July 2016
TABLE OF CONTENTS

COMMISSION DECISIONS
07-08-16

PREMIER ELKHORN COAL
COMPANY

KENT 2011-827

Page 1587

07-08-16

TRIVETTE TRUCKING

KENT 2011-1223

Page 1604

07-08-16

KENTUCKY FUEL CORPORATION

KENT 2011-1557

Page 1614

07-12-16

SUNBELT RENTALS, INC.; LVR,
INC.; and ROANOKE CEMENT CO.,
LLC

VA 2013-275-M

Page 1619

07-18-16

LEECO, INC.

KENT 2012-166

Page 1634

07-19-16

NALLY & HAMILTON
ENTERPRISES

KENT 2011-434

Page 1644

07-19-16

LEWIS-GOETZ AND COMPANY,
INC.

WEVA 2012-1821

Page 1663

COMMISSION ORDERS
07-14-16

WHITE OAK RESOURCES, LLC

LAKE 2015-532

Page 1675

07-14-16

KLONDEX MIDAS OPERATION,
INC.

WEST 2015-607 M

Page 1678

07-14-16

MOUNTAIN ROAD FARM SAND &
GRAVEL

YORK 2015-82-M

Page 1681

07-14-16

WHIBCO OF NEW JERSEY, INC.

YORK 2015-113 M

Page 1684

i

ADMINISTRATIVE LAW JUDGE DECISIONS
07-13-16

NEW NGC, INC.

CENT 2015-155

Page 1687

07-15-16

WHITE COUNTY COAL, LLC

LAKE 2012-0898

Page 1697

07-18-16

RBS, INC.

WEVA 2014-0817

Page 1728

07-20-16

ARNOLD STONE INC

CENT 2016-0095-M

Page 1746

07-22-16

KENTUCKY FUEL CORPORATION

KENT 2014-706

Page 1756

07-22-16

RIVER VIEW COAL, LLC

KENT 2014-782

Page 1771

07-25-16

LOCUST GROVE, INC.

KENT 2015-296

Page 1782

07-25-16

BLANCHARD MACHINERY
COMPANY

SE 2016-56-M

Page 1786

07-26-16

TIM M. BALL, employed by Mountain VA 2014-0148-M
Materials, Inc.

Page 1799

07-28-16

NYRSTAR GORDONSVILLE, LLC

Page 1819

SE 2015-136-M

ADMINISTRATIVE LAW JUDGE ORDERS
07-01-16

BRIAN JACKSON v. ALAN
RITCHEY MATERIALS CO., LC

07-01-16

SEC. OF LABOR O/B/O CHERYL
WEST 2014-905-DM
GARCIA v. VERIS GOLD USA, INC.,
and its successors

Page 1832

07-06-16

RALPH W. DUSHANE, employed by
CEMEX CONSTRUCTION
MATERIALS OF FLORIDA, LLC

Page 1834

ii

CENT 2016-0178-DM Page 1827

SE 2016-132-M

07-11-16

SEC. OF LABOR O/B/O CHERYL
WEST 2014-905-DM
GARCIA v. VERIS GOLD USA, INC.,
and its successors

Page 1838

07-12-16

GATEWAY EAGLE COAL CO., LLC

Page 1840

07-14-16

SEC. OF LABOR O/B/O CHERYL
WEST 2014-905-DM
GARCIA v. VERIS GOLD USA, INC.,
and its successors

Page 1846

07-14-16

PARK COUNTY ROAD & BRIDGE

WEST 2016-237-M

Page 1848

07-14-16

MARK BAILEY v. REX OSBORNE,
COLIN MILAM, ROCKWELL
MINING, LLC, and GATEWAY
EAGLE COAL CO., LLC

WEVA 2016-241-D

Page 1856

07-19-16

SCOTT D. MCGLOTHLIN v.
DOMINION COAL CORPORATION

VA 2014-233-D

Page 1870

07-19-16

GREENBRIER MINERALS, LLC

WEVA 2015-1002

Page 1872

07-21-16

SEC. OF LABOR O/B/O JEFFREY S.
BREWER v. MONONGALIA
COUNTY COAL COMPANY

PENN 2016-240-D

Page 1876

07-25-16

BLAZE WHITE, employed by
NEWMONT USA LIMITED

WEST 2016-383-M

Page 1881

07-27-16

PENNYRILE ENERGY, LLC

KENT 2016-432-R

Page 1886

07-27-16

DANIEL B. LOWE v. VERIS GOLD
USA, INC., and JERRITT CANYON
GOLD, LLC

WEST 2014-614-DM

Page 1888

iii

WEVA 2015-987

Review was granted in the following case during the month of July 2016:
Secretary of Labor v. Mach Mining, Inc., Docket No. LAKE 2014-77, et al. (Judge McCarthy,
June 6, 2016)

Review was denied in the following cases during the month of July 2016:
Matthew A. Varady v. Veris Gold USA, Inc., Docket No. WEST 2014-307 DM (Judge Moran,
March 4, 2016)
Daniel B. Lowe v. Veris Gold USA, Inc., Docket No. WEST 2014-614 DM (Judge Moran,
March 14, 2016)

iv

COMMISSION DECISIONS

38 FMSHRC Page 1586

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

July 8, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. KENT 2011-827

PREMIER ELKHORN COAL
COMPANY
BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
DECISION
BY: Jordan, Chairman; Young, Nakamura, and Althen, Commissioners
This case involves two citations issued to Premier Elkhorn Coal Company (“Premier”) by
the Department of Labor’s Mine Safety and Health Administration (“MSHA”) in connection
with a fatal accident in which a coal truck hit a berm and turned over. Pursuant to the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”),
MSHA issued citations alleging violations of 30 C.F.R. § 77.1607(b)1 and 30 C.F.R. §
77.1605(b).2
The Administrative Law Judge found that the Secretary failed to establish either the
cause of the fatal accident or that the brakes on the truck were inadequate. He vacated both
citations. 35 FMSHRC 150, 164 (Jan. 2013) (ALJ). For the reasons that follow, we conclude that
the Judge erred by vacating the citation alleging that the mobile equipment operator failed to
maintain full control of his vehicle. We affirm the vacation of the citation alleging that the
mobile equipment was equipped with inadequate brakes.3

1

30 C.F.R. § 77.1607(b) requires that “[m]obile equipment operators shall have full
control of the equipment while it is in motion.”
2

30 C.F.R. § 77.1605(b) provides that “[m]obile equipment shall be equipped with
adequate brakes, and all trucks and front-end loaders shall also be equipped with parking brakes.”
3

On this same date, the Commission is also issuing a decision in a companion case which
arose from the same incident. Trivette Trucking, 38 FMSHRC ___, No. KENT 2011-1223 (July
8, 2016); see also infra note 4.

38 FMSHRC Page 1587

I.
Factual and Procedural Background
Premier operates a surface coal mine in Kentucky and a nearby preparation plant. In
December 2009, Steve Johnson, chief mechanic of contract trucking company Trivette Trucking,
was hauling coal from the mine to Premier’s plant in a 2006 International Paystar coal truck.
During his first trip to the plant, Johnson began to experience problems with his truck’s power
steering after his truck was loaded with coal. Johnson notified a fellow coal truck driver of the
steering problem over the CB radio and pulled his truck over so that he and the other driver could
inspect the steering system. They were not able to identify any defects, so Johnson resumed
driving to the plant.
The section of haulage road on which Johnson was traveling was a relatively straight, but
steep, gravel road flanked with berms on both sides. After about 1300 feet at a downward grade
of 15–18%, the road leveled out for approximately two miles. While descending the steep section
of the road, Johnson’s truck left the normal travelway and started heading directly towards the
left berm. Before the truck began to make contact with the berm, Johnson jumped out of the
truck’s cab but was unable to clear the vehicle. Johnson became ensnared in the back left tandem
wheels and was dragged down the hillside until the truck ultimately flipped over. Johnson’s
injuries were fatal.
Following its fatality investigation, MSHA issued Premier two citations.4 Citation No.
8230316 alleges a violation of 30 C.F.R. § 77.1607(b) for failure to maintain full control over the
haulage truck while it was in motion. The citation contends that Johnson’s truck was overloaded
by 37,600 pounds based on the maximum gross vehicle weight rating (“GVWR”) recommended
by the truck’s manufacturer and that the overloading contributed to Johnson losing control of his
vehicle. Citation No. 8230317 alleges a violation of 30 C.F.R. § 77.1605(b) for failure to
maintain the truck’s brakes in adequate condition. The citation notes that axle grease was present
on the left and right brake drums and that the brake on the right rear tandem axle was not
functional. MSHA designated both violations as S&S, attributable to high negligence on the part
of Premier. Citation No. 8230316 was designated as an unwarrantable failure.5
In his decision, the Judge vacated both citations issued to Premier in connection with the
fatal accident. Concerning Citation No. 8230316, the Judge held that the Secretary failed to
prove that Johnson’s truck was hauling an unsafe amount of coal. Consequently, he could not
find a violation of the standard. 35 FMSHRC at 155. The Judge noted that the Secretary failed to
4

Johnson’s employer, Trivette Trucking, was also issued two orders. Order No. 8230314
alleged a violation of 30 C.F.R. § 77.1607(b), and Order No. 8230315 alleged a violation of 30
C.F.R. § 77.1605(b).
5

The S&S and unwarrantable failure terminology is taken from section 104(d)(1) of the
Act, 30 U.S.C. § 814(d)(1), which distinguishes as more serious any violation that “could
significantly and substantially contribute to the cause and effect of a . . . mine safety or health
hazard,” and establishes more severe sanctions for any violation that is caused by “an
unwarrantable failure of [an] operator to comply with . . . mandatory health or safety standards.”

38 FMSHRC Page 1588

establish a weight at which the truck would become unsafe or that exceeding the manufacturer’s
GVWR was per se hazardous. Id. at 155–56. The Judge found that the load in Johnson’s truck
was not too heavy for Johnson’s truck to safely haul the coal even if it exceeded 120,000 pounds
as the Secretary alleged. Id. at 156–57.
With regard to Citation No. 8230317, the Judge suggested that a violation of section
77.1605(b) could be found if the Secretary could prove either: (1) that the condition of the brakes
of Johnson’s truck caused the accident, or (2) that the defects in the brakes were significant
enough to cause the brakes to fail during typical usage of the vehicle. Id. at 163. The Judge,
however, found that the accident was most likely attributable to a steering problem or another
problem that caused the brakes and steering to fail simultaneously. Id. at 161, 163. In addition,
the Judge credited the testimony of Premier’s expert witness that the brakes, while suffering
from minor defects, would have been adequate to stop Johnson’s truck at an estimated speed of
10 mph.6 Accordingly, the Judge found that the Secretary had not met his burden of proof to
show that the brakes on Johnson’s truck were inadequate.
The Commission granted the Secretary’s petition for discretionary review.
II.
Disposition
A. Exclusion of Evidence
At the hearing, the Judge made several evidentiary rulings that the Secretary claims were
detrimental to his case. In particular, the Judge did not admit Secretary’s Exhibit 29, a vehicle
manual purported to apply to the truck Johnson was driving. The Secretary had sought to
introduce this evidence to establish that he truck’s manufacturer warned that overloading in
excess of the GVWR of 82,600 pounds could cause “component failure, result in property
damage, personal injury, or death.” Tr. 222. However, the Judge found that the Secretary failed
to establish sufficient foundation that the manual related to the particular truck in question, in
part because the manual was published in 2005 while the truck was a 2006 model. Tr. 220–22.
The Judge also excluded Secretary’s Exhibits 13–17, which purported to demonstrate that
Premier regularly loaded trucks in excess of 120,000 pounds. These exhibits included truck
weight tickets for the trucks loaded immediately before Johnson’s truck on the day of the
accident and for loads that Johnson had taken a couple of weeks prior to the accident. Tr. 53. The
Judge ruled that the weight tickets were irrelevant to determining the weight of Johnson’s truck
at the time of the accident and noted that the small sample size was inadequate to establish a
pattern of overloading. Tr. 64.
6

The Judge found the Secretary’s expert witness’s testimony to the contrary to be
unconvincing. The Judge noted that he gave such testimony little weight due to the witness’s
lack of experience in steering systems, inconsistencies between his report and his testimony,
“generally poor reasoning,” and reliance on a potentially biased report authored by the
manufacturer of the steering system. 35 FMSHRC at 164.

38 FMSHRC Page 1589

The Commission’s procedural rules and other federal rules place a low bar on the
relevancy of evidence that can be admitted. Commission Procedural Rule 63(a) states only that
“[r]elevant evidence . . . that is not unduly repetitious or cumulative is admissible.” 29 C.F.R. §
2700.63(a). Section 556(d) of the Administrative Procedure Act, in turn, states that “[a]ny oral or
documentary evidence may be received, but the agency as a matter of policy shall provide for the
exclusion of irrelevant, immaterial, or unduly repetitious evidence.” 5 U.S.C. § 556(d).7
The Commission’s rules do not define what constitutes “relevant evidence.” However,
Rule 401 of the Federal Rules of Evidence defines it as evidence having “any tendency to make a
fact more or less probable than it would be without the evidence” where that fact “is of
consequence in determining the action.”8 Fed. R. Evid. 401. Generally, courts have viewed Rule
401 as having “a low threshold of relevancy.” In Re: Paoli R.R. Yard PCB Litig., 35 F.3d 717,
782–83 (3d Cir. 1994); see also Hurley v. Atlantic City Police Dep’t, 174 F.3d 95, 109–10 (3d
Cir. 1999) (“Rule 401 does not raise a high standard.”).
We conclude that the Judge erred by not admitting both the truck manual9 and the weight
tickets into evidence. The weight tickets presented sufficiently similar factual situations for a
factfinder to draw reasonable inferences as to Premier’s loading practices. The tickets were
issued in close temporal proximity to the accident, involved the same or similar haulage trucks,
and were from the same mine. Similarly, the truck manual, even if it was for the vehicle’s prior
7

Section 556(d) of the Administrative Procedure Act (“APA”) does not directly apply to
Commission proceedings, because section 507 of the Mine Act states that provisions of the APA
do not apply unless the Mine Act explicitly states that they do. 30 U.S.C. § 956. However,
section 556(d) provides useful guidance in this case.
8

While the Federal Rules of Evidence are not required to be applied to Commission
hearings, they may have value by analogy. Mid-Continent Res., Inc., 6 FMSHRC 1132, 1135–36
& n.6 (May 1984).
9

While the threshold for admissibility is low, a party seeking to introduce evidence must
nonetheless provide a proper foundation to establish its relevance. In the case of the truck
manual, Commissioner Young questions whether this was done. He notes that the Judge may
have foreclosed the Secretary’s efforts to provide a foundation for admissibility. Had the
exclusion of evidence been prejudicial, preventing a party from offering facts demonstrating its
relevance would be reversible error. See Gray v. North Fork Coal Corp., 35 FMSHRC 2349,
2359–60 (Aug. 2013) (noting an abuse of discretion standard for evaluating the Judge’s
exclusion of evidence, but characterizing exclusion of critical evidence as an “‘extreme’
sanction.”). Conversely, if the Secretary had not effectively made a record of the evidence’s
relevance, his objection to the exclusion of that evidence may be deemed waived. See Cavataio
v. City of Bella Villa, 570 F.3d 1015, 1021 (8th Cir. 2009) (the requirement of making an offer of
proof to preserve the issue for appeal is “[o]ne of the most fundamental principles in the law of
evidence.”); but see Waltzer v. Transidyne Gen. Corp., 697 F.2d 130, 134 (6th Cir. 1983) (the
failure to make an offer of proof is not fatal where the “substance of the excluded evidence is
apparent from context within which the questions were asked.”).

38 FMSHRC Page 1590

model year, could be relevant for the question of how much weight Johnson’s truck could safely
carry.
Nevertheless, the decision to exclude the evidence above did not prejudice the
Secretary’s case and thus was harmless error. See Fed. R. Civ. P. 61. Although the Judge stated
that he excluded the evidence, it is apparent from his decision that he considered the evidence
anyway, but afforded it little weight.10 The weight tickets and the truck manual do not definitely
prove the Secretary’s theory of causation. Rather, they only provide limited circumstantial
evidence that the weight of Johnson’s truck may have caused or contributed to the fatal accident.
In light of the credited expert testimony and evidence at the scene of the accident, however, the
Judge determined that the weight of the evidence ultimately did not prove that Johnson’s truck
was carrying a load that was too heavy for it to safely haul coal. 35 FMSHRC at 155–57.
B. Citation No. 8230316 – Failure to Maintain Full Control of the Truck
The Judge vacated Citation No. 8230316 because he found that the Secretary was unable
to prove that Johnson’s truck was loaded in excess of what it could safely haul. However, the
Secretary argues that the act of driving the truck off a haulage road constituted a per se violation
of section 77.1607(b). The Secretary points to the fact that there is no evidence to support the
contention that Johnson was in complete control of his vehicle as the standard requires.
Numerous witnesses testified that Johnson lost control of his truck, and the Judge mentions this
fact several times in his decision. See, e.g., Tr. 150 (Premier Safety Director Wilder), 205–06
(MSHA Mining Engineer Bellamy), 323 (MSHA Mechanical Engineer Medina); 35 FMSHRC at
158, 160–01.
The Commission previously addressed this issue in Clintwood Elkhorn Mining Co., 35
FMSHRC 365 (Feb. 2013). In Clintwood, the Judge vacated a citation alleging a violation of
section 77.1607(b) in part because he believed that the citation was “‘predicated on the unproved
allegation that overloading existed.’” Id. at 370 (citing 32 FMSHRC 1880, 1890 (Dec. 2010)
(ALJ)). The Commission, however, concluded that section 77.1607(b) did not require the
Secretary to prove “a causal or contributing factor for the loss of control.” Id. The proper scope
of analysis for a violation under this standard is limited to the question of whether the driver
maintained control of his vehicle.
As the Judge himself recognized in his subsequent decision in Trivette Trucking, our
holding in Clintwood Elkhorn requires that we reverse the Judge’s vacation of Citation No.
8230316. See Trivette Trucking, 35 FMSHRC 1934, 1943 (June 2013) (ALJ). It is
uncontroverted that Johnson failed to maintain control of his truck. It can be easily inferred from
the record that Johnson would not have placed himself in mortal danger by jumping out of the
truck had he been in full control of his vehicle. Even if we declined to make such an inference,
the fact that Johnson left the cab before the vehicle stopped clearly establishes that he did not
10

Additionally, we note that the Judge did not wholly exclude such evidence. The Judge
permitted the Secretary’s witnesses to testify as to the truck’s GVWR (Tr. 48) and the
approximate load Johnson’s truck was carrying at the time of the accident. Tr. 312–315, 328–29.
Similar information was also entered into evidence through MSHA’s accident report. Sec’y Ex.
4.

38 FMSHRC Page 1591

maintain control of the vehicle. Accordingly, we reverse the Judge and hold that the Secretary
has established a violation of section 77.1607(b).
Having found a violation, we next turn to the Secretary’s S&S determination. Given the
tragic result of Johnson’s inability to maintain control of his truck, we find that the record can
only support a finding that the violation was S&S. See American Mine Servs., Inc., 15 FMSHRC
1830, 1834 (Sept. 1993) (where the evidence supports only one conclusion, remand on that issue
is unnecessary). Stated simply, the failure of the driver to maintain control of the truck violated
the standard, constituted the hazard at which the standard is directed, and was reasonably likely
to result in serious injury. Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984).
Finally, we address the unwarrantable failure allegations. The unwarrantable failure
terminology is taken from section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more
serious conduct by an operator in connection with a violation. In Emery Mining Corp., 9
FMSHRC 1997 (Dec. 1987), the Commission determined that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence. Id. at 2001.
We conclude that the Judge’s factual findings and credibility determinations are
supported by the record and preclude a finding that the violation resulted from an unwarrantable
failure. The Secretary’s allegations of a heightened degree of negligence were predicated on the
theory that Johnson’s loss of control of his vehicle was caused, or contributed to, by the
overloading of his truck. However, the Judge determined that the record was insufficient to
establish the Secretary’s theory.
The Secretary’s evidence that Johnson’s truck was loaded in excess of 120,000 pounds is,
at best, circumstantial. The fact that the Secretary only relied on weight tickets of the truck
involved in the accident from four dates prior to the accident, and weight tickets of a different
type of truck from the day of the accident, calls into question the reliability of any inference as to
the weight of Johnson’s truck on the day of the accident. Moreover, the Secretary was unable to
convincingly establish that the GVWR set by the manufacturer was a reliable measure for
determining the maximum load that this particular truck could safely transport. It is thus difficult
to discern what the operator could have done differently to prevent or mitigate a hazardous
condition or practice.
Even considering the excluded evidence and assuming that Johnson’s truck was loaded in
excess of the manufacturer’s GVWR, the Judge’s findings do not support the Secretary’s theory.
Importantly, the Judge credited the testimony of Premier’s expert witness, Steve Rasnick, who
testified that Johnson’s truck was capable of safely handling a 120,000 pound load. 35 FMSHRC
at 1942. We see no basis for overturning the Judge’s determination on this point. See, e.g.,
Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992) (stating that Judge’s
credibility determinations are entitled to great weight and may not be overturned lightly).

38 FMSHRC Page 1592

Consequently, we find that the Secretary has failed, as a threshold matter, to meet his burden of
proof as to the unwarrantable failure designation.11
Accordingly, we reverse the Judge and find a violation of section 77.1607(b). We further
find that the violation was S&S, but that it was not the result of an unwarrantable failure to
comply with the standard.
C. Citation No. 8230317 – Failure to Equip Truck with Adequate Brakes
To find a violation of section 77.1605(b), the Judge determined that the fact of the
violation could be established on either of two separate grounds. First, the Secretary could show
that the condition of the brakes on Johnson’s truck caused the fatal accident. If the brakes played
a role in the accident, the Judge reasoned that the inadequacy of the brakes would be selfevident. Failing to establish the brakes’ role in the accident, the Secretary could also prove a
violation by showing that the defects in the brakes were significant enough to cause the brakes to
fail during typical usage of the vehicle. 35 FMSHRC at 163. The Judge ultimately found that the
Secretary had failed to establish either theory and vacated the citation.
On appeal, the Secretary argues that the Judge should be reversed because his analysis
concerning this second citation was predicated on his prior finding that the Secretary had failed
to prove that the truck was overloaded. The Secretary also contends that the Judge should not
have credited the testimony of Premier’s expert witness over his own expert witness.
We conclude that the Judge’s finding that the brakes did not cause the fatal accident is
supported by substantial evidence.12 The events leading up to the accident were not indicative of
an accident caused by a brake failure. Prior to the accident, Johnson complained that he was
having difficulty steering his vehicle. Tr. 139–40. The problem was serious enough that Johnson
felt the need to pull the truck temporarily out of service to examine the vehicle.13 Additionally, at
the scene of the accident there were no skid marks to indicate that Johnson had unsuccessfully
attempted to slow or stop his vehicle. Rather, the tire tracks indicated that Johnson drove straight
into the berm.
11

Because the Secretary was unable to prove, as a threshold matter, that overloading the
truck caused the accident and that the operator was highly negligent in this regard, we need not
employ in this case the seven-factor test for an unwarrantable failure set forth in IO Coal Co., 31
FMSHRC 1346, 1350–51 (Dec. 2009), and other decisions.
12

When reviewing an Administrative Law Judge’s factual determinations, the
Commission is bound by the terms of the Mine Act to apply the substantial evidence test. 30
U.S.C. § 823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as a
reasonable mind might accept as adequate to support [the Judge’s] conclusion.’” Rochester &
Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)).
13

We note that during the accident investigation, it was discovered that the truck’s
steering system was not well maintained. Several seals on the truck’s steering mechanism had
been installed backwards, resulting in a leakage of power steering fluid. 35 FMSHRC at 160.

38 FMSHRC Page 1593

Furthermore, Premier’s expert witness advanced a plausible theory of causation that
better fit the evidence in the record. The expert hypothesized that Johnson’s truck may have been
stuck in idle mode, causing both the brakes and steering to be simultaneously rendered
ineffective. 35 FMSHRC at 162. While the expert’s testimony did not definitively conclude that
the accident was caused by the truck slipping into idle mode, the existence of the expert’s
alternate theory of causation substantially detracts from the Secretary’s theory of the case.14
Next, we examine the Judge’s finding that the defects in the truck’s brakes were not
significant enough to cause the brakes to fail in typical usage. It was undisputed that the brakes
on Johnson’s truck had some defects, but that alone is insufficient to constitute a violation of
section 77.1605(b). Neither party’s expert witness testified that the defects were great enough to
render the brakes completely inoperable. Rather, the disagreement lies in whether the brakes, in
the condition in which they were found during MSHA’s investigation, would have been adequate
to stop Johnson’s truck on the roads it typically travels.
The crux of the Judge’s analysis on this point is the weight he gave to the testimony of
each party’s expert witness. The Secretary’s expert witness testified that the faults in the truck’s
service brakes would have prevented Johnson from safely stopping his vehicle and that it was
likely that the truck was traveling at a speed of more than 10 miles per hour. However, the Judge
gave little weight to this opinion due to the witness’ lack of experience with steering systems,
inconsistencies in his testimony concerning the speed of the truck and the condition of the
parking brake, and “generally poor reasoning.” 35 FMSHRC at 164. The Judge also noted that
the opinion of the Secretary’s expert as to the cause of the accident was influenced by a report
from manufacturer of the steering box, whom the expert admitted had an interest in finding that
the steering box was not at fault.. Id. at 160.
At the same time, the Judge found that the testimony of Premier’s expert witness was
well explained. Id. at 163–64. Premier’s expert witness testified that the defects in the service
brakes were not extensive, with only one of the six drum brakes too worn to have functioned.
Notwithstanding this defect, the expert testified that Johnson should have been able to stop his
vehicle traveling at a rate of 10 miles per hour. Id. at 159–60. Similarly, Premier’s expert
testified that the presence of grease on the brake drums and evidence of past overheating would
not have a meaningful effect on the brake’s performance. Id. at 158–59.
A Judge’s determinations of the weight given to expert opinions may not be overturned
lightly. Farmer, 14 FMSHRC at 1541; Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec.
1981). Further, the Commission has recognized that, because the Judge “has an opportunity to
hear the testimony and view the witnesses[,] he [or she] is ordinarily in the best position to make
a credibility determination.” In re: Contests of Respirable Dust Sample Alteration Citations, 17
FMSHRC 1819, 1878 (Nov. 1995) (quoting Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir.
1984)).
Although the Secretary offered some evidence that the brakes on Johnson’s truck were
incapable of stopping the truck, such evidence was mainly derived from testimony from a
14

Of course, as a general matter, in order to prove a violation of this standard requiring
adequate brakes, the Secretary is not required to prove that the violation caused an accident.

38 FMSHRC Page 1594

witness that the Judge determined not to be credible. We see no reason to take the extraordinary
step of disturbing the Judge’s credibility determination. Accordingly, we affirm the vacation of
Citation No. 8230317.
III.
Conclusion
For the foregoing reasons, we reverse the Judge on Citation No. 8230316 and find that
section 77.1607(b) was violated and that the violation was S&S. We affirm the Judge’s vacation
of Citation No. 8230317. We hereby remand the case to the Chief Administrative Law Judge for
reassignment15 and assessment of a civil penalty.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

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

15

We note that Judge Jeffery Tureck, who originally decided this case, has retired from
the Commission.

38 FMSHRC Page 1595

Commissioner Cohen, dissenting:
Although I agree with my colleagues that the record unquestionably demonstrates that
Premier Elkhorn committed an S&S violation of section 77.1607(b), I cannot join them in
dismissing the Judge’s erroneous exclusion of relevant evidence as mere harmless error. For the
reasons that follow, I conclude that this matter must be remanded for the Judge to reconsider
Premier Elkhorn’s level of negligence and the MSHA-alleged unwarrantable failure in violating
section 77.1607(b), and also whether the mine operator violated section 77.1605(b).1
Steve Johnson was a mechanic and truck driver for Trivette Trucking, a contractor that
hauled coal from Premier Elkhorn’s PE Southern Pike Co. coal mine to the company’s
preparation plant. On December 12, 2009, Johnson was driving a 5600i-model International
Paystar truck built in May 2005. Sec’y Ex. 1, 2, 12.
Truck manufacturers assign each vehicle a gross vehicle weight rating (“GVWR”) which
prescribes the weight that the truck’s components are designed to handle. The GVWR derives
from a combination of factors, including the tire and rims on the vehicle, the suspension system,
and the axle and braking system. Tr. 273–74. International Paystar assigned a GVWR of 82,600
pounds to the truck Johnson used in December 2009. Tr. 272, 521. International Paystar rated the
truck’s axle and braking system up to 85,000 pounds. Tr. 274–75. In the January 2005 operator’s
manual for International Paystar’s 5000i truck, the manufacturer warned that exceeding the
truck’s gross axle weight, gross vehicle weight, or gross combination weight rating by
overloading “can cause component failure resulting in property damage, personal injury, or
death.” Tr. 222; Sec’y Ex. 29 (excluded). Heavier vehicles require more force to stop than do
lighter vehicles. Tr. 229. A driver would need to use the brakes harder and longer to stop a
heavier truck. Tr. 278–79. The friction from using a brake generates heat. Tr. 278. When a brake
overheats, it becomes less effective. Tr. 233, 291. This phenomenon, called brake fade, can
ultimately lead the brake to fail outright. Tr. 233, 278. To prevent overheating, the truck is
equipped with brake drums that dissipate the heat from the braking system. Tr. 233. When the
truck is overloaded beyond the gross axle weight, however, the brakes can generate more heat
than can be dissipated through the brake drums. Tr. 277–78, 292–93. Truck drivers use the
engine’s braking power to help control the vehicle’s speed and preserve the regular brakes. Tr.
319. This engine brake, called a Jake brake, does not function when the truck is out of gear or
when the truck engine enters a self-preserving idle mode. Tr. 319, 454.
Unloaded, Johnson’s truck weighed approximately 42,000 pounds. Tr. 286, 315, 354. The
truck’s bed could hold nearly 80,000 pounds of the coal mined at the Premier Elkhorn mine. Tr.
315. Accordingly, the truck would weigh approximately 120,000 pounds when loaded to the
brim. Tr. 313–15, 521–22.
1

I recognize that Judge Jeffrey Tureck, who decided this case, has retired. I would have
Chief Judge Robert Lesnick assign another Judge to decide the issues of negligence and
unwarrantable failure for the section 77.1607(b) violation, as well as liability under section
77.1605(b), on remand. This case involved the fatality of a truck driver whose coal truck was
overloaded, and the virtual exoneration of the production operator, Premier Elkhorn. The
Secretary—and indeed the community of American citizens concerned about mine safety and
health—is entitled to have the issues in this case correctly adjudicated.

38 FMSHRC Page 1596

On the day of the accident, Premier Elkhorn miner Bobby Warf was operating the frontend loader to load the Trivette trucks with coal. Tr. 118–21. Because Premier Elkhorn’s frontend loaders did not have bucket scales weighing each bucket of coal, Warf was not aware of
precisely how much coal he loaded into the Trivette trucks.2 Tr. 127–28, 132. When Kentucky
state transportation officials were in the area, however, Warf and the other Premier Elkhorn load
operators routinely lightened the trucks’ loads to keep the vehicles from exceeding the state’s
90,000 pound weight limit. Tr. 130–32.
Warf told MSHA that he had loaded Johnson’s truck “heavy with a hump.” Tr. 83, 113–
14. Warf himself testified that he, like other Premier Elkhorn employees, loaded the coal
transport trucks with a hump in the back of the bed, called a graveyard hump. Tr. 125. On
December 12, 2009, Warf loaded Johnson’s International Paystar truck the same way that he
loaded the previous four trucks, including a graveyard hump. Tr. 114, 124–25. Because
Johnson’s truck overturned, officials could not determine precisely how much coal the truck was
carrying prior to the accident. Tr. 82. The truck immediately following Johnson’s was similarly
loaded, with a graveyard hump protruding above the top of the truck bed. Premier Ex. 6; Tr.
435–36. Because Premier Elkhorn paid Trivette by the weight of coal hauled, the mine
maintained weight records for each truck’s delivery. Tr. 61–63, 163, 187. The four trucks before
Johnson’s each carried between 71,000 and 85,000 pounds of coal. See Sec’y Ex. 17 (excluded);
Tr. 51–56, 71–73. Fully loaded, those four trucks, which were Mack trucks approximately the
same size as Johnson’s International Paystar truck, weighed from 116,000 pounds to 124,000
pounds.3 Id. In the two previous Saturdays hauling coal from the PE Southern Pike Co. mine,
Johnson made four trips, on average carrying nearly 73,000 pounds of coal per trip and weighing
slightly less than 115,000. See Sec’y Exs.13, 15 (excluded). Johnson similarly carried heavy
loads from other Premier Elkhorn mine sites, with his vehicle averaging approximately 116,000
pounds. See id.; Sec’y Exs. 14, 16 (excluded).
MSHA’s accident investigation uncovered a number of problems with Johnson’s truck.
One of the four rear brakes did not function whatsoever, allowing the truck’s rear right wheels to
roll even without the additional weight of coal. Tr. 285–86, 354. All three of the rear brake
drums that MSHA could safely examine were worn beyond the acceptable level. Tr. 288–90. The
worn-out drums had a diminished ability to transfer heat, reducing the brakes’ effectiveness. Tr.
288–90. In addition, both of the truck’s front brake drums were covered with grease that
lubricated the brakes, potentially reducing the friction produced and thus the brakes’
effectiveness. Tr. 287.
MSHA’s regulations require operators to perform safety checks each day and fix any
discovered problems before the vehicle is put into service. See Tr. 457–58. Premier Elkhorn’s
expert witness testified that truck operators should keep a log book of all such pre-operational
examinations and repair work performed on the vehicle. Tr. 457–59. During MSHA’s
investigation, however, the agency was unable to find any record of daily examinations being
2

Premier Elkhorn installed bucket scales on its front-end loaders in the weeks following
the fatal accident on December 12, 2009. Tr. 174.
3

MSHA’s mechanical engineer, Ronald Medina, testified that he had never seen a coal
truck with a GVWR exceeding 90,000 pounds. Tr. 247–50, 275–77.

38 FMSHRC Page 1597

performed or maintenance and repairs to Trivette’s fleet of trucks for more than a month prior to
the fatal accident. Tr. 105–107. Meanwhile, Premier Elkhorn did not have any system in place to
ensure its contractor, Trivette, was complying with MSHA regulations. Tr. 175–78.
Analysis
A. The Excluded Evidence
At the hearing, the Judge refused to admit several pieces of evidence that formed the
foundation of the Secretary’s case. First, the Judge excluded Secretary’s Exhibits 13–17, the
alleged weight tickets from the four trucks that immediately preceded Johnson’s on the day of
the accident and other weight tickets from Johnson’s trucks during the weeks leading up to
Johnson’s death. Tr. 64, 67–68, 71. The ALJ reasoned that the weight tickets were not relevant to
determining the weight of Johnson’s vehicle. Tr. 64–65. Next, the Judge refused to admit
Secretary’s Exhibit 29, an operator’s manual for a 5000i-model International Paystar truck
containing a warning regarding the hazards of exceeding the vehicle’s GVWR. Tr. 218–22. The
Judge determined that the Secretary had failed to provide sufficient foundation for the manual.
Tr. 222.
Commission Procedural Rule 63(a) provides, “[r]elevant evidence, including hearsay
evidence, that is not unduly repetitious or cumulative is admissible.” 29 C.F.R.
§ 2700.63(a). Although the Federal Rules of Evidence are not binding for Commission
proceedings, the Commission has looked to the rules for guidance. Mid-Continent Res., Inc., 6
FMSHRC 1132, 1135–36 & n.6 (May 1984). Federal Rule of Evidence 401 defines evidence as
relevant if it “has any tendency to make a fact more or less probable than it would be without the
evidence; and the fact is of consequence in determining the action.” Fed. R. Evid. 401. The
federal courts have held that Rule 401 has set a low bar for establishing relevancy. In Re: Paoli
R.R. Yard PCB Litig., 35 F.3d 717, 782–83 (3d Cir. 1994); see also Hurley v. Atlantic City
Police Dep't, 174 F.3d 95, 109–10 (3d Cir. 1999) (“Rule 401 does not raise a high standard.”).
The Secretary asserts that Johnson’s truck was too heavily laden with coal for the brakes
to stop the vehicle. PDR at 23–29. The weight tickets suggest that at least 17 times in the three
weeks prior to the December 12 accident, Premier Elkhorn loaded Johnson’s truck with nearly
twice as much coal as the vehicle’s components were designed to carry. Sec’y Exs. 13–16; Tr.
223–26. The tickets further suggest that on the morning of the accident, Premier Elkhorn loaded
the four similar trucks that immediately preceded Johnson’s with equally oversized loads. Sec’y
Ex. 17. These weight tickets suggest that Premier Elkhorn customarily loaded Trivette’s trucks
beyond the vehicles’ GVWR, and therefore similarly loaded Johnson’s truck.4 The evidence
from the weight tickets is completely consistent with Mr. Warf’s statement that he and other
employees at Premier Elkhorn regularly loaded trucks “heavy with a hump.” Tr. 83, 114, 125.
Indeed, Mr. Warf testified that he did not load Johnson’s truck any differently from the way he
had loaded the four preceding trucks. Tr. 124–25. He also testified that he would load the trucks
4

“Evidence of habit or custom is relevant to an issue of behavior on a specific occasion
because it tends to prove that the behavior on such occasion conformed to the habit or custom.”
Frase v. Henry, 444 F.2d 1228, 1232 (10th Cir. 1971).

38 FMSHRC Page 1598

more lightly when he was aware that state Department of Transportation inspectors were on the
nearby highway and might inspect them. Tr. 131–32.
The weight tickets also support MSHA’s evidence that the brakes on Johnson’s trucks
had been worn down from heavy use. Similarly, the operator’s manual supports the assertion that
overlarge loads caused the brake components in Johnson’s truck to fail. The manual contained
the following warning set out in bold type preceded by the sign of an exclamation point in a
black triangle: “WARNING: Do not exceed the truck’s gross axle weight, gross vehicle
weight, and gross combination weight ratings. Exceeding these ratings by overloading can
cause component failure resulting in property damage, personal injury or death.” Sec’y Ex.
29 at 100.5 Given the relevancy of this evidence, the Judge clearly erred by excluding the
Secretary’s exhibits.
Contrary to my colleagues, I cannot dismiss the Judge’s erroneous exclusions of relevant
evidence as mere harmless error. Before even reaching the merits of the Secretary’s case, the
Judge stated outright, “I will not consider any proposed findings for which excluded evidence is
cited as support.” 35 FMSHRC 150, 151 (Jan. 2013). Thus, the Judge preemptively foreclosed
any consideration of the Secretary’s assertion that the truck was overloaded during the accident
and that overloading can strain a vehicle’s brakes, causing them to fail catastrophically. Given
the Judge’s ruling, it is difficult to understand how my colleagues could conclude that the
admittedly erroneous exclusion of the Secretary’s evidence was harmless.
Indeed, after foreclosing consideration of the Secretary’s evidence and suggested
findings, the Judge determined that lack of evidence compelled him to conclude that “it is
impossible for the Secretary to prove that the truck was overloaded.” Id. at 155. This was an
impossibility of the Judge’s own design. Because Premier Elkhorn was not using a bucket scale
on the front-end loader, the operator only registered a truck’s weight after delivery to Premier
Elkhorn’s preparation plant. See Tr. 127–28, 133. Under the Judge’s logic and evidentiary
rulings, the Secretary could never demonstrate that the truck was overloaded, shy of setting
Johnson’s overturned truck upright, picking up every bit of spilled coal from the roadway,
placing all the coal back in the truck bed, and then weighing the truck with the coal in it.
In addition to finding that the truck was not overloaded, the Judge further determined that
“there is no basis to find that it is inherently unsafe for a truck to haul a load in excess of the
manufacturer’s GVWR.” 35 FMSHRC at 156. In stating such, the Judge not only ignored the
relevant operator’s manual, but also disregarded detailed, uncontradicted testimony regarding the
5

The Judge excluded the truck manual because it was dated January 2005 and the truck,
which had been manufactured in May 2005 according to the VIN number, was a 2006 model. Tr.
166–69, 220, 222; Sec’y Ex. 12. The Judge’s statement in excluding the manual was: “Probably
doesn’t cover a 2006 model.” Tr. 166–69. It is inconceivable to me how the Judge could
determine that a manual containing a clear warning that loading the truck in excess of its GVWR
can cause component failure resulting in death was not relevant to this case simply because it
was printed in conjunction with a year-earlier model of the truck. Perhaps the Judge was thinking
that International Paystar would omit the warning in the manual for next year’s 5000i-model
truck because some change in the configuration of the 2006 model of the 5000i made the
warning unnecessary.

38 FMSHRC Page 1599

wear that extra weight places on a vehicle’s brakes. MSHA’s Bellamy and Medina both
explained that the additional friction necessary to stop overloaded vehicles wears down the
vehicle’s brakes and generates excess heat. Tr. 228–30, 232–33, 277–79.
Indeed, in addition to ignoring the Secretary’s evidence, the Judge misconstrued the
testimony of Medina, MSHA’s expert witness. Medina explained that Johnson’s truck was
capable of carrying a load of up to 120,000 pounds. Tr. 313. However, he did not suggest, as the
Judge wrongly claimed, that the truck could carry such a heavy load safely on a steep incline. 35
FMSHRC at 156–57. To the contrary, Medina testified that carrying such large loads risked the
deterioration and ultimate failure of the brakes.6 Tr. 278–79, 318–22.
Under the harmless error rule, an error in admitting or excluding evidence may provide a
basis for granting a new trial if it affects a party’s “substantial rights” or if justice so requires.
Fed. R. Civ. P. 61; CFE Racing Products, Inc. v. BMF Wheels, Inc., 793 F.3d 571, 584 (6th Cir.
2015) (citing Morales v. Am. Honda Motor Co., 151 F.3d 500, 514 (6th Cir. 1998)).
Given the rulings by the Judge, I can only conclude that he did not give due consideration
to either the excluded evidence or related evidence from the Secretary, and thus adversely
affected the Secretary’s substantial rights.7 Here, justice required that the Judge give full
consideration to the Secretary’s erroneously-excluded evidence. The exclusion of the evidence
adversely affected the Secretary’s ability to prove high negligence and unwarrantable failure in
the section 77.1607(b) violation and to prove the section 77.1605(b) violation.
B. Citation No. 8230316 – Failure to Maintain Control of the Truck (Sec’y Ex. 2)
I agree with the majority that the record unquestionably demonstrates that Johnson failed
to maintain control of his truck. The Judge incorrectly concluded that the Secretary needed to
demonstrate the cause of the accident to prove a violation of the section. The Commission’s
holding to the contrary in Clintwood Elkhorn Mining Co., 35 FMSHRC 365 (Feb. 2013), is
controlling and requires that we reverse the Judge’s vacation of Citation No. 8230316 and find a
6

Premier Elkhorn’s expert, Rasnick, did not challenge Medina’s testimony regarding the
greater strain that overloading can place on a vehicle’s components.
7

The majority insists that the Judge nevertheless gave proper consideration to the
evidence. See slip op. at 5. Where the Judge expressly considered excluded evidence, however,
he did so to detriment of the Secretary. See 35 FMSHRC at 157 n.3 (“Had I admitted into
evidence the weight records for coal haul trucks that the Secretary proffered, they would have
shown that the trucks routinely carried loads of about 120,000 pounds without incident.”). In
determining whether a lower court abused its discretion in excluding relevant evidence under
Federal Rule of Evidence 403, however, the court views the excluded evidence in the light most
favorable to its proponent, giving the evidence its maximum reasonable probative force. See
Laney v. Celotex Corp., 901 F.2d 1319, 1320–21 (6th Cir. 1990), citing U.S. v. Schrock, 855 F.2d
327, 333 (6th Cir. 1988); Kelso v. Noble, 162 F.3d 1161, –––– (6th Cir. 1998) (unpublished table
decision). Accordingly, the majority’s reliance upon the Judge’s reading of the evidence is
misplaced.

38 FMSHRC Page 1600

violation of section 77.1607(b). See slip op. at 6. I similarly agree with my colleagues that the
record can only support a finding that the violation was S&S. Id. However, I disagree with their
conclusion that the Secretary would be unable to prove unwarrantable failure on remand.
Given the Judge’s incorrect understanding of the law and his improper exclusion of
evidence, the Commission should not rely upon his analysis to determine the operator’s level of
negligence. The courts have found a Judge’s improper evidentiary decisions to be reversible
error where the Judge incorrectly understood the evidence’s relevance to the substantive law at
issue. See Laney v. Celotex Corp., 901 F.2d 1319, 1320 (6th Cir. 1990) (reversing and remanding
for a new trial where the Judge improperly excluded evidence relevant to determining whether a
product was a substantial factor in plaintiff’s sickness); Davidson Oil Country Supply Co. v.
Klockner, Inc., 917 F.2d 185, 186–87 (5th Cir. 1990) (remanding for a new trial because the
Judge’s incorrect exclusion of evidence of similar product failures prevented appellant from
developing case).
Here, the Judge declined to consider the truck’s weight and GVWR in the context of the
violation. See 35 FMSHRC at 156. While that evidence is not necessary to show a violation of
section 77.1607(b), it is highly relevant as to whether Premier Elkhorn was negligent in
overfilling Johnson’s truck. By overloading the trucks, Premier Elkhorn increased the strain and
wear on the vehicles’ brakes, and thus the chances of a driver being unable to stop in an
emergency.8 Warf’s testimony and the excluded weight tickets suggest Premier Elkhorn did just
that to Johnson’s truck. Having dismissed Citation No. 8230316 outright, the Judge never gave
consideration to what role Premier Elkhorn’s actions played in causing the accident.
After reversing the Judge’s primary holding in this case, the majority nevertheless
decides to embrace the Judge’s other findings and holdings to reach conclusions the Judge never
considered. Because the Judge failed to properly consider the evidence in this matter, I would
remand the case for further deliberation regarding Premier Elkhorn’s negligence and whether the
operator’s actions constituted an unwarrantable failure to comply with section 77.1607(b).9 The
Judge makes no mention of Trivette’s failure to maintain a log of inspections and repairs for its
vehicles, or of Premier Elkhorn’s lax oversight of its contractor. These inadequacies similarly
militate for this case to be remanded for further consideration.

8

I note that, contrary to the Judge’s view of incentives, 35 FMSHRC at 157, Premier
Elkhorn’s policy of paying Trivette by the weight of coal hauled established an economic
incentive for Trivette to overload its trucks, move as much coal as possible in a limited time, and
then move on to another job. Trivette’s incentive to have its trucks overloaded created the
economic benefit to Premier Elkhorn of moving its coal more quickly.
9

Although the majority summarily rules out a finding of unwarrantable failure in this
matter without analyzing the factors relevant to such determinations, it remains unclear what
negligence they would assign to the operator in this matter. Slip op. at 7.

38 FMSHRC Page 1601

C. Citation No. 8230317 – Failure to Equip Truck with Adequate Brakes
In determining whether Premier Elkhorn violated section 77.1605(b) by failing to provide
adequate brakes, the Judge reasoned that the Secretary could prove a violation in two ways: (1)
by showing the condition of the brakes on Johnson’s truck caused the fatal accident, or (2) by
demonstrating the brakes were not adequate to stop the vehicle while carrying its typical load on
the road it normally travels. 35 FMSHRC at 163. In his analysis, the Judge determined that “[t]he
only way this accident makes any sense is if both the steering and the brakes were not applied or
stopped functioning simultaneously.” Id. at 161. Nevertheless, the Judge concluded that the
vehicle’s defective brakes were not the cause of the crash. Id. at 162. Moving to the second step,
the Judge determined that the Secretary had not proven the defects in the vehicle’s brakes would
fail in typical usage.
The majority affirms the Judge’s findings.10 Again, I cannot join them.
As to the first prong, the Judge himself said that both the steering and the brakes ceased
working. Id.at 161. Yet, the Judge’s analysis failed to recognize that causation necessarily
includes contribution. See, e.g., Michael v. United States, 338 F.2d 219, 221 (6th Cir. 1964)
(recognizing that a negligent act “need not be the final and immediate cause, but may be
actionable if it is a cause concurring with other negligence in proximately bringing about the
charged injury.”).
Regarding the second prong, as explained above, the Judge failed to fully consider
relevant evidence regarding the vehicle’s typical weight as loaded and the usual adequacy of its
brakes. This evidence goes to the heart of the adequacy of the vehicle’s brakes in everyday
usage. Moreover, the Judge misunderstood or misrepresented the testimony of witnesses, and
subsequently discounted their testimony. See 35 FMSHRC at 158.11 Because I find that the Judge
failed to properly consider excluded evidence and misunderstood the evidence before him, I
would vacate his decision to dismiss Citation No. 8230317.
10

In upholding the Judge’s determinations, the majority reasons in part that “[n]either
party’s expert witness testified that the defects were great enough to render the brakes
completely inoperable.” Slip op. at 8. To the contrary, however, Medina testified that the
damaged brakes on Johnson’s truck would not have held a 120,000 pound vehicle on a 15%
slope without the help of the engine retarder. Tr. 318. Medina further testified that the brakes
were unsafe even when the truck was not overloaded. Tr. 323;
35 FMSHRC at 158.
11

Medina testified the parking brake did not work whatsoever on one of the truck’s
wheels. He explained, however, that the parking brake simply engaged the truck’s regular brakes
on the rear axles. Tr. 267–68, 346–47. This testimony does not conflict with MSHA’s
investigation report. I note that the Judge discounted Medina’s testimony because Medina had
limited experience with steering systems, and because Medina relied upon a report that Rasnick
embraced. 35 FMSHRC at 160, 164. It is thus a mystery to me why the Judge disregarded all of
Medina’s testimony.

38 FMSHRC Page 1602

Conclusion
For the foregoing reasons, I would reverse the Judge on Citation No. 8230316 and find an
S&S violation of section 77.1607(b). I would remand the decision for a new Judge to consider
the negligence and unwarrantable failure designations for the violation. I would also vacate and
remand the Judge’s decision on Citation No. 8230317.

/s/ Robert F. Cohen, Jr.
Robert F. Cohen Jr., Commissioner

38 FMSHRC Page 1603

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

July 8, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. KENT 2011-1223

TRIVETTE TRUCKING
BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
DECISION
BY: Jordan, Chairman; Young, Nakamura, and Althen, Commissioners
This case involves two orders issued to Trivette Trucking (“Trivette”) by the Department
of Labor’s Mine Safety and Health Administration (“MSHA”) in connection with a fatal accident
in which a coal truck hit a berm and turned over. Pursuant to the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), MSHA issued orders
alleging violations of 30 C.F.R. § 77.1607(b)1 (requiring full control of moving equipment) and
30 C.F.R. § 77.1605(b)2 (requiring adequate brakes).
The Administrative Law Judge found a violation of section 77.1607(b) but held that the
Secretary did not meet his burden of establishing that the violation was the result of an
unwarrantable failure. The Judge vacated the order alleging a violation of section 77.1605(b). 35
FMSHRC 1934, 1943–45, 1951 (June 2013) (ALJ).
For the reasons that follow, we affirm the Judge’s decision.3

1

30 C.F.R. § 77.1607(b) requires that “[m]obile equipment operators shall have full
control of the equipment while it is in motion.”
2

30 C.F.R. § 77.1605(b) provides that “[m]obile equipment shall be equipped with
adequate brakes, and all trucks and front-end loaders shall also be equipped with parking brakes.”
3

On this same date, the Commission is also issuing a decision in a companion case which
arose from the same incident. Premier Elkhorn Coal Co., 38 FMSHRC ___, No. KENT 2011827 (July 8, 2016); see also infra note 4.

38 FMSHRC Page 1604

I.
Factual and Procedural Background
Premier Elkhorn Coal Company (“Premier”) operates a surface coal mine in Kentucky
and a nearby preparation plant. In December 2009, Steve Johnson, chief mechanic of contract
trucking company Trivette Trucking, was hauling coal from the mine to Premier’s plant in a
2006 International Paystar coal truck. During his first trip to the plant, Johnson began to
experience problems with his truck’s power steering after his truck was loaded with coal.
Johnson notified a fellow coal truck driver of the steering problem over the CB radio and pulled
his truck over so that he and the other driver could inspect the steering system. They were not
able to identify any defects, so Johnson resumed driving to the plant.
The section of haulage road on which Johnson was traveling was a relatively straight, but
steep, gravel road flanked with berms on both sides. After about 1300 feet at a downward grade
of 15–18%, the road leveled out for approximately two miles. While descending the steep section
of the road, Johnson’s truck left the normal travelway and started heading directly towards the
left berm. Before the truck began to make contact with the berm, Johnson jumped out of the
truck’s cab but was unable to clear the vehicle. Johnson became ensnared in the back left tandem
wheels and was dragged down the hillside until the truck ultimately flipped over. Johnson’s
injuries were fatal.
Following its fatality investigation, MSHA issued two orders to Trivette, the independent
contractor that owned and maintained Johnson’s truck.4 Order No. 8230314 alleges a violation of
30 C.F.R. § 77.1607(b) for failure to maintain full control over the haulage truck while it was in
motion. The order contends that Johnson’s truck was overloaded by 37,600 pounds based on the
maximum gross vehicle weight rating (“GVWR”) recommended by the truck’s manufacturer and
that the overloading contributed to Johnson losing control of his vehicle. Order No. 8230315
alleges a violation of 30 C.F.R. § 77.1605(b) for failure to maintain the truck’s brakes in
adequate condition. The order notes that axle grease was present on the left and right brake
drums and that the brake on the right rear tandem axle was not functional. MSHA designated
both violations as S&S and involving unwarrantable failures attributed to high negligence.5

4

Premier, the owner of the mine, was also issued two citations for violating the same
standards. See generally Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151 (D.C. Cir. 2006)
(the Secretary’s decision to cite the owner-operator of a mine and/or its independent contractor,
is an unreviewable exercise of prosecutorial discretion).
5

The S&S and unwarrantable failure terminology is taken from section 104(d)(1) of the
Act, 30 U.S.C. § 814(d)(1), which distinguishes as more serious any violation that “could
significantly and substantially contribute to the cause and effect of a . . . mine safety or health
hazard,” and establishes more severe sanctions for any violation that is caused by “an
unwarrantable failure of [an] operator to comply with . . . mandatory health or safety standards.”

38 FMSHRC Page 1605

The orders issued to Trivette did not go to a hearing. Instead, the parties agreed to adopt
the record developed in the Premier case and filed cross-motions for summary decision. 35
FMSHRC at 1935; see also Premier Elkhorn Coal Co., 35 FMSHRC 150 (Jan. 2013) (ALJ).
In his decision, the Judge upheld the order alleging failure to maintain control over the
truck, but removed the unwarrantable failure designation. The Judge found the Commission’s
decision in Clintwood Elkhorn Mining Co., 35 FMSHRC 365 (Feb. 2013), to be controlling and
thus held that Trivette violated § 77.1607(b) when Johnson failed to maintain control of his
truck. 35 FMSHRC at 1942–43.6 However, the Judge attributed no negligence to Trivette and
vacated the unwarrantable failure designation. The Judge reasoned that the Secretary’s theory of
negligence had been premised on the unproven allegation that Johnson’s truck was overloaded
and found that there was insufficient proof to establish that Trivette could have done anything to
prevent the fatal accident. Id. at 1944–45.
With regard to the order alleging inadequate brakes, the Judge suggested that a violation
of section 77.1605(b) could be found if the Secretary could prove either: (1) that the condition of
the brakes of Johnson’s truck caused the accident, or (2) that the defects in the brakes were
significant enough to cause the brakes to fail during typical usage of the vehicle. 35 FMSHRC at
1951. The Judge, however, found that the accident was most likely attributable to a steering
problem or another problem that caused the brakes and steering to fail simultaneously. Id. In
addition, the Judge credited the testimony of Premier’s expert witness that the brakes, while
suffering from minor defects, would have been adequate to stop Johnson’s truck at an estimated
speed of 10 mph.7 Accordingly, the Judge found that the Secretary had not met his burden of
proof to show that the brakes on Johnson’s truck were inadequate.
The Commission granted the Secretary’s petition for discretionary review (“PDR”). In his
PDR, the Secretary argued that the Judge erred by removing the unwarrantable failure
designation from Order No. 8230314 and vacating Order No. 8230315.
II.
Disposition
A. Exclusion of Evidence
The Secretary argues that the Judge erred in his analysis of whether Johnson’s failure to
maintain control of his truck constituted an unwarrantable failure by Trivette Trucking to comply
with a mandatory safety standard. In particular, the Secretary contends that his case was
6

Clintwood Elkhorn was issued shortly after the Judge’s decision in Premier Elkhorn but
before his decision in Trivette Trucking. In Clintwood Elkhorn, the Commission found that
section 77.1607(b) did not require the Secretary to prove “a causal or contributing factor for the
loss of control” of a vehicle. 35 FMSHRC at 370.
7

The Judge found the Secretary’s expert witness’s testimony to the contrary to be
unconvincing. 35 FMSHRC at 1951.

38 FMSHRC Page 1606

prejudiced by a series of evidentiary rulings that resulted in the exclusion of several key pieces of
evidence.
At the Premier Elkhorn hearing, the Judge did not admit Secretary’s Exhibit 29, a vehicle
manual purported to apply to the truck Johnson was driving. The Secretary had sought to
introduce this evidence to establish that he truck’s manufacturer warned that overloading in
excess of the GVWR of 82,600 pounds could cause “component failure, result in property
damage, personal injury, or death.” Tr. 222. The Judge also excluded Secretary’s Exhibits 13–17,
which purported to demonstrate that Premier regularly loaded trucks in excess of 120,000
pounds. These exhibits included truck weight tickets for the trucks loaded immediately before
Johnson’s truck on the day of the accident and for loads that Johnson had taken a couple of
weeks prior to the accident. Tr. 53.
The Commission’s procedural rules and other federal rules generally place a low bar on
the relevancy of evidence that can be admitted. 29 C.F.R. § 2700.63(a); 5 U.S.C. § 556(d); Fed.
R. Evid. 401; see also In re: Paoli R.R. Yard PCB Litig., 35 F.3d 717, 782–83 (3d Cir. 1994)
(finding Rule 401 to have “a low threshold of relevancy”). However, an error in admitting or
excluding evidence is generally deemed harmless if a party’s substantial rights have not been
affected. Fed. R. Civ. P. 61.
For the reasons set forth in our decision in Premier Elkhorn, we find that the failure to
admit the truck manual8 and the weight tickets constituted harmless error. Premier Elkhorn Coal
Co., 38 FMSHRC ___, No. KENT 2011-827 (July 8, 2016).
B. Order No. 8230314 – Failure to Maintain Full Control of the Truck
Although he had vacated a nearly identical citation issued to Premier, the Judge changed
his mind in his Trivette Trucking decision because of our decision in Clintwood Elkhorn. 35
FMSHRC at 1942–43, citing 35 FMSHRC at 370. Thus the only issue before us is whether the
Judge erred in removing the unwarrantable failure designation.
8

While the threshold for admissibility is low, a party seeking to introduce evidence must
nonetheless provide a proper foundation to establish its relevance. In the case of the truck
manual, Commissioner Young questions whether this was done. He notes that the Judge may
have foreclosed the Secretary’s efforts to provide a foundation for admissibility. Had the
exclusion of evidence been prejudicial, preventing a party from offering facts demonstrating its
relevance would be reversible error. See Gray v. North Fork Coal Corp., 35 FMSHRC 2349,
2359–60 (Aug. 2013) (noting an abuse of discretion standard for evaluating the Judge’s
exclusion of evidence, but characterizing exclusion of critical evidence as an “‘extreme’
sanction”). Conversely, if the Secretary had not effectively made a record of the evidence’s
relevance, his objection to the exclusion of that evidence may be deemed waived. See Cavataio
v. City of Bella Villa, 570 F.3d 1015, 1021 (8th Cir. 2009) (the requirement of making an offer of
proof to preserve the issue for appeal is “[o]ne of the most fundamental principles in the law of
evidence.”); but see Waltzer v. Transidyne Gen. Corp., 697 F.2d 130, 134 (6th Cir. 1983) (the
failure to make an offer of proof is not fatal where the “substance of the excluded evidence is
apparent from context within which the questions were asked.”).

