October 2020
TABLE OF CONTENTS

COMMISSION ORDERS
10-02-20

BEE B&B, LLC and RELIANT
CONTRACTING, LLC and PASCO
SERVICES, LLC

KENT 2018-0276

Page 729

10-02-20

BLACKJEWEL, LLC

KENT 2018-0316

Page 732

10-14-20

BEDROCK QUARRY, LLC

CENT 2019-0270-M

Page 736

10-14-20

ARCELORMITTAL MINORCA
MINE INC.

LAKE 2020-0006-M

Page 738

10-14-20

A-POSITIVE ELECTRIC CO., INC.

PENN 2019-0105

Page 740

10-14-20

AMES CONSTRUCTION, INC.

WEST 2019-0353

Page 743

10-14-20

BARRICK CORTEZ INC.

WEST 2020-0080-M

Page 746

10-14-20

AMERICAN ROCK SALT
COMPANY LLC

YORK 2019-0068-M

Page 748

10-19-20

MID-ILLINOIS QUARRY, LLC

LAKE 2019-0256

Page 750

10-19-20

MILESTONE MATERIALS
DIVISION OF MATHY
CONSTRUCTION

LAKE 2019-0360

Page 753

10-19-20

MOUNTAIN COAL COMPANY,
LLC

WEST 2019-0339

Page 756

i

10-19-20

METTIKI COAL WV, LLC

WEVA 2019-0392

Page 758

10-19-20

MEADOWS STONE & PAVING,
INC.

WEVA 2020-0057-M

Page 761

10-19-20

MARFORK COAL COMPANY, LLC

WEVA 2020-0195

Page 764

10-20-20

AMERICAN SAND CO. LLC

SE 2019-0207

Page 767

10-20-20

WARRIOR MET COAL MINING,
LLC

SE 2020-0143

Page 770

10-20-20

VICTORY ROCK TEXAS, LLC

WEST 2020-0090-M

Page 774

10-20-20

RAW COAL MINING CO., INC.

WEVA 2020-0162

Page 777

10-20-20

MARION COUNTY COAL
COMPANY

WEVA 2020-0178

Page 781

10-23-20

VICTORY ROCK TEXAS, LLC

CENT 2020-0105-M

Page 785

10-23-20

PINTO VALLEY MINING CORP.

WEST 2019-0516

Page 789

10-23-20

ROCKWELL MINING, LLC

WEVA 2019-0479

Page 793

10-23-20

ROCKWELL MINING, LLC

WEVA 2020-0150

Page 796

10-26-20

PROSPECT MINING AND
DEVELOPMENT COMPANY, INC.

SE 2016-0193

Page 800

10-29-20

THEODORE OESAU v. ROGERS
GROUP, INC.

CENT 2019-0276-DM Page 802

ii

ADMINISTRATIVE LAW JUDGE DECISIONS
10-20-20

PEABODY SOUTHEAST MINING,
LLC

SE 2019-0075

Page 805

10-21-20

CONSOL PENNSYLVANIA COAL
CO., LLC

PENN 2019-0100

Page 834

iii

No review was granted or denied during the month of October 2020.

iv

COMMISSION ORDERS

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

October 2, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. KENT 2018-0276
A.C. No. 15-15215-462060

v.
Docket No. KENT 2018-0327
A.C. No. 15-15215-466282

BEE B&B, LLC
and

Docket No. KENT 2018-0334
A.C. No. 15-16855-583

RELIANT CONTRACTING, LLC
and

Docket No. VA 2018-0142
A.C. No. 44-03088-467377

PASCO SERVICES, LLC

BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners
ORDER
BY THE COMMISSION:
A representative of Blackjewel, LLC (“Blackjewel”) has filed motions to reopen four
penalty assessment proceedings and to relieve the operators in those proceedings from Default
Orders issued to Bee B&B, LLC (“Bee B&B”) (KENT 2018-0276 and 2018-0327), Reliant
Contracting, LLC (“Reliant”)(KENT 2018-0334), and Pasco Services, LLC (“Pasco”)(VA 20180142)1 in the above-captioned case.
Between September 18 and October 16, 2018, the Chief Administrative Law Judge issued
Orders to Show Cause in response the operators’ perceived failure to answer the Secretary of
Labor’s Petitions for Assessment of Civil Penalty in these four dockets. By their terms, the
Orders to Show Cause were deemed Default Orders between October 19 and December 4, 2018,
when it appeared that the operators had not filed answers within 15 days.
As a threshold matter, the motions do not make clear the relationship between
Blackjewel, its representative, Mr. Jacobs, and the three operators whose motions are addressed
1

The four motions addressed in this order were filed by the same operator and rely upon
the same rationale and common facts as a basis for re-opening. For the limited purpose of
addressing these motions to reopen, we hereby consolidate these four dockets, which involve
similar procedural issues. 29 C.F.R. §2700.12.

42 FMSHRC Page 729

in this order. If Mr. Jacobs is an owner, partner, officer, or employee of the operators, he is
permitted to represent them pursuant to Commission Procedural Rule 3(b)(3). If not, he may be
permitted to represent the operators with the permission of the Commission, pursuant to
Commission Procedural Rule 3(b)(4).
The Secretary has not opposed reopening, and the context suggests there may be an
ongoing relationship among these parties, Mr. Jacobs, and Blackjewel. But we were given no
facts supporting that relationship when the motions were filed. We therefore grant the motions to
reopen conditionally, and we direct either Mr. Jacobs or the parties themselves to file a motion
explaining the relationship between Mr. Jacobs and the operators named in this order and
seeking permission to have Mr. Jacobs represent the operators in reopening the motions.2
Permission shall be granted retroactively to the dates the original motions were filed,
unless the Secretary objects and he demonstrates that permitting said representation would be
improper.3 If the motion directed by this order is not filed within 30 days, our conditional grant
will lapse and these motions to reopen will be deemed denied with prejudice.4

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

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

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

2

If Mr. Jacobs is an owner, officer, partner, or employee of any or all of the operators, a
simple explanation of that relationship will be sufficient, without a motion for permission to
represent any operators he would be permitted to represent under Commission Procedural Rule
3.
3

There is an additional problem in KENT 2018-0276. Bee B&B paid the penalty in that
docket in full on the same day the motion to reopen it was filed. Any motion made in response to
this order must thus explain why this motion is not moot.
4

Because more than one year has elapsed since the orders in these matters became final,
a new or amended motion that does not address the representation issue will be denied as timely.
See Fed. R. Civ. P. 60(c)(1).

42 FMSHRC Page 730

Distribution (by e-mail):
Joseph G. Jacobs
Representative
Blackjewel, L.L.C.
joe.jacobs@blackjewel.us
Emily Toler Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 731

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

October 2, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2018-0316
A.C. No. 000475063

v.
BLACKJEWEL, LLC

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). 1 On January 16, 2019, the Commission received from
Blackjewel, LLC (“Blackjewel”) a “request to reopen” a penalty assessment proceeding and
relieve it from the Default Order entered against it. Similar motions were filed in the other 13
dockets subject to this order.
Default was entered against the operator in each of these dockets after the Chief
Administrative Law Judge issued an Order to Show Cause in response to Blackjewel’s perceived
failure to answer the Secretary of Labor’s Petition for Assessment of Civil Penalty. By their
terms, each of the Orders to Show Cause was deemed a Default Order when it appeared that the
operator had not filed an answer within 15 days.2
Blackjewel’s motions assert that it had failed to answer the Secretary’s petitions or to
timely respond to the Show Cause Orders because an employee abruptly left the company. The
operator’s representative states that he was working on a global settlement agreement of many
other matters with representatives of the Secretary on March 28 and 29, 2019, when the
Secretary’s personnel informed him that several of the company’s dockets were in default.3 The
1

This operator filed a similar motion, relying upon the same reason as a basis for reopening and stating other common facts, in nine other dockets. For the limited purpose of
addressing these motions to reopen, we hereby consolidate docket numbers KENT 2018-0316
and VA 2018-0109, -0130, -0150, -0147, -0151,-0153,-0154,-0155, and -0162, involving similar
procedural issues. 29 C.F.R. §2700.12.
2

The operator did file an untimely answer to the penalty petition in the lead, captioned
case on November 23, 2018, after the effective date of default imposed by the Chief ALJ’s Show
Cause Order.
3

Each motion to reopen a docket subject to this order recites the same general factual
circumstances.

42 FMSHRC Page 732

representative promptly filed separate motions to reopen each of the cases between April 4 and 8,
2019.
The Secretary has filed with the Commission a response to each of the operator’s
motions and does not oppose the operator’s motion to reopen any of the cases addressed by this
order.
The Judge’s jurisdiction in these matters terminated when the defaults occurred. 29
C.F.R. § 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a
judge’s decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct
review within 40 days of a decision’s issuance, it becomes a final decision of the Commission.
30 U.S.C. § 823(d)(1). Consequently, the Judge’s order in each of these cases has become a final
decision of the Commission.

42 FMSHRC Page 733

The operator filed promptly after the operator became aware of the defaults. The operator
asserts a single, common excuse for all of these defaults.4 Having considered the operator’s
motion and the Secretary’s response not opposing reopening , we find the general excuse
sufficient to establish excusable neglect. In the interest of justice, we therefore reopen these 13
dockets and remand them to the Chief Administrative Law Judge for assignment. However, the
operator should be aware that failure to attend to its responsibilities under the Act or to explain
them more thoroughly in the future may result in denial of subsequent motions.

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

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

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

4

The operator has two additional pending defaults, KENT 2018-0354 and VA 20180019, that vary factually and procedurally from the issues in this case, and are therefore being
addressed in separate Commission orders. The operator’s representative also filed four motions
on behalf of three other operators, each reciting the same basis for re-opening. Those are also
being addressed in separate orders.

42 FMSHRC Page 734

Distribution (by e-mail):
Joseph G. Jacobs
Representative
Blackjewel, L.L.C.
joe.jacobs@blackjewel.us
Emily Toler Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 735

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

October 14, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2019-0270-M
A.C. No. 23-02324-486389

v.
BEDROCK QUARRY, LLC

BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). The Commission has received a motion from the operator
seeking to reopen a penalty assessment which had become a final order of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). The Secretary of Labor states
that he does not oppose the motion.
Having reviewed movant’s unopposed motion to reopen, we 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. Consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

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

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

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

42 FMSHRC Page 736

Distribution (e-mail):
Ryan D. Seelke
Attorney for The Bedrock Company
14146 County Road 4080
Rolla, MO 65401
rseelke@gmail.com
Emily Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 737

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

October 14, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2020-0006-M
A.C. No. 21-02449-494501

v.
ARCELORMITTAL MINORCA MINE
INC.

BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). The Commission has received a motion from the operator
seeking to reopen a penalty assessment which had become a final order of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). The Secretary of Labor states
that he does not oppose the motion.
Having reviewed movant’s unopposed motion to reopen, we 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. Consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

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

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

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

42 FMSHRC Page 738

Distribution (e-mail):
Adele L. Abrams, Esq., CMSP
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
safetylawyer@gmail.com
Emily Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 739

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

October 14, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2019-0105
A.C. No. 36-07416-491552-MFH

v.
A-POSITIVE ELECTRIC CO., INC.

BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On September 30, 2019, the Commission received from APositive Electric Co., Inc. (“A-Positive”) a motion seeking to reopen a penalty assessment
proceeding and relieve it from the Default Order entered against it.
On August 28, 2019, the then-Acting Chief Administrative Law Judge issued an Order to
Show Cause in response to A-Positive’s perceived failure to answer the Secretary of Labor’s
June 27, 2019 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause
was deemed a Default Order on September 18, 2019, when it appeared that the operator had not
filed an answer within 20 days.
A-Positive asserts that it responded to the Order to Show Cause but its response was
returned to it due to an incorrect address. The Secretary does not oppose the request to reopen,
but requests that A-Positive, having contested the penalty at issue, take its further obligations
seriously.
The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. §
2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s
decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct
review within 40 days of a decision’s issuance, it becomes a final decision of the Commission.
30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the
Commission.
In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party
from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or
other reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall

42 FMSHRC Page 740

be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy and
that, if the defaulting party can make a showing of good cause for a failure to timely respond, the
case may be reopened and appropriate proceedings on the merits will be permitted. See Coal
Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed A-Positive’s request and the Secretary’s response, we find that APositive’s request to reopen so soon after the due date to respond to the Order to Show Cause
merits reopening of the case. In the interest of justice, we hereby reopen the proceeding and
vacate the Default Order. Accordingly, this case is remanded to the Chief Administrative Law
Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules,
29 C.F.R. Part 2700.

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

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

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

42 FMSHRC Page 741

Distribution (e-mail):
Thomas P. Schilinski
A-Positive Electric Co., Inc.
1953 Smith Township State Road
PO Box 466
Slovan, PA 15078
Emily Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 742

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

October 14, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2019-0353
A.C. No. 04-04674-491494

v.
AMES CONSTRUCTION, INC.

BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). On November 4, 2019, the Commission received from Ames
Construction, Inc. (“Ames”) a motion seeking to reopen a penalty assessment proceeding and
relieve it from the Default Order entered against it.
On October 8, 2019, the Chief Administrative Law Judge issued an Order to Show Cause
in response to Ames’ perceived failure to answer the Secretary of Labor’s July 15, 2019 Petition
for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default
Order on October 29, 2019, when it appeared that the operator had not filed an answer within 20
days.
Ames asserts that it never received the Order to Show Cause. The Secretary does not
oppose the request to reopen, but requests that Ames, having contested the penalty at issue, take
its further obligations seriously.
The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. §
2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s
decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct
review within 40 days of a decision’s issuance, it becomes a final decision of the Commission.
30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the
Commission.
In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party
from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or
other reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall
be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy and

42 FMSHRC Page 743

that, if the defaulting party can make a showing of good cause for a failure to timely respond, the
case may be reopened and appropriate proceedings on the merits will be permitted. See Coal
Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Ames’ request and the Secretary’s response, we find that Ames’ request
to reopen so soon after the due date to respond to the Order to Show Cause merits reopening of
the case. In the interest of justice, we hereby reopen the proceeding and vacate the Default Order.
Accordingly, this case is remanded to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700.

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

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

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

42 FMSHRC Page 744

Distribution (e-mail):
Jeff Klante
California Area Safety Manager
391 N. Main Street, Suite 302
Corona, CA 92880
jeffklante@amesco.com
Emily Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 745

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

October 14, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2020-0080-M
A.C. No. 26-00827-498902

v.
BARRICK CORTEZ INC.

BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). The Commission has received a motion from the operator
seeking to reopen a penalty assessment which had become a final order of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). The Secretary of Labor states
that he does not oppose the motion.
Having reviewed movant’s unopposed motion to reopen, we 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. Consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

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

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

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

42 FMSHRC Page 746

Distribution (e-mail):
William K. Doran
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
1909 K Street, N.W., Suite 1000
Washington, DC 20006
William.Doran@ogletreedeakins.com
Emily Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 747

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

October 14, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK 2019-0068-M
A.C. No. 30-03255-484824

v.
AMERICAN ROCK SALT COMPANY
LLC

BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2018) (“Mine Act”). The Commission has received a motion from the operator
seeking to reopen a penalty assessment which had become a final order of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). The Secretary of Labor states
that he does not oppose the motion.
Having reviewed movant’s unopposed motion to reopen, we 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. Consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

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

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

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

42 FMSHRC Page 748

Distribution (e-mail):
Thomas A. DeSimon
Harris Beach PLLC
99 Garnsey Road
Pittsford, NY 14534
tdesimon@harrisbeach.com
Emily Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 749

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

October 19, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2019-0256
A.C. No. 11-00098-482588

v.
MID-ILLINOIS QUARRY, LLC

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On May 21, 2019, the Commission received from Mid-Illinois
Quarry (“Mid-Illinois”) a motion seeking to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on February 8, 2019, and
became a final order of the Commission on March 11, 2019. Mid-Illinois asserts that the notice
of contest was timely sent on March 3, 2019. (Although the operator has not provided proof of
mailing, records show that MSHA processed payment for the uncontested citations in the same
assessment a few days later on March 8, 2019.) However, the operator received a delinquency
notification on May 14, 2019, indicating that MSHA had not received the notice of contest. After

42 FMSHRC Page 750

contacting the phone number provided on the delinquency letter, Mid-Illinois filed a motion to
reopen on May 21, 2019. Mid-Illinois posits that MSHA did not receive the initial notice of
contest due to postal service delays, noting that the delinquency letter (dated April 25) had taken
over two weeks to arrive. The Secretary does not oppose the request to reopen, but urges the
operator to take steps to ensure that future penalty contests are timely filed.
Having reviewed Mid-Illinois’ motion and the Secretary’s response, we find that the
operator has sufficiently explained its failure to timely contest the citations at issue as the result
of inadvertence, mistake, and excusable neglect. Mid-Illinois apparently attempted to timely file
the notice of contest, and filed a motion to reopen within a week of learning that the notice of
contest had not been received. We note that this is a pro se operator with no history of defaults or
motions to reopen in the past 24 months, and that the Secretary does not oppose reopening or
dispute the explanation offered by the operator.
In the interest of justice, we hereby reopen this matter and remand it to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

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

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

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

42 FMSHRC Page 751

Distribution:
Charles Heuerman
Member Manager
Mid-Illinois Quarry LLC
chgravel@yahoo.com
Emily Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 752

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

October 19, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2019-0360
A.C. No. 47-03449-497534

v.
MILESTONE MATERIALS DIVISION
OF MATHY CONSTRUCTION

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On April 16, 2020, the Commission received from Milestone
Materials Division of Mathy Construction (“Milestone”) a motion seeking to reopen a penalty
assessment proceeding and relieve it from the Default Order entered against it.
On December 9, 2019, the Chief Administrative Law Judge issued an Order to Show
Cause in response to Milestone’s perceived failure to answer the Secretary of Labor’s October 8,
2019, Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was
deemed a Default Order on December 30, 2019, when it appeared that the operator had not filed
an answer within 30 days.
Milestone filed an answer one day after the Order became final. Milestone asserts that the
answer was inadvertently filed late because counsel was out of the office for the two weeks
following the issuance of the Show Cause Order. Counsel became aware of the Order upon his
return to the office on December 31, and promptly filed an answer.1 The Secretary does not
oppose the request to reopen, but urges the operator to take all steps necessary to ensure that
future penalty assessments the operator wishes to contest are contested in a timely manner, and
that such contests are properly filed.

1

Milestone alternatively asserts that the penalty contest was timely filed, noting that the
Order to Show Cause was sent by certified mail and that “[w]hen a party serves a pleading by a
method of delivery resulting in other than same-day service, the due date for party action in
response is extended 5 additional calendar days.” 29 C.F.R. § 2700.8(b). However, as indicated
by the plain language, this extension applies only to responses to party filings, not responses to
orders issued by Commission Judges.

42 FMSHRC Page 753

The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. §
2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s
decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct
review within 40 days of a decision’s issuance, it becomes a final decision of the Commission.
30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the
Commission.
In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party
from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or
other reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall
be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy and
that, if the defaulting party can make a showing of good cause for a failure to timely respond, the
case may be reopened and appropriate proceedings on the merits will be permitted. See Coal
Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Milestone’s request and the Secretary’s response, we find the operator’s
answer was untimely due to an internal delay in processing the Order to Show Cause, i.e., an
administrative mistake. To prevent repetition of such a mistake, however, procedures should be
put in place to ensure that future orders are timely received and processed even when counsel of
record is unavailable.
In the interest of justice, we hereby reopen the proceeding and vacate the Default Order.
Accordingly, this case is remanded to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700.

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

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

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

42 FMSHRC Page 754

Distribution (e-mail):
Josh Schultz, Esq.
Law Office of Adele L. Abrams, P.C.
jschultz@aabramslaw.com
Emily Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 755

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

October 19, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2019-0339
A.C. No. 05-03672-486546

v.
MOUNTAIN COAL COMPANY, LLC

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On June 3, 2019, the Commission received from Mountain
Coal Company (“Mountain Coal”) a motion to reopen the above-captioned case. Mountain Coal
thereafter requested to withdraw its motion.
We hereby grant Mountain Coal Company’s motion to withdraw in Docket No. WEST
2019-0339. Accordingly, this case is dismissed.

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

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

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

42 FMSHRC Page 756

Distribution (e-mail):
Christopher G. Peterson
Fisher & Phillips LLP
cpeterson@fisherphillips.com
Emily Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 757

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

October 19, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2019-0392
A.C. No. 46-09028-481238

v.
METTIKI COAL WV, LLC

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On April 12, 2019, the Commission received from Mettiki Coal
WV, LLC (“Mettiki”) a motion seeking to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on January 15, 2019, and
became a final order of the Commission on February 14, 2019. Mettiki asserts that the operator’s
safety director, who had only recently taken on the position, sent the notice of contest to
Mettiki’s parent company on or about January 17, 2019. He assumed that the notice of contest

42 FMSHRC Page 758

would be forwarded to MSHA, and was unaware that the parent company required authorization
to act on Mettiki’s behalf. The safety director learned that the notice of contest had not been
properly filed upon receiving a delinquency notice, on or about April 8, 2019. Mettiki asserts that
steps have been taken to ensure that such an error will not recur. The Secretary does not oppose
the request to reopen, but urges the operator to take steps to ensure that future penalty contests
are timely filed.
Having reviewed Mettiki’s request and the Secretary’s response, we find that the mistake
in this instance was the result of a new safety director’s unfamiliarity with internal protocols, and
is unlikely to be repeated. In the interest of justice, we hereby reopen this matter and remand it to
the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

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

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

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

42 FMSHRC Page 759

Distribution:
Tyler H. Fields, Esq.
Corporate Counsel
Mettiki Coal WV, LLC
Tyler.fields@arlp.com
Emily Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 760

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

October 19, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2020-0057-M
A.C. No. 46-04694-486291

v.
MEADOWS STONE & PAVING, INC.

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On October 18, 2019, the Commission received from Meadows
Stone & Paving, Inc. (“Meadows Stone”) a motion seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on April 10, 2019, and became a
final order of the Commission on May 10, 2019. Meadows Stone asserts that the notice of
contest was timely mailed on April 24, 2019, but was not received by MSHA’s Civil Penalty and
Compliance Office in Arlington, Virginia. A check for payment of the uncontested penalties was
mailed at the same time to MSHA’s address for payment processing in St. Louis, Missouri. The

42 FMSHRC Page 761

Secretary’s records indicate that the notice of contest was improperly mailed with the check to
the St. Louis address, rather than the Civil Penalty and Compliance Office.1 The Secretary does
not oppose the request to reopen, but urges the operator to take steps to ensure that future penalty
contests are timely filed, and are sent to MSHA’s Civil Penalty Compliance Office at the address
stated in the proposed penalty assessment.
Having reviewed Meadows Stone’s motion and the Secretary’s response, we find that the
delay in this instance arose from a mistake in mailing the notice of contest to the wrong address.
In the interest of justice, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. §
2700.28.

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

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

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

1

Meadows Stone counters that MSHA must have misplaced the penalty contest, asserting
that it could not have been improperly mailed to the St. Louis address because the operator did
not have that address until September. However, the operator successfully mailed the check to
the St. Louis address in April, at the same time the notice of contest was mailed.

