alternative approach. The Court does not agree
with Consol's idea that the burden of production shifts to MSHA if it does not accept the mine
operator's proposal. MSHA's role is to evaluate the mine operator's proposal and assess whether
data from the operator supports that proposal. Here, reliable data was not presented.
32 FMSHRC Page 1017

ORDER
In conclusion, the Court agrees with the fundamental assertion in the Secretary's posthearing statement that the Strata 36 person refuge units used at this mine may not assure a safe
environment at all times in that there maybe periods during the course of the year in which the
ambient temperatures could become too high for miners to safely inhabit the refuges. That being
the case, the Court agrees that MSHA District Manager Ray McKinney did not act in an arbitrary
or capricious manner when he issued the citation which triggered this litigation. The process of
trying to resolve the reasonable concerns of the District Manger ~ad continued for six months
(from January 27 through July 21, 2010) and certainly by that point in time, (if not sooner), as
District Manager McKinney did not have sufficient information from which he could reliably
conclude that the refuge units could safely maintain trapped miners, the issuance of the citation,
pursuant to Section 3 l 6(b)(2)(G)(ii), was fully warranted. Accordingly, the citation is affirmed
and Consol is directed to submit a revised ERP, which establishes that miners will in fact be
afforded the protection required under Section 3 l 6(b)(2) of the Mine Act, at all times, no matter
what month or day of the year such a refuge may be needed.
As noted at the outset of this decision, the parties stipulated as to the issues to be resolved
in this proceeding. On the basis of the the foregoing discussion, the Court concludes that:
a. MSHA District Manager Ray McKinney did not act arbitrarily and capriciously in revoking or
withdrawing his approval of the refuge alternative provisions associated with the ERP adopted by
Consol for implementation at the Buchanan Mine #1.
b. 30 C.F.R. § 75.1506(a)(3) did not obligate MSHA District Manager Ray McKinney to accept
the use of the ERP-specified Strata refuge units and prohibit him from revoking or withdrawing
his approval of the ERP as submitted by Consol for implementation at the Buchanan Mine #1.
c. Given the course of interaction between Consol and MSHA's District 5 office concerning the
use of Strata refuge units at the Buchanan Mine #1, MSHA did act in accordance with 30 U.S.C.
§ 876(b)(2)(G) in issuing Citation No. 7307437.
Accordingly, for the foregoing reasons, the citation at issue is AFFIRMED and it is
ORDERED that Consol submit a revised ERP that is demonstrated, at all times, to provide
miners with the protection mandated in Section 3 l 6(b)(2) of the Mine Act.

William B. Moran
Administrative Law Judge

32 FMSHRC Page 1018

Distribution:
Stephen Turow, Esq., Ashton Phillips, Esq., Office of the Solicitor, U.S. Department of Labor,
1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209-2247
R. Henry Moore, Esq., Jackson Kelly, PLLC., Three Gateway Center, 40 I Liberty A venue, Suite
1340, Pittsburgh, PA 15222

wm

32 FMSHRC Page 1019

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

August 26, 2010
SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Docket No. LAKE 2009-377
Petitioner
A.C. No. 11-03054-177990 -01
v.
BIG RIDGE, INC.,
Respondent
BIG RIDGE, INC.,

Willow Lake Portal
Mine ID 11-03054
CONTEST PROCEEDINGS

Contestant
Docket No. LAKE 2009-274-R
Order No. 6683084; 01122/2009
Docket No. LAKE 2009-276-R
Order No. 6683965; 01/23/2009

v.

Docket No. LAKE 2009-277-R
Order No. 6683966; 01123/2009

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

Docket No. LAKE 2009-278-R
Order No. 6683088; 01/26/2009
Docket No. LAKE 2009-279-R
Order No. 6683089; 01/26/2009
Docket No. LAKE 2009-280-R
OrderNo. 6683090; 01/26/2009
Docket No. LAKE 2009-310-R
Order No. 6683968; 01/29/2009
Docket No. LAKE 2009-311-R
Order No. 6683972; 01/29/2009
Docket No. LAKE 2009-312-R
Order No. 6683973; 01/29/2009
Willow Lake Portal
Mine ID 11-03054

32 FMSHRC Page 1020

DECISION
Appearances: Anthony Jones, Esq., and Rafael Alvarez, Esq., Office of the Solicitor, U.S.
Department of Labor, Chicago, Illinois oil behalf of the Secretary of Labor;
R Henry Moore, Esq., and Arthur Wolfson, Esq., Jackson Kelly, Pittsburgh,
Pennsylvania on behalf of Big Ridge., Inc.
Before:

Judge Melick

This expedited civil penalty proceeding is before me upon a petition filed by the Secretary
of Labor (consolidated with related contest proceedings) on July 23, 2009, pursuant to Section
lOS(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., the "Act"
charging Big Ridge, Inc. (Big Ridge) with twelve violations of mandatory standards and proposing
civil penalties of$230,003 .00 for those violations. The general issue before me is whether BigRidge
violated the cited standards as charged and, if so, what is the appropriate civil penalty for those
violations. Additional specific issues are addressed as noted. The Secretary filed a motion for
expedited hearings on May 19, 2010 and, upon agreement of the parties, expedited hearings were
held over three days commencing on June 22, 2010 in Evansville, Indiana.

Order Number 6683824
This order, issued on December 10, 2008 pursuant to section 104(d)(2) of the Act; alleges
a "significant and substantial" violation of the standard at 30 C.F.R §75.400 and charges as follows: 1

1

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

( 1) If, ·upon any inspection of a coal or other mine, an authorized representative of the
Secretary finds that there has been a violation of any mandatory health or safety standard, and
if he also finds that, while the conditions created by such violation do not cause imminent
danger, such violation is of such nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of such operator to comply with such
mandatory health or safety standards, he shall include such finding in any citation given to
the operator under this Act. If, during the same inspection or any subsequent inspection of
such mine within 90 days after the issuance of such citation, an authorized representative of
the Secretary finds another violation of any mandatory health or safety standard and finds
such violation to be also caused by an unwarrantable failure of such operator to so comply,
he shall forthwith issue an order requiring the operator to cause all persons in the area
affected by such violation, except those person referred to in subsection© to be withdrawn
from, and to be prohibited from entering, such area until an authorized representative of the
Secretary determines that such violation has been abated.
(2) If a withdrawal order with respect to any area in a coal or other mine has been issued
pursuant to paragraph (1 ), a withdrawal order shall promptly be issued by an authorized
32 FMSHRC Page 1021

Accumulations of combustible materials in the form ofloose coal, coal fines, and float coal
dust ( distinct black in color), was [sic] also observed along both sides and beneath the 4 E
belt conveyor from the head roller inby to the belt tail. When inspected accumulations of coal
was [sic) observed from I inch to 5 inches in depth from the head roller inby to 8 crosscut.
Accumulations of coal was [sic] also observed from 2 feet inby the belt tail for a distance of
18 feet outby along both sides and beneath the belt tail. These accumulations were observed
up to 2 feet in depth and was [sic] observed with the bottom belt sliding on the coal, and the
tail roller turning in the coal. Also, float coal dust distinct black in color was observed
deposited upon the roof, rib floor, and belt structure, to and including the connecting
crosscuts.
The cited standard, 30 C.F.R §75.400 provides that "[c]oal dust, including float coal dust
deposited on rock-dusted surfaces, loose coal and other combustible materials, shall be cleaned up
and not be permitted to accumulate in active workings, or on diesel-powered and electric equipment
therein".
This order alleges two violative conditions along the 4E belt conveyor; (1) accumulations
from the head roller inby to the No. 8 crosscut; and (2) accumulations at the tail piece. Michael·
Rennie, an experienced inspector for the Department of Labor's Mine Safety and Health
Administration (MSHA) credibly testified that on December 10, 2008, he saw accumulations of
loose coal, coal fines, and float coal dust along both sides and beneath the 4E belt conveyor from the
head roller inby to the belt tail. Inspector Rennie estimated the accumulations around the belt tail
of the 4E conveyor to be approximately two feet deep and eighteen feet long. According to Rennie,
the bottom belt and tail roller of the 4E conveyor were also turning in coal around the belt tail and
that the friction caused thereby was an ignition source. The belt was also misaligned causing the belt
to cut into the belt structure almost an inch. This too was a potential ignition source. Accumulations
of coal ranging in depth from one to five inches were also seen by Rennie from the head roller inby
to crosscut 8.
Bart Schiff, Respondent's safety manager who accompaniedRennie, testified that there were
accumulations on both sides of the bottom belt and that the bottom belt was running in the coal
accumulations at the 4E conveyor tail. Schiff further testified that he observed accUDJ.ulations
underneath the rollers that were approximately '1:hree to five inches" deep along several sections
of the 4E conveyor. James Holmes, Respondent's section foreman, testified that he checked the cited
tailpiece around 7:00 a.m. and 9:00 a.m. and found it to be clean. Around 9:15 a.m., however he
found that the 4E tail was full of coal fines. According to Holmes, it took only 15 minutes to shovel
the tailpiece, but six hours to get equipment and to clean and rock dust the entire beltline. Monty

representative of the secretary who finds upon any subsequent inspection the existence in
such mine of violations similar to those that resulted in the issuance of the withdrawal order
under paragraph (1) until such time as an inspection of such mine discloses no similar
violations. Following an inspection of such mine which discloses no similar violations, the
provisions of paragraph (1) shall again be.applicable to that mine.
32 FMSHRC Page 1022

Applin, Big Ridge's mine examiner, testified that he performed an inspection onthe 4E conveyor
around 3:15 a.m. on December 10, 2008 and observed float dust at the 4E head roller that needed
rock dusting. Applin recorded this in the "remarks" section of his pre-shift inspection book.
Respondent asserts that the coal found by Inspector Rennie at the tail piece was non-violative
"spillage" and not an "accumulation"citing Old Ben Coal Company 1FMSHRC1955at1958 (Dec
1979) and Utah Power and Light v. Secretary 951 F.2d 292 at 295 n.11 (10th Cir. 1991). The
Commission stated in Old Ben that ''we accept that some spillage of combustible materials may be
inevitable in mining operations. Whether a spillage constitutes art accumulation under [30 C.F.R
§75.400] is a question, at least in part, of size and amount" The Circuit Court in Utah Power and
Light similarly stated that "while everyone knows that loose coal is generated by mining in a coal
mine, the regulation plainly prohibits permitting it to accumulate; hence it must be cleaned up with
reasonable promptness, with all convenient speed." Utah Power and Light 95 IF .2d at 295 n. 11. In
this case however, I find that because of the significant size and amount of the cited coal spillage,.
the exception noted in the cited cases is not applicable herein.
The secretary has alleged that the violation was "significant and substantial. "A violation is
properly designated as "significant and substantial" if, based on the particular facts surrounding that
violation, there exists a reasonable likelihood that the hazard contributed to will resultin an injury
orillnessofareasonablyseriousnature. Cement Div., Nat'/Gypsum Co., 3FMSHRC822, 825(Apr.
1981). The Commission has explained that:
In order to establish that ·a violation of a mandatory safety standard is significant and
substantial under Gypsum; the Secretary of Labor must prove: ( 1) the underlying violation
of a mandatory safety standard; (2) a discrete safety hazard-that is a measure of danger to
safety contributed to by the violation; (3) a reasonable likelihood that the hazard contributed
to will result in an injury; and (4) a reasonable likelihood that the injury in question will be
of a reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984)(footnote omitted). This evaluation is made
in consideration ofthe length of time that the violative condition existed prior to the citation and the
time it would have existed if normal mining operations had continued. Elk Run Coal Co., 27
FMSHRC 599, 905 (Dec; 2005); US. SteelMiningCo.,Inc., 6FMSHRC 1573at1574(July 1984).
The question of whether a particular violation is significant and substantial must be based on the
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988).
I find that the Secretary has, indeed, met her burden of proving each of the four elements outlined
in Mathies. As :rioted, a violation of the mandatory standard at 30 C.F:R § 75.400 has been proven.
I find that this condition exposed miners to an identifiable and discrete safety hazard, i.e., the danger
of a belt fire from the friction caused by the belt cutting into the belt structure. The belt was
misaligned and credible testimony established that it had cut almost an inch into the belt structure.
I further find that a belt fire was reasonably likely because the coal accumulations were significant
and an ignition source was present. Indeed, the serious hazard of hot metal and rubber shavings

32 FMSHRC Page 1023

igniting coal was corroborated by the Respondent's own expert witness, Chad Barras.I have no doubt
that should a belt fire occur, the injuries could reasonably be expected to be severe or even fatal from
smoke inhalation, carbon monoxide poisoning and/or burns. It is also undisputed that miners
frequently worked and traveled near the 4E belt conveyor and that shuttle cars frequently entered the
belt tail area. The violative conditions were therefore "significant and substantial" and of high
gravity.
Respondent argues that, assuming a violation has occurred, that violationwas not "significant
and substantial" for several reasons. Respondent first argues that an MSHA report prepared by its
Chief of Health and Safety, Terry Bentley, "Reducing Belt Entry Fires in Underground Coal Mines"
(2007) demonstrates the unlikelihood of substantial injury as a result of a belt fire. I do not however
agree that the report supports the proposition that serious injury or death is not a reasonably likely
result of a fire in an underground mine." Respondent next argues that the accumulations were not
extensive. However, based on the credible testimony offuspector Michael Rennie, the accumulf;ltions
around the belt tail alone were two feet deep and eighteen feet long. I find such accumulations to be
extensive. In addition, according to Respondent's section foreman, James Holmes, it took about six
hours to obtain the equipment and to clean and rock dust the entire cited beltline. That is evidence
that the accumulations were extensive. Under the circumstances I reject the Respondent's arguments
that the accumulations were not extensive,
Respondent next argues that there was no heat or ignitj.on source for the accumulations. To
the contrary, the evidence shows that the subject belt was misaligned causing it to cut into the belt
structure nearly an inch. As previously noted, Respondent's own expert witness, Chad Barras,
testified that there was a serious hazard of ignition of coal from hot metal and rubber shavings. This
testimony further corroborates the credible testimony of Inspector Rennie regarding the existence
of an ignition source.
Respondent further argues that it has "numerous fire detection and suppression systems at
the Willow Lake Mine and has "a fire brigade trained in techniques similar to those employed by fire
departments." Respondent argues that these are the types ofpreventive measures in place that would
minimize the possibilities of injuries and death in the event of a fire on a belt line." In Buck Creek
Coal Inc., v. FMSHRC, 52 F.3d 133, 136; 7th Cir. (1995), the Court in addressing a "significant and
substantial" issue rejected the same argument, i.e., the mine operators' reliance on fire suppression
equipment such as CO monitors and water sprays, mitigates accumulation hazards. The Commission
is in agreement. See Amax Coal Company, 19 FMSHRC 846, 850 (May 1997)
The Secretary also alleges that the subject order was the result of Respondent's
"unwarrantable failure." In Lopke Quarries, Inc. 23 FMSHRC 705, 711 (July 2001 ), the Commission
recently reiterated the law applicable to determining whether a violation is the result of
"unwarrantable failure" and stated as follows:
The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C. §
814(d), and refers to more serious conduct by an operator in connection with a violation. In

32 FMSHRC Page 1024

Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure in aggravated conduct constituting more than ordinary negligence. Id
at 2001. Unwarrantable failure is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or a "serious lack ofreasonable care." Id. At 20304; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb 1991); Lopke Quarries
Inc., at 711.
Whether conduct is "aggravated" within the context of determining an unwarrantable failure
is determined by analyzing the facts and circumstances of each case to identify whether any
aggravating factors exist. Such factors include: the length oftime the violation has existed, the extent
of the violative condition, whether the operator has been placed on notice that greater efforts are
necessary for compliance, the operator's efforts in abating the violative condition, whether the
violation is obvious or poses a high degree of danger, and the operator's knowledge of the existence
of the violation. Id. See also Jim Walter Resources, Inc., 28 FMSHRC 579 (Aug 2006).
The credible evidence in this case establishes that the coal accumulations were obvious and
extensive. Loose coal, float coal dust and coal fines two feet deep extended over a distance of 18 feet
around the belt tail of the conveyor. Accumulations of coal were also observed from one to five
inches deep from the head roller inby to the No. 8 crosscut. Moreover, it took 15 minutes to clean
the belt tail area and took a crew of at least six miners more than six hours to get equipment and to
remove the material and rock dust along the length of the cited belt conveyor.

It is also noted that prior to the issuance of the subject order on December 10, 2008 Big
Ridge was placed on notice that greater efforts were required to comply with the cited standard by
the fact that it had 118 ·final citations and orders for violations of that standard in the 15-month
period preceding the issuance ofthe subject order. Respondent argues that those prior violations may
have no relevance to· this case without knowing the precise nature of ·those violations. This
Commission has, however, rejected such arguments. See Enlow Fork Mining Company 19 FMSHRC
5 (Jan. 1997). MSHA also held closeout and pre-inspection conferences with management officials
from Big Ridge. The precise conversations at these meetings were not revealed but it may reasonably
be inferred that problems with accumulations of combustible materials were discussed.
The existence of any one ofthe above factors, would justify a finding that the violations were
the result ofRespondent's unwarrantable failure and high negligence. Since there is no dispute that
there had been no intervening clean inspection (determined by conference call on August 8, 2010),
"Section 104(d)(2)" Order No. 6683824 is hereby affirmed2 • See Secretary v. Cypress Cumberland
Resources Corporation, 21FMSHRC722(July1999); US. Steel Corp., 6 FMSHRC 1908, 1911
(Aug. 1984).

2

There is likewise no dispute that there had been no intervening clean inspections
preceding all of the "Section 104(d)(2)" orders in these proceedings.
32 FMSHRC Page 1025

Order Number 6683084
This order, issued on January 22, 2009, pursuant to section 104(d)(2) of the Act, alleges a
"significant and substantial" violation of the standard at 30 C.F.R §75.362(b) and charges as
follows:

An inadequate on shift examination was made on the slope belt. This inspector walked
this belt approximately forty five minutes after the on shift examination had been made.
Three bottom rollers were observed turning in coal fines approximately 1OOft. outby the
slope tail piece. The coal accumulations were packed around these rollers. Based upon
this inspector's experience this condition had been present for at least one shift. No
notification had been made by the examiner to management about this condition. The belt
was de-energized until another examination was made of the belt and rollers cleared.
Also, a citation in conjunction with this order was issued for the accumulation of coal. To
abate this order, all examiners will need to be re-instructed on the proper way to examine
a belt line.
The cited standard, 30 C.F.R § 75.362(b), provides as follows:
During each shift that coal is produced a certified person shall examine for hazardous
conditions along each belt conveyor haulage way where a belt conveyor is operated. This
examination may be conducted at the same time as the preshift examination of belt
conveyors and belt conveyor haulageways, if the examination is conducted within 3 hours
before the oncoming shift.
The specific violation charged herein is that in inadequate onshift examination was
perfonp.ed because the mine examiner did not report. to management a condition found by
fuspector Lee about 45 minutes after the mine examiner's examination i.e. that three of the slope
belt bottom r,ollers were turning in coal accumulations.
MSHA fuspector Scott Lee testified that on January 22, 2009 about 45 minutes after the shift
examination, he observed that three ofthe slope belt's bottom rollers were turning in accumulations
of coal fines. He estimated that the accumulations ranged from 3 to 12 inches around the bottom
rollers at multiple locations along the bottom of the 800- foot long belt.
The shift examination was conducted by Big Ridge's examiner, Dennis Morris. Morris had
found and recorded in the examiner's book the existence of"carbon piles" under the slope belt "from
the top of the slope to the bottom of the slope''. (Ex. RB-24). Morris testified however that he did
not find any points of friction between rollers and accumulations. Lee nevertheless speculated that .
this examination was inadequate based on his belief that the conditions he later observed had also
existed at the time ofthe examination by Morris and that Morris therefore should also have seen and
reported the belt rollers turning in coal accumulations.

32 FMSHRC Page 1026

Lee's speculative conclusion that the condition he found 45 minutes after the mine
examination also existed at the time of Morris' examination was based apparently only on his
"experience". I find however, that examiner Morris' firsthand testimony regarding his actual
observations during his mine examination to be entitled to the greater weight and I conclude that
neither the "carbon piles"nor any accumulations he observed some 45 minutes before Lee's
examination were in contact with the bottom rollers of the slope belt at the time of his examination:
Under the circumstances, I find that the Secretary has failed to have sustained her burden of proving
the violation as charged and Order No. 6683084 must be vacated.