38 FMSHRC Page 1607

We conclude that the Judge’s factual findings and credibility determinations are
supported by the record and preclude a finding that the violation resulted from an unwarrantable
failure. The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.
§ 814(d), and refers to more serious conduct by an operator in connection with a violation. In
Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at
2001.
The Secretary’s allegations of a heightened degree of negligence were predicated on the
theory that Johnson’s loss of control of his vehicle was caused, or contributed to, by the
overloading of his truck. However, the Judge determined that the record was insufficient to
establish the Secretary’s theory.
The Secretary’s evidence that Johnson’s truck was loaded in excess of 120,000 pounds is,
at best, circumstantial. The fact that the Secretary only relied on weight tickets of the truck
involved in the accident from four dates prior to the accident, and weight tickets of a different
type of truck from the day of the accident, calls into question the reliability of any inference as to
the weight of Johnson’s truck on the day of the accident. Moreover, the Secretary was unable to
convincingly establish that the GVWR set by the manufacturer was a reliable measure for
determining the maximum load that this particular truck could safely transport. It is thus difficult
to discern what the operator could have done differently to prevent or mitigate a hazardous
condition or practice.
Even considering the excluded evidence and assuming that Johnson’s truck was loaded in
excess of the manufacturer’s GVWR, the Judge’s findings do not support the Secretary’s theory.
Importantly, the Judge credited the testimony of Premier’s expert witness, Steve Rasnick, who
testified that Johnson’s truck was capable of safely handling a 120,000 pound load. 35 FMSHRC
at 1942. We see no basis for overturning the Judge’s determination on this point. See, e.g.,
Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992) (stating that Judge’s
credibility determinations are entitled to great weight and may not be overturned lightly).
Consequently, we find that the Secretary has failed, as a threshold matter, to meet his burden of
proof as to the unwarrantable failure designation.
C. Order No. 8230315 – Failure to Equip Truck with Adequate Brakes
To find a violation of section 77.1605(b), the Judge determined that the fact of the
violation could be established on either of two separate grounds. First, the Secretary could show
that the condition of the brakes on Johnson’s truck caused the fatal accident. If the brakes played
a role in the accident, the Judge reasoned that the inadequacy of the brakes would be selfevident. Failing to establish the brakes’ role in the accident, the Secretary could also prove a
violation by showing that the defects in the brakes were significant enough to cause the brakes to
fail during typical usage of the vehicle. 35 FMSHRC at 1951. The Judge ultimately found that
the Secretary had failed to establish either theory and vacated the order.
On appeal, the Secretary argues that the Judge should be reversed because his analysis
concerning this second order was predicated on his prior finding that the Secretary had failed to

38 FMSHRC Page 1608

prove that the truck was overloaded. The Secretary also contends that the Judge should not have
credited the testimony of Premier’s expert witness over his expert witness.
We conclude that the Judge’s finding that the brakes did not cause the fatal accident is
supported by substantial evidence.9 The events leading up to the accident were not indicative of
an accident caused by a brake failure. Prior to the accident, Johnson complained that he was
having difficulty steering his vehicle. Tr. 139–40. The problem was serious enough that Johnson
felt the need to pull the truck temporarily out of service to examine the vehicle.10 Additionally, at
the scene of the accident there were no skid marks to indicate that Johnson had unsuccessfully
attempted to slow or stop his vehicle. Rather, the tire tracks indicated that Johnson drove straight
into the berm.
Furthermore, Premier’s expert witness advanced a plausible theory of causation that
better fit the evidence in the record. The expert hypothesized that Johnson’s truck may have been
stuck in idle mode, causing both the brakes and steering to be simultaneously rendered
ineffective. 35 FMSHRC at 1949–50. While the expert’s testimony did not definitively conclude
that the accident was caused by the truck slipping into idle mode, the existence of the expert’s
alternate theory of causation substantially detracts from the Secretary’s theory of the case. 11
Next, we examine the Judge’s finding that the defects in the truck’s brakes were not
significant enough to cause the brakes to fail in typical usage. It was stipulated that the service
brakes on Johnson’s truck had some defects, but that alone is insufficient to constitute a violation
of section 77.1605(b). See 35 FMSHRC at 1937. Neither party’s expert witness testified that the
defects were great enough to render the brakes completely inoperable. Rather, the disagreement
lies in whether the brakes, in the condition in which they were found during MSHA’s
investigation, would have been adequate to stop Johnson’s truck on the roads it typically travels.
The crux of the Judge’s analysis on this point is the weight he gave to the testimony of
each party’s expert witness. The Secretary’s expert witness testified that the faults in the truck’s
service brakes would have prevented Johnson from safely stopping his vehicle and that it was
likely that the truck was traveling at a speed of more than 10 miles per hour. However, the Judge
gave little weight to this opinion due to the witness’ lack of experience with steering systems,
inconsistencies in his testimony concerning the speed of the truck and the condition of the
9

When reviewing an Administrative Law Judge’s factual determinations, the
Commission is bound by the terms of the Mine Act to apply the substantial evidence test. 30
U.S.C. § 823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as a
reasonable mind might accept as adequate to support [the Judge’s] conclusion.’” Rochester &
Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)).
10

We note that during the accident investigation, it was discovered that the truck’s
steering system was not well maintained. Several seals on the truck’s steering mechanism had
been installed backwards, resulting in a leakage of power steering fluid. 35 FMSHRC at 1948.
11

Of course, as a general matter, in order to prove a violation of this standard requiring
adequate brakes, the Secretary is not required to prove that the violation caused an accident.

38 FMSHRC Page 1609

parking brake, and “generally poor reasoning.” Id. at 1951. The Judge also considered the fact
that the Secretary’s expert appeared to have changed his mind on whether the speed at which the
truck was driven contributed to the accident. Id. at 1946.
At the same time, the Judge found that the testimony of Premier’s expert witness was
well explained. Id. at 1951. Premier’s expert witness testified that the defects in the service
brakes were not extensive, with only one of the six drum brakes too worn to have functioned.
Notwithstanding this defect, the expert testified that Johnson should have been able to stop his
vehicle traveling at a rate of 10 miles per hour. Id. Similarly, Premier’s expert testified that the
presence of grease on the brake drums and evidence of past overheating would not have a
meaningful effect on the brake’s performance. Id. at 1947.
A Judge’s determinations of the weight given to expert opinions may not be overturned
lightly. Farmer, 14 FMSHRC at 1541; Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec.
1981). The Commission has recognized that, because the Judge “has an opportunity to hear the
testimony and view the witnesses[,] he [or she] is ordinarily in the best position to make a
credibility determination.” In re: Contests of Respirable Dust Sample Alteration Citations, 17
FMSHRC 1819, 1878 (Nov. 1995) (quoting Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir.
1984)).
Although the Secretary offered some evidence that the brakes on Johnson’s truck were
incapable of stopping the truck, such evidence was mainly derived from testimony from a
witness that the Judge determined not to be credible. We see no reason to take the extraordinary
step of disturbing the Judge’s credibility determination. Accordingly, we affirm the vacation of
Order No. 8230315.

38 FMSHRC Page 1610

III.
Conclusion
For the foregoing reasons, we affirm the Judge’s decision removing the unwarrantable
failure designation for failure to maintain full control of the truck and vacating the order alleging
a failure to equip the truck with adequate brakes.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

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

38 FMSHRC Page 1611

Commissioner Cohen, dissenting:
This case involves a fatal accident to Steve Johnson, the chief mechanic of Trivette
Trucking (“Trivette”). Trivette was an independent contractor, hauling coal for Premier Elkhorn
Coal Company. On the day of the accident, Johnson was driving a Trivette-owned truck and lost
control of his vehicle on a road with a 15–18% grade.
Following an investigation, MSHA issued citations to both Trivette and Premier Elkhorn,
charging both companies with violations of 30 C.F.R. § 77.1607(b), which requires operators to
maintain full control of moving equipment, and 30 C.F.R. § 77.1605(b), which requires adequate
brakes on mobile equipment. The Premier Elkhorn case came before a Commission Judge who
conducted a hearing, following which he dismissed all charges. Premier Elkhorn Coal Co., 35
FMSHRC 150 (Jan. 2013) (ALJ). In critical part, the Judge excluded significant evidence offered
by the Secretary which tended to show that the truck Johnson was driving was grossly
overloaded, that the trucks driven by Trivette employees in hauling coal for Premier Elkhorn
were routinely overloaded, and that the manufacturer of the truck had issued a prominent
warning that driving an overloaded truck can cause component failure leading to injury and
death.
Following the issuance of the Premier Elkhorn decision, the Secretary and Trivette
agreed, before the same Judge, that the Trivette case could be decided on cross-motions for
summary decision, based on the evidentiary record made in the Premier Elkhorn case and joint
stipulations. The Judge then issued his decision in this case, (1) upholding the section 77.1607(b)
violation against Trivette but reducing the negligence from high to none, eliminating the
designation of unwarrantable failure, and reducing the penalty to $1,000, and (2) dismissing the
order which charged a violation of section 77.1605(b). Trivette Trucking, 35 FMSHRC 1934
(June 2013) (ALJ). The Secretary appealed both decisions, and the Commission directed review.
Earlier today, the Commission released its decision in Premier Elkhorn Coal Co., 38
FMSHRC __, KENT 2011-827 (July 8, 2016). Because I could not conclude that the Judge’s
erroneous exclusion of evidence constituted harmless error, and because I disagreed with my
colleagues’ consideration of the Judge’s handling of the two citations, I dissented from the
majority opinion in that case. 38 FMSHRC __, slip op. at 13–18.

38 FMSHRC Page 1612

I incorporate my dissenting opinion in Premier Elkhorn herein. For the same reasons
expressed therein, I renew my dissent here. I would vacate and remand this case so the Judge1
could properly consider all of the Secretary’s evidence in analyzing the level of Trivette
Trucking’s negligence in the section 77.1607(b) violation and in determining whether the
company committed a violation of section 77.1605(b).

/s/ Robert F. Cohen, Jr.
Robert F. Cohen Jr., Commissioner

1

Judge Jeffrey Tureck, who decided this case, has retired. I would direct Chief Judge
Robert Lesnick to appoint another Judge to handle this case on remand.

38 FMSHRC Page 1613

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

July 8, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. KENT 2011-1557
KENT 2011-1558

v.
KENTUCKY FUEL CORPORATION
BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
DECISION
BY THE COMMISSION:
These civil penalty proceedings arise under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). Kentucky Fuel Corporation
challenges a Judge’s decision affirming a citation charging a violation of 30 C.F.R. § 77.1606(c).
Among other things, the Judge ruled that the citation was not duplicative of a citation charging a
violation of 30 C.F.R. § 77.404(a) that the Judge had already upheld.1 36 FMSHRC 159 (Jan.
2014) (ALJ). For the reasons that follow, we reverse the Judge and conclude that in this instance
the citation for the section 77.1606(c) violation was duplicative of the citation for the section
77.404(a) violation.
I.
Factual and Procedural Background
Kentucky Fuel operates the Beech Creek Surface Mine, a coal mine in Phelps, Kentucky.
In April 2011, an inspector with the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) went there to investigate a complaint MSHA had received the
previous day regarding the use of defective equipment. When the inspector was seen from a
guard shack arriving at the mine, a call was made to a miner who had been operating a bulldozer
all morning to remove rock and dirt. The miner was instructed to take the dozer to a service area
of the mine.
1

Section 77.1606(c), which applies to loading and haulage equipment, provides that
“[e]quipment defects affecting safety shall be corrected before the equipment is used.” Section
77.404(a) applies to “[m]obile and stationary machinery” and provides that such “equipment
shall be maintained in safe operating condition and machinery or equipment in unsafe condition
shall be removed from service immediately.”

38 FMSHRC Page 1614

Consequently, the inspection of the dozer was conducted in the service area. The
inspector then issued Citation No. 8258770, alleging 11 separate defects in the dozer. The
citation was subsequently modified to allege a twelfth defect.
The first standard alleged to be violated was 30 C.F.R. § 77.404(a), the general
equipment maintenance standard for surface coal mines. The inspector designated the violation
as significant and substantial (“S&S”) and attributable to Kentucky Fuel’s unwarrantable failure
and high negligence.2 MSHA subsequently proposed a penalty of $14,000 against Kentucky Fuel
for this alleged violation.
The inspector also issued Citation No. 8258773, the one at issue on review, for a
violation of section 77.1606(c). The citation largely relies on the section 77.404(a) violation for
its narrative. It states that Kentucky Fuel “failed to correct equipment defects affecting safety
prior to using the equipment. The operator of the Cat D0N dozer, Co. #1, has recorded numerous
defects that needed to be corrected since 3-18-2011, and the operator failed to make any
corrections.” Gov’t Ex. 7, at 1. The inspector alleged that a fatal injury from operating the dozer
was highly likely to occur, that the violation was S&S, and that the negligence involved was
high. MSHA later proposed a penalty of $14,373.
Addressing the first alleged violation (of section 77.404(a)), the Judge found that, while
Kentucky Fuel was disputing that some of the cited defects would affect the safe operation of the
dozer, it did not deny that the dozer’s horn and backup alarm were not working, that its engine
cover was missing, and that it was leaking oil. The Judge also found that the inspector’s review
of Kentucky Fuel’s pre-operation inspection reports for the dozer that could be located indicated
that the defects in the dozer had been noted going back to March 18. Consequently, the Judge
affirmed the violation and the S&S, unwarrantable failure, and high negligence designations, and
assessed an increased penalty of $20,000. 36 FMSHRC at 163-64.3
The Judge also affirmed the second citation. She rejected Kentucky Fuel’s argument that
a dozer is not covered by section 77.1606(c) because it cannot be considered to “load” or “haul”
material under definitions of those terms. She found a violation based on the fact of the
uncorrected defects that supported the first citation, along with the evidence of the dozer’s use by
Kentucky Fuel. For that reason, she did not agree with Kentucky Fuel that the two citations are
2

The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C.
§ 814(d)(1), which distinguishes as more serious any violation that “could significantly and
substantially contribute to the cause and effect of a . . . mine safety or health hazard.” The
unwarrantable failure terminology is taken from the same section, and establishes more severe
sanctions for any violation that is caused by “an unwarrantable failure of [an] operator to comply
with . . . mandatory health or safety standards.”
3

Pursuant to section 110(c) of the Mine Act, 30 U.S.C. § 820(c), the Secretary of Labor
had also sought to collect a $3,000 penalty from Kentucky Fuel foreman Lloyd Keith Branham
for the violation. The Judge declined to find Branham liable under section 110(c), concluding
that there was insufficient evidence that he knew of the dozer’s defects. The Judge instead found
that the mine superintendent at the time of the violation, but who soon thereafter left the mine,
was collecting the incriminating inspection reports. 36 FMSHRC at 164-66.

38 FMSHRC Page 1615

duplicative. She upheld the S&S and high negligence designations, and assessed a slightly
increased penalty of $15,000. Id. at 166-68.
II.
Disposition
Kentucky Fuel argues that the Judge erred in concluding that the citation for the section
77.1606(c) violation is not duplicative of the citation the operator received for violating section
77.404(a). The operator contends that the purpose of both standards is to prohibit the operation
of equipment with defects.
The Secretary responds that section 77.404(a) imposes a maintenance obligation that was
not met by Kentucky Fuel. The Secretary argues that the Judge was thus correct to recognize that
section 77.1606(c), by prohibiting the operation of defective equipment, imposes an additional
obligation that is not mentioned in section 77.404(a), and thus the two citations were not
duplicative under the case law.
The Commission has held that citations or orders are not duplicative as long as the
standards allegedly violated impose separate and distinct duties. Western Fuels-Utah, Inc., 19
FMSHRC 994, 1003 (June 1997); see also Sumpter v. Sec’y of Labor, 763 F.3d 1292, 1301 (11th
Cir. 2014); Spartan Mining Co., 30 FMSHRC 699, 716 (Aug. 2008); Cyprus Tonopah Mining
Corp., 15 FMSHRC 367, 378 (Mar. 1993) (violations are not duplicative merely because they
emanate from the same events); El Paso Rock Quarries, Inc., 3 FMSHRC 35, 40 (Jan. 1981)
(hole in fence around electrical power transformer and leaving fence gate unlocked constituted
separate offenses). In reviewing whether standards impose separate duties, the Commission does
not view standards in a vacuum. Rather, because the question is whether citations are
duplicative, the standards are examined as they are being applied to the operator through the
citations in question. See Western Fuels-Utah, 19 FMSHRC at 1004 & n.12.
Section 77.404(a) requires that any “[m]obile and stationary machinery and equipment
shall be maintained in safe operating condition and machinery or equipment in unsafe condition
shall be removed from service immediately.” The citation issued to Kentucky Fuel for violating
that standard recites the defects in the dozer, and states that the defective dozer was “being used
at this mine site,” and “[m]anagement was well aware of the defects . . . since 3-18-2011[,]” but
“made the decision and could not justify the continual operation of the dozer without correcting
the defects. The operator has engaged in more tha[n] ordinary negligence. This violation is an
unwarrantable failure to comply with a mandatory standard.” Gov’t Ex. 1, at 1-2.
Consequently, in affirming the violation, the Judge read the citation to allege that
Kentucky Fuel had not only failed to maintain the dozer or remove it from service, as section
77.404(a) requires, but that the operator had also taken the further step of using the dozer in its
defective condition. See 36 FMSHRC at 164 (“Further, the dozer was being operated on the day
of the citation but was taken out of service as soon as the mine learned that an inspector was
nearing the site.”). The Judge then took the fact of that use into account in finding the violation
to be attributable to the operator’s unwarrantable failure to comply with the Mine Act, and in
assessing a penalty 33% higher than the Secretary had requested. Id. (“This violation is further

38 FMSHRC Page 1616

aggravated by the fact that the dozer was being used earlier that day but taken out of service
immediately when the inspector arrived on the property. For all of the reasons listed herein, I
assess a penalty of $20,000.00.”).
With regard to why Kentucky Fuel was cited in this instance for also violating section
77.1606(c), the more specific loading and haulage equipment standard, nothing in the record
establishes any difference in how it was applied to Kentucky Fuel’s conduct. Section 77.1606
states in pertinent part that:
(a) Mobile loading and haulage equipment shall be
inspected by a competent person before such equipment is placed
in operation. Equipment defects affecting safety shall be recorded
and reported to the mine operator.
....
(c) Equipment defects affecting safety shall be corrected
before the equipment is used.
Kentucky Fuel was cited for violating the standard because it “failed to correct equipment
defects affecting safety prior to using the [dozer].” Gov’t Ex. 7, at 1. In seeking to have the
section 77.1606(c) violation affirmed, the Secretary can point to no conduct by Kentucky Fuel in
using the dozer that was not already considered by the Judge in finding a violation of section
77.404(a) and assessing a penalty for that violation. Consequently, under Western Fuels-Utah,
the section 77.1606(c) citation is duplicative. See 19 FMSHRC at 1004 & n.12 (conduct
governed by the two standards was the same given the facts of the two citations).
We note that MSHA recognizes the potential for duplicative citations to be written when
section 77.404(a) is invoked. Its Program Policy Manual states that the section “should be used
only where such condition is not covered by any other regulation.” PPM Vol. V, at 171 (Feb.
2003).
The Secretary argues that the differences in abatement between the two violations
establish that the citations were nevertheless not duplicative. The section 77.404(a) citation was
terminated four days after issuance when it was determined by MSHA that the defects in the
dozer had been corrected. Tr. 73; Gov’t Ex. 1, at 4. The section 77.1606(c) violation was not
terminated for another week. Tr. 79; Gov’t Ex. 7, at 2.
Termination of the latter violation, however, included MSHA’s ascertaining whether
Kentucky Fuel was making repairs as identified from the pre-operation inspections it had
conducted subsequent to the date of the original MSHA inspection. Moreover, the equipment
MSHA was checking was not limited to the dozer, but rather extended to other equipment at the
mine that had not been cited. Tr. 79. Given these circumstances, the differences in abatement do
not rebut the duplicative nature of the two citations here.
Because we are reversing the Judge’s determination regarding the duplicative nature of
two citations at issue here, we need not address Kentucky Fuel’s additional contention that the

38 FMSHRC Page 1617

dozer, because it merely “pushe[d]” dirt or rock, does not qualify as either “loading” or
“haulage” equipment to which section 77.1606 applies.
III.
Conclusion
For the foregoing reasons, we reverse the Judge’s decision affirming Citation No.
8258773 for a violation of section 77.1606(c) and vacate the citation.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

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

38 FMSHRC Page 1618

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

July 12, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. VA 2013-275-M
VA 2013-276-M
VA 2013-291-M

v.
SUNBELT RENTALS, INC.; LVR, INC.;
and ROANOKE CEMENT CO., LLC
BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
DECISION
BY: Jordan, Chairman, Nakamura, and Althen, Commissioners
These civil penalty proceedings arise under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”) and involve three citations issued to Sunbelt
Rentals, Inc. (“Sunbelt”), LVR, Inc. (“LVR”), and Roanoke Cement Co., LLC (“Roanoke”) by
the Department of Labor’s Mine Safety and Health Administration (“MSHA”). All three
citations allege a violation of 30 C.F.R. § 56.18002(a), which requires the operator’s designated
examiner to examine each working place at least once each shift for safety and health hazards.1
Sunbelt, LVR, and Roanoke were each cited for failing to adequately examine a workplace.
The assigned Administrative Law Judge dismissed the three citations because he found
that the Respondents2 had met the requirements of section 56.18002(a). In this regard, the Judge
found that the standard does not require an “adequate” workplace exam and that the
Respondents, in any event, lacked notice of such an “adequacy” requirement. 35 FMSHRC 3208,
3214-15 (Sept. 2013) (ALJ).

1

30 C.F.R. § 56.18002(a) provides that “[a] competent person designated by the operator
shall examine each working place at least once each shift for conditions which may adversely
affect safety or health. The operator shall promptly initiate appropriate action to correct such
conditions.”
2

Sunbelt, LVR, and Roanoke are sometimes referred to collectively herein as the
“Respondents.”

38 FMSHRC Page 1619

The Secretary filed a petition for discretionary review of the Judge’s decision, which we
granted. LVR and Roanoke subsequently filed a motion to be dismissed from these proceedings.3
For the reasons that follow, we deny LVR and Roanoke’s motion and vacate and remand
the Judge’s decision as to all three citations.
I.
Factual and Procedural Background
Roanoke operates a preheat4 tower comprised of six vertically connected conical vessels
(“cyclones”) which process heated limestone material. LVR contracted with Roanoke to perform
annual pre-heat tower maintenance. Sunbelt contracted with LVR to erect scaffolding within the
tower so LVR could perform its annual maintenance.
The tower contains an exterior staircase, which can be used to access a small two-foot by
two-foot door at the seventh level. By looking through this doorway, one can examine the
seventh level. On January 8, 2013, Sunbelt, the subcontractor, was planning to erect scaffolding
at the sixth level of the pre-heat tower. At the start of the shift, Kendrick Lavon Davis, who has
supervised scaffold erection projects for Sunbelt for the prior seven years, examined the sixth
level. While on the sixth level of the tower, Davis also visually inspected the seventh level.
However, Davis did not climb the external staircase and look through the small doorway at the
seventh level.
During the shift on January 8, 2013, unspecified falling material knocked a Sunbelt
employee, Brian Tyler, unconscious while he was working in the pre-heat tower. Subsequently,
MSHA Inspector David Nichols looked through the aforementioned two-foot doorway into the
seventh level and observed a buildup of material which could have fallen through a six-foot long
hole between the sixth and seventh levels, above where Tyler was working.
Inspector Nichols issued three citations, one each to Sunbelt,5 LVR,6 and Roanoke.7 The
proposed penalty assessments were $51,900, $47,300 and $52,500 respectively. The inspector
3

In an order issued on January 13, 2014, the Commission stated that it would consider
Roanoke and LVR’s motion to drop at a later time, along with the issues raised in the Secretary’s
petition.
4

Preheat is defined as “[t]o heat beforehand; as . . . to heat (metal) prior to a thermal or
mechanical treatment.” Am. Geological Institute, Dictionary of Mining, Mineral, and Related
Terms 424 (2d ed. 1997).
5

Citation No. 8723677 was issued to Sunbelt because it “did not do an adequate work
place exam in the area [the workers] were working as there [was] hanging material overhead that
had not been noted on the workplace exam. The area above [on the seventh level] was never
checked” (emphasis added).

38 FMSHRC Page 1620

specified that each of the Respondents in question violated section 56.18002(a) due to its failure
to “adequately” inspect the seventh level of the pre-heat tower, the area above where the
employees were working.8
II.
The Judge’s Decision
Before the hearing, the Secretary filed a motion for partial summary decision, Sunbelt
filed a cross-motion for summary decision, and LVR and Roanoke filed a joint cross-motion for
summary decision. 35 FMSHRC at 3209. Based on his findings, the Judge granted the
Respondents’ cross-motions for summary decision, and dismissed the proceedings.
The Judge found that the standard does not require that the workplace exam be
“adequate.” Instead, the Judge found that the competent person designated by the operator must
simply conduct a workplace exam, although a failure to identify “numerous,” “obvious,” or
“egregious” hazards would equate to a failure to conduct the exam. Id. at 3215 n.7. The Judge
concluded that Davis had conducted the required workplace exam; that Sunbelt, LVR and
Roanoke had designated Davis to examine the workplace; and that Davis was “competent” based
on his experience and qualifications. Id. at 3215. However, the Judge speculated that Davis may
have been negligent when conducting the workplace exam. Id..
The Judge dismissed LVR and Roanoke from these proceedings, rejecting “any . . .
argument that [s]ection 56.18002[a] imposes a duty on multiple operators to perform multiple
examinations of the same working place when the examination has already been done by a
competent person.” Id. at 3214. The Judge also found that all three Respondents lacked notice
that the standard required “adequate” workplace exams. Id. at 3215.
The Judge briefly discussed whether the seventh level was a “working place” as the term
is used in the standard but did not resolve that question. Id. at 3213-14.
6

Citation No. 8723676 was issued to LVR because it “did not do an adequate work place
exam as [it] never inspected the area [on the seventh level] above where the employees were
working where there was hanging material.” (emphasis added). In the condition or practice
section for Citation No. 8723676, the inspector mistakenly referred to Sunbelt rather than LVR.
As noted in Citation No. 8723676-01, the inspector amended the citation to correct the error.
7

Citation No. 8723675 was issued to Roanoke because it “[had] last done a workplace
exam 7 days before the accident of the area the contractor was working in. The last workplace
exam was done on 12/30/2012 and at that time the area [on the seventh level] above where the
contractor was working was not checked for hazards before turning over the area to the
contractor.”
8

Unlike the citations issued to Sunbelt and LVR, the citation issued to Roanoke did not
expressly use the term “adequate.”

38 FMSHRC Page 1621

III.
Post-Decisional Proceedings
The Secretary’s Petition for Discretionary Review (“PDR”) raised the following issues:
(1) whether the Judge erred in ruling that 30 C.F.R. § 56.18002(a) does not require that
workplace examinations be “adequate,” (2) whether the Judge erred in ruling that Respondents
lacked fair notice that the standard requires “adequate” workplace exams, and (3) whether, if the
standard contains an “adequacy” requirement, the Judge erred in ruling that there was no issue as
to any material fact and that Respondents were entitled to judgment as a matter of law. The PDR
maintained that an “adequate” exam had not been conducted but did not define the term
“adequate” in the context of workplace exams under the standard.
A. LVR and Roanoke’s Motion
After the Commission issued its Direction for Review, LVR and Roanoke filed a motion
requesting that the Commission dismiss them from these proceedings. See Motion To Drop
Respondents Roanoke Cement and LVR For Misjoinder and Dismiss Docket Nos. VA 2013276-M and VA 2013-275-M. LVR and Roanoke contend that they were not cited under a theory
of strict liability for failing to ensure that Sunbelt had conducted an “adequate” workplace exam.
Instead, they claim they were cited independently of Sunbelt’s actions because allegedly they
themselves did not conduct independent “adequate” workplace exams. They claim that the
Judge, when discussing whether the standard imposes a duty on multiple operators to perform
multiple exams of the same workplace, found a second independent workplace exam of the same
area to be unnecessary even if the first workplace exam was so flawed that it violated the
standard. Based upon these premises, they assert that the Secretary’s PDR failed to appeal the
ruling by the Judge regarding the duty to conduct multiple exams.
In response, the Secretary maintains that the Judge dismissed LVR and Roanoke from
these proceedings because he found that Sunbelt’s exam satisfied the standard’s requirements as
interpreted by the Judge. According to the Secretary, because the Judge’s dismissal of the
citations against LVR and Roanoke was premised upon no violation by Sunbelt, the vacation of
the dismissals against them is necessarily implicated by the Secretary’s challenge presented to
the Commission. The Secretary asserts that if the standard requires “adequate” workplace exams,
the Judge must reconsider his finding that Sunbelt’s exam met the standard’s requirements and,
therefore, also must reconsider his dismissals of LVR and Roanoke.
B. The Meaning of the Term “Adequate” as Applied to the Standard
The Secretary did not define the term “adequate” before the Judge or in his PDR. During
oral argument before the Commission, the Secretary sought to rectify this omission and stated
that a workplace exam under the standard is “adequate” “if it is reasonably likely to identify
conditions which may adversely affect safety and health.” Oral Arg. Tr. 9-10. After oral
argument in this case, the Secretary requested an opportunity to file a supplemental brief,
whereupon the Commission ordered Sunbelt and the Secretary to file supplemental briefs. In his
supplemental brief, the Secretary asserted that a workplace exam is “adequate” if the “operator’s

38 FMSHRC Page 1622

examiner [identifies] all of the conditions that a reasonably prudent examiner would identify that
may adversely affect safety and health.” S. Supp. Br. at 5-6.
Sunbelt responded that we should reject the Secretary’s interpretation of the term
“adequate” because it was provided unfairly for the first time on appeal during oral argument and
that, in any event, it is not entitled to deference. Sunbelt further contends that it did not receive
fair notice of the proffered definition. Furthermore, an independently sufficient basis supports
affirmance of the Judge’s decision.
IV.
Disposition
A. LVR and Roanoke’s Motion to Dismiss9
We deny LVR and Roanoke’s motion to dismiss. It is well established that MSHA has
discretion to cite production-operators for violations of mandatory safety standards committed by
their independent contractors on the mine site. Speed Mining, Inc. v. Fed. Mine Safety & Health
Review Comm’n, 528 F.3d 310, 314 (4th Cir. 2008) (the Secretary has discretionary authority to
cite the operator, the independent contractor, or both for an independent contractor’s violations);
Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 157-58 (D.C. Cir. 2006) (the Secretary has
unreviewable discretion to cite production-operator, the independent contractor, or both, for
contractor violations); see also Bituminous Coal Operators’ Ass’n v. Sec’y of Interior, 547 F.2d
240 (4th Cir. 1977) (finding that under the Coal Act of 1969, the Secretary may hold a mining
company liable for violation committed by its construction company).
Moreover, we have no doubt that the inspector knew that Sunbelt was the entity
responsible for the examination but found that a violation by Sunbelt also implicated LVR and
Roanoke.10 It is not reasonable to think that the inspector in this case would have cited LVR and
Roanoke if Sunbelt’s examination complied with the examination standard. It simply is not
plausible for us to believe, or for LVR or Roanoke to contend, that had the inspector been
present during the inspection and found the examination to be adequate, the inspector would

9

Commissioners Young and Cohen do not join this section of the opinion.

10

We do not demand that inspectors write citations with the legal precision of attorneys
sitting in comfortable offices. We read the citations as reflecting the inspector’s knowledge that,
if a contractor does not comply with an examination obligation, he may also cite the productionoperator.

38 FMSHRC Page 1623

have cited LVR and Roanoke for failing to conduct simultaneous inspections.11 Such a claim is
not the gravamen of the citation.12
Because the Judge decided the case upon summary judgment, there is no hearing record
supporting theories of liability or defense. However, in reviewing the Judge’s decision, it appears
that the Judge’s dismissal of LVR and Roanoke was based upon his finding that Sunbelt had not
violated the standard. Specifically, the Judge rejected “any . . . argument that [s]ection
56.18002[a] imposes a duty on multiple operators to perform multiple examinations of the same
working place when the exam has already been done by a competent person.”13 35 FMSHRC at
3214 (emphasis added).
Thus, the Judge expressly linked his dismissal of LVR and Roanoke to his finding that
Sunbelt complied with the mandatory safety standard. In effect, the Judge recognized that the
validity of the citations against LVR and Roanoke was inextricably intertwined with the citation
to Sunbelt. That being the case, our review of the Sunbelt citation necessarily is relevant to the
dismissals of LVR and Roanoke.14

11

We are unaware of any instance in which MSHA has asserted that a productionoperator has a duty to conduct a duplicative examination of a working place that is under the
exclusive control of an independent contractor that has inspected the area satisfactorily. We
reject the suggestion that the Judge interpreted the issue with respect to LVR and Roanoke as
whether they had a separate duty to perform duplicative examinations of the same workplace
even if Sunbelt conducted a compliant examination.
12

See Brock v. Dow Chemical U.S.A., 801 F.2d 926, 930 (7th Cir. 1986) (holding that it
is well-established that administrative pleadings are to be liberally construed, that this is
particularly true for citations issued under the Occupational Safety and Health Act of 1970,
because the citations are drafted by non-legal personnel who must act quickly and that to hold
inflexibly the Secretary of Labor to a narrow construction of the language of a citation would
unduly cripple enforcement of the Act).
13

The phrase “competent person” refers to a requirement of the standard, that a
“competent person” designated by the operator conduct the workplace exam.
30 C.F.R. § 56.18002(a).
14

Thus, we find that the Secretary’s Petition for Review, challenging the Judge’s finding
of no violation of the examination standard, raised the issue of LVR and Roanoke’s liability.

38 FMSHRC Page 1624

We deny LVR and Roanoke’s motion to dismiss.15
B. Interpretation of 30 C.F.R. § 56.18002(a)
The principal issue before the Commission is the extent to which section 56.18002(a)
creates substantive requirements for the conduct of an examination pursuant to that section. The
Judge found the section does not require that the workplace examination be “adequate.” Instead,
the Judge held merely that an examiner’s failure to identify “numerous,” “obvious,” or
“egregious” hazards might equate to “failure to perform the requisite exam.” Id. at 3215 n.7. The
Judge’s holding that the examination need not be adequate was erroneous. Accordingly, we
vacate his decision.
We do not agree that the operator must only examine the workplace to a standard of care
slightly surpassing not conducting the examination at all. Section 56.18002(a) consists of only
two sentences. The first sentence requires that “[a] competent person designated by the operator
shall examine each working place at least once each shift for conditions which may adversely
affect safety or health.” 30 C.F.R. § 56.18002(a). The requirement that the operator designate a
“competent person” to conduct the examination must mean that there will be substance to the
examination. Many miners could detect “obvious” or “egregious” hazards. The requirement that
a competent person examine the working place certainly raises the substantive requirement for
the examination to the level of a meaningful examination.
The second sentence of section 56.18002(a) mandates that, “[t]he operator shall
promptly initiate appropriate actions to correct such conditions.” Id. Therefore, this sentence
requires the correction of the conditions referred to in the preceding sentence – “conditions that
may adversely affect safety or health.” By doing so, it sets forth the substantive

15

As discussed below, we remand the Judge’s decision for a determination of whether
Sunbelt’s examination complied with the requirements of section 56.18002(a) as set forth in this
decision. If the Judge finds that Davis’ inspection did not meet the requirements of section
56.18002(a), he will have to make a negligence determination for each Respondent. Negligence
determinations necessarily require analysis of whether each Respondent met its particular duty of
care considering the actions a reasonably prudent operator in its position would have taken under
the same or similar circumstances. Jim Walter Res., Inc., 36 FMSHRC 1972, 1975 (Aug. 2014).
For example, in Jim Walter, the Commission affirmed a finding that the production-operator was
not negligent when one of its contractors failed to require use of fall protection in violation of 30
CFR 77.1710(g). Id. at 1975-76. Factors used by the Commission in assessing the productionoperator’s liability include whether the record demonstrates the production-operator was
negligent in hiring the contractor, the contractor was appropriately aware of MSHA’s
regulations, the contractor had provided its employees required training, and whether there is any
indication of negligence by the production-operator with respect to the specific violation. Id. at
1976-77.

38 FMSHRC Page 1625

requirement for the examination. The examination is to identify “conditions that may affect
safety or health.”16 Id.
Having determined that under the standard, the examination must be adequate, we must
articulate the appropriate test for such an examination. We conclude that the application of the
“reasonably prudent” miner test is appropriate here. U.S. Steel Mining Co., LLC, 27 FMSHRC
435, 439 (May 2005). Before the Judge and in his PDR, the Secretary argued that workplace
exams must be “adequate” but failed to define that term. In his supplemental brief on appeal,
the Secretary argued that to be “adequate” the workplace examination “must identify all of the
conditions that a reasonably prudent examiner would identify that may adversely affect
safety and health.” S. Supp. Br. at 5-6. He asserted that compliance with 30 C.F.R. §
56.18002(a) must be judged according to a reasonably prudent person test just like compliance
with any other generally worded standard. Id. at 14.
The Commission has consistently applied the reasonably prudent person test to broadly
worded standards. See U.S. Steel Mining Co., 27 FMSHRC at 439.17 The reasonably prudent
person test provides that an alleged violation is appropriately measured against whether a
reasonably prudent person, familiar with the factual circumstances surrounding the allegedly
hazardous condition, including any facts peculiar to the mining industry, would recognize a
hazard warranting correction within the purview of the applicable standard. Spartan Mining Co.,
Inc., 30 FMSHRC 699, 711 (Aug. 2008); see also Asarco, Inc., 14 FMSHRC 941, 948 (June
1992); Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982).
In Spartan Mining, for example, the standard at issue required that equipment be
maintained in safe operating condition. We held that under this standard, “the alleged violative
condition is measured against the standard of whether a reasonably prudent person familiar with
the factual circumstances surrounding the allegedly hazardous condition, including any facts
peculiar to the mining industry, would recognize a hazard warranting corrective action within the
purview of the applicable regulation.” 30 FMSHRC at 711. We concluded that “a reasonably
prudent foreman would have recognized that the damaged cable at issue constituted a hazard
warranting corrective action.” Id. at 713.

16

This construction of section 56.18002(a) is consistent with Commission case law
construing regulations to further the protective purposes of the Mine Act. See, e.g., Sedgman, 28
FMSHRC 322, 330 (Jun. 2006). The requirement set forth in this opinion accords with our
avoidance of absurd interpretations of regulations. See Consolidation Coal Co., 15 FMSHRC
1555, 1557 (Aug. 1993); Rock of Ages Corp., 20 FMSHRC 106, 122 (Feb. 1998), aff’d 170 F.3d
148, 161 (2d Cir. 1999).
17

Accordingly, although the definition of “adequate” was articulated by the Secretary for
the first time, in this case, at oral argument, it is certainly not a novel theory of regulatory
interpretation. Rather, it is a consistent concept in Commission common law, and has been
repeatedly applied to broadly worded mandatory safety standards. See infra.

38 FMSHRC Page 1626

In FMC Wyoming Corporation, 11 FMSHRC 1622, 1629 (Sept. 1989), the Commission
found that 30 C.F.R. § 57.18002(a), was “drafted in general terms in order to be broadly
adaptable to the varying circumstances of a mine.” This standard, which governs workplace
exams for underground metal and non-metal mines, contains language identical to section
56.18002(a). It follows that section 56.18002(a), also must be “broadly adaptable” and, therefore,
is appropriate for application of the reasonably prudent person standard.18
Therefore, we hold that an examination of working places, to comply with 30 C.F.R. §
56.18002(a), must be adequate in the sense that it identifies conditions which may adversely
affect safety and health that a reasonably prudent competent examiner would recognize.
C. Notice
As noted supra, Sunbelt contends that any standard of adequacy adopted by the
Commission in this case should not be applied to it because the Secretary failed to provide fair
notice to Sunbelt of the new regulatory interpretation. Sunbelt Supp. Br. at 9-11.
The Commission has historically applied the reasonably prudent person standard,
described above, as an objective standard to resolve issues of notice. See, e.g., Otis Elevator Co.,
11 FMSHRC 1896, 1906-07 (Oct. 1989), aff’d, 921 F.2d 1285, 1292 (D.C. Cir. 1990); Alabama
By-Products Corp., 4 FMSHRC at 2129. In the notice context, the Commission has expressed
this test as ‘whether a reasonably prudent person familiar with the mining industry and the
protective purposes of the standard would have recognized the specific prohibition or
requirement of the standard.” Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). When
addressing issues of fair notice, we have previously considered whether the operator would have
been aware of the requirement of the standard because of past case precedent. See Island Creek
Co., 20 FMSHRC 14, 25 (Jan. 1998).
In light of the protective purposes of the Act and our extensive case-law regarding the
reasonably prudent person test, we hold that the Respondents should have been aware that
broadly-worded standards requiring examinations by competent persons must meet a standard of
adequacy under the reasonably prudent person test. Respondents cannot claim to be surprised
that the examination required under section 56.18002(a) must be adequate to uncover workplace
hazards. This is, obviously, the purpose of the examination. Nothing about our adoption of this

18

At issue in FMC Wyoming was the competence of the examiner, rather than the quality
of the examination. The Commission applied the reasonably prudent person test to the
requirement under section 57.18002(a) that a competent person designated by the operator
periodically conduct workplace examinations. We held that the term “competent person” must
contemplate a person capable of recognizing hazards that are known by the operator to be
present in a work area or the presence of which is predictable in the view of a reasonably prudent
person familiar with the mining industry. 11 FMSHRC at 1629.

38 FMSHRC Page 1627

standard should cause an operator to act differently in conducting an examination.19 Thus,
Respondents had fair notice of the requirement of adequacy in section 56.18002(a).
V.
Conclusion
We deny LVR and Roanoke’s motion to dismiss. We vacate the Judge’s decision that
Sunbelt, LVR, and Roanoke did not violate 30 C.F.R. § 56.18002(a) and further find that the
Respondents were provided fair notice of the standard’s requirements, as set forth in this
decision.
We remand for further proceedings as to whether the workplace examination conducted
by Davis met the requirements of the standard. On remand, the Judge should consider both
whether the seventh level of the pre-heat tower was a “working place,” and whether Davis’
workplace examination was adequately conducted, as defined by this decision.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

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

19

Moreover, Sunbelt is not prejudiced in the presentation of a defense. This case was
decided by the Judge on cross-motions for summary decision. Since we are remanding the case
for an evidentiary hearing, Sunbelt will be able to put on evidence and cross-examine the
Secretary’s witnesses regarding the adequacy of the examination.

38 FMSHRC Page 1628

Commissioners Young and Cohen, concurring in part and dissenting in part:
We join the majority decision in this case, except for Disposition Section A, the denial of
the motion to dismiss filed by LVR, Inc. (“LVR”) and Roanoke Cement Co., LLC (“Roanoke”).
Slip op. at 5-6. In our view, LVR and Roanoke should be released from these cases.
Fundamental to due process is the principle that a person or other entity charged with a
violation be given notice of the charges against it. See Conley v. Gibson, 355 U.S. 41, 47
(1957)(the federal pleading rules require the complaint to give the defendant “fair notice of what
the plaintiff’s claim is and the grounds upon which it rests.”), abrogated on other grounds by
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007); Carmichael v. Jim Walter Res., Inc.,
20 FMSHRC 479, 484 n.9 (May 1998) (“the complaint to the Commission, much like a
complaint in a court proceeding, is a basic pleading that serves to frame the issues to be tried”).
In this case, our colleagues would include LVR and Roanoke in the remand based on a theory
that these entities can be held responsible for Sunbelt’s allegedly inadequate examination.
However, LVR and Roanoke were never charged with liability based on anything other than
their own alleged failures to perform an examination of the working place under 30 C.F.R.
§ 56.18002(a). A review of the procedural facts of the case makes this clear.
On January 10, 2013, Citation No. 8723676 was issued against LVR, charging this
contractor with a violation of section 56.18002(a) as follows: “When checked it was found that
the contractor Sunbelt Rentals did not do an adequate work place exam as they never inspected
the area above where the employees were working where there was hanging material. A work
place exam is to be done by the operator at least once each shift for conditions which may
adversely affect safety or health. . . .” The negligence was listed as “high.” Four days later, the
inspector modified the citation because the “wrong contractor name was used in the body of the
citation,” i.e., it “should have been LVR instead of Sunbelt Rentals.”
On January 10, 2013, Citation No. 8723675 was issued against Roanoke, charging this
operator with a violation of section 56.18002(a) as follows: “It was found that Roanoke Cement
had last done a work place exam 7 days before the accident of the area the contractor was
working on. The last workplace exam was done on 12/30/2012 and at that time the area above
where the contractor was working was not checked for hazards before turning over the area to
the contractor. A work place exam is to be done by the operator at least once each shift for
conditions which may adversely affect safety or health . . . .” As with LVR, the negligence was
listed as “high.”
Subsequently, MSHA issued “special assessments” against both LVR and Roanoke
pursuant to 30 C.F.R. § 100.5. The civil penalties proposed were $47,300 against LVR and
$52,500 against Roanoke. On May 1, 2013, after the proposed penalties were contested, the
Secretary, by an attorney from the Solicitor’s Office of the Department of Labor, issued a
Petition for Assessment of Civil Penalty against LVR and Roanoke based on these citations and
special assessments. The attorney did not amend the citations to allege that LVR and Roanoke
failed to ensure that the exam was performed.

38 FMSHRC Page 1629

On August 7, 2013, the Secretary filed a Motion for Partial Summary Decision against
Sunbelt, LVR, and Roanoke in which he alleged that work place examinations under section
56.18002(a) must be adequate, and that operators have a duty either to perform a proper work
place examination or to ensure that a contractor performs such an examination. The motion
failed to recognize that LVR and Roanoke had not actually been charged with failure to ensure
that a proper examination had been done.
Roanoke and LVR then filed a Joint Opposition to the Secretary’s Motion and CrossMotion for Summary Decision. In this pleading, Roanoke and LVR alleged that each entity had
been cited for failing to perform its own examination, and not for a failure to ensure that an
examination had been performed. They argued that they did not have a duty to perform separate,
multiple examinations of the same work place, and that they had relied on Sunbelt to perform the
necessary examination.
The Secretary then filed a Response to Roanoke and LVR’s Motion for Summary
Decision and Reply to Roanoke and LVR’s Response to the Secretary’s Motion for Partial
Summary Decision. In the portion of the pleading responding to the Roanoke/LVR motion for
summary decision, the Secretary again argued that an adequate examination had not been
performed. The Secretary further alleged that Roanoke and LVR did not designate Sunbelt’s
examiner, Von Davis, to perform an examination on their behalf.
In the portion of the pleading supporting his own Motion for Partial Summary Judgment,
the Secretary reiterated his argument that Roanoke and LVR had a duty either to perform an
adequate examination or to ensure that one was performed. The Secretary then quoted the two
citations, arguing that they alleged a failure to have a valid workplace exam performed.
In effect, this pleading was saying (1) that the Secretary based his argument that Roanoke
and LVR failed to ensure that a proper examination was performed on the allegation that they
had not designated Sunbelt to perform it, and (2) that the Secretary relied on the language of the
citations as sufficient to charge both that Roanoke and LVR had failed to perform a proper
examination, and that they had failed to ensure that a proper examination was performed.
In his decision, the Judge erroneously rejected the Secretary’s fundamental position that
section 56.18002(a) contains a requirement of adequacy, which was a sufficient basis for him to
dismiss all three Respondents. But the Judge also rejected the Secretary’s allegation that
Roanoke and LVR had not designated Davis to perform the examination for all three entities. 35
FMSHRC at 3214.
In its PDR, the Secretary alleged that: (1) the Judge erred in ruling that section
56.18002(a) does not require work place examinations to be adequate; (2) the Judge erred in
ruling that the three Respondents lacked fair notice; and (3) there is a genuine issue of material
fact relating to the adequacy of Davis’ examination which precludes summary decision for the
Respondents. The PDR did not allege any issues relating to the liability of LVR and Roanoke
separate from the liability of Sunbelt.

38 FMSHRC Page 1630

In view of this record, we conclude that although it was error to issue a summary decision
in favor of Sunbelt, there is no basis at this point for keeping LVR and Roanoke in the case. The
citations alleged that LVR and Roanoke themselves did not perform an examination. The citation
against LVR first alleged that Sunbelt did not perform an adequate examination, but then was
modified to say that “LVR did not do an adequate work place exam as they never inspected the
area above where the employees were working where there was hanging material.” The citation
against Roanoke alleged that it “had last done a work place exam 7 days before the accident . . .
The last workplace exam was done on 12/30/12 and at that time the area above where the
contractor was working was not checked for hazards before turning over the area to the
contractor.”
Manifestly, these citations did not allege a failure to ensure that an adequate examination
was performed. Rather, they charge that LVR and Roanoke did not, themselves, perform an
adequate examination.
The purpose of a citation is to give the operator notice of the conduct or actions which the
Secretary contends violated the Mine Act. Section 104(a) of the Act imposes specific
responsibilities on the Secretary’s representatives. The law commands the inspector to issue a
citation to the operator when (s)he believes that an operator has violated the Act. The law further
requires that “[e]ach citation shall be in writing and shall describe with particularity the nature of
the violation.” 30 U.S.C. § 814(a). The operator is entitled to construct a defense to the charges
alleged.
Commission law is clear that leave to amend citations is freely given in the interests of
justice. Cyprus Empire Corp., 12 FMSHRC 911, 916 (May 1990) (citing Rule 15(a) of the
Federal Rules of Civil Procedure). Hence, at virtually any point while this case was before the
Judge, the Secretary could have amended the citations so as to allege that LVR and Roanoke
failed to ensure an adequate examination. The Secretary simply chose not to do so.
The Secretary’s argument for partial summary decision as to LVR and Roanoke was
legalistic – first, that he has the enforcement discretion to cite a production-operator, an
independent contractor, or both, for violations of the Mine Act committed by the independent
contractor, and second, that operators have a duty to either perform a proper workplace
examination or to ensure that the contractor performs an adequate examination. Neither of these
principles is in dispute, but neither principle addresses the actual citations given to LVR and
Roanoke and the facts relating to those citations.
In their Joint Opposition to the Secretary’s Motion and Cross-Motion for Summary
Decision, LVR and Roanoke made their position clear: they did not have to perform separate
examinations because it was sufficient that they had relied on Sunbelt’s examiner. Certainly, at
this point the Secretary could have moved to amend the citations to address the defense raised by
LVR and Roanoke.
Instead, however, in his Response to the cross-motions, the Secretary doubled down,
setting forth the text of the citations and contending that they were sufficient to bear the weight
of the Secretary’s legal argument. Indeed, the Secretary confused the matter by arguing that LVR

38 FMSHRC Page 1631

and Roanoke had not, in fact, designated Sunbelt’s examiner to perform the examination on their
behalf.
In Commission procedure, notice of the charges which an operator must defend against is
set forth in the citation or the citation as amended. It is not sufficient that the Secretary set forth
his theory of the operator’s liability as an abstract legal principle in a motion for summary
decision or a response to the operator’s motion for summary decision. Torres v. City of Madera,
655 F. Supp. 2d 1109, 1128 (E.D. Cal. 2009), rev’d and remanded on other grounds, 648 F.3d
1119 (9th Cir. 2011) (“If the complaint focuses on one theory of liability, the plaintiff cannot
turn around and surprise the defendant at the summary judgment stage with a new theory of
liability.”); Silverman v. Motorola, Inc., 772 F. Supp. 2d 923, 936 (N.D. Ill. 2011) (“Plaintiffs
cannot raise a new theory of liability in opposition to a motion for summary judgment.”)
(citations omitted); Casseus v. Verizon New York, Inc., 722 F.Supp.2d 326, 344 (E.D.N.Y. 2010)
(“As a threshold matter, courts generally do not consider claims or completely new theories of
liability asserted for the first time in opposition to summary judgment.”).
We have no doubt that the Secretary could have charged LVR and Roanoke with a failure
to ensure that Sunbelt performed an adequate examination. If the Secretary had done so, we
would have no trouble including LVR and Roanoke in the remand. The Secretary’s failure,
however, to clearly allege in the citation or an amended citation that the liability of LVR and
Roanoke was predicated on their failure to ensure that an adequate examination was performed
should result in the dismissal of the citations against these entities.
Finally, we recognize and completely agree with the majority’s footnote 10: “We do not
demand that inspectors write citations with the legal precision of attorneys sitting in comfortable
offices.” There’s an inherent irony in the majority’s application of that sound doctrine to this
case. Thus, the majority defends the Secretary’s failure here by relying on the lassitude afforded
to administrative pleadings. See Slip op. at 6, n.12, (“[A]dministrative pleadings are to be
liberally construed” because they are drafted by non-legal personnel who must act quickly)
(citing Brock v. Dow Chemical U.S.A., 801 F.2d 926, 930 (7th Cir. 1986)). At the same time,
though, the majority also reminds us that the determination of which operator to charge is an
exercise of prosecutorial discretion. Twentymile Coal Co., 456 F.3d 151, 154-55 (D.C. Cir.
2006). To assert simultaneously that this decision may not be disturbed because it represents a
sacrosanct professional legal opinion while being simultaneously entitled to the kind of lassitude
one affords a pro se litigant or lay inspector is clearly illogical.

38 FMSHRC Page 1632

The fault here is not on the part of the inspector. Rather, the citations were reviewed on
numerous occasions by the Secretary’s attorneys – “sitting in comfortable offices” – who at each
opportunity failed to ensure that a governmental agency seeking to impose liability upon a
private citizen complied with its duty, under the Constitution and section 104(a) of the Act, to
communicate the nature of the violation alleged. It is error to not recognize this failure for what it
is and to require LVR and Roanoke to continue to defend against a charge that has yet to be
articulated properly.1

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

1

Concerning the nature of the violation, we note that these citations were specially
assessed, alleging high negligence against both LVR and Roanoke. Not a single fact has been
produced, or even a cogent allegation made, showing that either party was negligent. Indeed,
before us the agency appears to believe that these parties should be held vicariously liable, a
theory wholly inconsistent with the assertion of negligence in the citations.

38 FMSHRC Page 1633

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

July 18, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2012-166
v.
LEECO, INC.
BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
DECISION
By: Jordan, Chairman; Young, Nakamura, and Althen, Commissioners
Pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(2012) (“Mine Act” or “Act”), the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) issued a citation to Leeco, Inc. after MSHA investigated a fatal
accident at the operator’s No. 68 Mine. The citation alleged a violation of Leeco’s roof control
plan. At the hearing, the only issues were the operator’s negligence and the amount of the
penalty. A Commission Administrative Law Judge found that Leeco was moderately negligent
and assessed the penalty amount that the Secretary of Labor proposed. 36 FMSHRC 1866 (July
2014) (ALJ).
Leeco filed a petition for discretionary review, which we granted. For the reasons set
forth below, we reverse the Judge’s decision and conclude that substantial evidence does not
support a finding that the operator was negligent. As a result, we remand to the Judge for
assessment of a new penalty.
I.
Factual and Procedural Background
This case involves whether, and to what extent, Leeco was negligent in supervising one
of its continuous mining machine operators. Continuous miner operator Bobby Smith had run a
continuous mining machine on Foreman Harry Bronson’s section for six to seven months. Smith
was killed while attempting to free the continuous miner after it was hung against the rib during
a cleanup run. There were no witnesses to the accident, and the foreman was in another part of
the section doing a pre-shift inspection when the accident occurred. The Secretary’s inspector
who investigated the accident determined that Smith was killed after he stepped into the “red
zone” while trying to free the machine. The “red zone” is a pinch point area where serious and
fatal crushing accidents have occurred. According to the inspector, Smith was pinned against the
rib when the continuous miner broke free. 36 FMSHRC at 1867, 1870; Tr. 105.

38 FMSHRC Page 1634

Smith had 12 years of mining experience, and he had worked as a continuous mining
machine operator at Leeco for 89 weeks before the accident. “[A] couple of months” before the
accident, Superintendent Rick Campbell observed Smith standing “in the outer area of the red
zone” while he was tramming the continuous miner. 36 FMSHRC at 1867. Campbell made
Smith shut down the machine, counseled him about what he did wrong and how important it is to
avoid the red zone, and showed him where he should and should not position himself. Id. at
1867, 1871; Tr. 81-83. Campbell also spoke with Foreman Bronson about the incident and asked
Bronson to watch Smith for more of this behavior. Bronson testified that he watched Smith for
red zone violations, but did not observe Smith approaching the red zone after Campbell spoke
with him. Bronson admitted that he did not observe Smith tramming the continuous miner very
often. 36 FMSHRC at 1868.
All of Leeco’s miners undergo annual training, which includes discussions of red zone
issues. Posters explaining the dangers of the red zone are hung in the mine foreman’s office as
well as Leeco’s changing rooms, light house, and warehouse. Leeco also holds weekly safety
meetings, and red zone issues are discussed in these meetings about once a month. Id. at 1870.
Campbell did not recall holding a safety meeting in response to Smith’s red zone incident. Id. at
1868. Bronson testified that he had never seen Smith in the red zone while operating the
continuous miner. He also testified that he had no reason to believe Smith would enter the red
zone while operating the continuous miner, but the judge disregarded this testimony. Id. at 1870,
71.
MSHA issued the citation after completing its investigation. It alleged a violation of 30
C.F.R. § 75.220(a)(1), which requires the operator to develop and follow a roof control plan.
Leeco’s roof control plan required that “[w]hile using remote controls, the continuous mining
machine operator and all other persons will position themselves [w]hen the continuous mining
machine is in operation, in a safe location away from such machine and away from pinch points
created by either the continuous mining machine and/or haulage equipment.” Sec’y Ex. 4 at 10.
The parties stipulated to the fact of a violation. The parties also stipulated that the violation was
significant and substantial (“S&S”),1 that one miner was fatally injured, and that Leeco abated
the citation in good faith and in a timely manner. At the hearing, the only issues were the
negligence level and the penalty amount.
The Judge upheld the citation’s “moderate” negligence designation and assessed the
penalty amount proposed by the Secretary—$21,442. The Judge found that the operator was
moderately negligent because Campbell had instructed Bronson to keep an eye out for Smith
near the red zone. The Judge decided that Bronson had reason to believe that Smith would enter
the red zone again because of this instruction, which made Smith’s actions on the day of the

1

The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1),
which distinguishes as more serious any violation that “could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health hazard.”

38 FMSHRC Page 1635

accident foreseeable.2 36 FMSHRC at 1871. The Judge determined that, because of the need for
this admonishment, the operator should have been more vigilant about watching Smith and
preventing the accident. The Judge further found that Leeco took no “concrete steps” to prevent
continuous miner operators from entering the red zone. Id. at 1872. He dismissed Campbell’s
actions in counseling Smith and asking Bronson to keep an eye on him because Campbell did not
follow up with Smith or Bronson at a later time or hold a safety meeting about Smith’s conduct,
and because Bronson did not observe Smith tramming the continuous mining machine very
often. Id.
II.
Disposition
Leeco argues that there is no evidence that Smith had ever actually entered the red zone
before the accident, and that the Judge erred by treating Smith’s conduct as a prior violation that
proved that Smith would enter the red zone in the future. According to Leeco, evidence that an
hourly employee came close to committing a violation should not prove a level of knowledge
sufficient to establish that Leeco was negligent. Leeco also claims that its actions were consistent
with the standard of care as outlined by the Secretary’s witness. Leeco argues that because the
Secretary concedes that its miners were adequately trained, and because the company made
reasonable efforts to make sure that employees were aware of the red zone’s dangers, it should
not be held liable for Smith’s negligence. Finally, Leeco contends that because it was not
negligent, the penalty should be reduced.
In response, the Secretary argues that regardless of whether Smith entered the red zone
on the day that Campbell spoke with him, the Judge correctly determined that Smith’s hazardous
actions and Campbell’s request that Bronson watch him for similar conduct put Leeco on notice
that Smith might enter the red zone in the future. The Secretary contends that there is no
evidence that Leeco made any changes to its safety program, training methods, or the way it
supervised Smith in response to his previous incident. As a result, the Secretary claims that
Leeco did not take any steps that a reasonably prudent operator would have taken to ensure that
Smith did not commit any future violations.
When reviewing an Administrative Law Judge’s factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as a reasonable
mind might accept as adequate to support [the Judge’s] conclusion.’” Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)). In Jim Walter Resources, Inc., the Commission applied the substantial
evidence test to the Judge’s conclusion about the operator’s negligence. 36 FMSHRC 1972, 1976
(Aug. 2014) (“JWR”).
2

Although the Judge ultimately placed a great deal of weight on Smith’s prior red zonerelated incident, the Secretary was apparently reluctant to offer evidence concerning the prior
incident, or even subpoena Smith’s disciplinary records, out of concern that the response to
Smith’s previous incident would be viewed in the operator’s favor. Tr. 61-63.