42 FMSHRC Page 762

Distribution:
Bernard R. Mauser
brmauser@justice.com
Emily Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 763

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

October 19, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2020-0195
A.C. No. 46-09091-503553

v.

Docket No. WEVA 2020-0205
A.C. No. 46-09212-503556

MARFORK COAL COMPANY, LLC
Docket No. WEVA 2020-0206
A.C. No. 46-09550-503558
BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On January 9 and 10, 2020, the Commission received from
Marfork Coal Company (“Marfork”) motions seeking to reopen penalty assessments that had
become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. §
815(a).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 orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
1

For the limited purpose of addressing these motions to reopen, we hereby consolidate
docket numbers WEVA 2020-0195, WEVA 2020-0205 and WEVA 2020-0206 involving similar
procedural issues. 29 C.F.R. § 2700.12.

42 FMSHRC Page 764

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessments were delivered on November 13, 2019, and
became final orders of the Commission on December 13, 2019. Marfork asserts that the
employee responsible for processing the notices of contest missed the mailing deadline because
she was out of the office in early December due to an unforeseen medical issue. Upon her return
to work, she realized the notices had not been timely filed and contacted counsel. Motions to
reopen the captioned dockets were then filed within 30 days. The Secretary does not oppose the
request to reopen, but urges the operator to take steps to ensure that future penalty contests are
timely filed.
Having reviewed Marfork’s request and the Secretary’s response, we find that the delay
in this instance was an excusable mistake arising from unforeseen circumstances. To prevent
such a mistake from recurring, however, we urge the operator to enact procedures that will
ensure penalty contests are timely processed even when the normally responsible individual is
unavailable.
In the interest of justice, we hereby reopen these matters and remand them to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

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

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

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

42 FMSHRC Page 765

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

42 FMSHRC Page 766

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

October 20, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2019-0207
A.C. No. 40-00798-494965

v.
AMERICAN SAND CO. LLC

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On December 20, 2019, the Commission received from
American Sand Co. LLC (“American Sand”) a motion seeking to reopen a penalty assessment
proceeding and relieve it from the Default Order entered against it.
On October 24, 2019, the Chief Administrative Law Judge issued an Order to Show
Cause in response to American Sand’s perceived failure to answer the Secretary of Labor’s
August 23, 2019, Petition for Assessment of Civil Penalty. By its terms, the Order to Show
Cause was deemed a Default Order on December 16, 2019, when it appeared that the operator
had not filed an answer within 20 days.
American Sand asserts that it did not receive the Order to Show Cause because it was
sent to the wrong address. The Secretary does not oppose the request to reopen. His response
recites two addresses which might have been proper places of service for the operator’s
representative, but neither of those is the incorrect address shown on the Order to Show Cause as
the service address for the order.1 There is no proof of delivery in the record.

1

The incorrect address appears to be the result of a typographical error.

42 FMSHRC Page 767

Having reviewed American Sand’s request, the Secretary’s response, and the record in
this case, we find that the Order to Show Cause did not result in a final order of default because
it was never served on the operator. Thus, the operator has not been properly found to be in
default. Accordingly, the operator’s motion is denied as moot. This case remains open, and is
remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine
Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

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

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

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

42 FMSHRC Page 768

Distribution (by e-mail):
Steven Chambers
Safety & Compliance Coordinator
American Sand Company LLC

steven@claibornehauling.com
Emily Toler Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 769

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

October 20, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2020-0143
A.C. No. 01-01247-503726

v.
WARRIOR MET COAL MINING, LLC

Docket No. SE 220-0144
A.C. No. 01-01401-503727

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On February 28, 2020, the Commission received from Warrior
Met Coal Mining, LLC (“WMCM”) two motions seeking to reopen penalty assessments that had
become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. §
815(a).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 orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).

1

The two motions addressed in this order rely upon the same rationale and common facts
as a basis for re-opening. For the limited purpose of addressing these motions to reopen, we
hereby consolidate these dockets, which involve similar procedural issues. 29 C.F.R. §2700.12.

42 FMSHRC Page 770

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment in SE 2020-0144 was delivered on November
16, 2019, and became a final order of the Commission on December 18, 2019. MSHA’s records
show that the proposed assessment in SE 2020-0143 was delivered on November 18, 2019, and
became a final order on December 18, 2019.
The operator’s motions state that it mistakenly mailed the notices of contest in both cases
to MSHA’s St. Louis office, along with its payment of uncontested penalties, instead of to the
Civil Penalty Compliance Office.
MSHA sent the operator delinquency notices for both assessments on January 31, 2020.
The operator filed its motions to reopen on February 28. The Secretary does not oppose the
requests to reopen, but urges the operator to take steps to ensure that future penalty contests are
timely filed with the proper office.
Having reviewed WMCM’s requests and the Secretary’s responses, we find that the
operator has explained its failure to timely contest the citations at issue as the result of
inadvertence, mistake, and excusable neglect. The motions were filed promptly after MSHA
notified the operator of its delinquencies. However, we agree with the Secretary that the operator
should show greater care in filing contests to citations and orders. In addition to the two motions
addressed in this order, the operator has filed seven other motions to reopen final orders in the
past 24 months. The Secretary suggests that he may oppose future motions. Likewise, the
Commission may deny future motions seeking extraordinary relief from motions that have
become final.

42 FMSHRC Page 771

In the interest of justice, we hereby reopen these matters and remand them to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

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

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

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

42 FMSHRC Page 772

Distribution (by e-mail):
Guy W. Hensley, Esq.
Counsel
Warrior Met Coal, LLC
guy.hensley@warriormetcoal.com
Emily Toler Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 773

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

October 20, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2020-0090-M
A.C. No. 41-05101-486904

v.
VICTORY ROCK TEXAS, LLC

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On November 19, 2019, the Commission received from Victory
Rock Texas, LLC, (“Victory Rock”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. §
815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on April 19, 2019, and became a
final order of the Commission on May 19, 2019. Victory Rock’s motion says that the proposed
assessment in this matter was delivered after it believed it had successfully contested the citation.

42 FMSHRC Page 774

It says it mistakenly paid the penalty, believing it was due in another case, after receiving
MSHA’s July 5, 2019, delinquency notice to the operator.
The motion includes completed contest and remittance forms, and states that the
operator’s check for the uncontested penalties was mailed at the same time as its notice of
contest and was deposited by MSHA. However, the operator does not provide proof of delivery
of the notice of contest. The Secretary does not oppose the requests to reopen, but urges the
operator to take steps to ensure that future penalty contests are timely filed.
Having reviewed Victory Rock’s request and the Secretary’s response, we find that the
operator has sufficiently explained its failure to timely contest the citations at issue as the result
of inadvertence, mistake, and excusable neglect. The operator states that it was confused about
the status of its contest, and provides facts that support this contention. This is a pro se operator
with one other pending motion to reopen and no history of other defaults or motions to reopen in
the past 24 months.
In the interest of justice, we hereby reopen this matter and remand it to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700.

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

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

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

42 FMSHRC Page 775

Distribution (by e-mail):
Scott Cusick
Director
Victory Rock Texas, LLC
scusick@victoryrockusa.com
Emily Toler Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 776

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

October 20, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2020-0162
A.C. No. 46-0957-503864

v.
Docket No. WEVA 2020-0163
A.C. No. 46-06265-503849

RAW COAL MINING CO., INC.

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On December 26, 2019, the Commission received from Raw
Coal Mining Co., Inc., (“Raw Coal”) two motions seeking to reopen penalty assessments that
had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).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 orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).

1

The two motions addressed in this order rely upon the same rationale and common facts
as a basis for re-opening. For the limited purpose of addressing these motions to reopen, we
hereby consolidate these dockets, which involve similar procedural issues. 29 C.F.R. §2700.12.

42 FMSHRC Page 777

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on November 18, 2019, and
became a final order of the Commission on December 19, 2019. The motions say that the
contests of the proposed assessments in these matters were both prepared and mailed by regular
mail in the same envelope on November 21, 2019. The representative says in his motion that he
discovered that neither case had been recorded as “contested” during a routine search of
MSHA’s database, and he filed the instant motions to re-open on Dec. 26 – one week after both
of these assessments had become final orders of the Commission.2
The Secretary does not oppose the requests to reopen, but he rightly characterizes the
representative’s office procedures as “inadequate,” and urges the operator to take steps to ensure
that future penalty contests are timely filed.
Having reviewed Raw Coal’s requests and the Secretary’s responses, we find that the
operator has moved promptly for relief. The motion is well-documented and has candidly
explains the failure to timely contest the citations at issue. The representative is appropriately
contrite in admitting his error. In light of the pro-active discovery of the error, the swift action
once the default was noted, the operator’s demonstrated good faith in paying the uncontested
penalties promptly, and the Secretary’s non-opposition, we find that the motion has demonstrated
good cause for reopening. However, the operator should heed the Secretary’s admonition against
the carelessness reflected in this case3 and take seriously its responsibilities under the Act, or
future motions relying on a similar excuse may be denied.

2

In support of his motion, the representative also notes that the operator paid part of the
penalties due in WEVA-2020-0163. MSHA’s records reflect that this payment of $1351 was
received on November 21, within the 30-day contest period.
3

The operator’s representative said he decided not to use certified mail “due to the low
penalties in the two contested cases.” Leaving aside the fact that a client’s legal matters, once
entrusted to a party’s representative, are all important and deserving of professional
management, the penalties in these two dockets totaled more than $7,000.

42 FMSHRC Page 778

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

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

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

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

42 FMSHRC Page 779

Distribution (by e-mail):
James F. Bowman
Representative
Raw Coal Mining Co., Inc.
jimbowman61@hotmail.com
Emily Toler Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 780

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

October 20, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2020-0178
A.C. No. 46-01433-500733

v.
MARION COUNTY COAL COMPANY

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On December 9, 2019, the Commission received from Marion
County Coal Company (“Marion County Coal”) a motion seeking to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).

42 FMSHRC Page 781

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on October 8, 2019, and became
a final order of the Commission on November 8, 2019. Marion County Coal’s motion says that it
mailed an amended notice of contest to MSHA’s payment office in St. Louis, along with the
payment of uncontested penalties, on October 24.1 It contacted MSHA on November 19 and was
told the amended notice of contest had not been accepted because it had been mailed to St.
Louis. The operator immediately mailed the notice of contest to MSHA’s Civil Penalty
Compliance Office. MSHA sent the operator a delinquency notice on December 23, and the
operator filed its motion to reopen on January 2, 2020.
The Secretary does not oppose the request to reopen. The Secretary’s response notes that
the operator’s motion claims to have sent notices of contest to St. Louis routinely for 18 months,
and that the forms were accepted, but he notes that “the proposed assessment clearly provides
instructions to mail any contest forms to the Civil Penalty Compliance Office, in Arlington, VA,
for processing.” He urges the operator to take steps to ensure that future assessments are timely
contested by mailing the forms to the address provided.
Having reviewed Marion County Coal’s request and the Secretary’s response, we find
that the operator has sufficiently explained its failure to timely contest the citations at issue as the
result of mistake, inadvertence, and excusable neglect. We therefore find it unnecessary to
address the operator’s suggestion that submitting the amended contest form to MSHA might be
sufficient to confer jurisdiction upon the Commission.2

1

The operator’s motion says that the initial notice of contest was also mailed to St. Louis,
on October 16, and that MSHA nevertheless accepted the form and noted the contest. The
amended notice added citations and orders to those originally contested in the accepted notice.
2

While the proposed assessment form does clearly instruct operators to send contestrelated documents to Arlington, and payments to St. Louis, the mistake the operator made in this
case is unfortunately common. It is not unreasonable to question whether there might be an
alternate way of administering the contest and payment process that is less likely to repeatedly
result in many filers making this same error.

42 FMSHRC Page 782

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

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

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

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

42 FMSHRC Page 783

Distribution (by e-mail):
Mark E. Heath, Esq.
Spilman Thomas and Battle, PLLC
Attorneys for Rockwell Mining, LLC
mheath@spilmanlaw.com
Emily Toler Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 784

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

October 23, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2020-0105-M
A.C. No. 42-02633-501717

v.
VICTORY ROCK TEXAS, LLC

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On March 23, 2020, the Commission received from Victory
Rock Texas, LLC, (“Victory Rock”) 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).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 orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).

1

The motion is dated February 4, but the Commission’s Docket Office did not receive it
until March 23, 2020. There is no explanation for the discrepancy. We take note of the fact that
the motion was prepared and filed at about the time the pandemic began to emerge as a generally
disruptive force.

42 FMSHRC Page 785

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on October 15, 2019, and
became a final order of the Commission on November 15, 2019. Victory Rock’s motion says that
the proposed assessment in this matter was delivered while it was awaiting word from MSHA
about a requested conference of the citations. Victory Rock claims that it returned its notice of
contest “quickly,” but has provided no proof of mailing or delivery.
MSHA sent the operator a delinquency notice on December 30, 2019. On January 9,
2020, the operator contacted MSHA to question the status of its contest. The operator says it was
told that MSHA had not received a notice of contest, and that MSHA advised it to file a motion
to reopen. The Secretary does not oppose the requests to reopen, but urges the operator to take
steps to ensure that future penalty contests are timely filed.
Having reviewed Victory Rock’s requests and the Secretary’s responses, we find that the
operator has sufficiently explained its failure to timely contest the citations at issue as the result
of inadvertence, mistake, and excusable neglect. This is a pro se operator with no history of
defaults or motions to reopen in the past 24 months. The operator’s motion was not filed with the
Commission until March 23 – more than 30 days after the operator says it learned from MSHA
that no contest had been filed. However, the motion is dated February 4. While the discrepancy
is unexplained, there is no indication of bad faith on the operator’s part, and the Secretary does
not oppose reopening or dispute the facts asserted in the operator’s motion. While we excuse
this pro se operator’s failure to explain why the motion was not filed within 30 days of discovery
of its default in this case, the operator must ensure that future motions to reopen are filed
promptly, or that the failure to do so is adequately explained.

42 FMSHRC Page 786

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

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

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

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

42 FMSHRC Page 787

Distribution (by e-mail):
Scott Cusick
Director
Victory Rock Texas, LLC
scusick@victoryrockusa.com
Emily Toler Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 788

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

October 23, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2019-0516
A.C. No. 02-01049-000490002

v.

Docket No. WEST 2019-0535
A.C. No. 02-01049-000491992

PINTO VALLEY MINING CORP.

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On September 9 and September 13, 2019, the Commission
received from Pinto Valley Mining Corp. (“Pinto Valley”) motions seeking to reopen penalty
assessments that had become final orders of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).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 orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).

1

The two motions addressed in this order rely upon the same rationale and common facts
as a basis for re-opening. For the limited purpose of addressing these motions to reopen, we
hereby consolidate these dockets, which involve similar procedural issues. 29 C.F.R. §2700.12.

42 FMSHRC Page 789

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment in WEST 2019-0516 was delivered on May 13,
2019, and became a final order of the Commission on June 13, 2019. MSHA’s records show that
the proposed assessment in WEST 2019-0535 was delivered on June 4, 2019, and became a final
order on July 5, 2019. In both motions to reopen, Pinto Valley says that it followed a reliable
procedure to contest citations and orders by certified mail, return receipt requested.
Affidavits by the mine’s interim safety superintendent state that the notices of contest
were timely filed in both cases. In WEST 2019-0516, the affidavit states that the operator made a
partial payment of $328, which it sent with the notice of contest on May 14. The affidavit
submitted in WEST 2019-0535 states that the completed notice of contest was mailed on June 4.
The affidavit in this case also states that a partial payment was made, of $9219.2 Both motions
include copies of the proposed assessments and completed contest forms. They do not include
copies of the certified mail receipts, but the affidavits claim that it is common not to receive
these forms for MSHA filings.
MSHA sent the operator delinquency notices, on August 19 for WEST 2019-0535, and
on August 26 for WEST 2019-0516. The operator filed its motions to reopen on September 9 and
September 16. The Secretary does not oppose the requests to reopen, but urges the operator to
take steps to ensure that future penalty contests are timely filed.
Having reviewed Pinto Valley’s requests and the Secretary’s responses, we find that the
operator has sufficiently explained its failure to timely contest the citations at issue as the result
of inadvertence, mistake, and excusable neglect. The motions were filed promptly after MSHA
notified the operator of its delinquencies, and in both cases the operator states that it timely
mailed the notices of contest, but did not receive a receipt for delivery. The agency received
partial payment for both dockets. Both motions are well-supported by affidavits and
documentation.

2

MSHA’s response to each motion acknowledges receipt of the payments submitted by
the operator on July 25, 2019. The assessments in both cases had become final by that date.

42 FMSHRC Page 790

In the interest of justice, we hereby reopen these matters and remand them to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

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

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

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

42 FMSHRC Page 791

Distribution (by e-mail):
Donna Vetrano Pryor, Esq.
Attorney for Pinto Valley Mining Corp.
Husch Blackwell, L.L.P.
donna.pryor@huschblackwell.com
Emily Toler Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 792

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

October 23, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2019-0479
A.C. No. 46-08610-484227

v.
ROCKWELL MINING, LLC

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On December 9, 2019, the Commission received from
Rockwell Mining, LLC, (“Rockwell”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. §
815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on March 4, 2019, and became a
final order of the Commission on April 4, 2019. Rockwell’s motions say that it had contested the
citation at issue in this case, but inadvertently paid the penalty when the proposed assessment
was delivered. It learned of its mistake on April 29 and filed a motion to reopen on May 29,
2019.

42 FMSHRC Page 793

The Secretary does not oppose the requests to reopen, but urges the operator to take steps
to ensure that future assessments are timely contested.
Having reviewed Rockwell’s requests and the Secretary’s responses, we find that the
operator has sufficiently explained its failure to timely contest the citations at issue as the result
of excusable neglect. However, we do note that this is the fifth motion to reopen filed by the
operator in the past 24 months.1 The operator should heed the Secretary’s admonition and take
seriously its responsibilities under the Act and should be aware that future motions relying on a
similar excuse may be denied.
In the interest of justice, we hereby reopen this matter and remand it to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

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

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

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

1

The third and fourth motions to reopen are pending before the Commission. These
motions rely on different facts and a different rationale for reopening, and the operator is
represented by a different law firm in those motions, which are being consolidated and addressed
in another order.

42 FMSHRC Page 794

Distribution (by e-mail):
Mark E. Heath, Esq.
Spilman Thomas and Battle, PLLC
Attorneys for Rockwell Mining, LLC
mheath@spilmanlaw.com
Emily Toler Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 795

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

October 23, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2020-0150
A.C. No. 46-09152-000500943

v.

Docket No. WEVA 2020-0151
A.C. No. 46-09427-000500948

ROCKWELL MINING, LLC

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2012) (“Mine Act”). On December 9, 2019, the Commission received from
Rockwell Mining, LLC, (“Rockwell”) two motions seeking to reopen penalty assessments that
had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).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 orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
1

The two motions addressed in this order rely upon the same rationale and common facts
as a basis for re-opening. For the limited purpose of addressing these motions to reopen, we
hereby consolidate these dockets, which involve similar procedural issues. 29 C.F.R. §2700.12.

42 FMSHRC Page 796

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on October 7, 2019, and became
a final order of the Commission on November 7, 2019. Rockwell’s motions say that the proposed
assessments in this matter were delivered while its safety manager – the person responsible for
processing assessments for action by the corporate safety director – was on vacation. On his
return, the safety manager was “overwhelmed” and had difficulty catching up. He marked the
citations that he believed should be contested and forwarded the contest forms to the safety
director during the first week in November.
While the safety director sent the forms to MSHA on November 7, MSHA did not
receive them until November 13, six days after the proposed assessments had become final
decisions of the Commission. The Secretary does not oppose the requests to reopen, but urges
the operator to take steps to ensure that future penalty contests are timely filed.
Having reviewed Rockwell’s requests and the Secretary’s responses, we find that the
operator has moved promptly for relief and has sufficiently explained its failure to timely contest
the citations at issue as the result of excusable neglect. However, we do note that these are the
third and fourth motions to reopen filed by the operator in the past 24 months.2 The operator
should heed the Secretary’s admonition and take seriously its responsibilities under the Act and
should be aware that future motions relying on a similar excuse may be denied.

2

The operator has another motion to reopen pending before the Commission, but it relies
on different facts and a different rationale for reopening.

42 FMSHRC Page 797

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

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

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

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

42 FMSHRC Page 798

Distribution (by e-mail):
Johnathan R. Ellis, Esq.
Colton C. Parsons, Esq.
Steptoe and Johnson PLLC
Attorneys for Rockwell Mining, LLC
jonathan.ellis@steptoe-johnson.com
colton.parsons@steptoe-johnson.com
Emily Toler Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 799

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

October 26, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2016-0193
A.C. No. 01-03389-405410

v.
PROSPECT MINING AND
DEVELOPMENT COMPANY, INC.

BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2018) (“Mine Act”). On August 6, 2019, the Commission received from Prospect
Mining and Development Company, Inc., (“Prospect”) a motion to reopen the above-captioned
case. Prospect thereafter informed the Commission that it no longer had any desire to reopen this
matter.
Accordingly, this case is dismissed.

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

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

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

42 FMSHRC Page 800

Distribution (e-mail):
JD Morris
Safety Director.
jdmorris@prospectcoal.com
Emily Scott, Esq.
Office of the Solicitor
Scott.Emily.T@dol.gov
Chief Administrative Law Judge Glynn F. Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

42 FMSHRC Page 801

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

October 29, 2020
THEODORE OESAU
v.
Docket No. CENT 2019-0276-DM
ROGERS GROUP, INC.
BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This discrimination proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”). On September 3, 2020, Theodore Oesau, by
counsel, filed a petition for discretionary review challenging a decision by a Commission
Administrative Law Judge issued on August 4, 2020, dismissing the complaint of discrimination
brought by Mr. Oesau. 42 FMSHRC 625 (Aug. 2020) (ALJ).
In his decision, the Judge noted that the Commission would not be monitoring incoming
physical mail or facsimile transmissions and that parties were encouraged to submit all filings
through the agency’s electronic filing system. Id. at 640 n.10. The Judge further noted that if a
party was unable to file through the Commission’s electronic filing system, the party should
email a copy, and the Commission would file the copy. Id. Contrary to the Judge’s instructions,
Oesau’s counsel filed the petition by facsimile transmission only.
The judge’s jurisdiction over this case terminated when he issued his decision on August
4. 29 C.F.R. § 2700.69(b). Relief from a Judge’s decision may be sought by filing a petition for
discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). The Commission’s procedural rules do permit filing by facsimile transmission. 29
C.F.R. § 2700.5(c)(2). Thus, we find good cause for treating Oesau’s petition as timely filed. See
generally McCoy v. Crescent Coal Co., 2 FMSHRC 1202, 1204 (June 1980).
Due to exigencies created by the COVID-19 pandemic, the Commission has not been
monitoring incoming mail and facsimile transmissions and did not act on the petition within the
statutory period for considering requests for discretionary review. 85 Fed. Reg. 50825 (Aug. 18,
2020). The Judge’s decision became a final order of the Commission 40 days after its issuance
by operation of section 113(d)(1) of the Mine Act, 30 U.S.C. § 823(d)(1).
Relief from a final Commission judgment or order is available to a party under Fed. R.
Civ. P. 60(b)(1) in circumstances such as mistake, inadvertence, or excusable neglect. 29 C.F.R.
§ 2700.1(b) (Federal Rules of Civil Procedure apply “so far as practicable” in the absence of
applicable Commission rules); e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782 (May 1991). In
the interest of justice, we reopen this proceeding and consider the merits of the petition. See
North Star Contractors, Inc., 17 FMSHRC 886, 887 (June 1995).