Order Number 6683086
This order, issued on January 22, 2010, pursuant to section 104(d)(2) of the Act, alleges a
"significant and substantial" violation of the standard at 30 C.F.R §75.1107-l(d) and charges as
follows:
The· following pieces of equipment were left energized for approximately 2 hours while unit
4 (014/004) people were sent outbyto shovel on belt: ram cars 859, 861, 856, and 857. Also
battery scoop 514. The 861 ram car was loaded with coal sitting on the feeder. Management
should have known before leaving unit to make sure all electrical equipment was deenergized. This niine has already experience [sic] a battery scoop fire due to the power being
left on between shifts and the electrical short circuiting. In order to abate this citation all
people at this mine will have to be re-instructed on de-energized equipment when left
unattended.
The cited standard, 30 C.F.R §75.1107-1 (d), provides that:"[m ]achines and devices described
under paragraph (c) of this section must be inspected for fire and the input powerline de-energized
when workmen leave the area for more than 30 minutes."
There is no dispute that on January 22, 2009, Inspector Lee observed four battery operated
ram cars and one battery operated scoop that were left energized and unattended on Unit 4. It is
further undisputed that all five machines had been left energized for more than 30 minutes while the
Unit 4 miners were sent outby to clean up accumulations on the slope belt Lee had previously cited.
Respondent maintains that there was no violation as charged because the cited standard does
not apply to battery operated equipment. Respondent notes that the standard, on its face, applies only
to machines and devices having an "input powerline" and therefore it applies only to equipment
connected to an outside source of power.
When confronting a matter of regulatory interpretation, the starting point is the language of
the standard itself. See Consumer Product Safety Commission v. GTE Sylvania Inc., 447 U.S. 102,
108 (1980). Absent a clearly expressed legislative intent to the contrary, that language must
ordinarily be regarded as conclusive. Consumer Product Safety Commission 447 U.S. at, 108; see
also Phelps Dodge Tyrone Inc., 30 FMSHRC 646, 651-52 (Aug,. 2008). Unless words are otherwise

32 FMSHRC Page 1027

defined, they are to be interpreted as to their ordinary, contemporary meaning. Perrin v. United
States, 444 U.S. 37, 43(1979).
As noted, the language of the cited standard is clear and compliance is achieved when "the
input powerline [is] de-energized." The term"input powerline" indicates that power is supplied to
the piece of equipment from a separate source and the term is recognized as such throughout the
industry. Accordingly, the cited standard does not apply to equipment having no "input powerline"
such as battery powered equipment.
The Secretary argues that the reference in the standard to "[m ]achines and devices described
under paragraph(c) of this section" renders Section 75.1107-l(d) applicable to battery-powered
equipment. The Secretary points to the language in Section 7 5. 1107-1 (c) that refers to "any machine
or device regularly operated by a miner assigned to operate such machine or device" and argues that
this language brings battery-powered equipment within the scope of Section 75 .1107-1 (d). However,
under the rules of regulatory construction, the more specific standard controls the more general.
Morales v. Trans. World Airlines. Inc., 504 U.S. 374, 384 (1992); Lyons v. Ohio Adult Parole
Authority. 105, F.3d 1063, 1070 (6th Cir. 1997), cert. denied, 520 U.S. 1224 (1997).
Here, underthe Secretary's argument, the two "associated standards" are Sections 75.1107(l)(c) and 75.1107-l(d). Sectio1'- 75.l 107(l)(c) is the more general referring to "any machine or
device regularly operated by a miner assigned to operate such machine or device." Section 75 .11071(d) is the more specific refemng to equipment with "an input powerline." Because the more specific
standard controls the more general, the reference to "any machine or device....." in Section 75 .11071(c) is qualified by the reference to "an input powerline" in Section 75.1107-l(d). Therefore, the
reference in Section 75.1107-(1 )(d) to equipment described under paragraph (c) does not undercut
the Respondent's argument that the standard applies only to equipment with an input powerline.
Indeed there are legitimate differences between battery equipment and cable-powered equipment that
the Secretary appears to recognize in the standard.
The Secretary also relies on an interpretation .of the meaning of "de-energized"in the
Program Policy Manual in support of her position. Her reliance is misplaced. The relevant portion
of the Program Policy Manual is unclear. It reads as follows:
Paragraph (d) of this S~tion requires that machines normally used at the face be inspected
(for fire), and the input powerline de-energized when the miner leaves the area for more than
30 minutes. De-energization means disconnecting the power cable, or equivalent, at the
power center.
Program Policy Manual, Vol.Vat 114, Exh. (RC-39). The Secretary argues that the Program Policy
Manual contemplates an equivalent to ''disconnecting the power cable at the power center". But that
is not how the language reads. The term "or equivalent" modifies "power cable". It does not modify
"at the power center." To illustrate, an equivalent of disconnecting the power cable while still de-

32 FMSHRC Page 1028

energized at the power center would be to fock and tag out the power center, which again does not
involve battery operated equipment.
The Program Policy Manual is unclear, except to make clear that the standard is addressing
cable equipment. It makes no reference to battery operated equipment which would be expected if
it were to apply to such equipment. In any event, since the Program Policy Manual is not binding,
it would be inappropriate under these circumstances to apply it. See King Knob Coal Co., 3
FMSHRC 1417, 1420 (June 1981); BulkTransportation Services, Inc., 13 FMSHRC 1354, 1360
(Sept. 1991). If the Secretary is correct and the Program Policy Manual extends the standard to
battery equipment, she has adopted a substantive change without notice and comment rule-making.
This she cannot do. See Keystone Coal Mini.Iig Operation, 16 FMSHRC 6 (Jan. 1994); Drummond
Co., Inc., 14 FMSHRC 661 (May 1992); and Hibbing Taconite Company, 21 FMSHRC 346 (March
1998) (ALJ).
Under the circumstances, I find that the cited standard is indeed inapplicable to battery
operated equipment. Since the equipment cited herein was battery operated, Order Number 6683086
must therefore be vacated.

Order Number 6683965
This order, issued on January 23, 2009, pursuant to section 104(d)(2) ofthe Act, also alleges
a "significant and substantial" violation of the standard at30 C.F.R § 75.400 and charges as follows:
An accumulation ofcombustible materials, in the form of coal fines, belt pressings, and loose
coal, is present on the operating 3A conveyor belt: from the drive to the tail piece
(approximately 900 feet). There are 19 bottom rollers turning in contact with these
accumulations. The accumulations are under the bottom rollers, but are also between the
bottom rollers under the belt. The accumulations range from 1 to 18 inches in-depth by 2 to
6 feet in width and at various lengths along the belt line. These accumulations were seen
from the travel way entry and are obvious to the most casual observer. The conveyor belt was
removed from service by management when notified by management. This violation is an
unwarrantable failure to comply with a mandatory standard.
Experienced MSHA Inspector Larry Morris testified that on January 23, 2009, he observed
accumulations ofloose coal, coal fines, and belt pressings along the entire 900-foot length of the 3A
conveyer belt from the drive to the tail piece. Morris testified that he found the accumulations to be
from 1 to 18 inches deep by 2 to 6 feet wide at various locations along the belt. Morris also testified
that he found 19 bottom rollers turning in contact with the coal accumulations and determined that
the friction caused thereby was an ignition source.
While the inspector's testimony is credible in itself, it is also largely corroborated by
Respondent's mine manager Bob Hill. Hill observed accumulations beneath the belt rollers and that
the belt rollers were turning in the coal fines. He thought the coal fines were wet, but he nevertheless

32 FMSHRC Page 1029

considered it a hazard noting that friction will dry out the coal. within this framework of evidence,
I find that the violation has clearly been proven as charged.
The Secretary argues that the violation was also "significant and substantial" under fue
Mathies criteria. The credible evidence establishes that there was a reasonable likelihood of an
ignition of the cited coal accumulations considering normal continued mining operations with 19
rollers turning in coal fines and with the history at this mine of belt misalignments and cutting into
the belt frame. The operator's expert, Chad Barras also confirmed that hot rubber and metal shavings
from a belt and hot lubricant from a defective roller are ignition sources. In addition, should a belt
fire occur, the resulting injuries would reasonably be expected to be severe or even fatal from smoke
inhalation, carbon monoxide poisoning and/or bums. Miners frequently access the area near the 3A
belt thereby exposing them to these hazards. Within the above framework of evidence, I conclude
that, indeed, the violation was "significant and substantial" and of high gravity and that the Secretary
has met her burden of proof in this regard.
In reaching this conclusion, I have not disregarded Respondent's arguments that, assuming
normal mining operations, the accumulations would have been discovered by the day shift examiner
who would have shut the belt down and have had the accumulations cleaned. The Respondent further
notes that no methane was found along the 3A belt at the time the order was issued, and that
historically, very little methane is found along the belts at the subject mine. In addition, Respondent
asserts that the fire detection and suppression system, the water sprays and the existence of a trained
fire brigade contradicts any "significant and substantial"findings. While evidence that would reduce
the likelihood of a fire or the likelihood of a more serious fire would appear to be relevant and
probative in determining whether a violation is "significant and substantial" the Commission and
the Federal Circuit Court for the seventh circuit have rejected such measures as negating such
findings. Buck Creek Coal Inc., v. FMSHRC, 52 F.3d 133, 136; 7th Cir. (1995); Amax Coal
Company, 19 FMSHRC 846, 850 (May 1997).
The , Secretary further argues that the violations were the result of Respondent's
"unwarrantable failure". In this regard, the Secretary maintains that the coal accumulations were
obvious and extending at various locations over a distance of 900 feet along the 3A conveyer. At
various locations, the accumulations ranged from 1to 18 inches deep by 2 to 6 feet wide. In addition,
Inspector Morris credibly testified that he observed 19 bottom rollers turning in contact with the
accumulations. Moreover, the 3A conveyer had less than 90 total rollers and 19 ofthem were turning
in the accumulations. Indeed, the accumulations under the 3A belt were so obvious that Inspector
Morris initially saw them from 75~80 feet away. Morris found that they would have been obvious
even to a casual observer. Finally, it is undisputed that the accumulations were so extensive that it
took a crew of at least 6 miners between 1 and 2 hours to abate the condition.
Big Ridge had also been placed on notice that greater efforts were required to comply with
the cited standard. Indeed, it had received 118 final citations and orders for violations of that
standard in the preceding 15 months. Respondent's mine Manager, Bob Hill, also knew that they had
a problem with coal accumulations on the 3A conveyer. Hill acknowledged that the 3A conveyer had
to be cleaned every day because of accumulations. Mine Superintendent, Ricky Phillips also told

32 FMSHRC Page 1030

Morris that the 3A conveyer had had problems with accumulations since its installation. The
knowledge management had regarding continuing problems with accumulations therefore required
that closer attention be paid to the condition of the 3A belt. Under the circumstances, I find that the
Secretary has met her burden ofproving that the violation was the result ofunwarrantable failure and
lii.gb negligence.
In reaching these conclusions, I have not disregarded Respondent's argument that the
accumulations existed only because of an inadvertent mistake. Mine Manager Hill thought he had
instructed the belt cleaners to clean the 3A belt at the beginning of the morning shift on January 23,
2009 but according to Hill, the belt cleaners mistakenly believed that a note he gave to the crew
stated "3D" and the crew accordingly went to the 3D belt instead of the 3A belt. Hill acknowledged
however, that the 3A belt needed more cleaning since it was accumulating faster than the other belts,
and that the cleanup crew ordinarily started its shift by first cleaning the 3A belt. Within this
framework of evidence, I find that Hill's failure to have followed up with the cleanup crew to make
sure they were cleaning the known problematic 3A belt constituted a serious lack ofreasonable care
and, therefore, the violation was the result of Respondent's unwarrantable failure and high
negligence. Under the circumstances, I can give this asserted defense but little weight. Order No.
6683965 is accordingly affirmed.

Order Number 6683966
This order, issued on January23, 2009, pursuant to section 104(d)(2) of the Act, also alleges
a "significant and substantial" violation of the standard at 30 C.F.R § 75.362(b) and charges as
follows:

An inadequate on shift examination was made of the 3A conveyor belt on the evening shift
of 01/22/2009. An accumulation of combustible materials was present on the conveyor belt
and were [sic] not recorded in the violation/hazards area of the examiner's record book as
referenced by Order#6683965. These accumulations were seen from the travel way entry and
should have been seen by the examiner that examined the conveyor belt. To terminate this
order, all examiners will have to be re-instructed on the proper way to examine a belt line
and to enter the hazards and violations in the proper area of the examiner's record books.
This order is based upon the conditions Inspector Morris observed at 8:25 a.m. on January
23, 2009 as described in Order Number 6683965 and the report ofthe onshift examination ofthe 3A
belt conducted by Mr. Minic during the second shift 11 hours earlier at 8:48 p.m. on January 22.
Minic reported the conditions he found aS ":fine piles inby the head and slurry and fines under the
rollers from the tak:eup to the 3B"(Exh. RB24). According to the order at bar, it is the Secretary's
position that Minic' s onshift examination was inadequate because he should have seen and reported
the conditions Inspector Morris saw at the 3A belt 11 hours later. The Secretary's argument is
premised on the inspector's unsupported opinion that the same hazardous condition he observed at
8:25 a.m. on January 23 also existed at 8:48 p.m. on January 22 I find however, that the Secretary
has failed to sustain her burden of proving that premise. Indeed, the persuasive evidence is that the .
accumulations described in Order Number 6683965 developed after Mr. Minic' s examination at 8 :48
p.m. on January 22nd.

32 FMSHRC Page 1031

It is noted in this regard that, following Minic' s examination, coal production continued until
I :00 a.m. on January 23rd, thatthe belts would have run until I :30 a ..m. and that production resumed
at 7:00 a.m. on January 23rd. In addition, there is affirmative credible evidence that the conditions
Inspector Morris· observed were not in fact present even at the time of the most recent onshift
examination preceding Morris' observations. Mr. Whiting conducted the preshift examination of
the transfer points, drive, and tail of the 3A belt between 4:30 a.m. and 5 :30 a.m. on January 23rd
and did not see the conditions fuspector Morris later cited at 8:25 a.m. that day. Under all the
circumstances, I do not find that the Secretary has met her burden of proving that the violative
conditions cited by Inspector Morris in Order No. 6683965 existed at the time of the niine
examination at issue. Order Number 6683966 must accordingly be vacated.

Orders Numbers 6683087; 6683088; 6683089 and 6683090
Order Numbers 6683087, 6683088, 6683089, and 6683090 involve MSHA Inspector Scott
Lee's January 26, 2009 inspection of the IA belt. The IA belt was approximately 500 feet long and
was considered to be a relatively short belt at this mine. At the time of Lee's inspection, a water
pump was located beneath the belt. There is conflicting evidence as to what material was on the top
and base of this water pump. This evidence is discussed below, under the heading for Order Number
6683087.
fuspector Lee was accompanied on his inspection by company representative Mike Davis and
union representative Greg Fort. Upon arriving at the IA belt, the inspection party initially stopped·
at the water pump where Lee indicated that he was issuing an order for spillage on top of the pump.
Messrs. Lee, Fort and Davis then walked the entire belt line. There was material along the500 feet
of the IA belt variously described as float coal dust, coal fines and wet coal fines. In addition, the
shaft of a roller had broken off on one side of the belt and, as a result, the roller had dropped to the
ground. A ribbon or warning flag was hanging from the top of a rail about a foot above the damaged
roller.
·

Charlie Hyers was the mine examiner who conducted the onshift examination of the lA belt
for the day shift on January 26, 2009. He examined the IA belt at approximately 8:00 a.m. and
walked the entire beltline to complete his examination. He observed a hazard in that a carbon pile
was present under the belt at the· No. 3 crosscut. He addressed the hazard, by knocking the pile down
and away from the belt. He also observed that the beltline wa.S dar~ in color and needed rockdusting.
Hyers testified that he did not observe a bad roller at the time of his examination.
Order No. 6683087, issued on January 26, 2009, pursuant to section 104(d)(2) of the Act,
also alleges a "significant and substantial" violation ofthe standard at 30 C.F.R §75.400 and charges
as follows:

32 FMSHRC Page 1032

Excessive accumulations of coal fines was [sic] allowed to accumulate on top cover of unit
#1(011/001) 480 VAC water pump. These accumulations were 4 to 8 inches deep, 10.5 feet
in length and four feet in width. There were also accumulations present next to the electrical
boxes that were 4 to 6 inches deep on the bottom skid plate of the unit. This unit was place
directly under the IA unit belt. Management had to know about the placement of this unit
and that it could be susceptible to coal fines build up around electrical components. This
mine has also been put on notice regarding the high number of75.400's which have been
issued this inspection quarter.
There is no dispute that a water pump had been installed directly beneath the unit lA
conveyer belt. Experienced MSHA Inspector, Scott Lee testified that there were fine coal
accumulations on the top cover of the pump ranging from 4 to 8 inches deep covering the 10 1/2 foot
by 4 foot length and width of the pump. According to Lee, there were also accumulations
"underneath the unit down where the electrical motor and things were present" 4 to 6 inches deep.
Union President, Greg Fort accompanied Lee during the subject inspection. According to Fort, the
cited water pump "had accumulated quite a bit of coal fines around the top of it and around the
external part in the sides."
Respondent's Safety Manager, Mike Davis, also accompanied the inspection party but
disagreed as to the amount of coal on top of the pump. He testified that there had been five rock dust
bags placed on top of the pump and there was "not over an inch or so" of coals spillage on top of
that. Davis also testified that there was "a lot of gob pushed up" on the bottom skid plate.
Respondent's shift manager, also testified that he observed coal dust on top of the water pump.
Certainly to the extent that there is corroborated evidence that at least a layer of coal accumulations
existed on top of the water pump. I find that the Secretary has met her burden of proving the
violation as, charged.
I further find that the Secretary has met her burden of proving that the violation was
"significant and substantial." While there is disagreement regarding the amount of the
accumulations cited, I find that credible evidence from the testimony of Inspector Lee corroborated
by eyewitness Greg Fort supports a finding that it was a significant accumulation not only on the
water pump but also along the entire 500-foot lA beltline. (See Order No. 6683088). The hazard was
aggravated by the presence of an ignition source about 150 feet away from the pump. While the
solid- state electrical components on the pump itself were not an ignition source the belt rubbing on
a damaged bottom roller caused belt shavings to be tom off the belt. Respondent's expert, Chad
Barras, also testified that hot lubricant from damaged rollers can also provide a source of coal
ignition. Under the circumstances, I find that the Secretary has sustained her burden of proving that
the violation herein was "significant and substantial" and of high gravity.

I further find that the violation was the result ofRespondent's unwarrantable failure and high
negligence. The amount of accumulations on and around the pump were extensive and, due to the

32 FMSHRC Page 1033

presence of a nearby ignition source, were hazardous. In addition, the report of the examination by
Mr. Diaz earlier on January 26th placed management on notice of potentially hazardous conditions
along the IA belt. Finally, the history at this mine of 118 violations of the standard at issue in the
15 months prior to the instant order clearly placed the mine on notice that greater efforts were
required to maintain the subject belt. Under the circumstances, Order No. 6683087 is affirmed.

Order No. 6683088, issued on January 26, 2009, pursuant to section 104(d)(2) of the Act,
also alleges a "significant and substantial" violation ofthe standard at 30 C.F.R §7 5.400 and charges
as follows:
Accumulations of combustible material in the form of coal float dust (118 to 114 inches deep)
and coal fines under bottom rollers (4 to 8 inches deep) were allowed to accumulate. This
condition was present rib to rib on the mine floor and was also present in the take-up and
drive areas of the belt. This condition was present in the mine record books but was written
under remarks instead of hazards. This mine has already been put on notice regarding the
high number of75.400's which have been issued this quarter. ·

During the same inspection on January 26, 2009, Inspector Lee observed float coal dust
accumulations black in color along the entire 500-feet-long beltline rib-to-rib and underneath the
belts rollers 4 to 8 inches deep. Accumulations in the take up and drive motor areas were also 4 to
8 inches deep. Lee's testimony was corroborated by Union President, Greg Fort who also observed
black accumulations of float coal dust and coal fines along the entire belt. I find Inspector Lee's
testimony to be credible and fully supported by Fort. This evidence clearly supports a finding that
the Secretary has met her burden of proving the violation charged herein.

The Secretary also maintains that the violation was "significant and substantial". I agree that
the Secretary' has sustained her burden of proving each of the four elements set forth in Mathies. The
violation has been proven as charged. Moreover, based on the credible testimony of Inspector Lee,
corroborated by Union President Fort, I find that the coal fines and float coal dust accumulations
were extensive and the Secretary has established that an ignition source was present. The ignition
source was the friction and heat generated by the IA belt rubbing against the bottom roller. Both
Inspector Lee and Union President Fort testified credibly that the damaged bottom roller on the 1A
belt had rubbed so hard against the belt that belt shavings had been tom off the belt. Should a fire
occur, it is reasonably likely to result in serious injuries and fatalities from smoke inhalation, carbon
monoxide poisoning and/or burns.