38 FMSHRC Page 1636

The operator has a duty of care to avoid violations of mandatory standards, and the
failure to do so can lead to a finding of negligence when a violation occurs. A.H. Smith Stone
Co., 5 FMSHRC 13, 15 (Jan. 1983). To determine whether an operator has met its duty of care,
the Commission considers what actions a reasonably prudent person who is familiar with the
mining industry, the relevant facts, and the protective purpose of the regulation would have taken
under the same circumstances. Brody Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015); JWR,
36 FMSHRC at 1975, citing U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984). The
Commission may evaluate the degree of negligence using “a traditional negligence analysis.”
Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1264 (D.C. Cir. 2016) (citation omitted).
Because the Commission is not bound by the Secretary’s regulations addressing the proposal of
civil penalties set forth in 30 C.F.R. Part 100, the Commission and its Judges need not apply, and
in fact are not even required to consider, the negligence standards in 30 C.F.R. § 100.3(d). Id. at
1263-64.
In cases where a rank-and-file miner has violated the Act or its mandatory standards, the
Commission examines the operator’s supervision, training, and disciplining of its employees to
determine whether the operator had taken reasonable steps necessary to prevent the rank-and-file
miner’s violative conduct. Southern Ohio Coal Co., 4 FMSHRC 1459, 1464 (Aug. 1982)
(“SOCCO”), citing Nacco Mining Co., 3 FMSHRC 848, 850-51 (Apr. 1981). The Commission
also considers the foreseeability of the miner’s conduct and the risks involved when determining
whether the operator was negligent. A. H. Smith, 5 FMSHRC at 15, citing SOCCO, 4 FMSHRC
at 1463-64; Nacco, 3 FMSHRC at 850-51.
The test for negligence under these circumstances is what a reasonably prudent operator,
with knowledge of the goals of the Act, would have undertaken under similar circumstances.
Commission Rule 63(b) states that the proponent of an order has the burden of proof. 29 C.F.R. §
2700.63(b). The key question here is whether, after Smith’s previous red zone-related incident,
the actions that Leeco took were those that a reasonably prudent operator would have employed
to ensure that Smith would not enter the red zone in the future. The operator contends that its
response—Superintendent Campbell’s counseling of the miner, and instructing the foreman to
watch the miner in the future—was adequate.
The Secretary was required to meet his burden of proof by showing what additional steps
should have been taken. Because the record lacks any evidence about what more the operator
should have done to meet the standard of care, we conclude that the Secretary failed to meet his
burden and show that Leeco was negligent.
The Secretary’s evidence as to what a reasonably prudent operator would have done in
this situation was very limited. The inspector testified that the foreman “should have done better”
at making sure Smith did not have a practice of approaching the red zone. Tr. 44. When asked
how the foreman should make sure that the continuous miner operator is in a safe position, the
inspector suggested watching the miner operator from time to time as he mines coal or changes
places and discussing the red zone in safety meetings. Tr. 55-56. Campbell and Bronson took
these actions. Tr. 102, 104, 111-13. Later, the inspector explained that if a foreman is aware of a
miner who is positioning himself in the red zone, the foreman needs to “stop that from happening
and just spend more time to see that he’s not doing that.” Tr. 58-59. The inspector’s testimony

38 FMSHRC Page 1637

about Smith’s previous incident was also weak in that it did not demonstrate that Smith had ever
actually entered a red zone. The inspector testified that he believed that Smith had been
disciplined for working in the red zone in the past, but testified that he was “not a hundred
percent positive” of that. Tr. 59-61.
As a result of the Secretary’s limited evidence, the Judge’s decision that Smith’s actions
on the day of the fatal accident were foreseeable is not supported by substantial evidence.
Although the Judge placed a great deal of weight on Smith’s previous red zone incident, he did
not make a clear factual determination that Smith had entered the red zone. In fact, the record
suggests that Smith did not actually enter the red zone during the incident in which Campbell
pulled him aside and counseled him.3 Therefore, Smith’s behavior, while a cause for concern,
may not have amounted to a violation of the roof control plan. This fact is important because
Leeco had to decide, after the first incident occurred, what actions to take to prevent Smith from
placing himself in harm’s way, without the benefit of hindsight.
Leeco did not fail to act in response to Smith’s prior incident. Having the mine
superintendent pull a miner off of his machine for a counseling session is a significant event that
could be expected to get a miner’s attention. The counseling that Smith received from Campbell
is something that should be encouraged. While it could show that Smith had some tendency to
approach the red zone, it also shows diligent efforts by Leeco’s management in attempting to
actively prevent red zone violations.
Asking the foreman to keep an eye on a miner was also a reasonable response to the
situation. The Judge stressed that Bronson admitted to not observing Smith tramming the
machine very often. 36 FMSHRC at 1872. However, Bronson did observe Smith, and he never
observed Smith enter or approach the red zone again after Campbell spoke with him. Tr. 111-13.
We also note that, prior to Smith’s incident, the operator already had several measures in
place to prevent red zone-related injuries. Posters explaining the dangers of the red zone were
hung in Leeco’s mine foreman’s office, changing rooms, light house, and warehouse. 36
FMSHRC at 1870; Tr. 103-04. Leeco held weekly safety meetings, in which it discussed red
zone issues about once a month. 36 FMSHRC at 1870; Tr. 102. Leeco’s miners also received
annual training, which included discussions of red zone issues. Id.
Where the operator has taken significant, specific steps to prevent violations, the
Secretary must establish that a reasonably prudent operator would have done more under the
circumstances to meet its duty of care. Simply arguing that the operator “should have done
more” is not a satisfactory standard. See JWR, 36 FMSHRC at 1977.

3

Throughout the hearing, Campbell consistently testified that he did not see Smith in the
red zone when he pulled Smith off the continuous mining machine and counseled him. Campbell
stated that he saw Smith in the “area around the red zone,” and that Smith was “approaching the
red zone.” Tr. 79, 88, 90. Bronson also testified that Campbell told him that Smith was “not in
the red zone but he was borderline.” Tr. 111.

38 FMSHRC Page 1638

The Judge’s reliance on certain “best practices” was inappropriate. 36 FMSHRC at 1872.
Although there was very little testimony or evidence from the Secretary about how to meet the
standard of care, the Judge listed certain measures that the operator could have taken in response
to Smith’s actions.4 Because Leeco did not take any of these steps, the Judge found that the
operator did not meet the standard of what a reasonably prudent mine operator would have done
under similar circumstances. The Judge characterized several of these measures as “best
practices promulgated by MSHA.” Id. However, these measures were not presented as “best
practices” by the Secretary. The only possible source of these measures in the record is the
Action Plan that was put in place to abate the violation. This plan is set out in the citation and
MSHA’s Accident Summary Report. Sec’y Ex. 1, Sec’y Ex. 3 at 6.
Using these measures as the yardstick by which the operator’s actions should be
measured is problematic. Abatement plans are, by nature, subsequent remedial measures. Under
Rule 407 of the Federal Rules of Evidence, remedial measures taken after the fact cannot be used
to show negligence before the fact.5 Fed. R. Evid. 407. Rule 407 is based in part on “a social
policy of encouraging people to take, or at least not discouraging them from taking, steps in
furtherance of added safety.” Fed. R. Evid. 407 advisory committee’s note to 1972 proposed
rules. Although the Federal Rules of Evidence do not directly apply to Commission proceedings,
we believe that the same policy makes the use of measures set out in the post-accident Action
Plan inappropriate as proof of “best practices” that the operator should have had in place. This is
especially true in this case because they were presented without additional evidence that they are
in fact MSHA’s best practices.
In light of the foregoing discussion, we conclude that the Judge’s decision is not
supported by substantial evidence. Without evidence that a reasonably prudent operator would
have done more under the circumstances, it was error for the Judge to conclude that Leeco’s
response to Smith’s previous incident was insufficient. Because the Secretary did not explain
what a reasonably prudent operator would have done under these circumstances, we cannot find
the operator to be negligent.

4

For example, the Judge noted that the operator did not put engineering controls in place
to prevent red zone fatalities. 36 FMSHRC at 1872.
5

Rule 407 states in part that “[w]hen measures are taken that would have made an earlier
injury or harm less likely to occur, evidence of the subsequent measures is not admissible to
prove . . . negligence . . . .” Fed. R. Evid. 407.

38 FMSHRC Page 1639

III.
Conclusion
For the foregoing reasons, we reverse the Judge’s finding of moderate negligence and
remand the case so that a new penalty can be assessed for the citation.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

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

38 FMSHRC Page 1640

Commissioner Cohen, dissenting:
On June 24, 2010, a continuous mining machine fatally crushed operator Bobby Smith, a
miner at Leeco’s Mine No. 68 with 12 years of experience. Sec’y Ex. 3. As recently as two
months prior to the fatal accident, the mine’s superintendent noticed Smith standing too close to
the continuous miner. Tr. 80.1 In reversing the Judge’s decision and finding no negligence as a
matter of law, my colleagues have set a dangerous precedent. In the future, the Commission will
be at pains to distinguish this decision.
Under the Mine Act, operators have a duty to provide supervision, training, and discipline
to employees to prevent rank-and-file miners from violating safety regulations. See Southern
Ohio Coal Co., 4 FMSHRC 1459, 1464 (Aug. 1982). The Commission has recognized that
“[e]ach mandatory standard . . . carries with it an accompanying duty of care to avoid violations
of the standard, and an operator’s failure to meet the appropriate duty can lead to a finding of
negligence if a violation of the standard occurs.” A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan.
1983). An operator is negligent when it fails to take such steps as a reasonably prudent person
familiar with the mining industry, the relevant facts, and the protective purposes of the safety
standard would have taken under the same circumstances. See Brody Mining, LLC, 37 FMSHRC
1687, 1702 (Aug. 2015); Jim Walter Resources, Inc., 36 FMSHRC 1972, 1975 (Aug. 2014)
(“JWR”), citing U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984).
When reviewing an Administrative Law Judge’s factual determinations, the Commission
applies the substantial evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). “Substantial evidence”
means “‘such relevant evidence as a reasonable mind might accept as adequate to support [the
Judge’s] conclusion.’” Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The Commission has
similarly applied the substantial evidence test in reviewing the Judge’s conclusion regarding an
operator’s negligence. See JWR, 36 FMSHRC at 1976. The judge’s credibility determinations are
entitled to great weight and may not be overturned lightly. See, e.g., Farmer v. Island Creek Coal
Co., 14 FMSHRC 1537, 1541 (Sept. 1992) (citation omitted). I believe that my colleagues have
failed to properly apply these principles in this case.
After considering the evidence presented at hearing, the Judge concluded that Leeco did
not satisfy its duty of care to avoid a violation by ensuring that miners remained a safe distance

1

My colleagues place great emphasis on the fact that the Judge “did not make a clear
factual determination that Smith [previously] had entered the red zone” and that “the record
suggests that Smith did not actually enter the red zone during the incident in which Campbell
pulled him aside and counseled him”. Slip op. at 5. Given that Campbell was not sure whether or
not Smith was actually in the red zone, it is hardly surprising that the Judge did not make a “clear
factual determination.” More importantly, however, it does not matter whether Smith was
actually in the red zone during the previous incident. The fact is, as Mine Superintendent
Campbell recognized, Smith was too close to a very dangerous piece of equipment. He needed to
be cautioned, and later, his work tramming the continuous miner needed to be monitored.

38 FMSHRC Page 1641

from the mining machines. 36 FMSHRC at 1872.2 The Judge found that Smith’s prior incident
gave Leeco notice that the company needed to take additional steps to prevent Smith from again
infringing upon the continuous miner’s safety zone. Id. In so finding, the Judge discounted the
testimony of the section foreman, Harry Bronson, who averred that he had no reason to believe
Smith would again get dangerously close to the continuous miner. Id. at 1871. The Judge
determined that the operator’s general safety efforts did not satisfy the operator’s heightened
burden. Id. at 1872. Rather, the operator needed to take specific steps to retrain miners on
avoiding red zones, increase monitoring and oversight of miners, or install improved safety
equipment on the mining machinery. Id.
My colleagues overturn the Judge’s factual findings, asserting that the Secretary has
failed to explain what a reasonably prudent mine operator should have done.3 Slip op. at 5-6.
However, the question is not whether the Secretary correctly articulated what would comprise
the operator’s duty of care under the circumstances (including the fact that Smith had recently
put himself into a dangerous position near a continuous miner) but whether the Judge’s decision
that the operator failed to exercise the required standard of care is supported by substantial
evidence. See JWR, 36 FMSHRC at 1975 n.4 (Aug. 2014) (rejecting the Secretary’s argument
that the Commission must apply the standard of care defined by the Secretary when considering
whether the operator was negligent).
Moreover, it is a well-accepted legal principle that the duty owed is proportional to the
danger of the hazardous practice. See Palsgraf v. Long Island R. Co., 248 N.Y. 339, 344, 162
N.E. 99, 100 (1928) (“[t]he risk reasonably to be perceived defines the duty to be obeyed”).
2

Earlier in his decision, the Judge quoted the Secretary’s definitions relative to
negligence from 30 C.F.R. § 100.3(d). 36 FMSHRC at 1870-71. I agree with my colleagues that
an operator’s duty of care is not defined by the Secretary’s Part 100 regulations but rather by
traditional negligence principles. Slip op. at 4. Brody Mining, 37 FMSHRC at 1702; Mach
Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1263-64 (D.C. Cir. 2016). In this case, although
the Judge quoted the Secretary’s Part 100 definitions, he actually applied traditional negligence
principles to find ordinary (i.e., “moderate”) negligence. 36 FMSHRC at 1872.
3

The majority relies on JWR for support. Slip op. at 3-5. In that case, the Judge
determined that the mine operator (Jim Walter) had met its duty of care by providing additional
fall training and safety measures as directed by MSHA following a similar accident just one
month earlier. JWR, 36 FMSHRC at 1978, citing Jim Walter Res., Inc., 33 FMSHRC 362, 370
(Feb. 2011) (ALJ). The Judge credited the operator’s witnesses and found that Jim Walter was
not on heightened notice that it needed to take further steps. 33 FMSHRC at 370. On appeal, a
majority of the Commissioners declined to disturb the Judge’s factual findings and, applying the
substantial evidence test, upheld his negligence determination. 36 FMSHRC at 1976-77. In
contrast, the Judge here discounted the operator’s witnesses, found that the mine was on notice
that it needed to enhance safety precautions around Smith, and determined that the mine had not
taken any specific steps to meet that duty following Smith’s encroachment just a few months
prior. 36 FMSHRC at 1871-72. Another distinction is that in JWR, the injury was to an employee
of a contractor. The Judge’s finding of no negligence in that case related to the supervision of the
contractor by Jim Walter, a far different situation than here, where Leeco’s own employee was
killed.

38 FMSHRC Page 1642

Accordingly, a reasonably prudent mine operator is required to exercise an especially high
degree of care when miners are at high risk of a fatal accident. Here, working in close proximity
to the continuous miner is one of the most dangerous practices in underground mining. See
www.arlweb.msha.gov/REGS/fedreg/final/2015/proximity-detection/ (“Since 1984, there have
been 35 deaths where miners have been pinned, crushed, or struck by continuous mining
machines in underground coal mines.”). In recognition of this hazard, MSHA recently
promulgated a rule requiring mine operators to install proximity detection systems on continuous
mining machines. See 30 C.F.R. § 75.1732; 80 Fed. Reg. 2188, 2199 (Jan. 15, 2015) (projecting
that requiring proximity detectors will prevent approximately nine deaths and another 49 nonfatal crushing or pinning injuries over 10 years.)
To reach its conclusion, the majority determines that the Judge improperly considered
Leeco’s efforts to abate the MSHA citation, in contrast to Rule 407 of the Federal Rules of
Evidence. Slip op. at 6. My colleagues’ reliance on Rule 407 of the Federal Rules of Evidence is
misplaced. Rule 407 reflects a public policy encouraging potential defendants to fix hazardous
conditions without fearing that those actions will be used as evidence against them. Fed. R. Evid.
407 advisory committee’s note to 1972 proposed rules (“ground for exclusion rests on a social
policy of encouraging people to take . . . steps in furtherance of added safety.”). That policy goal
is not present where MSHA has directed the abatement actions. The Mine Act mandates
abatement of safety violations. See 30 U.S.C. § 814(b). Moreover, Congress chose not to apply
the Federal Rules of Evidence to Commission proceedings. Commission Judges are amply
capable of weighing the probative value of such evidence.
Smith, an experienced miner, previously had disregarded substantial safety training and
improperly approached active mining machinery. Tr. 80. Leeco had numerous avenues available
to help prevent such a hazard from reoccurring, including mandatory retraining, improved
oversight, and additional safety measures. Sec’y Ex. 3 at 6. The Judge weighed the evidence
before him and the testimony at hearing and concluded that Leeco did not satisfy the rigorous
duty to ensure miner safety imposed by the Mine Act. 36 FMSHRC 1872. Considering the
record, I find that substantial evidence supports the Judge’s findings and conclusion that Leeco
demonstrated ordinary negligence.
Accordingly, I dissent.

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

38 FMSHRC Page 1643

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

July 19, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2011-434
v.
NALLY & HAMILTON ENTERPRISES
BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
DECISION
BY: Jordan, Chairman; Nakamura and Althen, Commissioners
In this proceeding, arising under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), the Administrative Law Judge vacated a
citation issued by the Department of Labor’s Mine Safety and Health Administration (“MSHA”)
to Nally & Hamilton Enterprises (“Nally & Hamilton”) and dismissed the pending penalty
proceeding. 35 FMSHRC 2198 (July 2013) (ALJ).1 At issue is the regulatory interpretation of
30 C.F.R. § 77.1710(i), which states, in relevant part, that miners “shall be required to wear”
seatbelts in certain vehicles where conditions pose a danger of overturning. For the reasons that
follow, we vacate and remand the Judge’s decision.
I.
Facts and Proceedings Below
A.

Factual Background

The citation at issue arose out of an accident on April 21, 2010, in which a rock truck
overturned at Nally & Hamilton’s Chestnut Flats Mine in Kentucky. 35 FMSHRC at 2199.
James Patterson, the driver of the truck, was not wearing a seatbelt at the time of the accident and
sustained injuries that resulted in lost work days. Id. at 2199-200.
Patterson was not at the mine during MSHA Inspector Arthur Smith’s April 29
investigation because he was under doctor’s orders at the time not to return to work. Id. at 2200.
On May 3, 2010, Inspector Smith visited Patterson at his home. Smith testified that he “asked
[Patterson] about the accident, and we discussed . . . when it happened and why it happened, how
1

We are deciding this case in conjunction with our consideration of Lewis-Goetz & Co.,
38 FMSHRC __, No. WEVA 2012-1821 (July __, 2016), which also involves the interpretation
of 30 C.F.R. § 77.1710. Therefore, we are issuing the decisions in both cases on this date.

38 FMSHRC Page 1644

it happened. And I asked him, I said, were you wearing a seatbelt? He said, well, I won’t lie to
you. He said, no, I was not.” Tr. 40.
Two days later, Inspector Smith returned to the Chestnut Flats Mine to continue his
investigation. 35 FMSHRC at 2200. Smith spoke with Mine Foreman Michael Lewis and
informed him that he was going to issue a citation because the victim was not wearing a seatbelt
at the time of the accident. Smith testified that Lewis then told him that company policy required
miners to wear seatbelts at all times while riding in mobile equipment. Id.
Inspector Smith also spoke with a grader operator about the company’s policy and was
informed that “if they were found operating mobile equipment without a seatbelt, that they had to
spend eight hours in a classroom after that. The company gave them the class. They couldn’t
work. They had to attend a class concerning seatbelts.” Tr. 70. Inspector Smith also testified
that, during his previous inspections at the Chestnut Flats Mine, he had seen miners wear
seatbelts while operating mobile machinery such as bulldozers, loaders, and rock trucks. Tr. 71,
81. When asked about negligence, Smith testified that it was Patterson who was negligent. Tr.
90.
As a result of this investigation, Inspector Smith issued Citation No. 8362516, which
alleged that Nally & Hamilton violated 30 C.F.R. § 77.1710(i). Smith characterized the alleged
violation as “significant and substantial” (“S&S”).2 Smith indicated on the citation that an injury
had already occurred, that the injury resulted in lost workdays or restricted duty, and that one
miner was affected. Smith also alleged that the violation was the result of Nally & Hamilton’s
moderate negligence. MSHA later proposed a penalty of $52,500, and Nally & Hamilton timely
filed a notice of contest.
At the hearing before the Judge, the Secretary of Labor presented evidence that Patterson
was not wearing a seatbelt when the accident occurred and that the vehicle was equipped with
rollover protection. Tr. 26, 40. The parties stipulated that the truck had overturned. Nally &
Hamilton did not dispute that Patterson failed to wear a seatbelt or that the standard covered the
vehicle Patterson was driving at the time of the accident. Nally & Hamilton instead presented
evidence of its safety policy requiring employees to wear seatbelts and evidence of its
enforcement of that policy. 35 FMSHRC at 2201-02.
Before the Judge, the parties agreed that the crux of their dispute was the proper
interpretation of the standard. The Secretary advocated a strict liability interpretation, whereas
Nally & Hamilton argued for the Judge to apply the Commission’s interpretation of section
77.1710 (as applied to safety belts and lines) announced in Southwestern Illinois Coal Corp., 5
FMSHRC 1672, 1674-77 (Oct. 1983) (“Southwestern I”). 35 FMSHRC at 2203-04; see also
Southwestern Illinois Coal Corp., 7 FMSHRC 610, 612-13 (May 1985) (“Southwestern II”)
(applying Southwestern I’s interpretation of § 77.1710).

2

The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C.
§ 814(d)(1), which distinguishes as more serious any violation that “could significantly and
substantially contribute to the cause and effect of a . . . mine safety or health hazard.”

38 FMSHRC Page 1645

B.

The Judge’s Decision

The Judge analyzed 30 C.F.R. § 77.1710(i) and concluded that under the plain language
of the standard and the Commission’s precedent in Southwestern I, the standard’s language
“imposes upon the operator a duty to require, not a duty to guarantee.” 35 FMSHRC at 2205
(citing 5 FMSHRC at 1675). The Judge noted that the Commission has interpreted section
77.1710’s phrase “shall be required to wear” to mean that “operators must (1) establish a safety
system requiring the wearing of the clothing or equipment and (2) enforce the system diligently.”
Id. at 2204 (citing Southwestern I, 5 FMSHRC at 1674-75).
The Judge further concluded that Nally & Hamilton’s policies and enforcement satisfied
the Commission’s interpretation of the standard. 35 FMSHRC at 2205-06. The Judge noted that
Nally & Hamilton maintains a safety policy that requires miners to wear seatbelts where
equipment is equipped with roll-over protection systems and that it requires employees to sign a
statement agreeing to the safety policies before beginning employment. Id. at 2205. Further, the
operator has each miner revisit the safety policy every year at the company’s annual retraining.
Id. Finally, Patterson signed off on the policy before starting employment and every subsequent
year at the annual retraining. Id. at 2201.
The Judge found it “noteworthy” that both MSHA Inspector Smith and Nally & Hamilton
Safety Coordinator Creech “agreed that it was not possible for a mine foreman or other
supervisor, standing at ground level, to see whether a truck operator is wearing a seatbelt while
sitting in the truck cab, which rises nearly 10 feet above ground level.” Id. at 2205. The Judge
concluded from that testimony that Nally & Hamilton had taken reasonable steps to require
Patterson to wear his seatbelt. Id. The Judge also noted that the testimony showed one instance
in which a miner was disciplined for failing to wear a seatbelt and one instance in which an
employee had an accident similar to Patterson’s, but was wearing a seatbelt and suffered no
injuries. Id. at 2206. The Judge concluded that those facts supported a finding that Nally &
Hamilton diligently enforced its safety policy. Id. Accordingly, he vacated the citation. Id.
Though the Judge vacated the citation, he also made alternative findings in the event that
the Commission were to depart from its existing precedent, i.e., that the operator was not
negligent and that the Secretary had failed to establish that the violation was S&S. Id. at 2206
n.10. He also stated that if the Commission determined that a violation occurred, he would
assess a civil penalty of $100, rather than the $52,500 penalty proposed by the Secretary after a
special assessment. Id.

38 FMSHRC Page 1646

II.
Disposition
This case presents competing interpretations of 30 C.F.R. § 77.1710(i).3 Does section
77.1710(i) require that miners use the seat belts in vehicles where there is a danger of
overturning and rollover protection is provided, or does the section merely require that operators
institute procedures (training, education, discipline, etc.) to require miners to wear seat belts?
We find the only sensible reading of the regulation is that it requires that miners use seat
belts. That reading is consistent with the language of the regulation, the requirements of other
regulations in 30 C.F.R. Part 77, case law governing the interpretation of regulations, and the
purpose of the Mine Act. Therefore, for the reasons set forth below, we overrule Southwestern I
and II.
The failure of a miner to use a seat belt in operating a vehicle defined in section
77.1710(i) is a violation. The operator, in turn, is strictly liable for such violation without regard
to the diligence with which it has trained and required miners to use seat belts. Therefore, we
vacate and reverse the decision below and find the operator committed a violation of section
77.1710(i). We remand the case to the Administrative Law Judge for further proceedings
consistent with this decision.
A.

Interpretation of Section 77.1710

In Southwestern I, a majority of three Commissioners held that “when an operator
requires its employees to wear belts when needed, and enforces that requirement, it has
discharged its obligation under the regulation.” 5 FMSHRC at 1675. In reaching this
conclusion, the majority relied exclusively on its reading of the words “shall be required” and a
prior decision of the Interior Board of Mine Operation Appeals (“IBMA”) in North American
3

In relevant part, section 77.1710 provides:
Each employee working in a surface coal mine or in the
surface work areas of an underground coal mine shall be required to
wear protective clothing and devices as indicated below:
....
(g) Safety belts and lines where there is danger of falling;
a second person shall tend the lifeline when bins, tanks, or other
dangerous areas are entered.
....
(i) Seatbelts in a vehicle where there is a danger of
overturning and where rollover protection is provided.

38 FMSHRC Page 1647

Coal Corp., 3 IBMA 93 (1974). In turn, in North American, the IBMA summarily concluded
that the regulation did not actually require that the relevant protective apparatus be worn.4 Id. at
107.
We do not lightly overrule previous Commission holdings.5 However, in light of the
compelling reasons for the interpretation we adopt today, we cannot prefer adherence to
precedent over the language and purpose of the standard. The standard mandates an important
measure of protection for miners operating vehicles where there is a danger of overturning. It
achieves that purpose if and only if miners wear seat belts, and such obligation is manifest in the
wording of the regulation.
Therefore, we do not read section 77.1710 as imposing an obligation only upon the
operator to train and discipline miners. The section compels the wearing of the prescribed
protective clothing and devices. The language of the standard, other standards related to use of
protective gear, Commission precedent, and the purpose of the Mine Act underscore our
interpretation.
First, the language of the standard supports our view. When a federal regulation
“requires” that something be done, the regulation is an authoritative demand that the action be
taken. Indeed, the word “require” means “to ask for authoritatively or imperatively,” “claim by
right and authority,” “insist upon usu[ally] with certainty or urgency,” or “demand.” Webster’s
Third New International Dictionary 1929 (1993). It would be wholly incongruent with the
language of the regulation to construe a mandate that miners must be required to wear protective
clothing and equipment as merely compelling an effort by operators to achieve the important
protective purposes of the regulation.
In a thoughtful concurrence and dissent in Southwestern I, Commissioner Lawson
effectively refuted the Commission’s reliance upon North American and elaborated on what is
meant by the word “required” in the regulations. As he stated:
The core sense of “require” is to mandate, not exhort–that
which is required, shall be done. See Mississippi River Fuel Corp.
4

North American involved the use of safety goggles, and Southwestern I involved the
use of fall protection. However, both cases turn upon the interpretation of the language of the
opening paragraph of section 77.1710 that miners “shall be required” to wear the protective
clothing and devices identified in the following subsections.
5

The Supreme Court has explained that “[a]dhering to precedent ‘is usually the wise
policy, because in most matters it is more important that the applicable rule of law be settled than
it be settled right.’” Payne v. Tennessee, 501 U.S. 808, 827 (1991) (citation omitted). However,
the Court also has stated that adherence to precedent “is a principle of policy and not a
mechanical formula of adherence to the latest decision.” Id. (quoting Helvering v. Hallock, 309
U.S. 106, 119 (1940)). The Court has recognized that “when governing decisions are
unworkable or are badly reasoned, ‘this Court has never felt restrained to follow precedent.’”
Payne, 501 U.S. at 827 (quoting Smith v. Allwright, 321 U.S. 649, 665 (1944)).

38 FMSHRC Page 1648

v. Slayton et al, 359 F.2d 106, 119 (8th Cir. 1966): “Required”
implies something mandatory, not something permitted by
agreement.”
. . . Although it appears unnecessary of repetition,
regardless of the existence of even a diligently enforced company
rule, a miner is not protected from the danger of falling unless he is
actually wearing a safety belt. There is no meaningful, nor even
semantically persuasive distinction, between “shall be required to
wear” and “shall be worn.”
Southwestern I, 5 FMSHRC at 1681 (Lawson, Comm’r, concurring and dissenting).6
Second, safety standards “must be interpreted so as to harmonize with and further . . . the
objective[s] of” the Mine Act. Emery Mining Corp. v. Sec’y of Labor, 744 F.2d 1411, 1414
(10th Cir. 1984). Our interpretation of section 77.1710(i) harmonizes it with other sections of 30
C.F.R. Part 77 and other mandatory safety standards.
For example, section 77.1710(g) is worded in a manner similar to section 77.1710(i)—
namely, miners “shall be required to wear . . . (g) Safety belts and lines where there is a danger
of falling.” However, due to the unique uses of fall protection, section 77.1710(g) contains an
additional proviso: “a second person shall tend the lifeline when bins, tanks, or other dangerous
areas are entered.” Obviously, this mandate is only meaningful if the miner entering the
dangerous area is wearing a lifeline. Certainly, therefore, the purpose is to compel use of
lifelines when there is a danger of falling. We apply the same rationale to section 77.1710(i).
In addition, section 77.403-1(g) appears in the provision listing the safeguards for
mechanical equipment applicable to surface mines. It provides: “Seat belts required by
§ 77.1710(i) shall be worn by the operator of mobile equipment . . . .” This language identifies
the seat belt requirement contained in section 77.1710(i) and unquestionably contemplates that
miners must wear seat belts under section 77.1710(i). Section 77.403-1(g) is in textual harmony
with a finding that the standard at section 77.1710(i) mandates the use of seat belts. The wording
of section 77.1710 does not permit avoidance of operator liability when a miner negligently
endangers himself by failing to wear a seat belt.
Third, in parallel regulations affecting metal/non-metal mines, the mandate is that seat
belts must be worn. For example, 30 C.F.R. § 57.14131(a) provides, “Seat belts shall be
provided and worn in haulage trucks.” 30 C.F.R. § 56.14131(a) contains the identical
requirement. These regulations point to and support an interpretation of section 77.1710(i) in a
manner that provides equivalent and harmonized safety protection across different types of
mining ventures.
6

Commissioner Lawson further correctly observed that this “interpretation [operator
liability] is congruent with those final—and absolute—responsibilities placed upon the operator
by the Act to prevent safety and health hazards to miners, including forestalling employees from
engaging in unsafe and unhealthful activities.” Southwestern I, 5 FMSHRC at 1682.

38 FMSHRC Page 1649

Commission case law supports, indeed dictates, such a parallel construction of coal and
metal/non-metal regulations. The Commission has found that “[t]here is no logical reason why
coal mines would be subject to a regulation designed to be less protective . . . than the regulation
governing other mines, and it would make little sense for MSHA or its predecessor agency to
have intended such a result.” Wolf Run Mining Co., 32 FMSHRC 1669, 1682 (Dec. 2010); see
also Solar Sources, Inc., 37 FMSHRC 218, 221 (Feb. 2015).
The legislative history of the Mine Act further confirms this approach. A fundamental
purpose of the Act was to provide a standard for safety for metal/non-metal miners as
comprehensive and protective as the standards provided for coal miners. The Senate Report on
the Mine Act notes that the Coal Act7 was more comprehensive in scope and reach than the
Metal Act.8 It states that one reason why enactment of the Mine Act was an absolute necessity
was that there would be “one statute for both coal and metal/nonmetal mines, affording equal
protection for all miners and a common regulatory program for all operators.” S. Rep. No. 95181, at 9 (1977), reprinted in S. Subcomm. on Labor, Comm. on Human Res., Legis. History of
the Fed. Mine Safety and Health Act of 1977, at 597 (1978). Consequently, it would be illogical
and at odds with the purpose of the Mine Act to construe coal regulations in a manner achieving
less protection for coal miners than the protection afforded metal/nonmetal miners.
Fourth, if a violation is dependent upon the training regimen and enforcement practices of
the operator, it is difficult to see how an inspector observing a driver not wearing a seat belt
could know whether that failure constituted a violation. The inspector would have little or no
information about training or enforcement of the seat belt requirement. Therefore, the inspector
arguably would need to forego issuance of a citation, commence an investigation of the
operator’s practices before issuance, or issue a citation thereby touching off a further inquiry to
determine if the citation is valid. Such a process is not consistent with the enforcement
procedures of the Mine Act and regulations.
Fifth, the Secretary’s interpretation is also consistent with the Mine Act’s scheme of strict
liability. Because the Mine Act is a strict liability statute, an operator is liable if a violation of a
mandatory safety standard occurs, regardless of the level of fault. Sec’y of Labor v. Nat’l
Cement Co. of Cal., 573 F.3d 788, 795 (D.C. Cir. 2009) (stating that strict liability “means
liability without fault[;] [i]t does not mean liability for things that occur outside one’s control or
supervision” (citation omitted)); Spartan Mining Co., 30 FMSHRC 699, 706 (Aug. 2008);
Asarco, Inc., 8 FMSHRC 1632, 1634-36 (Nov. 1986), aff’d, 868 F.2d 1195 (10th Cir. 1989).
The ultimate responsibility for compliance lies with the operator. Moreover, imposing strict
liability on the operator for a miner’s failure to comply with the regulatory requirements
promotes safety in furtherance of the Mine Act’s purpose.

7

Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976)
(amended 1977).
8

Federal Metal and Nonmetallic Mine Safety Act of 1966, 30 U.S.C. § 721 et seq.
(1976) (repealed 1977).

38 FMSHRC Page 1650

Consequently, when a miner fails to wear a seat belt when operating a vehicle covered by
section 77.1710(i), he violates the standard. Then, as required by law, the operator is liable for
the violation. See Sewell Coal Co., 686 F.2d 1066, 1071 (4th Cir. 1982); Allied Prods. Co. v.
FMSHRC, 666 F.2d 890, 893-94 (5th Cir. 1982); A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan.
1983). Of course, the operator’s fault or lack of fault goes to the issue of negligence and, thus, is
considered in assessing a civil penalty. Asarco, Inc.-Nw. Mining Dept. v. FMSHRC, 868 F.2d
1195, 1197 (10th Cir. 1989); Sewell Coal Co., 686 F.2d at 1071; W. Fuels-Utah, Inc., 10
FMSHRC 256, 259 (Mar. 1988). In this regard, the standard set forth for liability in
Southwestern II may provide an appropriate test for operator negligence that depends upon
whether the operator has undertaken appropriate training and enforcement to show “diligence in
site-oriented enforcement” of section 77.1710(i). Southwestern II, 7 FMSHRC at 612.
Sixth, this interpretation best achieves the purpose of the Mine Act and regulations issued
under it—namely, protection of the health and safety of miners. Rock of Ages Corp. v. Sec’y of
Labor, 170 F.3d 148, 155 (2d Cir. 1999); 30 U.S.C. § 801(g). Viewed from this perspective, it is
plainly evident that section 77.1710(i) requires miners to wear seat belts.
Even if we harbored doubts about the proper interpretation of section 77.1710, we
necessarily would find section 77.1710(i) to be ambiguous, and would defer to the Secretary’s
interpretation as a reasonable and persuasive construction of the regulation. See Auer v. Robbins,
519 U.S. 452 (1997).
For these reasons, we vacate and reverse the finding of no violation by the Administrative
Law Judge. We conclude that the operator violated section 77.1710(i) because of the miner’s
failure to utilize seat belt protection in operating a vehicle where there was a danger of
overturning and rollover protection was provided.
B.

Alternative Findings

As set forth above, anticipating the possibility of the overruling of Southwestern I, the
Judge made two alternative findings. He found that if a violation occurred, the operator was not
negligent and that the violation was not significant and substantial. We look first at negligence
and then at the S&S issue.9

9

The operator also raised due process considerations on the basis that it relied upon the
Southwestern I decision and, therefore, would have had no notice of a possible violation
notwithstanding compliance with the protective measures prescribed in Southwestern I.
However, the operator does not provide any cogent explanation of any prejudice from the alleged
lack of notice. It does not assert that it would have, or could have, done more to assure usage of
seat belts or otherwise acted differently based upon an understanding of our current decision.
Indeed, such assertions might well have undercut its basic defense. Further, as the Secretary
pointed out, S. Reply Br. at 12, he has made it abundantly clear that he would continue to cite
operators notwithstanding Southwestern I. Therefore, we do not find the operator was prejudiced
or denied due process by the decision we reach today.

38 FMSHRC Page 1651

We affirm the finding of no negligence. The Judge found that the operator established
and conducted a sufficient training and enforcement program to avoid liability under
Southwestern I. The Judge found, “that the rock truck was not defective at the time of the
accident, that Nally & Hamilton did not know (and could not reasonably determine for this truck)
that Patterson was not wearing his safety belt, and that the mine had, and enforced, a policy
regarding the wearing of safety belts.” 35 FMSHRC at 2206. Substantial evidence supports that
finding. That finding, in turn, supports the Judge’s finding of no negligence.10
Regarding the issue of whether the violation was significant and substantial, the Judge
did not engage in sufficient analysis to permit action by the Commission. Because a finding on
the issue of whether the violation was significant and substantial could affect the gravity element
of the penalty assessment, we remand the case to the Administrative Law Judge for further
consideration of whether the violation was significant and substantial and assessment of a
penalty.
III.
Conclusion
For the foregoing reasons, we vacate the Judge’s decision and remand the case for further
action consistent with this decision.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

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

10

Commissioner Cohen would impose a duty upon operators to “monitor” for seatbelt
usage under section 77.1710(i). This would be a significant obligation, not sought by the
enforcement agency in this case as a requirement to meet the standard of a reasonably prudent
operator. Based on this record, we do not adopt Commissioner Cohen’s position.

38 FMSHRC Page 1652

Commissioner Young, dissenting:
The majority claims that “we do not lightly overrule previous Commission holdings.”
Slip op. at 5. The decision then cites Supreme Court cases which solemnly intone the preference
for the principle “that the applicable rule of law be settled,” before getting to the point that the
Court should not be constrained by precedent, and has not been, when confronted by decisions
that are “unworkable or are badly reasoned.” Id. at 5 n.5 (quoting Payne v. Tennessee, 501 U.S.
808, 827 (1991)).1
In fact, though, the majority hardly makes the case that Southwestern Illinois Coal
Corporation, 5 FMSHRC 1672 (Oct. 1983) (“Southwestern I”), or North American Coal
Corporation, 3 IBMA 93 (1974), are “unworkable or are badly reasoned.” Rather, the majority
simply doesn’t like the conclusion compelled by those decisions in this case. While the
majority’s intentions are good, the actual effect on mine safety may not be, and the unsettling
effect on our precedents certainly is not.
The standard at issue provides that “[e]ach employee working in a surface coal mine or in
the surface work areas of an underground coal mine shall be required to wear protective clothing
and devices,” including, inter alia, fall protection devices where there is a danger of falling and
seatbelts when in vehicles which present a danger of rolling over. 30 C.F.R. § 77.1710
(emphasis added). As always, when reviewing a standard, we must first examine its language
and determine if it is plain or ambiguous.
The Commission held, in Southwestern I, that the language was plain. There is no basis
in law—no overriding precedent, no change in the wording of the standard—to justify the
majority’s reconsideration of this point. While the Secretary, as the prevailing party in
Southwestern I, was precluded from challenging the Commission’s interpretation in that case, it
has been binding precedent before us for decades. Nothing precluded the Secretary from
revising the regulation if he disagreed with our decision to acknowledge its plain meaning.
Where, then, is the recognition of the intrinsic value of settled law?
The understanding affixed to the standard, in fact, predates the adoption of the Mine Act.
Our decision in Southwestern I relied on the decision of the Interior Board of Mine Operation
Appeals (“IBMA”) in North American, 3 IBMA at 107, involving a similarly-worded
standard, employing the same phrase—“shall be required to wear”—to support its
interpretation of the standard. Consistent with North American, the Commission explained:
The intended effect of [the Interior Board’s] construction was that
if a failure to wear the protective clothing and equipment was
“entirely the result of the employee’s disobedience or negligence
1

In this context, citation to Payne v. Tennessee is archly ironic. In that very decision,
there is a lively debate about the role of stare decisis, in which Justice Scalia noted that Justice
Marshall’s vigorous dissent against that principle could be rebutted by opinions authored by
Justice Marshall himself. 501 U.S. at 833-35 (Scalia, J., concurring).

38 FMSHRC Page 1653

rather than a lack of requirement by the operator to wear them,
then a violation has not occurred.” . . . .
The regulation does not state that the operator must
guarantee that belts and safety lines are actually worn, but rather
says only that each employee shall be required to wear them. The
plain meaning of “require” is to ask for, call for, or demand that
something be done. Accordingly, when an operator requires its
employees to wear belts when needed, and enforces that
requirement, it has discharged its obligation under the regulation.
We respectfully disagree with our dissenting colleagues that “shall
be required to wear” means “shall be worn.” The two phrases are
not the same, and we do not find persuasive a reading that converts
a duty to require into a duty to guarantee. Certainly, the purpose of
the standard is to protect miners, but the standard as written
provides for that protection by directing that operators require the
belts to be worn.
Southwestern I, 5 FMSHRC at 1675 (emphasis and citations omitted). The Commission rejected
the Secretary’s argument that “shall be required” means “shall be worn,” stating that the two
phrases carried different meanings and that if the Secretary intended the latter, he should have
promulgated the regulation accordingly. Id. Ultimately, the Commission reversed the Judge and
reinstated the citation because they found that the record did not show “sufficiently specific and
diligent enforcement.”2 Id. at 1676. The Commission noted that use of the safety belt and line
was left to the discretion of the miner and no direction was provided as to specific work
situations where belts should be worn. Id.
Beyond the command of stare decisis, the outcome of this case should recognize
Southwestern I’s legal and logical underpinnings as a plain language case. Thus, where the
language of a regulatory provision is clear, the terms of that provision must be enforced as they
are written unless the regulator clearly intended the words to have a different meaning or unless
such a meaning would lead to absurd results. See Dyer v. United States, 832 F.2d 1062, 1066
(9th Cir. 1987); Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993); Utah Power &
Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989).

2

Likewise, in Southwestern Illinois Coal Corp., 7 FMSHRC 610 (May 1985)
(“Southwestern II”), the Commission reversed the Judge and entered summary decision in the
Secretary’s favor, again finding that the operator had failed to prove its affirmative defense. Id.
at 612-13. Because the Secretary received favorable rulings on liability in both cases, the
Secretary had no standing to challenge the Commission’s contrary interpretation of section
77.1710 in a court of appeals. See Mathias v. WorldCom Techs., Inc., 535 U.S. 682, 684 (2002)
(per curiam) (“As a general rule, a party may not appeal from a favorable judgment simply to
obtain review of findings it deems erroneous.” (emphasis added)).

38 FMSHRC Page 1654

The applicable subsection provides that each employee “shall be required to wear . . .
[s]eatbelts in a vehicle where there is a danger of overturning and where roll protection is
provided.” 30 C.F.R. § 77.1710(i) (emphasis added). Based on this plain language, the
Commission has interpreted section 77.1710 to create a limited exception to the Mine Act’s strict
liability scheme. Under the Commission’s interpretation of the standard, an operator avoids
liability if it proves that (1) it has a safety system in place requiring miners to use protective gear
and (2) it adequately enforces the system. Southwestern I, 5 FMSHRC at 1674-77; Southwestern
II, 7 FMSHRC at 612-13.
This interpretation of the standard has hardly served as an escape hatch for operators.
In Southwestern I, the Commission ultimately ruled in the Secretary’s favor on liability and
concluded that the operator had failed to prove that its safety policies and enforcement were
adequate. 5 FMSHRC at 1676. Further, the Commission noted that the operator must take
“specific enforcement actions” that show “diligence in site-oriented enforcement” of its policy.
Southwestern II, 7 FMSHRC at 612. Thus, the operator must prove that it is affirmatively acting
to ensure that miners wear or use the required protective equipment, consistent with the
standard’s plain meaning.
In this case, the Judge correctly applied the interpretation set forth in Southwestern I. See
35 FMSHRC at 2204-06. This would rightly raise the next issue: whether the record provides
substantial evidentiary support for the decision below.3
Contrary to the Secretary’s contention, substantial evidence supports the Judge. As the
Judge noted:
Both Inspector Smith and Safety Coordinator Creech specified the
numerous safety measures that the mine routinely employed to
enforce its seatbelt policy. Not only did Nally & Hamilton require
its employees to sign off on agreeing to the mine’s safety policies,
including seatbelt usage, before beginning employment, but each
miner also revisits this policy every year at the company’s annual
retraining. The truck’s driver, James Patterson, was among the
Nally & Hamilton employees who agreed to this safety policy
before starting employment at the mine; he was further reminded
of these rules every year at annual retraining. Tr. 115-116.
Id. at 2205. The Judge also noted that the fact that Nally & Hamilton had only one incident of
discipline for violation of its seatbelt policy indicated that its enforcement measures were
effective, as Inspector Smith also testified that he had witnessed miners in compliance with the
3

When reviewing an Administrative Law Judge’s factual determinations, the
Commission is bound by the terms of the Mine Act to apply the substantial evidence test. 30
U.S.C. § 823(d)(2)(A)(ii)(I). “Substantial evidence” means “such relevant evidence as a
reasonable mind might accept as adequate to support [the Judge’s] conclusion.” Rochester &
Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consol. Edison Co. of N.Y.
v. NLRB, 305 U.S. 197, 229 (1938)).

38 FMSHRC Page 1655

regulatory requirement on past inspections. Id. at 2205-06. In that instance, the violative
conduct occurred on a public road. Thus, the mine’s policy was enforced even where an
employee was off Nally & Hamilton’s property. Tr. 106, 125-26.
Unlike the circumstances in Southwestern I, the facts here indicate that Nally &
Hamilton’s policy on seatbelt use was explicitly clear and its training demonstrative of the safety
hazards of noncompliance. Thus, the record supports the conclusion that Nally & Hamilton
provided supervision and enforcement of its policy.
While I would hold that substantial evidence supports the Judge’s finding that Nally &
Hamilton sufficiently enforced its policy requiring miners to wear safety belts, I readily concede
that a finding to the contrary on the operator’s policy could also be sustained on substantial
evidence grounds. The judge could have held that the fact of violation here indicated that the
operator’s policy was not fully effective, and that spot checks or other means should have been
employed because whether vehicle operators are complying with company policy cannot always
be determined by observation from outside the vehicle.114
This is a question of evidentiary weighing, within the Judge’s province to make requisite
findings and then apply the law to those findings. See Martin Cty. Coal Corp., 28 FMSHRC
247, 261-62 (May 2006) (“The Commission requires that a judge analyze and weigh all
probative record evidence, make appropriate findings, and explain the reasons for his or her
decision.” (citing Mid-Continent Res., 16 FMSHRC 1218, 1222 (June 1994)). Where that
analysis is not clearly erroneous, we are bound to respect it. Utah Power & Light Co., 13
FMSHRC 1617, 1623 n.6 (Oct. 1991) (“[A]buse of discretion may be found only if there is no
evidence to support the decision or if the decision is based on an improper understanding of the
law.”) (citing Bothyo v. Moyer, 772 F.2d 353, 355 (7th Cir. 1985)). There is no clear error here
because the Commission in Southwestern I specifically rejected a guarantee of compliance.
Here, the evidence supports that the operator had a policy in place, provided training to its
miners on said policy, employed a system of progressive discipline to deter non-compliance, and
actually imposed discipline on the one prior occasion where a miner was found to be in violation
of the company’s policy. Moreover, the inspector admitted that on past inspections, he
witnessed miners complying with the seatbelt rule. Determining whether this was “enough” is a
judicial function.5

4

Were we to apply Southwestern I and affirm the Judge in this case, the operator would
nonetheless have notice that its enforcement program was not fully effective and that additional
measures, such as spot checks, might be needed to ensure compliance with the standard.
5

I would note that the occurrence of the accident here should put the operator on notice
that greater efforts may be required in the future. If Nally & Hamilton had no reason to suspect
its program may not be fully effective before the accident in this case, it has reason to question
that assumption now. I would also point out that the Secretary may promulgate guidance on
what it requires for compliance with the requirements of Southwestern I, but has not done so.

38 FMSHRC Page 1656

Finally, the majority’s decision today is contrary to the intent of the Act and its safety
purposes. The Act provides that mine operators, with the assistance of miners, “have the primary
responsibility to prevent” the existence of hazardous conditions and practices. 30 U.S.C.
§ 801(e). Southwestern I’s imposition of a duty on operators to ensure seatbelts are worn is
entirely consistent with this statutory command.
More importantly, the standard at issue applies only at surface mines. Such mines are
inspected only once per year. Thus, the only ways to find a violation would be to have the
inspector be present when it occurs, on the one inspector’s single annual visit to the mine site, or
to have the fact revealed as it was here, in the aftermath of an accident. Conversely, under
Southwestern I, the agency could audit and review the operator’s program for proactively and
assertively requiring the use of appropriate protective clothing and devices, to ensure the
operator is fulfilling its duties under the law. This seems more likely to have a beneficial and
more consistent effect than the hope of a random encounter with a violator or, worse, an accident
investigation.
Southwestern I rests on the plain language of a standard drafted by the Secretary and has
served the interests of mine safety since we decided the case on those grounds. It is important, as
the Supreme Court has noted, for settled law to remain settled. Accordingly, I dissent.

/s/ Michael G. Young
Michael G. Young, Commissioner

38 FMSHRC Page 1657

Commissioner Cohen, concurring in part and dissenting in part:
For the reasons that follow, I concur with the majority that the record evidence compels
the conclusion that Nally & Hamilton violated the safety standard at 30 C.F.R. § 77.1710(i).
However, I disagree with the majority’s affirmance of the Judge’s alternative finding of no
negligence.
Although I agree with the finding of a violation in the majority’s decision, I cannot join
them in their rationale. Their conclusion that Southwestern Illinois Coal Corp., 5 FMSHRC
1672 (Oct. 1983) (“Southwestern I”), was badly reasoned is not supported. In the absence of a
compelling justification that the decision was wrongly decided, the Commission should abide by
the doctrine of stare decisis. See Arizona v. Rumsey, 467 U.S. 203, 212 (1984) (“[A]ny departure
from the doctrine of stare decisis demands special justification.”).
The majority states that “the only sensible reading of the regulation is that it requires that
miners use seat belts.” Slip op. at 4. If this were simply a matter of a policy choice, I would
agree with my colleagues. However, their legal analysis is fatally flawed. The majority’s
purported plain reading of the safety standard is inconsistent with the language of the safety
standard. See 30 C.F.R. § 77.1710(i) (“Each employee working in a surface coal mine or in the
surface work areas of an underground coal mine shall be required to wear protective clothing and
devices as indicated below: . . . (i) Seatbelts in a vehicle where there is a danger of overturning
and where roll protection is provided.”).
A.

The Majority’s Plain Reading of Section 77.1710(i) Fails to Give Effect to All
the Words in the Safety Standard.

In Southwestern I, the Commission held that the language of section 77.1710(i) requires
an operator to (1) “establish a safety system designed to assure that employees wear [the clothing
or equipment] on appropriate occasions” and (2) “enforce such system with due diligence.”
Southwestern I, 5 FMSHRC at 1674-77 (quoting N. Am. Coal Corp., 3 IBMA 93, 107 (1974));
Southwestern Ill. Coal Corp., 7 FMSHRC 610, 612-13 (May 1985) (Southwestern II).1 In so
holding, the Southwestern I Commission gave effect to all the words of the safety standard.
Today, the majority does something different. They hold that the standard’s direction
that “each employee . . . shall be required to wear [seatbelts],” 30 C.F.R. § 77.1710 (emphasis
added), means that seat belts shall be worn. Slip op. at 4. The majority has ignored the phrase
“be required to” in the safety standard. Effectively, the majority concludes that the phrase is
superfluous.
Reading words out of a regulation is not a proper approach to construction. See TRW Inc.
v. Andrews, 534 U.S. 19, 31 (2001) (stating that a cardinal principle of interpretation is to give
effect, if possible, to every clause or word). The words “be required to” were deliberately
chosen by the Secretary when he drafted section 77.1710(i). They provide meaning and context.
1

The Southwestern cases, like the present case, arose in the context of a surface coal

mine.

38 FMSHRC Page 1658

Those words inform mine operators that they are strictly liable for a failure to require their
employees to wear seatbelts.
The Southwestern I Commission determined that a mine operator performs its duty when
it establishes a safety system to require compliance and diligently enforces its safety system. I
conclude that Southwestern I was correctly decided, because the Commission’s interpretation
gives effect to all the words in the safety standard.
Unquestionably, the Secretary knows how to write a regulation which provides that
miners “shall wear” protective clothing or that protective clothing “shall be worn.” A search of
the Secretary’s regulations containing mine safety and health standards (30 C.F.R. Parts 56, 57,
75 and 77) reveals 35 separate regulations where the Secretary directly and unquestionably
requires that miners shall wear protective clothing such as gloves, face-shields or goggles, hard
hats, suitable protective footwear, seat belts, safety lines, self-rescue devices, respirators, etc.2
The fact that section 77.1710 uses the language “shall be required to wear” indicates that the
Secretary meant something different.
B.

The Majority Has Not Demonstrated that Southwestern I is Badly Reasoned.

My colleagues’ asserted rationale for overruling Southwestern I fails when closely
examined.
For example, my colleagues state that the reinterpretation of the safety standard is
necessary so that the standard better conforms with a similar regulation that governs haulage
trucks operating at metal and non-metal mines. Slip op. at 7. The safety standard at 30 C.F.R.
§ 57.14131 requires that “[s]eat belts shall be provided and worn in haulage trucks.” (emphasis
added).
However, section 57.14131 was promulgated by the Secretary in August 1988, about
five years after the Commission issued Southwestern I. 53 Fed. Reg. 32496, 32528 (Aug. 25,
1988). The Secretary’s subsequent promulgation of a new regulation concerning seat belt use at
metal and non-metal mines has no legal effect on the Commission’s prior interpretation of
section 77.1710(i) (governing surface mines).
My colleagues also suggest that Southwestern I was wrongly decided because it allegedly
causes section 77.1710(i) to conflict with the safety standard at 30 C.F.R. § 77.403-1(g). Section
77.403-1(g) states that “[s]eat belts required by § 77.1710(i) shall be worn by the operator of
mobile equipment required to be equipped with [rollover protective structures] by § 77.403-1.”
(emphasis added). The supposed conflict between the Southwestern I interpretation of section
77.1710(i) and section 77.403-1(g) is imagined by the majority. Section 77.1710(i) requires an
2

See 30 C.F.R. §§ 56.14130, 56.15002, 56.15003, 56.15004, 56.15005, 56.15007,
56.15014, 56.15020, 56.16002; also 57.5044, 57.5045, 57.14130, 57.15002, 57.15003, 57.15004,
57.15005, 57.15007, 57.15014, 57.15020, 57.15031, 57.16002; also 75.705-6, 75.705-9,
75.1106-4, 75.1714-2, 75.1720-1, 75.1723; also 77.401, 77.403-1, 77.606-1, 77.704-6, 77.704-9,
77.1607, 77.1710-1, and 77.1908.

38 FMSHRC Page 1659

operator to establish a safety system and for the operator to enforce such system. It applies to all
vehicles at surface coal mines where there is a danger of overturning and rollover protection has
been provided. In contrast, section 77.403-1(g) applies only to the vehicles specifically listed in
30 C.F.R. § 77.403-1.3 Therefore, section 77.403-1 adds an additional requirement for an
operator, i.e., it must guarantee that the belts are worn when a miner operates vehicles listed in
section 77.403-1, or be held strictly liable. The standards create different duties for a mine
operator. The existence of separate duties does not cause conflict; it explains the Secretary’s
promulgation of different rules.
The majority suggests that section 77.1710(i) and section 77.403-1(g) should be
interpreted functionally as requiring the same conduct; this is an odd result for sure. I suggest
that the heightened requirements imposed on a mine operator by section 77.403-1(g) can only be
understood by interpreting section 77.1710(i) as the Southwestern I Commission did.
For these reasons, as well as the reasons stated by Commissioner Young in his dissent, I
find that the majority has failed to demonstrate that Southwestern I should be overturned. See
slip op. at 10-12 (Young, Comm’r, dissenting).
C.

Nally & Hamilton Violated Section 77.1710(i).

In Southwestern I and II, the Commission made clear that an operator’s safety program
requiring the wearing of seat belts coupled with discipline for violation of the requirement is not
sufficient to comply with section 77.1710(i). The operator must also put in place a system of
supervision to ensure compliance. 5 FMSHRC at 1676; 7 FMSHRC at 612.
The record evidence demonstrates that Nally & Hamilton established a safety system; it
created a policy requiring the use of seatbelts, and provided annual refresher training. Miners
were required to sign off on the policy prior to beginning employment and upon receipt of annual
training. In addition, the mine foreman presented monthly safety talks. 35 FMSHRC at 220102. Sanctions for violating the policy included the issuance of a written warning or retraining,
id. at 2201, 2205-06, but the system lacked a method for monitoring compliance.
The majority describes the operator’s responsibility under section 77.1710 as limited to
an obligation “to train and discipline miners.” Slip op. at 5. The majority does not recognize
that when the regulation states that an employee “shall be required to wear” protective clothing,
the requirement includes a responsibility on the part of the operator to monitor the work rules it
promulgates.
After considering the evidence, the Judge concluded that the policy was enforced
diligently, stating that there were “no reasonable additional steps [that] could have been taken to
assure that [the mine’s] employee was wearing the seat belt for this vehicle, given the undisputed
record that one could not tell from the ground if the lap belt was being worn.” Id. at 2205.
However, the Judge’s conclusion that “no reasonable additional steps could have been taken to
3

In this case, the driver was operating a rock truck, a type of vehicle not listed in section

77.403-1.

38 FMSHRC Page 1660

assure that [miners were] wearing the[ir] seat belt” lacks the support of substantial evidence in
the record.4 Nally & Hamilton Safety Coordinator Creech testified that a supervisor could have
performed a periodic safety spot check by asking drivers to open their cab door to check for seat
belt usage. Tr. 126. The Judge failed to consider the absence of this simple monitoring program
suggested by the operator’s own safety coordinator.
Enforcement with due diligence requires that mine operators take reasonable steps to
conduct periodic spot checks for compliance. Certainly, requesting that a driver open his door as
a safety spot check is a reasonable step. Such a practice is not an onerous burden, and need only
be performed on an occasional basis to constitute the due diligence required by the safety
standard. See Southwestern I, 5 FMSHRC at 1676 (holding that general guidance by the mine
operator does not constitute diligence in enforcement; rather, reinforcement of safety
considerations is necessary under the standard).
If a mine operator lacks a monitoring tool for compliance, then the safety system cannot
be said to be enforced with “due diligence,” and a violation of section 77.1710(i) is established.
Because the evidence demonstrates that Nally & Hamilton lacked an appropriate monitoring tool
to ensure compliance with their safety policy, the operator violated the safety standard.5
D.

The Operator Was Negligent in Violating the Standard.

The majority affirmed the Judge’s alternative finding that Nally & Hamilton was not
negligent in its violation of the safety standard.
As previously stated, substantial evidence does not support the Judge’s finding that no
reasonable steps could have been taken by Nally & Hamilton to assure that its employees were
wearing seatbelts. See 35 FMSHRC at 2205. The majority’s negligence determination rests on
that finding.
4

“Substantial evidence” means “such relevant evidence as a reasonable mind might
accept as adequate to support [the judge’s] conclusion.” Rochester & Pittsburgh Coal Co., 11
FMSHRC 2159, 2163 (Nov. 1989) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197,
229 (1938)).
5

The majority contends that interpreting section 77.1710(i) to make it dependent on the
training regimen and enforcement practices of the operator makes it difficult for an MSHA
inspector who observes a driver not wearing a seat belt to determine whether to issue a citation.
Slip op. at 7. The short answer is that this interpretation of the standard has been in effect for the
more than 40 years since the Southwestern cases were decided. The Secretary could have
eliminated any enforcement problem simply by re-writing section 77.1710 so as to eliminate the
words “be required to.” To enforce the standard as it actually was written, an inspector who
observes a miner operating a vehicle without the required seat belt the inspector should (1) stop
the driver, (2) question the driver about the training he has received and whether/how the
operator enforces a seat belt requirement, (3) direct the driver to put on the seat belt before recommencing work, and (4) if necessary, depending on his interview of the driver, conduct
further investigation into whether the operator actually requires the drivers to wear seatbelts.

38 FMSHRC Page 1661

I conclude that the complete absence of a monitoring program compels the conclusion
that the operator was at least moderately negligent in violating the safety standard.
E.

Conclusion

For the reasons stated, I would reverse the Judge’s findings, and find that the operator
violated section 77.1710(i) and that the violation was moderately negligent. I would remand the
case to the Judge for determinations of S&S and the penalty.

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

38 FMSHRC Page 1662

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

July 19, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2012-1821
v.
LEWIS-GOETZ AND COMPANY, INC.
BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
DECISION
BY: Jordan, Chairman; Nakamura and Althen, Commissioners
In this simplified penalty proceeding arising under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), the Administrative Law
Judge vacated a citation issued by the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) to Lewis-Goetz and Company, Inc. (“Lewis-Goetz”), and dismissed
the pending penalty proceeding. 35 FMSHRC 2192 (July 2013) (ALJ).1 At issue is the regulatory
interpretation of 30 C.F.R. § 77.1710(g), which requires employees to use safety belts and lines
when there is a danger of falling. For the reasons that follow, we reverse the Judge’s decision,
grant summary decision for the Secretary on the fact of violation, and remand for further
proceedings.
I.
Facts and Proceedings Below
A.

Factual Background

Lewis-Goetz is an independent contractor that offers conveyor belt fabrication and repair
services to mines. On December 18, 2011, an MSHA Inspector was inspecting a prep plant in
West Virginia. The inspector observed Lewis-Goetz hourly employee Jesse Brown performing
belt splicing and vulcanizing services on the elevated No. 2 raw coal belt. The belt was
approximately 30 inches wide, wet from the falling snow, and located approximately 10 to 12
feet above the ground. Brown was walking and squatting down on the wet, narrow, and elevated
coal belt. He was not wearing a safety belt or tag line.

1

We are deciding this case in conjunction with our consideration of Nally & Hamilton
Enterprises, 38 FMSHRC __, No. KENT 2011-434 (July __, 2016), which also involves the
interpretation of 30 C.F.R. § 77.1710, and are issuing the decisions in both cases on this date.