42 FMSHRC Page 802

Section 113(d)(2) of the Mine Act, 30 U.S.C. § 823(d)(2), provides that review of a
decision of an Administrative Law Judge may be granted upon specified grounds and upon the
affirmative vote of two Commissioners. Such review is discretionary. 30 U.S.C. § 823(d)(2)(A).
However, after consideration by the Commissioners, no two Commissioners voted to grant
Oesau’s petition. Accordingly, this order reopening the case and denying relief on the merits now
constitutes the Commission’s final order. The right to obtain review of Commission decisions in
a United States court of appeals is set forth in 30 U.S.C. § 816(a)(1).

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

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

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

42 FMSHRC Page 803

Distribution (e-mail):
Chris W. Burks
WH Law, PLLC
chris@wh.law
Margaret S. Lopez
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Margaret.lopez@ogletree.com
J. Carin Burford
Ogletree, Deakins, Nash, Smoak, & Stewart, P.C.
carin.burford@ogletree.com

42 FMSHRC Page 804

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9900 / FAX: 202-434-9954

October 20, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. SE 2019-0075
A.C. No. 01-02901-481428

v.

Docket No. SE 2019-0146
A.C. No. 01-02901-487211

PEABODY SOUTHEAST MINING, LLC,
Respondent

Shoal Creek Mine

DECISION
Appearances:

Emily Roberts, Esq., and Christopher Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee, for Petitioner;
Arthur Wolfson, Esq., Fisher & Phillips, LLC, Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Bulluck

These cases are before me upon Petitions for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”), on behalf of the Mine Safety and Health Administration
(“MSHA”), against Peabody Southeast Mining, LLC (“Peabody”), pursuant to section 105(d) of
the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). The
Secretary seeks a total civil penalty of $76,061.00 for three violations of his mandatory safety
standards.
A hearing was held in Birmingham, Alabama. The following issues are before me: (1)
whether Peabody violated the standards; (2) whether the violations were attributable to the level
of gravity alleged; (3) whether the violations were attributable to the degree of negligence
alleged; (4) whether the violations were attributable to unwarrantable failures to comply with the
standards; and (5) the appropriate penalties. The parties’ Post-hearing Briefs are of record.
For the reasons set forth below, I AFFIRM one citation and two orders, as issued, and
assess penalties against Respondent.
I. Joint Stipulations
The parties have stipulated as follows:
1. Peabody Southeast Mining, LLC, is an operator, as defined in section 3(d) of the Federal
Mine Safety and Health Act of 1977, as amended, hereinafter, the Mine Act, 30 U.S.C.

42 FMSHRC Page 805

§ 802(d), at the mine at which the citation and orders at issue in this proceeding were
issued.
2. Shoal Creek Mine, Mine ID: 01-02901, is a mine, as defined in section 3(h) of the Mine
Act. 30 U.S.C. § 802(h).
3. Operations of Peabody, at the mine at which the citation and orders were issued, are
subject to the jurisdiction of the Mine Act.
4. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designated Administrative Law Judge, pursuant to sections
105 and 113 of the Mine Act.
5. Shoal Creek Mine is operated by Respondent.
6. Payment of the total proposed penalty in this matter will not affect Peabody’s ability to
continue in business.
7. The individuals whose names appear in Block 22 of the citation and orders were acting in
an official capacity, as authorized representatives of the Secretary of Labor, when the
citation and orders were issued.
8. The citation and orders were issued and served by a duly authorized representative of the
Secretary of Labor upon an agent of Peabody at the date, time, and place stated in the
citation and orders, as required by the Act.
9. Exhibit A, attached to the Secretary’s Petition in Docket Numbers SE 2019-0075 and SE
2019-0146, contains authentic copies of the citation and orders, with all modifications or
abatements, if any.
Tr. 18-20.
II. Factual Background
Peabody operates the Shoal Creek Mine (“mine”), an underground coal mine in Adger,
Jefferson County, Alabama.1 The mine runs two continuous miner sections and two longwall
sections over three shifts a day: owl from 11:00 p.m. to 7:00 a.m.; day from 7:00 a.m. to 3:00
p.m.; and evening from 3:00 p.m. to 11:00 p.m. Tr. 280, 289. Mining at Shoal Creek is a wet
process, the mine is located near a river, which further contributes to the wet conditions, and it is
a gassy mine subject to five-day spot inspections. Tr. 37-38, 150, 176, 192-93.

1

Drummond Company, Incorporated, (“Drummond”) owned and operated Shoal Creek
Mine until December 4, 2018, when Peabody Energy took over ownership, and Peabody
Southeast Mining, LLC, took over operations. Ex. P–16 at 1, 19.

42 FMSHRC Page 806

On December 11, 2018, at 1:05 p.m., as the H-2 longwall section was actively mining, a
sizable tear occurred in the H-2 belt, causing coal to spill and belt strings to wrap around belt
rollers. Tr. 208-09, 213-16. The belt was shut down, the accumulations were cleared from
underneath the belt and moved to the walkway, and the belt was running coal again by 5:15 p.m.
Tr. 217-24. At some time after the belt had torn, an anonymous hazard complaint was called in to
MSHA, reporting “gobbed out” rollers turning in coal in the H-2 belt entry takeup area. Tr. 3738. Consequently, on the morning of December 12, MSHA Birmingham field office supervisor
Thomas Chatham arrived at the mine to conduct an inspection of the H-2 belt, in addition to the
regularly scheduled five-day spot inspection. Tr. 30-31, 37-38. The inspection party included
safety supervisor Matt Selman and UMWA representative Steve Miller and, when it reached the
takeup area of the H-2 belt entry, the belt was running, accumulations were observed around the
takeup, and the belt was shut down and the take up guarding removed. Tr. 48-55, 72, 109; Ex.
P–1. Thereafter, when Chatham observed that the accumulations were in contact with the belt
and rollers, and that belt strings were wrapped around rollers, bearings, and the takeup frame, he
issued an unwarrantable failure citation to Peabody for accumulations of combustible materials.
Tr. 49-56, 72-76. Miners were immediately assigned to clean the area and, ultimately, the
accumulations were removed from the mine by December 17. Tr. 235-238, Ex. P–1.
On February 19, 2019, MSHA Inspector Darryl Allen conducted an E01 inspection at
Shoal Creek. Tr. 277, 284. Before entering the mine, he reviewed the examination books and
identified potential hazards in the West Main No. 4 belt entry, the alternate escapeway for the H2 and H-3 longwall sections. Tr. 286-93, 300-01. The inspection party included Allen’s
supervisor Thomas Chatham, safety supervisors Brett Clements and Matt Selman, and miners’
representative Tim Wise. Tr. 312-13, 459-60. At the beginning of the inspection, Clements drove
the mantrip to the West Main No. 4 entry and dropped off the inspection party at crosscut 84,
then entered the escapeway at crosscut 81 where he had parked. Tr. 460-62. The others, walking
outby crosscut 84, came upon holes, filled with muck and water, between crosscuts 83 and 82
and met Clements around crosscut 83, and Allen issued a withdrawal order to Peabody for failure
to maintain the alternate escapeway in passable condition. Tr. 315-19, 345, 461-63, 480-82; Ex.
P–6. The crew was removed immediately from the affected area, miners were assigned to scoop
the muck and fill the holes with road mix and gravel, and the order was terminated at 12:35 p.m.
that afternoon. Tr. 341-43, 466, 490-91; Ex. P–6.
On March 11, 2019, Inspector Allen returned to Shoal Creek to continue his quarterly
inspection and, upon arrival, reviewed the examination books and identified accumulations in the
North Main No. 1 belt entry. Tr. 511-13, 518-39; Ex. P–11 at 1. The inspection party included
Allen’s supervisor Thomas Chatham, foreman Mike Earl, and miners’ representative Morris
Studdard. Tr. 545; Ex. P–11 at 1. At the start of the inspection, Allen observed a seized roller
near crosscut 10, Earl shut down the belt, Allen observed seven more seized rollers while
continuing inby and issued a citation for the eight seized rollers between crosscuts 10 and 22 ½,
and he issued another citation for two nonfunctional fire hose outlets. Tr. 541-47, 664-65; Ex.
P–14(a), (b). Thereafter, upon observing accumulations in the tail area, Allen issued a
withdrawal order to Peabody for accumulations of combustible materials. Tr. 548-51, 672-73;
Ex. P–10. The crew was withdrawn immediately from the affected area, miners were assigned to
remove the coal fines and coal muck from under the tailpiece, walkway, and full width of the
entry, and the order was terminated the next day. Tr. 587-92; Ex. P–10.

42 FMSHRC Page 807

III. Findings of Fact and Conclusions of Law
1.

Citation No. 9136082

Inspector Thomas Chatham issued 104(d)(1) Citation No. 9136082 on December 12,
2018, alleging an “S&S” violation of section 75.400 that was “reasonably likely” to cause an
injury that could reasonably be expected to result in “lost workdays or restricted duty,” and was
caused by Peabody’s “high” negligence and unwarrantable failure to comply with the standard.2
The “Condition or Practice” is described as follows:
Accumulations of combustible material in the form of loose coal
and coal fines were allowed to accumulate in the H-2 belt entry.
Upon inspection of the H-2 belt, accumulations of loose coal and
coal fines were observed in the belt take up. The coal accumulation
measured up to 30 inches deep in the take up. The accumulations
were in contact with turning rollers and the moving H-2 belt. The
accumulations were also observed in the walkways on the
walkway and off-walkway side of the belt for the length of the take
up. The accumulations measured approximately 120 feet long, 21
feet wide, and up to 30 inches in depth. Also numerous rollers in
the take up had accumulations of belt string around the end of the
roller. The belt string had accumulations of loose coal, coal fines,
and float coal dust in and on the strings. The strings were tightly
wrapped around the bearing and the belt roller frame. It is
reasonably likely that miners would receive injuries from smoke
inhalation that would result in lost work days or restricted duty.
The air in the H-2 belt entry is used to ventilate the active H-2
longwall face. The H-2 belt entry is also the alternate escape way
for the active H-2 long wall. Standard 75.400 was cited 121 times
in two years at mine 0102901 (121 to the operator, 0 to a
contractor). This violation is an unwarrantable failure to comply
with a mandatory standard.
Ex. P–1. The citation was terminated on December 17, after the operator had removed the
accumulations from the mine, and rock dusted the area. Ex. P–1.
A. Fact of Violation
In order to establish a violation of one of his mandatory safety standards, the Secretary
must prove that the violation occurred “by a preponderance of the credible evidence.” Keystone

2

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.”

42 FMSHRC Page 808

Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas
Co., 11 FMSHRC 2148, 2152) (Nov. 1989)).
The Secretary maintains that Peabody violated section 75.400, and that longwall outby
supervisor Joe Bell and fire boss Lee Esch admitted that the cited accumulations created a fire
hazard. Sec’y Br. at 14. Peabody argues that the cited material was spillage, and that it had a
“reasonable time” to clean it up. Resp’t Br. at 6-8.
1. Summary of Testimony
a. Thomas Chatham
Inspector Thomas Chatham testified for the Secretary that early on December 12, 2018,
he was notified of an anonymous hazard complaint that rollers were “gobbed out” and turning in
coal in the H-2 belt entry takeup area at Shoal Creek, that he expanded his spot inspection to
include that area, and that the mine was on a five-day spot inspection cycle for methane. Tr. 3638. Chatham explained that the H-2 belt entry served as an alternate escapeway for the active H2 longwall, that it ventilated the H-2 longwall working face and that, if a fire were to occur,
miners at the face or utilizing the escapeway would be exposed to smoke. Tr. 70-71, 75-76, 100.
He testified that he reviewed three consecutive pre-shift reports after the belt tear had occurred,
and that none noted accumulations or cleanup in the H-2 belt takeup area. Tr. 76, 81-83; Ex. P–5
at 2-5.3 Chatham stated that when he arrived at the takeup area, he smelled burning rubber,
observed accumulations of loose coal and coal fines on the walkway and off-walkway sides of
the H-2 belt, and that no one was working in the area. Tr. 49-55, 71-72, 109. He stated that the
belt was turned off and the takeup guards removed, that he observed under the takeup
accumulations in contact with every takeup roller and the belt, and that belt strings, covered with
loose coal, coal fines and coal dust, were wrapped around a number of rollers, bearings, and the
takeup frame. Tr. 49-55, 73, 85-87. By his measurements, the accumulations approximated 120
feet long, 21 feet wide, and 12 to 30 inches deep. Tr. 71-72. He explained that the belt is coated
with fire resistant material, that when it is unaligned, the coating can wear off and expose fabric
strings, and that they gather around rollers and collect coal dust. Tr. 85-86. He also explained
that non-permissible belt drive motors in the area could cause internal sparks, but acknowledged
that he did not inspect the motors’ cables, and that methane was only produced outby the cited
area. Tr. 54, 92, 97. While he noted that a lot of water was present, he stated that the
accumulations felt dry in a few places and that, based on his observations, he thought that a fire
was likely to occur. Tr. 58-61, 74. He stated that he spoke to longwall outby supervisor Joe Bell
and longwall coordinator Randy Deavours about the belt tear, and ascertained that cleaning had
begun on December 11, but neither mentioned that any cleaning had taken place on December
12. Tr. 77, 100-06, 111-12; Ex. P–3. He also described the depictions in the photographs that he
had taken of the H-2 belt takeup area before and after termination of the citation. Tr. 57-68; Ex.
P–4. In his opinion, spraying is a common cleaning method at Shoal Creek, but not effective, and
he admitted that he had no personal experience with it or knowledge of whether it had been
3

Chatham cited Peabody for an inadequate pre-shift examination of the H-2 belt takeup
area on December 12, and Peabody subsequently withdrew its contest of that citation. Tr. 80-82;
Ex. P–2.

42 FMSHRC Page 809

employed to address this condition. Tr. 78-79, 88-89, 103, 106, 113. Additionally, he stated that
if cleaning had been scheduled beyond December 11, the belt should have been stopped and the
takeup guards removed, although he acknowledged that the mine was not required to shut the
belt down to clean. Tr. 106, 113. He explained that based on the condition and his conversation
with management about its cleaning efforts, he issued an unwarrantable failure citation, noting
that the accumulations were the most extensive that he had cited at Shoal Creek during that
quarter. Tr. 104, 107.
b. Lee Esch
Owl shift fire boss Lee Esch testified for the Secretary that the H-2 belt entry was the
secondary escapeway for the H-2 longwall, that it provided clean air to the working face and
that, during owl shift on December 12, he conducted his pre-shift examination of the H-2 belt
takeup area specifically looking for combustible materials in contact with frictional heating
sources that can dry out wet materials, noting that, previously, he had seen fires in the mine. Tr.
117-19, 139. He stated that he finished his examination between 5:30 and 6 a.m., and that the
takeup area was examined around 4 a.m. Tr. 127-29, 138. He explained that he examined the
takeup from the walkway side, with the guards in place obstructing his view, and that he did not
record any hazards in the H-2 belt entry; customarily, according to him, examiners did not record
hazards if they were being worked on, but this practice was scrapped after the inspection. Tr.
123-26, 140-41. Esch admitted that he had no independent memory of examining the area
beyond reviewing his notes, that he was not present when Chatham took photographs nor did he
dispute their authenticity, and that the conditions depicted in them needed to be addressed
because they could cause a fire. Tr. 124, 135-36.
c. Joe Bell
Day shift longwall outby supervisor Joe Bell testified for Peabody that he had worked at
Shoal Creek for about 10 years, and that his team was responsible for cleaning areas outby the
longwall face, including the H-2 belt takeup area. Tr. 145-49. He explained that longwall mining
at Shoal Creek is a wet process, and that the H-2 belt takeup is particularly wet due to its location
in the mine and the belt shortening as the longwall advances, all of which make the area prone to
accumulations. Tr. 150, 191-92, 224. According to Bell, the belt tear on December 11 created
“[a] mess . . . the pieces got wound up in a lot of rollers . . . . So there was a lot of things
wrapped around stuff and then on top of that, the material,” and it took “all hands on deck” to
clean and repair the belt, with the “mindset . . . to get [the belt] running,” because accumulations
cannot be pumped onto the belt when it is shut down. Tr. 154-58, 217. He stated that in order to
clean the spill and get the belt running, the takeup guarding was removed, seven to eight miners
shoveled the accumulations from under the belt onto the walkway, and the belt was repaired;
most of the accumulations had been moved onto the walkway by the time that he left, around 4
p.m. Tr. 157-61. He estimated that, given the extensiveness of the spill and the slow cleaning
process, it would have taken a few shifts to finish the job. Tr. 196-202.
By Bell’s account, on December 12, between 7:30 and 8:30 a.m., the H-2 belt was
running and, with the takeup guards in place obstructing his view while he was working, he did
not have an opportunity to inspect the takeup, and he observed material and a piece of discarded

42 FMSHRC Page 810

belt in the walkway. Tr. 163-65, 187-89. He stated that his crew washed the takeup area for
approximately a half hour, explaining that when the guards are up, shoveling can clear some of
the accumulations and hosing cleans the rest, and that his crew had planned to pump the material
onto the belt. Tr. 163-66, 189-91. Thereafter, he stated, longwall coordinator Randy Deavours
called, assigning him and two miners to attend to a fuel cell hazard elsewhere and, before leaving
the area, the belt was still running, and he turned off the pump because there was no one to run it.
Tr. 166-68, 193-94. Bell testified that when he returned to resume cleaning in about an hour, the
inspection party was there, and he observed the condition at the takeup for the first time; he
qualified his testimony by stating that he had not looked closely at it earlier because he had been
focused on clearing material from the walkway, but then admitted that, generally, he had seen it
earlier in the shift. Tr. 168-74, 193-96. In his opinion, the material on the walkway had washed
back under the takeup due to the wetness of the area. Tr. 176. Bell agreed with Chatham’s
narrative of the condition on the face of the citation, and testified to the accuracy of Chatham’s
photographs, noting that it would be dangerous to run the belt in that condition. Tr. 177-88. His
testimony as to the photographs of the belt strings was inconsistent, however; he acknowledged
the depictions as what he had seen upon his departure on December 11 and arrival on December
12, then denied having seen them at all on December 11, and not until he was with Chatham on
December 12. Tr. 182-84, 187, 194-96.
d. Randy Deavours
Day shift longwall coordinator Randy Deavours testified for Peabody that he oversees
production and outby supervisors, and that he had worked at Shoal Creek for two years and four
months. Tr. 204-05. He stated that air from the H-2 belt entry and the primary escapeway
combined to ventilate the longwall face, and that the primary escapeway provided the majority of
the fresh air. Tr. 206-08. By his account, the H-2 belt tore at 1:05 p.m., and he immediately went
to the belt takeup, finding a tear of approximately 30 feet, and an extensive spill of wet coal. Tr.
209, 213-16. He explained that accumulations cannot be pumped when the belt is off because it
is needed to carry them out of the mine. Tr. 216-19. He stated that after the belt tore,
approximately six miners shoveled the accumulations from under the belt onto the walkway,
finishing around 5:00 p.m., and that the belt was repaired. Tr. 216-19. Deavours testified that the
belt was restarted at 5:15 p.m., that the longwall made 4 ½ passes during evening shift and 2
during owl shift, and that production continued into the morning. Tr. 220-24, 238-40; Ex. P–5 at
22-24, 36. He also testified that cleaning continued from day into evening and owl shifts and
that, once the belt was running, accumulations were pumped onto it, as well as loaded onto
wheelbarrows and skid steers and dumped onto it. Tr. 218-24; Ex. P–5 at 22-24, 36. According
to Deavours, at the beginning of December 12 day shift, he had instructed Bell’s crew to
continue cleaning the walkway at the belt takeup and that, shortly thereafter, he reassigned them
to move a fuel cell located too close to a high voltage cable in another area. Tr. 225-29. He
explained that by the time that Bell’s men arrived at the fuel cell, he had also found
accumulations in contact with a roller around crosscuts 8 to 10, and that he had assigned another
outby man to address it. Tr. 227-31. He continued, testifying that he then received a call that
MSHA had shut down the H-2 belt because of accumulations at the takeup, and that he traveled
there and observed extensive wet accumulations, acknowledging that he did not touch them. Tr.
230-34, 241, 243-46. He explained that the area was prone to accumulations, that cleaning in that
area occurred almost every day and that, based on his experience, he believed that the cited

42 FMSHRC Page 811

condition was caused by the material left in the walkway washing back under the belt and
takeup. Tr. 231-34, 241. He opined that the belt should not have been running in that condition,
and explained that in order to terminate the citation, 10 to 13 man crews, over at least three
shifts, used wheelbarrows and skid steers to load the belt, that the belt was “bumped” so that it
could be loaded, and that pumping was not possible because the belt was not running. Tr. 23540.
e. James Barnett
Evening shift utility miner connection and certified examiner James Barnett testified for
Peabody that he performed examinations once or twice a week and that, on December 11, he
conducted a pre-shift examination of the H-2 belt entry around 8 p.m., and that the guards were
in place and the belt, carrying a lot of water, was conveying coal. Tr. 249-54. He asserted that he
observed miner Ricky Shubert standing in the walkway hosing coal from under the belt takeup,
and that he did not make note of accumulations in the H-2 takeup area because cleaning was
underway. Tr. 252-59; Ex. P–5 at 3. He also stated that he did not observe any contact between
the accumulations and the rollers or the belt, that he would have stopped the belt had that been
the case because contact can cause fires, and that he had previously seen mine fires due to
bearing failure and belt strings. Tr. 252-57.
2. Analysis
A violation of section 75.400 occurs “where the quantity of combustible materials is such
that, in the judgment of the authorized representative of the Secretary, it could cause a fire or
explosion if an ignition source were present.” Old Ben Coal Co., 2 FMSHRC 2806, 2808 (Oct.
1980) (“Old Ben II”) (footnote omitted). This judgment is viewed through the objective standard
of whether a “reasonably prudent person, familiar with the mining industry and the protective
purposes of the standard, would have recognized the hazardous condition that the regulation
seeks to prevent.” Utah Power & Light Co., 12 FMSHRC 965, 968 (May 1990), aff’d 951 F.2d
292 (10th Cir. 1992).
Peabody launches its challenge to the violation by focusing on the cause of the
accumulation, i.e., the extensive belt tear, and arguing that given the size of the spill, it had a
reasonable amount of time to clean it up. Resp’t Br. at 6-8 (citing Old Ben Coal Co., 1 FMSHRC
1954, 1958 (Dec. 1979) (“Old Ben I”) (noting that “some spillage of combustible materials may
be inevitable in mining operations”); Utah Power & Light Co., 951 F.2d 292, 295 n.11 (10th Cir.
1991) (stating that “loose coal . . . . must be cleaned up with reasonable promptness, with all
convenient speed”); but see Black Beauty Coal Co., 703 F.3d 553, 559 n.6 (D.C. Cir. 2012)
(rejecting the argument that operators have a “reasonable time” for cleaning before a section
75.400 citation can be issued)). While the Commission has stated that “[w]hether a spillage
constitutes an accumulation under the standard is a question, at least in part, of size and amount,”
(Old Ben I, 1 FMSHRC at 1958) the D.C. Circuit has explained that, although spills can occur
quickly, accumulations of combustible materials substantial enough to cause or propagate a fire
are prohibited, even if recent. Black Beauty, 703 F.3d at 558-59, 559 n.6; see Utah Power, 951
F.2d at 295 n.11; Prabhu Deshetty, 16 FMSHRC 1046, 1049 (May 1994) (rejecting a defense
based on recentness of a spill). Moreover, the D.C. Circuit has explained that the discussion of