Respondent argues that the Commission has rejected testimony, such as Inspector Lee's, that
an event such as a fire "could" occur in evaluating the reasonable likelihood of an event under the
Mathies criteria. See TexasgulfInc., 10 FMSHRC 498 at 500-01 and Zeigler Coal Co., 15 FMSHRC
949 at 953-54(June 1993). However, in this case, Respondent's own expert witness, Chad Barras,

32 FMSHRC Page I 034

confirmed that hot lubricant from damaged rollers and hot rubber and metal particles from a
conveyor belt are a source of coal ignition.
The Secretary also alleges that the violation was the result of Respondent's unwarrantable
failure. I have found the Secretary's evidence credible that the cited accumulations were obvious and
extensive. Indeed the evidence shows that the accumulations were so extensive that it took more than
three hours to abate the conditions. I find that the report in the record book that the beltline was dark
in color, also placed management on notice of a potentially hazardous condition along the cited belt.
Finally, I note that Big Ridge had received 118 citations and orders for violations of the cited
standard in the 15 months preceding the issuance of the order at bar. I find that Big Ridge was
therefore on notice that greater efforts were required to complywith the cited standard. Within this
framework of evidence, I conclude that indeed the violation was the result of Respondent's
unwarrantable failure and high negligence. Under the circumstances, Order Number 6683088 is
affirmed.
·Order No. 6683089, also issued on January 26, 2009, pursuant to section 104(d)(2) of the
Act, alleges a "significant and substantiar• violation of the standard at 30 C.F.R §75.l 725(a) and
charges as follows:
·
The lA belt was not being maintained in.a safe operating condition. At 5 Yi cross cut the
bottom belt was rubbing hard on one side of a bottom roller which had been dropped out on
one side. This belt has already been cited this inspection shift for accumulations .of
combustible material. Management should have been made aware ofthis condition, but there
was no record of it in the mines record books. The rolle~ was flagged, so it appears that the
condition was present for at least one shift. The belt was removed from service. This mine
has already been put on notice regarding the high number of75.1725(a) issued this quarter
regarding belts rubbing structure .
The cited standard, 30 C.F.R § 75.l 725(a), provides that "mobile and stationary machinery
and equipment shall be maintained in safe operating condition and machinery or equipment in unsafe
condition shall be removed from service immediately."
The Commission has long held that in deciding whether machinery or equipment is in a safe
operating condition, the alleged violative condition under 30 C.F.R. Section 75.1725(a) is to be
measured against the standard of whether a reasonably prudent person familiar with the
circumstances surrounding the allegedly hazardous conditions and any facts peculiar to the mining
industry, would recognize a hazardous condition warranting corrective action within the purview of
the applicable standard. Alabama By-Products Corp. FMSHRC 2128, 2129, (December 1982).
Inspector Lee credibly testified that a defective bottom roller on the IA belt had been rubbing hard
against the belt to the extent that it had worn a flat spot. Union President, Greg Fort corroborated
Lee's testimony that the damaged bottom roller was obvious and that the roller rubbed so hard
32 FMSHRC Page 1035

against the belt that belt shavings from pieces ofthe belt had tom off. Both Lee and Fort testified that
the ignition source created by the damaged roller together with coal accumulations on the lA belt
created a hazard. Respondent's expert witness Chad Barras, also testified that rubber and metal
shavings from a conveyer belt would be hot enough to ignite coal. Within this framework of credible
and corroborated testimony, I find that clearly there was a violation of the cited standard.
I further find that the Secretary's allegations that the violation was "significant and
substantial" are also supported by credible evidence. While, as I have noted before, Lee's testimony
that an ignition "could" happen is insufficient in itself to conclude.that a fire would be reasonably
likely, I find that Lee's testimony in addition to that of union president Fort and the testimony of the
Respondent's expert witness, Chad Barras, combines to provide an ample basis to find a reasonable
likelihood of an ignition of the coal accumulations and a reasonable likelihood of serious or fatal
injuries from smoke inhalation, carbon-monoxide poisoning and/or bums. I conclude therefore that
the violation was "significant and substantial"within the framework ofMathies and of high gravity.
I further find that the violation wasthe result ofRespondent's unwarrantable failure and high
negligence. I first note that it is undisputed that a red ribbon or warning flag noting the existence of
a hazardous or dangerous condition was hanging within 20 inches of the damaged roller. There is
no dispute that mine examiners typically use such ribbons as a way of posting hazards and dangerous
conditions. It may therefore reasonably' be inferred that an agent of the operator was aware of the
defective roller. I note that Respondent's Safety Manager, Mike Davis, opined that the ribbon looked
old becartse it had rockdust and "stuff' on it and that it was not uncommon for such flags not to be
removed after a roller has been repaired or changed. However, because of the close proximity of the
ribbon to the position of the defective roller, i.e., only 20 inches away, I give Mr. Davis' speculation
but little weight.I further find that the defective roller, for the reasons previously stated, presented
a high degree of danger as an ignition source for the extant coal accumulations. Finally, based on 30
previous citations and orders issued to Respondent for violations of the standard at issue herein, I
conclude that Big Ridge had notice that greater efforts were required to comply with the cited
standard.
Within this framework of credible evidence, I conclude that, indeed, the violation charged
in Order Number 6683089 was.the result of unwarrantable failure and high negligence. The Order
is therefore affirmed.
Order No. 6683090, also issued on January 26, 2009 pursuant to section 104(d)(2) ofthe Act
alleges a ''significant and substantial" violation of the standard at 30 C.F.R §75.362(b) and charges
as follows:
An inadequate exam was performed on the IA belt on day shift 1/26/2009. A flagged bottom
roller at 5 Yi cross cut was not recorded in the mine record books. The roller had been
dropped out on one side and the belt was rubbing hard on the side still connected to the
32 FMSf.IRC Page 1036

structure. This condition had to have been present for at least one shift due to the presents
[sic] of the flag. This order also includes a hazardous condition being placed in remarks
instead of hazards in the mine record books. This belt wa8 cited this inspection shift for
accumulations of combustible material in the form of coal float dust and coal fines. This
condition was present in the mines record books, but was identified in remarks instead of
hazards;
This order alleges two separate violations, i.e., {1) that the examination performed on the IA
belt conveyer on the day shift of January 26, 2009 was inadequate because a flagged bottom roller
at the 5 Yi crosscut was not recorded in the mine record book and {2) the failure to report a hazardous
condition in the "hazard" section instead of"remarks" section of the mine record book. I find that
the Secretary has Jailed to have met her burden of proving either of the violations alleged. The most
recent onshift examination prior to Inspector Lee's finding of a violation at 6:45 p.m. on January 26,
2009 was conducted by Mr. Diaz at approximately 8:00 a.m. earlier on the same day. There is
insufficient evidence as to when that roller was found to be defective and flagged. Moreover, I find
credible the testimony of Mr. Diaz that he walked the entire belt and recorded and observed other
hazards and conditions, but did not observe any defective rollers or a flag. His examination was, of
course also some 10 hours before the violation was cited. The Secretary has simply failed to sustain
her burden of proving that the conditions cited by Inspector Lee had existed at the time of Diaz's
examination.
Moreover, the existence of accumulations found by Inspector Lee some 10 hours after the
examination by Mr. Diaz, does not itself establish that the same conditions had existed at the time
of Diaz's examination. While Diaz indicated in the mine record books that the beltline was dark in
color he did not report that condition as a hazard because the material was paper-thin. Diaz explained
that he had been taught that a "hazard" for pU.rposes of reporting is an immediate problem such as
rollers turning in coal. In any event, the Secretary has failed to sustain her burden of proving that the
conditions Inspector Lee found at 6:45 a.m. on January 26th had existed some 10 hours earlier when
Diaz conducted his examination.
Whether the material constitutes "accumulations" and whether that material constitutes a
"hazard" rather than a "condition" to be reported in the mine record books is also a matter clearly
left to the sound discretion of the mine examiner. The fact that this examiner reported that the
beltline was dark in color does not necessarily mean that it must he reported in the record books in
any particular column. The condition found by Diaz was reported as a condition requiring attention
by management and that is what is required.
·

Even assuming, arguendo, that the Secretary is now interpreting for purposes of reporting in
the mine examiners record books that a belt that is black in color must be listed as a "hazard" she
has provided no notice of that interpretation. At hearings, the undersigned requested that the
Secretary produce an official statement by the Secretary concerning what constitutes a "hazard" for
32 FMSHRC Page 1037

reporting purposes, but she failed to do so. Mine Examiner Charlie Diaz testified moreover that he
could not get MSHA to give him a straight answer as to what constitutes a "hazard" for reporting
purposes. I find under the circumstances, that the Secretary has failed to provide fair notice of her
interpretation of the term ''hazard" for purposes of reporting in mine examiners' books and that
therefore, due process also requires that Order No. 6683090 be vacated. See Energy West Mining
Co., 17 FMSHRC 1313, 1317-18 (Aug. 1995); Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov.
1990); Gates & Fox Co v. OSHRC, 790 F. 2d.154, 156 (D.C. Cir. 1986); General Electric 53 F.3d,
1324 at 1333-34 (D.C. Cir. 1995)
Order Number 6683968
This order, issued on January 29, 2009, pursuant to section 104(d)(2) of the Act alleges a
"significant and substantial" violation of the standard at 30 C.F.R §75.400 and charges as follows:
An accumulation ofcombustible materials, in the form ofcoal fines and loose coal, is present
at the operating 2C conveyor belt tail piece. The accumulations range from 1 to 18 inches in
depth by approximately 6 feet in width by 15 feet in length and the rotating belt is in contact
with the dry, ground up coal fines and there are coal fines built up on the frame work of the
tailpiece to the angle of repose. The belt was removed from service by management when
notified by MSHA.

Inspector Morris credibly testified that on January 29, 2009, he observed black accumulations
of coal fines and loose coal on the operating 2C conveyer belt tailpiece. Morris estimated that the
accumulations ranged from I to 18 inches deep by about 16 feet long at the tailpiece. On the mine
floor, they were wet and damp but at the tail roller, they were dry and powdery. Brad Champley,
Respondent's section foreman, testified that he observed what he opined was a fresh pile that had
spill~d off at the scraper by the tail piece. He estimated the material to be up to 3 feet by 4 feet in
size. I find in either case that the cited material was of significant size and amount.
Respondent argues that the cited material was non-violative "spillage" and not a violative
accumulation, citing Old Ben Coal Company, IFMSHRC 1955 (December 1979) and Utah Power
and Light v. Sec. ofLabor, 95 lF .2d 292 (10th Cir. 1991 ). As previously noted, the Commission stated
in Old Ben that some spillage of combustible materials may be inevitable in mining operations but
''whether a spillage constitutes an accumulation under [30 C.F.R §75.400] is a question, at least in
part, of size and amount". In addition, the Circuit Court in Utah Power and Light noted that ''while
everyone knows that loose coal is generated by mining in a coal mine, the regulation plainly
prohibits permitting it to accumulate; hence it must be cleaned up with reasonable promptness, with
all convenience speed." Utah Power and Light at 295 n.11.
In this case, I find that the combustible material was significant in size and amount, i.e.,
Inspector Morris credibly testified that the coal accumulations was 1 to 18 inches deep and about 6
feet wide and 15 feet long. I find that whether the material has been cleaned up with reasonable
32 FMSHRC Page I 038

"promptness with all convenient speed" depends in part on the knowledge that the mine operator has
regarding the recent history of spillage at the cited location. Here, there is no dispute that the
Respondent's section foreman, Brad Champley, was aware of frequent coal spillage on the 2C
tailpiece and had to frequently clean it. Indeed, he had already cleaned the tail piece twice that day
before the order was written. Champley, had also previously reported to higher company officials
that "we were having a nuisance with coal coming back on.the bottom belt at the scraper" Champley
also testified that "it was nothing more than constantly observing [he bottom belt at the scraper]and
shoveling it back up. It is further noted that the order at bar was issued around 9:00 a.m. and.that the
tailpiece had already been cleaned.at around 7:00 a.m. and then again around 8:00 a.m. Champley
therefore knew that they had a serious spillage problem at the tailpfoce that needed constant
attention. Under the circumstances even ifthe spillage had existed for only 30 minutes to an hour
I find that it constituted a violative "accumulation." The violatfon cited in Order Number 6683968
is accordingly affirmed.
I further find that the violation was, "significant and substantial" within the framework of
Mathies. As previously noted, I accept hispector Morris' credible observations regarding the size,
dryness and blackness of the material. I also find credible the testimony of Inspector Morris that the
rotating conveyer belt ind metal tail roller were in contact with the combustible material. It may be
reasonably inferred that this condition was then an ignition source or would become an ignition
source upon continuing normal mining operations. Again, while the evidence shows that the cited
material probably had not been present for more than 30 minutes to an hour, since mine management
knew of a continuing problem at that location, this relatively short time period is significant in
determining the "reasonable likelihood" of a belt fire. There is additional evidence that the belt had
become misaligned. With continuing normal mining operations, that misaligned belt would likely
have created metal or rubber shavings hot enough to ignite coal. ,That such shavings are an ignition
source is confirmed by Respondent's expert Chad Barras. I find that should a fire occur, injuries
could reasonabJy be expected to be severe or even fatal from smoke inhalation, carbon monoxide
poisoning and/or burns. Under the circumstances, I find that the violation was indeed "significant
and substantial" and-0fhigh gravity.
I also find that the violation was a result of unwarrantable failure and high negligence. The
violation was serious and obvious. In addition, because of the recent history of significant spillage
at the tailpiece, it was incumbent upon the Respondent to maintain greater vigilance at that location.
In addition, Respondent had a long history of violations of the cited standard. In the 15 month period.
preceding the issuance of the subject order, the mine had received 118 final citations and orders for
violations of the cited standard. Under all the circumstances, I find that the violation was the result
of Respondent's unwarrantable failure and high negligence. Order No. 6683968 is accordingly
affirmed.

Order Number 6683972 ·

32 FMSHRC Page 1039

This order, also issued on January 29, 2009, pursuant to section 104(d)(2) of the Act alleges
a "significant and substantial" violation of the standard at 30 C.F.R §75.202(a) and charges as
follows:

An area of roof, on the Unit #2 ·(MMU-002) working section, between Rooms #3 and #4 in
the last open cross cut, are not being supported or otherwise controlled, where persons work
· or travel, to protect persons from hazards related to falls of the roof The area measures
approximately 12 feet by 6.5 feet. This area is recorded in the third shift examiner's record
books on 01/28/2009 and countersigned by the foreman and mine manager. A perimeter cut
has been made inbythis area on the day shift. This is an unwarrantable failure to comply with
a mandatory standard.
The cited standard, 30 C.F.R § 75.202, provides as that: "[t]he roof, face and ribs of areas
where persons work or travel shall be supported or otherwise controlled to protect persons from
hazards related to falls of the roof, face or ribs and coal or rock bursts."
This order is supported by Inspector Morris' testimony that on January 29, 2009, he observed
an area of unsupported mine roof in the crosscut between rooms 3 and 4 in the number two working
section. The area of unsupported roof measured 12 feet by 6 Yi feet. The inspector observed two
loose roof bolts hanging 6 inches down fyom the roof The roof bolts were not secured against the
roof. The roof in the cited was also composed of"stack rock" described as thin, unconsolidated and
layered rock. It is undisputed that the subject mine had experienced multiple roof falls in areas
comprised of stack rock and, in recognition of this hazard, the approved roof control plan required
additional roof support in such ~eas.
Indeed, there is no dispute that the unsupported roof cited by Inspector Morris existed, that
the area of unsupported roofwas recorded in the third shift mine examiner's record book on January
28, 2009 and, that the book entry was countersigned by section foreman Brad Champley and the mine
manager. Champley personally· observed the loose bolts hanging down. In addition, there is no
dispute that in spite of the hazard having been reported in the record book, the hazard was not abated
prior to work being performed in the area.
From the undisputed evidence noted above, I find that the Secretary has met her burden of
proving the violation as charged. I also find that the violation·was "significant and substantial"
Within the framework of the Mathies decision. The violative condition exposed miners to an
identifiable and discreet safety hazard i.e. the danger of a roof fall from an area ofunsupported roof
The failure to immediately correct the hazard together with assigning miners to work and travel in
the cited area contributed to a risk of injury. Indeed, a roof fall was reasonably likely because ofthe
presence of unstable rock strata prone to collapsing. Indeed, there is no dispute that the mine had
experienced multiple roof falls in areas of stack rock and hence the approved roof control plan
required additional roof support in stack rock areas. Should a roof fall occur, there can be no doubt
that serious injuries and fatalities would likely result. It is also undisputed that Respondent's
employees worked and traveled nearthe area ofunsupported roofwhen miners made a perimeter cut
32 FMSHRC Page 1040-

inby the cited area on the day shift of January29, 2009. A miner operator and a ram car-operator
worked in the cited area to produce and load coal. Under the circumstances, the Secretary has clearly
met her burden of proving that the violation was "significant and substantial" and for the same
reasons that the violation was of high gravity.
I also find that the violation was a result of Respondent's unwarrantable failure. There is no
dispute that Respondent was aware of the cited unsupported roof since the hazard was recorded in
the mine examiner's book and countersigned by section foreman Brad Champley and the mine
manager. The area ofunsupported roofwas also obvious since the two loose roof bolts were hanging
down about 6 inches from the roof. Since the loose bolts were also in an area of dangerous stack
rock, the condition was also extremely dangerous.
In reaching this conclusion, I have not disregarded Respondent's argument thatthe fact that
Champley sent miners to work and travel in the area of unsupported roof, was a result of an
inadvertent error and therefore not the result of its unwarrantable failure. Champley explained that
when he was copying the conditions reported in the examiners book into his notebook, he mistakenly
wrote that the bolts were located between rooms 2 and 3 rather than 3 and 4. Therefore, when he
assigned work to the roof bolters, he inadvertently sent them to the wrong location. This error was
corroborated by the fact that the miners had actually installed bolts between rooms 2 and 3 rather
than 3 and 4. I find, however, that Champley's actions nevertheless showed a "serious lack of
reasonable care" and that therefore those actions constituted unwarrantable failure and high
negligence. Under the circumstances, Order No. 6683972is affirmed.

Order Number 6683973

This order, also issued on January 29, 2009, pursuant to section 104(d)(2) of the Act, alleges
a "significant and substantial" violation of the standard at 30 C.F.R §75.363(a) and charges as
follows:
A hazardou·s condition, in the Unit #2 (MMU-002) working section, was found on the third
shift of 01/28/2009 by the pre-shift examiner and was recorded in the pre-shift examiner's
record book, countersigned by the foreman and mine manager. The condition referenced in
citation #6683972 hazard was not corrected prior to work being performed in the area. A
hazardous condition shall be corrected immediately, or the area shall remain posted until the
hazardous condition is corrected. Only persons designated by the operator to correct or
evaluate the condition may enter the posted area. This is an unwarrantable failure comply
with a mandatory standard.
The cited standard, 30 C.F.R § 75.363(a) provides as follows:
Any hazardous condition found by the mine foreman or equivalent mine official, assistant
mine foreman or equivalent mine official, or other certified persons designated by the
operator for the purposes of conducting examinations under this subpart D, shall be posted
with a conspicuous danger sign where anyone entering the areas would pass. A hazardous
condition shall be corrected immediately or the area shall remain posted until the hazardous
condition is corrected. If the condition creates an imminent danger, everyone except those
32 FMSHRC Page 1041

persons referred to in section 104 (c) of the Act shall be withdrawn from the area affected
to a safe area until the hazardous condition is corrected. Only persons designated by the
operator to correct or evaluate the condition may enter the posted area.
Respondent argues that there was no violation as alleged in the order at bar because the area
had been posted with a ribbon as a warning flag. It is undisputed that there was a red or pink ribbon
lying on the mine floor beneath the cited condition. According to Inspector Morris, the examiner had
flagged-off the area by hanging the ribbon from surrounding roof bolts. Morris testified that he was
satisfied that the endangered area had been posted correctly (Tr. 686). I find accordingly that there
was no violation as charged in Order Number 6683973. The order must accordingly be vacated.
CIVIL PENALTIES

Under section 11 O(i) ofthe Act, in assessing civil monetary penalties, the Commission and
its judges must consider the operator's history of previous violations, the appropriateness of the
penalty to the size of the business of the operator charged, whether the operator was negligent, the
affect on the operator's ability to continue in business, the gravity of the violation and the
demonstrated good-faith of the person charged and attempting to achieve rapid compliance after
notification of the violation. Big Ridge is a large business with a significant history of violations.
There is no evidence that even the proposed penalties would affect its ability to remain in business.
There is no dispute that the violations were abated promptly and in good faith. The negligence and
gravity of the violations herein have been previously discussed. Considering the factors set forth in
section 11 O(i) of the Act, I find that the civil penalties ordered herein are appropriate.
ORDER
Order Numbers 6683084; 6683686; 6683966; 6683090 and 6683973 are hereby vacated. Order
Numbers 6683824; 6683965; 6683968; 6683972; 6683087; 6683088 and 6683089 are hereby
affirmed. Big Ridge Inc., is directed to pay the following civil penalties (totaling $153, 700.00) for
Order Numbers 6683824 $50,000.00; 6683965 $20,300.00; 6683968 . $50,000.00; 6683972
$7,70().00; 6683087 $17,300.00; 6683089 $17,300.00; 6683089 $9,100.00within40daysof
the dat~ of this decision.: Contest proceedings Docket Numbers LAKE 2009-274-R; LAKE 2009276-R; LAKE 2009-278-R; LAKE 2009-279-R; LAKE 2009-310-R and LAKE 2009-311-R are
hereby granted and Contest Proceedings Docket Numbers; LAKE 2009-277-R; LAKE 2009-280-R
and LAKE 2009-312-R are hereby dismissed.

G
Administrative
202-434-9977
32 FMSHRC Page 1042

Distribution: (Facsimile and Certified Mail)
Anthony Jones, Esq., and Rafael Alvarez, Esq., U.S. Department of Labor, Office of the Solicitor
230 South Dearborn Street, Chicago, Illinois 60604.

R. Henry Moore, Esq., and Arthur Woltson Esq., Jackson Kelly, PLLC, Three Gateway Center, 410
Liberty Avenue, Suite 1340, Pittsburgh, PA 15222.

Ito

32 FMSHRC Page 1043

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF THE ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9958 /FAX: 202-434-9949

August 31, 2010
DISCRIMINATION PROCEEDING

THOMAS BEWAK,
Complainant

Docket No. WEST 2008-161-DM

v.
ALASKA MECHANICAL,
INCORPORATED,
Respondent

Rock Creek Mine
Mine ID 50-01850

DECISION
Appearances: Melinda D. Miles, Law Office of Melinda D. Miles, Palmer, Alaska, for
Complainant; Allen F. Clendaniel, Sedor, Wendlandt, Evans & Filippi, Anchorage, Alaska, for
Respondent.
Judge Lesnick

Before:

This proceeding is before me on a Complaint of Discrimination filed by Thomas Bewak
('•Bewak") against Alaska Mechanical, Incorporated (..AMI''), under section 105(c) of the
Federal Mine Safety and Health Act of 1977 ('•the Act"), 30 U.S.C. § 815(c). The complaint
alleges unlawful discharge from employment in retaliation for having made safety complaints to
AMI.
Bew3.k filed a Discrimination Complaint with the Mine Safety and Health Administration
(..MSHA") pursuant to section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), on August 8, 2007. 1
Ex. 0. fu a letter to Bewak dated September 21, 2007, MSHA notified him that, based on its
investigation of the allegations contained in the Complaint, it had concluded that a violation of
section 105(c) had not occurred. Ex. P. Bewak, initially prose, initiated this instant proceeding
before the Commission on November 5, 2007, under section 105(c)(3) of the Act, 30 U.S.C.
§ 815(c)(3).2
·

1

Section 105(c)(2) provides, in pertinent part: ••Any miner ... who believes that he has
been discharged, interfered with, or otherwise discriminated against ... by any person in
violation of this subsection may, within 60 days after such violation occurs, file a complaint with
the Secretary alleging such discrimination."
2

Section 105(c)(3) provides, in pertinent part: ••If the Secretary, upon investigation,
determines that the provisions of this subsection have not been violated, the complainant shall
32 FMSHRC Page 1044·

Before a hearing was held, Bewak obtained· counsel. A hearing was subsequently held in
Anchorage, Alaska. The parties presented testimony and documentary evidence, and filed
post-hearing briefs. For the reasons set forth below, I conclude that Bewak engaged in activity
protected by the Act, and that his protected activity motivated Alaska Mechanical to terminate
his employment.