38 FMSHRC Page 1663

The inspector determined that Brown was in imminent danger of falling and issued an
imminent danger order (which is not at issue in this case). He also issued a citation alleging that
Brown had violated 30 C.F.R. § 77.1710(g),2 which addresses miners’ use of safety belts and
lines where there is danger of falling. The citation also alleged that it was highly likely that a
fatal injury would occur as a result of a fall; that the violation was “significant and substantial”
(“S&S”);3 and that one miner was affected. The citation was initially issued with a designation of
“high” negligence, but MSHA later modified the operator’s negligence to moderate.
After the inspector ordered Brown to descend from the coal belt, Brown stated that he
was aware he was supposed to wear a safety belt and tag line, but due to the severe cold weather,
he was in a hurry to get the work done and decided not to wear the belt. After being removed
from the elevated beltline, Brown retrieved a safety belt and tag line from a tool bag located in
the maintenance truck. Brown told the inspector that the devices were available to him and that
he had been trained in their use.
MSHA proposed a civil penalty of $971, and Lewis-Goetz filed a notice of contest
challenging the citation.
B.

The Judge’s Decision

The Judge issued a Decision and Order on Cross Motions for Summary Decision. She
denied the Secretary’s motion for summary decision on the violation of section 77.1710, granted
the operator’s motion for summary decision, and vacated the citation. 35 FMSHRC at 2197. The
decision did not revisit a previous determination by the Judge to reject the Secretary’s filing of

2

Section 77.1710 provides:
Each employee working in a surface coal mine or in the
surface work areas of an underground coal mine shall be required
to wear protective clothing and devices as indicated below:
....
(g) Safety belts and lines where there is danger of falling; a
second person shall tend the lifeline when bins, tanks, or other
dangerous areas are entered.

30 C.F.R. § 77.1710.
3

The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C.
§ 814(d)(1), which distinguished as more serious any violation that “could significantly and
substantially contribute to the cause and effect of a . . . mine safety or health hazard.”

38 FMSHRC Page 1664

an opposition to Lewis-Goetz’s motion and did not refer to any of the arguments the Secretary
had made in that filing.4
The Judge first concluded that the Secretary properly asserted MSHA jurisdiction over
Lewis-Goetz. Id. at 2194-95. In effect, though not explicitly, the Judge therefore granted partial
summary decision in the Secretary’s favor on the jurisdictional issue.
The Judge then considered whether Lewis-Goetz violated 30 C.F.R. § 77.1710(g) when
Brown worked without a safety belt or line. She concluded that the contractor had not violated
the standard. Id. at 2195-97. The Judge noted the Secretary’s position that a violation had
occurred because section 77.1710(g) imposes strict liability on operators. Id. at 2196. The Judge
also noted Lewis-Goetz’s position that the standard only requires an operator to impose a
requirement for employees to use fall protection and to take reasonable measures to ensure that
the requirement is enforced. Id. at 2195-96. The Judge concluded, based on the Commission’s
decisions in Southwestern Illinois Coal Corp., 5 FMSHRC 1672 (Oct. 1983) (“Southwestern I”),
and Southwestern Illinois Coal Corp., 7 FMSHRC 610 (May 1985) (“Southwestern II”), that the
duty the standard imposes on the operator is to “have a safety system in place requiring
employees to use safety gear and that [the operator] diligently seek[s] to enforce that requirement
through such avenues as training, supervision, and disciplinary measures for failure to comply.”
35 FMSHRC at 2196.
The Judge summarized the evidence in the record, stating that the Secretary stipulated to
the following facts: (l) Lewis-Goetz has a written policy that all miners must wear fall
protection; (2) Lewis- Goetz offers at least yearly refresher training on the policy; 3) by company
policy, a violation of the requirement to wear fall protection is subject to graduated disciplinary
measures, including termination; and (4) Brown admitted to the inspector that he was “well
aware of the requirement to wear the equipment but he intentionally ignored the policy” and that
“[t]he gear was readily available to him in his tool bag.” Id.
4

Before the Judge, the Secretary submitted a document which was titled “Secretary’s
Reply Brief in Further Support of His Motion for Summary Decision and Determination of
Penalty.” The content of the filing was in essence an opposition to Lewis-Goetz’s motion for
summary decision, addressing the case law cited by Lewis-Goetz but not addressed by the
Secretary’s July 5, 2013 motion. The Judge rejected the Secretary’s filing, informing the
Secretary that she would not accept and consider any reply briefs.
On appeal, the Secretary argues that the Judge erred by excluding his responsive filing.
The Commission’s rule on summary decision contemplates that a party opposing the motion may
have an opportunity to file an opposition. 29 C.F.R. § 2700.67(d). However, because the case
was designated for simplified proceedings (29 C.F.R. § 2700, Subpart J), permitting the Judge an
opportunity for greater involvement at an early stage of the proceeding, the Judge directed the
parties to file cross motions for summary decision. Any error by the Judge in excluding the
Secretary’s opposition is non-material and harmless at this stage of the proceeding, especially in
light of our holding on the merits of this case. Moreover, the arguments raised in the Secretary’s
opposition have been raised on appeal and are now being addressed. Thus, we find no prejudice
to the Secretary as a result.

38 FMSHRC Page 1665

The Judge noted that if the parties disputed whether Lewis-Goetz’s efforts to enforce its
policy were adequate, then a material fact would be in dispute. Id. at 2196 n.3. The Judge
concluded, however, that summary decision was appropriate because the parties “had stipulated
to the contrary,” after having noted the undisputed facts about the operator’s policy and
enforcement efforts. Id. Ultimately, the Judge concluded: “Based upon the facts mutually agreed
upon, I find that Lewis-Goetz did have an adequate policy in place requiring employees to wear
fall protection and [that it] took adequate measures to enforce that policy.” Id. at 2196. After
granting Lewis-Goetz’s motion for summary decision and denying the Secretary’s motion for
summary decision, the Judge vacated the citation and dismissed the matter. Id. at 2197. The
Commission granted the Secretary’s petition for discretionary review.
II.
Disposition
A.

Occurrence of a Violation

The Secretary argues that in denying his motion for summary decision and granting
Lewis-Goetz’s motion, the Judge misinterpreted section 77.1710 and committed several
procedural errors. Specifically, the Secretary contends that the Judge misinterpreted the
applicable regulatory standard by applying Commission precedent holding that an operator may
escape liability for its rank-and-file miner’s failure to comply with the standard. The Secretary
argues that strict liability under the Mine Act mandates an alternative interpretation of the
applicable standard.
Below, the Judge determined that the operator was entitled to summary decision as a
matter of law. She based this decision on a plain interpretation of section 77.1710, controlled by
Commission precedent set forth in Southwestern I. The Commission reviews the Judge’s
summary decision de novo. See Lakeview Rock Prods., Inc., 33 FMSHRC 2985, 2988 (Dec.
2011). As we concluded in Nally & Hamilton Enterprises, 38 FMSHRC __, No. KENT 2011434 (July __, 2016), which was also issued on this date and addresses the interpretation of the
same language in section 77.1710, section 77.1710(i) requires the use of seat belts. Similarly,
section 77.1710(g) requires the use of fall protection where there is a danger of falling. Thus, the
Judge erred in granting summary decision for Lewis-Goetz. Rather, the Secretary is entitled to
summary decision that a violation occurred as a matter of law.
Consistent with Nally, the only sensible reading of the regulation is that it requires that
miners use fall protection. As in Nally, we do not read section 77.1710 as imposing only an
obligation upon the operator to train and discipline miners. The section compels the wearing of
the prescribed protective clothing and devices.5 Section 77.1710(g) achieves its purpose if and
5

Nally involved wearing seat belts, and Southwestern I involved the use of fall
protection. However, those cases, as does this case, turn upon the interpretation of the language
of the opening paragraph of section 77.1710 that miners “shall be required” to wear the
protective clothing and devices identified in the subsequent subsections.

38 FMSHRC Page 1666

only if miners wear fall protection, and not if they merely receive training on its use and suffer
discipline for failing to use it. It is not necessary to repeat our analysis of the proper
interpretation of section 77.1710 again here. As fully explained in Nally, we conclude that the
language of the standard, other standards related to the use of protective gear, Commission
precedent, and the purpose of the Mine Act underscore our interpretation of section 77.1710.6
Therefore, for the reasons set forth in Nally, we overrule Southwestern I and II. We find
that the failure of a miner to use fall protection as defined in section 77.1710(g) is a violation.
The operator, in turn, is strictly liable for such violation without regard to the diligence with
which it has trained and required miners to use fall protection. Therefore, we vacate and reverse
the decision below and find the operator committed a violation of section 77.1710(g).
B.

Negligence, S&S, and Penalty

In granting summary decision for the operator, the Judge found that the Secretary had
stipulated to facts demonstrating that the operator had adequate policies and enforcement
measures in place to warrant summary judgment under the then-prevailing Southwestern I
standard. On review, the Secretary asserts that it did not concede that the operator’s enforcement
actions were adequate and further asserts that the stipulations do not concede the adequacy of
enforcement.
The Judge acknowledged that if the Secretary contested the operator’s enforcement of its
policy, a disputed issue of fact would exist. In light of our decision today finding a violation,
these questions of enforcement actions become relevant to the Judge’s negligence determination,
which must be considered on remand. In addition, the Judge must make determinations regarding
whether the violation was S&S and the penalty amount.

6

Also as in Nally, even if we harbored doubts about the proper interpretation of section
77.1710, we necessarily would find section 77.1710(i) to be ambiguous, and would defer to the
Secretary’s interpretation as a reasonable and persuasive construction of the regulation. See Auer
v. Robbins, 519 U.S. 452 (1997).

38 FMSHRC Page 1667

We conclude that Lewis-Goetz violated section 77.1710(g) because of the miner’s
failure to use fall protection where there was a danger of falling. Because the Judge granted
summary decision for the operator and dismissed the proceeding, the Judge did not make
findings on the operator’s level of negligence and whether the violation was S&S, and did not
assess a penalty. Accordingly, we remand the case to the Judge for further proceedings in light
of our decision.
III.
Conclusion
For the foregoing reasons, we reverse the Judge’s decision, affirm Citation No. 8036268,
and remand for further proceedings on S&S and negligence and for assessment of a penalty.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

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

38 FMSHRC Page 1668

Commissioner Young, concurring:
I join my colleagues in reversing the Judge’s decision and granting summary decision to
the Secretary on the finding of a violation of 30 C.F.R. § 77.1710(g). I also agree with remanding
the case back to the Judge to address negligence, the Secretary’s S&S designation, and for
assessment of a penalty. However, because I disagree with their decision to overturn the
Commission’s decisions in Southwestern Illinois Coal Corp., 5 FMSHRC 1672 (Oct. 1983)
(“Southwestern I”), and Southwestern Illinois Coal Corp., 7 FMSHRC 610 (May 1985)
(“Southwestern II”), I write separately.
As I stated in my dissent in Nally & Hamilton Enterprises, 38 FMSHRC __, No. KENT
2011-434 (July __, 2016), also issued on this same date, I believe that the Commission should
respect and follow its precedent. A decision to overturn precedent should not be made lightly and
should be substantiated by ample reason based in law. In this circumstance, I believe that
Southwestern I was rightly decided based on the plain language of section 77.1710 and the wellestablished principles of regulatory construction. However, applying Southwestern I to the facts
of this case, substantial evidence supports that Lewis-Goetz failed to comply with the
requirements of Southwestern. More specifically, the evidence does not demonstrate that LewisGoetz engaged in “sufficiently specific and diligent enforcement” of its policy regarding fall
protection. Southwestern I, 5 FMSHRC at 1676. The record is devoid of evidence of any such
program and enforcement by Lewis-Goetz. Thus, even applying Southwestern I, the Judge erred
in granting summary decision for the operator.
The Commission reviews a Judge’s summary decision de novo. See Lakeview Rock
Prods., Inc., 33 FMSHRC 2985, 2988 (Dec. 2011). A Judge can enter summary decision only if
there are no material facts in dispute and a party’s position is entitled to judgment as a matter of
law. See 11 James Wm. Moore et al., Moore’s Federal Practice § 56.24 (3d ed. 2015)
(considering a motion for summary decision, Judge’s role is limited to a determination of
whether a case can be decided without the need to resolve any factual disputes).
The parties presented undisputed evidence that Lewis-Goetz had a policy concerning the
use of fall protection and provided guidance (training) and enforcement (progressive disciplinary
program); contrary to the Judge’s statement, the parties did not stipulate as to the adequacy of
Lewis-Goetz’s enforcement efforts under the standard articulated in Southwestern I. 35
FMSHRC 2192, 2196 & n.3 (July 2013) (ALJ). Nor is there sufficient evidence in the record to
support the Judge’s conclusion that Lewis-Goetz adequately enforced its policy on fall
protection.
The parties stipulated that Lewis-Goetz has a written policy that all miners must wear fall
protection, that they offer at least yearly refresher training on it, and that by company policy a
violation of the requirement to wear fall protection is subject to graduated disciplinary measures
including termination. 35 FMSHRC at 2196; Jt. Stips. 13, 14, 22. The parties submitted copies of
Brown’s training records, indicating that he had been trained annually on the use of fall
protection. Jt. Ex. C (attached to Jt. Stips.). Also submitted was a copy of Lewis-Goetz’s
Disciplinary Program. Jt. Ex. D (attached to Jt. Stips.). However, both Lewis-Goetz’s safety
policy and summary decision motion simply emphasize that its policy provided that it is each

38 FMSHRC Page 1669

employee’s personal responsibility to “work in a safe and efficient manner.” Jt. Ex. D; Resp’t’s
Br. Supp. Contest 3.
Lewis-Goetz did not present any evidence detailing the training provided to its miners or
evidence of enforcement and discipline for non-compliance with its safety program. Thus, given
the evidence of the operator’s sparse program and enforcement, I conclude that the record
compels the conclusion that Lewis-Goetz did not undertake “sufficiently specific and diligent
enforcement” of its policy about when miners must wear fall protection in satisfaction of
Southwestern I. See Am. Mine Servs., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (stating that
remand is not necessary when the record supports no other conclusion).
Because I conclude that Southwestern I is controlling, I agree that the Judge erred in
granting summary decision for the operator and conclude that the Secretary is entitled to
summary decision based on the conclusion that the operator did not comply with Southwestern I.
Accordingly, I agree with the majority that the case should be remanded to the Judge to address
the operator’s negligence and S&S and for assessment of a penalty.

/s/ Michael G. Young
Michael G. Young, Commissioner

38 FMSHRC Page 1670

Commissioner Cohen, dissenting:
I respectfully dissent in this case for two reasons.
First, I disagree with the majority that 30 C.F.R. § 77.1710(g) should be interpreted in a
manner that overrules the Commission decisions in Southwestern Illinois Coal Corp., 5
FMSHRC 1672 (Oct. 1983) (“Southwestern I”), and Southwestern Illinois Coal Corp., 7
FMSHRC 610 (May 1985) (“Southwestern II”). In a decision we are issuing simultaneously with
this one, Nally & Hamilton Enterprises, 38 FMSHRC __, No. KENT 2011-434 (July __, 2016),
a majority of the Commissioners have overruled Southwestern I and its progeny. I along with my
colleague Commissioner Young authored opinions dissenting from the majority in that case,
stating that the majority decision failed to provide a compelling justification to depart from
established Commission precedent. I adopt that opinion here. As Commissioner Young states in
his concurring opinion in this case, “Southwestern I was rightly decided based on the plain
language of section 77.1710 and the well-established principles of statutory construction.” Slip
op. at 7 (Young, Comm’r, concurring).
Hence, I disagree with the majority’s conclusion that the fact that Lewis-Goetz employee
Jesse Brown was not wearing a safety belt or other fall protection while working on the elevated
No. 2 raw coal belt by itself compels the conclusion that section 77.1710(g) was violated. The
proper issues, as framed in Southwestern I, are whether Lewis-Goetz (1) “establish[ed] a safety
system designed to assure that employees wear [the clothing or equipment] on appropriate
occasions” and (2) “enforce[d] such system with due diligence.” 5 FMSHRC at 1673 (quoting N.
Am. Coal Corp., 3 IBMA 93, 107 (1974)); see also Southwestern II, 7 FMSHRC at 612-13.
It is tempting to join with Commissioner Young in the finding that Lewis-Goetz was
guilty of a violation because the record compels the conclusion that it failed to adequately
enforce its policy on fall protection. Nevertheless, I must instead conclude that this is not an
appropriate case for summary decision—my second reason for dissenting.
According to Commission Procedural Rule 67(b), 29 C.F.R. § 2700.67(b), a judge may
only grant a motion for summary decision “if the entire record . . . shows: (1) That there is no
genuine issue as to any material fact; and (2) That the moving party is entitled to summary
decision as a matter of law.” The Commission has noted that summary decision is an
“extraordinary procedure” that should only be employed when the rule’s exacting standards are
satisfied by the moving party. See Energy W. Mining Co., 16 FMSHRC 1414, 1419 (1994).
The Judge here granted summary decision for Lewis-Goetz, concluding that the
Secretary’s stipulations were sufficient to justify the findings that (1) Lewis-Goetz had “an
adequate policy in place requiring employees to wear fall protection” and that (2) it “took
adequate measures to enforce that policy.” 35 FMSHRC at 2196. However, the Secretary did not
stipulate either to the adequacy of Respondent’s policy or to the adequacy of its efforts to enforce
the policy. The Secretary’s stipulations were limited to the facts that (1) the two employees of
Lewis-Goetz who were working at the Dobbin Ridge Preparation Plant mine at the time of the
MSHA inspection and issuance of the citation in question were both trained on fall protection
devices, (2) Mr. Brown had received such training as recently as 13 days before the incident, (3)

38 FMSHRC Page 1671

Lewis-Goetz had a disciplinary policy, a copy of which was attached to the Joint Stipulations, (4)
Mr. Brown had a safety belt and tagline available to him, and (5) Mr. Brown acknowledged to
the MSHA inspector that he had been trained and that he should have been wearing the fall
protection equipment available to him. Joint Stips. 11, 13-14, 21-24. These stipulations by the
Secretary did not concede the adequacy of the safety program or Lewis-Goetz’s diligence in
enforcing it.
The Judge thus erred in finding that the Secretary had made stipulations which were
sufficient to support her conclusions regarding the adequacy of the policy or Lewis-Goetz’s
enforcement of it. In considering a motion for summary decision, the judge must view the record
in the light most favorable to the party opposing the motion, and all inferences must be drawn in
favor of the non-moving party. Hanson Aggregates N.Y., Inc., 29 FMSHRC 4, 9 (Jan. 2007).
Here, the Judge drew inferences regarding the adequacy of Lewis-Goetz’s program against the
non-moving party based on the Secretary’s very limited stipulations.
The Judge further erred in excluding the Secretary’s response to Lewis-Goetz’s motion
for summary decision.1 After receipt of the Secretary’s response, the Judge’s Attorney-Advisor
sent the parties an email, stating, “[The] Judge . . . did not authorize reply briefs and will not be
accepting them.” App. C to Br. for Sec’y 2. The Secretary’s counsel then requested
reconsideration of the ruling, pointing out that a responsive filing was contemplated by
Commission Rules and did not require the Judge’s authorization. Id. at 1. However, the Judge
again indicated that she would not consider any reply briefs. Id.
In this exchange, the Secretary was correct. Commission Procedural Rule 67(d) plainly
contemplates that parties may file an opposition to a motion for summary decision. 29 C.F.R.
§ 2700.67(d). Moreover, Commission Procedural Rule 10(d) states that “[a] statement in
opposition to a written motion may be filed by any party within 8 days after service upon the
party.” 29 C.F.R. § 2700.10(d). Commission Procedural Rule 8(a) provides that when the “time
prescribed for action is less than 11 days, Saturdays, Sundays and federal holidays shall be
excluded in determining the due date.” 29 C.F.R. § 2700.8(a). Hence, under the Commission
Procedural Rules, the Secretary timely filed a response to Lewis-Goetz’s motion for summary
decision, which should have been considered by the Judge.

1

This case was designated for simplified proceedings pursuant to Commission
Procedural Rule 102, 29 C.F.R. § 2700.102. Following the parties’ submission of joint exhibits,
joint stipulations, and competing proposed findings of fact, the Judge requested the filing of
motions for summary decision. App. A to Br. for Sec’y 1. The parties complied with the Judge’s
request. Eight business days after the filing of Lewis-Goetz’s motion, the Secretary filed a
response to the Lewis-Goetz motion. The Secretary’s response analogized to the facts of
Southwestern I and Southwestern II, and argued that Lewis-Goetz failed to provide site-specific
guidelines or any supervision in fall protection.

38 FMSHRC Page 1672

The Judge’s refusal to consider the Secretary’s response had a significant effect.2 The
Judge stated in a footnote that “[i]f it were the Secretary’s position that Lewis-Goetz does not
make a diligent effort to enforce its policy regarding fall protection, a material issue of fact
would be in contest making summary decision inappropriate in this case.” 35 FMSHRC at 2196
n.3. The Secretary’s response to Respondent’s summary decision motion makes clear that the
Secretary certainly did contest Lewis-Goetz’s diligence in enforcing its fall protection policy.
Thus, the Judge’s refusal to consider the Secretary’s response prevented the Judge from
understanding that the grant of summary decision was inappropriate under her own formulation
of the issues.
Accordingly, I conclude that the Judge erred in granting summary decision. Because
there was a material fact at issue—whether the operator diligently enforced its safety program—
the Judge should have denied the motions for summary decision and conducted an evidentiary
hearing.3

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

2

My colleagues in the majority say that “[a]ny error by the Judge in excluding the
Secretary’s opposition is non-material and harmless at this stage of the proceeding, especially in
light of our holding on the merits of this case.” Slip op. at 3 n.4. Of course, if the case were being
considered under the now-overruled principles of the Southwestern decisions, the error could not
be considered harmless. In any event, my colleagues recognize that the Secretary does not
concede that Lewis-Goetz’s enforcement of its policy was adequate and, on remand, direct the
Judge to consider the adequacy of the enforcement actions on the issue of negligence.
3

In Nally & Hamilton, issued simultaneously with this decision, the Judge conducted a
full evidentiary hearing. Based on the record of that hearing, I concluded that the evidence
demonstrated that the operator violated section 77.1710(i) under Southwestern I because it
lacked an appropriate monitoring tool to ensure compliance with its safety policy. It may be true,
as Commissioner Young has determined, that Lewis-Goetz likewise violated section 77.1710(g)
because of a failure of diligent enforcement of its safety policy. However, I cannot reach such a
conclusion based on the sparse factual record before us.

38 FMSHRC Page 1673

COMMISSION ORDERS

38 FMSHRC Page 1674

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

July 14, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
v.

Docket No. LAKE 2015-532
A.C. No. 11-03203-374211

WHITE OAK RESOURCES, LLC,

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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, 2015, the Commission received from White Oak
Resources, LLC (“White Oak”) a motion seeking to reopen a penalty assessment that had
appeared to become a final order of the Commission pursuant to section 105(a) of the Mine Act,
30 U.S.C. § 815(a).
On March 6, 2015, White Oak received a proposed penalty assessment from the
Secretary. On April 6, 2015, the proposed assessment was deemed a final order of the
Commission, when it appeared that the operator had not filed a Notice of Contest within 30 days.
White Oak asserts that it timely contested the penalty assessment at issue. The Secretary
does not oppose the request to reopen, and admits that it received a timely contest of the penalty
assessment at issue on March 12, 2015.

38 FMSHRC Page 1675

Having reviewed White Oak’s request and the Secretary’s response, we conclude that the
proposed penalty assessment did not become a final order of the Commission because the
operator timely contested the proposed assessment. Section 105(a) states that if an operator “fails
to notify the Secretary that he intends to contest the ... proposed assessment of penalty, ... the
citation and the proposed assessment of penalty shall be deemed a final order of the
Commission.” 30 U.S.C. § 815(a). Here, White Oak notified the Secretary of the contest. This
obviates any need to invoke Rule 60(b). Accordingly, the operator’s motion to reopen is moot,
and 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/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen Jr., Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

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

38 FMSHRC Page 1676

Distribution:
Billy R. Shelton, Esq.
Jones, Walters, Turner & Shelton, PLLC
2452 Sir Barton Way, Suite 101
Lexington, KY 40509
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450

38 FMSHRC Page 1677

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

July 14, 2016

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2015-607 M
A.C. No. 26-02314-361821

v.
KLONDEX MIDAS OPERATION, INC.

BEFORE:

Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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”). 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. § 813(a). The Secretary states that he
does not oppose the motion.

38 FMSHRC Page 1678

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.
The granting of this motion is not precedential for the consideration of any other motion
before the Commission.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen Jr., Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

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

38 FMSHRC Page 1679

Distribution:
Linda Otaigbe, Esq.
Jackson Lewis, P.C.
10701 Parkridge Boulevard, Suite 300
Reston, VA 20191
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450

38 FMSHRC Page 1680

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

July 14, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. YORK 2015-90-M
A.C. No. 43-00717-368207
Docket No. YORK 2015-82-M
A.C. No. 43-00717-371000

MOUNTAIN ROAD FARM SAND &
GRAVEL

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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 The Commission has received two motions from the operator
seeking to reopen two penalty assessments which had become final orders of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he does
not oppose the motions.

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby consolidate
docket numbers YORK 2015-90-M and YORK 2015-82-M, which are both captioned Mountain
Road Farm Sand & Gravel and involve similar procedural issues. 29 C.F.R. § 2700.12.

38 FMSHRC Page 1681

Having reviewed movant’s unopposed motions to reopen, we 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. 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.
The granting of these motions is not precedential for the consideration of any other
motion before the Commission.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen Jr., Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

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

38 FMSHRC Page 1682

Distribution:
Tanya Nuzzo, Manager
Mountain Road Farm Sand & Gravel
656 Vermont Route 108
Jeffersonville, VT 05464
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450

38 FMSHRC Page 1683

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

July 14, 2016

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

Docket No. YORK 2015-113 M
A.C. No. 28-00546-378789

WHIBCO OF NEW JERSEY, INC.

BEFORE:

Jordan, Chairman; Young, Cohen, Nakamura, and Althen, 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”). 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. § 813(a). The Secretary states that he
does not oppose the motion.

38 FMSHRC Page 1684

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.
The granting of this motion is not precedential for the consideration of any other motion
before the Commission.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen Jr., Commissioner

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

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

38 FMSHRC Page 1685

Distribution:
Amged M. Soliman, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450

38 FMSHRC Page 1686

ADMINISTRATIVE LAW JUDGE DECISIONS

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

July 13, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. CENT 2015-155
A.C. No. 41-02822-368186

v.
NEW NGC, INC.,
Respondent.

Mine: Harper Quarry
CONTEST PROCEEDING

NEW NGC, INC.,
Contestant,

Docket No. CENT 2015-37-RM
Citation No. 8854429; 10/08/2014

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

Harper Quarry
Mine ID 41-02822
DECISION

Appearances:

Maria C. Rich, Conference and Litigation Representative,
U.S. Department of Labor, 1100 Commerce Street, Room 462
Dallas, TX 75242
Mary Cobb, Solicitor,
U.S. Department of Labor, 525 South Griffin Street, Suite 501
Dallas, TX 75202
Justin Winter, Conn Maciel Carey PLLC
5335 Wisconsin Ave., NW, Suite 660
Washington, DC 20015

Before:

Judge Simonton

38 FMSHRC Page 1687

I.

INTRODUCTION

This case is before me on a civil penalty petition filed by the Secretary of Labor
(Secretary), acting through the Mine Safety and Health Administration (MSHA), against New
NGC, Inc. (Respondent), pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§§ 815 and 820. The single citation, contested at hearing, involves alleged uncontrolled ground
control hazards on a gypsum highwall at the Respondent’s Harper Quarry surface mine site.
At hearing, MSHA Inspector James Whetsell testified for the Secretary. New NGC
Quarry Manager Henry Wilson testified for the Respondent. Professional Mining Engineer John
Head also presented expert testimony for the Respondent. For the reasons that follow, Citation
No. 8854429 is AFFIRMED in full with the exception of the assessed negligence level. Due to
mitigating circumstances I find the negligence level to be low rather than moderate thus the civil
monetary penalty shall be reduced from $138 to $100.
II.

FINDINGS OF FACT AND SUMMARY OF TESTIMONY

New NGC operates the Harper Quarry surface gypsum mine eighteen miles northwest of
Harper, Texas. Sec’y Ex. 4-1. At the time of the inspection at issue Harper Quarry had six
miners, including the quarry manager, working on 400 acres. Tr. 73. They were actively mining
a 250 foot east-west cut on the north wall. Tr. 74. The mining process involves miners stripping
overburden then blasting to extract gypsum from the cut. Id. The miners drive Cat 740
articulated haul trucks along a haul road at the base of the highwall to remove the gypsum to a
processing area. Tr. 24, 37. The haul road at issue was 200 feet long and 15 feet wide in the
north-east section of the Quarry. Tr. 24. It was abutted by a small island to the west and a 19-20
foot tall highwall to the east. Id; Sec’y Ex. 5.
On October 8, 2014, Inspector Whetsell conducted an inspection of the east highwall and
determined that it posed a hazardous ground condition to people using the 15 foot wide haul road
at the bottom of the highwall. Tr. 24; Sec’y Ex. 1-1, Resp. Ex. R-A. He made his determination
based on seeing vertical and horizontal cracks in the rock. Tr. 17, 22; Sec’y Ex. 1-1. Both parties
presented testimony stating that fractures like the ones here could be a sign of loose rock. Tr. 17,
107. Loose rocks are at risk of falling. Tr. 26, 108. Inspector Whetsell opined that the fractured
rock he observed were in his estimation upwards of 600 lbs. Tr. 26. Falling rocks of that size can
result in serious injury or a fatality. Tr. 40.
The east highwall at issue was approximately twenty feet in height. Tr. 18, 30 & 97. The
parties disagree about the slope of the highwall. Tr. 44, 89; Resp. Ex. E. If the highwall is
sufficiently sloped and low, then falling rocks are more likely to roll and “unlikely to impact the
driver of the truck.” Tr. 105; Resp. Ex. E. If the loose rocks are on a more vertical and tall face of
the highwall, they are more likely to fall and bounce making their landing unpredictable. Tr. 27.
Inspector Whetsell maintained sections of the wall in question were near vertical. Tr. 44, 52. He
further testified that rocks on the highwall might either roll, or fall and bounce. Tr. 27. The
Respondent’s engineering expert Mr. Head testified that the angle of the slope was closer to 6070 degrees. Resp. Ex. E. Mr. Head also submitted in his report that the rocks were at most
fourteen feet from the ground. Id. Taking these two facts together, he concluded the rocks could

38 FMSHRC Page 1688

only roll down the wall, not fall or bounce. Tr. 96. Inspector Whetsell and Mr. Head both agree
that no matter how a rock separates from the highwall, it could potentially pose an obstacle to a
haul truck or be a serious hazard to a pick-up truck. Tr. 34, 41, 99, 110.
The Respondent contends that cracks in the rock at the Harper Quarry mine site are not
indicative of loose rocks because it is a gypsum mine. Tr. 95-96. Quarry Manager Wilson and
Mr. Head testified that large cracks are not unusual for gypsum and only if the cracks move or
grow do they pose a potential hazard. Tr. 86, 96, 106. Mr. Wilson testified that in his
observations he had not seen the cracks at issue grow any larger during the weeks before the
citation was issued. Tr. 86. Furthermore, Mr. Wilson maintained that the time it took to perform
the citation abatement is evidence that the rocks were not loose. Tr. 82. Inspector Whetsell
testified that there are many factors, not just the looseness of the rock, that could affect how long
it takes to scale a highwall, and the time between issuing and terminating the citation was not
excessive. Tr. 33, 63. Based on Mr. Wilson’s testimony, it took 30-45 minutes to scale the
hazardous portions of the highwall. Tr. 81-82. According to Citation No. 8854429, two hours
and twenty five minutes passed between issuance and termination of the citation. Tr. 32; Sec’y
Ex. 1-1. Neither Mr. Wilson nor Inspector Whetsell were present at the time of abatement. Tr.
61-62, 86. Whether or not the abatement took an excessive amount of time depends on how
much of the highwall was scaled. Tr. 33, 82.
The exact size and amount of highwall that needed to be scaled is indeterminable because
the dimensions relied upon are based solely on photos, and visual inspection by the Quarry
Manager and the Inspector. Tr. 29, 102. The Respondent contends the loose rocks were only 1214 feet high up on the wall pursuant to Mr Head’s estimation and only a 20 foot or so length
needed to be scaled according to Quarry Manager Wilson. Tr. 87; Resp. Ex. E. The Secretary
maintains the hazard consisted of loose rocks closer to 17-19 feet high up and extended for 30
feet or more. Tr. 45, 111; Sec’y Ex. 2-2. I would note here that Mr. Head did not personally
observe the fractured rocks or their location on the highwall prior to abatement as did Inspector
Whetsell and Quarry Manager Wilson did not offer testimony regarding how far up the wall the
fractured rock was observed. Accordingly, I defer to Inspector Whetsell’s direct observations in
this regard.
The inspector was concerned about the hazard posed by this particular highwall in the
quarry since Mr. Wilson stated haul trucks would take anywhere between 30-60 trips each day
on the haul road below the highwall. Tr. 37, 75. Inspector Whetsell reported seeing vehicle
tracks and black smudging on the sides of the haul road indicating where trucks had rubbed
alongside the wall. Tr. 24; Sec’y Ex. 2-1, Ex. 2-2. The two parties disagree over what types of
vehicles used the haul road. Tr. 22, 31, 75; Sec’y Ex. 1-1. Inspector Whetsell recorded in the
citation that a Cat 740B haul truck, a Volvo EC210BLC, and a Cat 980 front end loader use the
haul road. Sec’y Ex. 1-1, Resp. Ex. R-A. During testimony, Inspector Whetsell further identified
tracks in Sec’y Ex. 2-1 that he believes are evidence of pick-up trucks using the haul road as
well. Tr. 22, 31. Mr. Wilson maintained that haul trucks and other large machinery used the haul
road and pick-up trucks did not. Tr. 31, 75. However, Mr. Wilson also testified he drove his own
vehicle, a pick-up truck, presumably on the haul road to inspect the highwall the very morning of
the inspection. Tr. 84-85. This is contrary to what Inspector Whetsell states Mr. Wilson told him
in that pick-up trucks never travel on that haul road. Tr. 30. Also, based on his experience as a

38 FMSHRC Page 1689

miner and inspector, Whetsell speculated that the miners most likely used the haul road to enter
and exit the quarry. Tr. 31, 38, 55.
The types of vehicles that use the road effects the level of danger the hazardous ground
condition poses to miners. Tr. 99, 110. Loose rocks could cause damage by either rolling into the
road or rolling directly into a vehicle. Tr. 29, 110. A haul truck being hit by a rock sliding from
14 feet off the highwall might not impact the operator. Tr. 99, Resp. Ex. E. However, if a pick-up
truck was hit by a rock falling from 17 feet it would cause a serious hazard. Tr. 110. In addition,
if any vehicle ran over, or attempted to avoid, a fallen rock it could pose a serious hazard. Tr. 29.
Depending on the vehicle, damage could range from blowing out a tire, to losing control and
flipping the truck over, to direct damage to the operator. Tr. 29, 40, 48, 99, 110.
MSHA issued a proposed penalty assessment of $138.00 for Citation No. 8854429. Sec’y
Ex. 1-1. Respondent contested Citation No. 8854429 claiming the rocks on the highwall were not
loose, and even if they were, did not present a danger to the miners who used the haul road. Tr.
13.
III.

PARTY ARGUMENTS

The Secretary argues that the conditions in Harper Quarry violate 30 C.F.R. § 56.3200,
the violations are significant and substantial, and the operator was moderately negligent. Sec’y
Posthearing Brief 3. The Secretary maintains there was a violation because like MSHA v.
Hoover, 33 FMSHRC 751 (ALJ, March 11, 2011), there was an identifiable hazardous ground
condition above a haul road with tracks indicating vehicle passage. Sec’y Br. 4. The Secretary
maintains the violation was significant and substantial because the hazard was reasonably likely
to result in an injury or illness of a reasonably serious nature. Sec’y Br. 7. The Secretary’s claim
is based on the rock being sufficiently loose to be at risk of falling, and their assumption that not
only haul trucks, but also pick-up trucks and miners on foot use the haul road as a means of
ingress and egress from the pit. Sec’y Br. 9. Based on the Inspector’s testimony at the hearing
claiming light vehicles and pedestrians used the haul road, the Secretary requests the type of
injury expected should be increased to fatal. Sec’y Br. 4. Lastly, the Secretary maintains the
mine operator was moderately negligent because the Quarry Manager identified the potential
hazard, but did not test it for stability. Sec’y Br. 12.
The Respondent, argues there is no violation of 30 C.F.R. § 56.3200 because 1) the rocks
at issue were not loose and 2) the miners were never in danger. Respondent’s Posthearing Brief
4. The first argument is premised on the fact that it took a Volvo excavator with a jackhammer
attachment 30-45 minutes to scale the area in question. Resp. Br. 7. Had the rocks been loose,
Respondent maintains they would have come off the wall much faster. Id. The second argument
is premised on the assumption that only haul trucks and similarly large equipment use the haul
road. Resp. Br. 10. According to the expert testimony provided by the respondent, a falling rock
could not impact the operator of a haul truck. Resp. Br. 11. Should the violation stand, the
Respondent requests the likelihood of injury be reduced to no injury, and the significant and
substantial designation be removed. Resp. Br. 14. The request to lower the seriousness of the
citation is premised on the assumption that a haul truck operator driving at 5 miles an hour could
not be hurt by a rock rolling into the haul truck or road from a height of 14 feet. Resp. Br. 11.

38 FMSHRC Page 1690

IV.
A.

ANALYSIS

Citation No. 8854429

MSHA Inspector James Whetsell issued Citation No. 8854429 for an alleged violation of
30 CFR § 56.3200 on October 8, 2014. Whetsell alleged within the citation that:
There is loose cracked (vertical and horizontal) overhanging rock
about 20 feet up on the North East Highwall above the haul road
with rubber tire tracks against the East highwall. This narrow haul
road about fifteen feet wide with a small wall on the West side
forces traffic to run parallel against the highwall. There are tracks
rubber tired, and cat next to the wall. The Cat 740B haul truck
makes over 30 trips a day past this material. Other traffic includes
the Volvo EC210 BLC Excavator with hammer, and Cat 980 Front
end loader. If this condition were to go uncorrected a serious rock
fall accident could occur.
Sec’y Ex. 1, 1. Whetsell designated Citation No. 8854429 as a moderate negligence violation
that was likely to contribute to the occurrence of a permanently disabling injury. Id. Whetsell
determined that the failure to remove or otherwise control the loose rock was significant and
substantial. Id.
A violation of § 56.3200 requires:
Ground conditions that create a hazard to persons shall be taken down or supported
before other work or travel is permitted in the affected area. Until corrective work is
completed, the area shall be posted with a warning against entry and, when left
unattended, a barrier shall be installed to impede unauthorized entry.
30 C.F.R. § 56.3200. Standard § 56.3200 requires the Secretary to show that (1) a dangerous
condition exists and (2) work or travel occurs in the affected area. The Respondent contends the
first part is not satisfied because the cracked highwall was not in danger of falling, or
alternatively, the miners operating vehicles on the haul road were not in danger.
The Mine Act imposes on the Secretary the burden of proving the alleged violation by a
preponderance of the credible evidence that the ground conditions present on the highwall
created a hazard. In re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC
1819, 1878 (Nov. 1995), aff’d sub nom. Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d
1096 (D.C. cir. 1998). A standard must provide adequate notice of required or prohibited
conduct. Lanham Coal Company, 13 FMSHRC 1341, 1343 (September 1991). The reasonably
prudent person test is used to assess whether a standard provides adequate notice of required
conduct. Martin Marietta Aggregates, 26 FMSHRC 847, 848 (Nov. 2004). The standard is:
“whether a reasonably prudent person familiar with the mining industry and the protective
purposes of the standard would have recognized the specific prohibition or requirement of the
standard.” Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). Applied to standard
§56.3200, the question is whether the “reasonably prudent person” would have recognized the

38 FMSHRC Page 1691

cracked highwall as a ground condition hazard and abated it. Martin Marietta Aggregates, 26
FMSHRC at 848. To determine whether the condition of a highwall presents a hazard, the
testimony of “experienced observers” is relevant. Id. (citing Ideal Cement Co., 12 FMSHRC
2409, 2416 (Nov. 1990)).
The first element of 30 C.F.R. § 56.3200 is to determine whether a dangerous condition
exists. Whetsell observed the highwall first hand and determined it posed a hazard based on his
41 years of experience, MSHA training, and inspection of “thousands of highwalls.” Tr. 16.
Furthermore, based on a review of photos and conversations with the Quarry Manager,
Respondent’s expert witness testified that the cracks in question “very well may” have caused
him concern. Tr. 107. Quarry Manager Wilson testified that because of the unique elastic
qualities of gypsum, the cracks were not of concern to him. Tr. 85-86. In fact, he testified he had
been inspecting the highwall regularly and had not seen any movement or expanding in the
cracks in the past couple of weeks. Id. Also Mr. Wilson did not report any unplanned separation
from the highwall face. Tr. 78. However, there is no documentation to corroborate Mr. Wilson’s
claims that the cracks have not widened or moved. Tr. 106-107. The only evidence that supports
Mr. Wilson’s statements is his testimony that alleged scaling the wall was difficult and time
consuming. Tr. 82-83. Mr. Wilson was not present at the time of scaling and is basing his
description of the scaling effort on a conversation with the excavator operator. Tr. 86. In
addition, there are discrepancies in Mr. Wilson’s testimony, denigrating his credibility.
When the citation was issued, Mr. Wilson told Inspector Whetsell that he only drove his
pick-up truck on the secondary road. Tr. 30. However, during the hearing, he testified to driving
his pick-up truck to visually inspect the highwall with a spotlight in the dark on the very morning
the citation was issued. Tr. 84. Wilson also testified that only haul trucks use the haul road. Tr.
75. However, photo exhibits of the haul road show excavator and pick-up truck tracks as well.
Sec’y Ex. 2-1. Lastly, according to Inspector Whetsell’s testimony, when the citation was issued
Mr. Wilson said there were about 30 trips on the haul road a day. Tr. 30. Yet at trial Mr. Wilson
testified that there were between 50 and 60 trips on the haul road a day. Tr. 75. Weighing the
opinion and testimony of Mr. Wilson and Respondent’s expert, Mr. Head, who did not
personally observe the hazardous condition against the opinion and testimony of Inspector
Whetsell, I credit the testimony of the Inspector that a hazardous ground condition existed.
The Respondent further contends that even if the highwall was a hazardous ground
condition, it was not dangerous to people because, it alleges, only large vehicles used the haul
road. The Respondent’s expert, Mr. Head convincingly demonstrated that there was little to no
likelihood that a haul truck driver would be directly impacted by a rock. Resp. Ex. E. However,
in his report Mr. Head does not address any of the other ways a falling rock could cause serious
injury besides direct impact. Id. During the hearing, the Secretary established through Inspector
Whetsell’s testimony that a rock in the road way could still cause serious injury to a haul truck
driver by potentially causing the driver to lose control and wreck his vehicle. Tr. 29. The
Respondent’s expert also corroborates the Inspector’s conclusions by stating fallen rocks could
very well “hit the side of the truck…hit the tire tracks…present themselves as obstacles in the
middle of the road…”. Tr. 99. If pick-up trucks used the haul road the likelihood falling rocks
would cause serious injury is much greater. Tr. 34, 40. Inspector Whetsell pointed out tracks on
the haul road that he identified as pick-up truck tracks. Tr. 37; Sec’y Ex. 2-1. In his testimony

38 FMSHRC Page 1692

Mr. Wilson admitted to driving his pick-up truck to perform a visual inspection with a spotlight
the morning of the citation. Tr. 84. Based on exhibit 2-1, the testimony of Inspector Whetsell,
and the testimony of Mr. Wilson, I find pick-up trucks did use the haul road.
The Secretary also alleges that pedestrians used the haul road. Sec’y Br. 4. However,
there is not enough substantial evidence in the record to determine with certainty that pedestrians
used the haul road. From his experience as a miner, Inspector Whetsell assumes pedestrians used
the haul road. Tr. 31, 38, 40. Despite not having a company policy to the contrary, Quarry
Manager Wilson testified they try not to use the haul road as a pedestrian path. Tr. 83. There is
no concrete evidence of foot traffic on the haul road. Without more information, the assumption
that there is foot traffic on the haul road is only speculation. Therefore, I deny the Secretary’s
request to increase the gravity of the injury to fatal.
The second element of 30 C.F.R. § 56.3200 is to show that either work or travel occurs in
the affected area. There is undisputed evidence of vehicle tracks on the haul road indicating
people travel through the hazardous condition. Sec’y Ex. 2-1, 2-2.
I have relied upon the exhibits, the hearing, and credibility assessments of the witnesses
to reach my conclusions. Considering Inspector Whetsell has 41 years of experience with mining
operations, he reviewed the highwall firsthand, his concern for the cracks was corroborated by
the respondent’s expert, and there is evidence people traveled in both large vehicles and pick-up
trucks in the hazardous area, I affirm that 30 CFR §56.3200 was violated.
B.

Significant and Substantial

A violation is significant and substantial (S&S), “if based upon the particular facts
surrounding the violation there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature.” Cement Division, National Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981).
In order to establish that a violation of a mandatory safety standard is significant and
substantial under National Gypsum, the Secretary of Labor must prove: (1) the
underlying violation of a mandatory safety standard; (2) a discrete safety hazard -- that is,
a measure of danger to safety -- contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984). An S&S designation must be based on the
particular facts surrounding the violation, and viewed in the context of ongoing mining
operations. Texasgulf Inc., 10 FMSHRC 498, 501 (Apr. 1988); U.S. Steel Mining Co., 7
FMSHRC 1125, 1130 (Aug. 1985). The Commission has emphasized that it is the contribution
of a violation to the cause and effect of a hazard that must be significant and substantial. U.S.
Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984). The absence of an injury producing
event when the cited practice occurred does not preclude an S&S determination. Elk Run Coal
Co., 27 FMSHRC 899, 906 (Dec. 2005). The standard of review for the third prong requires
some clarification. The third prong focuses on whether the hazard contributed to by the violation

38 FMSHRC Page 1693

will cause an injury. Musser Engineering, Inc., 32 FMSHRC 1257, 1281 (2010). For the third
prong, the relevant hazard should be assumed. Peabody Midwest Min., LLC v. Federal Mine
Safety and Health Review Com'n, 762 F.3d 611, 613 (7th Cir.) (Aug. 2014); Knox Creek Coal
Corp. v. Secretary of Labor, Mine Safety and Health Admin., 811 F.3d 148, 164 (4th Cir.) (Jan.
2016).
The first prong is satisfied because I have found a violation occurred. The second prong
is satisfied because the violation – failing to abate hazardous ground conditions – does contribute
to a discrete safety hazard. In this case, the danger is loose rocks falling on the haul road where
miners travel. A highwall is likely to crack when it is shot; exposed to weather such as humidity,
freezing, or thawing; and exposed to vibrations from passing trucks. Tr. 27. The last time the
wall was shot was a week or so prior to inspection. Tr. 53, 69. Inspector Whetsell testified that
this is most likely when the cracks were formed. Tr. 69. Humidity and rain are potential
destabilizing factors, but freezing and thawing likely were not because of the time of year. Tr.
27. Due to the proximity of the passing trucks to the highwall, approximately 18-24 inches, I
credit Inspector Whetsell’s testimony that vibrations from haul trucks making 30 to 60 trips per
day could adversely affect the stability of the highwall. Tr. 27-28. The potential for future
shooting as part of regular mining operations, normal weathering, the passage of time, vibrations
from passing haul trucks, plus gravity mean the cracks on the highwall would reasonably be
expected to result in falling rocks Tr. 27.
The third and fourth prongs are satisfied because falling rocks are reasonably likely to
cause an injury, and that injury is reasonably likely to be serious. The potential serious injury is
based on the fact that along with haul trucks and large machinery, there is evidence that pick-up
trucks used the haul road as well. Sec’y Ex. 2-1, Tr. 84. While the injury to a haul truck driver
may not assuredly constitute a serious injury, the potential damage to a person driving a pick-up
truck would certainly constitute a serious injury. Tr. 34. A rock upwards of 600 lbs. falling from
19ft. could pulverize a passing pick-up truck. Id. I find all of the elements have been met to find
the violation significant and substantial.
C.

Negligence

The Mine Act defines reckless disregard as conduct which exhibits the absence of the
slightest degree of care, high negligence as actual or constructive knowledge of the violative
condition without mitigating circumstances; moderate negligence as actual or constructive
knowledge of the violative condition with mitigating circumstances; and low negligence as
actual or constructive knowledge of the violative condition with considerable mitigating
circumstances. 30 C.F.R. § 100.3: Table X. These regulations apply to the Secretary’s proposal
of penalties only, and are not binding on the Commission. Brody Mining, LLC, 37 FMSHRC
1687, 1701 (Aug. 2015). The Commission instead directs its judges to “evaluate negligence from
the starting point of a traditional negligence analysis. Under such an analysis, an operator is
negligent if it fails to meet the requisite standard of care—a standard of care that is high under
the Mine Act.” Brody, 37 FMSHRC at 1702. In evaluating an operator’s negligence, the judge
should consider “what actions would have been taken under the same circumstances by a
reasonably prudent person familiar with the mining industry, the relevant facts, and the
protective purpose of the regulation.” Jim Walter Res., 36 FMSHRC 1972, 1975 (Aug. 2014).

38 FMSHRC Page 1694

Quarry Manager Wilson acknowledged he had seen the cracks that worried Inspector
Whetsell. Tr. 76. He did not think they were concerning, however, because the nature of Harper
Quarry gypsum was to crack. Id. Despite the failure to scale a visibly cracked highwall, mine
operations were consistent with what a reasonably prudent person would do. First, the miners at
Harper Quarry scale the walls every time after they blast. Tr. 74. Second, Mr. Wilson inspects
the mine every morning. Tr. 84. Third, Harper Quarry mine site has an excellent safety record in
general with only three violations over the past two years, none of which involved loose ground
conditions. Sec’y Ex 3-1. Taking these facts into consideration, I find that a low rather than a
moderate negligence level is most appropriate.
V.

PENALTY

It is well established that Commission administrative law judges have the authority to
assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Company, 5
FMSHRC 287, 291 (March 1983). The Act requires that in assessing civil monetary penalties,
the Commission ALJ shall consider the six statutory penalty criteria:
(1) the operator's history of previous violations, (2) the appropriateness of
such penalty to the size of the business of the operator charged, (3)
whether the operator was negligent, (4) the effect on the operator's ability
to continue in business, (5) the gravity of the violation, and (6) the
demonstrated good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.
30 U.S.C. 820(I).
These criteria are generally incorporated by the Secretary within a standardized penalty
calculation that results in a pre-determined penalty amount based on assigned penalty points. 30
CFR 100.3: Table 1- Table XIV. The Secretary has proposed a regularly assed penalty of $138.00
for Citation No. 8481807 based upon the 30 CFR 100.3 penalty tables. Sec’y Petition, Ex. A.
The Respondent is a mid-size operator with low rate of total violations per inspection day
and no recent history of prior ground control violations. I have found that the Respondent acted
with low negligence. The parties have stipulated that the proposed penalty will not affect its
ability to continue in business. Tr. 6. I have found that the violation was likely to result in a
permanently disabling injury. The parties have stipulated that the Respondent promptly abated
the violation by scaling down the loose overhanging material. Sec’y Ex. 1, 1; Tr. 6.
After considering this evidence in light of the six statutory factors and in consideration of
the lowered negligence level I find a penalty amount of $100 to be appropriate.

38 FMSHRC Page 1695

VI.

ORDER

The Respondent, New NGC, Inc., is ORDERED to pay the Secretary of Labor the sum
of $100.00 within 30 days of this order.1 The associated notice of contest proceeding CENT
2015-37 is DISMISSED.

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

Distribution: (U.S. First Class Mail)
Maria C. Rich, Conference and Litigation Representative, U.S. Department of Labor, 1100
Commerce Street, Room 462, Dallas, TX 75242
Mary Cobb, Solicitor, U.S. Department of Labor, 525 South Griffin Street, Suite 501, Dallas, TX
75202
Justin Winter, Conn Maciel Carey PLLC, 5335 Wisconsin Ave., NW, Suite 660, Washington,
DC 20015

1

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO
63179-0390

38 FMSHRC Page 1696

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004
TELEPHONE NO.: (202) 434-9900 / FAX NO.: (202) 434-9949

July 15, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS

v.

DOCKET NO. LAKE 2012-0899
A.C. No. 11-03058-200595-02

DOCKET NO. LAKE 2012-0898
A.C. No. 11-03058-299585-01

WHITE COUNTY COAL, LLC,
Respondent

Mine: Pattiki Mine
DECISION AND ORDER

Appearances:

Daniel McIntyre, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, CO, for Petitioner;
Gary D. McCollum, Esq., White County Coal, LLC, Lexington, KY, for
Respondent.

Before:

Judge L. Zane Gill

This proceeding under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (1994) (“Mine Act” or “Act”), involves two dockets with two citations each, all relating
to the Respondent’s Pattiki mine, which were litigated at a hearing held on February 4, 2014, in
Henderson, Kentucky.1 MSHA conducted two inspections, the first on June 12, 2012, and the
second on July 30, 2012. These case dockets resulted from those inspections.
LAKE 2012-0898 originally comprised two 104(a) citations, one 104(d) citation, and
three 104(d) orders. All but the 104(d) citation and one 104(d) order were settled by the

1

The trial was scheduled for two days. Because of inclement weather, the trial was
stopped at the end of the first day’s presentation. The presentation of evidence was completed
by written submission. MSHA witness, Rodney Adamson’s testimony was submitted by
affidavit. Ex. A.

38 FMSHRC Page 1697

parties, prior to the hearing.2 At the hearing, LAKE 2012-0898 comprised Citation No.
8438790, a Section 104(d) citation, alleging a violation of 30 C.F.R. § 75.400, and
Citation No. 8438791, a Section 104(d)(1) order, alleging a violation of 30 C.F.R. §
75.360(a)(1). LAKE 2012-0899 originally comprised three citations; one was settled prior
to the hearing, leaving two 104(a) Citations: Citation No. 8447018, alleging a violation of
30 C.F.R. §75.1506(b)(2), and Citation No. 8447019, alleging a violation of 30 C.F.R. §
75.1506(a)(3).
STIPULATIONS
1.

White County Coal was at all times relevant to these proceedings engaged in
mining activities at the Pattiki Mine, in or near Carmi, Illinois.

2.

White County’s mining operations affect interstate commerce.

3.

White County is subject to the jurisdiction of the Federal Mine Safety &
Health Act of 1977, 30 U.S.C. Section 801, et seq.

4.

White County is an “operator” as that word is defined in Section 3(d) of the
Mine Act, 30 U.S.C. Section 803(d), at the Pattiki Mine, Federal Mine ID
No. 11-03068, where the contested citations in these proceedings were
issued.

5.

The administrative law judge has jurisdiction over these proceedings
pursuant to Section 105 of the Mine Act.

6.

On June 12, 2012, MSHA Inspector Kenneth Benedict was acting as a duly
authorized representative of the United States Secretary of Labor assigned to
MSHA and was acting in his official capacity when conducting the
inspection and issuing the citations from Docket LAKE 201-0898, at issue
in these proceedings.

7.

On July 30, 2012, MSHA Inspector Terry A. Hudson was acting as a duly
authorized representative of the United States Secretary of Labor assigned to
MSHA and was acting in his official capacity when conducting the
inspection and issuing the citations from Docket LAKE 2012-0899, at issue
in these proceedings.

2

Three matters originally related to this case were settled prior to the hearing.
Citation No. 8431484 was modified from Reasonably Likely/S&S to Unlikely/Non-S&S,
Order No. 8431485 was modified from a Section 104(d)(1) order to a Section 104(a)
citation, and Order 8431486 was modified from a Section 104(d)(1) order to a Section
104(a) citation. Section 104(a) Citation No. 8431486 is the only citation remaining
unchanged as a result of the parties’ partial settlement. These citations were dismissed in
a Decision Approving Partial Settlement on October 30, 2013. See Dec. Approving Part.
Settlement, Order to Modify, Order to Pay (Oct. 30, 2013).

38 FMSHRC Page 1698

8.

The citations at issue in these proceedings were properly served upon White
County as required by the Mine Act.

9.

The citations at issue in these proceedings may be admitted into evidence by
stipulation for the purpose of establishing their issuance. The truthfulness
or relevancy of any statements asserted therein is not stipulated to by the
parties.

10.

White County demonstrated good faith in abating the violations.

11.

At all times relevant to these citations, White County produced in excess of
two million tons of coal annually.

12.

Without White County admitting the propriety or reasonableness of the
penalties proposed herein, the penalties proposed by the Secretary in this
case will not affect the ability of White County to continue in business.

Tr. 8-9; Jt. Pre-Hearing Report.
Basic Legal Principles
Significant and Substantial
One of the citations in dispute and discussed below has been designated by the
Secretary as significant and substantial (“S&S”). A violation is properly designated S&S
“if, based upon the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a reasonably
serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). The
question of whether a particular violation is S&S must be based on the particular facts
surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). S&S enhanced enforcement is applicable
only to violations of mandatory health and safety standards. Cyprus Emerald Res. Corp. v.
FMSHRC, 195 F.3d 42, 45 (D.C. Cir. 1999).
In Mathies Coal Co., the Commission established the standard for determining
whether a violation was S&S:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum,
the Secretary of Labor must prove: (1) the underlying
violation of a mandatory safety standard; (2) a discrete safety
hazard – that is, a measure of danger to safety – contributed to
by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable

38 FMSHRC Page 1699

likelihood that the injury in question will be of a reasonably
serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984).
The third element of the Mathies test presents the most difficulty when determining
whether a violation is S&S. In U.S. Steel Mining, the Commission provided additional
guidance: [T]he third element of the Mathies formula “requires that the Secretary
establish a reasonable likelihood that the hazard contributed to will result in an event in
which there is an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985)
(citing U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (Aug. 1984)). The Secretary,
however, “need not prove a reasonable likelihood that the violation itself will cause
injury.” Cumberland Coal Res., 33 FMSHRC 2357, 2365 (Oct. 2011) (citing Musser
Engineering, Inc.; PBS Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010)). Further, the
Commission has found that “the absence of an injury-producing event when a cited
practice has occurred does not preclude a determination of S&S.” Id. (citing Elk Run Coal
Co., 27 FMSHRC 899, 906 (Dec. 2005)). This evaluation is also made in consideration of
the length of time that the violative condition existed prior to the citation and the time it
would have existed if normal mining operations had continued. Elk Run Coal Co., 27
FMSHRC at 905; U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984).
Unwarrantable Failure
A violation of a standard is an unwarrantable failure if it demonstrates “aggravated
conduct constituting more than ordinary negligence.” Emery Mining Corp., 9 FMSHRC
1997, 2004 (1987). A violation is also an unwarrantable failure if it demonstrates the
operator’s “reckless disregard,” “intentional misconduct,” “indifference,” or the “serious
lack of reasonable care.” Id.; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193194 (Feb. 1991). A court must examine all relevant facts and circumstances to determine
whether an operator’s conduct is aggravated or whether mitigation is present. IO Coal
Co., 31 FMSHRC 1346, 1351 (Dec. 2009). Specific factors to consider to determine
whether a violation constitutes an unwarrantable failure include: 1) the length of time that
the violation has existed, 2) the extent of the violative condition, 3) whether the operator
has been placed on notice that greater efforts were necessary for compliance, 4) the
operator’s efforts in abating the violative condition, 5) whether the violation was obvious
or posed a high degree of danger and 6) the operator’s knowledge of the existence of the
violation. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Mullins & Sons
Coal Co., 16 FMSHRC 192, 195 (Feb. 1994).
Burden of Proof
The Secretary bears the burden of proving all elements of a citation by a
preponderance of the evidence. In re: Contests of Respirable Dust Sample Alteration
Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d sub nom. SOL v. Keystone Mining
Corp., 151 F.3d 1096 (D.C. Cir. 1998); Jim Walter Resources, Inc., 30 FMSHRC 872, 878

38 FMSHRC Page 1700

(Aug. 2008) (ALJ) (“The Secretary’s burden is to prove the violations and related
allegations, e.g., gravity and negligence, by a preponderance of the evidence.”).
Negligence
Negligence is relevant in cases under the Mine Act, but since the Act creates a
strict liability enforcement model 3 , negligence is not an essential part of the calculus to
determine whether an operator is at fault. When an MSHA inspector observes conditions
that create mine hazards or otherwise fall short of the Act’s requirements, a citation is
required; irrespective of fault.4 Negligence is, however, central to the assessment of civil
penalties and to the evaluation of the enhanced enforcement elements of S&Sunwarrantable failure, and flagrant violation.
Negligence “is conduct, either by commission or omission, which falls below a
standard of care established under the Mine Act to protect miners against the risks of
harm.” 30 C.F.R. § 100.3(d). “A mine operator is required […] to take steps necessary to
correct or prevent hazardous conditions or practices.” Id. “MSHA considers mitigating
circumstances which may include, but are not limited to, actions taken by the operator to
prevent or correct hazardous conditions or practices.” Id. Reckless negligence is present
when “[t]he operator displayed conduct which exhibits the absence of the slightest degree
of care.” Id. High negligence is when “[t]he operator knew or should have known of the
violative condition or practice, and there are no mitigating circumstances.” Id. Moderate
negligence is when “[t]he operator knew or should have known of the violative condition
or practice, but there are mitigating circumstances.” Id. Low negligence is when “[t]he
operator knew or should have known of the violative condition or practice, but there are
considerable mitigating circumstances.” Id. No negligence is when “[t]he operator
exercised diligence and could not have known of the violative condition or practice.” Id.
The Commission has provided guidance for making the negligence determination in
A. H. Smith Stone Co., stating that:
Each mandatory standard thus carries with it an accompanying duty of care
to avoid violations of the standard, and an operator’s failure to satisfy the
3

“If, upon inspection or investigation, the Secretary or his authorized
representative believes that an operator of a coal or other mine subject to this chapter has
violated this chapter, or any mandatory health or safety standard, rule, order, or
regulation promulgated pursuant to this chapter, he shall, with reasonable promptness,
issue a citation to the operator.” 30 U.S.C.A. § 814(a) (emphasis added). This court has
held that “[t]he Mine Act is a strict liability statute, and an operator is liable for a
violation of a mandatory safety standard regardless of its level of fault.” Brody Mining,
LLC, 33 FMSHRC 1329, 1335 (May 2011) (ALJ) (citing Spartan Mining Co., 30
FMSHRC 699, 706 (Aug. 2008); Asarco, Inc., 8 FMSHRC 1632, 1634-36 (Nov. 1986),
aff'd, 868 F.2d 1195 (10th Cir. 1989)). In Asarco, the Commission concluded that “the
operator's fault or lack thereof, rather than being a determinant of liability, is a factor to be
considered in assessing a civil penalty.” 8 FMSHRC at 1636.