42 FMSHRC Page 812

“reasonable promptness” in Utah Power is dicta that has not been followed by the 10th Circuit in
subsequent cases, and that operators are not afforded a reasonable time to clean accumulations
before a violation of section 75.400 can be found. Black Beauty, 703 F.3d at 558-59, 559 n.6.
Here, the evidence clearly establishes that there were substantial accumulations of coal in the H2 belt takeup area. Chatham’s account of the condition is largely corroborated by his
contemporaneous notes and photographs, and even Bell and Esch admitted that it would have
been dangerous to run the belt in the condition documented by Chatham’s photographs. Ex. P–3
at 3-4. While the accumulations were the result of a substantial belt tear, they were significant
enough to require major cleanup efforts before resuming operation of the belt to run coal.
Peabody also argues that it had cleared the accumulations from underneath the H-2 belt in
the takeup area, that the material must have washed back, and that cleaning would have
continued but for the inspection and Bell’s crew being called away. Resp’t Br. at 7-8. While I
credit that after the belt tear on December 11 at 1:05 p.m., Peabody had moved the
accumulations under the belt onto the walkway before restarting the belt later that evening, and
that cleaning had continued during the subsequent evening, owl, and day shifts, the
accumulations were never completely removed from the belt takeup area and taken out of the
mine. Notably, on December 12 day shift, Deavours assigned Bell’s men to continue the cleanup
of the belt takeup area, but then diverted them to another hazard elsewhere. Bell turned off the
pumps when he left the area, and the belt continued to run. However, even if the outby crew’s
cleaning had not been subordinated to another task that morning, its efforts would have
constituted a mere fraction of the 10 to 13 miner crew, working over the course of three shifts, to
clean up the “mess” and terminate the citation.
While the record establishes that the H-2 belt takeup area was very wet, the evidence that
the accumulations were dry in several spots was unrebutted. The Commission has long explained
that “wet coal accumulations pose a significant danger in underground coal mines” because they
can dry out through frictional contact with the belt or rollers, and propagate a fire or explosion.
Mach Mining, LLC, 40 FMSHRC 1, 3-6 (Jan. 2018) (citing Consolidation Coal Co., 35
FMSHRC 2326, 2329-30 (Aug. 2013); Black Diamond Coal Mining Co., 7 FMSHRC 1117,
1120-21 (Aug. 1985)).
Based on the evidence in its entirety, I find that the accumulations of loose coal and coal
fines, measuring 120 feet long, 21 feet wide, and up to 30 inches deep, were substantial and
extensive, that they were contacting the H-2 belt and rollers, that belt strings coated in loose coal,
coal fines, and float coal dust were wrapped around rollers, bearings, and the takeup frame, and
that the accumulations had dried out in places from frictional contact and, therefore, were
combustible. Accordingly, I conclude that Peabody violated section 75.400.
B. Gravity
The Secretary argues that there was a realistic potential for fire to occur. Sec’y Br. at 1416. Conversely, Peabody maintains that an ignition was unlikely because of the wet conditions in
the mine, the absence of methane in the area, and the unlikelihood of belt drive motor cables
sparking. Resp’t Br. at 8-10. Peabody also argues that the accumulations would have been
cleaned up in the context of “continued normal mining operations” and, accordingly, would not

42 FMSHRC Page 813

have been reasonably likely to cause injury had the inspector not intervened. Resp’t Br. at 8-10
(citing U.S. Steel, 7 FMSHRC 1125, 1130 (Aug. 1985) (explaining that when considering
whether a violation is S&S, the evaluation of the reasonable likelihood of injury should be made
in the context of “continued normal mining operations”)). Finally, Peabody contends that
Chatham’s claim that he smelled burning rubber should be discounted. Resp’t Br. at 10.
The Commission has recently restated the four Mathies criteria that the Secretary must
establish in order to prove that a violation is S&S under National Gypsum:
(1) the underlying violation of a mandatory safety standard; (2) the
violation was reasonably likely to cause the occurrence of the
discrete safety hazard against which the standard is directed; (3)
the occurrence of that hazard would be reasonably likely to cause
an injury; and (4) there would be a reasonable likelihood that the
injury in question would be of a reasonably serious nature.
Peabody Midwest Mining, LLC, 42 FMSHRC___, slip. op. at 5 (June 2, 2020); see ICG Illinois,
LLC, 38 FMSHRC 2473, 2475-76 (Oct. 2016); Newtown Energy, Inc., 38 FMSHRC 2033, 2038
(Aug. 2016); Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); see also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99,
103-04 (5th Cir. 1988) (approving Mathies criteria), aff’g 9 FMSHRC 2015, 2021 (Dec. 1987).
Resolution of whether a violation is S&S must be based “on the particular facts surrounding that
violation.” Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988); Youghiogheny & Ohio Coal Co.,
9 FMSHRC 2007, 2011-12 (Dec. 1987).
The fact of violation has been established, satisfying the first Mathies criterion, and the
discrete safety hazard against which section 75.400 is directed is fire or explosion contributed to
by accumulations of combustible materials.
The S&S determination must be made at the time that a citation is issued “without any
assumptions as to abatement;” however, if active abatement is underway at the time of citation
issuance, the sufficiency of the abatement measures must be considered when determining
whether a violation contributes to the hazard. See generally Knox Creek Coal Corp., 811 F.3d
148, 165-66 (4th Cir. 2016); Mach Mining, 40 FMSHRC at 1, 5-6; Paramont Coal Co., 37
FMSHRC 981, 985 (May 2015); U.S. Steel, 7 FMSHRC at 1130; U.S. Steel Mining Co., 6
FMSHRC 1573, 1574 (July 1984). In this case, active abatement was not underway at the time of
inspection. Bell’s crew’s cleaning of the takeup area had been interrupted before Chatham came
upon the condition, and those efforts were marginal, at best, in light of the significant
accumulations. Accordingly, based on the cleanup deficiency from belt tear to inspection, I find
that, in the context of continued normal mining, the accumulations would have existed.
In cases involving combustible accumulations, the Commission has clarified that when
considering the second and third steps of the Mathies analysis, “the likelihood of an injury
resulting depends on the existence of a ‘confluence of factors’ that could trigger the ignition or
explosion. Factors include any potential ignition sources, the presence or potential for presence
of methane, float coal dust accumulations, loose coal or other ignitable substance, and the types

42 FMSHRC Page 814

of equipment operating in the area.” Mach Mining, 40 FMSHRC at 3-4 (citations omitted) (citing
McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1992 (Aug. 2014)); see also Utah Power, 12
FMSHRC at 971; Texasgulf, 10 FMSHRC at 501-03. Belts and belt rollers contacting
accumulations can be ignition sources, even absent defects. Mach Mining, 40 FMSHRC at 4-6;
Buck Creek, 52 F.3d at 135; see Knox Creek Coal Corp., 36 FMSHRC 1128, 1139-42 (May
2014). Finally, it is well established that a fire in an underground coal mine poses a significant
risk of injury to miners. Buck Creek, 52 F.3d at 135-36; Black Diamond, 7 FMSHRC at 1120.
Despite Shoal Creek’s gassy nature, there is no evidence that methane was liberated in
the H-2 belt takeup area. However, the possibility of sparks emanating from the non-permissible
belt drive motors was unchallenged, as was the smell of burning rubber, which was consistent
with the condition observed in the takeup area. Furthermore, the numerous points of frictional
contact between the accumulations and the belt and several rollers, along with the belt strings
wrapped tightly around several rollers, bearings, and the frame, had begun to dry out the
accumulations. Accordingly, I find it reasonably likely that the coal accumulations contributed to
the occurrence of a fire in the mine, and that the second Mathies criterion has been satisfied.
Moving on to the third and fourth Mathies criteria, evidence establishing that intake air
from the primary escapeway, combined with intake air from the H-2 belt entry, would dilute any
smoke or contaminants reaching the longwall face, does not eradicate the danger of exposing the
section crew to toxic air at the face and in the alternate escapeway, no matter how minimal the
contamination. As the Seventh Circuit has expressed in Buck Creek, a finding that “a fire burning
in an underground coal mine would present a serious risk of smoke and gas inhalation” is a
common sense conclusion. 52 F.3d at 135-36; see also Black Diamond, 7 FMSHRC at 1120
(recognizing that “ignitions and explosions are major causes of death and injury to miners”).
Therefore, based on the evidence established in this case and the relevant precedent, I find that a
mine fire would be reasonably likely to cause an injury, and a reasonable likelihood that the
resultant injury would be of a reasonably serious nature, satisfying the Mathies test. Accordingly,
this violation was S&S.
C. Unwarrantable Failure and Negligence
Unwarrantable failure is aggravated conduct constituting more than ordinary negligence,
characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,”
or a “serious lack of reasonable care.” CAM Mining, LLC, 38 FMSHRC 1903, 1908-09 (Aug.
2016); Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); Emery Mining
Corp., 9 FMSHRC 1997, 2001-04 (Dec. 1987); see also Buck Creek Coal, 52 F.3d at 136. The
Commission has recognized the relevance of several factors in determining whether conduct is
“aggravated” in the context of unwarrantable failure, such as the extensiveness of the violation,
the length of time that the violation has existed, whether the violation posed a high risk of
danger, whether the violation was obvious, the operator’s knowledge of the existence of the
violation, the operator’s efforts in eliminating the violative condition, and whether the operator
has been put on notice that greater efforts are necessary for compliance. See McCoy Elkhorn, 36
FMSHRC at 1993 (citing Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal
Co., 31 FMSHRC 1346, 1350-57 (Dec. 2009); Cyprus Emerald Res. Corp., 20 FMSHRC 790,
813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999)). Each case must be

42 FMSHRC Page 815

examined on its own facts to determine whether an actor’s conduct is aggravated, or whether
mitigating circumstances exist. Eagle Energy, Inc., 23 FMSHRC 829, 834 (Aug. 2001) (citing
Consolidation Coal, 22 FMSHRC 340, 353 (Mar. 2000)). Although some factors may be
irrelevant to a particular scenario, all relevant factors must be examined. ICG Hazard LLC, 36
FMSHRC 2635, 2637-38 (Oct. 2014) (citing IO Coal, 31 FMSHRC at 1351).
The Secretary contends that, given the time that it took to clean up the accumulations, the
condition was extensive. Sec’y Br. at 16-20 (citing McCoy Elkhorn, 36 FMSHRC at 1993
(upholding a finding of extensiveness where it took an entire crew four hours to clean up
accumulations)). Peabody makes the counter argument against extensiveness, in that the
accumulations were confined mostly to the belt takeup area. Resp’t Br. at 15. In this regard, the
Commission has explained that extensiveness of the violative condition has traditionally been
determined by examining the magnitude of the violation as it existed at the time that the citation
was issued. See Eastern Assoc. Coal Corp., 32 FMSHRC 1189, 1195 (Oct. 2010). The
accumulations observed by Chatham were 120 feet long, 21 feet wide, and up to 30 inches deep,
in contact with the belt and numerous rollers, and drying out in places, and belt strings were
wrapped around rollers, bearings, and the takeup frame. Furthermore, it took 10 to 13 miners,
over at least three shifts, to clean up the accumulations. Accordingly, this violation was extensive
and clearly obvious, both aggravating factors.
The Secretary asserts that accumulations existing for more than a shift, as in this case,
constitute aggravated conduct. Sec’y Br. at 17 (citing Buck Creek, 52 F.3d at 136 (upholding a
finding of unwarrantable failure where the accumulations existed for more than one shift after
identification during a pre-shift examination)). Peabody argues that the condition existed for less
than 24 hours, and that the accumulations washed back under the belt at some point after they
had been moved onto the walkway. Resp’t Br. at 14-15. The record establishes that the belt tear
occurred on December 11 day shift around 1 p.m., and that Peabody cleared the coal from under
the belt onto the walkway before the belt was restarted on evening shift around 5:15 p.m., but
that the accumulations were never completely removed from the walkway and taken out of the
mine until after the citation was issued. Crediting that washback from the walkway occurred at
some point after the initial cleanup of the spill, it is clear that the accumulations remained in the
belt takeup area over a period spanning four shifts, from mid-day shifts December 11 to
December 12. Accordingly, the violation existed for a significant length of time, an aggravating
factor.
The Secretary argues that the S&S designation indicates that this condition was highly
dangerous. Sec’y Br. at 17-19 (citing San Juan Coal, 29 FMSHRC 125, 132-33, 134-35 (Mar.
2007) (finding that the judge failed to relate facts considered in finding that a violation was S&S
to the “degree of danger” prong of the unwarrantable failure analysis)). On the other hand,
Peabody minimizes the danger by contending that the accumulations were wet. Resp’t Br. at 1415. The evidence establishes that the accumulations were extensive, drying out due to frictional
contact with the belt and rollers, and that belt strings, coated with loose coal, coal fines and float
coal dust, were wrapped around rollers, bearings, and the frame, posing a serious risk of ignition;
additionally, this belt entry was an alternate escapeway, an essential component of the
evacuation scheme for the active H-2 longwall in the event of an emergency. Accordingly, I find
that this condition posed a high risk of danger, also an aggravating factor.

42 FMSHRC Page 816

The Secretary contends that Peabody had knowledge of the condition because Barnett
and Esch had examined the area, and Bell’s crew was cleaning there on the day of inspection.
Sec’y Br. at 16-20. Peabody counters that it was aware of the condition at the time of the belt
tear and took remedial action, but makes no representation as to its awareness of the intervening
washback prior to Chatham’s inspection. See Resp’t Br. at 11-14. It is well settled that an
operator’s knowledge may be established, and a finding of unwarrantable failure supported,
where an operator reasonably should have known of a violative condition. See Drummond Co.,
Inc., 13 FMSHRC 1362, 1367-69 (Sept. 1991); Emery, 9 FMSHRC at 2002-04. The record
establishes that the belt was repaired and the accumulations moved from under it onto the
walkway prior to resumption of production during the evening shift, and that cleaning continued
during the succeeding owl and day shifts. Peabody’s general knowledge, that washback occurred
in the wet takeup area and that the accumulations were never completely removed from the
walkway and taken out of the mine, has also been established. While Peabody’s washback
contention has been credited, it has failed to establish when it occurred during the course of
events. However, Barnett’s observation of hosing under the belt takeup during his evening preshift examination on December 11 should have put Peabody on notice that accumulations were
back under the belt, notwithstanding the customary non-recording of hazards actively being
addressed. Likewise, lack of notation of the hazard in the December 12 owl pre-shift report
raises speculation as to whether the washback under the belt was overlooked or simply not
recorded because of active spraying. See Ex. P–5 at 2-5. In any case, by day shift on the morning
of inspection, the dispatchment of Bell’s crew to clean in the takeup area clearly establishes
Peabody’s knowledge of the “mess” that Chatham would encounter a short while thereafter.
Accordingly, there are several indicators that lead to a finding that Peabody knew or should have
known of the ongoing condition, an aggravating factor.
The Secretary maintains that Peabody’s cleaning efforts were insufficient, given the
condition. Sec’y Br. at 18-19 (citing San Juan Coal, 29 FMSHRC at 134-35 (explaining that
“subordination of cleanup efforts to other work may support an unwarrantable failure finding”);
Peabody Coal Co., 14 FMSHRC 1258, 1260-63 (Aug. 1992) (affirming an unwarrantable failure
where one miner had been assigned to clean the cited area, but it took five miners four hours to
abate the violative condition)). Peabody responds that its cleanup efforts were reasonable in light
of its knowledge of the condition after the spill, the fact that cleanup would have continued, and
because Chatham’s opinions about the condition and cleanup efforts were erroneous. Resp’t Br.
at 12-15 (citing Peabody Midwest Mining, LLC, 41 FMSHRC 340, 352 (June 2019) (ALJ)
(finding that the violation was not unwarrantable based, in part, on the mine’s determination that
its planned cleanup would eliminate the condition before it became hazardous)). Peabody also
contends that “good faith” cleanup efforts can mitigate a finding of unwarrantable failure. Resp’t
Br. at 11-13 (citing Cannelton Industries, Inc., 20 FMSHRC 726, 734 (July 1998); see also
Peabody Midwest Mining, LLC, 41 FMSHRC 279, 303 (May 2019) (ALJ); Peabody Midwest
Mining, LLC, 40 FMSHRC 87, 141 (Jan. 2018) (ALJ)). The Commission has stated that when an
operator has been placed on notice of a problem, the level of priority that it places on abatement
is relevant, and that the focus is on the operator’s abatement efforts prior to being cited. Enlow
Fork Mining Co., 19 FMSHRC 5, 13-19 (Jan. 1997). Additionally, good faith cleanup efforts,
even if based on a mistaken belief, can be a mitigating factor; however, the belief must be
reasonable under the circumstances. Amax Coal Co., 19 FMSHRC 846, 851 (May 1997); see
also Cannelton, 20 FMSHRC at 734. Obviously, the cleanup efforts after the belt was restarted

42 FMSHRC Page 817

did not eliminate the condition, and Deavours’ reassignment of Bell’s crew, on the morning of
December 12, to address another problem, indicates that Peabody failed to appreciate the
seriousness of the accumulations and prioritize abatement. This is especially so in light of its
general knowledge that washback occurred regularly in the H-2 belt takeup area, and given the
extensiveness of the accumulations left in the walkway. Finally, Peabody raises legitimate
questions as to Chatham’s understanding of belt operation during cleanup, its use of hoses for
cleaning, and its cleanup efforts during December 12 owl and day shifts. However, any
misconceptions that Chatham held about running the belt or hosing as essential components of its
cleaning process, as well as Peabody’s actual efforts on December 12, have no bearing on
Peabody’s overall inattention to the magnitude and seriousness of the accumulations, an
aggravating factor.
Repeated similar violations may also be relevant to an unwarrantable failure
determination to the extent that they serve to put an operator on notice that greater efforts are
necessary for compliance with a standard. Amax Coal, 19 FMSHRC at 851; see also
Consolidation Coal Co., 23 FMSHRC 588, 595 (June 2001). The Commission has rejected the
argument that only past violations, involving the same regulation and occurring in the same area,
may be properly considered when determining whether a violation is unwarrantable. Peabody
Coal, 14 FMSHRC at 1263. Shoal Creek was cited 121 times for violations of section 75.400 in
the two years preceding this citation, and 25 times in the quarter. Peabody took control of Shoal
Creek from Drummond on December 4, 2018 and, at the time of inspection, one section 75.400
citation had been issued directly to Peabody. Ex. P–16 at 10, 19, 21. Notably, management
employees Bell and Deavours retained employment with Peabody at Shoal Creek after having
worked for Drummond. Moreover, it was well known that the area was prone to accumulations
and washback. Taken together, the evidence establishes that Peabody was on notice that greater
efforts for compliance were necessary, particularly in the cited area, another aggravating factor.
After considering all the aggravating factors, I conclude that Peabody was highly
negligent, and that this violation was the result of its unwarrantable failure to comply with the
standard.
2.

Order No. 9136320

Inspector Darryl Allen issued 104(d)(1) Order No. 9136320 on February 19, 2019,
alleging an “S&S” violation of section 75.380(d)(1) that was “reasonably likely” to cause an
injury that could reasonably be expected to be “fatal,” and was caused by Peabody’s “high”
negligence and unwarrantable failure to comply with the standard.4 The “Condition or Practice”
is described as follows:
The alternate escapeway leading from H-3 and H-2 longwall
sections, to the west service shaft, is not maintained in safe
condition to always assure passage of anyone, including disabled
persons. Thick muddy water, containing coal fines, and covering
4

30 C.F.R. § 75.380(d)(1) provides that “[e]ach escapeway shall be . . . [m]aintained in a
safe condition to always assure passage of anyone, including disabled persons.”

42 FMSHRC Page 818

thick coal muck, has been allowed to accumulate in the West Main
4 belt entry, (A.E.) from cross cut 82 to 83. The muddy water and
muck, covering tire ruts, rocks, coal, and other stumbling hazards,
exists in three low areas of the belt entry between cross cuts 82 and
83, each measuring approximately 20 ft. in length x the full width
of the walkway side of the belt entry, and ranging from 12 to 18
inches deep. A 13 hp. pump is observed suspended in the water at
cross cut 82, but is not in operation, and will not pump most of the
thick mud and coal fine material. No pumps or pump lines are
currently located at the other two low areas. This condition was
reported to management on 2/18/19 following the 8:00 p.m. to
11:00 p.m. pre-shift examination, and was entered in the outby preshift records under Hazardous Conditions, or Violation of a
Mandatory Safety Standard, and was countersigned by the Owl
Shift Mine Foreman. No corrective actions appear to have been
taken. The operator has engaged in aggravated conduct
constituting more than ordinary negligence. This violation is an
unwarrantable failure to comply with a mandatory standard.
Standard 75.380(d)(1) was cited 17 times in two years at mine
0102901 (17 to the operator, 0 to a contractor). This violation is an
unwarrantable failure to comply with a mandatory standard.
Ex. P–6. The order was terminated on February 19, after the operator had removed water, coal
fines, and coal muck from the holes, filled them with road mix and gravel, and cleared a six-footwide travelway in the alternate escapeway. Ex. P–6.
A. Fact of Violation
The Secretary contends that Peabody violated the standard because the alternate
escapeway did not satisfy the “functional passability” test in Utah Power. Sec’y Br. at 33-34
(citing 11 FMSHRC 1926, 1930 (Oct. 1989)).5 Conversely, Peabody seeks vacation of the order,
maintaining that the cited area in the West Main No. 4 belt entry was safe to travel, that three
miners traveled the area without any problem and, challenging Allen’s account of the condition
as uncorroborated, that establishment of a violation is largely a factual determination. Resp’t Br.
at 21-22.
1. Summary of Testimony
a. Darryl Allen
Inspector Darryl Allen testified for the Secretary that, upon arrival at Shoal Creek in the
early morning of February 19 to conduct a quarterly E01 inspection, he found in the February 18
evening pre-shift report, “water and muck deep 82 to 83 and 82” in the West Main No. 4 belt
5

The “functional passability” test in Utah Power predated section 75.380(d)(1) but,
nonetheless, includes consideration of disabled miners’ ability to safely utilize escapeways.