I.

Factual Background

The complainant, Bewak, is a welder and welding inspector who lives in Chickaloon,
Alaska. His inspector certifications were valid at all times relevant to these proceedings, and
authorized him to inspect the quality of welds and welding bolt-ups. Tr. 104-07. In early July
2007, Bewak was hired by AMI to work on a construction project at the Rock Creek Mine near
Nome, Alaska, primarily as a pipe welder, and secondarily as a quality control inspector. Tr.
112-13; Ex. B. He worked at the Rock Creek site from on or around July 8, 2007, until hewas
fired on July 25, 2007. Tr. 113, 165; Ex. D.
During 2007, NovaGold Resources and their subsidiary, Alaska Gold, were developing a
gold mine on the Rock Creek site. AMI had been hired as a general contractor to build
processing facilities on the site. Tr. 242. At the time Bewak worked at the Rock Creek Mine,
Kurt Imig was AMI's principal in charge of the Rock Creek Mine project, and also the
company's acting corporate safety officer, chief financial officer, and chiefpurchasing officer.
Tr. 284, 286-87. Imig testified that "[t]here was a big push in '07 to get the work done so that
[Alaska Gold] could pour a bar of gold before the new year." Tr. 247.
When Bewak reported for work at the Rock Creek site, he received a 20-30 minute
"minimal safety orientation" before being told to "hang out and just watch everybody the way
they work and just get used to being [on the site]." Tr. 113-16. During his first day on the job
site, Bewak observed several work practices and conditions that he felt were unsafe, including
ironworkers working overhead and allowing "more than the usual· amount of stuff' to fall from
where they were working onto areas frequented by other workers, welding leads running "up over
and around the stairways where people could trip over" them, "some people [whoJwore their
safety equipment for climbing around and other people [who] didn't," and supervisors who were
not addressing the safety problems he observed, acting instead as if "as long as they saw the
people moving, ... that was good enough for them." Tr. 116-17, 119.
Bewak' s observations were corroborated by Bret Garland, a pipefitter who worked for .
AMI at the Rock Creek Mine during the same period Bewak did. Tr. 21-23. Garland testified
that during the time he worked at Rock Creek, "[t]here just was a constant array of red flags
popping up" regarding unsafe working conditions. Tr. 24. When he first reported for work - at
which time he did not receive any "orientation or training," the site "looked rough ... they

have the right, within 30 days of notice of the Secretary's determination, to file an action in his
own behalf before the Commission ... ·."
32 FMSHRC Page 1045.

needed to come in with a little bit more fine fill and level out the place." Tr. 31-34. Although he
brought his concerns to the attention of his supervisor, the conditions causing him concern were.
never addressed. Tr. 36, 42. According to Garland, "as safety cultures go, this one [at AMI's
Rock Creek Mine project] was deficient." Tr. 78.
Each workday at the Rock Creek Mine began with a meeting of all AMI employees that
John Jackson, AMI's Mechanical Superintendent, described as consisting of"a group discussion
on where the main work activities were going to be located for that day, a general quick summary
of the type of activity, whether it was crane work, and - and the corresponding potential hazards.
Then that usually lasted not long, perhaps 15, 20 minutes." Tr. 412. After this all-hands
meeting, Jackson testified that ''the mechanical guys ... would always have a safety meeting."
Tr. 413. After these smaller meetings, members,ofthe work crew were required to sign a Task
Hazard Assessment (''THA") highlighting any potential hazards associated with that day's work.
According to Jackson, "[i]twas mandatory that you sign those. . . . And by signing those ...
[y]ou understood what your job was, and you agreed with the potential hazards and what to do to
correct them." Tr. 415.
On July 19, 2007, two AMI employees, Craig Bagley, 28, and Tyler Kahle, 19, died as a
result of injuries sustained when the man.lift they were operating tipped over. Tr. 95-96.
hnmediately following this accident, AMI's operations on the site were essentially suspended
while inspectors from the Mine Safety and Health Administration ("MSHA") investigated the
accident. Tr. 444. MSHA eventually cited AMI for violating the task training requirements of
30 C.F.R. § 48.27(a), alleging: "The task training did not identify the specific safe operating
procedures and limitations of the Load Management System that was critical to safely operate
[the] man.lift." Ex. 6. AMI was also cited for unwarrantable failure to comply with 30 C.F.R.
§ 56.14205 by operating the man.lift beyond its design capacity. Ex. 6.3

The ~y after the accident was a paid day off; over the following four days, July 21-24,
Bewak did "[v]ery little," though on either July 22 or July 23, Jackson asked Bewak to inspect
bolts used by AMI in constructing a mill building on the site. Tr. 193, 448. Bewak began
inspecting the bolts, but found that, in his opinion, "90 percent of the joints that I looked at had
to be reworked,.ifnot all of them." Tr. 149. He told Jackson "[i]t looks pretty rough," and
declined to finish the inspection because AMI did not have any necessary reference materials on
site for Bewak to consult. Tr. l52-53. Jackson testified that Bewak told him ''he didn't feel
comfortable in performing that task." Tr. 424. On July 25, 2007, Bewak attended the all-hands
3

AMI contested both the citations and the penalties arising from the accident. Alaska
Mechanical, Inc., Docket Nos. WEST 2008-1582-M, WEST 2008-135-RM, and WEST
2008-153-RM. The Secretary of Labor ("Secretary'') and AMI filed a joint motion to approve
settlement in the proceedings, dated March 12, 2010. On June 30, 2010, I concluded that the
reduced penalty agreed to by the parties for Citation No. 6398234 lacked the factual basis
necessary for me to determine whether the penalty would adequately effectuate the deterrent
purpose underlying the Act's penalty assessment scheme, and denied the motion.
32 FMSHRC Page 1046

meeting and a fall protection training session in the morning, then was told by his supervisor,
Rob Lancaster, that he had work for his crew, whereupon he assigned a welding job to several
members of his crew, including Bewak. Tr. 206-07. At approximately 2 o'clock that afternoon,
Bewak was fired. Tr. 165-67. Lancaster testified that he fired Bewak because, as he told
Jackson that day, "I just can't get Tom to work." Ex.Nat 50. 4
Jackson testified Bewak was fired "[b]ecause he would not follow safety procedures....
He wouldn't do his work. He would ... go out, walking around, talking to other guys that are
trying to do their work, thereby impacting my job ... it was just becoming too much." Tr.
435-36. Jackson explained further:

I mean, the rules were very simple and were explained daily: Sign the
THAs. For whatever reason, he wouldn't. Wear your safety vest. ... Practically
every day: Would you get the vest on:, please? Stay on task. ·.Do what you 're
hired to do, which in his case was putting together pipe. Do that. And he would
have other people, laborers and whatnot, do his work for him. He would be out
and about. I'd show up where he was supposed to be working, and he's not there .
. . . And so after a point here, this guy's more problem than he's worth to me.
And so that's it. And it was not like it was out of the blue. You know, if you
don't start getting back on beam here, I'll lay you off ... and you can step aside
and let a man that's serious about his job come in here and do it. You know, we
ramped up here.

Tr. 436-437.

Il.

Findings of Fact and Conclusions of Law

A complainant alleging discrimination under section 105(c) of the Act, 30 U.S.C.
§ 815(c), establishes a prima facie case of prohibited discrimination by presenting evidence
sufficient to support a conclusion that the individual engaged in protected activity and that the
adverse action complained of was motivated in any part by that activity. See Secy ofLabor on
behalf ofPasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev 'don other
grounds, 663 F.2d 1211 (3rd Cir.1981); Secy ofLabor on behalf ofRobinette v. United Castle
Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). In determining whether a mine operator's
adverse action was motivated by protected activity, the Commission has noted that a judge must
bear in mind that "direct evidence of motivation is rarely encountered; more typically, the only
available evidence is indirect." Secy ofLabor on behalf of Chacon v. Phelps Dodge Corp., 3
FMSHRC 2508, 2510 (Nov. 1981), rev'd on other grounds sub nom. Donovan v. Phelps Dodge

4

Lancaster did not testify at the hearing on this matter. Instead, his testimony was taken
in a telephonic deposition on Augilst 6, 2009, the transcript of which was admitted into the
record for evidentiary purposes as Exhibit N.
32 FMSHRC Page 1047

Corp., 709 F.2d 86 (D.C. Cir. 1983). "Intent is subjective and in many cases the discrimination
can be proven only by the use of circumstantial evidence." 3 FMSHRC at 2510 (citation
omitted). fu Chacon, the Commission listed some of the more common circumstantial indicia of
discriminatory intent: (1) knowledge of the protected activity; (2) hostility or animus towards the
protected activity; (3) coincidence in time between the protected activity and the adverse action;
and (4) disparate treatment of the complainant. 3 FMSHRC at 2510-12; see also Sec'y ofLabor
on behalf of Williamson v. CAM Mining LLC, 31 FMSHRC 1085, 1090 (Oct. 2009) (finding
"proximity in time" where the time between the protected activity and adverse action was three
weeks); Sec'y ofLabor on behalf ofHyles v. All American Asphalt, 21FMSHR.C34, 37-38,
43-44 (Jan. 1999) (finding temporal proximity despite 16-month gap between protected activity
and adverse action).

A.

Protected Activity

Bewak has established that, before AMI terminated his employment, he engaged in
protected activity when he brought safety concerns to the attention of his supervisors and an
MSHA inspector. 5 There is no dispute that Bewak resisted signing THAs. See Tr. 419-20
(Jackson's testimony that he "heard through the foremen initially that [Bewak] wasn't signing the
THAs). According to Bewak, he resisted signing THAs because the work crews to which he was
assigned "never actually physically went to [a work] area to do a THA ever, not with me ...
[and] you're supposed to physically go there. And everybody is supposed to point, hey, look, the
ground is not right for the manlift or - or this ladder is broken. Numerous things that could be
pointed out by everybody looking at the job." Tr. 496.
When asked whether he told AMI management why he was reluctant to sign the THAs,
Bewak said:
I told, Lancaster flat out. . . . I said, ... in order for me to sign this, we got to
really do one of these things [i.e., an adequate task hazard assessment]. And he's
like - looks at me like - kind of like a deer in headlights, and just kind of blew it
off and would say some unnatural thing like, yeah, okay, we will or something
like that. You know, Tom, sign the damn thing so we can get to work.
Tr. 130. Garland also testified that, in his experience, no THAs were ever done to address
specific hazards of specific jobs in the areas where the jobs were to be performed. Tr. 50-52. 6 I

5

Section 105(c)(1) of the Act provides, in pertinent part, that a miner cannot be
discharged, discriminated against or interfered with in the exercise of his statutory rights because
he "has filed or made a complaint under or related to this Act, including a complaint ... of an
alleged danger or safety or health violation."
6

fu this connection, I would note that it was clearly the opinion of MSHA that AMI' s
task training was tragically inadequate on at least one occasion. fu its report on the July 19

32 FMSHRC Page 1048

find that Bewak' s concerns regarding the THAs, and his communicating these concerns to AMI
management, constituted protected activity.

As detailed above, on either July 22 or 23, Jackson asked Bewak to inspect bolted joints7
in the mill building that AMI had under construction on the site. Tr. 193, 448. Bewak testified
that he agreed to do so, and found the work performed on the joints to be so inferior that, in his
opinion, most of the joints needed to be reworked. Tr. 149. He relayed his concerns to Jackson
and declined to finish the inspection. Tr. 152-53. According to Bewak, he told Jackson "you
would almost have to start from scratch [on] every joint." Tr. 157. Given Bewak's background
as a quality control inspector, I find that his concerns as to the quality of the work done on the
bolted joints were based upon a good faith, reasonable belief in a hazardous condition.
Robinette, 3 FMSHRC at 812 (in the context of protected work refusals, the Commission has
held that in order to be protected, work refusals must be based upon the miner's "good faith,
reasonable belief in a hazardous condition''). I also find that when Bewak told Jackson that the
bolted joints were "pretty rough" and required extensive reworking, that this constituted
protected activity.
After the July 19 double fatality at the Rock Creek Mine, MSHA Inspector Stephen Cain
arrived at the site to investigate the accident. Cain testified that Bewak approached him during
his investigation with concerns regarding the safety of the bolted joints being used in the
construction of the mill building. Tr. 94-98. Bewak testified:
I had been there for over a week, and everything I saw, up [to] and
including the deaths ... just compelled me to [approach Inspectol'Cain] .... I
wanted to talk to him. And I - when I first got the opportunity, I took it. He was
standing out there pretty much alone, and I was with a group of people. I went
right over there and introduced myself and asked him if- if he could do anything
about the quality of the work [in the mill building], because after the guys got
killed, I was afraid that building was going to fall down on somebody.
Tr. 161. Bewak's contacts with Inspector Cain constituted protected activity.

B.

Adverse Action

It is undisputed that on July 25, 2007, AMI terminated Bewak's employment at the Rock
Creek Mine, that it was Rob Lancaster who told Bewak he was fired, and that it was John

double fatality, the agency concluded that AMI management "failed to ensure the training
[provided to the manlift operators] addressed all safe operating procedures," and this failure was
a root cause of the accident that killed the operators of the manlift. Ex. 6.
7

In his Complaint filed with the Commission, Bewak stated that he examined "the DTI
or direct-tension-indicator bolt-up connections." Ex. 0, p. l.
32 FMSHRC Page 1049

Jackson, AMI's mechanical superintendent, who made the ultimate decision to fire Bewak. Tr.
167, 409, 431, 433; Exs. C, D, & Nat 50. I also find that Bewak was fired at around 2 o'clock in
the afternoon on July 25, after he had spent the morning in a training session on fall protection.
Tr. 165-67, 206-07. When he was fired, Bewak was part of a crew that had been assigned a
welding job by Lancaster. AMI does not dispute, and I thus credit Bewak's testimony that "it
was a two-man job at best, and he [Lancaster] had five, maybe even more people on that job all
wanting to get back to work, because they hadn't been doing anything .for two days. That was
like the big deal, the first job that came up. Nobody wants to stand around." Tr. 494.
Aside from these bare essentials, I find it necessary to address the testimony ofBewak's
supervisors on the events of July 25, 2007. I note in particular that Lancaster's account of what
occurred on July 25 differs in many respects from these findings. Ex. N at 36-50. According to
Lancaster, on the day he fired Bewak, he "had a project that came in the door, and it was a
welding project." Id. at 36-37. 8 He testified that he assigned the project to Bewak, with one
other person, Mike Morgan, to act as a "fire watch" for Bewak (i.e., someone ''with a fire
extinguisher nearby, in case something flared up"). Id. at 37. After attending to other tasks, he
returned to where he had assigned Bewak to work and discovered that:
Mike Morgan was welding it. So I said, I need Mike to be a fire. watch on the job,
that's the way we lined it out. I wanted to, you know, get him working. So I told
him, I need you to complete the job, so I pulled Mike off of it. . . . I need[ed] a
structural welder on it and not a pipe:fitter welder. Mike wasn't certified as a
structural welder and Tom was supposed to be.... I didn't reprimand anybody at
that point. I asked Tom to complete the job, and I went back to the main office, I
believe, and did some paperwork there.

Id. at 38-42. Lancaster said he again returned to Bewak's work area and found that "no one was
welding on the plate" and that Bewak did not have on his safety vest. Id. at 42. Lancaster went
on to testify that "at this point it's already been three,-plus hours that this blade should have been
worked on and there wasn't any prep work done to it. . . . I said, I need to get it done by noon."
Id. at 42, 49. He left again "to go check .on the rest of the crew," then returned again to Bewak's
work area:
And when I came back he was just standing next to the blade.... So at that point
I just walked right to the office. I told John Jackson, I said, I just can't get Tom to
work. And he said, well, you know what to do then ... we're not paying people
to stand there. So I told [Jackson] I was going to let [Bewak] go. So I went back
to Tom and I told him.

8

Lancaster was not clear as to the nature ofthis project. First, he said it was a welding
job "on a big blade off a piece of equipment," but then said, "I don't remember exactly what it
was, but it was a welding project." Ex.Nat 36,.37. Later, he again said the project involved
"some type of bulldozer blade." Id. at 43.
32 FMSHRC Page 1050

Id. at 49-50.
The most significant problem I find with Lancaster's testimony is that it is at odds with
record evidence that establishes an entirely different sequence of events. Although Lancaster
claims that after ''three-plus hours" he told Bewak he needed the welding project "done by
noon," during that time period, i.e., the morning of July 25, Bewak was attending fall protection
training. See Ex. L. Lancaster also contradicts himself when, on the one hand, he says that when
he first checked on Bewak, he found Morgan welding,' and on the other hand, says that later,
''there wasn't any prep work done to it." Ifhe found Morgan welding, there must have been at
least some prep work done. He was questioned further on this point, and further highlighted the
contradictions in his testimony:
Q. Why did you say start on the project if you had already seen hiri1
working on the project before?
A. He hadn'tworked on the project yet. And it's been over three hours,
that's why I got a little upset. I told him I need to get this blade started.
Q. Started. Okay. But this is the blade that Mike was welding on and
Tom was watching him?
A. Yes.

Ex.Nat 44. As to Lancaster's assertion that Morgan "wasn't certified as a structural welder,"
Morgan himself testified at the hearing that he was, in fact, certified at the time to do both
pipefitting and structural welding. Tr. 70-71. Lancaster's testimonyis also at odds with
Bewak's, who said Lancaster "had five, maybe even more people on that job all wanting to get
back to work." Tr. 494.
Finally; I note that another ofBewak's supervisors, Michael Shawn Engstrom, an AMI
general foreman, strangely enough told a story very similar to Lancaster's. Asked to comment
generally on Bewak's performance, Engstrom testified:

[O]ne particular day I made sure that there was a weld for Mr. Bewak to
do, and he was to weld it. And anyways, I come back out later, and one of the
other kids was welding on it. . . . Well, obviously I had confronted him about it.
And I can't remember exactly what the exact story was, but I recall that he wanted
to let the kid have some more practice and ... get some more welds under him,
which, you know, is fine, but I need[ed] to evaluate ... Mr. Bewak, and I
need[ed] him to do the stuff that's assigned to him.

32 FMSHRC Page 1051

Tr. 330-31. When asked if he was aware that Lancaster told "the same story," Engstrom was
taken aback, responding: "As far as - no, because I don't know- I'm not exactly sure what ·
you're getting at." Tr. 341-42. When counsel clarified the question, Engstrom replied, "If Rob
Lancaster is telling that story as well, then that would be on a separate incident." Tr. 342. When
Bewak was asked about the same story being told by Engstrom and Lancaster "about you having
another younger welder do a weld that you had been asked to do," he replied, "They're confused.
It only happened once." Tr. 494.
I agree with Bewak. I find that Engstrom and Lancaster were, at best, confused, and that
this fact casts considerable doubt on their testimony as a whole, as well as even greater doubt on
the particular testimony each offered regarding the story about Bewak and the younger welder. I
discredit their contradictory testimony. Instead, I find that Lancaster assigned a welding job to a
crew that included Bewak on July 25, 2007; that this occurred after Bewak: attended the fall
protection training session; and that once on the job, Bewak allowed a less experienced, albeit
properly certified, welder an opportunity to gain some experience by doing a structural weld. I
also find that any welding job AMI undertook at the Rock Creek Mine would have required the
company to "pay[] people to stand there," because as Lancaster stated, when welding was done,
"you always had to have a fire watch ... in case something flared up." See Ex.Nat 37, 50.

C.

Motivation

I find that the record contains ample reliable evidence to support a conclusion that AMI's
termination of Bewak was motivated by his protected activity. In reaching this conclusion, I
have relied primarily upon the following indicia of AMI' s discriminatory intent: (1) the
company's admitted knowledge ofBewak's protected activity; (2) the animus demonstrated by
AMI towards Bewak's protected activity; and (3) the very close proximity in time between
Bewak's protected activity and AMI's adverse action.

1.

Knowledge

The Commission has held that an "operator's ~owledge of the miner's protected activity
is probably the single most important aspect of a circumstantial case," and that "knowledge ...
can be proved by circumstantial evidence and reasonable inferences." Chacon, 3 FMSHR.C at
2510. Here, however, I do not need to resort to any circumstantial evidence or inferences to find
that AMI knew ofBewak's protected activity because the company admitted it knew of these
activities. John Jackson, who made the ultimate decision to fire Bewak, testified he knew Bewak
made safety complaints:

Q. Mr. Bewak complained about safety violations at the Rock Creek Mine
project prior to the deaths of Mr. Bagley and Mr. Kahle. Isn't that correct?
A. The only complaints I was aware of were the ones that were specific,

32 FMSHRC Page 1052

that he would make specific to what his area of work or what he was involved in.
Q. Right. So he did make complaints about safety, right?
A. Yeah.
Tr. 462; see also Tr. 409, 431, 433; Ex. C & D. Jackson also testified that he "heard through the
foremen initially that [Bewak] wasn't signing the THAs, and sol- after a short while ofthisand I had a chat with him; Is there a problem here? . . . I can recall him saying he had safety
issues." Tr. 419-20; see also Tr. 431, 433, Exs. C & D. Engstrom denied ever hearing Bewak
complain about THAs. Tr. 304-05, 356. fu light of Jackson's testimony that he ''heard through
the foremen initially'' that Bewak had objected to signing THAs (Tr. 419-20), I discredit
Engstrom's testimony on this point. To the contrary, I find that Engstrom knew ofBewak's
concerns regarding the THAs.
Lancaster testified that before Bewak was transferred to his crew, he was unaware of
Bewak refusing to sign any THAs. Ex. N at 32. Bewak, however, testified that on July 25, in
particular, Lancaster confronted him after he had not signed the THA for that day's work
assignment:
[Lancaster] assigned the work, and then he ... reminded me before he left, kind of
away .from everybody, [he] said, well, you didn't sign the [THA] again. And he
... acted like he was a little more ticked off about itthis time than all the other
times. So I said, yeah. . . . And when he left, I went and signed it, because I was
thinking, well, I really don't want to lose my job. And so I did. I went and signed
it against my better judgment.
Tr. 166. Bewak also stated that he "told Lancaster flat out" why he was reluctaritto sign the
THAs. Tr. 130, Jackson also testified that he "heard through the foremen" - not a singular
"foreman" - about-Bewak' s reluctance to sign THAs. Tr~ 419. Having ·already found
Lancaster's testimony generally unreliable, I discredit his testimony here, and find that he knew
that Bewak had problems with signing THAs.
Jackson denied that Bewak told him after inspecting the bolts in the mill building that he
"would almost have to start from scratch [on] every joint." Tr~ 157, 448. However, I find'
Jackson's testimony on this point lacking any credibility. His denial of being told byBewak that
the bolting job was done poorly came only after a series of non-responsive, equivocal answers on
cross examination:
· Q. Do you recall that when Mr. Bewak told you that he was refusing to
inspect the mill building, that the reason he gave you was because it was so poorly
done, [you] would need to start from scratch?
A. I would have to think about that for a minute because that's not - he's

32 FMSHRC Page 1053

not in a position to make that decision. He's not qualified.