38 FMSHRC Page 1701

appropriate duty can lead to a finding of negligence... In this type of case,
we look to such considerations as the foreseeability of the miner’s conduct,
the risks involved, and the operator’s supervising, training, and disciplining
of its employees to prevent violations of the standard in issue.
A. H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983) (citations omitted).
Mitigation is something the operator does affirmatively, with knowledge of the
potential hazard being mitigated, that tends to reduce the likelihood of an injury to a
miner. This includes actions taken by the operator to prevent or correct hazardous
conditions.
Gravity
The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. §
820(i), “is often viewed in terms of the seriousness of the violation.” Consolidation Coal
Co., 18 FMSHRC 1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287,
294-95 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal
Co., 9 FMSHRC 673, 681 (Apr. 1987)). The seriousness of a violation can be examined
by looking at the importance of the standard which was violated and the operator’s
conduct with respect to that standard, in the context of the Mine Act’s purpose of limiting
violations and protecting the safety and health of miners. See Harlan Cumberland Coal
Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ). The gravity analysis focuses on factors
such as the likelihood of an injury, the severity of an injury, and the number of miners
potentially injured. The Commission has recognized that the likelihood of injury is to be
assessed assuming continued normal mining operations without abatement of the
violation. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985).
Penalty
The principles governing the authority of Commission judges to assess civil
penalties de novo for violations of the Mine Act are well established. Section 110(i) of
the Mine Act delegates to the Commission and its judges the “authority to assess all civil
penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of
proposing penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an
operator notifies the Secretary that it intends to challenge a penalty, the Secretary petitions
the Commission to assess said penalty. 29 C.F.R. § 2700.28.
Under Section 110(i) of the Mine Act, the Commission is to consider the following
when assessing a civil penalty: (1) the operator’s history of previous violations; (2) the
appropriateness of such penalty to the size of the business of the operator charged; (3)
whether the operator was negligent; (4) the effect on the operator's ability to continue in
business; (5) the gravity of the violation; and (6) the demonstrated good faith in abatement
of the violative condition. 30 U.S.C § 820(i). Thus, the Commission alone is responsible
for assessing final penalties. See Sellersburg Stone Co. v. FMSHRC, 736 F.2d at 1151-52
(“[N]either the ALJ nor the Commission is bound by the Secretary's proposed penalties …

38 FMSHRC Page 1702

we find no basis upon which to conclude that [MSHA's Part 100 penalty regulations] also
govern the Commission.”); see also American Coal Co., 35 FMSHRC 1774, 1819 (July
2013)(ALJ)(explaining that based upon the statutory language, the Commission alone is
tasked with assessing final penalties).
The Commission has repeatedly held that substantial deviations from the
Secretary's proposed assessments must be adequately explained using the section 110(i)
criteria. E.g., Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983), aff’d 736 F.2d
1147 (7th Cir. 1984); Hubb Corp., 22 FMSHRC 606, 612 (May 2000); Cantera Green, 22
FMSHRC 616, 620-21 (May 2000). A judge need not make exhaustive findings but must
provide an adequate explanation of how the findings contributed to his or her penalty
assessments. Cantera Green, 22 FMSHRC at 622.
Although all of the statutory penalty criteria must be considered, they need not be
assigned equal weight. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).
Generally speaking, the magnitude of the gravity of a violation and the degree of operator
negligence are important factors, especially for more serious violations for which
substantial penalties may be imposed. Musser Eng’g, 32 FMSHRC 1257, 1289 (Oct.
2010)(holding that the judge was justified in relying on utmost gravity and gross
negligence in imposing a penalty substantially higher than that proposed by the
Secretary); Spartan Mining Co., 30 FMSHRC 699, 725 (Aug. 2008) (finding it
appropriate for judge to raise a penalty significantly based upon findings of extreme
gravity and unwarrantable failure); Lopke Quarries, Inc., 23 FMSHRC 705, 713 (July
2001) (holding that the judge did not abuse discretion by weighing the factors of
negligence and gravity more heavily than the other four statutory criteria). For example,
violations involving “extreme gravity” and/or “gross negligence,” or, as stated in the
former section of 105(a), “an extraordinarily high degree of negligence or gravity, or other
unique aggravating circumstances,” may dictate higher penalty assessments. See Criteria
and Procedures for Proposed Assessment of Civil Penalties, 72 Fed. Reg. 13,592-01,
13,621(Mar. 22, 2007)(codified at 30 C.F.R. pt. 100).
In addition, Commission judges are obligated to explain any substantial divergence
between a penalty imposed and that proposed by the Secretary. As explained
in Sellersburg Stone:
When it is determined that penalties are appropriate which
substantially diverge from those originally proposed, it
behooves that Commission and its judges to provide a
sufficient explanation of the bases underlying the penalties
assessed by the Commission. If a sufficient explanation for the
divergence is not provided, the credibility of the
administrative scheme providing for the increase or lowering
of penalties after contest may be jeopardized by an appearance
of arbitrariness.
Sellersburg Stone, 5 FMSHRC at 293.

38 FMSHRC Page 1703

Special Assessment
Through notice and comment rule making, the Secretary promulgated regulations
specifying the “Criteria and Procedures for Proposed Assessment of Civil Penalties.” 30
C.F.R. Pt. 100. Those regulations provide two options for determining the amount of a
civil penalty to be assessed by the Secretary: regular assessment and special
assessment. 30 C.F.R. §§ 100.3, 100.5(a), (b). Penalties for the vast majority of violations
are determined through the “regular assessment” process whereby penalty points are
assigned pursuant to criteria and tables that reflect the factors specified in sections 105(b)
and 110(i) of the Act. 30 C.F.R. §100.3.
The regulations also allow MSHA to bypass the regular assessment process if it
determines that conditions warrant a special assessment. 30 C.F.R. §100.5(a), (b). The
regulations do not further explain what conditions may warrant a special assessment.5 Nor
do they identify how the amount of a special assessment will be determined, other than to
state that “the proposed penalty will be based on the six criteria set forth in 100.3(a). All
findings shall be in narrative form.” Id. The narrative findings for special assessments are
typically brief and conclusory. The Secretary’s proposed special assessment is not
binding on the Commission; the Commission imposes civil penalties de novo.
DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
LAKE 2012-0898: Citation No. 8438790
In Citation No. 8438790, the Secretary alleged that White County Coal (“WCC”)
violated 30 C.F.R. §75.4006 because of material accumulations observed by MSHA
Inspector Benedict in three areas near Unit No. 2's third belt line during his E01 inspection
of the Pattiki Mine on June 12, 2012. Benedict testified that he observed fine coal
accumulations: (1) on the outby side of the takeup roller; (2) along the walkway on both
sides of the belt extending the full length of the drive and the takeup assembly; and (3)

5

In 2007, the Secretary substantially amended the penalty regulations, significantly
increasing penalties for most violations, eliminating the single penalty assessment, and
deleting language from section 105(a) that specified eight categories of violations that
would be reviewed to determine whether a special assessment is appropriate including,
violations involving an extraordinarily high degree of negligence or gravity, or other
unique aggravating circumstances. 72 Fed. Reg. at 13,621.
6

Coal 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. 30 C.F.R. § 75.400.

38 FMSHRC Page 1704

under the bottom rollers of the drive two crosscuts inby the belt header. Tr. 51-52. The
citation text described the following violating conditions:
Coal, coal fines, and coal dust (dark in color) has been allowed to
accumulate on the mine floor along the Unit #2's 3rd belt from the head
roller to 2 crosscuts inby. The accumulations of coal fines on the outby side
of the take-up roller measured 18 inches by 4 feet wide by 3 feet in length
and the rotating belt conveyor was rubbing the packed coal fines. The
walkway on both sides of the belt has 2 inches to 4 inches of coal
accumulated along it for the full length of the drive and take-up assembly
and has been rock dusted over. There are fine coal piles 4 to 12 inches in
depth under the bottom rollers from the drive 2 crosscuts inby. Standard
75.400 was cited 110 times in two years at mine 1103058 (110 to the
operator, 0 to a contractor). This violation is an unwarrantable failure to
comply with a mandatory standard.
Ex. S-3.
The parties agree that there were material accumulations in the three locations
relevant to this dispute, and WCC admits that these accumulations violated the relevant
standard. However, WCC challenges the “reasonably likely” gravity designation, the S&S
designation, the unwarrantable failure charge, and the penalty assessment. Resp. PostHearing Br. p. 11. Inspector Benedict testified that the large collection of coal fines on
the outby side of the take-up roller (the third listed location) was the impetus for the
enhanced enforcement order he wrote. Tr. 64, 124-25, 145.7 Therefore, this discussion
focuses on the third location.
Inspectors Kenneth Benedict and Phillip Stanley presented notably synoptic
versions of what they saw, albeit lacking in documentary confirmation. Tr. 89-90, 152,
154-155, 158, 161. WCC’s witnesses relayed a version that casts doubt on the inspectors’
testimony, is functionally more consistent with normal mining operations, and is
supported by contemporaneous notes.
Of greatest importance to the outcome of this decision is whether the
accumulations were combustible. “Combustible” is defined at 30 C.F.R. § 57.2 as
“capable of being ignited and consumed by fire.” FMC Corp., 6 FMSHRC 1566, 1567 n.
4 (July 1984). It is the Secretary’s burden to convince the court that the accumulations
were combustible. The Secretary failed to do this. For the reasons developed below, I
conclude that the accumulations were not combustible. As a result, the S&S charge fails.
It is not reasonably likely that non-combustible material will cause an event that is, in
turn, reasonably likely to result in serious injury.
Of similar import is my decision that the level of negligence attributable to the
buildup of accumulations is no more than “moderate.” The Secretary’s claim that this
violation arose as a result of an unwarrantable failure on WCC’s part, requires a finding of
at least “high” negligence and a constellation of aggravating factors. Without “high”

38 FMSHRC Page 1705

negligence or a sufficiently convincing list of elements which show “aggravated conduct
constituting more than ordinary negligence,” the Secretary has not proved an
unwarrantable failure. Emery Mining Corp.,1997, 2001, 2003-04 (Dec. 1987).
What remains is a simple violation of 30 C.F.R. §75.400.
Discussion
Belt Friction
According to the inspectors’ testimony, the accumulations had to be in friction
contact with the belt in order to create a fire hazard. Tr. 36. Both inspectors testified that
the belt made contact with the accumulations (Tr. 23-24, 89), however, WCC showed that
Benedict did not remember many of the details surrounding this issuance because more
than two years had passed (Tr. 55), and his field notes were silent about some of the
accumulations being in contact with the belt (Tr. 55-56), implying that he would have
noted it if it had been true. Ex. S-5.8 One of WCC’s witnesses, Lonnie Garrett, denied at
one point (Tr. 108) and then conceded at another (Tr. 130) that there was friction contact.
Finally, Thomas Smith admitted that there was friction contact. Tr. 140. I find that the
moving belt line rubbed across the accumulations. I find further that this constituted a
hazard and should have been regarded as such by WCC.
Composition of the accumulations
The fire hazard Benedict had in mind when he wrote this order requires that the
accumulated material be combustible. Tr. 21. This is consistent with the wording of the
standard 30 C.F.R. §75.400. See supra note 6. He testified that the accumulations at the
friction point were dry and that dry coal dust can be as volatile as gun powder. Tr. 22. He
described the accumulations as generally dark-to-black in color. Tr. 21-22, 157. Both
Benedict and Stanley testified that the material they observed consisted predominately of
pulverized coal fines which had changed color where it had been heated by friction from
the belt line. Tr. 151. The citation narrative alleges that the accumulations consisted of
“coal fines.” Ex. S-3. Benedict’s field notes mention “coal, coal dust, and coal fines.” Ex.
S-5, pp. 3 - 4. Significantly, Benedict did not test the accumulations to determine if they
were combustible. Tr. 54.
In contrast, WCC’s witnesses Garrett and Smith testified that the accumulated
material was an amalgam of bottom clay (Tr. 109,146), coal fines (Tr.146), water (Tr.
140,146), and rock dust (Tr.147), all of which affect the combustibility of the
accumulations. Tr.111, 146. The less coal dust and the more non-combustible material in
the mixture, the less combustible it is. Tr. 23, 146. The less combustible the mélange, the
less likely it is that the proposed gravity, S&S, and unwarrantable failure elements are
justified.
The testimony about the amount of water in the accumulations is particularly
important. The belt line above the contested accumulations was fitted with a water spray

38 FMSHRC Page 1706

system that operated whenever the belt line was moving. Tr. 113, 141. The belt line had
been running at least from the beginning of the shift 9 to the moment it was shut down to
facilitate the abatement clean up. Tr. 63. The MSHA inspectors testified that they did not
notice the spray system (Tr. 115), but WCC’s witnesses stated that not only was the spray
system in place and operating, the accumulated material at issue here was wet -- so wet
that Tom Smith said he saw Lonnie Garrett form a handful of it into a ball. Tr.109,146.10
S&S requires a reasonable likelihood that the violating condition will result in an
injury and that such injury be reasonably likely to be serious in nature. The Secretary has
the burden to prove that the accumulations were combustible. The Pittsburg and Midway
Coal Mining Co., 2 FMSHRC 3049, 3050-51 (Oct. 1980) (ALJ). The preponderance of
evidence supports a finding that the material was wet, composed of an undetermined
mixture of coal fines and non-combustible material, and not easily combustible.
Therefore, the belt friction found in the previous section does not support a conclusion of
S&S or unwarrantable failure.
Gravity
Wet accumulations of mixed materials in the presence of a friction source – the
only source of serious injury identified by Benedict – are not likely to result in an injury,
even assuming the violation persists as a part of normal continued mining operations,
which would presume the conditions extant at the time and place of the violation, i.e., wet
material, would remain until a cleanup was done. If they did contribute to the likelihood
of an injury, the injury would not be combustion related and would not be reasonably
likely to be serious in nature. The appropriate gravity designation for this violation is
“unlikely” to cause injury or illness. I will not speculate about serious injury attributable
to other theoretical possibilities.
Negligence
WCC allowed accumulations to build up over a period of days and several work
shifts. It was also aware of the buildup as it happened. It argues that its awareness of the
buildup and failure to clean up before the inspection were consistent with its view that the
accumulations did not present a hazard. Given the fact that the accumulations consisted of
a mixture of coal fines, rock dust, and other non-combustible elements and they were too
wet to allow friction combustion, the urgency of performing a cleanup before the
inspection was low in both WCC’s and court’s opinion. This is a significant mitigating
factor which prompts me to characterize WCC’s negligence as “moderate.”

9

The shift began at 7:30 a.m., and the inspection was done at 8:00 a.m. Tr.119.

10

The Secretary’s witness, Kenneth Benedict, denied seeing Garrett make a ball
out of the wet material. Tr. 160.

38 FMSHRC Page 1707

Unwarrantable failure
Unwarrantable failure requires a showing of aggravated conduct - significantly
more than ordinary negligence - characterized by “reckless disregard,” “intentional
misconduct,” “indifference,” or a “serious lack of reasonable care.” Emery Mining Corp.,
9 FMSHRC 1997, 2001, 2003-04 (Dec. 1987). Relevant factors to consider in determining
whether the operator is guilty of aggravated conduct include the length of time a violating
condition has existed, the operator’s efforts to abate the condition, whether the operator
has been placed on notice that greater efforts are necessary to assure compliance, the
operator’s knowledge of the violating condition (or lack thereof), and whether the
violation poses a high degree of danger. Consolidation Coal Co., 23 FMSHRC 588, 593
(June 2001).
Benedict alleged that WCC unwarrantably failed to comply with the mandatory
standard based on: (1) the amount of accumulations (Tr. 34-35); (2) their obviousness (Tr.
29); (3) the presence of mine examiners in the area (Tr. 37); (4) WCC’s repeated failure to
note a hazard (Tr. 34-36); (5) the high degree of danger inherent in the belt rubbing on
accumulated coal fines (Tr. 36); and (6) WCC’s probable knowledge of the violating
condition based on their having applied rock dust to some parts of the area. Tr.36-37.11
Since there was not a high degree of danger that the wet accumulations would
cause a fire, the unwarrantable failure analysis must focus on evidence showing
aggravated conduct. Although under Section 814(d) of the Mine Act a finding of
unwarrantable failure requires more than ordinary negligence, the Commission and
relevant federal appeals courts have found that the 30 C.F.R. § 100(3)(d) negligence terms
used for calculating monetary penalties should not be directly linked with the
unwarrantable failure analysis. A finding of “moderate negligence” does not necessarily
preclude a finding of unwarrantable failure any more than a finding of “high negligence”
or greater requires it. See Excel Mining, LLC v. Dep't of Labor, 497 F. App'x 78, 79 (D.C.
Cir. 2013), and cases cited therein.
Extent and Obviousness of the Accumulations
Without a fire danger, the extent of the accumulations becomes the focus for
evaluating whether the violation was the result of aggravated conduct and justifies a
finding of unwarrantable failure.
The shift just before Benedict’s inspection was non-production. Tr. 19, 76-77, 143.
Garrett argued that in the course of normal start-up following a non-production shift, it
was possible that a volume of material consistent with what the witnesses saw under and
around the belt line could have fallen or been scraped off the belt line. Tr. 119. In his
experience, belts are most likely to experience spillage at the time they are restarted. Tr.
121.
11

Benedict did not sample the rock dust on the coal accumulation to see if it was
combustible. Tr. 54.

38 FMSHRC Page 1708

The Secretary contended that the amount of accumulated material was more
consistent with a gradual buildup spanning several shifts, including the non-production
shift.12 Inspector Benedict believed that in order for so much material to accumulate, it
would require much more time for the material to pulverize than the few hours since the
belt line was started up again after the non-production shift (Tr. 159), although he agreed
it was theoretically possible. Tr. 162.
On balance, I find that the accumulations accrued over a period of several work
shifts.
WCC Knew That Material Was Accumulating
Benedict testified that WCC was on notice of belt line accumulation problems.
Benedict was at the mine the day before and wrote another citation for coal accumulations
along a different belt line. Tr. 68-69. Garrett testified that Benedict did not tell
management that another citation for the same violation would result in a 104(d) order and
elevated enforcement. Tr. 69-70, 126-127. Benedict may have warned them in general
that they had to do a better job of keeping the belt lines clean, but he went from not
issuing an elevated citation the day before to writing a 104(d) on June 12. Tr. 70.
The Secretary points out that the pre-shift examination records show that WCC was
aware that accumulations were building for at least two days and multiple work shifts, but
did nothing about them until this order was issued. WCC counters that although they were
aware of some accumulations, they were neither extensive nor obvious enough to be
considered a hazard needing immediate attention.
Inspector Stanley characterized the accumulations as obvious and so extensive that
anyone in the area would have been able to see them. Tr. 89. Tom Smith, Safety Assistant
for WCC (Tr. 135), accompanied Stanley to the belt area described in the order (Tr.139;
Ex. S-3 and S-4) and observed material accumulations under the bottom rollers inby the
head roller, as alleged in Ex. S-3.13
I find that WCC was aware that the accumulations were building up.
Existence of a Hazard
Lonnie Garrett testified that he did not consider these accumulations to be a hazard.
In his opinion, the belt scraper had scraped material off the belt line onto the ground in the
period between when the belt line started that morning and the inspection. Tr. 112-119.
He saw no sign of friction heat in the area, therefore there was no hazard. Tr. 120.

13

Smith testified, contrary to the two inspectors, that the accumulations were not in
contact with the belt. He noted more than three feet of clearance from the belt to the
material. Tr. 147-48.

38 FMSHRC Page 1709

WCC argued that there is a difference between their noting the presence of some
accumulations over a period of time and the accumulations being so extensive and obvious
as to require a finding of unwarrantable failure. In other words, WCC argued that it was
only required to take action if the accumulations were so extensive and persistent as to
constitute a hazard, in its opinion. This misses the point of the reasonable person test so
broadly applied in Commission decisions.
The reasonable person test requires that an operator take action if a reasonably
prudent person, familiar with the mining industry and protective purposes of the standard,
would have acted to provide the protection intended by the standard. Ideal Cement Co.,
12 FMSHRC 2409, 2415 (Nov. 1990). This objective test requires the court to weigh the
evidence and apply reasonable inferences rather than merely accept the testimony of the
operator.
WCC mingles its argument about the non-combustibility of the accumulations with
its claim that it did not consider the building accumulations a hazard and therefore did
nothing to deal with them prior to this inspection. It argues that because the
accumulations were not combustible – primarily because of the presence of the water
spray system – it was justified in not removing them although it was aware for some time
that they were present and growing.
I find that WCC was on notice that it needed to remove the accumulations.
In summary, the accumulated material was extensive, and WCC knew that it
needed attention; the material accumulation was noted in the DTI records. However, the
material was wet and non-combustible under normal mining operations, and the level of
negligence attributable to WCC’s violation was no greater than “moderate.” Some factors
support a finding of aggravated conduct; others do not. On balance, I conclude that
WCC’s failure to remove the accumulations prior to the inspection does not rise to the
level of aggravated conduct and does not support a finding of unwarrantable failure.14
Penalty
The Secretary proposed a specially assessed penalty of $38,000.00 for this
violation (Citation No. 8438790). WCC asked the court to reject the Secretary’s special
14

WCC claimed that Inspector Benedict’s issuance of a 104(d) citation for these
accumulations was inconsistent with the way in which he handled the abatement. It
argued that Benedict’s decision to designate this violation as S&S and unwarrantable was
inconsistent with his apparent impatience to get the situation cleaned up just enough to
restore coal production. It claimed that a team of a few workers cleared enough of the
accumulations away from the belt line in only a few minutes to prevent any further
friction contact (Tr. 23-24, 63-64), and that Benedict was notably preoccupied with
restoring coal production as soon as possible so that his respirable dust sampling – the
primary reason for his being at the Patiki mine that day (Tr. 13, 16, 86, 105,135-136) –
could continue and would produce reliable readings. Tr.123, 145.

38 FMSHRC Page 1710

assessment request. Resp. Post-hearing Br., p. 20. The exhibits supporting Secretary’s
recommended special assessment, Exhibits S-1, S-2 and S-3, show nothing out of the
ordinary to warrant a penalty of $38,000.00. The special assessment narrative form
merely recites the basic allegations regarding gravity, negligence, and prompt abatement.
It makes reference to the violation history (Ex. S-1), number of inspection days, and mine
and company size shown on the standard penalty worksheet (submitted with the
Secretary’s Petition for Assessment of Civil Penalty) used for all violations. Of that, the
only data possibly bearing on whether a penalty should be specially assessed are the
number of inspection days (588) and the related number of violations (550).
Turning to the testimony offered at trial, there is nothing specifically relevant to
the proposed special penalty assessment. The trial evidence pertains only to the basic
elements of gravity, negligence, S&S, and unwarrantable failure discussed above.
The Secretary has given the court no evidence above or beyond that relating to the
basic and standard elements of the violation on which to evaluate whether the proposed
special assessment should be sustained. It is the Secretary’s burden to support his request
for special assessment with competent evidence. Failing that, the court has no choice but
to reject the special assessment.
What remains are findings of “unlikely” gravity, “moderate” negligence, non-S&S,
and no aggravated conduct to support an unwarrantable failure finding. According to the
penalty packet submitted with the Petition, the mine produces over 2,000,000 tons of coal
per year. The penalty I assess here is appropriate to the size of WCC’s business.
The parties stipulated that the proposed penalty ($38,000.00) would not affect
WCC’s ability to stay in business (Jt. Pre-Hearing Report, Stip. 12), and that WCC
exercised reasonable diligence in abating the citation. Jt. Pre-Hearing Report, Stip. 10.
Roughly applying the calculus set out in 30 CFR §100.3 to the findings relevant to
the regular assessment of penalties, I conclude that a penalty of $165.00 is appropriate for
this violation.

38 FMSHRC Page 1711

Order No. 8438791
Inspector Benedict issued the 104(d)(1) Order No. 8438791 (Ex. S-4) on June 12,
2012, alleging that WCC violated 30 CFR § 75.360(a)(1)16 by failing to perform an
adequate pre-shift examination relating to the same material accumulations and area of the
mine discussed above. Tr. 40. Because the belts in question had not been in operation
during the preceding maintenance shift (Tr. 142-43), Benedict concluded that the
accumulations had to have been present and discoverable for at least two production shifts
prior to his inspection. Tr. 27. He believed WCC’s management knew about the
accumulations because anyone performing a pre-shift exam would document the exam on
the DTI board17 located in the immediate area of the accumulations. Tr. 25-29, 41.
Benedict also believed that the DTI records were silent about the accumulations. Tr. 3738, 46; Ex. S-7, S-8, S-9, S-10, and S-11. He was convinced that WCC did not perform a
competent or adequate pre-shift examination.18
Benedict’s citation narrative described the following conditions:
An adequate pre-shift examination has not been performed at
the Unit #2's second belt conveyor tail piece area and the Unit
#2's 3rd belt drive / take-up transfer areas due to the following
reasons: These two conveyor belts have accumulations that
were quite obvious to the most casual observer when checked
by MSHA at 0800. The belts had not been running on the
previous shift so the accumulations would have been present
for at least two production shifts prior. Citation #8438789
was written on the Unit #2 second belt and Citation #8438790
was written on the Unit #2 third belt drive and take-up area.
The DTI board in this area had been dated 6/12 @ 4:55 a.m.
16

30 CFR § 75.360(a)(1):
Except as provided in paragraph (a)(2) of this section, a
certified person designated by the operator must make a
preshift examination within 3 hours preceding the beginning
of any 8-hour interval during which any person is scheduled to
work or travel underground. No person other than certified
examiners may enter or remain in any underground area unless
a preshift examination has been completed for the established
8-hour interval. The operator must establish 8-hour intervals
of time subject to the required preshift examinations.

17

DTI is the acronym for “Dates, Times, and Initials.”

18

Lonnie Garrett testified that he made a DTI entry on June 10, 2012, for which
corrective action was taken on June 11 and 12, even though he did not consider the
conditions to be hazards. Tr. 133-34.

38 FMSHRC Page 1712

by M.P. and was 6/11 @ 12:50 by J.H. There were not [sic.]
hazards listed in the examiner’s books for this purpose on the
surface. Standard 75.360 (a) (1) was cited 2 times in two
years at mine 1103058 (2 to the operator, 0 to a contractor).
This violation was an unwarrantable failure to comply with a
mandatory standard.
Ex. S-4.
Discussion
There is no question that a WCC agent had been in the area to conduct a pre-shift
examination. Lonnie Garrett made a notation in the DTI records for the area in question at
4:55 a.m. on June 12, 2012. Ex. S-4). He wrote “OK” in the area of the DTI record book
(right side) where hazards or violations were to be documented. Ex. S-8, S-9, S-10, and S11. WCC’s exhibits R-16 and R-17 show the opposite (left) side of the oversized DTI
record book (Tr.94), a section Benedict did not note when he issued this order. Tr.60-62.
Benedict attended only to the right side page of the record book where the “OK” notation
was made. Tr. 37. It is reasonably clear that the “OK” notation is related to the detail on
the left side of the DTI record pages. Ex. R-16, R-17. It is also sufficiently clear that,
although there is little detail about the violating condition, corrective (mitigating) action
was taken to remedy the condition. The left side records show a pre-shift examination
entry made on June 10 (also not considered by Benedict) and that “cleaning and dusting”
was needed and was apparently done on June 11 and 12. Tr. 60-61. Despite questioning
and argument by the Secretary suggesting that R-16 and R-17 had been falsified after-thefact (Tr. 61-62), they are reliable enough to establish that WCC’s examination agent
observed and noted a condition that in his view needed corrective attention, and that
“cleaning and dusting” was done in the area prior to Benedict’s inspection. 19 A pre-shift
examination was performed. The question remains whether it was meaningful or
effective.
If the conditions observed by Garrett and noted on the right side of the DTI record
page as “OK” describe the conditions existing at the time of the pre-shift examination,
there was no violation, and the order should be vacated as WCC urges. Also, if the
conditions observed by Benedict – which WCC admits constituted a violation of the
related regulation (Tr. 108, 110, 120, 125-126, 146) – accreted between 4:55 a.m. and 8:10
a.m. as the belt line was being transitioned from maintenance to production (Tr. 116, 143),
the examination was effective and the order should be vacated. But, if they were present
in sufficient volume to have been an unaddressed violation at the time of the pre-shift
examination, the pre-shift examination was ineffective and nugatory. See Energy Fuels
Coal, Inc., 18 FMSHRC 171, 176 (Feb. 1996) (ALJ); see also Enlow ForkMining Co., 19
FMSHRC 5, 12-13 (Jan. 1997); Shelby Mining Co., LLC, 31 FMSHRC 1501, 1510 (Dec.
19

This is consistent with the evidence about there being rock dust in the
accumulations that are the subject of Citation No. 8438790. Ex. S-3; Tr. 36-37,147.

38 FMSHRC Page 1713

2009) (ALJ) (“The critical question is whether the conditions existed at the time of the
preshift examination.”).
Violation
The pro-forma pre-shift examination was ineffective due to: (1) the amount of
material accumulated at the time of the pre-shift exam; and, (2) the failure of the “OK”
notation in the DTI records to trigger an effective clean-up before the inspection. For the
reasons that follow, I find that the material observed by Benedict was present in sufficient
quantity at the time of the pre-shift examination to render Garrett’s pre-shift examination
functionally and legally ineffective.
Inspector Benedict saw the accumulations in the area of the DTI board, inspected
the DTI records, and reviewed the pre-shift book at the surface. Tr. 37. The DTI records
showed that a pre-shift examiner (Lonnie Garrett) had been in the immediate area of the
accumulations shortly before Benedict’s inspection. Tr. 37-38. The DTI records that
Benedict reviewed did not specifically note any hazards (or violations) in the area. Tr. 38;
Ex. S-7, S-8, S-9, S-10, and S-11. However, Garrett did write “OK”, showing that he had
been in the area for pre-shift examination purposes. Tr.42; Ex. S-7, S-8, S-9, S-10, and S11. Garrett did not document the fact that there were at least 10 inches of accumulations
under the belt line in some places. Tr. 131. Garret explained that even with 10 inches of
accumulations, he did not consider the conditions serious enough to document in the DTI
records as a violation or hazard. Tr.131-32. On further questioning, he testified that it
would be unusual for an examiner to find 10 inches of material and not note it in the DTI
records. Tr. 132.
WCC argued that there was no violation because an effective pre-shift exam must
only be done prior to a shift, but not at any specific time. Inspector Benedict observed the
accumulations at 8:10 a.m. WCC argued that it was not obligated to revisit the area again
after the 4:55 a.m. examination, and the Secretary has the burden to prove the existence of
violating conditions at the time of the pre-shift. Resp. Reply Br., p. 9-10.
It is not clear from the examination record exhibits alone how much accumulated
material was present during the pre-shift exam or how long it took for it to build up. WCC
claimed that the accumulations were the result of belt spillage that happened between 4:55
a.m. and 8:10 a.m. Tr. 119. The belt was not running at 4:55 a.m., the time of the last
exam. The preceding shift was a non-production, maintenance shift. Tr. 142-43. The
normal startup time for the belt was 6:00 a.m. Tr. 143. According to Exhibits R-16 and
17, WCC took some action on June 11 and 12 in response to the buildup of accumulations
in the same area. The area was cleaned and rock dusted during the third (maintenance)
shift from June 11 to June 12. Tr. 59-60. The Secretary argued that WCC’s DTI notes
(Ex. R-16 and R-17) deserve little weight because: (1) Benedict did not see them; (2) they
may have been added after-the-fact (Tr. 60-62); and, (3) WCC did not raise the mitigating
issue of having done the rock dusting and cleaning shown in Exhibits R-16 and R-17
during the close-out meeting with Inspector Benedict. Tr. 79.

38 FMSHRC Page 1714

The record contains convincing evidence of significant accumulations present when
the examiner looked at the area. For example, in addition to the 10 inches of
accumulations discussed above, Benedict testified that he observed two distinct types of
material under and along the belt lines, spillage and “powdery, ground up stuff was stuff
that had spilled and been run through. It takes a long time to get those type of
accumulations. It doesn’t happen quickly.” Tr.74. Benedict testified that the coal would
not have been ground up if it were a recent spill. Tr.151. This is enough to call into
question the efficacy of the pre-shift exam.
The existence of a hazard or violating condition, specifically a coal accumulation,
at the time of a pre-shift examination may properly be made by inference based on the
extent of the accumulation at the time it is observed by the inspector. Enlow Fork Mining
Company, 19 FMSHRC 5, 15-16 (Jan. 1997). There were extensive material
accumulations in the area, observable (if not actually observed) by the pre-shift examiner
at 4:55 a.m. It is improbable that the amount of material accumulation found by the
inspector at 8:10 a.m. could build up in the interval after the 4:55 a.m. pre-shift record
was made. Tr.162-63. A violation of 30 C.F.R. § 75.360(a) can be upheld if the inspector
finds violating conditions that were present when the pre-shift examination was
conducted, but were not noted on the pre-shift inspection. Remington, LLC, 36 FMSHRC
491, 510 (Feb. 2014) (ALJ). These accumulations should have been documented in the
pre-shift examination (DTI) records as a violating condition needing at least clean-up
attention.
WCC’s argument that it did not take further action because it did not consider the
accumulations hazardous is unconvincing and would undercut the strict liability character
of these regulations by making the ultimate determination about the existence of a
violation a matter of the operator’s agent’s subjective assessment. Brody Mining, LLC, 33
FMSHRC 1329 (May 23, 2011) (citing Spartan Mining Co., 30 FMSHRC 699, 706 (Aug.
2008); Asarco, Inc., 8 FMSHRC 1631, 1634-36 (Nov. 1986), aff'd, 868 F.2d 1195 (10th
Cir. 1989); Rock of Ages Corp., 20 FMSHRC 106, 115 (1998)). WCC’s failure to
document the condition defeated the pre-shift examination process and was a violation of
30 C.F.R. § 75.360.
WCC pointed out in its post-hearing brief that the language of certain subsections
of 30 C.F.R.§ 75.360 was changed shortly after this order was issued. The new language
was broadened to require a pre-shift examiner to look for and document both hazards and
violations of certain enumerated mandatory items, whereas at the time of this order, only
hazards were covered. WCC argued that its examiner fully complied with the regulatory
requirement in place at the time by noting “OK” for the locations where these
accumulations were found because: (1) he was not obligated by the language of the
regulation to note conditions that were merely non-hazardous violations; and (2) he did
not deem the accumulations to be a hazard.
The language changes in parts of 30 C.F.R. §75.360 do not excuse WCC’s failure
to note these violating conditions as part of its pre-shift process. The new language in
§75.360(a)(2) requires examination for hazards and violations now, but only spoke of

38 FMSHRC Page 1715

examination for hazards prior to the change. Yet the subject matter of §75.360(a)(2), the
so-called “pumper’s exception,” is so specific and different in purpose, a change in the
language there does not apply to the language in the more general §75.360(a)(1), the
section under which this order was issued. There is nothing in the language itself, its
context, or the legislative history that supports WCC’s claim that the amendatory language
justifies WCC’s failure to document non-hazard violations in its pre-shift examinations.20
The attempt to limit the coverage of 30 C.F.R. § 75.360(a)(1) to the reporting of hazards
to the exclusion of violations by reference forward in time and across regulatory topics to
the more specific coverage language of 30 C.F.R. § 75.360(a)(2), which came into effect
after this violation was written, violates logic, context, and syntax. I reject the argument
that an amendment to the more specific portion of the regulation should be read into the
more general portion. As a result, WCC’s pre-shift examiner was obligated to look for
and record violating conditions, even if he did not deem them to be hazards. WCC’s
interpretation of the regulatory language and history does not shield it from liability for
this violation.
Negligence
The Secretary based his negligence allegation on the same theory presented in
relation to Citation 8438790, i.e., that the material accumulations were extensive and
combustible. He did not present an alternate theory of negligence. I determined that the
accumulations were not proved to be combustible and therefore did not create the
hazardous conditions on which the Secretary based his claim of negligence and S&S for
Citation 8438790. Failing proof of some other hazard arising from these accumulations or
from the fact that no meaningful pre-shift examination was performed, all that has been
proved is a bare violation of the pre-shift examination requirement.
The question here is what degree of negligence inheres in the failure to perform a
meaningful pre-shift examination, not what negligence level is appropriate for the
existence of the accumulations themselves. Inspector Benedict considered the negligence
for this violation to be high. Under Commission precedent, high negligence entails actual
or putative knowledge of the violating condition and a lack of mitigating circumstances.
Two points must be resolved: (1) was WCC aware of the violation; and, (2) were
there any mitigating circumstances? WCC’s excuse for failing to perform a meaningful
pre-shift examination was semantic – it did not consider the accumulations a hazard and
was under no obligation to document and remedy. This argument has no traction. 30
C.F.R. § 75.360(a)(1) required WCC to examine for violations, not just hazards, and
appropriately note its findings.
WCC knew of the material accumulation violation but its pre-shift examination
failed to note it in a manner that would provide notice to miners of the existence of the
accumulations, their magnitude, or the need to effectively clean them up. A considerable
20

See generally, Spartan Mining Co., 415 F.3d 82, 83 (D.C. Cir. 2005); Cannelton
Industries, Inc., 26 FMSHRC 146 (Mar. 2004).

38 FMSHRC Page 1716

period of time elapsed while these accumulations built up and existed before Benedict’s
inspection (Tr. 47), which supports a finding of high negligence. Nonetheless, there were
documented efforts to clean up and rock dust the area. Given the fact that the
accumulations consisted of a mixture of coal fines, rock dust, and other non-combustible
elements which were too wet to allow friction combustion, the urgency of performing a
cleanup before the inspection was low in both WCC’s and court’s opinion. These are
mitigating factors which weigh in favor of a finding of moderate negligence.
Gravity / Severity
The Secretary presented the same scenario in support of his claim that this violation
presented a reasonable likelihood of lost workdays or restricted duty as he did for the
negligence element. That scenario assumes dry coal dust rubbing on the belt lines causing
a fire which would cause smoke inhalation and burns. Tr. 46-47. However, that
assumption is unsupported due to the Secretary’s failure to prove combustibility. The
only other evidence in the record addressing likelihood of injury or the severity of such
injury arising from WCC’s failure to perform a meaningful pre-shift examination is an
inference drawn from the volume of accumulated material and the length of time the
accumulations existed (discussed above). From that, I conclude that it was unlikely that
an injury would occur as a result of this failed pre-shift examination. In reaching this
conclusion, I assume that the conditions extant at the time of Benedict’s inspection
(continuing operating conditions) would continue, which in turn assumes that the
accumulations would continue to be incombustible due to the effects of the operational
water spray system. If an injury were to occur, the Secretary’s suggestion that it would
result in lost work days is reasonable.
Significant & Substantial
In dealing with the previous citation, I determined that the Secretary failed to prove
that the accumulations in question were combustible, therefore the violation was not S&S.
The Secretary now seeks confirmation that this pre-shift exam violation was S&S based on
the same evidence that failed to prove the hazard above. Tr.47-48. The Secretary points
out in his post-hearing brief, “the existence of the accumulations presented a discrete
safety hazard, that is, they contribute to a measure of danger to miner safety caused by the
violation.” Sec’y. Post-hearing Br. p. 17. This can be parsed into two elements: (1) any
amount or type of accumulation is a violation (strict liability); and (2) if the violating
condition creates a measure of danger to miner safety, it is a hazard. In order for a
violation to be a candidate for enhanced enforcement (S&S), it must present a danger to
miner safety. The sine qua non of an S&S determination is the existence of a hazard, not
just a violating condition. It is feasible, subject to appropriate proof, that non-combustible
accumulations such as these could create a hazard, however the Secretary put all of his
proverbial eggs in the combustibility basket, and failed to give the court any evidence of
an alternate hazard, such as trip-and-fall, for instance. For failure of proof, I conclude that
the pre-shift examination violation was not S&S.

38 FMSHRC Page 1717

Unwarrantable Failure
In order to establish unwarrantable failure under the Commission’s case law, the
Secretary must prove aggravated conduct - significantly more than ordinary negligence characterized by “reckless disregard,” “intentional misconduct,” “indifference,” or a
“serious lack of reasonable care.” Emery Mining Corp., 9 FMSHRC 1997, 2001, 2003-04
(Dec. 1987). Other relevant factors to consider include the length of time a violating
condition has existed, the operator’s efforts to abate the condition, whether the operator
has been placed on notice that greater efforts are necessary to assure compliance, the
operator’s knowledge of the violating condition (or lack thereof), and whether the
violation poses a high degree of danger. See Consolidation Coal Co., 23 FMSHRC 588,
593 (June 2001).
This violation involved moderate negligence. Although unusual, moderate
negligence can support a finding of unwarrantable failure. Eagle Energy Inc., 23
FMSHRC 829, 839 (Aug. 2001). WCC’s failure to perform a compliant pre-shift
examination was based, at least arguably, on its non-frivolous though unconvincing twoprong theory that: (1) it did not consider the accumulations in question to be a hazard;
and, (2) it interpreted the language of the regulation to required only that its agents
document and remedy hazards, not mere violations. Though rejected for purposes of
liability and negligence analysis, these theories have enough plausibility and substance to
keep WCC’s violation from rising to the level of aggravated conduct.
Otherwise, WCC was on notice that it needed to better attend to material
accumulations along its belt lines. Tr. 30. It was cited for similar violations multiple
times during the preceding 24 months (Ex. S-1), although 30 C.F.R. §75.400 is one of the
most frequently cited standards of all. Resp. Reply Br., p. 9. WCC was aware and
documented that material was accumulating, (Ex. R-16 and R-17) and once cited, WCC
took immediate steps to abate the violation. Stip. No. 10; Tr.124, 144.
The balance of relevant factors tips away from a finding of unwarrantable failure.
Penalty
MSHA specially assessed this violation and proposed a penalty of $23,800.00.
Applying the regular assessment paradigm of 30 CFR §100.3, I assess a penalty of
$264.00.
In determining penalties, the Commission and its ALJs make penalty
determinations de novo, and neither the ALJ nor the Commission is bound by the penalties
proposed by the Secretary. Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May
2000); Cantera Green, 22 FMSHRC 616, 622 (May 2000); 30 U.S.C. § 820(i); Spartan
Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). Yet, the Commission has held that, when
a judge determines penalties that “substantially diverge from those originally proposed [by
the Secretary], it behooves the Commission and its judges to provide a sufficient

38 FMSHRC Page 1718

explanation of the bases underlying the penalties assessed by the Commission.”
Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983).
The Court is required to consider the following specific criteria in order to
determine the appropriate penalty:
1. The operator’s history of previous violations;
2. The appropriateness of such penalty to the size of the
business of the operator charged;
3. Whether the operator was negligent;
4. The effect on the operator’s ability to continue in business;
5. The gravity of the violation;
6. The demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of
the violation.
Section 110(i) of the Mine Act; 30 U.S.C. § 820(i).

38 FMSHRC Page 1719

Special assessment is appropriate for enhanced enforcement but not for ordinary
violations such as this with negligence and gravity findings of “moderate” and “unlikely,”
respectively. I have assessed a penalty using the point values for the various standard
criteria summarized above. The size and history numbers were provided by the Secretary
to support his Petition for Assessment in this case. The negligence and gravity points
come from the point table in Section 100.3. The adjustment for prompt abatement is
supported by the parties’ stipulations. I assess a penalty of $264.00, as summarized in the
following table.
Criterion
Size of mine
Size of operator
Number of violations
Number of inspection
days
Negligence
Likelihood
Severity
Number of persons
affected
Good faith abatement

Date / Finding
(From Pleadings)
(From Pleadings)
550
588

Points
15
10

Moderate
Unlikely
Lost work days
2

20
10
5
2

Total Points
-10%

72
-$29.00

Penalty From Points
Final Net Penalty

10

$293
$293 - $29 = $264

LAKE 2012-0899: Citation Nos. 8447018 and 8447019
Citation No. 8447018
MSHA Inspector Terry A. Hudson inspected the Pattiki mine on July 30, 2012.
Tr.168. He issued a 104(a) Citation, No. 8447018 (Ex. S-12), alleging that WCC violated
30 C.F.R. §75.1506(b)(2) 21 by not having sufficient emergency refuge capacity for all the
miners in the area of the No. 7 crosscut, Unit No. 3, Travelway No. 4 (“the working
section”), during the shift change on July 27, 2012. Tr.171,190-191. The citation alleges
high negligence, that an event would be unlikely, but that such an event could cause a
fatal injury, and that five miners would be affected. It is not alleged to be significant and
substantial (S&S) nor to involve an unwarrantable failure to comply with regulations.

21

30 C.F.R. §75.1506(b)(2): Refuge alternatives for working sections shall
accommodate the maximum number of persons that can be expected on or near the section
at any time.

38 FMSHRC Page 1720

This violation depends on the evidentiary weight of the method used by Hudson to
determine the lack of refuge capacity. For the reasons that follow, I find that his
methodology does not support the conclusions asserted here and I vacate the citation. I do
not address the issues of negligence, gravity, or penalty.
Instead of going to the working section to visually count how many miners were
present (Tr.176; 190-191), Hudson based his decision to write this citation solely on a
review of selected data from Pattiki’s Matrix METS 2.1 Miner and Equipment Tracking
System (Tr. 173, 192, 198, 205, 210), a method he had never before used to determine
lack of refuge capacity. Tr. 199. The data Hudson reviewed shows22 that the tracking
signals from twenty-nine miners (Ex. S-15; Tr. 174-175,197) -- five more than the twentyfour person refuge capacity Pattiki maintained (Tr. 172,191) -- were received and
registered by the METS systems at one of the antenna locations in the Pattiki mine close
to the working section during a forty-four minute period on July 27, 2012. Tr. 197-198,
207. 23 Of the twenty-nine miners Hudson alleged were in the unit (Tr.197), he was able to
verify a time for only twenty of them; the other nine were unaccounted for. Tr. 197. There
is no evidence about when these nine miners were picked up by a reader. Tr. 197.
Moreover, it is impossible to tell a miner’s exact location without determining
which antenna responded at a given time. Since there are no time records for the nine
miners, it is not possible to determine where they were with any confidence. Tr. 217-18.
As such, the information Hudson relied on is nearly meaningless. The data does not show
which miners were in the area, whether or when each miner left the area during the 44
minutes, or most importantly, whether all 29 miners were in the area at the same time.
I find the testimony of Tracy Hayford, the director of development and chief
architect for Matrix, more convincing. Hayford designed both the hardware and software
for the METS 2.1 tracking system. Tr. 209-11. He explained how Hudson’s conclusion
about the number of miners in the section at the time of the shift change was at best
unreliable and more likely meaningless and misleading. According to Hayford, the METS
data could not yield reliable information about how many miners were in any given area,
what area the miners were in, or even when the miners were in the area – all irrespective
of how Hudson used the data.
The METS system tracks miners and equipment using antennae and signal tags. Tr.
211. METS can locate a tag with an accuracy of several hundred feet only. It is not able
to pinpoint locations like a global positioning satellite (GPS) system. Tr.211-12.
According to Hayford, METS data was not intended nor is it useful to determine how
22

I am aware that “data” is a plural noun and technically should be used with a
corresponding plural verb form. But, since it still sounds odd to say “data are” as opposed
to “data is”, I opt for the less jarring but grammatically incorrect version.
23

WCC used a “hot seat” method for its shift changes at the Pattiki mine. Miners
from the outgoing and incoming shifts were in the section at the same time, which
effectively doubled the number of miners for a short time. Tr. 196.

38 FMSHRC Page 1721

many people were present in a given location. It registers every tracking tag that passes
by it. It does not identify individual miners when they come within range of one of the
antennae. As a result, it is possible that some miners passed back-and-forth by an antenna
and generated data which could be interpreted (wrongly) that more individuals were in the
area than was actually true. Tr. 212-13.
The METS antennae will detect a signal both inby and outby for several hundred
feet. Tr. 211-12. The system is not sufficiently accurate to determine who is inby or outby
a given antenna. Tr. 213-14. To tell where a miner is located, it is necessary to track his
tag signal as it passes by more than one antenna. Tr. 213. Until a miner is within range of
another antenna, he is shown in the area of the last one he registered on. Tr. 214. Without
input from more than one antenna, it is impossible to tell whether a miner is several
hundred feet outby or inby the antenna location. Tr. 214.
According to Hayford, it is unlikely that Hudson could determine how many
miners were on the working unit using the METS data the way he did. A bigger picture is
needed to tell where a miner has been over a period of time. Tr. 214-15. Data from at
least two antennae must be triangulated to get an accurate idea of where a miner is at any
given time. Tr. 215-16. As a minimum, Hudson would need to look at a relatively long
period of time to increase the accuracy. Tr. 216-17. He would also have to compare data
from more than one antenna to see if, when, and how miners moved from one area to
another. Tr. 217. For example, a miner might be walking along a belt line, be picked up
by an antenna that is more inby, but keep walking outby. Within the time frame reflected
in the records Hudson reviewed, a miner could be as much as a mile away. Tr. 215-19.
While traveling that distance, a miner would pass by several antennae (and presumably
several refuge locations). Tr. 219.
The METS system works by placing antennas throughout the mine in accordance
with distances set forth under the WCC's Emergency Response Plan (“ERP”). Tr. 211.
Hudson did verify that the tracking system worked by having the system track him as he
did his inspection (Tr. 207). But, he did not note the location of the tracking system
antennae when he went underground. Tr. 193-94. More specifically, he did not know or
verify the location of the closest tracking system antenna outby the loading point (Tr.
191,194) 24 , he did not have a list of antenna locations in the No. 3 unit (Tr.194), nor did
he know if he was looking at the antenna data for Unit 3, or any other specific antenna,
when he reviewed the records he requested. Tr. 195-196, 206). Hudson did not request
records for any antenna outby the working section to see if any of the miners had been
picked up by them. Tr. 196-97. As a result, the Secretary: (1) could not document the
location or name of the tracking system antenna for the loading point of the No. 3 Unit
(Tr. 193); (2) did not document the location of the closest tracking system antenna outby
the loading point for the No. 3 Unit (Tr. 191, 194); (3) did not create or maintain a list of
antenna locations across the working faces of the No. 3 Unit (Tr. 194); (4) did not provide
24

Pattiki maintained another refuge for miners outby and farther from the working
section. It was not considered close to the working section. Tr. 191. Pattiki was not short
of refuge space for miners when other refuge locations are considered. Tr.191-92)

38 FMSHRC Page 1722

the Court with a copy of the actual tracking system records requested on July 30, 2012; (5)
produced no inspection note evidence of obtaining such tracking system records (Tr. 194);
(6) did not identify the specific tracking system antenna record reviewed; (Tr. 194-95); (7)
did not show whether wired or wireless tracking records were reviewed (Tr. 195-96); and,
(8) did not request to review any outby antenna records, located off the No. 3 Unit, to
determine when any individuals in the Secretary's list were picked up by antenna outby the
No. 3 Unit (Tr. 196-97). In short, the Secretary failed to demonstrate the presence of
miners on the No. 3 Unit in excess of the refuge alternative limit.
It is not that the tracking data is irrelevant or inaccurate; it is so incomplete and
unfocused that the Secretary did not prove the presence of twenty-nine miners on Unit 3 at
the same time as alleged. (Tr. 220) Citation No. 8447018 is vacated.
Citation No. 8447019
On July 30, 2012, MSHA Inspector Hudson issued a 104(a) Citation, No. 8447019
(Ex. S-14; Tr.177-78), alleging that WCC violated 30 C.F.R. §75.1506(b)(3) by not having
a type “A” refuge alternative in service at crosscut #3 in the 4 th 48 primary escapeway.
The citation alleges high negligence, that an event would be unlikely, but that such an
event could cause a fatal injury, and that three miners would be affected. It is not alleged
to be significant and substantial (S&S) nor to involve an unwarrantable failure to comply
with regulations. WCC acknowledges a “fact of violation” with regard to this citation
(Resp. Post-Hearing Br., p. 11), however, it contests the high negligence determination
and the Secretary’s proposed civil penalty assessment. (Resp. Br., p.43)
Changes made to 30 C.F.R. §75.1506(b)(3) required WCC to upgrade its existing
stacked wall and curtain refuge structures by December 31, 2010. 25 Tr. 204,229,234.
25

30 C.F.R. §75.1506(b)(3):
Prefabricated refuge alternative structures that states
have approved and those that MSHA has accepted in approved
Emergency Response Plans (ERPs) that are in service prior to
March 2, 2009 are permitted until December 31, 2018, or until
replaced, whichever comes first. Breathable air, airmonitoring, and harmful gas removal components of either a
prefabricated self-contained unit or a unit consisting of 15 psi
stoppings constructed prior to an event in a secure space and
an isolated atmosphere that states have approved and those
that MSHA has accepted in approved ERPs that are in use
prior to March 2, 2009 are permitted until December 31, 2013,
or until replaced, whichever comes first. Refuge alternatives
consisting of materials pre-positioned for miners to deploy in
a secure space with an isolated atmosphere that MSHA has
accepted in approved ERPs that are in use prior to March 2,
2009 are permitted until December 31, 2010, or until replaced,
whichever comes first.

38 FMSHRC Page 1723

WCC was aware of this requirement well in advance of the due date. Tr. 178-179, 243.
WCC’s existing refuges consisted of skids with supplies behind a wall accessible by a man
door. Tr. 179-81. The man doors had been manufactured by Matrix (Tr. 228-29) and
MineArc (Tr. 244-45) and were approved by MSHA as part of WCC’s existing emergency
response plan (Tr. 199-200) which had been in place since March 15, 2010. (Tr.226-27;
Ex. R-5; Ex. R-6).
WCC proposed to retrofit its Matrix refuge units with 15 psi pressure resistant
stoppings,26 which its engineers indicated would comply with 30 C.F.R. §75.1506(b)(3).27
WCC needed MSHA approval (Tr.229, 232-233) for the proposed 15 psi stoppings.28
On November 22, 2010, (Tr. 200-201;231) WCC submitted to MSHA the first of
three ERP change proposals (Tr. 231) that would have allowed it to upgrade its existing
outby refuge units with 15 psi stoppings. (Tr.232). MSHA did not respond to this
proposed ERP revision until July 7, 2011, when it sent WCC a denial letter. (Tr.234-236).
The denial letter contained a list of alleged deficiencies, none of which, as Chris Russell
testified (Tr. 228-229), had anything to do with WCC’s request to upgrade with 15 psi
stoppings. Russell also stated he gained no insight or understanding from MSHA why it
had not approved WCC’s stoppings upgrade request. (Tr. 236).
WCC submitted the second of its three ERP change proposals on September 2,
2011, (Tr. 237; Ex. R-9) and repeated its request for approval of its use of 15 psi
stoppings. MSHA responded to the second request on December 20, 2011, when it
rejected the revised ERP and provided a new list of alleged deficiencies. (Tr.237-238; Ex.
R-10). As before, none of the alleged deficiencies related to WCC’s request to install the
15 psi stoppings. In the meantime, the deadline for the refuge changes came and went,
26

A 15 psi stopping is a concrete wall designed to handle 15 psi of pressure-a blast.
(Tr. 231).
27

WCC focused on one of the two alternatives in 30 CFR § 75.1506(a)(3):
“Each operator shall provide refuge alternatives and
components as follows: . . . Breathable air, air monitoring, and
harmful gas removal components of either a prefabricated
self-contained unit or a unit consisting of 15 psi stoppings
constructed prior to an event in a secure space and an
isolated atmosphere that states have approved and those that
MSHA has accepted in approved ERPs that are in use prior to
March 2, 2009, are permitted until December 31, 2013.”

Resp. Post-Hearing Br., p.45 (emphasis added).
28

The lack of an approved 15 psi stopping was ultimately the basis for this citation.
Tr. 178, Ex S-14. Hudson wrote the citation because the existing man door was not able
to withstand pressure of a mine explosion, 15 psi. Tr. 181-82.

38 FMSHRC Page 1724

WCC waited for MSHA approval (Tr.237-239; Ex. R-6; Ex. R-10), and MSHA took no
action during any of its ongoing mine inspections to indicate that WCC’s change request
would not be approved. (Tr.234).
Anticipating MSHA’s ultimate approval of its stoppings proposal, WCC contacted
Micon, a seal manufacturer. WCC understood that Micon was the only manufacturer that
made NIOSH-approved 15 psi stoppings for use in underground coal mines at the time.
(Tr.232) Micon visited the Pattiki mine, and worked with Chris Russell (Tr.228-229) to
evaluate potential sites to install the 15 psi seals, and to insure the mine was correctly
preparing the sites for installation. (Tr. 232-233) WCC started the recommended site
preparation but did not complete it because it had not received approval from MSHA to
use 15 psi stoppings. Id.
Following the December 20, 2011 denial letter, WCC requested a face-to-face
meeting with MSHA, which did not occur until May 2012. (Tr. 239-240). At the meeting,
Pattiki asked for guidance. Russell understood that WCC was to submit a third ERP
proposal with some changes and MSHA would approve the 15 psi stoppings – a meeting
of the minds. Tr. 240-41. Accordingly, WCC submitted a third revised ERP, including 15
psi stoppings, on June 13, 2012. Tr. 241-42, Ex. R-11. WCC waited for a response from
MSHA from June 13, 2012, through July 29, 2012. Tr.235,242. On July 30, 2012, MSHA
issued Citation No. 8447019. Ex. S-14. Apparently, MSHA did not share WCC’s belief
that there was an agreement in principle after the May 2012 face-to-face meeting because
it did not approve WCC’s third ERP proposal.29
This chain of events cannot be construed as a mine operator attempting to skirt the
provisions of the law or otherwise engaging in negligent behavior. WCC submitted ERP
revisions to satisfy MSHA’s demands, believing in good faith that doing so would allow it
to install 15 psi stoppings to retrofit its Matrix refuge units. WCC attempted to discuss
the issue with MSHA on multiple occasions, and as recently as June 13, 2012, submitted
an ERP revision it believed would be approved. Tr. 241. In the end, WCC purchased new
refuge units at great cost30 to abate this citation, when other mines were allowed to merely
issue purchase orders, which seemed to satisfy MSHA. Tr. 202, 228-29.
The equities of this event are dramatically in WCC’s favor. Largely because of
MSHA’s failure to timely or substantively respond to WCC’s repeated requests to modify
its ERP (Tr. 234), WCC did not have compliant refuge alternatives in place at the time of
Hudson’s inspection. WCC relied on MSHA to its detriment. WCC’s reluctance to spend
29

Interestingly, Inspector Hudson testified that he had been prompted by his
supervisor, Rodney Adamson, to issue a citation for this violation before even going to the
mine. Tr. 203. Hudson was not aware of the content of the various proposed ERPs. Tr.
201-03.
30

MSHA suggested to WCC that it purchase Strata tent chamber refuge units to
abate the citation. (Tr.244). The Strata units cost $151,000 each. Tr. 245-46. The 15 psi
stopping alternative would have cost only $50,000 each. Tr. 233.

38 FMSHRC Page 1725

a substantial sum for the Strata refuge units that MSHA eventually suggested it adopt (Tr.
245; Ex. A, Adamson Affidavit at ¶27) when it had no indication from MSHA that WCC’s
preferred, and apparently fully compliant (15 psi stoppings for its Matrix units) alternative
would be rejected or ignored, is not negligent at all. There was no negligence on WCC’s
part and only a technical violation of 30 C.F.R. § 75.1506(a)(3).
WCC had no history of violations of 30 C.F.R. § 75.1506(a)(3) for the fifteenmonth period prior to this citation. WCC exhibited good faith in its efforts to anticipate
the need to upgrade its Matrix refuge units and to get MSHA approval of the 15 psi
stopping option prior to the deadline. MSHA never gave WCC the go-ahead to install the
15 psi stoppings, never explained why it would not approve them, apparently never
intended to approve them (per Adamson’s after-the-fact affidavit), and never justified
these delinquencies to the court. These factors constitute significant mitigation against
any liability beyond what I order here.31
Citation No.8447019 is modified from “high negligence” to “no negligence.” I
impose a symbolic fine of $10.00 to reflect the imbalance of equities.
WHEREFORE, it is ORDERED that WCC pay a combined penalty of $439.00
within thirty (30) days of the filing of this decision.