42 FMSHRC Page 819

entry, and that men were assigned to address the issue, but that the work was not completed. Tr.
277, 284, 286-87, 292-93, 300-01, 305, 309-10; Ex. P–9(a), (b). He explained that the West Main
No. 4 belt entry is the alternate escapeway for the H-2 and H-3 working faces, and that it is
subject to examination every shift. Tr. 296-98, 358-59. He stated that Peabody safety supervisor
Brett Clements transported the inspection party to crosscut 84, where it crossed over to the West
Main No. 4 belt entry, and that he encountered thick “boot-sucking” muck and water, measuring
12 to 18 inches, in holes located between crosscuts 82 and 83, each hole stretching the width of
the walkway for a distance of approximately 20 feet, with tire ruts, coal fines, and rocks
throughout the area. Tr. 312-13, 316-19, 338-39, 373. He testified that the first hole was filled
with about 12 inches of water and muck, that the second hole, in which he almost fell, was filled
with muck higher than the top of his boots, and that the third hole, filled with water and soupy
muck, was approximately 18 inches deep. Tr. 316-24. He stated that there was a pump in the
hole by crosscut 82 that was not running, and explained that it was not designed to handle muck.
Tr. 324, 327-29. By his account, there were no indications that any cleaning had been underway,
and he speculated that the muck could have accumulated over a period of weeks. Tr. 328-33.
Consequently, he explained, he issued a withdrawal order because he was concerned about
miners being impeded or losing balance and falling if they needed to use the escapeway and that,
because the travelway was too narrow for vehicles, miners would have to travel on foot through
this condition and then another 1 ⅓ miles in order to reach the exit. Tr. 297, 311-12, 316-17, 326,
331-34. Allen also expressed concern about the ability of disabled miners to escape in an
emergency, noting that navigating the area in the cited condition with a stretcher would be
dangerous. Tr. 375-77.
b. Clarence Whitt
Owl shift pump supervisor Clarence Whitt testified for Peabody that he had worked at
Shoal Creek for about 16 years, that he typically reviews the fire boss book between 10:20 and
10:30 p.m., that he records his cleaning assignments on the pre-shift report, and that he is directly
notified of high priority issues by radio. Tr. 388-98, 400-01. He asserted that he reviewed the
February 19 evening pre-shift report, that it identified water and muck at crosscut 82 and
between crosscuts 82 and 83 in the West Main No. 4 belt entry, and that he went directly to that
area with a pumper and found a hole at crosscut 82, approximately 20 feet long, 8 to 10 feet
wide, and 8 to 10 inches deep, filled with water and muck, noting that he could not see the
bottom of the hole. Tr. 396-97, 402-03, 411-15; Ex. P–9(a). As he continued inby, he stated, he
found a second hole filled with muck, and that he did not walk the length of the hole or over to
crosscut 83. Tr. 405, 416, 421-22. He stated that thick muck filled both holes, but that he did not
identify any tripping hazard between crosscuts 82 and 83, and he admitted that he was focusing
on cleanup when assessing the condition rather than escaping in an emergency. Tr. 416-18,
421, 428, 432. Whitt also equivocated as to whether the muck was “boot sucking;” having
testified that it was not, he was referred to his contradictory deposition testimony that it was, then
was not, admitting that the change in his prior testimony had occurred after conferring with
counsel. Tr. 406, 420, 425, 430, 431. He explained that the pump cannot remove muck, and that
it is located at crosscut 82 because the area is low lying and anything uphill drains down to it. Tr.
402-06, 409, 415-16, 419. He admitted that he did not know the depth of the muck after pumping
water off the hole at crosscut 82 and acknowledged that, based on his experience, muck takes
time to build up. Tr. 420, 425, 430-31. He testified that after pumping the water, he was called

42 FMSHRC Page 820

away to service the main sump, that he never called for anyone to clean up the muck, and that he
asked Joe Kennedy to check whether the water had built back up in the hole at crosscut 82. Tr.
403, 418-22. Finally, he explained that mobile equipment, such as skidsteers, was necessary to
remove muck and, while no equipment was there when he left, he heard over the radio that it was
on the way. Tr. 418-24.
c. Joe Kennedy
Owl shift pump supervisor Joe Kennedy testified for Peabody that he had worked at
Shoal Creek for over six years. Tr. 433-34. He explained that he and Whitt would review the
examination records at the beginning of the shift and divide the work, noting that the records are
important for passing information between shifts. Tr. 434, 443-44, 450. He testified that at the
beginning of February 19 owl shift, he was working in an area without radio communication,
that he left there between 4:30 and 5:30 a.m., and that he received a call about the West Main
No. 4 belt entry. Tr. 436-39. He stated that he proceeded to crosscut 82 and found a little water
and a lot of muck and that, as he walked the area, he did not need waders and encountered no
tripping hazards. Tr. 439-41. He testified that he pumped water at crosscut 82 for 15 to 30
minutes at 6 a.m., then called for someone to scoop the muck because the pumps can only handle
water, and that he expected it to take place during day shift because there was no mobile
equipment in the area at the time. Tr. 441-43, 456-57.
d. Brett Clements
Brett Clements testified for Peabody that he had been working as a safety supervisor at
Shoal Creek since 2013. Tr. 458. He stated that he dropped off the inspection party at crosscut
84, parked the mantrip at crosscut 81 and entered the West Main No. 4 belt entry there, that he
met the inspection party around crosscut 83, and that he called mine foreman Doug Altizer about
missing lifeline cones and muck that Allen had identified in the belt entry. Tr. 460-63, 487-89,
500-01. Explaining that the entry slopes down from crosscut 81 to 82 and that water and muck
were known to accumulate at that low point, he stated that he encountered a hole filled with
muck and water at crosscut 82 and another filled with soupy muck between crosscuts 82 and 83,
approximating both holes at 15 to 20 feet long, about walkway width, and 12 to 13 inches deep.
Tr. 462, 480-83, 486, 490-91. He asserted that he had no trouble walking through the holes, that
no water came up over his 16-inch boots, and that he did not encounter any trip and fall hazards,
noting that he did not recall Allen stumbling. Tr. 462-64. In his opinion, withdrawing the miners
was unnecessary because the material did not obstruct his travel in the escapeway. Tr. 465. He
testified about the photographs that he had taken, indicating how high the muck had come up on
his boots in the holes at crosscut 82 and between crosscuts 82 and 83, and identifying the
inactive pump in the hole at crosscut 82. Tr. 466-67, 472-76, 496-98; Ex. R–1(a)-(c). He
explained that soupy muck would need cleaning with a skid steer because it was too thick to
pump, and stated that he was not present when the order was terminated by scooping with a skid
steer and filling the holes with road mix and gravel, enabling water to flow down to the pump.
Tr. 477, 480-486, 490-91, 500.

42 FMSHRC Page 821

2. Analysis
Section 75.380(d)(1) requires underground coal mine operators to maintain each
escapeway in safe condition to assure passage of anyone, including injured miners. Maple Creek
Mining, Inc., 27 FMSHRC 555, 556-59 (Aug, 2005). Operators must also keep escapeways clear
for miners to quickly exit the mines in the event of emergencies. Mach Mining, LLC, 35
FMSHRC 2937, 2942-43 (Sep. 2013) (citing Am. Coal Co., 29 FMSHRC 941, 948, 953-54 (Dec.
2007)). The Commission has also explained that the proper consideration “is not whether miners
have been safely traversing the route under normal conditions, but rather the effect of the
condition of the route on miners’ ability to expeditiously escape a dangerous underground
environment in an emergency.” Am. Coal, 29 FMSHRC at 950 (citations omitted). Moreover, the
Commission has noted that “[o]f particular importance in determining whether an escapeway is
adequate under section 75.380 is the ability of miners to transport an injured miner on a stretcher
through it.” Maple Creek, 27 FMSHRC at 560.
While Peabody correctly contends that the question of whether an escapeway is passable
is largely a factual one, its arguments - - that because Whitt, Kennedy, and Clements walked the
area between crosscuts 82 and 83 eight times, collectively, without difficultly, escaping miners
would not be impeded, and that Allen overstated the seriousness of the condition - - are not
persuasive. See Resp’t Br. at 21-22 (citing Am. Coal, 29 FMSHRC at 948; Maple Creek, 27
FMSHRC at 559-61; Big Laurel Mining Corp., 37 FMSHRC 2001, 2032 (Sept. 2015) (ALJ)).
The plain wording of section 75.380(d)(1) makes clear that it contemplates consideration of
whether disabled miners would be able to pass safely, and is not restricted to able-bodied
miners who, in this case, were already aware of the condition and not acting in response to an
emergency.6 See Maple Creek, 27 FMSHRC at 556-57, 560 n.5 (addressing the fact that use of
an escapeway during an emergency is significantly more dangerous than using the same entry as
a travelway in a non-emergency situation).
The evidence clearly establishes that there were three holes spanning the width of the
walkway, filled with either water standing atop muck or a mixture of water and thick muck, i.e.,
soup, and that there were ruts and rocks throughout the area. While witnesses reported having
encountered different depths of material in the holes, given the size and irregularities of the
depressions, in conjunction with evidence lacking in exactitude as to where Allen and each miner
was standing within them, I credit all testimony on this point, and find that water and muck in
these holes ranged from 8 to 18 inches deep. Likewise, I credit Allen that one of the holes
contained deep, boot-sucking muck, simply because the other witnesses may not have walked
through the exact area in which he barely avoided falling. Regarding the inconsistent testimony
as to the number of holes in the entry, I credit Allen’s testimony that there were three based on
his detailed description, supported by his contemporaneous notes, and the fact that neither
Clements nor Whitt traveled the full length of the cited area. See Ex. P–8 at 2-5. Therefore, based
on the evidence in its entirety, I find that the conditions in the West Main No. 4 alternate
6

Peabody’s cite to American Coal, involving a violation of section 75.380(b)(1) and
providing guidance on escapeways generally, does not address safe passability of disabled
miners and, consequently, is not instructive on this point. See Resp’t Br. at 21 (citing 29
FMSHRC at 948).

42 FMSHRC Page 822

escapeway would impede miners’ safe passage under emergency conditions, particularly miners
carrying a stretcher or assisting an injured miner, and that Peabody violated section 75.380(d)(1).
B. Gravity
The Secretary contends that this violation was S&S because in an emergency, miners
were reasonably likely to be delayed, and delay could cause serious injury. Sec’y Br. at 34-36.
On the contrary, Peabody contends that Cumberland Coal requires consideration of the facts and
circumstances surrounding an alleged violation of an emergency standard when determining
whether it is S&S, and that delay was unlikely. Resp’t Br. at 23-24 (citing ICG Illinois, 38
FMSHRC at 2483 (Althen, dissenting); Mach Mining, 36 FMSHRC at 1530 (Cohen,
concurring)). Peabody also argues that the muck, water, and holes would have been eradicated in
the context of continued normal mining and, accordingly, would not have been reasonably likely
to cause injury had the inspector not intervened. Resp’t Br. at 25-26 (citing U.S. Steel, 7
FMSHRC at 1130) (explaining that evaluation of the reasonable likelihood of injury should be
made in the context of “continued normal mining operations”).
The fact of violation has been established, satisfying the first Mathies criterion, and the
discrete safety hazard that section 75.380(d)(1) is intended to prevent is impeding or delaying
miners, including those disabled, in exiting the mine should usage of the escapeway become
necessary in an emergency.
The Commission has explained that it is crucial to identify the hazard in the context of
the occurrence of the envisioned emergency and that, “[b]ecause the particular facts in a case
may not establish that a violation of an [emergency] standard contributes to a hazard which is
reasonably likely to result in an injury, not every violation of an [emergency] standard will be
S&S.” Cumberland Coal Res., 33 FMSHRC 2357, 2369 (Oct. 2011), aff’d 717 F.3d 1020 (D.C.
Cir. 2013); see also Peabody Midwest, 42 FMSHRC___, slip. op. at 4-6; ICG Illinois, 38
FMSHRC at 2483 (Althen, dissenting) (“[A]ssuming the existence of an emergency is not the
same thing as assuming that the violation is S&S . . . . [T]he particular facts surrounding the
violation must be considered.”).
The evidence establishes that pump supervisors Whitt and Kennedy pumped water from
the hole at crosscut 82 on February 19 owl shift. However, at the time of inspection, no action
had been taken to remove the water or soupy mixtures from the other two holes, much less fill
them. Accordingly, based on the inadequate remedial efforts leading up to inspection, I find that
the condition would have existed in the context of continued normal mining. Peabody’s position
that safe travel in the alternate escapeway would not have been impeded, as evidenced by the
three miners’ uneventful travel through the cited area, is unavailing. The evidence clearly
establishes that the water and muck-filled holes in the rutted, and rock strewn terrain, posed trip
and fall hazards that would be reasonably likely to impede escaping miners, particularly in the
case of disabled miners being assisted in exiting the mine safely, satisfying, the second Mathies
criterion.
Regarding the third and fourth Mathies criteria, any trip and fall hazards impeding and
delaying safe passage through the alternate escapeway during an emergency would be reasonably

42 FMSHRC Page 823

likely to prolong miners’ exposure to adverse atmospheric conditions, resulting in, but not
limited to, respiratory and musculoskeletal injuries of a reasonably serious nature, satisfying both
criteria. Accordingly, I find that this violation was S&S.
C. Unwarrantable Failure and Negligence
In support of the unwarrantable failure charge, the Secretary asserts that the water and
muck-filled holes in the alternate escapeway were extensive, obvious, and highly dangerous, that
they had existed since, at least, February 18, that Peabody was aware of the condition, that its
abatement efforts were inadequate, and that it was on notice that greater efforts were necessary
for compliance. Sec’y Br. at 36-41.
Peabody counters that it knew about the condition, that reasonable efforts were made to
address it in the short time that it had existed, and that further cleaning would have continued.
Resp’t Br. at 26-27. Peabody also contends that the cited area was traveled numerous times by its
miners, without incident, indicating that the condition was not as dangerous or extensive as Allen
believed, and that it was not on notice to expend greater effort to be compliant. Resp’t Br. at 2728.
The evidence establishes that there were three sizable holes, walkway-wide, filled with
water atop muck or soupy muck, about 20 feet long and 8 to 18 inches deep, in a rutted, rocky
area of the escapeway, and that the condition was first recorded in the February 18 evening preshift report. This condition was reasonably likely to impede safe passage of miners responding to
an emergency, and more so miners disabled and in need of assistance, notwithstanding the fact
that two pump supervisors walked, without incident, through a portion of the area during owl
shift. Accordingly, I find that the condition was extensive and obvious, and that it had existed for
at least three shifts, a significant timespan given the highly dangerous nature of unexpected trip
and fall hazards in the escapeway, and the mandate that it always be maintained to assure safe
passage of everyone. These are aggravating factors.
It is clear that Peabody was aware of the hazardous condition since February 18 evening
shift, and also of the area’s susceptibility to accumulations of water and muck. Moreover, the
owl shift pump supervisors, having observed the targeted area on February 19, took no action to
ensure that mobile scooping equipment was delivered to the area on their watch rather than
relying on the next shift. While Peabody correctly points out that Allen mistakenly believed that
no cleaning, whatsoever, had occurred before he issued the withdrawal order, it is clear that
pumping at crosscut 82 was only the initial action necessary to abate the condition. Furthermore,
termination of the order not only involved removal of the water and muck, but filling the holes, a
remedial step that it is reasonable to conclude would not have occurred, but for issuance of the
order. Accordingly, I find that Peabody had knowledge of the condition, and that its abatement
efforts were insufficient, both aggravating factors.
Shoal Creek was cited 17 times for violations of section 75.380(d)(1) in the two years
preceding this order. Peabody took control of the mine on December 4, 2018 and, at the time of
this order, two section 75.380(d)(1) citations had been issued directly to Peabody at the mine.
Ex. P–16 at 6-7, 21. Notably, when ownership changed hands, pump supervisors Whitt and

42 FMSHRC Page 824

Kennedy, and safety supervisor Clements were retained by Peabody and, based on this violation
history and the importance of maintaining passable escapeways in underground mines, Peabody
should have appreciated the urgency in abating the condition. Accordingly, I find that Peabody
was on notice that greater efforts for compliance with this emergency standard were necessary,
also an aggravating factor.
After considering all the aggravating factors, I conclude that Peabody was highly
negligent, and that this violation was the result of Peabody’s unwarrantable failure to comply
with the standard.
3.

Order No. 9136341

Inspector Darryl Allen issued 104(d)(1) Order No. 9136341 on March 11, 2019, alleging
an “S&S” violation of section 75.400 that was “reasonably likely” to cause an injury that could
reasonably be expected to result in “lost workdays or restricted duty,” and was caused by
Peabody’s “high” negligence and unwarrantable failure to comply with the standard. See supra at
4 n.2. The “Condition or Practice” is described as follows:
Combustible material in the form of wet and dry coal fines and
coal muck, have been allowed to accumulate in the North Main 1
belt entry, and are observed in contact with the belt surface and
belt rollers. The accumulation exists from cross cut 20, inby to the
belt tail pulley at cross cut 22.5, a distance of approximately 400 ft.
in length, x 20 ft. wide, and ranging from 6 to 24 inches deep. Coal
fines are under the belt tailpiece, in contact with the bottom belt,
and belt tail pulley. The belt has been shut off by the mine
foreman, due to 8 seized belt rollers being rubbed by the moving
belt, currently cited between cross cut 10 and the belt tail. Two
bottom belt rollers are observed buried in packed coal, with only
the top of the rollers visible on the off walkway side of the belt.
Two of the seized belt rollers are observed near the tail piece at
structure nos. 432 and 441. The bottom belt has been running on
top of packed damp to dry coal fines from the tail pulley to cross
cut 22, a distance of approximately 100 ft. in length. Coal
accumulation at the North Main 1 belt tail has been reported by
belt examiners and entered in the examination records for 8
consecutive shifts, from 3/8/19 during the 12:00 to 2:00 p.m. exam
to 3/10/19 during the 8:00 to 10:00 p.m. exam. During the most
recent pre-shift examination conducted this morning, 3/11/19
between 4:00 and 7:00 a.m., the examiner reported 3 frozen rollers
including one roller that was broken. During today’s inspection at
approximately 11:00 a.m., these damaged rollers, and others, are
still observed being rubbed by the moving belt. No miners are
observed in the area at the time of inspection, and no corrective
actions of reported conditions have been taken. The mine foreman
has shut the belt off and called for a belt crew to begin corrective

42 FMSHRC Page 825

actions. Standard 75.400 was cited 131 times in two years at mine
0102901 (131 to the operator, 0 to a contractor). This violation is
an unwarrantable failure to comply with a mandatory standard.
Ex. P–10. The order was terminated on March 12, after Peabody removed the coal fines and coal
muck from under the tailpiece and walkway. Ex. P–10.
A. Fact of Violation
The Secretary maintains that Peabody mine foreman Mike Earl, by and large, confirmed
Allen’s account of the condition. Sec’y Br. at 23. Peabody argues that because the material noted
in the records had been cleaned recently, it was spillage rather than prohibited accumulations and
that, given its wetness, it was not combustible. Resp’t Br. at 34-35 (citing Utah Power, 951 F.2d
at 295 n.11 (noting that operators must clean “loose coal” with “reasonable promptness”);
Consolidation Coal Co., 33 FMSHRC 385, 395-96 (Feb. 2011) (ALJ) (stating that cited material
must be combustible in order to establish a violation of section 75.400.)).
1. Summary of Testimony
a. Darryl Allen
Inspector Darryl Allen testified for the Secretary that he continued the quarterly E01
inspection of Shoal Creek on March 11 around 7:00 a.m., and that he believed that
accumulations in the North Main No. 1 tail area, identified in 11 consecutive pre-shift and onshift reports, had not been fully addressed since March 7, noting that the condition had been
recorded inconsistently as “hazardous” and “non-hazardous.” Tr. 511, 518-539, 600-05; Exs.
P–11 at 1, P–12 at 36-56. He testified that, upon arrival at the North Main No. 1 belt entry, he
identified a seized roller near crosscut 10, that foreman Mike Earl stopped the belt, that
continuing inby, he identified seven more seized rollers and issued a citation for eight seized
rollers between crosscuts 10 and 22 ½, and that he also issued a citation for two nonfunctional
fire hose outlets. Tr. 541-48. He stated that around crosscut 20 until around crosscut 22 ½, he
found rib-to-rib accumulations of coal fines and coal muck, 6 to 24 inches deep, that the belt was
in contact with coal accumulations in two places in the tail area for approximately 20 feet and
100 feet, respectively, and that two rollers were completely impacted by coal in the tail area. Tr.
541, 548-55, 557, 561, 572, 612; Exs. P–11, P–13(c)-(k). Allen described his photographs of the
conditions, acknowledging that the exact locations depicted were unclear. Tr. 559-76, 617; Exs.
P–13 (a)-(k), P–14 (a), (b). He asserted that he had touched the accumulations, and that they
were drying out at points of contact with the belt and rollers. Tr. 555-56, 565-67. By his account,
no cleaning was occurring when the inspection party reached the affected areas, and no mobile
cleaning equipment was present. Tr. 557. He estimated that cleaning would have required a crew
of miners using shovels and mobile equipment, but acknowledged that MSHA has no specific
requirements as to cleaning methods. Tr. 557-58, 590, 615. Based on the extensiveness of the
accumulations, he opined that they could have existed for multiple weeks, and that the mine was
aware of them from the records. Tr. 588-90. He acknowledged that when he returned to the cited
area on March 12, four to five feet of material had been cleared from underneath the belt, and
that some of it could have been noncombustible, such as fire clay. Tr. 591-94. Allen also

42 FMSHRC Page 826

testified about previous accumulations violations at Shoal Creek, stating that he had “tried to
work with the mine” to prevent them, but that “they just didn’t seem to improve any.” Tr. 57684, 595-96, 616; Ex. P–15(a)-(f).
b. Chris Robertson
Owl shift foreman Chris Robertson testified for Peabody that he had worked at the mine
for about 10 years, that his schedule included alternate weekends, that weekends are used
typically for maintenance, although the mine runs coal on Saturday sometimes, that the belts do
not operate when the mine is not producing, and that the belt is not examined in its entirety
during shifts when it is not running. Tr. 622-24, 626-28. He stated that he reviews the records at
the beginning of his shift to identify hazards and assign workers, and explained that Peabody’s
examiners designate hazardous conditions either (“HC”) for high priority, or (“HS”) for lower
priority non-hazardous health and safety conditions, and that the records reflect when a shift
refers unaddressed issues to the next shift. Tr. 624, 626-28; Ex. P–12. He explained that the tail
area was prone to accumulations, and that a full-time miner was stationed there to monitor
accumulations. Tr. 658-62. Robertson reviewed the records from March 7 evening shift through
March 11 owl shift, and testified that the belt was not running from Saturday, March 9 owl shift
until Monday, March 11 owl shift, that the accumulations noted were not hazardous because
there was no friction when the belt was not running, and that accumulations cannot be removed
from the mine when the belt is shut down. Tr. 630-41; Ex. P–12 at 37-54. He stated that the belt
was restarted between 3:00 and 5:00 a.m. on March 11, that the accumulations were cleaned at
his direction during that shift, and that his account was based on his review of the records rather
than his memory. Tr. 625, 629-39, 643-45; Ex. P–12 at 37-55. He noted that the accumulations
identified in the March 11 owl pre-shift report were at crosscuts 23 and 24, not 22 where the
tailpiece is located, that a sump, catching water and coal fines from the tail area near crosscuts 22
and 23, can be clogged by muck and coal, and that accumulations must be washed from under
the belt when it is running, then scooped onto it to be taken out of the mine. Tr. 639-41, 647-53;
Ex. P–12 at 56. He noted that when the belt is shut down, it can be “bumped,” i.e., intermittently
started and stopped quickly, for loading, but that it needs to run in order to take accumulations
out of the mine. Tr. 645-50. Finally, he acknowledged that accumulations in contact with turning
rollers can dry out, but opined that because the tail area is always wet, that would not happen. Tr.
642-43, 651.
c. Mike Earl
Day shift mine foreman Mike Earl testified for Peabody that he worked at Shoal Creek
from 2003 to 2006 and, currently, since 2009. Tr. 656. He explained that all coal transported out
of the mine travels on the North Main No. 1 belt, that the sump helps control accumulations
around the tail area, and that a full-time employee is stationed there because the belt entry is
susceptible to water and accumulations, which can occur quickly. Tr. 657-62. He testified that on
March 8, he reviewed the owl pre-shift report for that day, noted the hazardous accumulations at
crosscut 22 in the North Main No. 1 belt entry, and that he countersigned the report which
indicated that men had been assigned. Tr. 675-76; Ex. P–12 at 38. Earl stated that at the
beginning of his shift on March 11, he reviewed the record and delegated work assignments, then
joined the inspection party. Tr. 655, 662, 669, 675-77. According to him, the inspection party