Q. Okay. But whether or not he was qualified to state so, do you agree
that when Mr. Bewak refused to inspect the mill building, the reason he gave you
was that it was so poorly done, you would need to, quote, start from scratch?
A. I disagree with that statement. He's not qualified to make it. .
Q. I'm not asking you, Mr. Jackson, whether you agree or disagree with
the statement. I'm asking whether you agree that Mr. Bewak made that statement.
A. No. I don't recall that.
Tr. 446-447. Contrary to this testimony, I find that Jackson was well aware of the concerns
Bewak expressed concerning the ho.Its in the mill building Jackson asked him to inspect.
Specifically, I find that Jackson knew that in Bewak's opinion, the quality of work done on the
bolts was inferior and needed to be reworked.
Jackson also was aware that Bewak talked to an MSHA inspector after the July 19 fatal
accident, and that this was "during the process of him being laid off." Tr. 427. Bewak also
testified that when he spoke with fuspector Cain about the bolt-up in the mill building, he did so
in plain sight of his supervisor, Rob Lancaster. Tr. 169. Especially in light of Cain's testimony
that he spoke to AMI management about Bewak' s concerns (Tr. 98), I infer that Jackson knew
that the subject of the conversation Bewak had with Cain was the bolt-up.

2.

Animus

I find ,ample reliable evidence of the animus AMI management held towards Bewak.
With regards to T~s, despite concerns Bewak expressed about signing them when no adequate
hazard assessment had been done, he was told repeatedly that before he could start working, he
had to sign a THA, and that failure to sign one could lead to his being fired. Tr. 125-26.
According to Bewak, "we were told flat out we could get fired if we didn't sign it, flat out." Tr.
129. Jackson testified that Be~ak was reluctant to sign the THAs, and •'had a chat with him,"
but dismissed Bewak' s safety concerns as "just chatter." Tr. 419-420. When told by Bewak of·. ·
the problems with the bolt-up in the mill building, and that he did notwant to proceed with
inspecting them, Bewak testified that Jackson was "visibly upset." Tr. 156. When explaining
why he changed Bewak's Termination Report from indicating Bewak was laid off, with ..Not
Qualified" listed as the "Reason for Separation" (Ex. C), to indicating he was ..Fired" for
"Refusing to Follow Safety Procedures," Jackson testified: "Well, quite honestly, he just pissed
me off." Tr. 431, 433. Bewak also testified that when he spoke with fuspector Cain, he did so in
plain sight of his supervisor, Rob Lancaster. After Bewak :finished, he testified: ..When I turned
around, [Lancaster] gave me that look,Jike, oh, that dirty rat." Tr. 169.

32 FMSHRC Page I 054

fu light of this testimony, I find that Bewak worked in an environment in which
management was pervasively hostile to his safety complaints.

3.

Proximity in Time

Bewak was employed by AMI at the Rock Creek Mine for less than three weeks, from
July 8 or 9 until July 25, 2007. Tr. 113, 165; Ex. D. Clearly, the events that are the subject of
this proceeding occurred in very close proximity in time. The most relevant sequence of events,
however, occurred within a period of three or four days, from July 22 or 23, when Jackson asked
Bewak to inspect the bolt-up in the mill building, to July 25, when he was fired.
Jackson testified that he asked Bewak to inspect the bolt-ups on either Su.nday, July 22, or
Monday, July 23. Tr. 448. I have already found that after examining some bolts, Bewak.told
Jackson that the quality of work done on the bolts was inferior and needed to be reworked, and I
have credited Bewak's testimony that upon hearing this, Jackson was ''visibly upset." Tr. 156.
Soon after he expressed his concerns to Jackson, Bewak asked MSHA fuspector Cain "if he
could do anything about the quality of the work" in the mill building, and told Cain he was
"afraid-that building was going to fall down on somebody." Tr. 161. C~ in tum, told AMI
management ofBewak's concerns. Tr. 98. I have already drawn the inference that Jackson knew
that Bewak spoke to Cain about the bolt-up. On Tuesday, July 24, 2007, Jackson signed a
Termination Report on Bewak with "Layoff' checked and "Not Qualified" listed as "Reason for
Separation." Tr. 431, Ex. C. By the afternoon of the following day, Wednesday, July 25, Bewak ·
had been fired. Tr. 165-67. Clearly, there is a significant coincidence in time between these
various events, and Ithus find such a coincidence in time between Bewak's protected activity,
specifically his complaints regarding the bolt-up in the mill building, and the adverse action AMI
took against him.

D.

Prima Fade Case

In light of the findings I have made above, that Bewak engaged in protected activicy, that
AMI took adverse action against him, and that the adverse action was motivated by Bewak's
protected· activities, I therefore conclude that Bewak has met his burden of establishing a prima
facie case of unlawful discrimination under the Mine Act.

E.

AMl's Defenses

An operator may rebut a prima facie case of prohibited discrimination by showing either
that no protected activity occurred, or that the adverse action was in no part motivated by
protected activity. See Robinette, 3 FMSHRC at 818 n.20. If the operator cannot rebut the prima
facie case in this manner, it may nevertheless defend affirmatively by proving that it also was
motivated by the miner's unprotected activity and would have taken the adverse action for the
unprotected activity alone. See id. at 817-18; Pasula, 2 FMSHRC at 2799-800; see also Eastern
32 FMSHRC Page 1055

Associated Coal Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying
Pasula-Robinette test); Baich v. FMSHRC, 719 F.2d 194, 195,.96 (6th Cir. 1983) (specifically
approving the Commission's Fasula-Robinette test). The Commission has also noted t4atjudges
"may conclude that [such] justification is so weak, so implausible, or so out of line with normal
practice that it was a mere pretext seized upon to cloak discriminatory motive." Chacon, 3
FMSHRC at 2516.
AMI argues that Bewak:' s "[s]afety complaints, if any, had nothing to do with his
termination. He was fired because of his poor performance and workplace misconduct." AMI
Br. at 3. fu finding that AMI was motivated at least in part by Bewak:'s protected activities, I
have rejected this' defense. It remains for me to determine whether AMI would have fired Bewak
for unprotected activity alone. Before addressing this issue, however, AMI' s documentation of
Bewak's firing is problematic enough that I need to first address the contradictions and problems
arising from these documents and the testimony about them.
The record contains two Termination Reports for Bewak: signed and dated by Jackson.
Exs. C & D. The first of these reports was signed and dated by Jackson on July 24, 2007, and
lists July 24 as an effective date of termination. Under "Type of Separation," "Layoff' is
checked, and "Other: Not Qualified" is listed as a "Reason for Separation." The section of tpe
report entitled "Employee Evaluation" shows that Jackson believed Bewak's attendance was
"Satisfactory," and that his cooperation, initiative, job knowledge, and quality of work were all
"Fair." Under "Recommendation," "Some Reservation" is checked; however, under "Rehire," a
line appears midway between "Yes" and "No." Ex. C.
The second report has no effective date of termination, but was signed and dated by
Jackson on July 27, 2007. Under "Type of Separation," "Fired" is checked, and "Other: Refusing
to Follow Safety Procedures" is listed as a "Reason for Separation." Jackson has changed his
evaluation ofBewak's initiative and quality of work from "Fair" to "Unsatisfactory." Under
"Recommendation," "Would Not Recommend" is checked, and under ''Rehire," ''No" is clearly
marked. Ex. D. Neither Termination Report was signed or dated byBewak in the space
provided for him to do so.
When asked why he changed the Termination Report to reflect more poorly on Bewak's
performance, Jackson said that Bewak's behavior after being fired, but before leaving Nome, led
him to make the changes. Tr. 433-35. However, this rationale fails to stand up to any degree of
scrutiny.
At some point around the time Bewak was fired, AMI provided him a ticket to fly from
Nome to Anchorage, Alaska, aboard Alaska Airlines Flight 153. Ex. H (Travel Request dated
July 25, 2007, but signed and dated by Jackson on July 24). On the evening of July 25, 2007, the
day Bewak: was fired, an incident involving Bewak occurred at the Nome Airport. Tr. 177-79. A
police report on the incident notes that Bewak "was told that he could not fly [that night] because
of intoxication and to reschedule for tomorrow [July 26]." Ex. K. Bewak testified that he ''went

32 FMSHRC Page I 056 ·

back to [his] hotel room and waited till the next day and flew out." Tr. 178.
Jackson, on the other hand, testified that after Bewak was fired, "[h]e pulled a
disappearing act and was gone for three days. And we didn't know where he was." Tr. 433. In
other words, according to Jackson, Bewak was fired on July 25, disappeared for three days,
during which AMI personnel ''were cruising around town" but "couldn't find Bewak," then
re-appeared on July 28 and "pops up at the airline ... and starts giving a bunch of grief to the gal
there." Tr. 433-34. Jackson went on to say:

I mean, right, WI"ong or otherwise, if you're working for me, as far as I'm
concerned, you have to maintain ... a professional bearing, you know .... And
there was no need for that.
· I mean, what was - give me a reason why you'd want to do that. And that
made me angry, because, to me, it was an insult. And so I changed the paper. I
mean, this is - if that's the kind of guy he is, that's the kind of guy that we don't
want working for our company. And so I changed his papers, and I put in "Fired."
And basically, as far as I'm concerned, that meant he's not eligible for rehire, and
so be it.
Tr. 434-35. Jackson fails to explain in his testimony the discrepancy between his story and the
police report of the airport incident dated July 25, which corroborated Bewak's testimony that he
attempted to leave Nome that evening, but was forced to wait until the next day, July 26, to
leave. Nor did Jackson mention the airport incident in his July 27 termination report, nor the
three day "disappearing act." In fact, all he mentioned was Bewak's plirported ''Refus[al] to
Follow Safety Procedures" -which clearly has nothing whatever to do with Bewak's conduct
after being fired.
Jackson's testimony contradicts the documentary evidence. I find it singularly unreliable.
Furthermore, I find the second Termination Report to be a post hoc rationalization of AMI's
firing of Bewak for making safety complaints to MSHA. Moreover, I find Bewak's conduct after
being fired irrelevant to these proceedings, and reject as absurd AMI's insinuation that it was
justified in firing Bewak for something he did after he was fired. The July 27 Termination
Report is a cynical attempt to tum-the tables on Bewak, to make him out to be an unsafe worker,
and shift the focus away from the company's all too tragic.failure to maintain a safe working
environment on the Rock Creek Mine site.
In its posthearing brief, AMI points to an incident during which Engstrom told Bewak .
that he had been seen "stealing tools out of ... somebody's toolbox." AMI Br. at 3 (quoting Tr.
136-37). When Engstrom told Bewak who purportedly had made this accusation, Bewak went to
confront his purported accusers; ignoring Engstrom's order not do so. When Bewak confronted
the workers, they insisted that they never made any such accusation. Bewak then returned to his
job, where Engstrom "didn't say another word to me ever after that." Tr. 135-37. According to

32 FMSHRC Page 1057

Engstrom, the incident "was blown out of proportion," and that "it wasn't like anybody was
calling (Bewak] a thief." Tr. 332-33. AMI now argues that the incident justified Bewak's
termination because "he disobeyed a supervisor's direct order [and] angrily confronted other
employees." AMI Br. at 4 (citing Tr. 136-37). 9
As to whether AMI would have fired Bewak for this conduct alone, the fact is that they
did not do so, nor does the company's contemporaneous documentation of his firing mention tha1
he was insubordinate or confrontational with other employees. See Exs. C & D. Nor did Jacksor
ever offer this incident as among the reasons Bewak: was fired. See Tr. 436-437. Moreover, the
record reflects that at the AMI Rock Creek site, misconduct was not tolerated, and that failure to
follow the company's rules could lead to one being summarily fired. Calling the all-hands
meeting "the daily threat," Bewak testified that "when everyone left the meeting ... They would
talk - you know, they were angry. They were nervous. They were upset. These guys have
families to feed, and children and bills, and they're all walking away every day thinking that if
they do ... just some normal thing that may not suit [project manager Frank] Torres' idea of a
normal thing, they would be on the next plane out of here." Tr. 120-21. Garland corroborated
Bewak' s testimony, saying of the all-hands meetings: "What sticks out in my mind is the
emphatic demands that you don't stand around. . . . Every morning my job felt threatened by
Frank Torres." Tr. 43, 45. Had Bewak's behavior upon being accused of stealing tools been so
egregious, I find it likelier than not that he would have been fired at that time rather than after
making safety complaints to management and an MSHA inspector. I find AMI' s argument
unconvincing, and thus reject it.
AMI reiterates its argument that Bewak was fired for "misconduct (including safety
violations), and personality conflicts," and adds "poor performance" to its reasons. AMI Br. at 5.
The only "safety violation" the company points to is that Bewak repeatedly failed to wear his
safety vest. fu fact, Bewak admitted that he failed to wear his safety vest on at least two
occasions, one of which was on July 25, the day he was fired. Tr. 493. On July 25, Bewak was
dressed in protective welding leathers: ''when a welder welds, he's got to cover his arms. Some
leathers are only covering,one arm. Some leathers cover from the chest and both arms, and some
are a full leather j~cket .... I have all three. On that particular day [I was fired], I was wearing
the full jacket." Tr, 500-01. fu fact, had he not been wearing leathers, he would have been in
violation of AMI's work rules. Tr. 500. Notably, Bewak w-0re his leathers over the safety vest
provided by AMI because sparks would melt the vest. Tr. 171-72, 417-18, 493. Garland also
testified: "I'm not used to ever_ seeing welders wearing a safety vest." Tr. 57-58. Bewak had
good reason to shield his safety vest from sparks generated as he welded. To fault him for doing
so, AMI placed Bewak between a rock and a hard place - requiring him to wear protective
leathers on the one hand, and on the other hand, to wear a safety vest that was "probably more

9

The company also highlights Bewak's statement that after he returned to his job, when
Engstrom "didn't say another word to me," he "would have smacked [Engstrom] if he did." Tr.
137. At the time of the incident, however, Bewak neither voiced nor acted upon any such
intention. I reject AMI' s attempt to use his statement, made at trial over two years· after the
incident, to show that Bewak intended to strike Engstrom. See AMI Br. at 3.
32 FMSHRC Page 1058

dangerous, really, because it [would] melt to you." Tr. 172. I conclude that this particular
justification "is so weak, so implausible, [and] so out of line with normal practice that it [is] a
mere pretext seized upon to cloak discriminatory motive," See ~hacon, 3 FMSHRC at 2516.
AMI' s other grievances against Bewak lack credibility. The company argues that Bewak
was confrontational towards "Engstr{)m and other members of the crew." AMI Br. at 5 (citing
Tr. 335). But Engstrom, over whose credibility I have already raised doubts, testified "he was
confrontational with some other people." Tr. 335 (emphasis added). Such a vague,
unsubstantiated statement is the very epitome of pretext. The company argues that Bewak •'was
too social, which caused him to not do his work, but also to distract other employees from doing
their work." AMI Br. at 5. On the one hand, Engstrom testified that Bewak "[stood] around
talking a lot" (Tr. 331 ), while on the other hand Lancaster said that "Tom never spoke much. I
don't know if he ever really talked to me at all ... he was pretty quiet." Ex. N at 30. Given the
overall lack of credibility I found in the testimony of these two witnesses, I conclude that
Engstrom's accusation is yet further pretext. AMI's assertion that Bewak "did not do welds that
he was assigned and would give them to others to do" (AMI Br. at 5), refers to Engstrom's
version of the story involving the welder Mike Morgan, which I explicitly discredited above. I
also discredited Lancaster's version of this story, which AMI also attempts to offer as
justification for Bewak's termination. AMI Br. at 6.

F.

Conclusion

I find no merit in AMI' s attempts to resuscitate their case against Bewak by falling back
on unreliable, contradictory record evidence. Having thus found that the proffered rationale for
Bewak's discharge is not credible and was merely a pretext for terminating him because of his
protected safety complaints, I find that the Complainant herein has sustained his burden of
proving that his firing on July 25, 2007, was in violation of section 105(c)(I) of the Mine Act.

ORDER
Accordingly, inasmuch as Bewak has established, by a preponderance of the evidence,
that he was discharged for engaging in activity protected under the Act, it is ORDERED that the
Complaint of Discrimination of Thomas .Bewak against Alaska Mechanical, Incorporated, under
section IOS(c) of the Act, is GRANTED.
Within ten days of the date of this decision counsel for the parties ARE ORDERED to
confer to determine the appropriate back pay and interest to be awarded Bewak for the days he
missed work as a result of his illegal termination,·and any other relief required to make Bewak
whole. 10 Within 15 days of the date of this decision, counsel shall report the results of their
10

Section 105(c)(3) of the Act provides, in pertinent part: "The Commission shall afford
an opportunity for a hearing .... and thereafter shall issue an order ... dismissing or sustaining
the complainant's charges and, if the charges are sustained, granting such relief as it deems
32 FMSHRC Page 1059 ·

discussions to ·me jointly in writing, and I will issue a decision and order ruling on the
agreed-upon relief. If counsel are unable to agree, they shall jointly advise me in writing within
15 days of the date of this decision, and I will issue an order regarding the issue ofrelief
Also within 15 days of the date of this decision, counsel for the parties ARE ORDEREI
to separately address the civil penalty criteria set forth in section 11 O(i) of the Act. 11 Based on
these submissions, I shall enter findings on each criterion· and will assess Alaska Mechanical,
Incorporated, a civil penalty for its violation of section 105(c).

Robert J. Lesnick
Chief Administrative Law Judge
Distribution:
Melinda D. Miles, Esq., Law Offices of Melinda D. Miles, 634 South Bailey Street, Suite l 01,
Palmer, AK 99645
Allen F. Clendaniel, Esq., Sedor, Wendlandt, Evans & Filippi, LLC, 500 L Street, Suite 500,
Anchorage, AK 99501

appropriate ... Whenever an order is issued sustaining the complainant's charges under this
subsection, a sum equal to the aggregate amount of all costs and expenses (including attorney's
fees) as determined by the Commission to have been reasonably incurred by the miner .· .. for, or
in connection with, the institution and prosecution of such proceedings shall be assessed against
the person committing such violation."
Section 11 O(i) of the Act provides, in pertinent part: "The Commission shall have
authority to assess all civil penalties provided in this Act. 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."
.1 i

32 FMSHRC Page 1060

ADMINISTRATIVE LAW JUDGE ORDERS

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

July 2, 2010
JUSTIN NAGEL,
Complainant

v.
NEWMONT USA LIMITED,
Respondent

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEST 2010-18-DM
Docket No. WEST 2010-464-DM
WEMD09-ll

Mine ID: 26-02512
Leeville Mine

ORDER CONSOLIDATING CASES AND DENYING COMPLAINANT'S MOTION FOR
TEMPORARY REINSTATEMENT
This matter is before me upon .an Application for Temporary Reinstatement filed by
Justin Nagel (Complainant) on June 8, 2010 purs{fant to section 105(c) of the Federal Mine
Safety and Health Act of 1977, 30 U.S,C .. §815(c). Section 105(c)(l) of the Act prohibits
operators from discharging or othetwise discriminating against miners who have engageq in
safety-related, protected activity. A discrimination complaint under section 105(c)(2) of the Act
shall be filed by the Secretary of Labor if, after an investigation conducted pursuant to section
105(c)(2), the Secretary determines that a violation of section 105(c)(1) has occurred. A
discrimination complaint under section 105(c )(3) of the Act may be filed by the complaining
miner if the Secretary, after investigation, has determined that the provisions of section 105(c)( 1)
of the Act have not heen violated. In essence, Mr. Nagel seeks an order under 105(c)(3)
requiring Newmont Mining Company ("Respondent") to temporarily reinstate him to his former
position as Underground Operations Technician 3 at its Leeville Mine, or to a substantially
equivalent position at the same rate ofpay, even though Nagel settled his right to temporary
reinstatement under section 105(c)(2). For the reasons set forth below, I find that Mr. Nagel is
not entitled to such relief and his Motion for Temporary Reinstatement is denied. Respondent's
motion to strike and motion for attorney fees are also denied.