/s/ L. Zane Gill
L. Zane Gill
Administrative Law Judge

31

Estoppel defenses are not generally available against the federal government.
See, e.g., Knob Creek Coal Co., 3 FMSHRC 1417, 1421 (June 1981). Inspectors' previous
representations about compliance with a regulation do not estop MSHA from issuing
future citations, but detrimental reliance on an inconsistent interpretation is properly
considered in mitigating the penalty. Cf. Nolichuckey Sand Co., 22 FMSHRC 1057, 106364 (Sept. 2000); U.S. Steel Mining, Co., 6 FMSHRC 2305, 2310 (Oct. 1984) (indicating
that a local MSHA office's past approval of operator's transportation methods does not
negate an S&S finding and noting that detrimental reliance may be considered in
mitigation of penalty). See also Mach Mining, LLC, 36 FMSHRC 2533, 2536-37(Sept.
2014).

38 FMSHRC Page 1726

Distribution: (Certified Return Receipt)
Daniel R. McIntyre, Esq., U.S. Department of Labor, Office of the Solicitor, Cesar E.
Chavez Memorial Building, 1244 Speer Blvd., Suite 216, Denver, CO 80204
Gary D. McCollum, Esq., White County Coal, LLC, 1146 Monarch Street, Lexington, KY
40513

38 FMSHRC Page 1727

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9950 / FAX: 202-434-9949

July 18, 2016
RBS, INC.,
Contestant,

CONTEST PROCEEDINGS
Docket No. WEVA 2014-0691-RM
Citation No. 8718116; 02/25/2014

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

Docket No. WEVA 2014-0693-RM
Citation No. 8718118; 02/25/2014
Docket No. WEVA 2014-0694-RM
Citation No. 8718119; 02/25/2014
Mine: Greystone Quarry and Plant
Mine ID: 46-00018

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2014-0817
A.C. No. 46-00018-346526

v.
RBS, INC.,
Respondent

Mine: Greystone Quarry and Plant
DECISION AND ORDER

Appearances:

Daniel Brechbuhl, Esq., U.S. Department of Labor, Office of the Solicitor,
Denver, CO for Petitioner;
Nicholas Scala, Esq., Law Office of Adele L. Abrams, P.C., Beltsville,
MD for Respondent.

Before:

Judge L. Zane Gill

This proceeding, under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (1994), involves six section 104(a) citations, 30 U.S.C. § 814(a), issued by the
Department of Labor's Mine Safety and Health Administration (“MSHA”) to RBS, Inc., at its
Greystone Quarry and Plant. RBS was assessed a total penalty of $24,886 for the six violations.
The Secretary and the Respondent settled one citation prior to trial: No. 8718115. The parties
presented testimony regarding the remaining five citations in South Charleston, West Virginia.

38 FMSHRC Page 1728

Greystone Quarry is a small limestone quarry near Lewisburg, West Virginia, with a pit
area and crushing and screening plants. (Tr. 193:23 – 194:24; 275:2-3) The pit contains a large
natural formation of “Greenbrier Limestone,” approximately 800 feet deep in some locations. (Tr.
275: 3-6) In the pit area, the operator strips a thin layer of overburden, consisting principally of
mud and shale, off of the limestone and then drills and shoots the limestone with explosives
leaving behind a “muck pile,” also called “shot rock,” on the face of the highwall where the
material was found. (Tr. 275:7-11) The operator then uses a haul truck to transport the muck pile
from the highwall to the crushing plant where it is crushed and classified into numerous different
products. (Tr. 275:22 – 276:2)
Inspector Brett Chiccarello was on site for two days in February, 2014, to perform a
regular inspection. (Tr. 10:6-8; 118:9-11) Chiccarello had been an inspector for four and a half
years and had conducted roughly 250 inspections. (Tr. 27:24-28:11) However, this was his first
time at this particular mine, as he was filling in for another inspector from his district field office.
(Tr. 10:15 - 11:1; 118:14-16) Chiccarello did not believe that his lack of familiarity with the
mine would pose any problem, since he normally inspected other limestone mines as a part of his
job. (Tr. 31:4-14) He also had prior experience as a superintendent at a surface coal mine, which
Chiccarello testified had similar equipment and highwalls as the Greystone Quarry. (Tr. 28:12 29:15; 31:14-17)
Chiccarello issued seven citations and orders during his inspection, four of which he
initially designated as unwarrantable failures to correct a health or safety hazard and the result of
reckless disregard. (Tr. 118:17 - 119:2) After meeting with his supervisor, Chiccarello vacated
one of those four citations entirely and deleted the unwarrantable failure designations for the
three remaining 104(d) orders. (Tr. 119:6-21) The level of negligence on those three citations
and orders was also reduced from “reckless disregard” to “high.” (Tr. 119:12-15).
In summary, and for the following reasons, I conclude that:
•

•
•

•

For Citation No. 8718116, RBS violated Section 56.14101(a)(2), injury was unlikely, the
injury could reasonably be expected to be a fatality, the violation was not significant and
substantial, one person was affected, and there was low negligence. I assess a penalty of
$460.00 for the violation.
For Citation Nos. 8718118 and 8718119, the Secretary failed to prove a violation of
Section 56.9314 and Section 56.320.
For Citation No. 8718120, RBS violated Section 56.14101(a)(2), injury was unlikely, the
injury could reasonably be expected to be fatal, the violation was not significant and
substantial, one person was affected, and there was low negligence. I assess a penalty of
$207.00 for the violation.
For Citation No. 8718121, RBS violated Section 56.14100(a), injury was unlikely, the
injury could reasonably be expected to be fatal, the violation was not significant and
substantial, one person was affected, and there was moderate negligence. I assess a
penalty of $460.00 for the violation.

38 FMSHRC Page 1729

Stipulations
The following stipulations were submitted in a joint prehearing report:
1. RBS was at all times relevant to these proceedings engaged in mining
activities at the Greystone Quarry and Plant in or near Maxwelton, West
Virginia.
2. RBS’s mining operations affect interstate commerce.
3. RBS is subject to the jurisdiction of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et. seq. (the “Mine Act”).
4. RBS is an “operator” as that word is defined in §3(d) of the Mine Act, 30
U.S.C. §803(d), at the Greystone Quarry and Plant (Federal Mine I.D. No.
46-00018) where the contested citations in these proceedings were issued.
5. The Administrative Law Judge has jurisdiction over these proceedings
pursuant to §105 of the Act.
6. MSHA Inspector Brett Chiccarello was acting as a duly authorized
representative of the United States Secretary of Labor, assigned to MSHA,
and was acting in his official capacity when conducting the inspection and
issuing the citations from docket at issue in these proceedings.
7. The citations at issue in these proceedings were properly served upon RBS
as required by the Act, and were properly contested by RBS.
8. The citations at issue in these proceedings may be admitted into evidence
by stipulation for the purpose of establishing their issuance. The
truthfulness or relevancy of any statements asserted therein is not
stipulated to by the parties.
9. RBS demonstrated good faith in abating the violations.
10. Without RBS admitting the propriety or reasonableness of the penalties
proposed herein, the penalties proposed by the Secretary in this case will
not affect the ability of RBS, Inc., to continue in business.
Jt. Pre-Hearing Report at 2.
Basic Legal Principles
Significant and Substantial
The citations in dispute and discussed below have been designated by the Secretary as
significant and substantial (“S&S”). A violation is properly designated S&S “if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div.,
Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). The question of whether a particular
violation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc.,
10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
S&S enhanced enforcement is applicable only to violations of mandatory health and safety
standards. Cyprus Emerald Res. Corp. v. FMSHRC, 195 F.3d 42, 45 (D.C. Cir. 1999). The
Secretary bears the burden of proving all elements of a citation by a preponderance of the

38 FMSHRC Page 1730

evidence. In re: Contests of Respirable Dust Sample Alteration Citations: Keystone Mining
Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), aff'd 151 F.3d 1096 (D.C. Cir. 1998); Jim Walter
Resources, Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ Zielinski) (“The Secretary's burden is
to prove the violations and related allegations, e.g., gravity and negligence, by a preponderance
of the evidence.”)
In Mathies Coal Co., the Commission established the standard for determining whether a
violation was S&S:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard - that is, a measure of
danger to safety - contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.
6 FMSHRC 1, 3-4 (Jan. 1984).
The third element of the Mathies test presents the most difficulty when determining
whether a violation is S&S. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985),
the Commission provided additional guidance: [T] he third element of the Mathies formula
“requires that the Secretary establish a reasonable likelihood that the hazard contributed to will
result in an event in which there is an injury.” (citing U.S. Steel Mining Co., Inc., 6 FMSHRC
1834, 1836 (Aug. 1984)). The Secretary, however, “need not prove a reasonable likelihood that
the violation itself will cause injury.” Cumberland Coal Res., 33 FMSHRC 2357, 2365 (Oct.
2011) (citing Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1281 (Oct.
2010)). Further, the Commission has found that “the absence of an injury-producing event when
a cited practice has occurred does not preclude a determination of S&S.” Id. (citing Elk Run Coal
Co., 27 FMSHRC 899, 906 (Dec. 2005)); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC
853, 857 (June 1996)). This evaluation is also made in consideration of the length of time that
the violative condition existed prior to the citation and the time it would have existed if normal
mining operations had continued. Elk Run Coal Co., 27 FMSHRC at 905;U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (July 1984).
Negligence
“Negligence” is not defined in the Mine Act. The Commission, has, however,
recognized that “[e]ach mandatory standard … carries with it an
accompanying duty of care to avoid violations of the standard, and
an operator's failure to meet the appropriate duty can lead to a
finding of negligence if a violation of the standard occurs.” A.H.
Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining
whether an operator met its duty of care, we consider what actions

38 FMSHRC Page 1731

would have been taken under the same circumstances by a
reasonably prudent person familiar with the mining industry, the
relevant facts, and the protective purpose of the regulation.See
generally U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984).
Jim Walter Res. Inc., 36 FMSHRC 1972, 1975 (Aug. 2014); Brody Mining, LLC, 37 FMSHRC
1687, 1702. (Aug. 2015); Spartan Mining Co., 30 FMSHRC 699, 708 (Aug. 2008). “Thus in
making a negligence determination, a Judge is not limited to an evaluation of allegedly
‘mitigating’ circumstances. Instead, the Judge may consider the totality of the circumstances
holistically.” Brody Mining, LLC, 37 FMSHRC at 1702.
Part 100 regulations “apply only to the proposal of penalties by MSHA and the Secretary
of Labor; under both Commission and court precedent, the regulations do not extend to the
independent Commission, and thus the MSHA regulations are not binding in any way in
Commission proceedings.” Id. at 1701-02 (citing Jim Walter Res. Inc., 36 FMSHRC at 1975
n.4; Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984), aff'g 5
FMSHRC 287 (Mar. 1983) (“[N]either the ALJ nor the Commission is bound by the Secretary's
proposed penalties … we find no basis upon which to conclude that [MSHA's Part 100 penalty
regulations] also govern the Commission.”)).
Although the Secretary's part 100 regulations are not binding on the Commission, the
Secretary's definitions of negligence in those provisions are illustrative. According to the
Secretary, negligence is “conduct, either by commission or omission, which falls below a
standard of care established under the Mine Act to protect miners against the risks of harm.” 30
C.F.R. § 100.3(d). “A mine operator is required […] to take steps necessary to correct or prevent
hazardous conditions or practices.” Id. “Reckless negligence is present when “[t]he operator
displayed conduct which exhibits the absence of the slightest degree of care.” Id. High
negligence is when “[t]he operator knew or should have known of the violative condition or
practice, and there are no mitigating circumstances.” Id. Moderate negligence is when “[t]he
operator knew or should have known of the violative condition or practice, but there are
mitigating circumstances.” Id. Low negligence is when “[t]he operator knew or should have
known of the violative condition or practice, but there are considerable mitigating
circumstances.” Id. No negligence is when “[t]he operator exercised diligence and could not
have known of the violative condition or practice.” Id.
Mitigation is something the operator does affirmatively, with knowledge of the potential
hazard being mitigated, that tends to reduce the likelihood of an injury to a miner. This includes
actions taken by the operator to prevent or correct hazardous conditions.
Gravity
The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is
often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC
1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March
1983), aff'd, 736 F.2d 1147 (7th Cir. 1984) and Youghiogheny & Ohio Coal Co., 9 FMSHRC
673, 681 (Apr. 1987)). The seriousness of a violation can be examined by looking at the

38 FMSHRC Page 1732

importance of the standard which was violated and the operator's conduct with respect to that
standard, in the context of the Mine Act's purpose of limiting violations and protecting the safety
and health of miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ
Fauver). The gravity analysis focuses on factors such as the likelihood of an injury, the severity
of an injury, and the number of miners potentially injured. The Commission has recognized that
the likelihood of injury is to be made assuming continued normal mining operations without
abatement of the violation. U.S. Steel Mining Co., 7 FMSHRC at 1130.
Penalty
The principles governing the authority of Commission administrative law judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i)
of the Mine Act delegates to the Commission and its judges the “authority to assess all civil
penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing
penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess
said penalty. 29 C.F.R. § 2700.28.
Under Section 110(i) of the Mine Act, the Commission is to consider the following when
assessing a civil penalty: (1) the operator's history of previous violations; (2) the appropriateness
of such penalty to the size of the business of the operator charged; (3) whether the operator was
negligent; (4) the effect on the operator's ability to continue in business; (5) the gravity of the
violation; and (6) the demonstrated good faith in abatement of the violative condition. 30 U.S.C
§ 820(i). Thus, the Commission alone is responsible for assessing final penalties. See Sellersburg
Stone Co. v. FMSHRC, 736 F.2d at 1151-52 (“[N]either the ALJ nor the Commission is bound
by the Secretary's proposed penalties … we find no basis upon which to conclude that [MSHA's
Part 100 penalty regulations] also govern the Commission.”); See American Coal Co., 35
FMSHRC 1774, 1819 (July 2013)(ALJ Zielinski).
The Commission has repeatedly held that substantial deviations from the Secretary's
proposed assessments must be adequately explained using the Section 110(i) criteria. E.g.,
Sellersburg Stone Co., 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May
2000); Cantera Green, 22 FMSHRC 616, 620-21 (May 2000) (citations omitted). A judge need
not make exhaustive findings but must provide an adequate explanation of how the findings
contributed to his or her penalty assessments. Cantera Green, 22 FMSHRC at 622.
Although all of the statutory penalty criteria must be considered, they need not be
assigned equal weight. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).
Generally speaking, the magnitude of the gravity of a violation and the degree of operator
negligence are important factors, especially for more serious violations for which substantial
penalties may be imposed. Musser Engineering, 32 FMSHRC at 1289 (judge justified in relying
on utmost gravity and gross negligence in imposing substantial penalty); Spartan Mining Co., 30
FMSHRC at 725 (appropriate for judge to raise a penalty significantly based upon findings of
extreme gravity and unwarrantable failure); Lopke Quarries, Inc., 23 FMSHRC at 713 (judge did
not abuse discretion by weighing the factors of negligence and gravity more heavily than the
other four statutory criteria). For example, violations involving “extreme gravity” and/or “gross

38 FMSHRC Page 1733

negligence,” or, as stated in the former section of 105(a), “an extraordinarily high degree of
negligence or gravity, or other unique aggravating circumstances,” may dictate higher penalty
assessments. See 30 C.F.R. Part 100 Final Rule, 72 Fed. Reg. 13592-01, 13,621.
In addition, Commission ALJs are obligated to explain any substantial divergence
between a penalty imposed and that proposed by the Secretary. As explained in Sellersburg
Stone Co., 5 FMSHRC at 293:
When … it is determined that penalties are appropriate which
substantially diverge from those originally proposed, it behooves
that Commission and its judges to provide a sufficient explanation
of the bases underlying the penalties assessed by the Commission.
If a sufficient explanation for the divergence is not provided, the
credibility of the administrative scheme providing for the increase
or lowering of penalties after contest may be jeopardized by an
appearance of arbitrariness.
Citation No. 8718116
Inspector Chiccarello issued Citation No. 8718116 on August 14, 2012. It alleges a
violation of 30 C.F.R. § 56.14101(a)(2) pursuant to Section 104(a) of the Mine Act. The
regulation states, “If equipped on self-propelled mobile equipment, parking brakes shall be
capable of holding the equipment with its typical load on the maximum grade it travels.” 30
C.F.R. § 56.14101(a)(2). Section 56.14101 is a mandatory safety standard. The citation alleges:
The parking brake on the Chevy 2500 pickup truck . . . did not work
when tested on a grade (7 degrees measured by an abney level). The
parking brake did not hold while going up the grade but did hold
while facing down the grade. The truck is a standard and exposes
miners working in the area to [the hazard of being] struck by [the
truck] that has the potential of being fatal. The truck is operated by
the superintendent daily on the mine site and he was aware the
parking brake did not function properly when parked on a grade
facing uphill.

Ex. S-4 at 1. The citation further alleges that an injury was reasonably likely, the injury could
reasonably be expected to result in a fatality, the violation was significant and substantial, one
person could be affected, and there was a high level of negligence. Ex. S-4 at 1-2.
Violation
Citation No. 8718116 was issued during a “manager run” in superintendent Jim Harless’s
pickup truck. On a typical “manager run” a foreman or superintendent provides the inspector
with a guided overview of the mine in a company vehicle at the start of the regular inspection.
(Tr. 32: 5-8) Chiccarello issued the citation after asking Harless to check the parking brake in his
pickup truck and subsequently discovering that the brake did not “hold” while the vehicle was
facing uphill. (Tr. 33:24 – 34:4)

38 FMSHRC Page 1734

According to Chiccarello, upon being asked to test the brakes, Harless immediately
responded that they did not work. (Tr. 32:9-11) Harless then tested the parking brake for the
inspector while the vehicle was facing uphill and downhill, on a grade of seven degrees. The
brake worked when the vehicle was facing downhill, but did not work in the opposite direction.
(Tr. 33:24 – 34:16; Ex. S-4 at 1) Chiccarello and Harless then took the vehicle to a garage at the
mine, and a mechanic promptly fixed the brake within 15 minutes. (Tr. 34:23 – 35:3; 263:1-2)
After ensuring that the brake now worked both uphill and downhill, Chiccarello terminated the
citation at 9:10 in the morning. (Tr. 35:4-12)
The Respondent argues that it did not violate section 56.14101(a)(2) because: (1) the
“standard does not state how the parking brakes . . . should be tested” to ensure compliance; and,
(2) the Secretary “did not show that the parking brake ‘did not hold’ when the vehicle was
parked in the manner in which the vehicle is parked during actual, day-to-day operations at the
mine.” Resp’t Br. 3, 5. According to the Respondent, its employees normally park the vehicle
with its transmission in a low gear, consistent with the guidance in the vehicle owner’s manual,
and, as a general policy at the mine, with the vehicle facing downhill and into a berm. Resp’t Br.
3, 5 (citing Tr. 197:15-22; 303:4-16). According to Harless, the brakes worked properly under
these conditions. (Tr. 198:7-22)
Section 56.14101(a)(2) is silent as to the question of whether a vehicle’s parking brakes
must be capable of holding the equipment both uphill and downhill, and regardless of whether or
not the equipment is placed in a low gear prior to testing. The standard is similarly silent as to
whether the parking brakes need only hold the equipment when the vehicle is parked in a manner
consistent with normal company policy. However, I find that the Secretary’s construction of
section 56.14101(a)(2) is more “consistent with Commission case law construing regulations to
further the protective purposes of the Mine Act.” Sunbelt Rentals, Inc., 38 FMSHRC ___, slip op.
at 7 n.16, No. VA 2013-275-M, (Jul. 12, 2016).
The standard is undoubtedly directed at the hazard of a vehicle rolling uncontrollably
down a grade, which can just as easily occur with a vehicle facing uphill instead of downhill.
Therefore, parking brakes must be capable of holding the vehicle in both directions. The
presence of a policy encouraging miners to park the vehicle in only one direction does not alter
that requirement, as there is no guarantee that this policy will be followed. (See Tr. 41:23 – 42:1)
Indeed, Chiccarello credibly testified that miners typically park their vehicles in the direction that
they are heading. (Tr. 40:2-6). As to RBS’s other parking practice, the fact that the vehicle could
remain parked while the transmission was in a low gear does not mean that the defective parking
brake complied with the standard’s requirement of being able to hold the vehicle by itself.
Chiccarello credibly testified that placing the transmission in a low gear could temporarily hold
the vehicle in place while masking problems with the parking brake. (Tr. 321:12-24) Since the
standard is aimed at the proper functioning of the parking brake, independent of other
mechanisms that may also hold the vehicle, the parking brake must be capable of holding the
vehicle whether or not it is in a low gear.
For these reasons, I find that the Secretary has established a violation of section
56.14101(a)(2).

38 FMSHRC Page 1735

Negligence
Chiccarello designated the citation as high negligence because, as a superintendent,
Harless was considered a part of mine management, and thus Harless’s acknowledgment that the
brake was not working meant that management was aware of the violation. Additionally, RBS
had been “cited on the exact pickup truck in a previous inspection for the same park[ing] brake.”
(Tr. 37:8-14) The Respondent argues that Chiccarello incorrectly recalled Harless’s statements.
Resp’t Br. 6. Harless testified that he only told Chiccarello that the brakes were not working after
Harless had already tested them for him during the inspection and learned of the defective
condition himself. (Tr. 196:7-15) Harless claimed that he was not aware of the defective brake
prior to that, because he had previously tested it under normal parking conditions at the mine,
and the brake functioned properly. (Tr. 197:4-14) The Respondent also argues that the Secretary
never introduced the prior alleged citation into evidence and that Chiccarello himself could not
remember the precise date or substance of the previous citation. Resp’t Br. 6-7 (citing Tr. 139:37; 140:13-21).
I find the level of negligence to be lower than alleged. I credit Harless’s testimony that he
was unaware of the defective parking brake before testing it for Chiccarello and that
Chiccarello’s belief that Harless acknowledged the defect even before testing it was mistaken.
The company’s normal testing procedure for the brake would not have alerted Harless to the
condition. RBS, as a policy, parked its vehicles downhill into a berm because management
believed that to be a much safer practice than parking the vehicle uphill and chocking it. (Tr.
197:15-22; 303:4-16) Harless also typically placed the transmission in a low gear before parking
the vehicle, which would have obscured the defective parking brake. (Tr. 198:14-22) While
Harless is held to a high standard of care as a superintendent at the mine, there are considerable
mitigating factors to explain why he was not aware of the violation. The fact that RBS had
violated the same standard with the same pickup truck before is relevant to my negligence
evaluation, but the single past violation alone does not establish the “aggravated lack of care”
associated with a “high negligence” finding. Brody Mining, LLC, 37 FMSHRC 1687, 1703 (Aug.
2015) (quoting Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998)).
Therefore, I find that the level of negligence was “moderate” instead of “high.”
Significant and Substantial and Gravity
The first prong of the Mathies test has been met. The defective brake also created a
discrete safety hazard that the vehicle could fail to remain parked on a grade and roll dangerously
toward a miner standing behind it, leading to a fatal injury. (Tr. 37:15-22) Thus, both the “fatal”
and “1 person affected” designations were appropriate, and the second and fourth Mathies prongs
have been satisfied. The remaining question is whether there was a reasonable likelihood that the
hazard would result in an injury. I find that there was not.
Because the parking brake worked when the vehicle was facing downhill (and
presumably on level ground as well), the brake would hold the vehicle in most circumstances,
even without the additional steps that the company took to prevent an accident. The company’s
policy of always parking vehicles downhill into a berm, with the transmission in a low gear,

38 FMSHRC Page 1736

further decreased the likelihood of injury, since the parking brake held the vehicle in each of
those scenarios.
The Secretary argues that any parking policy at the mine was not communicated to
Chiccarello and not implemented consistently during the inspection. Sec’y Br. 7. However,
Chiccarello did testify that Harless told him “he parks in a berm when he stops and never parks
uphill.” (Tr. 132:14-22) I conclude that Harless parked in this manner because of the company’s
policy, which was credibly described in detail by the company’s vice-president, William Snyder,
at the hearing. (Tr. 302:11 – 303:16) To the extent that Harless was inconsistent in following that
policy during the inspection, I conclude that he only violated that policy during the inspection in
order to comply with Chiccarello’s directions during the inspection. (Tr. 196:1-6)
Given these findings, the S&S designation will be deleted.
Penalty
The Secretary assessed the penalty for this citation at $7,578.00. Exhibit A of the
Secretary’s penalty petition credits RBS with 27,807 hours worked annually at the Greystone
Quarry. Ex. S-1. Based on this information, I consider RBS to be a relatively small operator.
Additionally, this was the first time that RBS was cited under this standard within the 15 months
prior to the inspection, although RBS had committed 37 violations in the prior 5 inspection days.
Ex. S-1. As I found above, RBS was moderately negligent. I find that the company demonstrated
good faith in the abatement of the violative condition. The parties stipulated to the fact that the
assessed penalty will not significantly affect RBS’s ability to stay in business. Jt. Pre-Hearing
Report. As to the gravity of the violation, I found the violation was not S&S, as it was unlikely
that the hazard contributed to by the violation would lead to injury. However, I found that if an
injury did occur, it could be reasonably expected to be fatal to one miner.
The Secretary failed to prove that the gravity of the violation or the degree of operator
negligence was as high as alleged. Therefore, I assess a penalty in the amount of $460.00.
Citations Nos. 8718118 and 8718119
On February 25, 2014, Inspector Chiccarello observed what he believed to be a
hazardous muckpile on a highwall in the pit area, which prompted him to issue three citations
alleging violations of the Secretary’s mandatory safety standards. One of the three citations (No.
8718117) was subsequently vacated for being duplicative of Citation No. 8718118. (Tr. 142:410)
Citation 8718118 alleges a violation of Section 56.9314, which requires that “muckpile
faces shall be trimmed to prevent hazards to persons.” 30 C.F.R. § 56.9314. The citation states:
Upon an inspection of the second level mine pit it was observed
that unconsolidated material had not been trimmed back and/or
sloped to the ang[le] of repose on the 50 foot high muck pile.
Employees working in and around this area were exposed to the

38 FMSHRC Page 1737

possibility of injury from the fall-of-material hazard. The mine
regularly operates a 9888 front-end loader in this area. The frontend loader was not working in the area at the time of the
inspection. I was informed the loader was working against the pile
earlier in the day and yesterday February 24th 2014. Mine
management indicated they do work out of the pile and he did not
consider it a hazard.
Ex. S-6 at 1. The citation further alleges that an injury was reasonably likely, the injury could
reasonably be expected to result in a fatality, the violation was significant and substantial, one
person could be affected, and there was a high level of negligence. Ex. S-6 at 1, 3. The citation
was terminated on March 12, 2014. The termination order states:
Upon inspection the muck pile in the 2nd level pit was knocked
down and no longer has material overhanging the pile. The
material is now sloped for easy access for the front end loader to
dig from the pile. Mine management has brought in a Hitachi
UH261 excavator and CAT OSK bull dozer to maintain the piles.
This order is terminated.
Ex. S-6 at 2.
Chiccarello also issued Citation No. 8718119 for an alleged violation of Section 56.3200.
The standard states:
Ground conditions that create a hazard to persons shall be taken
down or supported before other work or travel is permitted in the
affected area. Until corrective work is completed, the area shall be
posted with a warning against entry and, when left unattended, a
barrier shall be installed to impede unauthorized entry.
30 C.F.R. § 56.3200. The citation alleges:
Upon an inspection of the of the pit's 50 foot high wall (Muck Pile),
ground conditions were observed that created a hazard to mine
employees. Several large boulders had not been scaled down at the
southwest corner of the working face of the high wall. No warning
signs or barriers were provided to prevent entry in this area, until
this condition could be corrected. This hazard exposed the front
end loader operator and other haulage equipment in the area to the
possibility of fatal injury should the rocks fall. This area is where
active mining is being conducted. I was informed work was
conducted at the toe of the wall earlier in the day and yesterday
February 24, 2014. Mine management was aware of the condition
and did not think [it] was a hazard. He also stated they were
finished in the area and were going to shoot the high wall next to it

38 FMSHRC Page 1738

to bring down the remaining loose material that was hanging up
high on the muck pile. There was no catch berm or signs to warn
or prevent entry to the area.
Ex. S-8 at 1-2. The citation was terminated the same day, once a “sign and a berm were put in
place to warn and prevent miners from entering the affected area.” Ex. S-8 at 3. The citation
further alleges that an injury was reasonably likely, the injury could reasonably be expected to
result in a fatality, the violation was significant and substantial, one person could be affected, and
there was a high level of negligence. Ex. S-8 at 1-2, 4.
Violation
Chiccarello issued Citation Nos. 8718118 and 8718119 after observing a muckpile
consisting of several large rocks and boulders on the face of a highwall, hanging roughly 50 feet
overhead. (Tr. 49:4-9) Chiccarello felt that the condition posed a hazard due to the size of the
boulders and because they were not at an angle of repose. (Tr. 49:6-9; 55:12-24) He worried that
miners digging at the toe of the highwall could be crushed if mining activities or thawing caused
by fluctuating weather loosened the rocks. (Tr. 50:18-24) Citation No. 8718118 was issued for
the failure to trim the muck pile on the highwall, while Citation No. 8718119 was issued for the
failure to block off the area below and post a sign to prevent miners from entering the area,
where they could be struck by falling rocks. Exs. S-6 at 1; S-8 at 1-2.
Sections 56.3200 and 56.9314 require the Secretary to first prove that the cited ground
conditions and failure to trim the muckpile created a hazard to persons. I find that the Secretary
failed to meet this burden for both citations. Harless credibly testified that the Respondent had
previously scaled the highwall and tried to dislodge the cited rocks with an excavator in the
course of its normal mining operations, but that the rocks were tied to the highwall and did not
budge. (Tr. 201:19 – 202) Eventually, the rocks were blasted loose from the highwall in order to
abate one of the citations. (Tr. 205:24 – 206:1) Given the difficulty in removing the muck pile, I
do not find that the rocks posed a hazard of coming loose and falling on miners below. Cf.
Springfield Underground, Inc., 17 FMSHRC 613 (Apr. 1995) (ALJ Maurer) (finding that ground
conditions do not create a “hazard to persons” for the purpose of section 57.3200 if the allegedly
hazardous “material has to be pried off the rib with thousands of pounds of material force”).
It is understandable that the inspector may have believed there was a hazard from his
perspective, as the boulders do appear dangerously large, unstable, and capable of falling from
the highwall in the photographs he took prior to the citations’ abatement. See Ex. S-7 at 4-5.
Even Snyder, the company’s vice-president, believed that the rocks posed a hazard when he
viewed them from the bottom of the highwall. (Tr. 296:13-18) However, a closer vantage point
and further information about the company’s prior unsuccessful attempts to dislodge the rocks
convinced Snyder that there was no hazard, and I agree with his later assessment. (Tr. 296:19 –
298:24)
The Secretary argues that the Respondent admitted to Chiccarello during the inspection
that it did not have any way of reaching the muck pile with the equipment on site, and that there
was no excavator or bulldozer on site during the inspection which could have created a path to

38 FMSHRC Page 1739

the muckpile and trimmed it. Sec’y Br. 13. According to the Secretary’s theory, these facts led to
RBS failing to address the hazard, instead of any genuine belief that there was no hazard. Id. I
find that that the inspector simply misconstrued a comment from an RBS agent in reaching this
conclusion.
Harless denied ever telling Chiccarello or believing that it was unsafe to travel to the
muck pile. (Tr. 210:11-15) However, Chiccarello testified that when he sought an explanation for
why RBS had not trimmed the muck pile prior to the citation, he was told that the only way the
company could remove the rocks was by blasting them, as the company had no other way of
getting them down. (Tr. 159:1-3) It appears that the inspector interpreted this statement to mean
that the company had no way of safely reaching the muckpile without further blasting, when in
fact it meant that the company had no way of dislodging the rocks without blasting them.
Additionally, both Harless and Mark Drennen, the mine mechanic, credibly testified that there
was an excavator and bulldozer on site on the day of the inspection. (Tr. 204:9-12; 266:21 –
267:1)
To summarize, I find that RBS did have an excavator and bulldozer on site that could
safely access the muckpile and that the company did attempt to trim the muckpile with the
excavator prior to being cited, but that the rocks that Chiccarello identified as hazardous could
not be dislodged in this manner. Instead, the company had to blast the rocks to trim the muckpile
successfully. I cannot find the cited rocks to be hazardous given that they could only be pried
loose with explosive material instead of an excavator.
For these reasons, I find that the Secretary has failed to establish the fact of violation for
Citation Nos. 8718118 and 8718119.
Citation Nos. 8718120 and 8718121
On February 26, 2014, Chiccarello issued Citation Nos. 8718120 and 8718121 for
violations of Sections 56.14101(a)(2) and 56.14100(a), pursuant to Section 104(a) of the Mine
Act.
Sections 56.14101(a)(2) states, “If equipped on self-propelled mobile equipment, parking
brakes shall be capable of holding the equipment with its typical load on the maximum grade it
travels.” 30 C.F.R. § 56.14101(a)(2). Citation No. 8718120 alleges:
The Komatsu WA500, company #L-34, was put into use to load a
truck while the loader operator knew the park brake did not work.
He stated the park brake has not worked since 2/11/2014. The
preoperational checks showed the park brake was not functional on
seven different dates from 2/11/2014 through 2/19/2014. The

38 FMSHRC Page 1740

preoperational check list was never turned into mine management.1
This hazard exposes miners to injuries that have the potential of
being fatal. The loader is used throughout the mining operation to
load customer trucks.
Ex. S-10 at 1. The citation further alleges that an injury was reasonably likely, the injury could
reasonably be expected to result in a fatality, the violation was significant and substantial, one
person could be affected, and there was a low level of negligence. Ex. S-10 at 1.
Chiccarello also issued Citation No. 8718121 for an alleged violation of Section
56.14100(a), which states “Self-propelled mobile equipment to be used during a shift shall be
inspected by the equipment operator before being placed in operation on that shift.” 30 C.F.R. §
56.14100(a). The citation alleges:
The pre-operational check was not conducted for the Komatsu
WASOO, company #L-34, as stated by the loader operator. The
last preoperational check was conducted on 2/19/2014. That preop
check indicated the park brake did not work. The loader operator
[k]new this and said he had to load a truck and needed a loader and
used it. The loader operator knew he is required to do a preop
check but neglected to do so. Miners were exposed to a higher
degree of hazards and injuries due to the failure to observe, report,
and correct potential defects and hazards on the equipment.
Ex. S-12 at 1. The citation further alleges that an injury was reasonably likely, the injury could
reasonably be expected to result in a fatality, the violation was significant and substantial, one person
could be affected, and there was a low level of negligence. Ex. S-12 at 1.
Violation
These citations both concern a front-end loader that was improperly put back into service
by an RBS employee after being tagged out for repairs due to a defective parking brake. Citation
No. 8718120 was issued for the defect itself, while Citation No. 8718121 related to the loader
operator’s failure to conduct a pre-operation (“pre-op”) exam prior to using the loader. Exs. S-10
at 1, S-12 at 1.

1

Although a loader operator had apparently conducted pre-op exams on the defective
vehicle for nearly two weeks without turning in the documentation for those exams to
management, none of the post-hearing briefs reference this fact or explain its relevance to the
citation. Chiccarello suggested that this fact mitigates RBS’s negligence because management
would not have been aware of the defect if they never received the pre-op forms. (Tr. 96:12-19)
However, they were aware that the equipment was tagged out for a defect, and the
superintendent learned of the specific defect shortly before the company was cited. (Tr. 108:8-9;
109:5-11) The more pertinent issue is RBS’s negligence in allowing the defective vehicle to be
returned into service.

38 FMSHRC Page 1741

The loader had been tagged out due to the defect for at least a few days – possibly up to
two weeks prior to the citations – and was sitting unused at the mine during that period.2 (Tr.
214:3-8) It was not fixed immediately upon being tagged out because it was merely a spare
loader, and the mine mechanic, Mark Drennen, was attending to higher priority concerns on
other equipment. (Tr. 266:1-3) However, on the day of the inspection, one of the primary loaders
at the mine broke down, and a loader operator subsequently informed the mine superintendent,
Jim Harless, of the need to fix the parking brake on the spare loader so that he could continue
production. (Tr. 214:9-12) Harless told the operator that he would fetch the mechanic and return
within about five minutes, and he explicitly instructed the operator not to move the defective
loader until he returned. (Tr. 214:12-18)
Before Harless and Drennen returned, Chiccarello observed the loader operator parking
the spare loader in defiance of Harless’s instructions. (Tr. 87:4-8). Chiccarello questioned the
employee and discovered that the parking brake did not work and that he had not conducted a
pre-op check on the equipment before using it. (Tr. 87:9-13) When Chiccarello asked him why
he would do this, the loader operator responded, “[T]hat’s how we do it around here[;] I had to
get that customer truck out of here.” (Tr. 87:14-17) Chiccarello cited the company for the
defective brake and a failure to conduct a pre-op exam, and the citations were abated that day
once Drennen repaired the defect and the loader operator was task trained on how to fill out and
turn in pre-op exam sheets. Ex. S-10 at 1; S-12 at 1.
The Respondent argues that it complied with both standards because the loader was
tagged out. Since “equipment that has been ‘removed from service’ is not required to be defectfree” for the purposes of 56.14101(a)(2) and the pre-op exam requirements in 56.14100(a) only
apply to “equipment to be used during a shift,” the Respondent argues that its removal of the
loader from service with no intention to use it during a shift negates the fact of the violation for
both citations. Resp’t Br. 12-17. I disagree. The vehicle may have been removed from service
when it was tagged out, but it was very much in service for the purpose of section 56.14101(a)(2)
when the inspector observed it and issued a citation. I also find that the phrase “to be used during
a shift” in section 54.14100(a) encompasses situations in which the equipment is actually used
during a shift.
Since there is no dispute that the parking brake did not hold the vehicle and that the
loader operator failed to conduct a pre-op inspection prior to use of the vehicle, I find a violation
for both citations.

2

The record is unclear about the amount of time that the defective vehicle spent tagged
out of service. Harless suggested that it had been sitting out in the tag out area for a few days. (Tr.
214:4-8) Chiccarello speculated that the vehicle had been tagged out for a week or two. (Tr.
108:11-15) Chiccarello noted in passing that the fact that pre-ops were being documented
regularly on that vehicle during that timeframe raised his suspicion that an operator may have
been putting the defective vehicle back into service on other occasions. (Tr. 109:21 – 110:2) But,
the Secretary did not develop this argument any further at hearing or in his post-hearing brief.

38 FMSHRC Page 1742

Negligence
Chiccarello designated the negligence for both citations as “low” because the mine
superintendent had instructed the loader operator not to use the defective vehicle, miners were
trained to perform pre-op exams and not to use defective or tagged out equipment, and mine
management was not aware of the defect on the vehicle prior to the day of the inspection. (Tr.
95:4-13; 105:4-17; 177:1 – 178:12) The vehicle was parked in the designated tag-out area during
that period, so mine management would have known that the vehicle was defective in some way,
but they would not have expected the defective equipment to be used or to cause any problems.
(Tr. 109:5-11; 117:1-6)
The Respondent argues that the level of negligence should be lowered to “none” for both
citations in effect because the violations reflected the willful misconduct of a rogue employee
rather than any failure to exercise diligence on the part of the company. Resp’t Br. 15, 17.
However, the Commission has stated that “[t]he fact that a violation was committed by a nonsupervisory employee does not necessarily shield an operator from being deemed negligent.”
A.H. Smith Stone, Co. 5 FMSHRC 13, 15 (Jan. 1983). In assessing an operator’s negligence in
such cases, the Commission takes into account “such considerations as . . . the operator's
supervising, training, and disciplining of its employees to prevent violations of the standard in
issue.” Id. I find the employee’s statement, “That’s how we do it around here[;] I had to get that
customer truck out of here,” to be relevant to this analysis. (Tr. 87:15-17) Even if the employee
was entirely mistaken about the mine’s tendency to value production over safety, greater efforts
in training and supervision were required to make that clear to him.
Additionally, there is some indication that the failure to conduct a pre-op in Citation No.
8718121 was not an isolated incident, but instead indicated larger problems with the pre-op
practices at the mine. Multiple weeks’ worth of pre-op documentation, including for the pre-op
that originally identified the parking brake defect, was not turned in to management and was
instead left inside the spare loader. (Tr. 96:13-22) MSHA requires miners to notify management
when they identify a hazardous defect in a pre-op. (Tr. 178:20-23) The same breakdown in
training and supervision that presumably led to those repeated failures likely contributed to the
loader operator failing to conduct a pre-op before returning the vehicle into service.
I find that the “low negligence” designation was appropriate for Citation No 8718120.
However, I find that the level of negligence for Citation No. 8718120 was even greater than
originally designated, that is “moderate” instead of “low.”
Gravity and Significant and Substantial
Chiccarello found both violations to be significant and substantial and reasonably likely
to lead to a fatal injury to one miner. Ex. S-10, S-12. The defective parking brake for Citation No.
8718120 posed a discrete safety hazard of a large front-end loader striking or crushing a single
miner in its path, and such injury could reasonably be expected to be fatal to one person. (Tr.
92:19 – 93:4) Citation No. 8718121 presented the additional discrete safety hazard of the loader
operator failing to detect further defects on the vehicle without a pre-op inspection. (Tr. 104:19 –
105:3) Operating the vehicle with unidentified defects could likewise prove fatal to a single

38 FMSHRC Page 1743

miner. Therefore I agree with the “fatal” and “one person affected” designations for both
citations and find that three of the four Mathies prongs have been satisfied. The remaining
question is whether there was a reasonable likelihood of injury. I find there was not.
The primary consideration for this finding is the very limited amount of time that miners
were exposed to the vehicle’s hazard, even assuming continued mining operation. The defective
vehicle had been tagged out of service and was not used prior to the inspection in that defective
state, and the mine’s mechanic was already on his way to repair the vehicle when the inspector
cited it. (Tr. 214:9-18; 264:21 – 265:8) I do not find that an accident or injury was reasonably
likely in that small window of time between when the vehicle was put back into service and
when the mechanic arrived. I find that an injury resulting from this hazard was unlikely.
The S&S designations for Citation Nos. 8718120 and 8718121 will be deleted.
Penalty
The Secretary assessed the penalties for these two citation at $1,026.00 each. I have
found RBS to be a relatively small operator. Exhibit A of the Secretary’s penalty petition
indicates that RBS had an insignificant history of violating the cited mandatory safety standards
for these two citations, but a more considerable number of violations generally in the prior seven
inspection days. Ex. S-1. I found a low level of negligence for Citation No. 8718120, but a
“moderate” amount of negligence for Citation No. 8718121. I find that the company
demonstrated good faith in the abatement of the violative condition. The parties stipulated to the
fact that the assessed penalties will not significantly affect RBS’s ability to stay in business.3 Jt.
Pre-Hearing Report. As to the gravity of the violations, I found the violations were not S&S, as it
was unlikely that the hazards contributed to by the violations would lead to injury. However, I
found that if an injury did occur, it could be reasonably expected to be fatal to one miner.
The Secretary failed to prove that the gravity of the violations was as high as alleged.
However, the level of negligence for Citation No. 8718121 was higher than alleged. Therefore, I
assess a penalty in the amount of $207.00 for Citation No. 8718120 and $460.00 for Citation No.
8718121.
Citation No. 8718115
At the hearing, the parties agreed to settle Citation No. 8718115 for the originally
assessed amount of $100.00, without any modifications. I conclude that the proffered settlement
is appropriate under the criteria set forth in section 110(i) of the Act.

3

The parties argued extensively at hearing and in their post-hearing briefs about whether
an increased penalty would affect the operator’s ability to remain in business. Since I have not
increased the penalties on any of the citations and the parties have already stipulated to the
operator’s ability to pay the assessed penalties, there is no need to resolve this dispute.

38 FMSHRC Page 1744

ORDER
In view of the above findings, conclusions, and settlement approval, within 30 days of the
date of this decision the Secretary IS ORDERED to:


Modify Citation No. 8718116 to reduce the level of negligence from “high” to
“moderate,” to delete the “significant and substantial” designation, and to reduce the
likelihood of injury or illness from “reasonably likely” to “unlikely;”



Vacate Citation Nos. 8718118 and 8718119;



Modify Citation No. 8718120 to delete the “significant and substantial” designations and
to reduce the likelihood of injury from “reasonably likely” to “unlikely.”



Modify Citation No. 8718121 to delete the “significant and substantial” designations, to
reduce the likelihood of injury from “reasonably likely” to “unlikely,” and to raise the
level of negligence from “low” to “moderate.”

WHEREFORE, it is ORDERED that RBS pay a penalty of $1,227.00 within thirty (30)
days of the filing of this decision.4

/s/ L. Zane Gill
L. Zane Gill
Administrative Law Judge

Distribution:
Daniel T. Brechbuhl, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer Blvd.,
Suite 216, Denver, CO 80204
Nicholas W. Scala, Esq., Conn Marciel Carey PLLC, 5335 Wisconsin Avenue NW, Suite 660,
Washington, D.C. 20015
Adele L. Abrams, Esq., Law Office of Adele L. Abrams, P.C., 4740 Corridor Place, Suite D,
Beltsville, MD 20705

4

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

38 FMSHRC Page 1745

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

July 20, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. CENT 2016-0095-M
A.C. No. 41-04473-396139

v.
ARNOLD STONE INC,
Respondent.

Mine: Arnold Stone Inc - Pit #2
DECISION AND ORDER

Appearances:

Daniel Brechbuhl, Attorney, United States Department of Labor, Office of
the Solicitor, Denver, Colorado, for Petitioner;
Jules P. Slim, Attorney, Irving, Texas, for Respondent.

Before:

Judge Miller

This case is before me upon a petition for assessment of a civil penalty filed by the
Secretary of Labor pursuant to Section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(d) (“the Act”). This docket involves one citation issued on August 12,
2015, pursuant to Section 104(d)(1) of the Mine Act. The Secretary has proposed a penalty of
$63,000.00. The parties presented testimony and evidence regarding the citation at a hearing
held in Dallas, Texas, on June 1, 2016.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Arnold Stone Pit #2, also known as the Tolar mine, is a surface limestone mine
located in Hood County, Texas. The parties have stipulated that Arnold Stone at all relevant
times was engaged in mining activities and is an “operator” as defined in Section 3(d) of the
Mine Act, 30 U.S.C. § 803(d). Jt. Stips. ¶¶ 1, 3. The parties further stipulate that the mine is
subject to the provisions of the Mine Act and the jurisdiction of the Commission. Jt. Stips. ¶¶ 2,
4. The parties agree that the violation was abated in good faith. Jt. Stips. ¶ 6.
Citation No. 8858327 was issued for a violation of 30 C.F.R. § 56.14100(b) for a nonfunctioning safety lock-out on a skid-steer loader. The Secretary alleges that the violation was
reasonably likely to cause a permanently disabling injury, was significant and substantial, was
the result of reckless disregard for the safety of miners, and was an unwarrantable failure to
comply with the relevant standard. The Secretary issued a special assessment, proposing a
penalty of $63,000.00. For the reasons set forth below, I find that the Secretary has proven a

38 FMSHRC Page 1746

violation as alleged and that the violation was significant and substantial. However, I find that
the violation was the result of high negligence rather than reckless disregard and that an
unwarrantable failure has not been proven.
The findings of fact detailed below are based on the record as a whole and my careful
observation of the witnesses during their testimony. My credibility determinations are based in
part on my close observation of the witnesses’ demeanors and voice intonations. In resolving
any conflicts in testimony, I have taken into consideration the interests of the witnesses,
corroboration or the lack thereof, and consistencies and inconsistencies in each witness’s
testimony and among the testimonies of the various witnesses. Any failure to provide detail on
each witness’s testimony in this decision should not be deemed a failure on my 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).
MSHA’s Inspection
Inspector Tommy Fitzgerald has worked for MSHA for seven years. He received the
required training to become an inspector and receives periodic refresher training. He has
conducted several hundred mine inspections. Prior to becoming an inspector, he worked for
fifteen years in the mining industry, beginning as a haul truck driver and later working as a safety
and health coordinator.
On August 12, 2015, Fitzgerald traveled to the Tolar mine to conduct an inspection. The
mine, along with several other pits, is operated by Arnold Stone, Inc., which is owned by Mike
Arnold. Arnold visits the Tolar site approximately twice a month. Because Arnold was not on
site on August 12, Fitzgerald was accompanied during the inspection by Dennis Sorrells, the site
supervisor. Sorrells told the inspector that he was a lead man and the inspector took that to mean
that he was not a supervisor. However, after the testimony at hearing, it is clear that Sorrells was
the supervisor at the mine site.
As part of the inspection, Fitzgerald inspected a skid-steer loader being used to move
stone for chopping. He also observed a second, old skid-steer loader that had been taken apart
and was inoperable. Fitzgerald observed a miner operating the working loader and stopped him
to do a safety inspection. The loader was equipped with a safety lockout and safety switch.
When functioning, the safety lockout would prevent the machine from operating when the seat
belt was disconnected. The safety switch would allow the driver to activate the same function
when the seat belt was buckled. Fitzgerald explained that the purpose of the switch and lockout
is to protect the driver if he exits the machine while it is running. The configuration of the loader
is such that a driver entering or exiting the machine can easily hit the controls and activate the
machine if it is not locked out.
The miner operating the machine, Marcus Sanchez, informed Fitzgerald that the machine
often lurched forward when it was started up, even if the lockout switch was engaged and the
seat belt unbuckled. Fitzgerald observed Sanchez test the function by unbuckling his seat belt
and hitting the controls. The machine took off forward until Sanchez stopped it. The machine
also moved forward a couple of feet when Sanchez touched the controls while the lockout switch
was on. Fitzgerald believed the machine had the potential to injure the operator when he was

38 FMSHRC Page 1747

entering or exiting the machine, which he would do multiple times during a typical day. If
someone were standing in front of the machine when the operator exited, that person could also
be run into or run over and injured. Sanchez told Fitzgerald that workers were aware of the
defect and kept their distance from the machine, and that Sanchez turned off the engine when he
entered and exited it. While Arnold indicated that the area of the mine was flat, Fitzgerald
responded that certain areas where the machine operated were not a level grade.
Sanchez informed the inspector that there had been an intermittent problem with the
switch for several years, but that the defect had become permanent in the last few months. The
machine was used daily. Sorrells, the site supervisor, confirmed that the defect had existed for
approximately three years. He told Fitzgerald that the defect had been reported, but that
management had told the miners to continue using the machine because it was too expensive to
fix. However, no MSHA inspections in the past several years had detected the defect.
Records presented by Respondent at hearing indicate that the loader in question was
brought to the site from another Arnold Stone location, the Santos mine, in early 2014. Resp.
Ex. E. A miner from the Santos mine testified that he had regularly inspected the loader while it
was at Santos, and that it was in good condition with no defects in the lockout or switch when it
was brought to the Tolar site.
Sorrells testified that the skid-steer loader was subject to a pre-operation inspection
before it was used each day. Arnold confirmed that miners were trained to conduct inspections
before operating equipment. Fitzgerald examined the mine’s inspection records for the loader,
but there were only a few available on site, and none listed a defect. The mine produced further
inspection records at hearing, none of which noted a problem with the lockout.1 Resp. Ex D.
However, the records for the weeks leading up to the MSHA inspection indicate multiple other
issues, including oil leaks, hydraulic leaks, and forks in need of welding, and there is no
indication that any of those issues were corrected. Id. Sorrells blamed Sanchez for failing to
perform adequate inspections on the loader and terminated him from his employment for that
reason, in addition to previous reprimands.
The mine argues that the information Fitzgerald received from Sanchez and Sorrells
regarding the duration of the condition was inaccurate. Both men told the inspector at the time
of the inspection that the safety switch had been defective for several years and Sorrells gave the
inspector a written statement to that effect. But at hearing, Sorrells testified that his statement to
the inspector was in reference to the loader that had been taken out of service, which had had the
same defect. Sorrells testified that he had operated and inspected the cited machine a few weeks
prior to the inspection and had not noticed anything wrong, and that he did not know about the
condition until the inspection. Sorrells also claims that Sanchez was not truthful about the
duration of the defect because he wanted to retaliate for a recent suspension. However, Sorrells
made a written statement to MSHA at the time of the inspection in which he said that he had
been telling Mike Arnold about the skid-steer defect for approximately three years. Gov’t Ex. 5.
It is difficult to interpret this statement as referring to the out-of-service skid-steer. Additionally,
1

Arnold believed the lockout problem would have been marked as a brake problem on
the mine’s checklist, since the skid-steer did not have conventional brakes. No brake problems
were noted in the mine’s records.