42 FMSHRC Page 827

entered the North Main No. 1 belt entry at crosscut 6 and, walking inby, found the seized roller
around crosscut 10, which had been noted in the examination record, and he turned off the belt
and called Johnathan Aaron to fix it. Tr. 663-69. He stated that as the inspection party
approached the tailpiece, beltline attendant Aaron Thrasher was washing material from under the
belt between crosscuts 22 and 23, that he told Thrasher to turn off the water, and that he did not
recall any mobile equipment in the area. Tr. 664-66, 670. His testimony was inconsistent as to
where the cited accumulations began and, ultimately, he stated that he could not remember, but
that they could have started anywhere between crosscuts 20 and 22 ½, that they stretched 80 to
100 feet, and that there were coal fines on rollers and accumulations in contact with the belt. Tr.
664, 667-68, 671-73. He acknowledged that cleaning would require spraying by more than one
miner, and that the belt would have continued running if he had not shut it down when the
inspection party reached crosscut 10. Tr. 674, 678. He also testified that the order was terminated
by cleaning that continued from day shift through evening and owl shifts. Tr. 678-79.
d. Johnathan Aaron
Day shift dewater supervisor Johnathan Aaron testified for Peabody that he supervised
the tail area of the North Main No. 1 belt and delivered equipment, explaining that he would
review examination records and delegate work, and that on March 11 day shift, he assigned
Aaron Thrasher to change rollers at crosscuts 20 and 21 and clean accumulations in the tail area,
noting that he would need to spray and use a skid steer. Tr. 682-87, 700; Ex. P–12 at 56. He
testified that the skid steer was down, that while he and Thrasher were repairing it, Mike Earl
called him about a seized roller at crosscut 10, that he left Thrasher working on the skid steer and
that, subsequently, Thrasher went to clean the tail area. Tr. 688-91, 696-700, 713-14; Ex. R–2.
According to Aaron, he did not become aware of the extensiveness of the accumulations at the
tailpiece until Allen found them. Tr. 691, 699, 713-14. He explained that the belt department has
10 skid steers, 7 Lo Tracs,7 and 2 loaders, that not all mobile equipment is available at any given
time and that, immediately after the order was issued, 10 miners terminated the order using
loaders, skid steers, and Lo Tracs. Tr. 701-04, 711-15; Ex. R–2.
2. Analysis
Restated, a violation of section 75.400 occurs “where the quantity of combustible
materials is such that, in the judgment of the authorized representative of the Secretary, it could
cause a fire or explosion if an ignition source were present.” Old Ben II, 2 FMSHRC at 2808.
Although Shoal Creek is a wet mine and the tail area in the North Main No. 1 belt entry is
particularly wet, the unrebutted evidence that the accumulations were drying out in several
places belies Peabody’s contention that the accumulations were non-combustible. Furthermore,
its contention, that the accumulations were spillage because of recent occurrence, is also
unavailing. See Black Beauty, 703 F.3d at 558-59, 559 n.6 (explaining that operators are not
afforded a reasonable time to clean accumulations before a violation of section 75.400 can be
found, and that accumulations of combustible materials substantial enough to propagate a fire are
7

Lo Tracs are mobile equipment used by Peabody to remove material from underneath
the belts. Tr. 702.

42 FMSHRC Page 828

prohibited, even if recent). Accordingly, based on the evidence in its entirety, I find that there
were accumulations of coal fines and coal muck, from around crosscut 20 to 22 ½, entry-wide,
that there were several points of contact between the accumulations and the belt, that two rollers
were completely impacted by coal, that eight rollers, some in the tail area, were seized, and that
some accumulations had dried out due to frictional contact and, therefore, were combustible.
Accordingly, I conclude that Peabody violated section 75.400.
B. Gravity
The Secretary argues that, given the realistic potential for fire to occur, the violation was
S&S. Sec’y Br. at 23-25. Peabody maintains that an ignition was unlikely to occur because of the
wet conditions in the mine and absence of methane, and further, that its active cleanup was
interrupted by Allen. Resp’t Br. at 36-37.
The fact of violation has been established, satisfying the first Mathies criterion, and the
discrete safety hazard against which section 75.400 is directed is fire or explosion contributed to
by accumulations of combustible materials.
The evidence establishes that beltline attendant Aaron Thrasher was assigned to clean the
tail area at the beginning of March 11 day shift, but was delayed because the skid steer was
down, and that he was repairing it with dewater supervisor Johnathan Aaron when the inspection
started. Ultimately, Thrasher went to the tail area to clean without a functioning skid steer. While
Allen did not see any cleaning underway in the tail area, I credit that Thrasher was spraying
under the belt when the inspection party reached the area, and that he stopped cleaning at Earl’s
direction. Notably, it took 10 miners, cleaning with hoses and mobile equipment through the day,
evening, and owl shifts, to remove the accumulations. Accordingly, based on Peabody’s scanty
allocation of manpower and mobile equipment for cleanup prior to issuance of the order, I find
that the accumulations would have existed in the context of continued normal mining. Despite
Shoal Creek’s gassy nature, there is no evidence that methane was liberated in the cited area.
However, based on the evidence of extensive accumulations in contact with the belt and rollers,
multiple seized and impacted rollers, and accumulations drying out due to frictional contact, I
find that the coal accumulations contributed to the reasonable likelihood of a fire in the mine,
and that the second Mathies criterion has been satisfied.
The evidence also establishes that in the event of a mine fire, at the very least, the fulltime miner stationed at the tail area would be exposed to smoke-filled air. Moreover, fire burning
in the underground coal mine would present a serious risk of smoke and gas inhalation, resulting
in injuries of a reasonably serious nature, satisfying the third and fourth Mathies criteria. See
Buck Creek, 52 F.3d at 135-36; see also Black Diamond, 7 FMSHRC at 1120. Accordingly, I
find that this violation was S&S.
C. Unwarrantable Failure and Negligence
In support of the unwarrantable failure designation, the Secretary asserts that the
accumulations were extensive, obvious, and highly dangerous, that they had existed for at least
11 shifts preceding inspection, that Peabody had knowledge of the condition, that its efforts to

42 FMSHRC Page 829

abate it were inadequate, and that it was on notice that greater efforts were necessary for
compliance. Sec’y Br. at 25-29.
Peabody contends that the unwarrantable failure designation is inappropriate because the
accumulations in the North Main No. 1 belt entry, noted in the March 8 owl pre-shift report,
were cleaned during the next evening shift and recorded as non-hazardous in the pre-shift report,
then partially cleaned during March 9 owl shift, and fully cleaned during March 11 owl shift.
Resp’t Br. at 38-41. Peabody also maintains that the cited accumulations were new, having
existed for less than a shift, that they were not extensive, and that it was not on notice that greater
efforts for compliance were required. Resp’t Br. at 40-42.
The evidence establishes that coal accumulations, rib-to-rib, spanning an area from
around crosscut 20 to crosscut 22 ½, were in contact with the belt and rollers, that two rollers
were completely impacted by them, that multiple rollers, some in the tail area, were seized, and
that some of the accumulations had dried out. This extensive and obvious condition created a
serious risk of ignition, and was highly dangerous. These are aggravating factors.
Examination records indicate that the accumulations in the North Main No. 1 belt entry
tail area began on Thursday, March 7 evening shift and continued throughout the weekend, and
that some cleaning in the tail area had occurred during March 8 evening, and March 9 and 11
owl shifts. Foreman Chris Robertson’s testimony that the tail area was completely cleaned on
March 11 owl shift is undercut by the extensiveness of the coal accumulations in contact with the
belt and rollers, the rollers completely impacted with coal, and the seized rollers that the
inspection party encountered later that morning, a condition reasonably likely to have developed
over several shifts. Moreover, if accumulations are commonplace in the tail area, as Peabody
contends, one full-time miner stationed there would seem reasonable to monitor them, but would
constitute insufficient manpower to keep them in check. In light of the credible observations of
the accumulations and the evidence as a whole, I find that the area was not completely cleaned
during March 11 owl shift, and that what did occur did not even put a dent in the condition.
Nevertheless, crediting Peabody’s assertion - - that the condition was not hazardous for the better
part of the weekend when the belt was not running - - does not negate that it became hazardous
when it was not fully abated before production resumed on March 11 owl shift. Accordingly, I
find that the accumulations existed, to varying degrees, since March 7 evening shift until the
inspection on March 11 day shift, and that Peabody was aware of it, both aggravating factors.
The evidence indicates that some cleaning in the North Main No. 1 belt entry had
occurred during multiple shifts on March 8, March 9, and March 11, and that Thrasher had been
spraying under the tail without any mobile equipment when the area got inspected. Notably, it
ultimately took 10 miners, cleaning with hoses and mobile equipment over a period of three
shifts, to terminate the order, a sizeable work crew compared to the lone miner hosing the area.
Accordingly, I find that Peabody’s efforts fell far short of what was required to abate the
hazardous condition, and this is an aggravating factor.
The Commission has emphasized 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.” San Juan Coal, 29 FMSHRC at 131 (quoting Consolidation

42 FMSHRC Page 830

Coal, 23 FMSHRC at 595); see also Amax Coal, 19 FMSHRC at 851. Shoal Creek Mine had 131
section 75.400 violations in the past two years and, although Peabody took control of the mine
on December 4, 2018, at the time of this order, 20 section 75.400 violations had been issued
directly to Peabody. Exs. P–10, P–16 at 6-7, 21. Additionally, Allen had tried to assist
management in preventing coal accumulations during prior inspections, and the record
establishes that shift foremen Chris Robertson and Mike Earl had also worked at Shoal Creek
under the prior ownership. Accordingly, I find that Peabody was on notice that greater efforts for
compliance with this standard were necessary, another aggravating factor.
After considering these aggravating factors, I conclude that Peabody exhibited a high
degree of negligence, and that this violation was the result of its unwarrantable failure to comply
with the standard.
IV. Penalties
While the Secretary has proposed a total civil penalty of $76,061.00, the judge must
independently determine the appropriate assessment by proper consideration of the six penalty
criteria set forth in section 110(i) of the Mine Act:
(1) the operator's history of previous violations; (2) the
appropriateness of the penalty to the size of the business of the
operator; (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) whether good faith was demonstrated in
attempting to achieve prompt abatement of the violation.
30 U.S.C. § 820(i); See Sellersburg Co., 5 FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d
1147 (7th Cir. 1984). Additionally, the Commission has recognized the difference between
regularly and specially assessed proposed penalties, requiring that judges explain divergences
from regularly assessed penalties but not those specially assessed, and avoid using special
assessments as anchoring points in setting penalties. Solar Sources Mining, LLC, 42 FMSHRC
181, 190-202, 198 n.25 (Mar. 2020); see also American Coal Co., 933 F.3d 723, 727 (D.C. Cir.
2019) (explaining that the Secretary is under no obligation to “prove” his decision to propose a
special assessment rather than a regular assessment).
Two of the three charges in this proceeding involve serious accumulations violations.
While the Secretary has based his proposed penalty for the violation in the H-2 belt entry on
application of his Part 100 penalty points, the proposed penalty for the arguably similar violation
in the North Main No. 1 belt entry has been specially assessed. One plausible explanation for this
difference in approach is that the 104(d)(1) citation in the H-2 belt takeup area preceded the
104(d)(1) order in the North Main No. 1 tail area by a mere three months, clearly placing
Peabody under heightened scrutiny to prevent recurrent violations.
Applying the Sellersburg penalty criteria, and based on a review of MSHA’s online
records, I find that Peabody is a large operator. The record also indicates that Peabody
demonstrated good faith in achieving rapid compliance after notice of the violations, and

42 FMSHRC Page 831

consideration of the Assessed Violation History Reports follows for the one citation and two
orders. The parties have stipulated that imposition of the proposed penalties will not adversely
affect Peabody’s ability to remain in business. Jt. Stip. 6. The remaining criteria involve
consideration of the gravity of the violations, and Peabody’s negligence in committing them,
factors that have already been discussed fully. Therefore, considering my findings as to the six
penalty criteria, the penalties are set forth below.
1. Citation No. 9136082 (SE 2019-0075)
It has been established that this S&S violation was reasonably likely to cause an injury
that could reasonably be expected to result in lost workdays or restricted duty, and that it was
caused by Peabody’s high negligence and unwarrantable failure to comply with the standard. In
the fifteen-month period preceding issuance of this citation, 87 violations of section 75.400
issued to Shoal Creek became final orders of the Commission. Ex. P–16 at 10, 19, 21. Because of
the overlap in Drummond and Peabody management when Shoal Creek ownership changed
hands, as well as evidence that accumulations violations were problematic at the mine and the
cited area was prone to accumulations, I find the violation history aggravating. The Secretary has
proposed a regularly assessed penalty of $3,161.00 for this serious violation. Applying the civil
penalty criteria, I find that a penalty of $7,500.00 is appropriate.
2. Order No. 9136320 (SE 2019-0146)
It has been established that this S&S violation was reasonably likely to cause an injury
that could reasonably be expected to result in a fatality, and that it was caused by Peabody’s high
negligence and unwarrantable failure to comply with the standard. In the fifteen-month period
preceding issuance of this order, 12 violations of section 75.380(d)(1) issued to Shoal Creek
became final orders of the Commission. Ex. P–16 at 6-7, 21. Because of the overlap in
Drummond and Peabody management when Shoal Creek ownership changed hands, I find the
violation history aggravating. The Secretary has specially assessed a penalty of $57,700.00 for
this serious violation. Applying the civil penalty criteria, I find that a penalty of $38,500.00 is
appropriate.
3. Order No. 9136341 (SE 2019-0146)
It has been established that this S&S violation was reasonably likely to cause an injury
that could reasonably be expected to result in lost workdays or restricted duty, and that it was
caused by Peabody’s high negligence and unwarrantable failure to comply with the standard. In
the fifteen-month period preceding issuance of this order, 88 violations of section 75.400 became
final orders of the Commission. Ex. P–16 at 10, 19, 21. Because of the overlap in Drummond
and Peabody management when Shoal Creek ownership changed hands, along with the recent,
serious accumulations violation in the H-2 belt entry and MSHA’s emphasis on accumulations
prevention at the mine, I find the violation history aggravating. The Secretary has specially
assessed a penalty of $15,200.00 for this serious violation. Applying the civil penalty criteria, I
find that a penalty of $15,000.00 is appropriate.

42 FMSHRC Page 832

ORDER
WHEREFORE, it is ORDERED that Citation No. 9136082, and Order Nos. 9136320
and 9136341 are AFFIRMED, as issued, and that Peabody Southeast Mining, LLC, PAY a civil
penalty of $61,000.00 within 30 days of the date of this Decision.8 ACCORDINGLY, these
cases are DISMISSED.

/s/ Jacqueline R. Bulluck
Jacqueline R. Bulluck
Administrative Law Judge

Distribution:
Emily Roberts, Esq., & Christopher M. Smith, Esq., U.S. Department of Labor, Office of the
Solicitor, 618 Church Street, Suite 230, Nashville, Tennessee 37219
Roberts.Emily.O@dol.gov; Smith.Christopher.M@dol.gov
Arthur Wolfson, Esq., Fisher & Philips, LLP, Six PPG Place, Suite 830, Pittsburgh,
Pennsylvania 15222
awolfson@fisherphillips.com

8

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

42 FMSHRC Page 833

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER, SUITE 290
875 GREENTREE ROAD
PITTSBURGH, PA 15220
TELEPHONE: 412-920-7240 / FAX: 412-928-8689

October 21, 2020
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 2019-0100
A.C. No. 36-07230-490127

v.
CONSOL PENNSYLVANIA COAL CO.,
LLC,
Respondent.

Mine: Bailey Mine

AMENDED DECISION AND ORDER1
Appearances:

John M. Strawn, Esq., & Kenneth J. Polka, CLR, Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania, for the Secretary
of Labor
Patrick W. Dennison, Esq., Fisher & Phillips, LLP, Pittsburgh,
Pennsylvania, for the Respondent

Before:

Judge Lewis

STATEMENT OF THE CASE
This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (the “Act” or “Mine Act”). A hearing was held in Pittsburgh, Pennsylvania. The parties
subsequently submitted briefs which have been fully considered in reaching the within decision.
LAW AND REGULATIONS
Section 314 (b) of the Act and Section 75.1403 of the Regulations provide:
Other safeguards adequate, in the judgment of an authorized representative of the
Secretary to minimize hazards with respect to transportation of men and materials
shall be provided.

1

This order has been amended to include the technical citation numbers associated with
the safeguards at issue herein.

42 FMSHRC Page 834

Section 75.1434 Retirement Criteria provides:
Unless damage or deterioration is removed by cutoff, wire ropes shall be removed
from service when any of the following conditions occurs:
(a) The number of broken wires within a rope lay length, excluding filler wires,
exceeds either—
(1) Five percent of the total number of wires; or
(2) Fifteen percent of the total number of wires within any strand;
(b) On a regular lay rope, more than one broken wire in the valley between
strands in one rope lay length;
(c) A loss of more than one-third of the original diameter of the outer wires;
(d) Rope deterioration from corrosion;
(e) Distortion of the rope structure;
(f) Heat damage from any source;
(g) Diameter reduction due to wear that exceeds six percent of the baseline
diameter measurement; or
(h) Loss of more than ten percent of the rope strength as determined by nondestructive testing.
FINDINGS OF FACT AND CONCLUSION OF LAW
The findings of fact are based on the record as a whole and the undersigned’s careful
observation of the witnesses during their testimony. In resolving any conflicts in the testimony,
the undersigned has taken into consideration the interests of the witnesses, or lack thereof, and
consistencies, or inconsistencies, in each witness’s testimony and between the testimonies of the
witnesses. In evaluating the testimony of each witness, the undersigned has also relied on his
demeanor. Any failure to provide detail as to each witness’s testimony is not to be deemed a
failure on the undersigned’s part to have fully considered it. The fact that some evidence is not
discussed does not indicate that it was not considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th
Cir. 2000) (administrative law judge is not required to discuss all evidence and failure to cite
specific evidence does not mean it was not considered).
JOINT STIPULATIONS
1. The Bailey Mine (“Mine”) is subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977 (“Act”).
2. The Mine is owned and operated by Respondent, Consol Pennsylvania Coal
Company, LLC.
3. The presiding Administrative Law Judge has jurisdiction over the abovecaptioned proceedings pursuant to Section 105 of the Act.
4. The parties stipulate to the authenticity of their exhibits, but not to the relevance
or truth of the matters asserted therein.

42 FMSHRC Page 835

5. The subject citations and safeguards were served by a duly-authorized
representative of the Secretary upon agents for Respondent on the dates and
times and the placed stated therein.
6. Respondent demonstrated good faith in abating the alleged conditions after the
issuance of the safeguards and citations.
7. The penalties proposed on the Exhibit A attached to the Petition for Assessment
for Citation Nos. 9076455 and 9076456 are incorrect. The Petitioner agreed to
reduce the gravity of the citations to no likelihood, no lost workdays, non-S&S,
and also the negligence to none at a pre-penalty settlement conference. The
proposed penalties should have been $135 for each citation. The mine tonnage,
controller tonnage and number of violations represented in the Exhibit A
attached to the Petition for Assessment are correct.
8. Payment of the total proposed penalty of $270 in this matter will not affect
Respondent’s ability to continue in business.
T. 4-62
SUMMARY OF TESTIMONY
WITNESSES
Joseph A. Vargo
At the time of hearing, Inspector Vargo had worked for MSHA for over 12 years. T. 13.
He initially worked as a coal mine inspector and later in 2012 had been working as an electrical
specialist. Prior to working for MSHA, Vargo had worked as a coal miner for approximately 30
years.3 T. 14.
Inspector Vargo had issued a technical citation to Respondent arising from Vargo’s
issuance of a safeguard (No. 9076448) in connection with unsafe conditions observed at the
operator’s slope track and hoist on August 13, 2018. T. 15-18; see also P-1.
Inter alia, Vargo had noted a wear pad on the slope that had been worn down
approximately one and three quarters inches. T. 17.

2

“T” refers to the hearing transcript. “P” refers to the Secretary’s exhibits. “R” refers to
Respondent’s exhibits. “SB” refers to Secretary’s post hearing brief and “RB” refers to
Respondent’s post hearing brief.
3

See T. 13-15 for detailed description of Vargo’s mining experience and specialized
certifications.