Procedural Background
On October 5, 2009, the Secretary filed an Application for Temporary Reinstatement on ·
behalf of Justin Nagel pursuant to section· 105(c)(2). That Temporary Reinstatement Proceeding
was Docket No. WEST 2010-18-DM. The Application sought an order requiring Respondent to
reinstate Nagel pending disposition of the complaint of discrimination that Nagel filed with the
Secretary's Mine Safety and Health Administration (MSHA) on September 9, 2009. Respondent
32 FMSHRC Page 1061

requested a hearing on the Application, and a hearing was scheduled for October 22, 2009 in
Elko, Nevada before Senior Administrative Law Judge Michael E. Zielinski.
Prior to the hearing, the parties negotiated a settlement of the issues raised by the
Application and executed a Settlement Agreement and Joint Motion for Temporary
Reinstatement. That Settlement Agreement economicalJy reinstated Nagel, effective November
I, 2009, until the merits of his discrimination complaint have been resolved. The Agreement
further provided, however, that in the event that the Secretary makes a finding of no
discrimination, the eoonomic reinstatement wilJ terminate on that date. The Settlement
Agreementwas signed by Complainant, who acknowledged that "I have read this agreement in
full and consent to its terms."
On November 4, 2009, Judge Zielinski issued an Order of Temporary Reinstatement,
consistent with the parties' Settlement Agreement. Specifically, that Order of Temporary
Reinstatement provided:
This Order shall remain in effect until the merit's ofNagel's discrimination
complaint have been resolved, as specified in the Settlement Agreement. In the
event that the Secretary makes a finding of no discrimination on the complaint,
Nagel's period of economic reinstatement shall terminate, effective upon the date
of the Secretary's determination. If the Secretary finds that the discrimination
complaint has merit and causes a Complaint of Discrimination to be filed with the
Commission, Nagel's period of economic reinstatement shall expire after any
decision or similar order from the Commission becomes final. 1

1

A Judge's Order temporarily reinstating a miner is not a final decision within the
meaning of Commission Procedural Rule 69, 29 C.F.R. § 2700.69, and except during appellate
review of such order by the Commission or courts, the Judge shall retain jurisdiction over the
temporary reinstatement proceeding. See Commission Procedural Rule 45(e)(4), 29 C.F.R. §
2700.45(e)(4). Review by the Commission of a Judge's Written order granting or denying an
application for temporary reinstatement may be sought by filing with the Commission a Petition
for Review of Temporary Reinstatement Order within 5 business days of the Judge's written
order. See Commission Procedural Rule 45(t), 29 C.F.R. § 2700.45(t).
By contrast under Commission Procedural Rule 69(a), 29 C.F.R. § 2700.69(a), "[a]n
order by a Judge approving a settlement proposal is a decision of the Judge." I note that this rule
is not limited to settlement of civil penalty proceedings. Furthermore, under section 113(d)( 1) of
the Act, "(t]he decision of the administrative law judge of the Commission shall become the final
decision of the Commission 40 days after its issuance unless within such period the Commission
has directed that such decision shall be reviewed by the Commission in accordance with
paragraph (2)," which provides, inter alia, that petitions for discretionary review must be filed
within 30 days of the issuance of the judge's decision. See section 113(d)(2)(i).
It is arguable that Judge Zielenski's Order of Temporary Reinstatement, which is not
final, was also an Order approving a settlement proposal, which became a final decision of the
32 FMSHRC Page 1062

On December 1, 2009, the Secretary issued a Notice of Finding of No Discrimination
Respondent never moved for dissolution of the Order of Temporary Reinstatement.
Consequently, the Judge never dissolved the Order. 2 Instead, Newmont just temrinated Nagel's
economic reinstatement, per the terms of the parties' Settlement Agreement. 3 ·
On January 5, 2010, Complainant filed an action on his own behalfbefore the Commission
under Section 105(c)(3) of the Act charging discrimination under Section 105(c)(l). That
discrimination proceeding is Docket No. WEST 2010:-464-DM. Nagel alleges that Respondent
discriminated against him in violation of Section 105(c )(1) when the company terminated his
employment on August 20, 2009 for safety complaints· that he made.
On March 26, 2010, the Commission received Respondent's Motion to Dismiss, which
denied any violation of the Act and asserted that Nagel's complaint failed to state a claim upon
which relief may be granted. On April 30, 2010, the Commission received the Complainant's
Response to Respondent's Motion to Dismiss. On May 28, 2010, Chief Administrative Law Judge
Robert J. Lesnick issued an Order Denying Respondent's Motion to Dismiss. On June 2, 2010,
Chief Lesnick issued an Order of Assignment, which assigned the discrimination proceeding in
Docket No. WEST 2010-464-DM to the undersigned. My pre-hearing Order in that
discrimination proceeding will issue today under separate cover.

Commission 40 days after its issuance. Given my finding of a voluntary, clear and unmistakable
waiver by Nagel of his right to temporary reinstatement, I need not resolve this issue.
2

In August 2006, the Commission revised Rule 45(g), 29 C.F.R. § 2700.45(g), to delete
the requirement that the judge dissolve the order of temporary reinstatement after the Secretary
has made a determination of no discrimination. See 71 Fed. Reg. 44190, 44198-99 (Aug. 4,
2006). The preamble explained that the deletion "leaves open for litigation the issue of whether
an order for temporary reinstatement remains in effect pending a miner's discrimination
complaint under section 105(c)(3). See 31 FMSHRC at 896, n. 8. Commission Procedural Rule
46(g), 29 C.F.R. § 2700.45(g) now reads as follows:
(g) Dissolution of order. If, following an order of temporary reinstatement, the
Secretary determines that the provisions of section 105(c)(l), 30 U.S.C. 815(c)(l),
have not been violated, the Judge shall be so notified. An order dissolving the
order of reinstatement shall not bar the filing of an action by the miner in his own
behalf under section 105(c)(3) of the Act, 30 U.S.C. 815(c)(3); and§ 2700.40(b)
of these rules.
3

C£ Gatlin, Robert v. KenAmerican Resources, Inc., 31 FMSHRC l 050, 1052 n. 2 (Oct.
2009) (respondent should have moved judge to modify temporary reinstatement order based on
subsequent layoff alleged to have tolled economic reinstatement, rather than unilaterally
determine that workforce reduction justified termination of reinstatement).
32 FMSHRC Page l 063

On June 10, 2010, Nagel filed the instant Motion for Temporary Reinstatement with the
undersigned and captioned his motion as a Temporary Reinstatement Proceeding, Docket No,
WEST 2010-18-DM . Essentially, Complainant moves for a temporary reinstatement order while
his case proceeds under section 105(c)(3), despite the prior Settlement Agreement that he executed
resolving the reinstatement issue under 105(c)(2). To prevent any confusion, Docket No. WEST
2010-18-DM and Docket No. WEST 2010-464-DM are hereby Ordered to be consolidated and I
have considered Complainant's instant motion as part the discrimination proceeding pending
before me in Docket No. WEST 2010-464-DM.
On June 18, 2010, Respondent filed an Opposition to and Motion to Strike Complainant's
Motion for Temporary Reinstatement. Respondent argues that under the express terms of the
Settlement Agreement and Judge Zielinski's November 4, 2009 Order, the Complainant's
temporary reinstatement automatically terminated upon a finding of no discrimination by the
Secretary on December 1, 2009. Respondent argues that it complied with the Settlement
Agreement by economically reinstating the Complainant duri:qg the agreed period, and that
Complainant must also comply with the terms of the Settlement Agreement, which stipulate that
the reinstatement period terminated upon the Secretary's finding of no discrimination. Thus,
Respondent argues that Complainant cannot now move to reargue an issue that has been
determined by stipulation and binding contract and has been formally adjudicated by prior Order.
Respondent's motion also seeks recovery of attorney fees for the cost ofreplying to what it
characterizes as Complainant's "frivolous motion."
On June 28, 2010, Complainant Nagel filed his Response. Complainant argues that no part
of the Settlement Agreement states that he cannot request reinstatement again, that he is eligible for
temporary reinstatement under section 105(c)(3), and that Respondent is not entitled to any
"financial adjustment" i.e., attorney fees, because he has not violated the Settlement Agreement.
Legal Analysis
Rulings on the Parties' Motions
Complainant's Motion for Temporary Reinstatement is denied for the reasons explained
below. Accordingly, Respondent's motion to strike is denied as moot.
Respondent's motion for attorney fees is also denied. Essentially, Nagel argues that the
Settlement Agreement is only valid with regard to Nagel's claims under section 105(c)(2), and that
he remains free to. request temporary reinstatement again under section 105(c)(3). For the reasons
set forth herein, I find that position to lack merit, but I do not find it frivolous. Given the views of
the Secretary of Labor, Chairman Jordan and Commissioner Cohen in Phillips v. A&S Construction
Co., 31 FMSHRC 975, (Dec. 2009), more fully explained below, an argument could be advanced
that the plain meaning of section l 05(c)(2) requires a temporary reinstatement order to remain in
effect until there has been a final Commission order on the merits of the miner's underlying
discrimination complaint brought under section 105(c)(3), even though all parties have entered a

32 FMSHRC Page 1064

settlement of the temporary reinstatement issue under section 105(c)(2). In addition, I note that the
Complainant is acting prose. Moreover, Respondent presents no authority to support attorney fee
recovery. Therefore, Respondent's motion for an award of attorney fees is denied.
Although I find Complainant's Motion for Temporary Reinstatement to be non-frivolous
given an arguable extension of the views of Chairman Jordan and Commissioner Cohen in Phillips
v. A&S Construction Co., I deny his Motion as lacking in merit. Rather, as further explained
herein, I find that Nagel clearly and unmistakably waived his right to temporary reinstatement once
the Secretary made a determination of no discrimination under the express terms of the parties
Settlement Agreement resolving the temporary reinstatement issue under section 105(c)(2).

The Commission's split views in Phi/Ups v. A&S Construction Co.

In examining the merits of Nagel' s motion, an overview of the language of section: 105(c)(2)
and 105(c)(3) and of the facts and analysis in Phillips v. A&S Construction Co. may prove helpful.
I then analyze Commission precedent concerning voluntary dispute resolution and settlement of
discrimination claims.
At the outset, it is important to note that Section 105(c)(2) expressly provides for temporary
reinstatement. It provides that any miner may file a discrimination complaint with the Secretary,
and if the Secretary finds that such complaint was not frivolously brought, the Commission, on an
expedited basis upon application of the Secretary, shall order the immediate reinstatement of the
miner pending final order on the complaint. Section 105(c)(3) contains no provision or language
concerning temporary reinstatement.

In Phillips v. A&S Construction Co., 31 FMSHRC 975, (Dec. 2009), the Commission
addressed the issue of whether an order of temporary reinstatement remains in effect after the
Secretary of Labor has made a determination that facts revealed from an investigation by MSHA
regarding a miner's discrimination complaint do not constitute a violation of section 105© of the
Act. The judge concluded that such an order does not remain in effect after MSHA's determination
that no discrimination occurred and the judge dissolved his earlier order of temporary reinstatement
and dismissed the temporary reinstatement proceeding. 30 FMSHRC 1119, 1123 (Nov. 2008) (AU
Barbour).
Thereafter, Mr. Phillips filed a petition for discretionary review challenging the judge's
order with the Commission, and Phillips concomitantly filed an action on his own behalf under
section· 105(c )(3 ). The Commission granted the petition for discretionary review and stayed the
judge's order dissolving the temporary economic reinstatement, pending the Commission's
decision. The Commission then split 2-2 regarding whether the judge correctly determined that a
temporary reinstatement order rto longer remains in effect after the Secretary has made a
determination of no discrimination. The effect of the split decision allowed the judge's order
dissolving the temporary reinstatement proceeding to stand, as if affirmed. 31 FMSHRC at 979,
citing Pennsylvania Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), affd on other grounds,
969 F.2d 1501 (3d CiL 1992). Accordingly, the Commission lifted the stay, dissolved the order of
32 FMSHRC Page 1065

temporary reinstatement and dismissed the temporary reinstatement proceeding. 31 FMSHRC at
979, n.l. 4
On the merits, Commissioners Duffy and Young affinned the judge's dissolution of the
order of temporary reinstatement and his dismissal of the temporary reinstatement proceeding. In
their view, based on the plain language of sections 105(c)(2) and (c )(3) and the legislative history
and statutory structure, a temporciry reinstatement order remains in effect pending final order on tl:
miner's complaint as advanced by the Secretary under section 105(c)(2), but does not extend to the
pendency of an action .under section 105(c )(3). 31 FMSHRC 981.

On the other hand, Chairman Jordan and Cominissioner Cohen reversed the judge's order,
but each by way of different analysis. In Chairman Jordan's view, the statute clearly states that a
temporary reinstatement order remains in effect pending a final Commission order on the same
underlying complaint filed with MSHA and prosecuted by either the Secretary under 105(c)(2), or
by the complainant under 105(c)(3). 31 FMSHRC at 997. That is, the statute requires a final ordc:
from the Commission on the complaint, not a determination from the Secretary, in order to dissolv·
a grant of temporary reinstatement. Id. at 992. In her view, there is no "final order on the
complaint" until the Commission issues an order affirming, modifying, or vacating the Secretary's
proposed order in accordance with section 105(c)(2), or dismisses or sustains the complainant's
charges in accordance with section 105(c )(3), and in either case, the final order must be based on
the Commis~ion's findings of fact and determination of whether discriminatory conduct in vioiatior
of section 105(c)(l) has occurred. Id. at 991.

In Commissioner Cohen's view, given his colleagues' and the.Secretary's different.and
contrary interpretations of the statute's text, structure; legislative history,and purpose, all set forth a
having "plain meaning" and all having some plausibility, the statute must be ambiguous in terms of
the Chevron I analysis. Id. at I 002. 5 Therefore, applying a Chevron II analysis, Member Cohen

4

Recently, two events occurred which may resolve the Commission deadlock on the
propriety of judge's dissolution of a temporary reinstatement order after the Secretary's
determination of no discrimination under Sec. 105(c)(2), where no final order of the Commission
has issued on the miner's action under Sec. 105(c)(3). First, the Commission granted review on
this issue in the matter of Sec '.Y ofLabor on behalfof Gray v. North Fork Coal Corporation,
Docket No. KENT 2009-1429-D. In that proceeding, the Secretary argues that under the plain
language of section I 05(c )(2), a temporary reinstatement order must remain in effect until there is
a final Commission order on the merits of the miner's underlying discrimination complaint,
regardless of whether the complaint is litigated by the Secretary under section 105(c)(2) or by the
miner under section 105(c)(3). Alternatively, the Secretary has argued that even if the meaning
of section 105(c)(2) is not plain, the Secretary's interpretation of section I 05(c)(2) is reasonable·
and entitled to deference under Chevron fl Sec'y Br. at 19-20. Second, Commissioner
Nakamura joined the Commission and will likely break the tie vote.

a

5

See Chevron U.S.A. Inc. v. Natural Res. Def Council,467 U.S. 837, 842-844 (1984) (if
a statute is clear and unambiguous, effect must be given to its plain language under a Chevron I
32 FMSHRC Page 1066

would accord deference to the Secretary's reasonable and permissible interpretation of the statute,
as anricus curiae, to require that a temporary reinstatement order remain in effect until there is a
final Commission order on the miner's underlying discrimination complaint, whether it is litigated
by the Secretary pursuant to section 105(c)(2) or by the miner under section 105(c)(3). 31
FMSHRC at 1002, citing Sec'y ofLabor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003). 6

Nagel's Temporary Reinstatement Rights Pending
Litigation of his Discrimination Complaint Under Section 105(c)(3)
Were Voluntarily Settled and Clearly and Unmistakably Waived
Nagel's temporary reinstatement case is clearly distinguishable from ~e dissolution of the
temporary reinstatement order in Phillips v. A&S Construction Co~ because it involves a voluntary
settlement of the temporary reinstatement application by all parties. In such circumstances, I find
that the principles of voluntary dispute resolution must prevail over granting Nagel a second bite at
the apple by allowing his motion for temporary reinstatement under section 105(c)(3 ). Otherwise
the Secretary and Commission, already struggling to reduce a vast and growing backlog, would be ·
endlessly negotiating for settlement of multiple applications or motions for temporary reinstatement,
and re-adjudicating issues of temporary reinstatement that they thought were settled under section
105(c)(2), time and again under section 105(c)(3). Such a result would gut the principles of
voluntary dispute resolution and the confidence that the parties must have in the finality of their
settlement agreements.
Knowing and voluntary settlement is an essential aspect of dispute resolution under the Act.
In this regard, the Commission recently vacated a settlement in the context of a Section I 05(c)(2)

analysis, but if the statute is ambiguous or silent on a point in question, a second inquiry is
necessary to determine whether the agency's interpretation of the statute is a reasonable one and
entitled to deference under a Chevron II analysis); see also Thunder Basin Coal Co., 18
FMSHRC 582; 584 (Apr. 1996).
6

Member Cohen emphasized the Secretary's interest in ensuring that sectionl05(c) is
interpreted in an expansive manner to vigorously protect miners, who make safety complaints,
since "enforcement of the [Mine] Act is the sole responsibility of the Secretary." See Sec'y of
Laborv. Twentymile Coal Co., 456 F.3d 151, 161 (D.C. Cir. 2006). 31 FMSHRC at 1003.
Thus, he found that the Secretary has a real interest in ensuring that her view of the Mine Act's
temporary reinstatement provision prevails, even where she has determined that there has been
no violation of section 105(c)(1) in a particular case. 31 FMSHRC at 1004. Accordingly, he
rejected the views of Commissioners Duffy and Cohen that the Secretary is owed no deference
because she is no longer "charged with administering" the temporary reinstatement provision of
the Act once the Secretary has made a detennination of no discrimination. 31 FMSHRC at 10021003. Rather, he concluded that temporary reinstatement is based on a finding by the Secretary
that the discrimination complaint was not "frivolously brought," and the fact that the Secretary
may later find that discrimination did not occur, does not alter or diminish her finding that the
complaint was not "frivolously brought." 31 FMSHRC at 1103.

32 FMSHRC Page 1067

discrimination complaint because the miner, who filed the complaint with MSHA, was not a part
to the agreement. See Pendley, Lawrence v. Highland Mining Co., LLC, 29 FMSHRC 164, 164,
(Apr. 2007). The Commission emphasized the importance of the miner's participation in agreein
to the settlement terms. 7 Specifically, the Commission emphasized the following:
The Commission has made clear that "[s]ettlement of contested issues is an integral part o
dispute resolution under the Mine Act." Tarmann v. Int'/ Salt Co., 12 FMSHRC 1, 2 (Jan.
1990) (quoting Pontiki Coal Corp., 8 FMSHRC 668, 674(May1986)}. In this respect, th1
Commission has observed that "the record must reflect and the Commission must be assw
that a motion for settlement (approval], in fact, represents a genuine agreement between th
parties, a tru.emeetirtg of the minds as to its provisions." Tarmann, 12 FMSHRC at 2
(quoting Peabody Coal Co., 8 FMSHRC 1265, 1266 (Sept. 1986)). See also Wake Stone,~
FMSHRC at 290 (decision approving settlement vacated where it was ''unclear whether th1
parties achieved a true meeting of the minds").
The Commission concluded that because Pendley had objected to and had not come to an agreed
disposition of the matter, the judge's decision approving the settlement and dismissing the
proceeding should be vacated.
In this case, miner Nagel, who has filed a complaint with the Commission under section
105(c)(3), is a party under Commission Procedural Rule 4(a). Unlike Pendley, however, Nagel hru
voluntarily relinquished his right to temporary reinstatement under the terms of the Settlement
Agreement that he executed. That is, once the Secretary made a .finding of no discrimination on
December I, 2009, Nagel' s economic reinstatement terminated on that date pursuant to the clear arJ
unmistakable terms of the Settlement Agreement that he signed.

In this regard, the Settlement Agreement, specifically provides that "[i]f the Secretary make:
a finding of no discrimination at any time after Mr. Nagel's temporary reinstatement, the temporary
reinstatement will terminate on the date on which a negative decision is made.... " As a consequenc1
Nagel's period of economic reinstatement terminated by agreement of the parties, including Nagel,
on December I, 2009, the date of the Secretary's determination of no discrimination. 8 Thus, the

7

In that case, the miner, Pendley, did not agree to the initial settlement agreement. Id.
The Commission found that there must be a "meeting of the minds" between the representatives
of the parties for the settlement agreement to stand. Id. at 165. Since Pendley did not agree to, or
sign, the settlement agreement, there was no genuine agreement between all the parties as to the
provisions of the settlement agreement. Id.
8

1 note that neither the Secretary nor Nagel reserved the right to argue that in the event
that the Secretary determined that Section 105(c)(I) had not been violated, the temporary
reinstatement shall remain in effect "pending final order on the complaint." See 30 U.S.C. §
815(c)(2). The Secretary has reserved this argument in settlement of other temporary
reinstatement cases. See e.g., Clapp, Cindy v. Cordero Mining, LLC, Docket No. WEST 20101314-D (June 2007).
32 FMSHRC Page 1068

record reflects a clear meeting of the minds on the issue of temporary reinstatement, as required by
Commission precedent. In these circumstances, I conclude that Nagel clearly and unmistakably
waived his right to. temporary reinstatement once the Secretary made a determination of no
discrimination under the express terms of the parties Settlement Agreement resolving the temporary
reinstatement issue under section 105(c)(2). 9
·
Perhaps more importantly, Commission case law also establishes that a temporary
reinstatement order may be vacated by voluntary settlement where the alleged discriminatee is party
to the agreement. See Koerner, John v. Arch Mineral Coal Co. 1 MSHC 2078 Gudge's decision
vacating temporary reinstatement order after settlement of discrimination proceeding affirmed upon
receipt of assurance that settlement and vacation of reinstatement order were agreed to by miner). In
Koerner, a discrimination proceeding under Section 105(c)(2), the. Secretary moved to vacate a
temporary reinstatement order on the ground that the parties had negotiated a settlement of the
discrimination proceeding. The judge granted the motion, but the Commission remanded because
the record did not indicate whether the alleged discriminatee agreed with the motion to vacate. The
Commission's primary concern in directing review was to assure that the alleged discriminatee
voluntarily agreed to vacation of the reinstatement order. The Commission emphasized that "[i]t is
the miner's rights that are being settled, and we must, therefore, insure that the settlement and
vacation of the reinstatement order were agreed to by the miner, not just the Secretary and the
operator." Id. The Secretary's submissions on remand indicated that discriminatee Koerner was a
party to the settlement and authorized the Secretary to move for vacation of the temporary
reinstatement order. In these circumstances, since the record established that alleged discriminatee
Koerner was a voluntary party to the agreement, the Commission's concerns were satisfied and the
judge's vacation of the temporary reinstatement order was affirmed.
The same logic applies to the instant matter even though it involves settlement of the
temporary reinstatement issue under Section 105(c)(2), not the entire discrimination proceeding
under I 05(c)(3).· Complainant Nagel, like alleged discriminatee Koerner, was a knowing and

9

Cf. Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983)(union could waive its
officers' statutory right under§ 8(a)(3) of the National Labor Relations Act to be free of anti- ·
union discrimination, but such waiver must be clear and unmistakable); Wright v. Universal
Maritime Service Corp., 525 U.S.·70, 80-81 (1988) (collective-bargaining agreement's general
arbitration clause did not clearly and unmistakably waive an employee's right to a judicial forum
for his claim under the ADA, distinguishing Gilmer v. Interstate/Johnson Lane Corp .. , 500 U.S.
20 (1991) because Gilmer involved an individual's waiver of his own rights, rather than a union's
waiver of the rights of represented employees and hence the "clear and unmistakable" standard
was not applicable); Interstate Brands v Bakery Drivers, 167 F.3d 764 (2d Cir. 1999) (Wrights
"clear and unmistakable" standard is based upon a concern about allowing a union to waive an
individual employee's statutory rights--i.e., a concern about the waiver of one's rights by
someone else; however, where one waives one's own rights, the "clear and unmistakable"
standard is not required).