38 FMSHRC Page 1748

Fitzgerald testified that the miners were standing near the operating loader when they talked
about the machine, so it was unlikely that they would have been talking about a different
machine. Sanchez was fired shortly after the inspection and did not testify at hearing, so could
not corroborate either side. Given the testimony presented and the demeanors of the witnesses, I
find Inspector Fitzgerald to be credible as well as thoughtful and thorough in his investigation.
Thus, I credit his testimony and find that the safety switch and lockout had been inoperable for at
least a year.
Sorrells notified Arnold about the citation after the inspection. Because there was no
shop on the premises at the mine, Arnold arranged for the machine to be taken to a mechanic
shop for repairs. The shop found that the problem was electrical and the mechanic was unable to
repair the loader at a reasonable cost. The mine was also operating with a reduced staff and had
a limited need for the loader. Arnold thus took the machine out of service.
A. The Violation
Based on his observations at the mine, Fitzgerald issued Citation No. 8858327 for a nonfunctioning safety lockout on the skid-steer loader. The Secretary alleges a violation of 30
C.F.R. § 56.14100(b), which requires that “Defects on any equipment, machinery, and tools that
affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.”
To prevail on a penalty petition, the Secretary bears the burden of proving an alleged violation
by a preponderance of evidence. RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept.
2000), aff’d 272 F.3d 590 (D.C. Cir. 2001); Jim Walter Res., Inc., 9 FMSHRC 903, 907 (May
1987).
To establish a violation of § 56.14100(b), the Secretary must prove that there was a
defect in the equipment, that the defect affected safety, and that it was not corrected in a timely
manner. See 30 C.F.R. § 56.14100(b). Here, the parties do not dispute that the safety lockout
was not working on the skid loader. The company agrees that the skid loader had a nonfunctioning safety lockout switch at the time of the inspection. This condition “affected safety,”
in that it was capable of causing or contributing to the cause of an injury-producing incident.
The purpose of the safety lockout switch is to prevent the skid loader from inadvertent motion
when the machine is manually started. It also prevents movement when the seat belt is not in
place. A moving, uncontrolled skid loader poses a danger to miners working or traveling near it.
The main issue regarding the violation here is whether the mine failed to correct the
defect “in a timely manner.” The Commission addressed the timeliness requirement of §
56.14100(b) in Lopke Quarries, Inc., 23 FMSHRC 705 (July 2001), which involved a similar
lockout device to the one in this case. The Commission determined that “[w]hether the operator
failed to correct the defect in a timely manner depends entirely on when the defect occurred and
when the operator knew or should have known of its existence.” Id. at 715. Here, the parties
presented conflicting evidence as to when the defect arose. Based on my review of the record, I
find that the defect had existed at least since the time the loader was first used at the mine,
approximately 18 months prior to the inspection. The mine argues that because the defective
lockout was not noted on pre-shift reports, there is no reason that the operator should have
known about it. However, site supervisor Sorrells testified that he frequently operated the
loader. While he denies having knowledge of the defective lockout prior to the inspection, I do

38 FMSHRC Page 1749

not credit his statement. I thus find that the operator knew of the defective lockout for at least 18
months but failed to repair it. Accordingly, the Secretary has proven a violation of §
56.14100(b).
B. Significant and Substantial
The inspector designated this violation as a “significant and substantial” (“S&S”)
violation, which is described in Section 104(d)(1) of the Mine Act as a violation “of such nature
as could significantly and substantially contribute to the cause and effect of a coal or other mine
safety or health hazard.” 30 U.S.C. § 814(d)(l). A violation is properly designated S&S “if
based upon the particular facts surrounding that violation, there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a reasonably serious nature.”
Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
In Mathies Coal Co., the Commission established the standard for determining whether a
violation is S&S:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor
must prove: (1) the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard—that is, a measure of danger to safety—
contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that
the injury in question will be of a reasonably serious nature.
6 FMSHRC 1, 3-4 (Jan. 1984).
The second element of the Mathies test must be evaluated with respect to specific
conditions in the mine. See, e.g., McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1991-92
(Aug. 2014) (finding that an accumulations violation contributed to a combustion hazard because
of the extensiveness of the accumulations of coal, their highly combustible makeup, and the
amount of methane liberated by the mine). With respect to the third element, the Commission
has explained that the Secretary must “establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6
FMSHRC 1834, 1836 (Aug. 1984). The Commission has made clear that the “Secretary need
not prove a reasonable likelihood that the violation itself will cause injury,” but rather that the
hazard created would cause an injury. Musser Eng’g, Inc., 32 FMSHRC 1257, 1280-81 (Oct.
2010); see also Cumberland Coal Res., LP, 33 FMSHRC 2357, 2365 (Oct. 2011). Finally, the
Commission has held that the S&S determination should be made assuming “continued normal
mining operations.” McCoy, 36 FMSHRC at 1990-91.
Here, the Secretary has proven a violation of § 56.14100(b), satisfying the first element.
The Secretary has also demonstrated a discrete safety hazard contributed to by the violation. The
safety switch is an important part of the skid loader in that it prevents the machine from
inadvertent movement, particularly as the operator is trying to exit or enter the machine. The
inspector explained that the machine was used to move stone, and that the operator would enter

38 FMSHRC Page 1750

and exit the machine frequently to perform that operation. He also believed the machine was
used in close proximity to other workers and in locations that were not completely flat. The
operator and those around him were in danger of being hit by the skid steer if it was moved
inadvertently. While employees at the mine were aware of the broken lockout and kept their
distance from the loader, it nevertheless remained a hazard. See Brody Mining, LLC, 37
FMSHRC 1687, 1691 (Aug. 2015) The second Mathies element is therefore satisfied. A miner
traveling on foot who was hit by the skid loader would be reasonably likely to be seriously
injured or killed. Thus, the Secretary has proven the third and fourth elements of the Mathies
test. Based on the testimony of the inspector and considering the Mathies criteria, I find that the
violation was S&S.
C. Negligence and Unwarrantable Failure
In addressing the mine’s negligence, it is first necessary to determine whether Dennis
Sorrells was an agent of Arnold Stone. I find that Sorrells was a manager and his negligence is
therefore imputable to the operator for purposes of penalty assessment and the unwarrantable
failure determination. Nelson Quarries, Inc., 31 FMSHRC 318, 328 (Mar. 2009); Whayne
Supply Co., 19 FMSHRC 447, 450 (Mar. 1997); Rochester & Pittsburgh Coal Co., 13 FMSHRC
189, 194 (Feb. 1991). The Mine Act defines an “agent” as “any person charged with
responsibility for the operation of all or a part of a coal or other mine or the supervision of the
miners in a coal or other mine.” 30 U.S.C. § 802(e). In analyzing whether an employee is an
agent of an operator, the Commission has considered factors including “the ability of the
employee to direct the workforce, whether the employee holds himself out as a person with
supervisory responsibilities and is so regarded by other miners, and whether the actions of the
employee in directing the workforce have an impact on health and safety at the mine.” Nelson
Quarries, 31 FMSHRC at 328.
Here, Sorrells was the person in charge at the Tolar site. Arnold testified that Sorrells
was his “eyes and ears” at Tolar when he was not at the site, which was most of the time.
Sorrells had responsibility for hiring, firing, and training miners at the site, though Arnold had
the final word in questionable cases. While Sorrells did not have the authority to call a mechanic
to repair equipment, he addressed basic safety and maintenance issues at the mine. For more
complex repairs, it was his responsibility to inform Arnold of the issue. Although Sorrells told
the inspector that he did not direct work at the mine but rather was told what to do each day, he
was nevertheless the person in charge at the mine.
The Secretary categorizes negligence into five categories, from “no negligence” to
“reckless disregard.” 30 C.F.R. § 100.3, Table X. The Commission has emphasized, however,
that these regulations apply to the Secretary’s proposal of penalties only, and are not binding on
the Commission. Brody Mining, LLC, 37 FMSHRC 1687, 1701 (Aug. 2015); see also
Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984). The Commission
instead directs its judges to “evaluate negligence from the starting point of a traditional
negligence analysis . . . . Under such an analysis, an operator is negligent if it fails to meet the
requisite standard of care—a standard of care that is high under the Mine Act.” Brody, 37
FMSHRC at 1702. In evaluating an operator’s negligence, the judge should consider “what
actions would have been taken under the same circumstances by a reasonably prudent person
familiar with the mining industry, the relevant facts, and the protective purpose of the

38 FMSHRC Page 1751

regulation.” Jim Walter Res., 36 FMSHRC 1972, 1975 (Aug. 2014). High negligence is
characterized by “an aggravated lack of care that is more than ordinary negligence.” Id. at 1703.
Here, the inspector initially designated the citation as high negligence, but later modified
the designation to reckless disregard. The Secretary also argues that the violation was the result
of the operator’s unwarrantable failure to comply with a mandatory standard. Based upon my
review of all of the evidence, I find that the mine did not meet the required standard of care and
therefore the operator’s negligence should be designated as high. However, I cannot find that the
violation was unwarrantable.
The unwarrantable failure terminology is taken from Section 104(d) of the Act, 30 U.S.C.
§ 814(d). The Commission has explained that unwarrantable failure is “aggravated conduct
constituting more than ordinary negligence. [It] is characterized by conduct described as
‘reckless disregard,’ ‘intentional misconduct,’ ‘indifference,’ or a ‘serious lack of reasonable
care.’” Consol. Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) (citations omitted) (quoting Emery
Mining Corp., 9 FMSHRC 1997, 2001-04 (Dec. 1987); Rochester & Pittsburgh Coal Co., 13
FMSHRC 189, 194 (Feb. 1991)). In determining whether a violation is an unwarrantable failure,
the Commission has instructed its judges to consider all of the relevant facts and circumstances
in the case and determine whether there are any aggravating or mitigating factors. Id.
Aggravating factors to be considered include
the length of time that the violation has existed, the extent of the
violative condition, whether the operator has been placed on notice
that greater efforts were necessary for compliance, the operator’s
efforts in abating the violative condition, whether the violation was
obvious or posed a high degree of danger, and the operator’s
knowledge of the existence of the violation.
IO Coal Co., 31 FMSHRC 1346, 1352 (Dec. 2009); see also Consol., 22 FMSHRC at 353.
Based upon the following analysis of the factors enumerated by the Commission, I find that there
is inadequate evidence to support a finding of unwarrantable failure in this case.
Length of time that the violation has existed. In IO Coal Co., the Commission
emphasized that the length of time that the violative condition existed is a “necessary element”
of the unwarrantable failure analysis. 31 FMSHRC at 1352. The condition in IO Coal had
existed for four or five days, and the Commission remanded to the judge to consider whether
such a duration was an aggravating factor. Id. However, the Commission noted that analysis of
the duration factor may be affected by the operator’s good-faith, reasonable belief that the
condition did not exist. Id. at 1352-53. Even where the record does not permit the judge to make
a conclusive finding as to the duration of the condition, “imperfect evidence of duration in the
record should be taken into account.” Coal River Mining, LLC, 32 FMSHRC 82, 93 (Feb. 2010).
Here, there is some dispute as to how long the condition existed prior to the inspection.
The skid loader had been at the mine for approximately 18 months, and the information gathered
by the inspector indicated that the skid loader had a broken safety lockout the entire time. The
inspector was also told that the lockout had been inoperable off and on for three years. The

38 FMSHRC Page 1752

mine, however, claims that the lockout only began malfunctioning shortly before the inspection.
The site supervisor, Sorrells, testified that he had operated the machine a few weeks before the
inspection and the lockout had been working. The mine also notes that the lockout had not been
marked as defective in pre-shift inspection reports or cited in previous MSHA inspections. I
credit the inspector’s findings and agree that the lockout had been inoperable on an intermittent
basis for at least the 18 months that the skid loader was at the Tolar pit.
Extent of the violative condition. The extent factor is intended to “account for the
magnitude or scope of the violation” in the unwarrantable failure analysis. Dawes Rigging &
Crane Rental, 36 FMSHRC 3075, 3079 (Dec. 2014). Facts relevant to the extent of the
condition include the size of the affected area and the number of persons affected. Id. at 307980. In Dawes, the Commission found that where only one miner endangered himself by walking
under a suspended load, the violation was not extensive. Id. at 3080. Here, only one miner
operated the skid loader at a time and there were only a handful of people working around the
machine at any given time. Therefore the violation was not extensive.
Whether the operator has been placed on notice that greater efforts were necessary for
compliance. The Commission has explained that repeated similar violations and past discussions
with MSHA about a problem at the mine may serve to put an operator on notice that increased
efforts to comply are necessary. IO Coal, 31 FMSHRC at 1353-54. The prior violations need
not have been the result of unwarrantable failure, nor must they have involved precisely the same
activity, cited standard, or area of the mine. Black Beauty Coal Co. v. FMSHRC, 703 F.3d 553,
561 (D.C. Cir. 2012); Consol. Coal Co., 35 FMSHRC 2326, 2344 (Aug. 2013); IO Coal, 31
FMSHRC at 1353-54. In the instant case, previous inspectors had not cited the faulty safety
switch or given the mine any other indication that it was a problem. There is no basis, therefore,
to find that the mine was placed on notice that greater efforts were required.
Operator’s efforts in abating the violative condition. Abatement efforts relevant to the
unwarrantable failure analysis are those made prior to the issuance of the citation or order.
Consol., 35 FMSHRC at 2342; IO Coal, 31 FMSHRC at 1356. Where the operator has notice of
a condition, such as through previous violations or conversations with an inspector, a failure to
remedy the problem weighs in favor of an unwarrantable failure finding. See Consol., 35
FMSHRC at 2343. However, an operator’s reasonable, good-faith belief that the condition did
not exist may excuse a lack of abatement efforts. See IO Coal, 31 FMSHRC at 1356.
Here, the operator did nothing to mitigate the condition of the defective lockout.
However, the person with authority to fix the lockout, Mike Arnold, was not aware of the
problem. The lockout was not noted on pre-operational check lists. Sorrells told the inspector he
had informed Arnold about the problem, but at hearing, Arnold credibly testified that he did not
know about the defect. Further, Sorrells’s testimony suggests that he believed a previous
supervisor at the mine had notified Arnold about the defect, so he did not need to do so. Because
the person with authority to repair the defect was not aware of it, I find that the lack of abatement
efforts was not a significant aggravating factor in this case.
Whether the violation posed a high degree of danger. A high degree of danger posed by
a violation can be an aggravating factor that supports an unwarrantable failure finding. IO Coal,

38 FMSHRC Page 1753

31 FMSHRC at 1355-56. In some cases, the degree of danger may be “so severe that, by itself, it
warrants a finding of unwarrantable failure. However, the converse of this proposition—that the
absence of significant danger precludes a finding of unwarrantable failure—is not true.”
Manalapan Mining Co., 35 FMSHRC 289, 294 (Feb. 2013). The degree of danger increases
when there is a chronic problem that is ignored. Consol., 35 FMSHRC at 2343. As discussed in
the S&S analysis above, I find that the inoperable safety lockout was reasonably likely to result
in a serious injury. The equipment operator could easily have inadvertently hit the controls in
the tight space, especially when climbing out of the machine, and moved the machine without
warning. The driver of the skid loader or someone on the ground nearby could have been
injured. While the violation was S&S, I do not find the degree of danger to be especially high
given the small number of miners working at the mine.
Whether the violation was obvious. The obviousness of the violative condition is an
important factor in the unwarrantable failure analysis. IO Coal, 31 FMSHRC at 1356. Lack of
obviousness can be a mitigating factor in the analysis, but not when actions of the operator are
the reason that the condition was not obvious. Consol., 35 FMSHRC at 2343 (Aug. 2013)
(upholding judge’s unwarrantable failure finding where the operator deliberately ignored testing
requirements in the mine’s ventilation plan). In this case, the violation was obvious to the miners
who operated the machine. Instead of having the switch repaired, they learned to work carefully
around it to avoid injury. I find that the violation was also obvious to the site supervisor,
Sorrells, who regularly worked around the machine.
Operator’s knowledge of the existence of the violation. In IO Coal, the Commission
reiterated the well-settled law that an operator’s knowledge of the existence of a violation may
be established not only by demonstrating actual knowledge, but also by showing that the
operator “reasonably should have known of the violative condition.” 31 FMSHRC at 1356-57.
As discussed above, Sorrells, an agent of Arnold Stone, knew that the lockout was broken. I also
find that Mike Arnold should have known about the broken lockout, given that it had been
broken for at least 18 months, he arranged to transport the loader to the Tolar site after another
loader had a similar defect, and he visited the mine several times a month.
While aggravating factors were present in that the condition existed for 18 months, was
obvious, and an agent of the operator knew about it, there are a number of factors that weigh
against a finding of unwarrantable failure. The length of time that the loader remained in an
unsafe condition is certainly a problem, but is addressed by the finding of high negligence. The
extent of the violation was limited and it did not pose a high degree of danger. Further, the
person with authority to repair the defect, Mike Arnold, was not aware of it, and had no notice
that greater efforts towards compliance were necessary. Based upon my review and
consideration of all of the factors, I find that the negligence of the operator was high, but I do not
find the violation to be a result of an unwarrantable failure to comply.
II. PENALTY
The principles governing the authority of Commission Administrative Law Judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i)
of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties

38 FMSHRC Page 1754

provided in [the] Act.” 30 U.S.C. § 820(i). The duty of proposing penalties is delegated to the
Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it
intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29
C.F.R. § 2700.28. The Act requires that in assessing civil monetary penalties, the judge must
consider six statutory penalty criteria: the operator’s history of violations, its size, whether the
operator was negligent, the effect on the operator’s ability to continue in business, the gravity of
the violation, and whether the violation was abated in good faith. 30 U.S.C. § 820(i). In keeping
with this statutory requirement, the Commission has held that judges must make findings of fact
on the statutory penalty criteria. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd,
736 F.2d 1147 (7th Cir. 1984). Once these findings have been made, a judge’s penalty
assessment for a particular violation is an exercise of discretion “bounded by proper
consideration of the statutory criteria and the deterrent purposes underlying the Act’s penalty
scheme.” Id. at 294; see also Cantera Green, 22 FMSHRC 616, 620 (May 2000).
As discussed above, I affirm the inspector’s findings with regard to gravity. I find the
negligence to be high rather than “reckless disregard” as it was assessed. There was limited
evidence as to the size of the mine, but the operator asserts that it is a family-operated business
with a number of pits located in Texas. The mine has little history of violations. Respondent
indicated that it recently emerged from bankruptcy and is paying debts according to the
bankruptcy plan, and that paying a penalty as high as suggested by the Secretary would therefore
be a hardship for the mine. The parties stipulated that the citation was abated in good faith.
After a careful review of the record and considering all of the penalty criteria, I assess a penalty
of $10,000.00.
III. ORDER
Respondent is hereby ORDERED to pay the Secretary of Labor the sum of $10,000.00
within 30 days of the date of this decision for the violation at issue here.

/s/ Margaret A. Miller
Margaret A. Miller
Administrative Law Judge

Distribution: (U.S. First Class Certified Mail)
Daniel Brechbuhl, Office of the Solicitor, U.S. Department of Labor, Cesar E. Chavez Memorial
Building, 1244 Speer Boulevard, Suite 216, Denver, CO 80204
Jules Slim, Attorney, P.O. Box 140307, Irving, TX 75014

38 FMSHRC Page 1755

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

July 22, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

CIVIL PENALTY PROCEEDING
Docket No. KENT 2014-706
A.C. No. 15-18363-356746

Petitioner,
v.
KENTUCKY FUEL CORPORATION,
Mine: Bevins Branch Surface Mine
Respondent.
DECISION AND ORDER
Appearances:

C. Renita Hollins, Esq., U.S. Department of Labor, Office of the Solicitor,
Nashville, TN, for the Secretary
James F. Bowman, Representative, Midway, WV, for the Respondent

Before:
I.

Judge Steele
Statement of the Case

This proceeding is before me upon a petition for assessment of civil penalties under §
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). Following an
inspection of Respondent’s mine, an MSHA inspector issued Citation No. 8195668 for
Respondent’s failure to safely strip the highwall in violation of 30 C.F.R. § 77.1001.
Additionally, the inspector issued Citation No. 8195670 for the Respondent’s failure to follow a
ground control plan for the safe control of a highwall in violation of 30 C.F.R. § 77.1000. A
hearing was held in South Charleston, WV on March 14, 2016. At hearing, the Respondent
contested both citations, all of the designations for the citations, and the special assessments.
This Court affirms Citation Nos. 8195668 and 8195670 in all respects, including the
special assessment penalties totaling $15,400.00.
II.

Procedural History

On March 17, 2014, a 104(d)(1) citation and a 104(a) citation were issued at Kentucky
Fuel Corporation (“Respondent” or “Kentucky Fuel”), Bevins Branch Surface Mine. On March
14, 2016, a hearing was held in South Charleston, WV. After the hearing, the parties submitted
Post Hearing Briefs, which have been fully considered.

38 FMSHRC Page 1756

III.

Stipulations

The parties submitted stipulations in their prehearing reports. The following stipulations
were submitted individually by both parties and will be treated as joint stipulations.
1.

Jurisdiction exists because Kentucky Fuel is an operator of a mine as defined in section
3(d) of the Mine Act, 30 U.S.C. § 802(D), and the products of the subject mine entered
into the stream of commerce or the operations or products thereof affected commerce
within the meaning and scope of section 4 of the Mine Act, 30 U.S.C. § 803.

2.

The administrative law judge has authority to hear this case and issue a decision.

3.

The proposed penalty will not affect Kentucky Fuel Corporation’s ability to remain in
business.1

4.

A copy of Citations 8195668 and 8195670 were served on Kentucky Fuel Corporation,
by a duly authorized representative of the Secretary.

5.

Respondent operates Bevins Branch Surface mine, Mine Identification Number 1518363.

6.

Bevins Branch Surface Mine produced 366,025 tons of coal in 2013.

7.

Respondent abated the citations involved herein in a timely manner and in good faith.

Sec’y Prehearing Rep. 1-2; Resp’t Prehearing Rep. 3-4.2
IV.

Findings of Fact and Conclusions of Law

The findings of fact are based on the record as a whole. In resolving any conflicts in the
testimony, I have 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, I have also relied on his demeanor. Any
failure to provide detail as to each witness’s testimony is not to be deemed a failure on my 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).
On March 17, 2014, MSHA Inspector Brian K. Robinson arrived at Bevins Branch
Surface Mine and notified the supervisor and foreman that he was on the job site to perform an
inspection. (Tr. 27-28). While at the mine, Inspector Robinson drove into the mid-level right side
contour pit area and made visual observation of the site. (Tr. 28-29). While there, he observed
1

This stipulation was agreed to by both parties in their prehearing reports. Sec’y
Prehearing Rep. 1-2; Resp’t Prehearing Rep. 3-4.1 Thus, the error in the transcript suggesting the
proposed penalty might affect Kentucky Fuel’s ability to remain in business will be disregarded.
(See Tr. 5).
2

Stipulations will hereinafter be cited to as Stip. followed by the stipulation number.

38 FMSHRC Page 1757

large boulders that were loose at the top of the highwall, in violation of § 77.1001. (Tr. 29). The
wall was measured to be 70 feet at the highest point by a Trupulse Rangefinder, which Inspector
Robinson calibrated and has used frequently in the past. (Tr. 45). Inspector Robinson further
testified that two 993K end loaders were loading the 777 model rock trucks from underneath the
highwall. (Tr. 29, 31). The end loaders had a reach of 30ft. (Tr. 66). The rock trucks transported
material to a different location, where the trucks were emptied, to uncover the mined coal. (Tr.
29).
Subsequently, Inspector Robinson issued Citation No. 8195668 for a violation of
§
77.1001. (Tr. 30). While conducting his inspection, Robinson spoke with a foreman, William
Bevins, who indicated that he knew the inspector would not approve of the highwall condition
and that he was planning to send over an excavator to fix the condition. (Tr. 38). This violation
was designated as Significant and Substantial (“S&S”) and reasonably likely to cause a
permanently disabling injury to one miner, with high negligence.3 (Tr. 39-41). A special
assessment was also issued for this violation. (Sec’y Ex-P1). 4 This condition was terminated by
the loose material being broken down with a bulldozer and an excavator. (Tr. 43).
After issuing Citation No. 8195668, Inspector Robinson continued his inspection by
travelling to the lower active coal pit. (GX-P2, P3). There he saw the highwalls were shattered
and cracked, exposing rocks that were not properly scaled.5 (Tr. 93-94, 107-09). This condition
was visible along the entire 300-foot length of the wall, and Inspector Robinson believed this
created a risk of crushing injuries to miners. (Tr. 107-09; GX-P2, P3). Inspector Robinson
testified that he observed miners on foot and miners working in end loaders directly next to the
highwall. (Tr. 105-06). Inspector Robinson estimated this condition to have existed three to four
days because of the extensive length of the condition across the wall. (Tr. 110-11).
Inspector Robinson also testified that he had a discussion with the only certified blaster at
the mine, Josh Matheny.6 (Tr. 90-92). During this conversation, Inspector Robinson asked
Matheny if he knew that the wall was supposed to be pre-split according to the ground control
plan. (Tr. 91-92; PX-6). According to Inspector Robinson, Matheny conceded that everyone
knew that the wall needed to be pre-split, but that there were insufficient ammonium nitrate and
fuel oil (ANFO) and gas bags for pre-splitting. (Tr. 92). Further, Inspector Robinson testified that
3

The Secretary’s Post Hearing Brief and Citation No. 8195668 do not indicate this
citation has an unwarrantable failure designation. Therefore, the Inspector’s reference in his
testimony to this citation being assessed with an unwarrantable failure and the Respondent’s Post
Hearing Brief opposing an unwarrantable failure designation appear to be in error. (See Tr. 40).
4

The Secretary’s exhibits will hereinafter be designated as GX followed by the exhibit
number, which in this case is P followed by a number.
5

The conditions for this citation were related to Citation No. 8195669 (not at issue in this
proceeding), which involved the same 300-foot highwall. (Tr. 93).
6

Inspector Robinson first testified that the blaster he spoke with was John Matheny, but
subsequently stated that the blaster’s name was Josh Matheny, and Josh was used in the rest of
the testimony. (Tr. 91).

38 FMSHRC Page 1758

the ground control plan requires “[i]f highwalls are pre-split the slope will be greater than ninety
degrees. If highwalls are not pre-split the slope will be one-hundred and ten degrees for cast
blasting.” (Tr. 100; GX-P6). No evidence was brought forward that cast blasting was used at the
mine, and Inspector Robinson testified that “it was obvious [the highwall] was 90-plus” degrees.
(Tr. 119).
As a result of this conversation with Matheny, his observations, and the ground control
plan requirements, Inspector Robinson issued Citation No. 8195670 for failing to follow the
ground control plan in violation of § 77.1000. (Tr. 91-92). This violation was designated
Significant and Substantial (“S&S”), reasonably likely to cause a permanently disabling injury to
one miner, with high negligence and an unwarrantable failure. (Tr. 106-12). This violation was
also specially assessed because Inspector Robinson wanted to “get [Respondent’s] attention”, so
that it would comply with highwall safety requirements. (Tr. 113-14).
Mark Wooten, a licensed professional engineer for Premium Coal Company, Inc,
(“Premium Coal”) testified about his knowledge of ground control plans.7 (Tr. 148). He testified
that he worked with Mr. Smith, who created the ground control plan at issue.8 (Tr. 149). After
reviewing the ground control plan, which has a blasting plan, Wooten testified that it wouldn’t be
possible to know whether to pre-split a highwall until after the production shots. (Tr. 159-60). He
testified that pre-splitting was not required because on the blasting plan in the notes section it
states that “[p]re-split holes are to be utilized as conditions dictate.” (Tr. 158-60; GX-P6, 9).
Additionally, Wooten testified that the blasting plan indicates the first step in production shot
blasting was to pre-split. (Tr. 170; See GX-P5). Wooten testified that the blasting plan shows an
example of the order in which production shots and pre-splitting may occur. (Tr. 179-181). He
stated that the lines were not necessarily shot sequentially; however, the blasting plan was
annotated sequentially, and “pre-split line” was labeled “1st.” (Tr. 170-72; See GX-P6). He also
testified that he was unaware if cast blasting was ever used at Bevins Branch Surface Mine as an
alternative to production shot blasting. (173-74).
Wooten further testified that a jagged wall with protruding rocks does not necessarily
indicate a highwall is unsafe. (Tr. 175). But Wooten did agree in his testimony that the ground
control plan was developed to ensure safety while blasting. (Tr. 178).
Mark Huffman, the Director of Health Safety and Human Resources for Bluestone
Industries, worked at Kentucky Fuel in March 2014, when the citations in this proceeding were
issued.9 (Tr. 181-84). He testified that pre-split shots could not be blasted after the production
shots, and that cast blasting was not used at the time the citation was issued. (Tr. 198). When the
citations were issued on March 17, 2014, he was not at Bevins Branch Surface Mine, and he did
7

In January 2015, Wooten began working for Premium Coal, which was a subsidiary of
the company that owns Kentucky Fuel Corporation and Bevins Branch Surface Mine. (Tr. 163).
8

A ground control plan must be created by an operator and submitted to MSHA for
acknowledgement. (Tr. 150-51).
9

Bluestone Industries was an affiliated company of Kentucky Fuel Corporation. (Tr.

181).

38 FMSHRC Page 1759

not view the highwall until one or two days later. (Tr. 212-13). At that time, he believed the wall
involved in Citation No. 8195668 to be approximately 50 feet high. (Tr. 191).
V.

Contentions of the Parties

The Secretary contends that Respondent violated § 77.1001 in Citation No. 8195668 and
that the citation was S&S, reasonably likely to result in a permanently disabling injury to one
miner, and the operator acted with high negligence. (Sec’y Br. at 2). The Respondent argues that
it did not violate § 77.1001 and contests all of the Secretary’s designations and the special
assessment. (Resp’t Br. at 5-11). Respondent argues it did not violate § 77.1001 because there
was no highwall, instead only shot overburden, and there was a bench, which it argues indicates
that the wall was properly stripped for safety. (Resp’t Br. at 5-8). Additionally, Respondent
contends that the violation was not S&S because the boulders were not likely to reach the miners
working in end loaders below and cause an injury. (Id. at 9-10). Respondent also argues that it
was not highly negligent because the foreman’s comments indicating he was directing a rock
truck and excavator to fix the condition was not an admittance of aggravated conduct, but rather
an additional precaution. (Id. at 10).
Further, the Secretary contends that Respondent violated § 77.1000 in Citation No.
8195670 and that the citation was S&S, reasonably likely to result in a permanently disabling
injury to one miner, with an unwarrantable failure and high negligence. (Sec’y Br. at 3).
Respondent argues that it did not violate § 77.1000 and disagrees with all of the designations and
the special assessment. (Resp’t Br. 11-16). Respondent contends that the ground control plan was
open to interpretation and there was no evidence that the wall was not pre-split. (Id. at 11-13).
Further, Respondent argues the violation was not S&S because the wall was not unsafe even if it
was jagged. (Id. at 14). The Respondent argues the operator was not highly negligent because the
blaster that the inspector spoke to was not an agent of the operator. (Id. at 14-15). Also,
Respondent argues the special assessment is not appropriate because it was merely issued to be
punitive, which is unreasonable and speculative. (Id. at 16).
VI.

Discussion
A.

Burden of Proof and Standard of Proof

The Secretary bears the burden of proof by a preponderance of the evidence for Mine Act
violations.10 Jim Walter Res., Inc., 28 FMSHRC 983, 992 (Dec. 2006); RAG Cumberland
Resources, Corp., 22 FMSHRC 1066, 1070 (Sept. 2000); Jim Walter Res., Inc., 9 FMSHRC 903,
907 (May 1987). Each element of a citation must be proven by a preponderance of the evidence.
In re: Contests of Respirable Dust Sample Alteration Citations: Keystone Mining Corp., 17
FMSHRC 872, 878 (Aug. 2008).
The Commission has held that “[t]he burden of showing something by a ‘preponderance
of the evidence’ the most common standard in the civil law, simply requires the trier of fact ‘to
believe that the existence of a fact is more probable than its nonexistence.’” RAG Cumberland
10

Respondent incorrectly contends the Secretary’s burden of proof is substantial
evidence. (Resp’t Br. at 8-14). The burden for violations is by a preponderance of the evidence.

38 FMSHRC Page 1760

Resources Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), quoting Concrete Pipe & Products of
California, Inc. v. Constr. Laborers Pension Trust for S. California, 508 U.S. 602, 622 (1993).
B.

Citation No. 8195668

Citation No. 8195668 was issued for an alleged violation of § 77.1001 which requires:
“Loose hazardous material shall be stripped for a safe distance from the top of pit or highwalls,
and the loose unconsolidated material shall be sloped to the angle of repose, or barriers, baffle
boards, screens, or other devices be provided that afford equivalent protection.” 30 C.F.R. §
77.1001
During Inspector Robinson’s March 17, 2014, inspection at Bevins Branch Surface Mine,
he observed two 993K end loaders working beneath a highwall at the mid-level right side
contour pit.11 (Tr. 29). Inspector Robinson observed the end loaders working beneath the
highwall that had loose unconsolidated material and boulders on top. (Tr. 31). He wrote a §
77.1001 citation as a result of his observations of the highwall. In section 8 of the Citation,
“Condition or Practice,” Robinson wrote: “Loose Hazardous Material is not being stripped for a
safe distance at the active Mid-Level Right Side of Contour breakdown Pit Area Highwall…
Large Boulders rest atop of this material at the Highwall.”12 (GX-P1).
Inspector Robinson testified that he observed boulders and loose material that were not
stripped from the highwall. (Tr. 31). The highwall was 70 feet high, as measured by a Trupulse

11

Respondent makes the argument in its post hearing brief that this violation could not
have occurred because there was no highwall. Respondent argues that the material at issue was
shot overburden being removed. (Resp’t Br. at 7-8). I find the distinction to be irrelevant as §
77.1001 requires loose material to be stripped for a safe distance from the top of a pit or a
highwall. The material at issue appears to fall under either definition of being on top of the pit or
highwall. Additionally, Inspector Robinson repeatedly testified that there was a highwall not
properly stripped, and he was the only witness who was present on the day the violation. (Tr. 3032). Inspector Robinson was the most credible witness as to the condition of the mine on the day
this citation was issued. As a result, this argument that there was no violation because no
highwall existed is not convincing.
12

Respondent contends the material was kept at the angle of repose and that a bench was
present, preventing a § 77.1001 hazard from existing. (Resp’t Br. at 6-7). However, Inspector
Robinson testified that this citation was issued because the highwall was not stripped for safety
and that there were loose rocks that posed a hazard to miners below. As Inspector Robinson was
the only witness present when the citation was issued, I find his testimony to be the most
credible, and I find any argument concerning a bench or angle of repose by witnesses who were
not present to observe the conditions that day to be unpersuasive.

38 FMSHRC Page 1761

Rangefinder.13 (Tr. 44-46). He also observed two end loaders working beneath this highwall. (Tr.
29). The reach of the end loaders were likely only 30 feet, even though the Respondent suggested
it could ramp up 70 feet, in its questioning of Inspector Robinson. (Tr. 66). There was no other
testimony or evidence to support Respondent’s claim regarding the reach of the end loaders. And
it was clear that the highwall could not have been safely stripped by an end loader with only a
30-foot reach. (See Tr. 66). Inspector Robinson found this to be dangerous because it could have
resulted in loose material falling on the miners working in the end loaders below, posing a risk of
a crushing injury. Thus, Inspector Robinson’s observation of the unsecured boulders on top of
the highwall with end loaders working below demonstrated a § 77.1001 violation.
The Respondent’s witness Wooten, a licensed professional engineer, never saw the
conditions and has no direct knowledge to dispute Inspector Robinson’s testimony. Huffman, the
Director of Health Safety and Human Resources at the time, also did not observe the conditions
of the highwall on the day this citation was issued. As a result, this Court finds that the Secretary
has met its burden in proving that a § 77.1001 violation occurred.
1.

The Violation was Significant and Substantial and Reasonably Likely
to Result in a Permanently Disabling Injury to One (1) Person.

Section 104(d)(1) of the Mine Act defines Significant and Substantial (“S&S”) as a
violation “of such nature as could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). The Commission
has held that a violation is S&S “if, based on the particular facts surrounding the violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature.” Cement Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
An S&S violation must be supported by the circumstances surrounding the violative condition.
Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC
2007 (Dec. 1987).
In Mathies the Commission set forth a four-prong test to determine a S&S violation.
National Gypsum. Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984). To prove an S&S violation, the
Secretary must show: “(1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard—that is, a measure of danger to safety—contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a reasonably serious nature.” Id. at 3-4.
Further, an S&S determination should be analyzed in the context of “continued normal
mining operations.” McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1990-91 (citing U.S. Steel
Mining Co., 6 FMSHRC 1573, 1574 (July 1984). When assuming continued mining operations,
it must be considered without any assumption of abatement. 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).
13

Huffman, the Director of Safety and Human Resources, estimated the highwall to be
about 50 feet high, but as he did not view the highwall until a day or two after the citation was
issued, Inspector Robinson’s 70-foot finding with a Trupulse Rangefinder was more credible and
relevant to the citation. Inspector Robinson was trained to use the Trupulse Rangefinder and he
has successfully used it for measurement prior to these citations being issued. (Tr. 44-46).

38 FMSHRC Page 1762

In the instant case, the first prong has been satisfied as the Secretary has proven that a §
77.1001 violation occurred due to loose and unconsolidated boulders on the highwall. (Tr. 27).
Miners were also using end loaders at the bottom of the wall, which had loose boulders.
These loose boulders posed a discrete safety hazard because the boulders could have fallen and
caused a crushing injury, as there were no barriers to prevent the boulders from rolling off the
wall. (See Tr. 29, 31). Therefore, the second prong has been met because the Respondent’s
failure to strip the highwall contributed to a discrete safety hazard of loose falling boulders.
The third prong of the test, which requires a reasonable likelihood that the hazard will
result in an injury, was also satisfied. The “Secretary need not prove a reasonable likelihood that
the violation itself will cause injury.” Musser Engineering, Inc., 32 FMSHRC 1257, 1280-81
(Oct. 2010). Instead, it is only required that the hazard would be reasonably likely to contribute
to an injury. Consolidation Coal Co., 6 FMSHRC 189, 193 (Feb. 1984). 14 The hazard here was
the presence of loose and falling boulders from the highwall. These loose boulders could easily
have fallen onto a miner and cause a serious injury to miners working below.
The injury that could have occured from a rock or other material falling from a 70-foot
highwall was a crushing injury. (Tr. 40). A crushing injury could permanently disable or even
potentially kill an individual. Therefore, the fourth prong has been demonstrated because it was
reasonably likely that a serious crushing injury could occur from a highwall with loose material
that was not barricaded. Consequently, all four prongs of the Mathies test have been proven by
the Secretary, and the S&S designation for Citation No. 8195668 is affirmed.
The gravity analysis focuses on factors such as the likelihood of an injury, the severity of
an injury, and the number of miners potentially injured. For Citation No. 8195668, the gravity
was reasonably likely to result in a permanently disabling injury to one miner. (GX-P1). The
injury to one miner has been demonstrated because Inspector Robinson testified that he saw
miners working in end loaders below the highwall, where rocks could have fallen on them. (Tr.
29, 31). This violation involved a highwall with loose unconsolidated material that could have
fallen on a miner below. (GX-P1). The wall was approximately 70 feet high, and a large boulder
falling from that height could cause a serious crushing injury that could permanently disable an
individual. (Tr. 40). Thus, the gravity of reasonably likely to result in a permanently disabling
injury to one person is also affirmed.
2.

The Violation was the Result of High Negligence.

Negligence is not defined in the Mine Act. MSHA regulations provide that violative
conduct is properly designated as “high negligence” when “the operator knew or should have
known of a violative condition or practice, and there are no mitigating circumstances.” 30 C.F.R.
§ 100.3(d), Table X. The Commission has held that Administrative Law Judges are not required
to apply the Part 100 negligence definition and may instead use a traditional negligence analysis.
Brody Mining, LLC, 37 FMSHRC 1687, 1703 (Aug. 2015); accord Mach Mining, LLC, 809 F.3d
14

Recent circuit court decisions have further discussed the importance of the third prong
in the S&S analysis. See Eagle Creek Mining, LLC., 2016 WL 2956689 at *3-7 (May
2016)(ALJ)(discussing the traditional S&S analysis and the effect of recent Fourth and Seventh
Circuit decisions).

38 FMSHRC Page 1763

1259, 1263-64 (D.C. Cir. 2016). Additionally, “Commission judges… may find ‘high
negligence’ in spite of mitigating circumstances, or moderate negligence, without identifying
mitigating circumstances.” Brody, 37 FMSHRC at 1702-03; Mach Mining, 809 F.3d at 1263-64.
High negligence is “‘…an aggravated lack of care that is more than ordinary negligence.’”
Brody, 37 FMSHRC at 1703, citing Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998).
Accordingly “a Commission judge… may consider the totality of the circumstances holistically.”
Brody, 37 FMSHRC at 1702. An operator is negligent if it fails to meet the requisite high
standard of care under the Mine Act. Id.
The negligence for this citation was properly assessed as high. (Tr. 41; GX-P1). Section
77.1001 requires that loose and hazardous material be stripped from mine walls, sloped to the
angle of repose or barricaded to protect miners from injury. Respondent did not meet this high
standard of care by allowing loose unconsolidated material and boulders to remain unsecured on
the highwall. (Tr. 29). This created a risk for any miner working underneath the highwall.
Moreover, Inspector Robinson testified that the foreman admitted that he knew the highwall was
not in good condition and that MSHA was not going to be satisfied with the safety measures
implemented at the highwall. (Tr. 38). Additionally, there was no evidence of mitigating
circumstances brought forth at hearing. The Respondent showed an aggravated lack of care when
it knowingly allowed the condition to persist, but failed to abate it until an MSHA inspector was
on site. (See Tr. 38). Consequently, the high negligence evaluation is affirmed.
C.

Citation No. 8195670

Citation No. 8195670 was issued for a violation of § 77.1000. Under § 77.1000, it is
required that “[e]ach operator shall establish and follow a ground control plan for the safe control
of all highwalls, pits and spoil banks to be developed after June 30, 1971, which shall be
consistent with prudent engineering design and will insure safe working conditions. The mining
methods employed by the operator shall be selected to insure highwall and spoil bank stability.”
30 C.F.R. § 77.1000.
This citation was issued by Inspector Robinson after he observed that a highwall in the
lower active coal pit on the right contour was not pre-split as required by the Respondent’s
ground control plan. (GX-P3). Specifically, Inspector Robinson spoke with the certified mine
blaster Matheny who said that the highwall was not pre-split because he did not have adequate
materials. (Tr. 92). Neither party has disputed that the highwall was not pre-split at hearing.15
The ground control plan on page nine shows the Blasting Plan, which lists the first blast as the
pre-split line. (GX-P6). Additionally, page four of the Blasting Plan describes in the notes
section that in the lower level coal seams, highwalls will be pre-split with a slope greater than 90

15

While Respondent briefly suggested in its post hearing brief that the highwall could
have been pre-split, Respondent failed to bring forward any evidence to support a finding that the
wall was indeed pre-split. (Resp’t Br. at 13). Accordingly, I find this argument unpersuasive.

38 FMSHRC Page 1764

degrees and do not need to be pre-split for cast blasting at 110 degrees.16 (GX-P6). According to
Inspector Robinson, the highwall was greater than 90 degrees, but not 110 degrees. (Tr. 100,
119). Inspector Robinson, Wooten, and Huffman all testified that the mine did not use cast
blasting, or they were unaware that cast blasting was used, at the time the citation was issued.
(Tr. 100, 173-74, 228). Thus, no evidence was brought forward that cast blasting was used on
this highwall. Therefore, Inspector Robinson concluded that the wall was required to be pre-split,
and it was evident to him via visual observation that it had not been pre-split as required. (GX-P
4). The certified blaster also agreed the wall was not pre-split. (Tr. 92).
Further, neither of the Respondent’s witnesses was present when this citation was issued,
so they did not have direct knowledge of whether or not the highwall was pre-split. Moreover,
Huffman, the Director of Health Safety and Human Resources testified that pre-split shots could
not be blasted after the production shots. (Tr. 198). Thus, any argument that the pre-splitting
could have been performed after the production shots does not hold weight. Since pre-splitting
was required by the ground control plan, and the operator failed to pre-split the highwall at issue,
the Respondent failed to follow the ground control plan in violation of § 77.1000. (See GX-P3).
Due to the Inspector’s observations, his testimony concerning his conversation with the
certified blaster Matheny, and Huffman’s testimony that pre-split shots must be performed first
when blasting, I find that the Secretary has met its burden of proving a violation for Citation No.
8195670.
1.

The Violation was S&S and Reasonably Likely to Result in a
Permanently Disabling Injury to One (1) Person.

Inspector Robinson assessed this violation as S&S. (GX-P3). Under Mathies, the first
prong was satisfied as there was a § 77.1000 violation when the Respondent failed to follow the
ground control plan requirement of pre-splitting the highwall at issue. See discussion supra.
The second prong was also satisfied as the failure to follow the ground control plan for
safety contributed to a discrete safety hazard of large rocks falling onto miners. The failure to
pre-split as required by the ground control plan created cracks, and holes in the wall allowing for
large rocks to protrude from the highwall. (Tr. 107-09).
Beneath the highwall, Inspector Robinson observed an end loader loading coal haulage
trucks and blasters on foot loading holes for blasting along the wall. (Tr. 105-06). Therefore, the
third prong has been met because there was a reasonable likelihood that a rock falling from a
large 300-foot long highwall onto a blaster or a machine operator would have caused a crushing
injury. (Tr. 105-06). The miners below were not adequately protected from the risk of rocks
falling on them. This condition was reasonably likely to cause an injury of a reasonably serious
nature as boulders falling from a highwall onto an individual’s head, arms, or legs could crush
16

On this same page there was a handwritten note about a fireclay highwall. (GX-P6).
Both parties mention this highwall, but no evidence was brought forth as to who wrote this note
or when it was written. Additionally, Respondent argues the Secretary does not prove the
fireclay highwall was one of the walls involved in the violations. (Resp’t Br. at 12). However,
there was no consensus as to whether the highwall at issue was the fireclay highwall. As a result,
the validity of this handwritten note is ultimately irrelevant.

38 FMSHRC Page 1765

organs and permanently disable someone, which satisfied the fourth prong. As a result, Inspector
Robinson properly found Citation No. 8195670 to be S&S.
Respondent attempts to argue, with the support of Wooten’s testimony, that a jagged wall
that was not pre-split may be safe. (Tr. 175; Resp’t Br. at 14). However, I find this testimony to
lack credibility when there was a ground control plan that requires pre-splitting for safety. (GXP6). Moreover, it is axiomatic that a wall with protruding rocks, whether loose or not, is more
likely to cause an injury than a smooth wall.
The gravity assessed here was reasonably likely to cause a permanently disabling injury
to one miner. Inspector Robinson testified that a highwall must be pre-split to make a safer
smoother wall for miners who work in close proximity to the wall. (Tr. 103). Pre-splitting the
wall was a safety mechanism that was required by the ground control plan. (GX-P6).
Respondent’s witness Wooten agreed in his testimony that the ground control plan was
developed to ensure safety while blasting. (Tr. 178). Inspector Robinson testified that without
pre-splitting, it was more likely that large rocks from the wall could fall and hit people working
below. (Tr. 107). This could crush a miner’s arm or leg, which could permanently disable an
individual. (Tr. 107). At any time, there could be two blasters, a spotter, and coal loaders
working beneath a highwall. (Tr. 107-08). Therefore, Inspector Robinson said the risk of injury
could be to one person because the rocks would likely only be able to hit one person at a time.
(Tr. 108). Due to the risk of a large rocks falling from a 300-foot long wall with cracks and holes
in it, which could result in serious crushing injuries to an individual, I affirm the gravity of
reasonably likely to result in a permanently disabling injury to one person.
2.

The Violation was the Result of High Negligence.

Inspector Robinson determined that the negligence for this citation should be evaluated as
high. (Tr. 111). The Respondent’s ground control plan required a highwall to have a slope of 90plus or 110 degrees. (GX-P6). In the notes on the ground control plan, it stated that highwalls
greater than 90 degrees will be pre-split and highwalls greater than 110 degrees will be cast
blasted. (Id.). Inspector Robinson testified that the wall was 90-plus degrees, not 110, and
required pre-splitting. (Tr. 110, 19).
Furthermore, Inspector Robinson had a conversation with the Respondent’s certified
blaster Matheny who conceded that the wall should have been pre-split and that he did not have
adequate materials to properly pre-split the wall.17 (Tr. 111). This conversation with the blaster
indicates that the Respondent knew the reasonable standard of care in highwall blasting to create
the safest working environment for miners. (See id.). Hence, the Respondent failed to exercise
the requisite high standard of care required under § 77.1001. This demonstrates an aggravated
lack of care by the Respondent.

17

Respondent attempted to put a burden on the inspector to check purchase orders or the
blasting log to see if proper supplies existed for pre-splitting. (Tr. 135; Resp’t Br. at 15.) This
Court finds this argument unpersuasive as it was not significant whether the proper materials
existed for this citation. Rather it is only relevant that the material was not used in compliance
with the ground control plan and the operator was aware of it.

38 FMSHRC Page 1766

Respondent made an argument that Matheny was not an agent of the operator, and
therefore, his negligence cannot be attributed to the Respondent. (Resp’t Br. at 14-15).
Section 3(e) of the Mine Act defines an “agent” as “any person charged with responsibility for
the operation of all or a part of a … mine or the supervision of the miners in a … mine[.]” 30
U.S.C. § 802(e). The Commission has held that “the negligence of an operator's ‘agent’
is imputable to the operator for penalty assessment and unwarrantable failure purposes.” Nelson
Quarries Inc., 31 FMSHRC 318, 328 (Mar. 2009) citing Whayne Supply Co., 19 FMSHRC 447,
451 (Mar. 1997); Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194-97 (Feb. 1991);
Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-64 (Aug. 1982). The Commission has held that
“[it] consider[s] factors such as the ability of the employee to direct the workforce, whether the
employee holds himself out as a person with supervisory responsibilities and is so regarded by
other miners, and whether the actions of the employee in directing the workforce have an impact
on health and safety at the mine.” Nelson Quarries Inc., 31 FMSHRC 318, 328 (Mar. 2009)
citing Ambrosia, 18 FMSHRC at 1553-54, 1560-61; Sec'y of Labor on behalf of Hyles v. All
American Asphalt, 21 FMSHRC 119, 130 (Feb. 1999) (holding that leadmen who acted in a
supervisory capacity and were in a position to affect safety were agents of the operator to whom
employees would logically voice their complaints).
Matheny was the only person allowed to blast at the mine because he was the only
certified blaster on site. (Tr. 90, 103-04). He directed the workforce in blasting, and his control
over mine blasting had a direct impact on the safety at the mine. (Tr. 90-92). Therefore, he acted
as an agent, and his knowledge of the condition can be imputed to Kentucky Fuel. Accordingly,
Respondent’s argument that the blaster’s knowledge cannot be imputed on the Operator does not
hold weight, and the high negligence evaluation is affirmed.
3.

This Violation was the Result of an Unwarrantable Failure.

The Commission has determined that an “unwarrantable failure is aggravated conduct
constituting more than ordinary negligence.” Manalapan Mining Co., 35 FMSHRC 289, 293
(Feb. 2013). An unwarrantable failure can be demonstrated by a reckless disregard, intentional
misconduct, indifference, or a serious lack of reasonable care. Emery Mining Corp., 9 FMSHRC
1997, 2003-04 (Dec. 1987).
Whether conduct is “aggravated” in the context of unwarrantable failure is
determined by looking at all the facts and circumstances of each case to see if any
aggravating factors exist, including (1) the extent of the violative condition, (2)
the length of time that the violative condition existed, (3) whether the violation
posed a high degree of danger, (4) whether the violation was obvious, (5) the
operator’s knowledge of the existence of the violation, (6) the operator’s efforts in
abating the violative condition, and (7) whether the operator had been placed on
notice that greater efforts were necessary for compliance.
Manalapan Mining Co., 35 FMSHRC at 293. All of the relevant Manalapan Mining factors, the
facts and circumstances of the case, and any mitigating circumstances must be considered by this
Court. IO Coal Co., Inc., 31 FMSHRC 1346, 1351 (Dec. 2009).

38 FMSHRC Page 1767

i.

The Extent of the Violative Condition and the Length of the
Time that the Violative Condition Existed

The highwall was hazardous, and it extended 300 feet. (Tr. 108-09). Inspector Robinson
testified that the absence of pre-splitting at the highwall had existed three to four days. (Tr.11011). He made this finding based on the holes and the size of the area that had been drilled. (Tr.
110-11). Thus, the loose material along the 300-foot wall and the length of time the condition
existed weigh against the Respondent.
ii.

The Obviousness of the Condition and Whether the Condition
Posed a High Degree of Danger

The inspector observed that there were holes drilled and that the wall was not pre-split,
which demonstrate the obviousness of the condition. (Tr. 109). This posed a high degree of
danger because the failure to pre-split the wall resulted in loose material, which could have
created the risk of crushing injuries. (Tr. 107). There were loose rocks, holes in the wall, and
cracks which could have easily created a hazard of a rock or other debris falling from a highwall
onto a miner working in an end loader below. (Tr. 93-94, 107-09). Therefore, the condition was
obvious, and it posed a high risk to miners working below.
iii.

The Operator’s Knowledge of the Condition

Inspector Robinson spoke with the certified blaster Matheny who conceded that everyone
knew that pre-splitting was required. (Tr. 91-92). Additionally, the ground control plan, which
the operator was required to create and submit to MSHA for acknowledgement, requires presplitting. (See Tr. 150-51). Therefore, I find that the Respondent knew or should have known that
pre-splitting was not being used according to the ground control plan because the condition could
have been readily observed. (See Tr. 109).
iv.

The Operator’s Efforts in Abating the Condition

Respondent did not attempt to abate the condition until after it knew the MSHA inspector
was on site. (Tr. 91-92; GX-P3). There was no evidence brought forward by the Respondent
demonstrating an attempt to correct condition prior to issuance of the violation.
v.

The Operator’s Notice that Greater Efforts were Necessary for
Compliance

The certified blaster admitted that everyone knew the highwalls were meant to be presplit. (Tr. 91-92). However, he stated he did not have the proper materials to properly blast the
highwall. (See id.). The Operator also had the ground control plan, which provides notice of
blasting requirements. (GX-P6). As a result, the Operator had notice that there should have been
greater efforts to comply with the ground control plan.
Consequently, when considering all of the Manalapan Mining factors, the operator
demonstrated the requisite aggravated conduct for an unwarrantable failure. All of the factors
weigh against the Operator and demonstrate a serious lack of reasonable care to comply with the
pre-splitting requirement in the ground control plan. (See GX-P6). Therefore, I affirm the
unwarrantable failure designation for Citation No. 8195670.

38 FMSHRC Page 1768

VII.

Special Assessments

Under 30 C.F.R. § 100.5 “(a) MSHA may elect to waive the regular assessment under §
100.3 if it determines that conditions warrant a special assessment. (b) when MSHA determines
that a special assessment is appropriate, the proposed penalty will be based on the six criteria set
forth in § 100.3(a). All findings shall be in narrative form.” The civil penalty under § 100.3 is
based on the criteria set for the in § 110(i) of the Mine Act. This section provides:
In assessing civil monetary penalties, the Commission shall consider the operator's
history of previous violations, the appropriateness of such penalty to the size of the
business of the operator charged, whether the operator was negligent, the effect on the
operator's ability to continue in business, the gravity of the violation, and the
demonstrated good faith of the person charged in attempting to achieve rapid compliance
after notification of a violation. In proposing civil penalties under this chapter, the
Secretary may rely upon a summary review of the information available to him and shall
not be required to make findings of fact concerning the above factors.
30 U.S.C. § 802(i).
The Respondent was a large operator that produced 366,025 tons of coal in 2013 and had
four § 77.1001 violations in the 18 months preceding the issuance of Citation No. 8195668.
(Stip. 6). For this citation, Respondent was highly negligent as the highwall was not properly
stripped, and the foreman told Inspector Robinson that he knew about the condition, but nothing
was done to abate it. The parties stipulated that these penalties will not affect the Operator’s
ability to remain in business. (Stip. 3). This citation was hazardous because of the loose
unconsolidated material on the highwalls. Therefore, this Court affirmed the designations of S&S
and reasonably likely to cause a permanently disabling injury to one miner. While there was
good-faith abatement in a reasonable amount of time, the remaining statutory criteria weigh
heavily against the Respondent. (Stip. 7). Accordingly, the Secretary’s special assessment of
$6,800.00 is affirmed.
Given that the violative conduct in Citation No. 8195670 has been assessed as S&S and
reasonably likely to result in a permanently disabling injury to one miner, and the high
negligence and unwarrantable failure findings, and having considered all of the statutory criteria
in § 110(i), this Court finds the Secretary’s originally assessed penalty to be appropriate. (GXP3). Additionally, as the same circumstances involving the mine size, ability to remain in
business, gravity, and compliance apply to this order, the proposed civil penalty of $8,600.00 is
affirmed.
Inspector Robinson issued these special assessments to deter the Respondent from
continuing to knowingly violate highwall safety standards. The admission of knowledge by a
foreman and the certified blaster of the respective violations at issue demonstrate an aggravated
lack of care. This knowledge of wrongdoing, yet indifference to safety standards, poses a high
risk of injury to miners, especially because the violations at issue involve extensive safety
standards.

38 FMSHRC Page 1769

VIII. Conclusion
For the foregoing reasons Citation No. 8195668 and Citation No. 8195670 will be
affirmed with all proposed designations. Consequently, it is ORDERED that Respondent pay the
Secretary of Labor the sum of $15,400.00 within 30 days of the date of this Decision.18 Upon
receipt of payment, this case is hereby DISMISSED.

/s/ William S. Steele
William S. Steele
Administrative Law Judge

Distribution: (Certified Mail)
C. Renita Hollins, Esq., Office of the Solicitor, U.S. Department of Labor, 211 7th Avenue North,
Nashville, TN 37219
James F. Bowman, Kentucky Fuel Corporation, P.O. Box 99, Midway, WV 25878

18

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO
63179-0390

38 FMSHRC Page 1770

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

July 22, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. KENT 2014-782
A.C. No. 15-19374-358607

v.
RIVER VIEW COAL, LLC,
Respondent.

Mine: River View Mine
DECISION

Appearances:

Hanah Harris-Yager, U.S. Department of Labor, Office of the Solicitor
1244 Speer Boulevard, Suite 216, Denver, Colorado 80204
Gary D. McCollum
1146 Monarch Street, 3rd Floor, Lexington, Kentucky 40513

Before:

Judge Simonton
I. INTRODUCTION

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration, against River View Coal,
LLC, at the River View Mine, pursuant to the Federal Mine Safety and Health Act of 1977
(“Mine Act”), 30 U.S.C. §801. This case involves one citation, number 8506100, issued on
October 23, 2013 as a 104(d)(1) violation for an assessed penalty of $5,961.00. The parties
presented testimony and documentary evidence at a hearing held in Henderson, Kentucky on
May 3, 2016.
MSHA Inspector Matthew Stone testified for the Secretary. River View Mine Unit 7
Foreman Michael Duckworth and Safety Department Manager Gerome Thomas testified for
River View Coal (Respondent). After fully considering the testimony and evidence presented at
hearing, I find that the Secretary met his burden in establishing a violation of the cited standard.
All elements of the citation with the exception of the unwarrantable failure aspect are upheld.
After considering the necessary criteria for penalty assessments, I find that a penalty of
$4,500.00 is appropriate.
II. FINDINGS OF FACT AND SUMMARY OF TESTIMONY
Inspector Stone alleged that there was an inadequate on-shift examination for the 8157
roof bolting machine in violation of 30 CFR §75.362(a)(2), leading him to issue citation number

38 FMSHRC Page 1771

8506100. The gravity was marked as reasonably likely, permanently disabling, and significant
and substantial with four miners affected. Ex A. Stone found Respondent to be highly negligent
and designated the violation as an unwarrantable failure on the part of the Respondent’s
management. Id. The §75.362(a)(2) standard states “persons designated by the operator shall
conduct an examination to ensure compliance with the respirable dust control parameters
specified in the mine ventilation plan.” Tr. 17, 39-40.
On October 23, 2013 Inspector Stone traveled to the mine to collect respirable dust
samples on the Number 7 Unit. Tr. 26, 36. Section Foreman Michael Duckworth entered the
mine around 6:15 that morning, while Inspector Stone waited outside for the Unit to get started.
Tr. 138-139. Prior to Inspector Stone entering the mine, the scoop operator radioed Duckworth
informing him that the on-shift dust parameter exam for the 8157 roof bolter was good. Tr. 154.
Foreman Duckworth was given the suction rating and told everything else was good. Id. Three
roof bolting machines were located in the unit at the time, however only two were typically used.
Tr. 152-153. The 8157 roof bolter was an extra machine and did not need to be run that day. Tr.
160. Standard §75.363(g) states “The certified person directing the on-shift examination to
ensure compliance in respirable dust control parameters specified in the mine ventilation plan
shall certify, by initials, date and time that the examination was made.” Tr. 38. A certified
machine should be ready for operation even if currently idle. Tr. 120-121.
Upon entering the mine, Inspector Stone travelled underground and arrived at the power
center where the DTI board was located. Tr. 37. The DTI board is where examinations are posted
with the day/time and initials to signify the exam is complete. Id.. Inspector Stone observed the
date and initials on the DTI board for the 8157 on-shift examination, indicating it had been
completed. Tr. 37-39, 49, 60, 64, 114-115. During his testimony at hearing, Section Foreman
Duckworth did not recall certifying that the examination was completed on the DTI board. Tr
155. However, Inspector Stone recalled that during his inspection Duckworth acknowledged he
had signed the DTI board indicating the examination of the 8157 roof bolter was complete. Tr.
65. Stone also noted he was told by Duckworth and the roof bolters that they had completed an
examination of the 8157 roof bolting machine. Tr. 115. Inspector Stone approached and
conducted his inspection of the machine. Tr. 40. The roof bolter operator informed Stone that he
had checked the vacuum and the machine had good suction. Tr. 49-50. Stone noted in his
testimony that it is necessary to check both the suction and the dust filter because there may still
be an issue with the dust box even with adequate vacuum pressure. Tr. 41. Inspector Stone
noticed dust accumulation on the mufflers coming from the dust collection system. Tr. 45-46.
After opening the collection box, Stone found a damaged filter and rock drill dust accumulation
on the clean side of both filters. Tr. 45-47. It is not possible for dust to have gone backwards
through the muffler because a great amount of pressure would be required for dust to enter the
wrong end of the machine. Tr. 117. There were small dents to the outer ring of the filter, which
could have been caused by banging the filter, creating damage and allowing dust to bypass. Tr.
195, 47-48. Inspector Stone concluded from the dust build up that the condition of the dust box
existed for more than one shift. Tr. 71-72. At the time, there were four miners working down
wind of the machine. Ex. A, Tr. 70.
Inspector Stone then issued the 8506100 citation. Tr. 56-57. He concluded that the
Respondent had violated the standard because they did not adequately examine the entire system

38 FMSHRC Page 1772

as specified in the ventilation plan. Tr. 63. The inspection of the collection box only included the
vacuum suction test, not a visual check inside the box and filter. Tr. 59-60. On the day of the
inspection no replacement dust filters were located at Unit 7, however additional filters were
available from other units at the mine. Tr. 182-183. If an additional filter were requested,
Foreman Duckworth would have been informed. Tr. 182-183. Duckworth acknowledged that all
steps for the on-shift examination need to be conducted prior to the examination being certified.
Tr. 171. Inspector Stone noted that if a full examination had been conducted, the issue would
have been found and resolved. Tr. 124.
Inspector Stone testified that on-shift examinations are important because they eliminate
hazards and exposure to respirable dust for miners. Tr. 64. Drill dust can cause silica to enter the
surrounding air and lead to a permanently disabling disease, silicosis. Tr. 69, 72. Silicosis is
caused when silica particles, similar to glass or sand, enter the lungs and cut the tissue. Tr. 72-73,
207. Persons affected by silicosis will never get better, even if the individual is removed from the
environment. Tr. 72-73, 207.
Section Foreman Duckworth testified that since the 8157 roof bolter was the extra
machine at the unit, it was not in operation at the time of the inspection. Tr. 79. The 8157 roof
bolter was located in an area that would not have allowed for dumping of the dust box because
the air for that day flowed through the section and could have exposed workers on the left side to
harmful dust. Tr. 177, 206-207. However, according to Inspector Stone the box could have been
opened with minimal dust release to check the filter without dumping the dust inside. Tr. 60-62,
116. Additionally, there were acceptable areas the machine could have been moved to conduct
the full inspection. Tr. 61-63.
The roof bolter standard in the Respondent’s mine standard book number 8 states “dust
boxes should be cleaned at the beginning of each shift and at mid-shift. Boxes should only be
emptied as close to the face as possible so they can be loaded out in the loading cycle wall,
wearing a dust mask.” Tr. 146. Foreman Duckworth further testified that it was standard
procedure at the River View Mine for the roof bolter operators to wait until they reached the face
to open the box because each time the box is opened there is a chance for dust to enter the air. Tr.
175. The roof bolters operating the 8157 roof bolter were proficient in MSHA training and the
River View Mine’s expectations training. Tr. 148-150. The Respondent requires the filters in the
box to be changed on Mondays, Wednesdays and Fridays or as needed. Tr. 163. When roof
bolters are in use, boxes will typically be dumped three or four times per shift, and the roof bolter
operators conduct a visual inspection of the filter during each dump. Tr. 175-176, 214. There
were no restrictions preventing the roof bolter operators from conducting another exam once
they pulled up to the face. Tr. 166, 174, 210.
Prior to the inspection in question, Respondent had not been cited under this particular
standard in the 15 months prior to the citation at issue. Ex A, Tr. 158. Between April 23, 2013
and October 23, 2013 MSHA and mine operator respirable dust samples were taken from the
River View Mine. Tr. 159-160. Of the total 525 dust samples, two exceeded the 2-milligram
standard for respirable dust. Tr. 159-160. All of the samples taken on the working sections of the
mine were compliant with the standard. Tr. 195-196.

38 FMSHRC Page 1773

Respondent contested the citation, claiming their inspection of the dust box was not
inadequate.
III. PARTY ARGUMENTS
The Secretary argues that in order for the Respondent to comply with Standard 30 C.F.R
Section 75.362(a)(2), an on-shift examination must be conducted to determine whether the dust
collection system is in operational condition. Sec’y Br., 14. Foreman Duckworth certified the onshift exam for the roof bolter was complete. Sec’y Br. 18, Tr. 37-39, 49, 60, 64, 114-115.
However, since dust was found on the clean side of the filter, the Respondent did not check the
interior of the box, and therefore did not complete the on-shift examination. Sec’y Br., 16. The
Secretary states the Respondent accepted the dust collection system was not maintained in
operative condition and the condition was a significant and substantial violation of the standard.
Tr. 16. The Secretary argues the violation should remain designated as high negligence since
there were no mitigating factors. Sec’y Br., 25. Although the machine was located in an area not
adequate for dumping, the box could have been opened to check the filter with minimal dust
release. Sec’y Br., 28-29, Tr. 177, 60-62. In addition, there were other acceptable areas the
machine could have been moved to conduct a full examination. Sec’y Br. 28-29, Tr. 61-63. The
Secretary argues the violation was an unwarrantable failure as the condition was visibly obvious
and the Respondent was aware of the hazard, it was common practice at the mine, and posed a
high degree of danger. Sec’y Br., 25-26, Tr. 15-16. The Secretary contends that since Foreman
Duckworth was aware that the roof bolter operators usually wait to reach the face before
dumping the drill dust box, he also knew or should have known the dust filter had not been
examined as part of the on-shift examination when he certified it complete. Sec’y Br., 26, Tr. 1516.
The Respondent argues the citation should be vacated because it was premature and
speculative. Resp. Br., 15, 20. The Respondent asserts the No. 8157 roof bolting machine was
not engaged in production at the time of the inspection and according to the plain language of 30
C.F.R. Section 75.362(a)(2) “…The examination shall be made before production begins on a
section. Deficiencies in dust controls shall be corrected before production begins or resumes.”
Resp. Br., 16, 19. The Respondent argues they still had time to conduct the examination and
therefore no violation occurred. Resp. Br., 19. In the alternative, the Respondent argues the
negligence level should be reduced from high negligence to a lower level given the presence of
mitigating factors. Resp. Br., 26, Tr. 24. The Respondent contends that the Secretary failed to
demonstrate an unwarrantable failure on the part of the River View Mine. Resp. Br., 20-21. The
Respondent argues that the situation did not result from aggravated conduct but rather
demonstrated poor communication and a difference in opinion on rock drill dust safety practices.
Resp. Br., 21.