42 FMSHRC Page 836

The purpose of the wear pads was to keep the hoist rope from coming into contact with
anything that could cause damage to the rope. T. 19. The slope hoist rope should not come into
contact with any abrasive material such as gravel, rock, slate, or coal that would cause it damage.
T. 20. Excessive wear of the wire rope could lead to the potential of the rope breaking, sending
anyone in the car to the bottom at an excessive rate of speed. T. 21-22.
The regulations require that non-destructive testing of the rope—either through
measurements or x-rays—be performed every six months. T. 22. The concern is that, during the
six month interval, broken wires or metallic loss might not be detected by visual examination. T.
23.
At hearing, photographs were admitted into evidence, which depicted wear on the slope
pads in August 2018, leading to the safeguard in question being issued. T. 23-28; P-5.
There were approximately 100 wear pads on the slope track, which had a 14-degree
grade. T. 29, 44. Water could get into the valleys of the steel hoist rope, causing corrosion. T. 29.
There were numerous escalation reports indicating the rope was either kinked or damaged. T. 30;
see also P-9. Photographs of the hoist rope, taken in August 2018, revealed what appeared to be
broken wires in the middle of the rope. T. 32; see also P-5. Photographs also revealed the rope
being in contact with coal, and slate/rock mixture. T. 33; P-5. Materials on the tracks during the
hoist lowering or raising could cause brake damage and loss of control. T. 39-40. Someone not
riding in a car could be exposed to a slip and fall hazard. T. 41.
On cross-examination, Inspector Vargo agreed that he had no experience working on
hoists prior to coming to MSHA. T. 45. He also testified that he had never worked on a hoist
slope during his MSHA career. T. 45. His training regarding hoists came from a ½ day training
at the mining academy and annual refresher training. T. 46.
Vargo had not issued any safeguards between 2007 and August 2018. T. 27. The
safeguards at issue were his first issuances. T. 47.
In order to issue a safeguard there must be an actual hazard with respect to the
transportation of men and materials and the hazard must not already be covered by a mandatory
safety standard. T. 47-48.
Vargo had found the hazard associated with Safeguard No. 9076448 to involve damage
and wear to the slope rope. T. 48. He testified that wear pads were cut through or missing. T. 48.
There was contact with steel grating, and trough rollers were not turning. T. 48. There was
metallic loss and distortion found in the rope. T. 48.
Vargo found that the hoist rope was compliant with the mandatory standards addressing
hoist rope retirement criteria on August 7, 2018. T. 51.
A hoist rope, pursuant to § 75.1434, must be removed from service when the number of
broken wires within a rope lay length, excluding filler wires, exceeds 5% of the total number of
wires, or 15% of the total number of wires within any string. T. 52. Also pursuant to § 75.1434, a

42 FMSHRC Page 837

rope must be retired or reterminated if its diameter reduction exceeds 6% of the initial baseline.
T. 53.
Vargo had not issued a citation under § 75.1434 (h) because the standard specified a loss
of more than 10% of rope strength and the rope strength loss was not as yet beyond 10%. T. 55.
Vargo testified that a hazard existed, even though the slope rope was still compliant with
the standard, because the rope “was right at the borderline.” T. 56. One more trip could have put
it over the borderline. T. 56. Everything that the rope was in contact with was abrasing the wire,
the hoist rope. T. 56.
Although Vargo had recommended that wear pads be replaced, he did not record such in
his notes. T. 58.
Wear pads were approximately 24” by 24” by 2” thick. T. 59. In his August 15, 2018
citation, Vargo noted a wear pad worn down to 1 ¾”. T. 59; see also P-2. Vargo had not recorded
in his notes that he had observed that 50-60 wear pads were worn or missing. T. 60. He had been
told of such by a mine foreman. T. 60. Vargo himself had taken no measurements of the pads. T.
61.
Vargo had not inspected the slope on August 7, 2018. He had inspected the slope hoist,
the brakeman car, the slope hoist building, and the remote hoist building. T. 61-62.
MSHA had not published any directives as to when wear pads should be replaced. T. 64.
A wear pad that was worn down one and three quarter inches would not be serving its function.
T. 64. The photographs in Exhibit P-5 depicted the slope rope as it looked when it was not in
operation. T. 65.
Vargo agreed that the slope rope would be exposed to rain and snow at times. T. 72. He
believed that the two furthest trough rollers inby receive the most stress. T. 73. However, he
conducted no further inquiry to determine whether this was so. T. 73. He further had not
determined how much, if any, the two static rollers contributed to slope rope deterioration. T. 74.
There was no mention of the slope rope contacting concrete in the safeguard or Vargo’s
notes. T. 78.
Exhibit P-8 contained reports of the slope hoist being down for more than 30 minutes.
Vargo agreed that the March 9, 2018 report concerning braking system lock-up had nothing to do
with rope deterioration. T. 78-79. Another report indicating that the hoist had gone down also
was not associated with slope rope issues. T. 79; P-8, 3. Vargo further agreed that a kink in a
hoist rope could happen to a new rope. T. 80.
On August 13, 2018, Vargo determined that the entire length of the rope contacted
material, rock, coal, slate, gravel, and water. T. 85. Vargo further stated that this was not unusual
for a slope rope. T. 86.

42 FMSHRC Page 838

As to Safeguard No. 9076449, Vargo had observed mine supplies along the slope. He did
not know whether any of the material actually contacted the slope car. T. 87; P-4. He had seen
some material in the middle of the track contacting the rope but had not noted such in the
safeguard. T. 87. Although he slipped on a roof plate while walking the slope, he had again not
noted such in the safeguard. T. 88-89. Vargo agreed that no one regularly walked the slope. T.
89. He further agreed that, provided supplies were against the rib and not contacting the slope
car, they would not create a clearance issue or hazard. T. 89-90.
In reference to the summary of safeguards, Vargo agreed that there was no written
explanation as to what requirements were called for in order to have “properly maintained” wear
pads and rollers under Safeguard No 9076448. T. 91-92; R-18. The “above mentioned material”
in the safeguard referred to slate, rock, gravel, mud, coal, and water. T. 92. Vargo again agreed
that having supplies pushed against the rib in the slope, which did not contact the slope car
would not be a violation of Safeguard No. 9076449. T. 93. Vargo further agreed that an
individual walking up the slope belt would have a handrail to hold onto. T. 95.
On redirect Vargo further clarified that mine operators are provided with the full text of
safeguards that have been issued and not just the summary of safeguards as contained in R-18. T.
96.
Slope wear pads are not doing their jobs if they don’t keep the hoist rope off the ground
and from contact with other materials. T. 97.
At the time of Vargo’s hoist rope inspection in August 2018, Bailey Mine’s next nondestructive test (“NDT”) was scheduled for October 2018. T. 98. Vargo, however, agreed the
mine operator changed or reterminated portions of their ropes between the times of the
mandatory six month non-destructive tests. T. 99. He additionally agreed that Baily Mine
conducted daily visual rope exams that included the hoist rope. T. 99.
Michael Snyder
At the time of hearing, Michael Snyder had worked for MSHA for 33 years. T. 103.
He described various photographs taken at Bailey Mine on August 17, 2018, contained in
Exhibit P-5. T. 104. These included: the hoist rope (P-5, 1 and 2); the rear of the brakeman car to
which the hoist rope was attached (P-5, 3); the hoist rope running through debris (P-5, 4); the
hoist rope drum (P-5, 5); wear pads covered with debris (P-5, 6); another photo of the rope from
a longer perspective, running on top of the cross ties (P-5, 7); another view of the rope cutting
through the wear pads into the dirt (P-5, 8). T. 104-108.
The rope was 1 5/8” in diameter and the wear pads about 2” thick. T. 108. A nondestructive examination was taken of the rope at the worst section T. 108. The non-destructive
test was “right at ten percent loss of metallic area.” T. 108. Three physical diameter
measurements were “right at approximately six percent.” T. 108.

42 FMSHRC Page 839

The hoist rope diameter measurements had been taken “at the worst spot” of 1.572, 1.571
and 1.572—1.571 being the smallest diameter reading. T. 110; see also P-6. By dividing 1.71 by
1.67, there was found to be a 5.93% diameter reduction.4 T. 110. Any reduction exceeding 6%
met the regulation retirement criteria. T. 110. While the diameter had not yet exceeded the
regulation, “it was right at the edge.” T. 110.
There had been a non-destructive test performed on April 21, 2018—about one month
after the rope had been installed. T. 111. Given that the next scheduled 6-month examination was
set for October 21, 2018, and the inspection at-issue was on August 7, 2018, it would be 6 weeks
before the hoist rope would have been examined again. T. 111.
Lubrication allows the hoist rope wires to “move freely around.” T. 111. Exhibit P-5
contained a photograph taken on August 7, 2018 of the spool showing a dry rope. T. 111-112.
Areas having lubrication would appear darker. T. 113.
Exhibit P-7 contained the memo sent to the district manager of the Mine Safety and
Health Administration Russell Riley by Snyder, detailing the August 7, 2018 non-destructive test
findings. T. 114. Based on his observations and testing, Snyder recommended that more frequent
non-destructive examinations be conducted—every 4 months rather than 6-month intervals. T.
115.
On cross-examination Snyder agreed that there were no violations or hazards found in
respect to the hoist rope on August 7, 2018. T. 119-120.
In determining whether there is diameter reduction exceeding six percent of the baseline
diameter measurement, pursuant to § 75.1434 (g), calipers could be used. T. 120-131. The hoist
rope strength was “right at the limit” but “compliant” within the limits of § 75.1434 (h). T. 122.
The hoist rope also did not meet the broken wires retirement criteria contained in § 75.1434 (a).
T. 124. If a non-destructive test reveals more than a 10% loss of rope strength or a distortion of
rope structure, the entire rope may not require changing out, but instead only require a
retermination.5 T. 125.
Snyder was not aware that the operator reportedly conducted a daily examination of the
hoist rope. T. 126-127. He agreed that approximately 350 feet of hoist rope was reterminated on
August 7, 2018. T. 129. The rope itself was approximately 3,000 feet long. The rope (after the
retermination) was not changed out in entirety. T. 130. Snyder had recommended wear blocks be
installed to keep the hoist rope off the ground between the head shiv and the top of the slope. T.
131-132. Snyder was not aware of any criteria for determining whether a wear pad is worn out.
T. 132. Nor was he aware of anything published by MSHA in reference to such. T. 132-133. The
wear pads protect the rope by allowing the rope to cut through them. T. 133. Until the rope cuts
4

The Transcript erroneously states the diameter reduction as 1.71 in one instance, where
it should read 1.571. T. 110
5

A retermination was described as when one takes a portion of the rope and installs a
new portion to the existing rope with zinc oxide. T. 125.

42 FMSHRC Page 840

the pad in two, the rope remains off the ground and does not sustain additional abrasion which
would accelerate its wear. T. 133.
When the slope rope is in actual operation, the tension in the rope would be different. T.
135. As the conveyance travels down the slope, the rope tension is going to increase by the
weight of the rope that travels down the slope. T. 136.
Snyder disagreed that the life of a slope rope depended upon factors that included its
frequency of use. T. 137. If the rope hoist is properly maintained, “it lasts longer.” T. 137.
Snyder was not present at Bailey Mine on August 13, 2018, when Vargo conducted the
inspection that resulted in the issuance of the August 15, 2018 safeguard. T. 138.
When the hoist rope was reterminated, it was still in compliance but close to meeting the
retirement criteria. T. 139. Both old and new ropes can develop kinks, especially when they are
abused or mishandled. T. 139-140.
Snyder’s degree was in mine engineering, and he testified that he was neither a structural
steel engineer nor a civil engineer. T. 141. Mine engineering did not specifically teach students
about wire rope. T. 141.
Visual examination of a rope hoist can reveal clusters of broken wires, inadequate
lubrication, deformation to the rope. T. 142. Snyder noted no reported hazards in the
Respondent’s log book following the operator’s last 14-day examination on March 29, 2018. T.
142-143.
Snyder did not have the authority to issue citations. T. 143. The multiple areas of concern
regarding the hoist rope motivated Snyder to advise the operator to remove a portion of the rope.
T. 144.
In reference to the safeguard at Exhibit P-2, Snyder observed some of the same
conditions on August 7, 2018. T. 144. Anything that adds friction to the rope—as it is observed
dragging through rock, gravel, slate, and coal—is going to accelerate its wear. T. 145. Snyder did
not believe that as the rope moves down the slope, more tension would be created on the wear
pads or rollers. T. 146. The tension would be constant. T. 146. To perform the electromagnetic
test, the rope would need to be in motion. T. 146.
Prior to his August 7, 2018 inspection Snyder clarified that the last 14-day test would not
have been conducted as early as March. T. 147.
Snyder had visited Baily’s slope and other coal mine slopes in the past and had observed
coal and rock going down the slopes. T. 147. He also agreed that the slope was exposed to
outside elements, including rain and snow. T. 148.

42 FMSHRC Page 841

Craig Elson
Craig Elson worked for Consol Energy at the Crabapple Portal and had done so for
approximately 18 years. T. 152. At the time of hearing, he worked as assistant master mechanic,
overseeing underground and surface maintenance. T. 152.6
A slope hoist is used to haul material in and out of a coal mine. T. 155. In case of an
elevator malfunction, a hoist can also be used to transport individuals. T. 156. The slope hoist at
the Crabapple Portal is operated by a hoistman. T. 156. Different types of cars are loaded with
supplies. T. 156. They will then be hoisted through the track switch, taken off the hoist car and
delivered to where needed throughout the coal mine. T. 156. The hoist rope is attached to a
brakeman car; supply cars are coupled to the brakeman car.7 T. 156.
The total length of rope at the Crabapple Portal is 3,000 feet. T. 157. From the pit mouth
to slope bottom is approximately 1600 feet to 1800 feet.8 T. 157. The slope rope is attached to a
drum; the drum winds or unwinds causing the supplies to be dropped or raised.9 T. 157-158. All
the cars, including brakeman car and supply car, are on a track. T. 157.
When Elson worked as a surface electrician, he would line up hoist rope tests, including
non-destructive tests, 30-day tests, 60-day tests conducted by Frontier-Kemper. T. 158. He was
also involved with any of the examinations involving the rope and hoist. He would address any
breakdowns with the rope or car, drum room electrical issues, verbal frequency driver operation,
and any communication problems from the top to the bottom of the slope. T. 158.
Sensors (called “tags”) are placed at the pit mouth and near the bottom of the slope and
on top of the brakeman car so that the exact location of the car based upon a mathematical
footage calculation can be determined. T. 158-159.
The hoist operator has a computer in front of him containing the location information. T.
159. There is another computer at the main hoist house containing the same information. T. 159.
Elson did not escort the inspector on the date the safeguard (P-2) was issued. T. 160.
Kevin Wilson, now retired, had done so. T. 160. Elson was working on August 7, 2018, when the
hoist rope was examined by MSHA tech support. T. 160. A caliper is used to determine whether
there is diameter loss exceeding 6% of the baseline. T. 161. Not every rope is identical in
diameter size, there being a few tenths of difference between various ropes. T. 162.

6

See TT 152-155 for other mining positions held and certifications received.

7

A brakeman car is used to hoist individuals. T. 156.

8

Pit mouth “is the opening in the earth where you go from surface to underground in the
beginning of the tunnel on your 22 degree decline into the coal mine.” T. 157.
9

The drum is also called a “drum room.” Tr. 157-158.

42 FMSHRC Page 842

The hoist rope, when examined on August 7, 2018, was not beyond the retirement
criteria. T. 163. MSHA did not issue any citations on August 7, 2018. T. 163. After the August 7,
2018 inspection Consol took out 350-foot of the rope that was approaching retirement criteria.10
T. 163. The rope was earlier changed on December 14, 2017, and March 29, 2018. T. 163-165;
see also R-1.
A non-destructive test was also performed in April 2018 by a subcontractor, Evergreen.
T. 166; see also R-2. In conducting the NDTs, Evergreen utilizes a two-piece machine placed
around the hoist rope. T. 167. The hoist car is run at a set speed; the rope is x-rayed twice, once
down and once back. T. 167.
A review of Evergreen’s certificates of inspection from April 23, 2016, through April 21,
2018, did not reveal that the Baily Crabapple slope rope had, at any point, met the retirement
criteria. T. 168; R-2. The rope, however, was reterminated or changed between the nondestructive test dates. T. 168-169. Rope changes would be required in order to maintain three
wraps on the drum: a 3,000 foot rope can be reterminated only so many times to stay within
those specs to have the required number of wraps. T. 169. Some of the reasons for retermination
or changing the ropes would be kinks, deformation and broken strands. T. 169.
In addition to the 6 month NTDs, Consol conducts a visual examination of the hoist rope
every 14 days during which the hoistman inspects the entire length of the cable for any kind of
deformation or broken strand. T. 169. The hoistman also visually examines the hoist rope every
24 hours. T. 170-171; see also R-3.
Additionally, there is a weekly permissibility examination performed, during which
mechanics check all the safeties, connection points of the rope, anything electrical with the
brakeman car itself, including brakes, lights, and batteries. T. 171-172; see also R-4.
During the examination of the slope car, “all the safeties” are checked. T. 172. The
brakes are engaged to verify that they all set properly; batteries are checked for voltage; all lights
and communications are checked. T. 172. The operator also checks for overspeed, mismatched
speed, roll back.11 T. 172; see also R-4.
Once a shift before the hoist is operated, a hoistman also conducts an examination. T.
173-174; see also R-5. He checks the car brakes, the connection point of the rope—“basically
just making sure everything is in safe operating condition.” T. 174.
If during the daily slope car checklist a deficiency is found, the car would be taken out of
service and MSHA would be notified of such by the shift supervisor. T. 175.
Referring to Safeguard 9076448, wherein it was reported that the wear pad that the slope
rope hoist rides on top of was worn down approximately 1 ¾”, Elson noted that the wear pads at
10

Ketchum Construction, a subcontractor, actually performed the work. T. 163.

11

For example, if the hoist rope would break, the car would go into overspeed. The
brakes would be locked to the rail, avoiding a runaway car. T. 172-173.

42 FMSHRC Page 843

Bailey Mine were sometimes 2” thick and sometimes 2 ½” thick. T. 176. There are
approximately 80 wear pads on the slope, which are designed to protect the rope. T. 176. Due to
undulations in the mine floor, pads do not wear out at the same rate. T. 176-177. Rope tension
also affected pad wear. T. 177. A fully loaded train with seven cars caused a higher tension on
the rope than a brakeman car alone which could have sags in the rope. T. 177.
When a wear pad became worn through at Bailey Mine, it was either changed out or
turned 90 degrees. T. 178. By turning the pads diagonally, double life could be gotten out of one
pad. T. 178. Elson estimated that during his approximate six years as electrical supervisor on the
surface, there were at least six occasions when the pads were turned or changed out. T. 178.
Elson discussed the two trough rollers, approximately 40 feet inby the slope track
opening, that were reported to not be turning. See also Safeguard No. 9076448. There were
seven trough rollers at the pit mouth, a couple outside the pit mouth and a few more inby the
mouth. T. 178-179. The trough rollers were used to keep the rope over the knuckle. T. 179. The
slope track was approximately 22 degrees. T. 179. The actual slope track on the surface before
getting to the pit mouth opening was less. T. 179. During the transition over the crest, the trough
rollers held the rope up off the surface, “concrete material or whatever.” T. 179. Rollers are made
of steel and are exposed to the weather. T. 179. They are subject to “wash back”: water gets on
the belt; coal is loaded onto the water; as it starts up the slope, the water will wash the coal
backwards and make a “mess.” T. 179-180.
Elson opined that the rollers at Crabapple Portal were not subject to the same wear or
tension. T. 180. The third trough roller would take the most pressure or force. T. 181. On August
13, 2018, this roller was turning. T. 181. The two inby rollers, which were reported in the
safeguard not to be turning, were numbers six and seven out of seven total rollers. T. 181.
The slope hoist rope does sometimes come into contact with gravel, rock, slate, mud,
coal, and water—as reported in the safeguard. T. 181. While the operator does its best to prevent
such contact, there is approximately 300 feet of cable exposed to the weather at all times. T. 181.
Elson disagreed with the assertion in the safeguard that the hoist rope had been removed
from service “multiple times” for excessive wear. T. 181-182; see also P-2. On two occasions a
non-destructive test was conducted. T. 182. Although the rope was below the retirement age, it
was decided to change it out. T. 182. This was not done because of excessive wear; the majority
of time it was “for kinks in the rope, distortion.” T. 182.
In reference to Safeguard No. 9076449 noting various mine supplies on both sides of the
tracks (P-4), Elson did not know of any material contacting the slope car as it dropped down. T.
182. Nobody normally walked the hoist slope. T. 182-183. If for whatever reason, one were to
walk out of the mine, one would use the slope belt rather than the slope track because of the high
velocity of air coming down the slope track—over 9,000 CFM. T. 183-184.
Elson disagreed that having mine supplies in the slope entry constituted a hazard. T. 184.

42 FMSHRC Page 844

In reference to the wear pads depicted in the final photograph in P-5, Elson agreed that
these pads were rectangular in shape and would have to be changed out—unlike the square wear
pads on the slope. T. 185. Elson further agreed that a second rectangular wear pad depicted in the
P-5 final photograph would require replacement. T. 186.
If wear pads are covered with material and the rope is dragging through the material the
wear pad is not serving its purpose. T. 186; see also P-5. The examination reports in R-1
disclosed the need to replace the hoist rope before six months had elapsed. T. 188. A non-turning
roller would add more frictional wear than a turning roller. T. 188-189.
There are three LED lights that face the track and route which, in combination with cap
lights, aid visibility at night. T. 192-193. However, Elson conceded that the nighttime darkness
on midnight shift would affect visibility. T. 190; see also R-3. The escalation reports, where
problems were noted, all came during daylight hours rather than midnight hours. T. 191.
Elson did not possess a hoistman card or a hoistman certification nor had he ever
physically worked on wire ropes. T. 189.
Usage of the slope rope would affect its life. T. 192. The rope changes reported in R-1
were between NDTs, establishing the operator was not only changing the rope when a NDT was
performed. T. 192.
Michael Tennant
Michael Tennant had worked for Respondent for approximately 20 years, being
employed at Baily Mine for 18 years.12 T. 194. Tennant had been working as a safety supervisor
for Baily Mine in August 2018. T. 195.
Exhibit P-1 was a technical violation issued in response to a letter submitted to District
Manager Russell Riley in connection with the safeguard issued on August 13, 2018. T. 196.
Exhibit P-3 was a similar technical citation for a different safeguard issued on August 13, 2018.
T. 197.
Tennant was aware that Inspector Vargo intended to inspect the Crabapple slope, hoist,
and rope on August 13, 2018. T. 197. He discussed Vargo’s issuance of the safeguards and
conveyed his disagreement with such. T. 198.
Exhibit R-7 was a list of dates that Tennant reported to MSHA that Crabapple hoist had
been down in 2016, 2017, and 2018. T. 200. Tennant had created the document to rebut the
safeguard assertion that the Crabapple hoist had been taken down multiple times for wear on the
rope.13 T. 200. On none of the dates reported in 2016 had the hoist been taken out of service for
12

See TT 194-195 for full resume.

13

The full title of the document, which was partially obscured, read “reportable
Crabapple Hoist Car.” T. 200. “Reportable” meant anytime the elevator was inoperable for more
than 30 minutes in which case MSHA had to be notified. T. 200.