32 FMSHRC Page 1069

voluntary party to the Settlement Agreement and the tenns under which his economic reinstatemeIJ
order would be terminated, as evidenced by his signature on the Settlement Agreement. In these
circumstances, I find the terms of the Settlement Agreement controlling. Accordingly, I conclude
that the temporary reinstatement order was properly terminated on December 1, 2009 - the date th~
Secretary issued a finding of no discrimination - pursuantto the express terms ofthe parties'
Settlement Agreement.
Accordingly, IT IS ORDERED that Docket No. WEST 2010-18-DM and Docket No.
WEST 2010-464-DM are consolidated. IT IS FURTHER ORDERED that the Complainant's
motion for temporary reinstatement has been voluntarily waived and_ is therefore DENIED.
Consequently, IT IS FURTHER ORDERED that the temporary reinstatement proceeding IS
DISMISSED. Respondent's Motion to strike Complainant's Motion is moot and Respondent's
motion for attorn~y fees is DENIED.

7£,,,,,, I 111 ·~

Thomas P. MccarthY
Administrative Law Judge

Distribution:
Justin Nagel, P;O. Box 182, Rathdrum, ID 83858
Richard Tucker, Newmont Mining, 1655 Mountain City Hwy., Elko, NV 89801
Donna Vetrano Pryor, Esq., Patton Boggs LLP, 1801 California Street, Suite 4900, Denver, CO
80202
/cp

32 FMSHRC Page 1070

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N.W., SUITE 9500
WASIDNGTON, D.C. 20001
(202) 577-6809
Facsimile 303 844 5268

July 12, 2010

CIVIL PENALTY PROCEEDING

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

Docket No. PENN 2009-803
A.C. No. 36-07416-195550

v.

CONSOL PENNSYLVANIA COAL CO.,
Respondent

Enlow Fork Mine

ORDER REGARDING MOTION FORPARTIAL SETTLEMENT AND STAY OF
REMAINING CITATION
Before the Court is the Secretary's Motion for partial settlement and a stay regarding one
(Citation No. 7064741) of the eight (8) citations within this docket. The Motion states that the
parties negotiated settlements for seven of the citations and it seeks the Court's approval for
them. The motion sets forth reasons to justify the reduction from the originally proposed
penalties, which totaled $23,491.00 1 to the proposed settlement amount, which totals $4,184.00,
a reduction of 82% .
As set forth in the Motion, the Secretary offers the following in support of the reductions
it now advocates and for which the Respondent concurs:
For Citation No. 7084566, alleging improper storage of gas cylinders, the issuing
inspector failed to detennine if the cylinders contained fuel. This created an evidentiary
shortcoming and that failure supports the reduction in the penalty sought to $128.00.2

1

The proposed penalty includes a 10% reduction from the amount which would be
derived from the total points under the penalty policy, representing an across-the-board reduction
for "good faith."
2

While accepted in this instance, the Court notes that the citation states there had been 13 .
citations for this regulation at this mine in the past two years, a significant number of occurrences
for the same problem. In the future, the Secretary will need to explain how this was considered.
32 FMSHR.C Page 1071

For Citation No. 8008112, which alleged improperly setting temporary roof support, the
Motion's attached Exhibit "A," explains that in fact no violation existed. The Court is bound to
accept the Secretary's action, but not the request that the matter be dismissed "without
prejudice." At least as to this event, the Secretary cannot have it both ways by agreeing on the
one hand that no violation in fact existed and simultaneously asserting that it may still re-file the
proceeding for the same event. Therefore, the proceeding is dismissed as to this Citation, but
"with prejudice."
For Citation No. 8008113, an energized battery was not ventilated with intake air that wru
properly coursed in that it traveled to the primary escapeway. The Citation noted this condition
had been cited 12 times in the last two years at this mine. The Motion states that it was later
determined that only a small amount of air was traveling over the charger to the intake and that
the batteries were being vented into the return. The reevaluation of the circumstances concluded
that a fire was not reasonably likely to occur. While there is some conflict about the air's travel
path, the Court will accept the Motion's reassessment of the gravity and the attendant reduction
in the proposed penalty to $499.00. However, as noted supra, future motions will need to
address how the Secretary has factored the assertion that this standard has been violated so often
in the past.
For Citation No. 7084571, the Citation asserts the presence of damp loose coal and coal
fines along a nine foot distance of a conveyor belt. The issuing inspector noted there have been
180 citations of this regulation over the past two years at this mine. The Motion asserts that
"there was no confluence of factors to·support that fire was reasonably likely to occur" and that
the air travels in an outby direction and would affect only one person, the beltman, either by
bums or smoke inhalation. Originally assessed at $11,306.00, the Motion seeks to reduce the
penalty to a mere $207.00, a reduction of 98%. Given the unrefuted factors listed in the citation,
and the significant history of this class of problem at the mine, the drastic reduction proposed,
without more explanation or justification, cannot be accepted. Therefore the proposed

settlement tor tbis Citation is DENIED.
For Citation No. 8008115, the facts asserted in the Citation are essentially the same as
those presented in Citation No. 8008113. While the Court continues to have the same
misgivings expressed for Citation No. 8008113, it accepts the proposed settlement but with the
same admonition that future settlement motions will need to explain how a significant history of
the same regulatory violation was considered.

For Citation No. 7064745, the settlement provides for the full amount originally proposed
and accordingly, the settlement is accepted.
For Citation No. 8008120, the settlement provides for the full amount originally proposed
and accordingly, the settlement is.accepted.

32 FMSHRC Page 1072

As noted above, the Motion seeks a stay with regard to Citation No. 7064741. The
requested stay anticipates that a decision involving the same regulation, presently on appeal
before the Commission, is likely to impact the resolution of this matter. On that basis, the
Motion seeks a stay until a decision ·is issued in that matter, PENN 2008-189. This is a
reasonable request and accordingly the request for a stay is GRANTED as to that citation.

is

Accordingly, except for Citation No. 7084571, which proposed settlement DENIED,
and Citation No. 7064741, which is STAYED, the Settlement Motion is GRANTED as to the·
remaining Citations, as identified above.

William B. Moran
Administrative Law Judge

Distribution:
Thomas Whitehair II, U.S. Department of Labor, MSHA, Paladin Professional Center, 631 Excel
Dr., Suite 100, Mt. Pleasant, PA 1_5666
Suzanne M. Burtt, CONSOL Energy fuc., CNX Center, 1000 CONSOL Energy Dr., Canonsburg,
PA 15317-6506

wm

32 FMSHRC Page 1073

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUOOE
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASIIlNGTON, DC 20001-2021
TELEPHONE: 202-434-9958 IFAX: 202-434-9949 ·.

July 13, 2010
CIVIL PENALTY PROCEEDING

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

Docket No. VA 2008-400
A.C. No. 44-06804-156224

v.
KNOX CREEK COAL CORPORATION,
Respondent

Mine: Tiller No. 1

ADDITIONAL ORDER TO SHOW CAUSE WHY MOTION FOR SUMMARY
DISPOSITION FOR FAILURE TO FILE A TIMELY ANSWER AND RESPONSE TO
NOTICE TO SHOW CAUSE SHOULD NOT BE GRANTED
Statement of the Proceedings
This proceeding concerns proposals for assessment of civil penalties filed by the
Petitioner against the Respondent pursuant to section l lO(a) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 820(a). The October 29, 2008 Petition seeks civil penalty
assessments in the amount of $25,996 for 11 alleged violations of certain mandatory safety
standards found in Part 56, Title 30, Code of Federal Regulations. The citations and proposed
civil penalty assessments are as follows:

Citation No.

Date

30 C.F.R.

Section Assessments

7317861
7317862
7317904
6632093
6632099
6632100
6632101
6632102
6632103
6632105
6632107

4115108
4116108
4116108
4/21108 .
4123108
4/23/08
4/23/08
4/23/08
4/23/08
4/23/08
4123108

75.370(a)(l}
75.202(a)
75.370(a)(l)
75.400
75.400
75.202(a)
75.362(b)
75.400
75.400
75.400
75.517

$1,795.00
$2,106.00
$3,689.00
$3,689.00
$ 745.00
$1,412.00
$2,473.00
$3,996.00
$ 745.00
$3,689.00
$1,657.00

32 FMSHRC Page l 074

On November 16, 2009, Chief Administrative Law Judge Robert J. Lesnick issued by
certified mail an Order to Respondent to Show Cause why default judgment should not be
entered for failure to file an: Answer as required by Commission Procedural Rule 29, 29 C.F.R.
§2700.29. Chief Judge Lesnick Ordered that an Answer to the Petition be filed within 30 days of
said Order, or Respondent will be placed in default and ordered to pay the assessed penalties.
The return receipt indicates that said Order was served on Respondent on November 19, 2009.
Respondent failed to file its Answer, as ordered, or otherwise respond to the Order to Show
Cause.
Nearly six months later, on May 17, 2010, the Petitioner filed a Motion for Summary
Disposition of Proceedings pursuant to Commission Procedural Rule 66, 29 C.F.R. §2700.66
because Respondent had not filed an Answer to date and had not responded to the Order to Show
Cause.
On May 18, 2010, counsel for Respondent filed a Notice of Appearance. On May 20,
2010, Respondent, by and through counsel, filed its Answer, which admits, inter alia, that
Respondent received a proposed assessment from the Secretary for $25,996.00. On or about
May 24, 2010, Respondent, by and through counsel, served its Memorandum in Opposition to
Motion for Summary Disposition of Proceeding on the Secretary and Commission by telecopy
and first-class mail.
fu its Memorandum in Opposition, Respondent argues that it has bona fide defenses to
the underlying 11 citations and that summary disposition would be unfair. Respondent avers
that the Petition and Order to Show Cause were served on Respondent, but never assigned to
outside counsel, and that the Secretary's Motion for Summary Proceedings was served and
immediately assigned to outside counsel, who immediately filed Respondent's Answer.
Respondent avers that it has unspecified bona fide defenses that could result in vacation of the
citation, or reduction in the gravity cited and penalty assessed. In such circumstances,
Respondent argues that it would be unjust to impose the full $25,996.00 assessment against it for
apparent administrative oversight in failing to assign this matter to outside counsel, particularly
since the Secretary has argued no prejudice from any delay in having to defend the citations
against reasonable inquiry and cross-examination. On the contrary, Respondent argues that any
delay would be most likely to prejudice Respondent since unspecified persons with relevant
knowledge of the citations have left its employ. In sum, Respondent argues that it is ready to
proceed with discovery and that this case should be decided on the merits, not inadvertent
procedural missteps.

Petitioner replies that the Respondent has admitted its failure to respond to the Petition
and Order to Show Cause and has simply stated that this case was not "assigned to outside
counsel'' until the Secretary filed the instant motion. Thus, Petitioner argues that but for the
Secretary's motion, Respondent's inaction would have resulted in default judgment. The
Secretary then analyzes requests for relief from default orders under Commission precedent
applying Fed. R. Civ. P. 60(b), which provides that to obtain relief from a final judgment, a party

32 FMSHRC Page 1075

must establish (I) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence; (3) fraud; (4) that the judgment is void; (5) that the judgement has satisfied, released,
or discharged or should not have prospective application; or (6) any other reason justifying relief
In essence, the Secretary argues that a party requesting reopening from a final judgment or
default order under Fed.R.Civ.P. 60(b)(I) must establish more than mere carelessness, i.e., that
this case was "never assigned to outside counsel." Finally, the Secretary argues that Respondent
must, but has failed to, identify facts that, if proven on reopening, .would constitute a meritorious
defense. Accordingly, the Secretary argues that Respondent has failed to satisfy its burden of
establishing an entitlement to extraordinary relief from final order and the Secretary's Motion for
Summary Disposition should be granted.
Discussion
The applicable Commission Rules in this case provide as follows:

29 C.F.R § 2700.27
§ 2700.27 Proposal for a penalty.
(a) When to file. Within 45 days of receipt of a timely notice of contest of a notification
of proposed assessment of penalty, the Secretary shall file a proposal for a penalty With
the Commission.

29 C.F.R § 270028
§ 2700.28 Answer.
A party against whom a penalty is sought shall file and serve an answer within 30 days
after service of a copy of the proposal on the party. An answer shall include a short and
plain statement of the reasons why each of the violations cited in the proposal is
contested, including a statement as to whether a violation occurred and whether a hearing
is requested. {Italics added).
29 C.F.R § 2700.63

§ 2700.63 Summary disposition of proceedings.
(a) Generally. When a party fails to comply with an order of a judge or these rules, an
order to show cause shall be directed to the party before the entry of any order of default
or dismissal.

(b) Penalty proceedings. When the judge finds the respondent in default in a civil penalty
proceeding, the judge shall also enter a summary order assessing the proposed penalties
as final, and directing that such penalties be paid.
In this penalty proceeding, it is undisputed thatthe Respondent failed to file a timely
32 FMSHRC Page 1076

Answer and failed to respond to the Show Cause Order. However, a Commission Administrative
Law Judge (ALJ) never issued an order of default. That is, to date, there has been no finding by
an Administrative Law Judge that Respondent was in default, and no entry of a summary order
assessing the proposed penalties as final. On the other hand, the facts establish that it was only
after the Secretary's Motion for Summary Disposition that Respondent filed its belated Answer
because the case was not assigned to outside counsel before then. In essence, therefore, the
Petitioner seeks a default judgment on the ground that the Respondent failed to file a timely
answer to the Petition and. Notice to Show Cause. Cf. Air Climate Systems, Inc., 357 NLRB No.
75 (May 30, 2008) (default judgment granted in absence of good cause shown for late filed
answer).
Based on the facts outlined above, I am sympathetic to the Petitioner's plight and loathe
to require the expenditure of time and money in litigating matters that appear ripe for summary
disposition for failure to follow Commission rules and ALJ Orders, particularly during this time
of growing backlog in Commission case processing. In my view, the days for two or three bites ·
at the apple may well be over. In fact, I recognize that the Commission is in the process of
issuing a Notice of Proposed Rulemaking for a new Commission default rule, which proposes a
rule including relief not only from orders that have become final by operation of law under
section 105(a) of the Act, but also from defaults resulting from a party's failure to file an answer
to a petition for assessment of penalty. Nevertheless, I also recognize that default is a harsh
remedy, and that if the defaulting party can make a showing of good cause for failure to timely
respond, appropriate proceedings on the merits may be warranted.
Accordingly, out of an abundance of caution, I have decided to issue this additional Order
to Show Cause Why Summary Disposition for Failure to File a Timely Answer and Response to
Notice to Show Cause Should Not Be Granted. In an effort to provide as much guidance to the
parties as possible, the Commission, in its proposed rule has set forth two principal factors that
the Commission would consider in determining whether to reopen a final order of default, as well
as other additiopal factors that it may also consider. The first factor that the Commission would
consider is the nature of the error or omission leading to the default (including whether the
operator exercised due diligence in attempting to contest the proposed penalty, whether the
untimeliness was within the reasonable control of the operator, and the effectiveness of the
operator's internal contest procedures). The second factor is the period of time between the
operator's discovery of its default and the filing of the request to reopen with the Commission.
Additional factors that the Commission might consider include the operator's history of penalty
delinquencies, the size of the operator, the operator's experience with Mine Act procedures,
whether the operator was represented by counsel at the time of the default, the size of the
proposed penalty, prejudice to the Secretary or any affected person, whether the motion is
opposed, and any other relevant factor.
The parties are hereby placed on notice that I have decided to consider these factors in
arriving at my disposition of this matter. Accordingly, within 14 days from the date of this
order, the Respondent is Ordered to address these factors and to Show Cause Why Summary
Disposition for Failure to File a Timely Answer and Response to Notice to Show Cause Should
Not Be Granted in this matter. The Petitioner is directed to respond, if appropriate, within 8
32 FMSHRC Page 1077

days after service of Respondent's showing. No further papers will be permitted. I will then
rule on whether the Petitioner's proposed civil penalty assessments·should not be made the final
order of the Commission, and whether the motion for default judgment should be granted or
denied.

SO ORDERED.

1l.f!Ytlfd /!]it (.~
Thomas P. McCarthy(/
Administrative Law Judge

Distribution:
Jordana L. Greenwald, Esq., Office of the Solicitor, U.S. Department of Labor, 170 S.
fudependence Mall West, Suite 630, Philadelphia, PA 19106-3306
Alexander Macia, Esq., Spilman, Thomas, & Battel, PLLC, 300 Kanawha Blvd. East, P.O. Box
273, Charleston, WV 25321,.0273

/cp

32 FMSHRC Page I 078

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE ·
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

July 19, 2010
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEVA 2009-1123
AC. No. 46-05868-179688

v.

Mine: Pinnacle Preparation Plant

PINNACLE MINING COMPANY,
LLC,
Respondent

DocketNo. WEVA2009-1124
A.C. No.46-09030-179694
Mine: Green Ridge #1 Mine

ORDER ACCEPTING LATE FILINGS
ORDER DENYING MOTIONS TO DISMISS
The Secretary of Labor, Mine Safety and Health Administration ("Secretary") filed her
penalty petition in each of these cases on September 8, 2009. On September 11, 2009,
Respondent Pinnacle Mining Company, LLC ("Pinnacle") filed its motions to dismiss for the
Secretary's failure to timely file the penalty petitions. Pinnacle did not allege that it was
prejudiced by this delay. Pinnacle also filed its answer to the penalty petition on September 11,
2009.
On December 11, 2009, the Secretary filed an opposition to Pinnacle's motion to dismiss
and a request to accept the petition out::of-time. 1 The Secretary alleges that the delay was the
result of the high rate of contests, resulting in an unprecedented number of petitions to be
processed, coupled with a lack of adequate staff to handle the increased workload.
Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30U.S.C. § 815(d)
(''Mine Act"), states that a mine operator wishing to contest a citation or an order or a
notification of proposed assessment of penalty must notify the Secretary of Labor ("Secretary")
of its desire to do so within 30 days of receipt of the citation or order or proposed assessment, at
which time the Secretary immediately shall notify the Commission, and the Commission shall
afford an opportunity for hearing. Commission Rule 28(a) provides that "within 45 days of
receipt of a timely contest of a proposed penalty assessment, the Secretary shall file with the
1

In future proceedings, the Secretary should file the Motion to File the Petition Out of Time concurrent with
or prior to the penalty petition, in accordance with 29 C.F.R. § 2700.9.

32 FMSHRC Page 1079

Commission a petition for assessment of penalty." 29 C.F.R. § 2700.28(a).
Pinnacle :filed its notices of contest in the above-captioned dockets on March 31, 2009.
Accordingly, under Section 2700.28(a), the Secretary's petitions for assessment of civil penalty
should have been filed by May 22, 2009.
Case law demonstrates the Commission's preference toward resolving cases on the merits
rather than based on procedural defects. See M.M. Sundt Constr. Co., 8 FMSHRC 12_69, 1271
(Sept. 1986) and Coal Prep. Services, Inc., 17 FMSHRC 1529, 1530 (Sept.1995). It is wellsettled that the late filing of a civil penalty petition is not jurisdictional. See Salt Lake County
Road Dept., 3 FMSHRC 1714, 1716 (July 1981). While the Secretary should adhere to the 45day time limit, the Commission has made clear that neither the tenn "immediately" contained in
Section 105(d) of the Mine Act nor the time limit should be construed as a "procedural strait
jacket[]." Id. at 1716.
Furthermore, given the unprecedented number of cases currently before the Commission,
as well as the unprecedented number of penalty petitions pending before the Secretary, strict
adherence to the 45-day time line is unrealistic. See Solar Energy, 31 FMSHRC 729, 730 (June
2009) (AU Feldman).
fu light of all of the foregoing, it is ORDERED that the Secretary's late-filed penalty
petitions are ACCEPTED. Accordingly, Pinnacle's motions to dismiss the above captioned
dockets are both DENIED.

? ;::i LRobert

Chief Administrative Law Judge

Distribution:
Ernie Ross, Jr., Conference & Litigation Representative, U.S. Department of Labor, MSHA, 100
Bluestone Road, Mt. Hope, WV 25880-1000
F. Thomas Rubenstein, Esq., Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Suite 310,
Morgantown, WV 26501
·
/meh

32 FMSHRC Page 1080

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, DC 20001-2021 ·
Telephone No.: 202-577 6809
Telecopier No.: 703-569-7'/08

August 19, 2010
OAK GROVE RESOURCES, LLC.,
Contestant
v.