42 FMSHRC Page 845

excessive wear. T. 201. On October 22, 2016, the operator did take the hoist out of service
because it was “close enough to the non-destruct.” T. 201.
In reference to R-8 (Request for Health and Safety Conference), Tennant had requested
conferences on the safeguards issued. T. 203.
As to Safeguard No. 9076448, Tennant disagreed that there was any specific hazard
presented. T. 206. The slope hoist rope was “in fine shape.” T. 2016. Nobody’s life was in
danger; no equipment was in danger. T. 207.
As to Safeguard No. 9076449 (P-4) Tennant again did not believe any specific hazard
was presented by mine supplies on the side of the slope tracks. T. 207. He was unaware of any
car coming into contact with any of the cited material. T. 207. There was already a safeguard at
the mine that required 24 inches clearance. T. 207-209; see also R-10 Re slip and fall hazard.
As compared to track haulage, the slope car only went to the bottom area of the mine. T.
210. The slope car was moved by the hoist rope; track cars were pulled by a locomotive. T. 211;
see also R-10, Safeguard No. 3670427.
Tennant contended that if the hazard presented was a “slip and trip” hazard, Safeguard
No. 3670427 already addressed such. T. 212; R-10. If the hazard was derailment, there had been
nothing observed by Vargo of materials coming into contact with the slope car. T. 212.
Supplies in the slope entry or on the slope itself did not present a hazard unless they came
into contact with a car. T. 212-213.
CONTENTIONS OF THE PARTIES
As to Safeguard No. 9076448 (P-2), the Secretary contends that the Respondent failed to
address various unsafe conditions involving the slope hoist rope at the Crabapple Portal of Bailey
Mine. These hazardous conditions included: multiple worn wear pads on the slope track; the
hoist rope running into steel grating for approximately six feet; two trough rollers that would not
turn when the hoist rope was in contact with them; the hoist rope being dragged through gravel,
rock, slate, mud, coal, and water; excessive wear and damage to the hoist rope; the slope hoist
rope’s removal from service multiple times for excessive wear.
As to Safeguard No. 9076449 (P-4), the Secretary contends that the Respondent
improperly allowed the accumulation of debris and supplies on both sides of the slope track.
As to Safeguard No. 9076448, Respondent contends that the alleged transportation
hazards associated with the Crabapple hoist rope were already covered by mandatory safety
standards at 30 C.F.R. § 75.1430 through § 75.1438. As such, the safeguard was facially invalid
because there was no actual mine specific transportation hazard not (already) covered by a
mandatory safety standard. Respondent alternatively contends that, even if the safeguard was
facially valid, there were no actual transportation hazards existent at any of the pertinent times
within. The Respondent makes a similar argument with regards to Safeguard No. 9076449,

42 FMSHRC Page 846

arguing that it is invalid because there was no actual mine specific transportation hazard, and that
the safeguard did not adequately articulate the hazard or the conduct required of the operator to
remedy such hazard.
As to Safeguard No. 9076449, at hearing the Respondent contended that any alleged
transportation hazard associated with the track was already covered by an existing mandatory
safety standard (Safeguard No. 3670427) and that, in the alternative the Secretary failed to prove
the existence of any actual transportation hazard associated with the slope track.
ANALYSIS
Issue I:

Was Safeguard No. 9076448 facially invalid in that the contemplated transportation
hazard—hoist slope rope failure due to excessive wear and tear—was already covered
by existing mandatory safety standards at 30 C.F.R. §§ 75.1430 through 75.1438?

Issue II:

Assuming Safeguard No. 9076448 was not facially invalid, did the Secretary carry his
burden of proving the existence of an actual transportation hazard?

Issue III: Assuming the Secretary carried his burden of proof, did he properly articulate the
conduct required of the operator to remedy the hazard?
Issue IV: Was Safeguard No. 9076449 facially invalid in that the contemplated safety hazards
associated with the slope hoist track were already covered by prior Safeguard No.
3670427?
Issue V:

Assuming Safeguard No. 9076449 was not facially invalid, did the Secretary carry his
burden of proving the existence of any actual transportation hazard?

Issue VI: Assuming the Secretary carried his burden of proof, did he properly articulate the
conduct required of the operator to remedy the transportation hazard?
I.

Safeguard No. 9076448 was facially invalid in that the contemplated transportation
hazard—hoist rope failure due to wear and tear—was already covered by mandatory
safety standards found at 30 C.F.R. §§ 75.1430 through 75.1438.

At hearing and in his post hearing brief the Respondent contended that a safeguard may
not be issued if there are already existing mandatory standards addressing the transportation
hazard alleged. See also RB 7-11. Cyprus Cumberland Resources Corp., 19 FMSHRC 1781,
1784– 85 (Nov. 1997), citing Southern Ohio Coal Co., 14 FMSHRC 1, 8 (January 1992)
(“SOCCO II”)) (“In order to issue such a safeguard, an inspector must determine that there exists
an actual transportation hazard not covered by a mandatory standard and that a safeguard is
necessary to correct the hazardous condition.”).
The Secretary did not dispute this proposition at hearing. Inspector Vargo responded
affirmatively when asked at hearing, “would you also agree with me that to issue a safeguard, the
actual hazard with respect to the transportation of men and materials you determined to have

42 FMSHRC Page 847

existed must also not be covered by a mandatory standard?” T. 48. Rather, the Secretary cited to
the applicable sections of the Act and regulations establishing MSHA’s authority to issue minespecific safeguards to minimize hazards with respect to the transportation of men and materials
and Commission case law in support of such. See, inter alia, SB 4-5, citing § 314 (b) of the Act,
30 C.F.R. § 75.1403 of the regulations, and the Commission holding at Pocahontas Coal Co.
LLC, 38 FMSHRC 157, at 157 (Feb. 2016).
However, the general authority of MSHA inspectors to issue transportation safeguards on
a mine-to-mine basis is not at issue.14 Rather, Respondent has challenged Coal Mine Inspector
Vargo’s issuance of this particular safeguard on the basis that mandatory safety standards in Part
75 of 30 C.F.R. already address the alleged transportation hazard posed at Baily Mine.
As to this threshold question, this Court finds that the existent safety standards in Part 75
of 30 C.F.R. §§ 75.1430 through 75.1438 do address the transportation hazard alleged to have
existed at the operator’s Crabapple Portal.
This Court begins its analysis by considering what was the specific transportation hazard
alleged.
The hazard as described in Safeguard No. 9076448 was “wear and damage (to) the hoist
rope.” P-2, Section 8, Condition or Practice. At hearing, CLR Polka stated that the safeguard had
been issued to protect miners from being exposed to the hazards of “the rope wearing out before
it is expected and increasing the likelihood of an accident related to (the) rope failure.” T.8.
Similarly, Inspector Vargo testified that his “main concern” in issuing the safeguard was damage
and wear to the slope rope. T. 48.
At hearing there was much testimony directed toward various hoist slope conditions,
including worn or missing wear pads, static trough rollers; the hoist rope’s exposure to the
elements; the hoist rope’s contact with steel grating or concrete; and the hoist rope dragging
through gravel, rock, slate, mud, coal, and water. See P-2, see also T. 17, 18, 20, 28, 33, 41, 70,
73, 74. Such conditions may or may not constitute hazards in and of themselves. However,
clearly the ultimate transportation hazard contemplated in Safeguard No. 9076448 was hoist rope
failure due to excessive wear and tear. Such hazard is already covered in the cited regulations
under Wire Ropes in Title 30 of the regulations, §§ 75.1430 through 75.1438. Said sections
address in detail when damaged or deteriorated wire hoist ropes should be repaired or replaced in
order to avoid rope failure.
Inter alia, these sections specifically provide that “wire ropes…used to hoist” (§ 75.1430)
shall be subject to “minimum rope strength” values (§ 75.1431), “initial measurement” (§
75.1432), “examinations,” including biweekly visual examination and 6 month non-destructive
testing (§ 75.1433), “retirement criteria,” including rope diameter reduction and rope strength
loss percentages (§ 75.1434), “end attachment retermination,” (§ 75.1437) and “end attachment
14

Likewise, the question is not, as Secretary seems to imply, whether a safeguard is
invalid because it addresses hazards that exist at other mines. See SB 5, Citing Oak Groves Res.,
LLC, 35 FMSHRC at 2013.

42 FMSHRC Page 848

replacement” (§ 75.1438). These regulatory standards go to the heart of what constitutes
excessive hoist rope wear and tear and render the within safeguard as duplicative and
preemptive.
Considering, therefore, the record in toto and Respondent’s persuasive arguments on
point, this Court finds Safeguard No. 9076448 to be facially invalid. The ALJ, however,
recognizes that this a close question.15 Accordingly this Court will further consider whether the
Secretary carried his burden of proving that an actual transportation hazard existed when CMI
Vargo issued the safeguard and whether MSHA had properly articulated the conduct required of
the operator to remedy such hazard with specificity.
II.

The Secretary failed to carry his burden of showing that an actual transportation hazard
existed at the time in question.

As discussed intra, neither of Secretary’s witnesses had testified that any of the
retirement criteria were met under § 75.1434 on the dates Snyder performed his non-destructive
test nor the dates Vargo conducted his inspections or issued the safeguard. T. 51, T. 55, T. 85.
Vargo opined that an actual transportation hazard existed because the hoist rope was
“right at the borderline.” T. 56. Similarly, Snyder testified the rope was “right at the limit.” T.
122. There is a speculative quality to these opinions which renders them problematic. According
to Vargo’s and Snyder’s rationales, although the hoist rope was still compliant with all
applicable wire rope regulations, a transportation hazard nonetheless presently existed because at
some looming time the rope would become non-compliant and fail. Such reasoning implicates
fundamental norms of due process. The reasoning also improperly imports the Commission’s
assumption of continued mining operations in determining reasonable likelihood, to the analysis
of whether a violation existed. See Black Beauty Coal Co., 34 FMSHRC 1733, 1740 (Aug.
2012), aff'd sub nom. Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir.
2014).16
In considering whether the Secretary carried its burden of proving an actual hoist rope
transportation hazard existed, this Court has considered the weight to be accorded Vargo and
Snyder’s testimony. The Secretary cites Vargo’s 30 years of mining experience and urges that
“great weight’ be given their testimony “due to their specific experience and training regarding
the issues in this case…” SB 4.
15

Arguably, the MSHA inspector may have been properly exercising his statutory and
regulatory authority under Section 314 (b) of the Act and Section 75.1403 of the regulations
notwithstanding the Part 75 Wire Ropes standards discussed within. This is not an instance where
the overreach of authority is manifested with refulgent clarity such as, for example, Martin
Luther’s accusation of Pope Leo X’s usurpation of jurisdiction over Purgatory.
16

The following analogy may not be on all fours. However, this Court wonders if the
Secretary’s witnesses would accept—with equal equanimity—the finding of a Highway Patrol
Officer that they were guilty of speeding because they were traveling at 64 miles per hour in a 65
MPH zone and would be presumably going over the speed limit shortly.

42 FMSHRC Page 849

This Court notes, however, that while Inspector Vargo had decades of experience in
mining, he had little direct experience working on hoist slopes. On cross-examination, Vargo
conceded he had never worked on slope hoists or with hoist ropes prior to joining MSHA in
2007. T. 45. He had no hoist-related certifications. T. 45-46. He had not performed actual work
on slopes while at MSHA. T. 45. He had received “probably half a day” training on slopes at the
Mine Academy. T. 46. He had never issued a safeguard prior to the issuance of the within
safeguards. T. 47.
Vargo was unable to corroborate some of his testimony with his contemporaneous notes.
T. 58-61; see also P-2. He had failed to take photographs on the date(s) of his observations,
documenting such. T. 61. He also had failed to take actual measurements as to the depth of the
grooves on the wear pads. T. 61. He was uncertain as to actual number of trough rollers that were
located on the hoist. T. 72. Although he believed that the two inby rollers cited in the safeguard
bore the most pressure, he had not inquired to confirm such. T. 72.
Inspector Vargo was also unable to determine how much—if any—contributory effect
non-turning trough rollers would have on overall hoist rope erosion.17 T. 72; P-2. He was
unaware that Respondent had contracted wire rope specialists to perform work on the hoist rope
days before he had issued the safeguard.
Inspector Snyder’s mining engineering discipline did not involve any education in wire
ropes. T. 141. Like Mr. Vargo, Michael Snyder had found no violations of the hoist rope on
August 7, 2018. T. 51, 55, 110-120. He found the rope to be “right at the limit” but compliant. T.
122. He conceded that rope strength loss of 10% could be remedied by reterminating the affected
section rather than changing out the entire rope. T. 125-126. He was unaware that the operator
was also conducting daily examinations of the hoist rope. T. 127. He further agreed that, prior to
the issuance of the safeguard, 350 feet of the hoist rope had been reterminated on August 7,
2018. T. 129-130. Snyder had not considered at the time the rope had been reterminated, whether
it was safe to operate despite the worn wear pads.18 T. 132.
On the other hand, Craig Elson, the operator’s assistant master mechanic, had job
experience with hoist operations. T. 157-158. He testified that the hoist rope had been
reterminated on August 7, 2018, days prior to the August 15, 2018 issuance of the within
safeguard. T. 163, 165. Elson further gave unrebutted testimony that, as long as there were three
remaining wraps on a drum [see also § 75.1436 (b)], portions of the rope could be cut out, still
allowing it to remain compliant and not thereby requiring the entire hoist rope to be replaced. T.
125-126. He also noted that there were daily visual examinations of the hoist, as well as the 14day examinations. T. 170; see also R-3. Elson noted that wear pads wore out at different rates
due to undulations in the floor. T. 177. He further testified that the third trough roller (which was
turning during Vargo’s inspections) would be sustaining the most pressure or force—not the two
17

As noted infra Elson maintained that the two non-turning trough rollers would not be
bearing the most pressure exerted by the hoist rope—rather the third roller, which was turning,
would.
18

Though finding Snyder to be an honest individual, this Court also found Snyder to be
purposely unresponsive to some of Respondent’s counsel’s questions.

42 FMSHRC Page 850

inby static trough rollers described by Mr. Vargo in the safeguard. T. 180-181. Unlike Vargo,
Elson knew the exact number of trough rollers located on the slope hoist. T. 181.
As to Vargo’s assertion in Safeguard No. 9076448 that the slope rope had been removed
from service multiple times for excessive wear, Mr. Elson testified that this was inaccurate. T.
182. The majority of times that the rope was removed was for kinks or distortions—not wear or
tear.19 See R-7.
The Operator’s safety supervisor, Michael Tennant, also disagreed with Vargo’s
characterization, submitting a written summary detailing the dates that the Crabapple hoist was
reported “down” to MSHA. T. 199-201; R-7. The hoist had been reported down only two times
in 2018, prior to Vargo’s August 7, 2018 inspection, one of which was for car brake issues and
one for kinks, neither time for wire rope wear and tear. R-7.
Neither of the Secretary’s witnesses gave persuasive testimony as to the nature or rate of
wear/tear to the hoist rope caused by the various alleged hazardous conditions that they
described.
This Court concludes that the Respondent’s witnesses knew as much as or more than
Secretary’s witnesses regarding the actual operation of the slope hoist and was ultimately left
uncertain as to the accuracy of the Secretary’s contentions that actual transportation hazards
existed.
As trier-of-fact and trier-of-law, this Court was unable to find that the Secretary proved
his case by the preponderance of the evidence.
III.

The Secretary failed to articulate the hazard and conduct required of the operator to
remedy the contemplated hoist rope hazard with specificity.

Even if the Secretary had carried his burden of establishing the existence of an actual
transportation hazard, this Court is also persuaded by Respondent’s argument that the Secretary
failed to articulate the hazard and conduct required of the operator with specificity. See RB, pp.
14-16.
At hearing, the Secretary’s witnesses acknowledged that many of the conditions cited at
the slope hoist—exposure to the elements, the presence of gravel, rock, slate, mud and water—
were commonly found at mines throughout the country. T. 86.
This Court was not enlightened by Secretary’s hearing presentation as to how such
conditions could be specifically remedied.20

19

Kinks may be found in even new wire ropes. T. 80, 139.

20

See also Respondent’s arguments on point at RB, pp. 15-16.

42 FMSHRC Page 851

At hearing legitimate questions were also raised as to the effect of tension on the rope
when the hoist was in operation and whether during operation the rope actually came into contact
with debris. See, inter alia, T. 132-135.
CMI Vargo noted in his safeguard that “all wear pads that the hoist rope travels over be
properly maintained.” P-2. However, Vargo gave vague and inconsistent testimony as to what
constituted "proper maintenance” T. 62-64, T. 91.21 MSHA has not published any specific
guidelines as to wear pad maintenance or replacement. T. 64, T. 132-133.
At hearing and in the safeguard, Vargo had noted that a wear pad had been worn down
approximately 1 ¾ inches. P-2. This was an estimate as Vargo had failed to take actual
measurements of the groove or, indeed, the actual thickness of the wear pad in question. At
hearing it was indicated that wear pads wore out at different rates, that wear pads were of
different shapes, including square and rectangular shapes, and that they were of varying
thickness. See, inter alia, T. 176-178. Given all these variables this Court concludes that the
operator was given insufficient notice as to when a particular pad or group of pads actually
needed to be replaced.
This Court does not have the authority or inclination to dictate what specific guidelines
should have been placed in MSHA’s safeguard regulating hoist ropes at Baily Mine. However
this Court suggests that the remedies for repair or replacement of such items as wear pads or
trough rollers should have some specificity. For example, a wear pad measuring 2 ½ inches in
thickness should be replaced or rearranged when it is worn down to ¼ inch thickness.22
Similarly, notice of specific criteria as to when the number and position of static rollers pose a
transportation hazard should be afforded to the mine operator.23 As to the condition of hoist rope
removal from service “multiple times,” the ALJ suggests that a specific number of times within a
specific time period for a specific cause be clearly set forth in the safeguard.
In summary this Court further finds that the safeguard was fatally deficient in articulating
the hazard and conduct of the operator to remedy such hazard with specificity. For the foregoing
reasons, Safeguard No. 9076448 violation should be vacated.

21

In its brief the Respondent persuasively reviewed Vargo’s contradictory testimony.
RB, at pp. 15-17.
22

At hearing Secretary’s witness, Mr. Snyder, implied that a wear pad could serve its
function until it was actually cut in half. T. 132-133.
23

In his brief Respondent persuasively argues that neither the safeguard nor Mr. Vargo
detailed what it meant for rollers to be “properly maintained” or to “turn freely” or how operator
was to achieve the mandate. RB, p. 16.

42 FMSHRC Page 852

IV.

Safeguard No. 9076449 does not address transportation hazards covered by a previous
safeguard issued at Baily Mine.

Unlike Safeguard No. 9076448, this Court concludes that Safeguard No. 9076449 is
facially valid in that the specific transportation hazards which Inspector Vargo sought to prevent
were not already covered by an existing mandatory safety standard.
In reaching the within conclusion, this Court was persuaded by the arguments raised in
Secretary’s brief as to the differing hazards contemplated in Safeguard Nos. 3070427 and
9076449. See also SB, 8-10.
Respondent has contended that Safeguard No. 3670427, issued at Baily Mine in March
2001, already addressed the safety hazards contemplated in the MSHA inspector Safeguard No.
9076449, issued in August 2018. T. 210-211.
This Court does not agree. The Secretary’s arguments against such preemption are
persuasive. See also SB, 8-10.
At hearing Baily Mine’s safety supervisor, Michael Tennant, agreed that Safeguard No.
3670427 dealt specifically with track haulage. T. 210. On cross-examination, he conceded that
the safeguard did not address such hazards as hoist car derailment.
Considering also that Safeguard No. 9076449 dealt with a different area of the mine, the
slope hoist area, as opposed to track haulage areas, that track cars are moved by locomotives and
slope cars by a hoist rope, and given the different transportation described infra, this Court finds
Safeguard No. 9076449 to be facially valid.
V.

The Secretary failed to carry its burden of proving that an actual transportation hazard
contemplated in Safeguard No. 9076449 existed at the time of MSHA’s inspection(s).

Safeguard No. 9076449 indicated that various mining supplies and discarded items were
seen on both sides of the slope tracks. P-4, Section 8. The Secretary contends that these
conditions created various hazards. See also SB, 9-10. There would be a slip and trip hazard
presented to miners traveling on foot such as examiners, track cleaners, and miners using the
track slope as an emergency route. T. 38-39, 44, 183. Debris could fall into the hoist car’s brake
clamps and track, preventing the cars from stopping, creating a struck-by hazard for miners in
the hoist cars, including examiners and miners working in the slope track or working at the
bottom of the slope track. T. 40-41. There being no seat belts, miners might be thrown out of the
hoist cars. T. 39. Debris could come into contact with the rail and the hoist car wheels and could
cause a derailment. T. 39-43. The hoist rope could abrade against debris in the slope track and
create additional excessive wear. T. 39-41. A struck-by hazard would be created for miners
working in or at the base of the slope track or for miners riding in hoist cars. T. 30-41.
At hearing, however, Mr. Vargo offered little evidence that the supplies and debris
described in the safeguard were actually in contact with the slope track, brakes or slope cars, or

42 FMSHRC Page 853

slope hoist.24 On cross-examination, Vargo admitted that he did not know whether any material
was actually contacting the slope car. T. 87.
As to many of the alleged hazards, Vargo offered little in the way of corroborative
support. He had failed to take measurements to determine how close material was to the track. T.
87. While testifying that there was material in some areas contacting the slope rope, no such
observations were recorded in the safeguard or his contemporaneous notes. T. 87; see also P-4.
Similarly, as to whether material presented a slip and trip hazard, Vargo again failed to
note such in the safeguard or his notes.25 T. 88. This led to Vargo having to split hairs in his
testimony. His explanation that he hadn’t said “slipped” or “tripped”, but only that he slipped
was somewhat confusing. T. 89. This Court found it an open question as to whether Vargo and
his escort had slipped because of the steepness of grade or because of material in the space
between the track and supplies. Given that it is Secretary’s burden to establish each operative
fact, this Court specifically finds that the Secretary failed to carry such burden as to the existence
of an actual slip and trip or slip and fall hazard.
This Court finds the Respondent’s arguments as to the absence of actual transportation
hazards to be persuasive and holds that it is correct. See also SB at 17-18.
VI.

Assuming the Secretary did carry his burden of proof, the Secretary failed to properly
articulate the conduct required of the operator to remedy the contemplated transportation
hazards.

This Court agrees with Respondent’s argument that Safeguard No. 9076449 is invalid
because it contains vague and non-specific remedies that do not adequately address or provide
adequate notice of the conditions and how the operator is to remedy the contemplated
transportation hazard. See RB, p. 18.
The safeguard directs that the slope track be “kept free of these mine supplies and other
supplies that are hoisted in and out of the mine.” T. 93; P-4. Given that supplies are hoisted in
and out of the mine, the safeguard provides insufficient direction as to how the slope track
should be kept free of such. Considering Vargo’s testimony that supplies or materials located in
the slope which do not contact the slope car are not hazardous, the safeguard provides
insufficient notice as to what remedies should be undertaken to avoid the contemplated
transportation hazards.26

24

The issue of slope rope damage has already been discussed above.

25

This Court also notes there may be an issue as to whether a slip and fall hazard
constitutes a hazard with respect to transportation under § 75.1403.
26

For example should there be a certain clearance distance maintained between the
haulage track and any supplies, materials, debris along the track?

42 FMSHRC Page 854

For the foregoing reasons, Safeguard No. 9076449 violation should be vacated.
ORDER
It is the ORDER of this Court that Citation Nos. 9076455 and 9076456 and respective
associated Safeguard Nos. 9076448 and 9076449 are hereby VACATED and DISMISSED.

/s/ John Kent Lewis
John Kent Lewis
Administrative Law Judge

Distribution:
John Strawn, Esq., Office of the Solicitor, U.S. Dep. of Labor, The Curtis Center, 170 S.
Independence Mall West, Suite 630E, Philadelphia, PA 19106-3306 strawn.john@dol.gov
Kenneth J. Polka, CLR, 631 Excel Drive, Suite 100, Mt. Pleasant, PA 15666
polka.kenneth@dol.gov
Patrick W. Dennison, Esq., Fisher & Phillips, LLP, 6 PPG Place, Suite 830, Pittsburgh, PA
15222, pdennison@fisherphillips.com
/mzm

42 FMSHRC Page 855