CONTESTPROCEEDJNG
Docket No. SE 2009-261-R
Citation No. 7696616; 01/08/2009

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
Respondent

Oak Grove Mine
Mine ID 01-00851

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

CIVIL PENALTY PROCEEDING
Docket No. SE 2009-487
A.C. No. 01-00851-180940-01

OAK GROVE RESOURCES, LLC.,
Respondent

Oak .Grove Mine

ORDER ON RESPONDENT'S MOTION FOR SUMMARY JUDGMENT and its
ALTERNATIVE MOTION FOR PARTIAL SUMMARY DECISION AS TO
SIGNIFICANT & SUBSTANTIAL FINDINGS
This case arose in connection with a fatality at the' Respondent's Oak Grove Mine on May
22, 2008. It is alleged that on that date a motorman died when he was crushed between "a derailed
haulage car and the locomotive he had been operating." Citation No. 7696616, issued January 8,
2009. The Citation averred that the haulage car was being pushed on the main haulage road and that
the miner would not have been exposed to the hazard if the haulage car was pulled, instead of being
pushed. MSHA contended that the practice of pushing the haulage car contravened a safeguard
notice, number 2604892, issued more than more than twenty years earlier, on March 3, 1986.

The pertinent text from the March 3, 1986 issuance of the safeguard provided:
This notice to provide safeguard requires that cars on main
haulage roads not be pushed except where necessary to push
cars from side tracks located n:ear the working section to the

32 FMSHRC Page 1081

producing entries and rooms. 1
Oak Grove Exhibit 2.
Presently before the undersigned Administrative Law Judge ("Court") is Respon
Motion for Summary Decision, or in the Alternative, Motion for Partial Summary Decisior
Respect to Significant and Substantial Findings. ("Motions''). The Secretary filed a Response
Respondent's Motions ("Response"). Regarding its Motion for Summary Decision, Conte;
Respondent Oak Grove Resources, LLC ("Oak Grove") acknowledges that the Safeguard was i~
in 1986 but that it then received a waiver from that Safeguard on August 31, 1987. Oak Grove
recounts that, on December 21, 2001, MSHA issued a notice that the waiver was void and tha1
'(f]uture MSHA inspections of the transportation of men and materials shall be directed b)
provisions of 30 CFR Part 75.1403." Motion at 3. The history of the events surrounding
Safeguard is not in dispute. Rather, Oak Grove's critical assertion is that, although MSHA
voided its waiver, it then needed to reinstate the Safeguard, Nwnber 2604892, but that it never
so. Thus, the question posed is what procedural steps are required by MSHA in circwnstances wl
it issues a valid Safeguard notice, then issues a "waiver'' for that Safeguard, and then, thinking bet
of that decision to issue a waiver, wishes to reinstate the original Safeguard. IfOak Grove is com
that MSHA needed to fonnally reinstate the Safeguard, then it would be entitled to swnma
decision, as the safeguard did not exist at the time of the fatality and consequently any citati<
relying on it would be null.
Oak Grove's motion in the alternative argues that, even if the safeguard did not need to b
reinstated, the "significant and substantial" designation can not be included within the Citatio1
because only "mandatory health and safety standards" may have such a finding and a "Notice t<
Provide Safeguard" is not such a "mandatory standard" under the Mine Act. Id. at 4.

Discussion
I. Oak Grove's Motion for Summary Decision

1

The condition or practice identified in the safeguard, which prompted the notice to
provide safeguard on that date, provided; "The No. 902 battery powered locomotive was being
used to push two loaded supply cars consisting of a car of timber and a car of roof bolts down the
graded haulage supply mine track entry of the main south area of the mine, near the intersection
of the No. 7 and No. 14 section switch and the No. IO and No. 5 section switch. Such area is
approximately 2100 feet from the main bottom area of the mine and approximately 3600 feet
from the No. 7 section and the No. 10 sections, respectively." Oak Grove Exhibit 2, copy of the
Safeguard issued March 3, 1986. Oak Grove agrees that, apart from the particular condition or
practice identified, the Safeguard "requires that cars on main haulage roads not be pushed except
where necessary to push. cars from side tracks near the working section to the producing entries
and rooms." Oak Grove Memorandwn in Support of its Motion (Memorandum in Support) at 2.
32 FMSHRC Page 1082

In its Memorandum in Support of its Motions, Oak Grove describes MSHA's 1987 action
as waiving the safeguard which had been issued the year before. Thereafter, in 2001, it
acknowledges that it was informed by letter that the 1987 waiver was void. However, it contends
that not only did the letter not indicate that the 1986 safeguard was now reinstated, but to the
contrary, it believed that the letter suggested that, with the act of voiding the waiver, safeguards then
would be issued in the future. Oak Grove, looking to the wording ofthe safeguard provisions, points
out that while such safeguards may be "provided" to minimize hazards with respect to the
transportation ofmen and machines, this is implemented by the authorized representative's issuance,
in writing, of the "specific safeguard which is required" and which is to include a time for the
operator to provide and maintain such safeguard. Memorandum in Support at 4. It is Oak Grove's
position that the December 3, 2001 voiding letter is not a substitute for those safeguard issuance
requirements found at 30 C.F.R. § 75.1403. The MSHA letter, it contends, is merely a ''blanket
statement of sorts" which voided all waivers issued before 1986. Oak Grove complains that the
letter left it with "no required notification of what [would now be] specifically required of [it]" and
this left Oak Grove unable to discern whether it would be receiving a new safeguard or simply that
the prior safeguard would be reinstated. Id.
In the Secretary's Response, it characterizes MSHA's August 31, 1987 letteras "a waiver
of30 C.F .R. 75 .1403-1 O{b) contingent upon six conditions."2 It then asserts that MSHA's December
3, 2001 letter "provided the Respondent with clear notice that the August 31, 1987 letter was void."
The effect of that voiding, it contends, was to "re-establish[] the original conditions of [the 1986]
Safeguard." Response at 2. MSHA asserts that the December 2001 letter "specifically voided the
pushing of heavy equipment on track haulage roads." The contention is accurate, as the letter states
that the Respondent is "hereby notified that the waiver dated August 31, 1987, permitting the
pushing of heavy equipment on track haulage roads and any other waivers granted prior to January
1, 1996, is void;" Significantly, as observed by the Secretary, the next line in the letter voiding the
August 1987 waiver advises that "[f]uture MSHA inspections of the transportation of men and
materials shall be directed by the provisions of30 C.F.R. Part 75.1403."
The Court agrees with the Secretary that the December 3, 2001 letter from MSHA to the
Respondent negated the August 1987 waiver and thereby restored the effective status of the March
3, 1986 notice to provide safeguard. Although Oak Grove cites to Southern Ohio Coal Co., 7
FMSHRC 509, 512 (Rev. Comm. April 1985) ("SOCCO r') for the proposition that a safeguard
notice must identify with specificity the nature of the hazard being addressed and the conduct to
remedy it, this requirement is applicable at the time the safeguard is first issued. Oak Grove would
prefer to treat this case as if no prior safeguard had been issued, but that is not the case. fu short, the
December 3, 2001 letter from MSHA was not issued as if there was a blank slate on the issue, as that
2

The Secretary asserts that the August 31, 1987 letter "never specifically stated that
Safeguard No. 2604892 was waived." Response at 2. This is not a credible contention as the
single page letter is titled "WA IVER", advises in it that "[a] Waiver is issued to the operator,"
and then provides that the conditions upon which the "waiver" is contingent, identifying six
procedural steps to be followed.
32 FMSHRC Page 1083

is not the historical reality. 3
Oak Grove's position that MSHA did not provide "proper notice that the safeguard woul1
again be considered enforceable'' is rejected. Id. at 6 (emphasis added). Although it contends tha
the December 2001 letter from MSHA indicated only "afature intention to enforce Section 75 .1403
with no mention of the past Safeguard" and, applying that perspective, it asserts that the Safeguarc
in issue had not been "properly reinstated," that is not a fair reading of the December 3, 2001 lette
from MSHA. Id. (emphasis in original). Oak Grove cites no principle of law to support its clain
that, because it issued a waiver, MSHA must begin the safeguard notice process ab initio. Even thf
waiver itself listed six contingencies for it to apply and there was no indication in that letter tha1
MSHA could not entirely void the contingent-laden waiver. It is noted that the context in which th<:
waiver was issued was not contractual and therefore MSHA did not take on any obligations whicli
would restrict its ability to reactivate the 1986 Safeguard notice. 4 Nor does the affidavit of Mr.
Thompson, offered by Oak Grove to support the idea that the Notice of Safeguard was not in effect
after it received the December 3, 2001 letter from MSHA, provide a recognizable defense, as the
determination made here involves the legal determination of the terms of the waiver and the
December 2001 notification to Oak Grove that the waiver was now void. For that reason, Mr.
Thompson's personal interpretation of the MSHA December 2001 letter does not establish the
letter's legal effect.
Accordingly, the Court finds that the December 3, 2001 letter revived the March 3, 1986
Safeguard and there was no obligation for MSHA to take the strictly procedural steps anew in order
to return the notice of safeguard to its full effect.

II. Oak Grove's Alternative Motion for Partial Summary Decision with Respect .to Significant
and Substantial Findings.

As noted, Oak Grove's alternative contention is that, even if the Court finds that the
safeguardis in effect, the Citation in issue in this case cannot include a "significant and substantial"
· finding because that designation is only available for violations of mandatory health and safety
standards and a safeguard is not such a standard. To support this argument,
Oak Grove looks to Section 104(d) of the Mine Act, which provides that if a violation of a
mandatory health or safety standard is found, other findings may accompany that determination. One
of those possible findings is that the nature of the violation is such that it "could significantly and

3

0ak Grove makes similar arguments on that theme, such as contending that an inspector
must first determine that a hazard exists before a notice to provide safeguard may be issued.
These fail for the same reason; Oak Grove's contentions cannot be grounded on amnesia.
4

Most frequently, as distinct from the situation involving Oak Grove, the subject of
voiding a waiver arises in plea bargain contexts where there is, in effect, a contract between the
parties.
32 FMSHRC Page 1084

substantially contribute to the cause and effect of a ... mine safety and health hazard," which is
known by the shorthand expression as a "significant and substantial" finding or, even briefer, a "S
& S" finding.
As only "mandatory health and safety standard[ s]" can potentially include the "significant
aild substantial" finding, Oak Grove looks to the Mine Act's definitions section for the meaning of
such standards. There, at Section 3(1)5, the Mine Act provides that this means ''the interim
mandatory health or safety standards established by titles II and ID of this Act, and the standards
promulgated pursuant to title I of this Act[.]" In short, an "S & S" finding can only be included if
the standard is established by titles II or ID of the Mine Act or promulgated pursuant to Title I of the
Mine Act.
Oak Grove notes that cases, such as Cyprus Emerald Resources Corp. v. FMSHRC, 195 F.3d
42 (D.C. Cir. 1999) ("Cyprus Emerald'') support this view. The Court of Appeals held there that a
"significant and substantial" finding was not available for two cited regulations because they were
not mandatory standards promulgated urtder section 101 of the Mine Act. 6 Instead the regulations
in issue there were promulgated under section 508 of the Mine Act. Mandatory safety and health
standards are to be promulgated under section 101 ofthe Act. The Court concluded that no Chevron
analysis 7 was needed, asthe plain wording ofthe Act allows the "significant and substantial" finding
only for violations of mandatory health or safety standards. Cyprus at *45.

For its part, the Secretary too cites to Cyprus Emerald,· agreeing that only a mandatory health
or safety standard may have the additional designation of "S & S." Thus, the Secretary turns to
Section 3(1) of the Mine Act as well. The Secretary then observes that the interim mandatory safety
standards under Title ID of the Mine Act provide, without any qualifier; that the provisfons of
sections 302 through 318 of Title III shall be interim mandatory safety standards applicable to all
underground coal mines and shall be enforced in the same manner and to the same extent as any
mandatory safety standard. The Secretary submits that this language is inescapable and
consequently that Section 3 l 4(b) is to be enforced as the mandatory standard that it is. Response at

4.
The essential problem with Cyprus Emerald is that its reach is limited to standards that are

5

To avoid confusion, it is noted that the designation after 3 is a lower case "L."

6The regulations promulgated under section 508 involved 30 C.F.R. § 50.10, a
requirement to notifyMSHA of a refuse pile collapse and 30 C.F.R. § 50.1 l(b), for failing to
investigate that collapse.
7

"Chevron" refers to the Supreme Court's decision in Chevron USA, Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), which is the seminal decision on the
subject of deference to agencies' interpretations of the statutes and regulations they administer.
32 FMSHRC Page 1085

not mandatory health or safety standards. 8 If the matter involves a mandatory health or safe~
standard, as it does in this Oak Grove case, then Cyprus Emerald counts for naught. 30 C.F.R. ,
50.11 (b), dealing as it does with accident investigations, is not a mandatory health or safety standard
Rather, it is a standard dealing with a mine operator's duties in the wake of an accident.
While the Commission concluded that non-mandatory health or safety standards could include a
'significant and substantial" designation on the theory that the Mine Act was ambiguous on tha
point, the D. C. Circuit in no way suggested that such a designation was improper where a mandatol]
health or safety standard is involved. 9
The Secretary also notes that the l l1h Circuit, in addressing the language found in Section
20l(a) of the Mine Act, which language is nearly identical to that in Section 301(a), concluded tha1
Section 202(f) is a mandatory health standard. National Mining Ass 'n v. Secy ofLabor, 153 F.3d
1264 (11th Cir. 1998). Although the focus ofthat case was the next step envisioned by Congress, that
such mandatory standards could be superseded, but only by improved mandatory standards, it
necessarily agreed that, until such improvements came about, the existing interim standards were
mandatory. 10 This meant that, applying the plain language of Title II, which has the heading
"Interim Mandatory Health Standards," the 11th Circuit had to have recognized the word "Coverage"
for such mandatory health standards and read exactly what Congress directed: "[t]he provisions of
sections 202 through 206 of [Title JI] and the applicable provisions of section 318 of title III shall
be interim mandatory health standards applicable to all underground coal mines until superceded

8

As an aside, the Court notes that sometimes there is much made of whether an
enforcement tool is denominated as a 'regulation' or a 'standard.' However, it is noteworthy that
the Court of Appeals in Cyprus Emerald used those descriptions interchangeably. As one
example, among others in that decision, the D.C. Circuit spoke of"conditions that did not violate
the regulation under which the mine operator was cited. Because that regulation was a
mandatory standard." *44 at n. 3. At least here though it does not matter as this case deals strictly
with mandatory standards.
9

The Court is aware of the holding in Big Ridge, 30 FMSHRC 1172, (AU, Nov. 24,
2008) in which another A1J reached a different conclusion than this Court does today. The
reasons for this Court's conclusions have been set forth in this Order. While the judge in Big
Ridge expressed that allowing a S & S finding for a safeguard would elevate "form over
substance," the form and the substance was created and expressed by Congress when it enacted
Section 30l(a).
1

°The fact that the 11th Circuit determined that MSHA came up short in its attempt to
supplant the existing mandatory standards with improved standards meant simply that the
existing interim standards remained what they were: mandatory. In fact, the court specifically
stated that "[m ]andatory health and safety standard is defined, in §802 (I) as the 'interim
mandatory health or safety standards.'" *1267. And, to make it clear, that court added that the
such interim standards remain what they are, mandatory, and they continue as such until they are
superceded effectively. *1268.
32 FMSHRC Page I 086

[by improved mandatory health standards]." Title ill employs the same approach, the only difference
being that the subject addressed by Congress there is "interim mandatory safety standards for
underground coal mines. Thus, in the "Coverage" under Title ill, Congress mirrored its commands
for Title II, by providing that "[t]he provisions of sections 302 through 318 of [Title ill] shall be
interim mandatory safety standards applicable to all underground coal mines until superceded [by
improved mandatory safety standards]."
As applied here, there is no genuine dispute but that the measure for deciding whether a
"significant and substantial" finding may attach to safeguard violations is dependent on whether the
standard was established by titles II orill of the Mine Act or as a standard promulgated pursuant to
title I of that Act.
Oak Grove sums up its position that the authority for the Secretary of Labor to issue
safeguards is derived from Section 314(b) of the Mine Act and that the Secretary implemented that
statutoryprovisionbypromulgatingtheregulationsfoundat30C.F.R. § 75.1403. Id. at9. It asserts
that the "requirements set out in the safeguard, not the Order or the criteria· or Section 314(b) or
Section 75.1403, establish the conduct required of the operator." Id. at 10. On those bases it
contends that, as a safeguard is neither an "interim standard" established by Titles II or ill of the
Mine Act nor is it promulgated under Title I pursuant to notice and comment rulemaking, it does
not fit within the definition of a mandatory standard. Id. at 11. 11

11

0ak Grove implies that, as safeguards are issued on a mine-by--mine basis, and as the
"typical[]" method for promulgating mandatory health standards is through "notice and comment
rulemaking," this distinction somehow bears upon the authority to include "significant and
substantial" findings. But this observation overlooks that a purpose of making such a finding is
to record whether the nature of the violation is such that it "could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or health hazard." Lest the legal
analysis completely obscure the facts, it should be remembered that there was a fatality here and,
according to the allegations; it was exactly the conduct proscribed in the safeguard notice that
caused the motorman to be crushed between the haulage car and the locomotive. Further, had the
safeguard's proscription been heeded, namely had the haulage car been pulled, instead of pushed,
the fatality would not have occurred. While the Court does not suggest that this controls the
outcome, it is noted that the safeguard is very different from the circumstances the Court of
Appeals dealt with in Cyprus Emerald because the regulations there dealt with notifying MSHA
after an accident and failing to investigate such accident. Violation of those duties could not
conceivably significantly and substantially contribute to the cause and effect of a mine safety or
health hazard. Another distinction asserted by Oak Grove is that there must be a violation before
one can challenge a safeguard and that this is different from the ability to challenge mandatory
safety and health standards promulgated under Section 101 of the Mine Act. The short answer to
this is that Congress created the authority to deal with this specific topic in order to minimize
hazards it recognized as inherent with the transportation of men and materials. Therefore, the
challenge, if one were to be made, should have been when the statutory provision was enacted.
32 FMSHRC Page 1087

Oak Grove further maintains that, contrru:y to the determination of Judge Feldman in. Wolf
Run Mining Co., 30 FMSHRC 1198, 2008 WL 5479246, (December 18, 2008), safeguards are not
interim mandatory standards established under Title Ill of the Mine Act. To support this view, Oak
Grove points·to the fact that safeguard notices are issued on a mine-by-mine basis by the issuing
inspector and it contends that the "substantive benchmark for the safeguard is the individual
safeguard notice itself." Id. at 14. It rejects the position that one can rely on section 314(b) of the
Mine Act as the source of the safeguard because that statutory provision does not itself spell out the
requirements that can be violated. 12

In the Court's view, the arguments made by Oak Grove in this regard note, from its
perspective, alleged problems with safeguard notices but their argument does not show that
safeguards were not established as interim mandatory standards under Title ill of the Mine Act.
Thus, to remark that safeguards lack a particular code section to examine, and to note that the
safeguard notice itselfprovides the substantive benchmark, is really a disagreement over the method
Congress employed to address enforcement for the safe transportation of men and materials, but not
a challenge to whether safeguards are interim mandatory standards under Title III. Despite the
subject's obvious concern to Congress, as expressed through Section 314, Oak Grove's interpretation
would deny MSHA from expressing that a given violation is "significant and substantial" even when,
as here, the facts, at least as alleged here, fairly shout that it was. 13

Oak Grove does attempt in a fashion to address the language that is troublesome to its
argument, namely that Section 301(a) of the Mine Act provides that "the provisions of Sections 302
through 318 shall be interim mandatory safety standards applicable to all underground coal mines
... and shall be enforced in the same manner and to the same extent as any mandatory standard
promulgated under section 101 of this Act." Id. at 15. (ellipsis in quoted language). To avoid this
plain expression, Oak Grove simply puts that language aside and contends that safeguards only
allege a viol~tion of the underlying language in that safeguard and therefore never allege a violation
of Section 301 itself.
While Oak Grove acknowledges that Judge Feldman correctly observed that since Section
3 l 4(b) is included within Title III and therefore that safeguards issued pursuant to that Section must
be classified as interim mandatory standards, it describes this observation as "an unnecessru:y detour"
which can be avoided if one examines only the underlying safeguard itself. Id. at 16.

12

In this Court's view at least, in its next breath, Oak Grove's own memorandum provides
the answer to this issue, because as it notes, Congress gave the agency "a general grant of
authority" to issue safeguards to minimize hazards pertaining to the transportation of men and
materials. Oak Grove Memorandum at 14.
13

While Oak Grove points to the fact that 30 C.F.R. § 75.1403 is "a verbatim replication
of Section 3 l 4(b)" of the Mine Act and sees that as evidence of the problem with safeguards, the
Court sees it as evidence that, in fact, safeguards literally allege violations of Section 314(b).
32 FMSHRC Page 1088

The Court does not view Judge Feldman's route as a "detour" but rather as the main thoroughfare
to answering the issue. 14
Accordingly, for the reasons stated, Oak Grove's Motion for Summary Decision or Partial
Summary Decision is DENIED. The case should now proceed for scheduling of the hearing. The
parties are directed to contact the Court for that purpose.
.

. .

~
·.

.

WtL8. ·'········· . ·
.

William B. Moran
Administrative Law Judge
Distribution:
Justin A. Rubenstein, Esq., Dinsmore& Shoal, LLP,215 Don Knotts Blvd., Suite310,Morgantown,
WV 26501
DavidH. Allen, Jr., Conference & Litigation Representative, U.S. Department ofLabor, MSHA, 135
Gemini Circle, Suite 213, Birmingham, AL 35209
wm

14

Nor, for reasons already articulated, does the Court accept Oak Grove's reliance on the
D.C. Circuit's analysis in Cyprus Emerald to support its argument, as the Part 50 violations there
did not involve either interim mandatory standards established by Titles II and III nor standards
promulgated under Title I. Accordingly, the Court does not agree with Oak Grove's view that
the D.C. Circuit's expression in Cyprus Emerald "rings just as true for safeguards as it does forPart 50 regulations." Oak Grove Memorandum at 19. The reach of Cyprus Emerald is simply
not as broad as Oak Grove would wish.

32 FMSHRC Page 1089

G:O U.S. GOVERNMENT PRINTING OFFICE: 2010-358-021/83804

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32 FMSHRC Page 1090