38 FMSHRC Page 1774

IV. ANALYSIS
A. Citation No. 8506100
Inspector Stone alleged in part with Citation No. 8506100 that:
An inadequate examination was conducted on the CO#8157 roof bolter
operating on the #7 unit (MMU 011-0/012-0) to assure the compliance of the
respirable dust control parameters specified in the approved mine ventilation
plan. The operator had conducted the examination prior to the MSHA
inspection and no deficiencies were found by the operator. An MSHA
inspection was conducted on the CO#8157 roof bolter and the following
deficiencies were found. The opposite operator side dust filter was damaged
from being beat out, accumulations of rock drill dust were found on the clean
side of both the operator side and opposite operator side dust filters and dust
has accumulated on the machine frame from dust blowing from the exhaust
mufflers. These deficiencies were obvious to the most casual observer and
should have been found by a person who is trained to conduct these exams.
Inspector Stone went on to state that:
The operator has engaged in aggravated conduct constituting more than
ordinary negligence. This violation is an unwarrantable failure to comply with
a mandatory standard.
Inspector Stone found that the condition of the filter violated 30 C.F.R. §75.362(a)(2)
which requires:
A mine operator to conduct an examination of the mine’s respirable dust control
parameters specified in the mine ventilation plan and correct any deficiencies in
the dust controls before production begins or resumes.
The Secretary may demonstrate a violation of §75.362(a)(2) by proving the operator
either did not examine a dust suppression measure required in the ventilation plan or did not
correct a problem with a dust suppression measure. GMS Mine Repair, 37 FMSHRC 2841 (Dec.
2015) (ALJ).
Inspector Stone determined that the violation was reasonably likely to result in injury,
that injury was likely to be serious, and the violation was significant and substantial (S&S) and
affected four people. Ex. A. Inspector Stone alleged the violation was the result of high
negligence with no mitigating factors and an unwarrantable failure on the part of the
respondent’s management. Id..
There is no dispute among the parties that there was dust located on the clean side of the
filter. Tr. 45-47, 157. While examining the machine, the roof bolter operator informed Inspector
Stone that he had checked the vacuum and the machine had good suction. Tr. 49-50. Inspector

38 FMSHRC Page 1775

Stone observed the date and initials on the DTI board indicating the exam was completed. Tr. 3739, 49, 60, 64, 114-115. Section Foreman Duckworth acknowledged in his testimony that all
steps for the on-shift examination need to be conducted prior to the examination being certified.
Tr. 171. Finally, Inspector Stone testified that if a full examination had been conducted the issue
would have been found and resolved. Tr. 124-125.
Based on the testimony and entered exhibits, I find that the Secretary presented sufficient
evidence to show that a violation of 30 CFR §75.362(a)(2) occurred at Unit 7 of the River View
Mine. I affirm Citation No. 8506100 but, as explained below, do not find the violation to be an
unwarrantable failure on the part of Respondent.
B. Significant and Substantial
A violation is significant and substantial (S&S), “if based upon the particular facts
surrounding the violation there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature.” Cement Division, National Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981).
In order to uphold a citation as S&S, the Commission has held that the Secretary of Labor
must prove: 1) the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard—that is, a measure of danger to safety—contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC
1, 3-4 (Jan. 1984).
The Secretary must prove there was a reasonable likelihood that the hazard contributed to
by the violation will cause an injury, not a reasonable likelihood that the violation, itself, will
cause injury. West Ridge Resources, Inc., 37 FMSHRC 1061, 1067 (May 2015) (ALJ), citing
Musser Eng'g, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010).
I have already held that a violation of 30 CFR §75.362(a)(2) occurred at Unit 7 of the
River View Mine. Secondly, since dents were found in the filter and rock drill dust on the clean
side of the filter, the violation contributed to the discrete safety hazard of silica particles in the
air. Tr. 45-48. If the machine was in use it is reasonably likely that silica particles would have
entered the air contributing to an injury. Tr. 69, 72. Silica particles in the air can cause silicosis, a
permanently disabling condition. Tr. 69, 72.
Because the examination of the roof bolting machine was certified as complete, it was
available and ready to be placed into production with the defective filter. And at no time prior to
his decision to issue a citation was Inspector Stone notified by the roof bolt operators or Foreman
Duckworth that further inspection was necessary or going to take place prior to the machine
going into production. To the contrary he was also told by Duckworth and the roof bolters that
they had completed an examination of the 8157 roof bolting machine. Tr. 115. This led Stone to
reasonably conclude that the machine was in fact ready and available to be placed into
production in the condition he found it during his inspection. It is undisputed that the condition
of the filter was likely to contribute to a permanently disabling injury, and in the event a

38 FMSHRC Page 1776

violation is found that the condition of the dust filter was a significant and substantial violation
of the standards. Tr. 16. It is also undisputed that four people would have been affected had silica
particles entered the air since there were four miners working in close proximity to the roof
bolting machine at the time of the violation. Ex. A, Tr. 70. Therefore, based on the evidence
presented by the Secretary, I find that the Secretary has satisfied all four elements of the Mathies
S&S test and affirm citation No. 8506100 as S&S.
C. Negligence
The Mine Act defines reckless disregard as conduct which exhibits the absence of the
slightest degree of care, high negligence as actual or constructive knowledge of the violative
condition without mitigating circumstances; moderate negligence as actual or constructive
knowledge of the violative condition with mitigating circumstances; and low negligence as
actual or constructive knowledge of the violative condition with considerable mitigating
circumstances. 30 CFR § 100.3: Table X.
Inspector Stone, without equivocation, credibly testified that the DTI board reflected that
the examination certification was complete. Tr. 37-39, 49, 60, 64, 114-115. Even though the
8157 roof bolter was not in operation at the time of inspection, a certified machine should be
ready for operation even if currently idle. Tr. 79, 120-121. Foreman Duckworth testified he knew
all steps for the on-shift examination needed to be conducted prior to the examination being
certified. Tr. 171. He was aware that the 8157 roof bolter was not at the face when his roof
bolters communicated the suction rating and relayed to him through the scoop operator that
everything else was good. Tr. 169. Duckworth also testified the standard procedure is for the roof
bolters to wait until the machine is at the face to inspect the dust boxes and dump them if needed.
Tr. 168-169, 175. Even though the box could have been opened to check the filter, the machine
was not located in an area suitable for dumping. Tr. 177, 60-62. Duckworth also clarified that the
boxes do need to be checked wherever the machine is located. Tr. 180. Further, Inspector Stone
noted the roof bolter operators had the option to move the machine to a different area or to the
face before certifying a complete exam. Tr. 61-63.
Foreman Duckworth testified that the roof bolters operating the machine were proficient
in MSHA training as well as the River View Mine’s expectations training. Tr. 148-150. It was
standard procedure at River View for the roof bolter operators to wait until they reached the
face to open the dust boxes because there is a chance for dust to enter the air each time a box is
opened. Tr. 175. When roof bolters are in use, boxes will typically be dumped three or four
times per shift, and the roof bolter operators conduct a visual inspection of the filter during each
dump. Tr. 175-176, 214. There were no restrictions preventing the roof bolter operators from
conducting another exam once they pulled up to the face. Tr. 166, 174, 210. However, the
operators should have reported their intent to Foreman Duckworth rather than communicate that
everything with the machine was good. It was this report that led Duckworth to certify on the
DTI board that the inspection was complete. I find Foreman Duckworth certified the
examination as complete knowing that the dust boxes were not examined by the roof bolters.
The examination should never have been certified until such time as the dust boxes were
examined. While it is true Respondent, under the standard, had until the time the machine went
into production to conduct further examinations and correct the deficiencies in the dust filter

38 FMSHRC Page 1777

there is no indication that was going to happen. In fact Inspector Stone was told by both
Duckworth and the roof bolters that the inspection of the machine was complete. Under these
circumstances I find the high negligence level designated by Inspector Stone to be appropriate.
D. Unwarrantable Failure
Section 104(d)(1) of the Mine Act states:
If, upon any inspection of a coal or other mine, an authorized
representative of the Secretary finds that there has been a violation
of any mandatory health standard,….and if he finds such violation
to be caused by an unwarrantable failure of such operator to
comply with such mandatory health or safety standards, he shall
include such findings in any citation given to the operator under
this Act.
Unwarrantable failure is defined as aggravated conduct constituting more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is
characterized by such conduct as “reckless disregard,” “willful intent”, “indifference,” or the
“serious lack of reasonable care.” Id. at 2004-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC
189, 193-94. (February 1991).
The Commission considers the following factors when determining the validity of
104(d)(1) and 104(d)(2) orders: (1) the length of time that the violation has existed and the extent
of the violative condition, (2) whether the operator has been placed on notice that greater efforts
were necessary for compliance, (3) the operator’s efforts in abating the violative condition, (4)
whether the violation was obvious or posed a high degree of danger and (5) the operator’s
knowledge of the existence of the violation. Consolidation Coal Co., 22 FMSHRC 340, 353
(Mar. 2000). All of the relevant facts and circumstances of each case must be examined to
determine if an actor’s conduct is aggravated, or whether mitigating circumstances exist. IO Coal
Co., 31 FMSHRC 1346, 1351 (Dec. 2009).
For Citation No. 8506100, I find that the Secretary has not produced sufficient evidence
to satisfy the five factor test considered by the Commission in evaluating unwarrantable failure
designations. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Therefore citation
8506100 shall be MODIFIED from a 104(d)(1) to a 104(a) violation.
1. Extent and Duration of the Violation
Inspector Stone observed the dust accumulation on the mufflers was noticeable to a
casual observer. Ex. A. Inspector Stone concluded from the dust build up that the condition of
the dust box existed for more than one shift. Tr. 71-72. However, Foreman Duckworth testified
that he observed rock dust on the machine in question and that due to its location at the last open
crosscut it would have been rock dusted over calling into question the length of time the
condition of the dust box Inspector Stone observed existed. Tr. 156. While it is undisputed there
was dust on the clean side of the filter and that the filter had been damaged there is insufficient

38 FMSHRC Page 1778

evidence to conclude the length of time that the filter had been damaged and operated in that
condition.
2. Notice to the Operator
The “notice” factor of unwarrantable failure pertains to MSHA citations, directives, and
communications prior to the violation at issue that notify the operator of hazardous conditions or
practices. Consolidation Coal, 22 FMSHRC 2353; IO Coal. Co., 31 FMSHRC 1353-55.
The River View Mine has not been cited for a violation of 30 C.F.R. § 75.362(a)(2) in
two years as of 2015. Ex 1. Furthermore, previous MSHA and mine operator respirable dust
samples taken from the mine showed only 2 samples exceeding the standard for respirable dust.
Tr. 159-160. Neither of the samples were taken from working sections of the mine. Tr. 195-196.
3. Abatement Efforts
Citation 8506100 notes that Inspector Stone allowed Respondent “time to meet with all
roof bolter operators and section foreman to train these persons to conduct the examination to
assure compliance with respirable dust control parameters and to provide proof by signature that
these individuals received this training.” Ex A. No evidence was presented at hearing to dispute
that Respondent abated this citation in anything other than an effective and timely fashion.
4. Obviousness of the Hazard and Degree of Danger
Inspector Stone noticed dust accumulation on the mufflers coming from the dust
collection system and rock drill dust on the clean side of both filters. Tr. 45-47. Inspector Stone
alleged the deficiencies were obvious to a casual observer and should have been found by a
person who is trained to conduct these exams. Ex. A. However, as noted above, Section Foreman
Duckworth testified that he observed rock dust on the machine in question and that due to its
location at the last open crosscut it would have been rock dusted over calling into question
whether what Inspector Stone observed on the outside of the machine was rock dust or hazardous
drill dust. Tr. 156.
At the time of the citation there were four miners working downwind from the machine.
Ex. A, Tr. 70. Rock drill dust is dangerous because it contains silica, which can lead to a
permanently disabling disease called silicosis. Tr. 69, 72. Silicosis is caused when airborne silica
particles, similar to glass or sand, enter the lungs and cut the tissue. Tr. 72-73, 207. Persons
affected by silicosis will never get better, even if the individual is removed from the
environment. Tr. 72-73, 207.
5. Operator’s Knowledge of the Violation
During Foreman Duckworth’s testimony he acknowledged that all steps of the on-shift
examination needed to be completed prior to the examination being certified. Tr. 171.
Duckworth did not complete the examination himself, rather a scoop operator radioed him
informing him of the suction rating and that everything else was good. Tr. 154. It was standard

38 FMSHRC Page 1779

procedure at the River View Mine for the roof bolter operators to wait until they reached the face
to open the dust collection boxes. Tr. 175. In failing to ensure that the filter was checked prior to
certifying the examination of the 8157 roof bolter complete I found Foreman Duckworth acted
with high negligence as noted above.
However, I am not convinced Duckworth acted with reckless disregard or willful
aggravated intent to justify an unwarrantable failure designation. He knew the roof bolter
operators were certified in MSHA training and the River View Mine’s expectations training. Tr.
148-150. He also knew that the dust boxes would be checked and dumped once the roof bolter
was trammed to the face. His mistake here was knowingly certifying that the examination was
complete before it was actually complete. A highly negligent failure on his part but not one
indicative of aggravated conduct. I find that had Foreman Duckworth been aware of the
condition of the dust box and filter he would have promptly corrected the problem or instructed
the operators to do so. Factoring in that no prior violations of this standard had occurred and
Respondent’s timely abatement I conclude that the faulty certification of an inadequate
examination of the dust collection box was not an unwarrantable failure on the part of the
Respondent.
V. PENALTY
It is well established that Commission administrative law judges have the authority to
assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Company, 5
FMSHRC 287, 291 (March 1983). The Act requires that in assessing civil monetary penalties,
the Commission ALJ shall consider the six statutory penalty criteria:
(1) the operator’s history of previous violations, (2) the appropriateness of such
penalty to the size of the business of the operator charged, (3) whether the
operator was negligent, (4) the effect on the operator’s ability to continue in
business, (5) the gravity of the violation, and (6) the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation.
30 U.S.C. 820(I).
Respondent had no history of violations for this particular standard in two years as of
2015. Ex 1. In 2013, 525 MSHA and mine operator respirable dust samples were taken from the
River View Mine. Tr. 159-160. Two of the samples exceeded the respirable dust standard,
however all samples from working sections of the mine were satisfactory. Tr. 159-160, 195-196.
The Respondent had not been placed on notice that greater efforts were needed in complying
with the standard. Resp. Br., 23. The Respondent is a large mine, employing approximately 600
miners during the time of the violation. Resp. Br., 2. The payment of a reasonable civil penalty
will not affect the Respondents ability to continue business. Resp. Prehearing Report, 4. As I
have stated above the Respondent was highly negligent because the examination of the 8157 roof
bolter was not complete at the time Section Foreman Duckworth certified the examination as
complete. It is undisputed that the condition of the dust box filter was likely to contribute to a
permanently disabling injury, and that the condition of the dust filter was a significant and

38 FMSHRC Page 1780

substantial violation of the standards. It is also undisputed that four people would have been
affected had silica particles entered the air since there were four miners working in close
proximity to the roof bolting machine at the time of the violation. Silicosis is caused from silica
particles entering the air and is a permanently disabling disease. Tr. 69, 72. The Respondent
quickly worked to abate the violative condition by immediately informing inspector Stone they
would get someone to clean out the box and get the filter taken care of. Tr. 209, Resp. Br., 24.
The Secretary proposed a regularly assessed penalty of $5,961.00. I find that the
Respondent was highly negligent but that the failure to conduct a complete respirable dust
examination prior to the examination being certified as complete was not an unwarrantable
failure. Thus, after considering the statutory criteria, I find that a penalty of $4,500.00 is
appropriate.
VI. ORDER
Respondent is hereby ORDERED to pay the Secretary of Labor the total sum of
$4,500.00 within 30 days of this order.1

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

Distribution: (U.S. First Class Mail)
Hanah Harris-Yager, U.S. Department of Labor, Office of the Solicitor, 1244 Speer Boulevard,
Suite 216, Denver, CO 80204
Gary D. McCollum, 1146 Monarch Street, 3rd Floor, Lexington, KY 40513

1

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO
63179-0390

38 FMSHRC Page 1781

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

July 25, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING:
Docket No. KENT 2015-296
A.C. No. 15-19638-372766

v.
Mine: Ben’s Branch Mine
LOCUST GROVE, INC.,
Respondent
DECISION AND ORDER
Appearances:

Mary Sue Taylor, Esq., U.S. Department of Labor, Office of the Solicitor,
Nashville, Tennessee, for Petitioner
John M. Williams, Esq., Rajkovich, Williams, Kilpatrick & True, PLLX,
Lexington, Kentucky, for Respondent

Before:

Judge David Barbour

In this proceeding arising under sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977 (“the Act”), 30 U.S.C. §§ 815, 820, the Secretary of Labor (“Secretary”) on
behalf of his Mine Safety and Health Administration (“MSHA”) petitions for the assessment of
civil penalties against Locust Grove, Inc. (“Locust Grove”), a corporation that operates Ben’s
Branch Mine, a surface bituminous coal mine located in Perry County, Kentucky. The Secretary
charges Locus Grove with two violations of the Secretary’s mandatory safety standards for
surface coal mines, namely 30 C.F.R. § 77.1730(a) and 30 C.F.R. § 77.1001. Section 77.1713(a)
requires a certified person designated by the operator conduct an examination for hazardous
conditions in each active working area of a mine at least once during each working shift. It also
requires any hazardous condition to be reported and corrected.1 Section 77.1001 requires the

1

The standard states:
At least once during each working shift, or more
often if necessary for safety, each activing working
area shall be examined by a certified person designated
by the operator . . . for hazardous conditions
and any hazardous conditions noted during such
examinations shall be corrected by the operator.

38 FMSHRC Page 1782

operator of a surface coal mine to strip loose, hazardous material a safe distance from the top of a
highwall.2
The Secretary charges that on June 27, 2014, MSHA Inspector Larry Stubblefield found
that Locus Grove failed to strip loose, hazardous material a safe distance from the top of the
active highwall at its Ben’s Branch Mine. The Secretary asserts that Inspector Stubblefield
observed numerous rocks of various sizes lying or hanging near the crest of the highwall and saw
three miners working approximately 10 feet from its bottom. The inspector found that the
condition was highly likely to result in the miners’ deaths and was a significant and substantial
contribution to a mine safety hazard (an “S&S” violation) caused by the company’s reckless
disregard and unwarrantable failure to comply with section 77.1101. In addition, the Secretary
charges that the preshift and onshift examination records for the first and second production
shifts of June 23, 2014, through the inspection of June 27 did not note the presence of the loose
rocks at the top of the highwall, an indication that the examinations were inadequate and
therefore in violation of section 77.1713(a). The inspector found that the inadequate
examination were highly likely to result in three fatalities (the same three miners who Inspector
Stubblefield saw working within 10 feet of the bottom of the highwall). The inspector also
found the alleged violation was caused by Locust Grove’s reckless disregard and unwarrantable
failure to comply with of section 77.1713(a). Inspector Stubblefield cited the alleged violation of
section 77.1713(a) in a citation issued pursuant to Section 104(d)(1) of the Act, 30 U.S.C.
§814(d)(1)), and the alleged violation of section 77.1001(a) in an order issued pursuant to the
same section of the Act. The Secretary proposed penalties of $178,900 for each alleged
violation. The Secretary then filed the instant petition seeking assessment of the penalties as
proposed. For its part, the company denied it committed the alleged violations and challenged
Inspector Stubblefield’s findings and the Secretary’s penalty proposals.
After Locust Grove’s answer was received, the Commission’s Chief Judge assigned the
case to the court, which in turn ordered counsels to confer to determine if all or part of the case
could be settled. Counsels worked diligently to resolve their differences but were unable to do
so. Therefore, the case went forward as scheduled in Corbin, Kentucky. At the hearing the
Secretary’s counsel stated that the Secretary would call Inspector Stubblefield as a witness.
Counsel for the company stated he would call three management officials. The Secretary moved
that the witnesses be sequestered. The motion was granted, and the inspector was called to the
stand. Tr. 22-23.
The inspector explained the conditions he found on June 27, 2014, and he stating the
reasons why he made his various findings. However, as his testimony developed, it became clear
that the inspector had serious second thoughts about the number of miners affected by the cited
conditions, the degree of likelihood that the conditions would result in an injury or injuries, and
about management’s degree of culpability for the cited conditions. Therefore, after counsel for
the Secretary finished her direct examination and before counsel for Locust Grove began his
cross examination, the court asked counsels to approach the bench for a side bar discussion.
2

The standard states in pertinent part:
Loose hazardous material shall be stripped for a
safe distance from the top of pit[s] or highwalls[.]

38 FMSHRC Page 1783

When the discussion concluded a recess was taken and counsels left the court room to continue
discussing the case. Upon their return, counsel for the Secretary announced that counsels agreed
to settle the case by modifying the gravity and negligence findings on the citation and order from
the conditions making it highly likely three persons would suffer fatal injuries to the conditions
making it reasonably likely one person would suffer a fatal injury, and to change the allegations
of reckless disregard to high negligence, but to retrain the findings of unwarrantable failure.
Counsel for the Secretary explained that the changes warranted significant reductions in the
proposed penalties, to wit $7,500 for each violation. Tr. 72-74. After the agreement was
explained, the settlement was approved on the record by the court. Tr. 74.
ORDER
Citation/Order No.

Date

30 C.F.R.

Proposed Penalty

8390397

6/27/24

77.1713(a) $178,900

$7,500

8390398

6/27/24

77.1001

$7,500

$178,900

Date

The settlement has been approved (Tr. 74) and within 30 days of the date of this decision
the Secretary IS ORDERED to modify Citation No. 8390397 and Order No. 8390398 at line 10
by deleting the “highly likely” findings and making them “reasonably likely,” by deleting the
number of persons affected as three and making them one, and at line 11 by deleting the
“reckless disregard” findings and making them “high.” In addition, within the same 30 days,
Locust Grove IS ORDERED to pay a civil penalty of $7,500 for each violation, a total of
$15,000.3 Upon modification of the citation and order and payment of the penalties, this
proceeding is DISMISSED.

/s/ David F. Barbour
David F. Barbour
Administrative Law Judge

3

Payment shall be sent to: The Mine Safety and Health Administration, U.S. Department
of Labor, Payment Office, P.O. Box 790390, St. Louis, Missouri 63197-0290.

38 FMSHRC Page 1784

Distribution: (Certified Mail)
Mary Sue Tyler, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street,
Suite 230, Nashville, Tennessee 37219
John M. Williams, Esq., Rajkovich, Williams, Kilpatrick & True, PLLX, 3151 Beaumont Centre
Circle, Suite 375, Lexington, Kentucky 40513
/db

38 FMSHRC Page 1785

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, N.W., SUITE 520N
WASHINGTON, D.C. 20004

July 25, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. SE 2016-56-M
A.C. No. 38-00600-397382 (1BU)

v.
BLANCHARD MACHINERY COMPANY,
Respondent.

Mine: Haile Gold Mine

DECISION
Appearances:

James Shaffer, Conference & Litigation Representative, U.S. Department of
Labor, MSHA, Birmingham, Alabama; and Kristin R. Murphy, Esq., U.S.
Department of Labor, Office of the Solicitor, Atlanta, Georgia, for Petitioner;
Travis W. Vance, Esq., Fisher & Phillips, LLP, Charlotte, North Carolina,
for Respondent.

Before:

Judge Paez

This case is before me upon the petition for the assessment of a civil penalty filed by the
Secretary of Labor (“Secretary”) against Blanchard Machinery Co. (“Blanchard” or
“Respondent”), pursuant to section 105 of the Federal Mine Safety and Health Act of 1977
(“Mine Act” or “the Act”), 30 U.S.C. § 815. In dispute is a single section 104(a) citation issued
to Blanchard, a contractor at the Haile Gold Mine. To prevail, the Secretary must prove any cited
violation “by a preponderance of the credible evidence.” In re: Contests of Respirable Dust
Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek
Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub nom. Sec’y of Labor v.
Keystone Coal Mining Corp., 151 F.3d 1096, 1106–07 (D.C. Cir. 1998). This burden of proof
requires the Secretary to demonstrate that “the existence of a fact is more probable than its
nonexistence.” RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000) (citations
and internal quotation marks omitted), aff’d, 272 F.3d 590 (D.C. Cir. 2001).
I.

STATEMENT OF THE CASE

Chief Administrative Law Judge Robert J. Lesnick assigned this matter to me on
December 22, 2015. Citation No. 8899032 alleges Respondent violated 30 C.F.R. § 56.142071 by
1

Section 56.14207 provides: “Mobile equipment shall not be left unattended unless the
controls are placed in the park position and the parking brake, if provided, is set. When parked
on a grade, the wheels or tracks of mobile equipment shall be either chocked or turned into a
bank.” 30 C.F.R. § 56.14207.

38 FMSHRC Page 1786

leaving a pickup truck unattended without setting its parking brake. The Secretary proposes a
penalty of $100.00. I held a hearing on June 2, 2016, in Columbia, South Carolina. The Secretary
presented testimony from MSHA Inspector Harold Poe. Blanchard presented testimony from its
former employee Clayton Cowart. Pursuant to the Commission’s procedural rules on simplified
proceedings, the parties presented closing arguments at the hearing in lieu of submitting posthearing briefs. 29 C.F.R. § 2700.108(e). I accepted Respondent’s bench brief explaining the case
law cited in its closing argument.
II.

ISSUES

For Citation No. 8899032, the Secretary asserts Blanchard’s employee left mobile
equipment unattended without setting the parking brake. The Secretary argues that the citation
and proposed penalty are valid and appropriate. (Tr. 109:8–24.)2 According to the Secretary’s
interpretation of section 56.14207, a miner must be “behind the wheel” or present within the
vehicle to attend it. (Tr. 48:15–25, 109:17–24.) The Secretary asserts Blanchard violated section
56.14207 when its employee was not inside the vehicle and could not control it if it began to roll.
(Tr. 109:8–109:24.)
Although Blanchard admits the parking brake was unset, it contends its employee did not
leave the equipment “unattended” within the meaning of 30 C.F.R. § 56.14207. (Tr. 116:4–
118:24.) Blanchard argues that section 56.14207 permits an operator of mobile equipment to exit
if the operator remains in proximity. (Tr. 116:14–23, 118:17–24.) Blanchard cites to the
definition of “attended” in 30 C.F.R. § 56.2 and avers this definition governs the usage of
“unattended” in section 56.14207. (Tr. 116:14–17; Resp’t Prehr’g Rep. at 2.) Based on this
reading, Blanchard asserts that the citation should be vacated; alternatively, Blanchard seeks a
modification of the citation to no negligence. (Tr. 122:1–15.) The gravity was not contested.
Accordingly, the issues before me are (1) whether the Secretary has proven Blanchard
violated 30 C.F.R. § 56.14207; (2) whether the Secretary’s negligence determination is
appropriate; and (3) whether the Secretary’s proposed penalty is appropriate.
For the reasons set forth below, Citation No. 8899032 is MODIFIED to no negligence.
III.

FINDINGS OF FACT

At the hearing, the parties stipulated to the following:
1.

Blanchard Machinery Company was, at all times relevant to these proceedings,
engaged in mining activities at the Haile Gold Mine in or near Kershaw, South
Carolina 29067;

2.

Blanchard Machinery Company’s mining operations affect interstate commerce;

2

In this decision, the hearing transcript, the Secretary’s exhibits, and Respondent’s
exhibits are abbreviated as “Tr.,” “Ex. S–#,” and “Ex. R–#,” respectively.

38 FMSHRC Page 1787

3.

Blanchard Machinery Company is subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.;

4.

Blanchard Machinery Company is an “operator” as that word is defined in section
3(d) of the Mine Act, 30 U.S.C. § 802(d), at the Haile Gold Mine (Federal Mine I.D.
NO. 38-00600) where the contested citation in these proceedings was issued;

5.

The Administrative Law Judge has jurisdiction over these proceedings pursuant to
[s]ection 105 of the Act;

6.

On or about September 16, 2015, MSHA Inspector Harold A. Poe was acting as a
duly authorized representative of the United States Secretary of Labor, assigned to
MSHA, and was acting in his official capacity when conducting the inspection and
issuing the citation from docket SE 2016-0056 at issue in these proceedings;

7.

The citation at issue in these proceedings was properly served upon Blanchard
Machinery Company as required by the Act, and was properly contested by
Blanchard Machinery Company;

8.

The citation at issue in these proceedings may be admitted into evidence by
stipulation for the purpose of establishing its issue. The truthfulness or relevancy of
any statements asserted therein is not stipulated to by the parties;

9.

Blanchard Machinery Company demonstrated good faith in abating the violation;

10.

Without Blanchard Machinery Company admitting the propriety or reasonableness of
the penalty proposed herein, the penalty proposed by the Secretary in this case will
not affect the ability of Blanchard Machinery Company to continue in business.

(Tr. 9:2–6; Sec’y Prehr’g Report at 2–3.)
A.

Blanchard’s Operations at Haile Gold Mine

Blanchard Machinery Company, a contractor, supplies rental equipment to the Haile
Gold Mine in Kershaw, South Carolina. (Tr. 13:17–25, 28:21–29:3.) Blanchard delivers
equipment to the mine site for other contractors to use in moving earth to install plants for gold
extraction. (Tr. 28:7–29:3.) Alongside several other contractors, Blanchard rents a portion of the
Haile Gold Mine’s large property, occupying a fenced area located eighty yards from the mine’s
gated entrance. (Tr. 27:17–24, 29:4–9, 100:7–10.) Several office trailers are situated in this area.
(Tr. 62:18–23; Ex. R–2.) A flat parking area sits next to the office trailers. (Ex. R–2; Tr. 41:25–
42:12, 76:15–19.) At the time of the citation’s issuance, Haile Gold Mine was not yet engaged in
any gold extraction activities. (Tr. 51:3–7, 76:2–8.) Rather, operations at the mine site were just
beginning, whereby contractors were just starting to move earth to grade the land in preparation
of building the plants for gold extraction. (Tr. 28:7–16.)

38 FMSHRC Page 1788

B.

September 2015 Inspection

On September 15, 2015, MSHA Inspector Harold Poe came to inspect Blanchard’s area
at the Haile Gold Mine. (Tr. 13:17–25; Ex. S–3.) In the parking area next to Blanchard’s office
trailer, Poe observed Clayton Cowart, a rental representative for Blanchard, inside a parked
Chevy Silverado pickup truck. (Tr. 14:21–22; Exs. R–2, S–3.) The pickup truck had an
automatic transmission. (Tr. 22:22–23, 95:20–21.) Cowart had just returned from town with his
lunch and parked the pickup truck against a railroad tie, perpendicular to the trailer. (Tr. 79:8–20,
43:12–18; Ex. R–2.) Cowart had been working for Blanchard for two years, but had never gone
through an inspection with an MSHA inspector. (Tr. 78:21–79:3, 107:6–22.)3 While parked and
sitting in the driver’s seat, Cowart got flustered and forgot to engage the parking brake when he
saw MSHA’s Inspector Poe in the mirror approaching his pickup truck. (Tr. 33:18–24, 107:1–
22.)
Inspector Poe walked towards the pickup truck from behind at a forty-five-degree angle
to the truck’s cab. (Tr. 16:10–17, 32:20, 36:4–13.) Upon seeing Poe, Cowart overlooked his
everyday habit of setting the parking brake before exiting the vehicle; instead, he immediately
opened the door wide and hopped out to shake hands with the inspector. (Tr. 79:17–20, 80:3–21,
107:6–22.) He left his warm but uneaten lunch sitting on the seat of the truck. (Tr. 15:8–14.)
Poe was approximately twenty feet from the driver’s side of the truck’s cab when Cowart
exited the pickup truck and approached Poe to introduce himself and shake his hand before the
inspection. (Tr. 15:24–16:2, 80:16–21.) The driver’s side door was open the entire time. (Tr.
16:12–17.) Upon meeting, straightaway Poe asked Cowart whether he had set the parking brake.
(Tr. 16:20–23.) Cowart spun around moving back towards the cab to set the brake, but Poe
insisted that Cowart wait until Poe got out his camera and took a photograph of the unset parking
brake. (Tr. 16:20–25, 20:4–15, 107:6–12; Ex. S–1.)
After Inspector Poe photographed the violation, Cowart engaged the parking brake. (Tr.
83:3–6.) Poe then took a photograph of the set parking brake to note the violation’s abatement.
(Tr. 39:20–40:1; Ex. S–2.) From Poe noting the violation and photographing the unset parking
brake to Cowart engaging the parking brake and Poe photographing the violation’s abatement,
the entire exchange lasted less than two minutes—and the time between photographs was
perhaps a few seconds. (Tr. 45:17–46:5, 66:3–11; Exs. S–1, S–2, S–3.) Poe subsequently issued
Citation No. 8899032, stating:
The Chevy Silverado pick-up, company #8210, was left unattended
with the provided park brake not set when inspected. The truck is
used for transportation to and from the mine as needed as well as
around the mine site and in use today. The driver may be exposed
3

Cowart no longer works for Blanchard. (Tr. 78:15–79:3.) After graduating in May 2013
from the University of South Carolina with a degree in political science, Cowart worked as a
rental representative for Blanchard between August 2013 and November 2015. (Tr. 78:15–17,
Tr. 98:25–99:23.) In late November 2015, Cowart began work as a product engineer for Contour
Mining and Construction at the Haile Gold Mine. (Tr. 98:25–99:23.)

38 FMSHRC Page 1789

to a struck by hazard when replacing/removing the chocks and the
truck roll unsuspectedly for any reason.4
(Ex. S–3.) With regard to the violation’s gravity, Poe determined that a single miner could be
injured and that the likelihood of an injury or illness was unlikely. (Id.; Tr. 22:18–23:21.) In the
event of an injury or illness, Inspector Poe found that the injury would reasonably be expected to
result in lost workdays or restricted duty. (Id.) Poe later spoke to Cowart’s manager. (Tr. 25:24–
26:2.) Because Blanchard’s management gave specific training on 30 C.F.R. § 56.14207, Poe
determined that the violation was due to Blanchard’s moderate negligence and noted that the
violation was abated within a single minute by setting the parking brake. (Ex. S–3; Tr. 25:17–
26:5.)
At the parking area, Inspector Poe did not have Cowart conduct a formal “roll test” after
issuing the citation. (Tr. 24:8–19.) During a roll test, the vehicle is placed in neutral gear while
the examiners observe the vehicle for any movement to determine whether the surface has an
incline that would create a hazard. (Id.) Because the ground was level in the parking area, Poe
did not believe the test was necessary.5 (Tr. 24:15–19.) None of Blanchard’s mining supervisors
were present in the cited area or possessed any knowledge of the violation at the time the citation
was issued. (Tr. 58:10–13.) Citation No. 8899032 was the only citation issued to Blanchard by
Poe during his inspection of the Haile Gold Mine. (Tr. 13:17–14:3.) According to MSHA’s mine
data retrieval system, Blanchard has not been cited for any other violations at the Haile Gold
Mine. (Ex. S–4.)6
IV.
A.

PRINCIPLES OF LAW

Operator Liability

Under the Mine Act, operators are strictly liable for violations of the Secretary’s
mandatory health and safety standards. Spartan Mining Co., 30 FMSHRC 699, 706 (Aug. 2008)
(citing Asarco, Inc., 8 FMSHRC 1632, 1634–36 (Nov. 1986), aff’d, 868 F.2d 1195 (10th Cir.
1989)). The Mine Act’s regulatory regime establishes strict operator liability for the conduct of
contractors. See Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 155 (D.C. Cir. 2006);
Musser Eng’g, Inc., 32 FMSHRC 1257, 1272 (Oct. 2010) (“Because the Mine Act is a strict
liability statute, an operator is liable if a violation of a mandatory safety standard occurs,
4

Poe explained that he believed the likelihood of injury was unlikely but included this
last sentence to describe the hazard of not setting the parking brake. (Tr. 46:8–47:25.)
5

Although Poe did not perform a formal roll test, prior to leaving the parking area he had
Cowart put the pickup truck in neutral; the truck did not appear to move. (Tr. 42:7–9, 94:6–15.)
Cowart said this informal roll test was done “kind of just out of curiosity.” (Id.)
6

MSHA’s data retrieval system catalogues citations, orders, and safeguards. It is
available on MSHA’s public website. Mine Safety and Health Admin., Inspection Violations
Summary: For Event Number 667183, Mine Data Retrieval System,
http://arlweb.msha.gov/drs/ASP/InspectionViolations.asp (last accessed July 5, 2016).

38 FMSHRC Page 1790

regardless of the level of fault.”) (citations omitted). The Commission has observed that
“operator[] fault or lack thereof, rather than being a determinant of liability, is a factor to be
considered in assessing a civil penalty.” Asarco, Inc., 8 FMSHRC at 1636.
B.

Regulatory Interpretation

Regulatory interpretation is a two-step analysis. Walker Stone Co., 19 FMSHRC 48, 51
(Jan. 1997), aff’d, 156 F.3d 1076, 1081 (10th Cir. 1998). The first step is determining whether
the regulation is clear and unambiguous. Northshore Mining Co.v. Sec’y of Labor, 709 F.3d 706,
709 (8th Cir. 2013). When the regulatory language is clear and unambiguous, the regulation must
be applied as written. Id. If the regulation is ambiguous or subject to multiple meanings, the
second step is to determine whether the agency’s interpretation is permissible. Plateau Mining
Corp. v. FMSHRC, 519 F.3d 1176, 1192 (10th Cir. 2008) (citing Auer v. Robbins, 519 U.S. 452,
461 (1997)). The agency’s interpretation is valid so long as it is reasonable. Id. (“An agency’s
interpretation of its own regulation is ordinarily controlling unless plainly erroneous or
inconsistent with the regulation.”); Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995)
(holding that the agency’s regulation should be sustained as long it is “logically consistent with
the language of the regulation and . . . serves a permissible regulatory function”). To determine
whether the Secretary’s interpretation is reasonable, the Commission considers the regulatory
language and history. See Twentymile Coal Co., 36 FMSHRC 2009, 2012–13 (Aug. 2014).
C.

Operator Negligence

Commission Judges determine negligence under a traditional analysis rather than relying
on the Secretary’s regulations at 30 C.F.R. § 100.3(d). Mach Mining, LLC v. Sec’y of Labor, 809
F.3d 1259, 1264 (D.C. Cir. 2016) (quoting Brody Mining, LLC, 37 FMSHRC 1687, 1702 (Aug.
2015)). Each mandatory regulation carries a requisite duty of care. Id. In the negligence
determination, the Commission takes into account the relevant facts, the protective purpose of
the regulation, and what actions would be taken by a reasonably prudent person familiar with the
mining industry. Id. In evaluating these factors, the negligence determination is based on the
“totality of the circumstances holistically” and may include other mitigating circumstances
unique to the violation. Id. (quoting Brody Mining, LLC, 37 FMSHRC at 1703).
V.
A.

REGULATORY ANALYSIS, ADDITIONAL FINDINGS OF FACT, AND
CONCLUSIONS OF LAW

Citation No. 8899032—Leaving Mobile Equipment Unattended
1.

Interpretation of 30 C.F.R. § 56.14207

The Secretary asserts Blanchard is liable as Cowart left the pickup truck unattended with
an unset parking brake when he met Inspector Poe ten to twelve feet from the pickup truck. (Tr.
109:8–24.) The Secretary argues that exiting the pickup truck’s cab is sufficient to meet the
definition of “unattended” under section 56.14207. (Tr. 109:12–16.) Respondent relies on the
regulatory definition of “attended” provided in 30 C.F.R. § 56.2 to assert that Blanchard did not

38 FMSHRC Page 1791

violate the standard. (Tr. 116:14–17.) Respondent reasons Cowart had no need to set the parking
brake because he remained in proximity to the vehicle to prevent unauthorized entry. (Id.)
a.

“Unattended” is Ambiguous

I must first determine whether the meaning of “unattended” in the text of section
56.14207 is unambiguous. The Commission itself has not squarely addressed the meaning of
“unattended” in section 56.14207. Consequently, the starting point of interpretation is whether
the plain meaning of section 56.14207’s language is apparent. Dynamic Energy, Inc., 32
FMSHRC 1168, 1171 (Sept. 2010). “Unattended” in plain language has two relevant alternate
meanings: “[n]ot being attended to, looked after, or watched: an unattended fire” and “[h]aving
no attendants: unattended gasoline pumps.” The American Heritage Dictionary of the English
Language 1871 (4th ed. 2009). In turn, “attendant” is defined broadly as “one who attends or
waits on another.” Id. at 116. The Commission has held that when the dictionary definition of a
term is open to alternative interpretations, the term is ambiguous. Wolf Run Mining Co., 32
FMSHRC 1669, 1680. Section 56.14207 instructs miners to set the parking brake if the mobile
equipment is left unattended, but the regulation does not speak to the precise distance a miner
may move from the controls of the mobile equipment or how someone would attend or wait on
the equipment. 30 C.F.R. § 56.14207. Indeed, the dictionary definitions could lead to two
drastically divergent requirements: either a miner must be ever present at the equipment’s
controls or a miner may merely observe from a distance. I conclude that this definition does not
plainly indicate the meaning of “unattended.”
Respondent disputes the definition of “unattended” and argues that the section 56.2
definition of “attended”—“presence of an individual or continuous monitoring to prevent
unauthorized entry or access”—should determine the meaning of “unattended.” 30 C.F.R. 56.2.
It is true that when a regulatory definition of a term is available, that definition should apply to
other standards within the regulatory scheme. See Wolf Run Mining, Co., 32 FMSHRC at 1679–
1681. However, Respondent’s argument fails to address two reasons why the section 56.2
definition does not apply to section 56.14207.
First, section 56.14207 predates the “attended” definition in section 56.2. 50 Fed. Reg.
4,048, 4,069 (Jan. 1985); 56 Fed. Reg. 2,070, 2,089 (Jan. 1991). MSHA drafted new definitions
in 1991, including “attended” at section 56.2, to govern the regulations on “Explosives” in
Subpart E. 56 Fed. Reg. at 2,089. As originally conceived, “attended” applied solely to MSHA
regulations of explosive material. 56 Fed. Reg. at 2,071. Thus, the definition of “attended” in
section 56.2 was not meant to apply to parking procedures for mobile equipment.
Second, the regulatory context does not support Respondent’s definition. The purpose of
section 56.14207 is to prevent the unintentional movement of mobile equipment. Respondent
agrees that the requirement to set the parking brake is a precaution to prevent vehicles from
rolling. (Tr. 121:10–20.) But the regulatory history reveals the definition of “attended” in section
56.2 is concerned with a different goal—the prevention of unauthorized entry. 30 C.F.R. § 56.2.
In its original context of Subpart E, section 56.2’s definition of “attended” referred to continuous
monitoring to maintain the security of stored explosives which may be satisfied by “electronic or
video monitoring devices.” 56 Fed. Reg. at 2,071; see 30 C.F.R. § 56.6202(a)(7) (“[v]ehicles

38 FMSHRC Page 1792

containing explosive material shall be [a]ttended or the cargo compartment locked”). The
original context of section 56.2 emphasizes guarding access to explosives, not preventing
unintentional rolling. Because the regulatory history and context suggest otherwise, I reject
Respondent’s arguments applying section 56.2’s definition to section 56.14207.7
Consequently, I determine that the meaning of “unattended” in section 56.14207 is
ambiguous.
b.

The Secretary’s Definition is Reasonable and Entitled to Deference

Next I determine whether the Secretary’s interpretation of “unattended” is reasonable.
The Secretary interprets “unattended” in section 56.14207 to mean a miner is not “behind the
wheel” of the vehicle or cannot control the mobile equipment. (Tr. 48:15–25.)
The Secretary’s definition of “unattended” would simply require a miner to put the
vehicle’s gear in park and set the parking brake whenever the miner was not behind the wheel or
was not within reach of the controls. The Secretary’s interpretation is based on the potential
rolling hazard of an unset parking brake. (Tr. 63:21–64:4.) Record evidence indicates the
possibility of injury if the equipment rolled and the operator tried to jump back into the moving
vehicle to control it. (Tr. 73:23–74:4.) A miner in proximity to the mobile equipment, but not in
arm’s reach of the controls, is not in a position to prevent the mobile equipment from rolling.
Even a slow-moving vehicle may prove harmful to a miner unaware of its approach or unable to
swiftly react. Moreover, section 56.14207 is among the most frequently cited standards in
fatalities, which explains its inclusion in MSHA’s “Rules to Live By.” (Tr. 24:20–25:12.)
In contrast, Respondent attacks the Secretary’s interpretation of “unattended” by arguing
that the Secretary’s definition is unreasonable and internally inconsistent with section 56.14207.
(Tr. 116:9–118:7.) According to Respondent, a miner parking on a grade would violate section
56.14207 anytime the miner left the cab of the vehicle to chock the tires because the vehicle
would be “unattended” under the Secretary’s definition. (Tr. 117:15–118:7.) Rather, Respondent
asks me to apply the definition of “attended” as defined in 30 C.F.R. § 56.2. (Tr. 116:12–117:7.)
In Respondent’s view, under the section 56.2 definition, Cowart was in proximity and thus
“attended” his pickup truck; therefore, the pickup truck was not “unattended” under section
56.14207 and no violation occurred. (Tr. 119:9–120:1.)
First, Respondent conflates the regulatory definition of “attended” under section 56.2
with the Secretary’s definition of “unattended” and the requirements in section 56.14207.
Respondent’s theory relies on the definition of “attended” which I found inapplicable to section
56.14207 because it is a different term with a different legislative history. See discussion supra
V.A.1.a.
7

In support of its argument Respondent cites to Drilling & Blasting Systems, Inc., where
the Commission considered section 56.7012’s definition of “attended.” 38 FMSHRC 190, 194–
197 (Feb. 2016); (Resp’t Bench Br. at 2). This case is distinguishable and inapplicable as section
56.7012 refers to safety procedures for drilling, not parking procedures for unattended mobile
equipment, and discusses the term “attended,” not “unattended.” 30 C.F.R. § 56.7012.

38 FMSHRC Page 1793

Second, Respondent’s logic is faulty. Section 56.14207, composed of two sentences, has
two separate requirements: (1) put the equipment’s gear in park position and set the parking
brake whenever the equipment is left “unattended,” and (2) ensure the tires are “chocked or
turned into a bank” when “parked on a grade.” 30 C.F.R. § 56.14207. Respondent misreads
section 56.14207. The phrase “when parked on a grade” indicates that the second requirement
(i.e., to ensure the tires are “chocked or turned into a bank”) is conditioned on completion of the
first requirement (i.e., to put the equipment’s gear in park position and engage the parking brake
whenever equipment is left unattended). Id. Respondent’s example above alleges a miner would
violate section 56.14207 every time the miner leaves the cab to chock the tires; but under the
Secretary’s definition of “unattended” in section 56.14207, compliance is achieved if the miner
puts the mobile equipment’s gear in park and sets the parking brake before exiting the vehicle to
chock the tires when parked on a grade. Contrary to Respondent’s arguments, the Secretary’s
definition is logical and workable.
Even if I were to adopt Respondent’s theory that to “attend” the vehicle means being in
its proximity, doing so could essentially allow a miner to complete in any order the section
56.14207 requirements of putting the gear in park position, setting the park brake, and chocking
the tires if on a grade. Using Respondent’s example, as long as a miner was in proximity to the
mobile equipment, the miner could put the gear in park without engaging the parking brake and
then exit the cab to chock the tires; while chocking the tires the miner remains in proximity to the
pickup truck and may later re-enter the cab to set the parking brake. (See Tr. 116:9–118:7.) But
Respondent’s reading would potentially risk crushing a miner’s hands or other injury during
placement of the chocks underneath the tires even while in “proximity” to the equipment should
the equipment slip out of gear if the parking brake is not set. Indeed, Respondent’s interpretation
could potentially lead to a less safe working environment.
Respondent’s attacks on the Secretary’s interpretation of “unattended” ring hollow and I
reject them. I determine the Secretary’s interpretation of “unattended” in section 56.14207 to be
reasonable, and accordingly, I give deference to the Secretary’s interpretation.
My determination is consistent with the decisions of other ALJs who have similarly
deferred to such an interpretation of “unattended” under section 56.14207. See, e.g., Knife River
Constr., 36 FMSHRC 2176, 2181 (Aug. 2014) (ALJ) (holding a miner outside of, but close to, a
vehicle cannot operate the vehicle and therefore cannot attend it under the standard, as no miner
was in position to immediately control the vehicle); Southern Nevada Cement Co., 18 FMSHRC
1653, 1655 (Sept. 1996) (ALJ) (holding mobile equipment was “unattended” when a miner in

38 FMSHRC Page 1794

proximity was not able to stop the vehicle)8; Christman Quarry, 18 FMSHRC 2151, 2153 (Dec.
1996) (ALJ) (determining that exiting a bulldozer is leaving the equipment unattended inasmuch
as the miner could not retain control of throttle lever or otherwise stop the equipment from the
outside). Although these Commission ALJ decisions are not controlling, I find their reasoning to
be instructive and persuasive regarding the meaning of “unattended” under section 56.14207.
2.

Violation of 30 C.F.R. § 56.14207

Respondent does not dispute that Cowart failed to set the parking brake. (Tr. 107:2–4,
116:4–8.) Instead, Respondent disputes the distance between Cowart and the cab of the pickup
truck. (Tr. 35:3–7, 119:2–7.) According to Respondent, Cowart stayed within the swing radius of
the pickup truck’s door and within reach of the steering wheel and parking brake. (Tr. 81:23–
83:2, 118:12–13.) Respondent alleges Cowart never advanced far from the pickup truck based on
his position in the inspector’s photograph. (Tr. 81:13–15.) But Cowart was not standing by the
door when Poe first observed the violation, and Poe estimates Cowart had been at least ten to
twelve feet from the cab’s side when they met. (Tr. 14:24–15:1, 39:14–19.)
I do not need to decide the precise number of feet Cowart stood from the side of the
pickup truck. Cowart stated he exited the vehicle, and I find he moved to a position out of reach
of the vehicle’s controls whether it was ten feet from the pickup truck’s side or to the position
shown in the inspector’s photograph. (Ex. S–1; Tr. 81:13–15.) I determine that the vehicle was
unattended under section 56.14207 and that Cowart could not immediately control the vehicle or
prevent it from rolling if it unexpectedly moved. Therefore, Blanchard violated section 56.14207
by Cowart failing to set the parking brake of the Chevy Silverado pickup truck.
3.

Negligence

Inspector Poe assigned moderate negligence to the violation. (Ex. S–3.) Respondent
contends no negligence is the appropriate determination. (Tr. 122:5–15.) While employee error
or misconduct is not a defense to liability under the Mine Act, it is a factor in assessing the
negligence determination. Fort Scott Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1115–1117 (July
1995.) Moreover, “the negligence of a rank-and-file miner is not imputable to the operator for
purposes of penalty assessment or unwarrantable failure.” Martin Marietta Aggregates, 22
FMSHRC 633, 636 (May 2000) (citing Whayne Supply Co., 19 FMSHRC 447, 451, 453 (Mar.
1997); Fort Scott Fertilizer-Cullar, Inc., 17 FMSHRC 1112, 1116 (July 1995.); Southern Ohio
8

Respondent cites Southern Nevada Cement Co. as support for its argument. (Resp’t
Bench Br. at 2.) Contrary to supporting Respondent’s argument, the ALJ in that case determined
the mobile equipment was unattended because the miner was working underneath it, and thus
held that the miner’s proximity to the vehicle under the facts of that case was insufficient under
section 56.14207. Southern Nevada Cement Co., 18 FMSHRC at 1655. In addition, Respondent
cites to American Colloid Co. where the ALJ applied a de minimis rule to determine that the
measured grade was insignificant for a violation. 37 FMSHRC 2078, 2089–90 (Sept. 2015)
(ALJ). The holding pertained to the second requirement of section 56.14207 (chocking tires
when parking on a grade) and is inapplicable to the facts of this case. Id. If Respondent is
inviting me to apply a de minimis standard to the first requirement of section 56.14207, I decline.

38 FMSHRC Page 1795

Coal Co., 4 FMSHRC 1459, 1463–64 (Aug. 1982)). The actions of supervisors, foremen, or
other managers may be imputed to the mining operator in the negligence determination. Southern
Ohio Coal Co., 4 FMSHRC at 1464. On the other hand, when the operator has taken care to train
its employees, including supervisors and managers, and the manager acts aberrantly, negligence
is not imputed to the operator. Nacco Mining Co., 3 FMSHRC 848, 850 (Apr. 1981).
The Secretary provided no evidence or argument showing that Cowart, a rental
representative, occupied a supervisory or managerial position. (Tr. 25:24–26:5, 26:16–17, 58:10–
13, 98:6–99:19.) Nor did the Secretary provide evidence indicating Blanchard’s management
knew or should have known its employee left the pickup truck unattended without setting the
parking brake. (Tr. 58:24–59:7.) Indeed, Cowart had an everyday habit of setting his parking
brake. (Tr. 107:16–22.) And the record shows that Blanchard trained its employees to comply
with the provisions of section 56.14207. (Tr. 58:10–13, 100:18–101:24.) Cowart freely admitted
to Poe that he knew he was supposed to set the parking brake; but it slipped his mind given Poe’s
sudden appearance. (Tr. 58:7–8, 107:18–22.) Other than establishing the existence of the
violation at the moment it occurred while the vehicle door was still open, the Secretary made no
argument for why Cowart’s conduct – admittedly a momentary lapse because he was flustered –
should be imputed to Blanchard’s management. Rather, the record shows Blanchard’s
management was unware of the September 15 violation as it occurred. (Tr. 58:10–59:17.)
Moreover, Blanchard received no other citations during Poe’s September inspection. See Mine
Safety and Health Admin., Inspection Violations Summary: For Event Number 667183, Mine
Data Retrieval System, http://arlweb.msha.gov/drs/ASP/InspectionViolations.asp (last accessed
July 5, 2016).
Even considering Cowart’s lapse, I note that he parked against a railroad tie which
mitigated potential harm. (Tr. 80:6–15.) I also note conditions surrounding the violation strongly
support reducing the negligence determination. First, the parking area where Inspector Poe
issued the citation was flat and little danger of rolling existed. (Tr. 83:22–25, 94:6–15.) Second,
the parking area did not contain any current mining activities at the time of the citation. (Tr.
76:2–8.) Although workers were moving earth prior to erecting plants at other parts of the Haile
Gold Mine, no evidence in the record suggests even a remote chance of an unexpected force
moving the pickup truck. (Tr. 28:7–16.) Third, the pickup truck possessed an automatic
transmission that reduced the likelihood of unexpected rolling. (Tr. 22:18–23.) Moreover, Poe
testified that if the pickup truck did move, it would roll very slowly. (Tr. 57:12–16.) Fourth, the
duration of the violation was extremely short, possibly seconds. Finally, Cowart’s eagerness to
meet the MSHA inspector motivated his mistake of not setting the parking brake. (Tr. 107:1–22.)
Cowart’s error resides in his temporary oversight in abiding by the strict letter of the regulation
when meeting a MSHA inspector for the first time rather than in his exercising poor judgment.
Nothing in the record suggests Cowart habitually neglected to set his parking brake.
Given the evidence, I conclude that Blanchard did not know and had no reason to know
of the momentary lapse of one of its employees. Based on the totality of the circumstances
holistically given the particular facts of this case, I determine that Blanchard’s conduct
constituted no negligence.

38 FMSHRC Page 1796

B.

Penalty

The Secretary has proposed a penalty of $100.00. The Commission is not bound by the
Secretary’s proposal and reviews penalty assessments de novo. Mach Mining, LLC v. Sec’y of
Labor, 809 F.3d 1259, 1263–1264 (D.C. Cir. 2016). Under section 110(i) of the Mine Act, I must
consider six criteria in assessing a civil penalty: (1) the operator’s history of previous violations;
(2) the appropriateness of the penalty relative to the size of the operator’s business; (3) the
operator’s negligence; (4) the penalty’s effect on the operator’s ability to continue in business;
(5) the violation’s gravity; and (6) the demonstrated good faith of the operator in attempting to
achieve rapid compliance after notification of a violation. 30 U.S.C. § 820(i). There is no
requirement that these criteria receive equal weight in my assessment. Jim Walter Resources,
Inc., 36 FMSHRC 1972, 1979 (Aug. 2014).
Upon evaluating the criteria, I considered Blanchard’s size and insignificant history of
violations. (Ex. S–4.) It has already been stipulated that the citation will not affect Blanchard’s
capacity to continue in business. The gravity of the violation is low. I have also found
Blanchard’s actions to constitute no negligence. See Asarco, Inc., 8 FMSHRC at 1636.
Nevertheless, I note that the amount of the proposed penalty is consistent with a technical
violation. The evidence of record indicates Blanchard’s employee took immediate, good faith
steps to abate the violation by setting the parking brake. (Tr. 20:1–3, 83:3–6.) In consideration of
all the relevant facts and circumstances, I hereby assess a penalty of $75.00.
VI.

ORDER

In light of the foregoing, it is hereby ORDERED that Citation No. 8899032 is
MODIFIED to no negligence and affirmed in all other respects.
WHEREFORE, it is hereby ORDERED that Respondent Blanchard Machinery
Company pay a penalty of $75.00 within 40 days of this decision.9

/s/ Alan G. Paez
Alan G. Paez
Administrative Law Judge

9

Payment should be sent to: U.S. Department of Labor, MSHA, Payment Office, P.O.
Box 790390, St. Louis, MO 63179-0390. Please include docket and A.C. numbers.

38 FMSHRC Page 1797

Distribution: (Via U.S. Mail)
James Shaffer, Conference & Litigation Representative, MSHA, U.S. Department of Labor,
1030 London Drive, Suite 400, Birmingham, AL 35211
Kristin R. Murphy, Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street, SW,
Room 7T10, Atlanta, GA 30303
Travis W. Vance, Esq., Fisher & Phillips LLP, 227 W. Trade Street, Suite 2020, Charlotte, NC
28202
/eys

38 FMSHRC Page 1798

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

July 26, 2016
CIVIL PENALTY PROCEEDINGS

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

Docket No. VA 2014-0148-M
A.C. No. 44-00165-340588 A

v.

Mine: Castlewood Plant

TIM M. BALL, employed by Mountain
Materials, Inc.,
Respondent.
Docket No. VA 2014-0149-M
A.C. No. 44-00165-340589 A

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

Mine: Castlewood Plant

v.
RICKY A. ROSE, employed by Mountain
Materials, Inc.,
Respondent.
DECISION AND ORDER
Appearances:

Jason S. Grover, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Petitioner;
David M. Toolan, Esq., Oldcastle Law Group, Atlanta, Georgia, for
Respondent.

Before:
I.

Judge L. Zane Gill

INTRODUCTION

These proceedings arise under section 110(c) of the Federal Mine Safety and Health Act
of 1977 (“the Mine Act”), 30 U.S.C. § 820(c). Section 110(c) provides that corporate agents,
officers, or directors who knowingly authorize, order, or carry out a Mine Act violation may be
subject to individual civil penalties. Here, the Secretary of Labor (“the Secretary”) seeks to
impose individual civil penalties on Tim M. Ball and Ricky A. Rose (“Respondents”) in their
capacity as employees and agents of mine operator Mountain Materials, Inc. for two violations

38 FMSHRC Page 1799

that were issued to Mountain Materials by the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) under section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1).1
The sole matter at issue in Docket Number VA 2014-0148-M is Citation Number
8634338, which alleges a housekeeping violation. The Secretary seeks a $1,200.00 penalty
against Respondent Ball for this alleged violation. The sole matter at issue in Docket Number
VA 2014-0149-M is Order Number 8634340, which alleges an examination violation. The
Secretary seeks a $1,500.00 penalty against Respondent Rose for this alleged violation.
The parties presented testimony and evidence on May 27, 2015, in Big Stone Gap,
Virginia. For the reasons discussed below, after considering all the evidence, I uphold the two
violations as written and assess an individual penalty against each Respondent.
II.

STIPULATIONS

The parties have entered into the following stipulations of fact, which were listed in the
parties’ Joint Prehearing Report and read into the record at hearing (Ex. S-5; Tr. 5:17–6:18)2:
1. Mountain Materials, Inc., was an “operator” as defined in section 3(d) of the Mine Act,
30 U.S.C. § 802(d), at the Castlewood Plant mine.
2. Castlewood Plant is a “mine” as defined in section 3(h) of the Mine Act, 30 U.S.C. §
802(h).
3. The products of the Castlewood Plant entered commerce, or the operations or products of
the Castlewood Plant affected commerce, within the meaning of the Mine Act,
specifically sections 3(b) and 4, 30 U.S.C. §§ 802(b), 803.
4. Operations of Mountain Materials, Inc. at the Castlewood Plant where the citation and
order at issue in this docket were issued are subject to the jurisdiction of the Mine Act.
5. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designated Administrative Law Judges under sections 105
and 113 of the Mine Act, 30 U.S.C. §§ 815, 823.
6. Mountain Materials, Inc. is a “corporation” under the Mine Act.
1

MSHA’s Mine Data Retrieval website shows that Mountain Materials paid a $2,000.00
penalty for each violation without contesting either one. See U.S. Dep’t of Labor, MSHA, Mine
Data Retrieval System, http://arlweb.msha.gov/drs/drshome.htm.
2

The Secretary’s exhibits are labeled Exhibits S-1 through S-5. The Respondents did not
submit any exhibits. Citations to the transcript of the hearing are abbreviated “Tr.” The parties
were directed to submit closing briefs within 30 days of receipt of the transcript. (Tr. 119:8-14)
Because the Secretary filed his brief approximately 10 months after receipt of the transcript, I
deem the brief to have been untimely filed and decline to consider it.

38 FMSHRC Page 1800

7. Citation 8634338 was properly served by a duly authorized representative of the
Secretary of Labor.
8. Order 8634340 was properly served by a duly authorized representative of the Secretary
of Labor.
III.

FACTUAL BACKGROUND3

The citation and order at issue in this matter were written by MSHA Inspector Danny
Hagy4 on April 11, 2011, at Mountain Materials’ limestone processing facility, the Castlewood
Plant. (Ex. S-1; Ex. S-2) A few days earlier, Hagy had been contacted by a former MSHA
colleague, Jack Burnett,5 regarding dust conditions and buildups of material at the Castlewood
Plant. (Tr. 106:14-19, 107:11–108:8) At the time, Burnett was working for Mountain Materials
as a safety consultant tasked with conducting mock inspections at four of the company’s
operations, including the Castlewood Plant. (Tr. 66:3-12, 99:15–100:2) Burnett’s comments
about dust and buildups at the pelletizer plant spurred Inspector Hagy to visit the facility to make
sure there were no problems. (Tr. 114:5-12)
Hagy arrived at the Castlewood Plant around 7:00 p.m. on April 11, and initiated a
regular semiannual MSHA inspection. (Tr. 12:4–13:7) The mine office was closed, so he
traveled directly to the pelletizer plant. (Tr. 13:5-8) The pelletizer plant is a large building where
raw limestone is fed through a grinding mill, mixed with a binding agent, spun on a disc to form
round pellets, and run through a dryer to create a product that is sold for use in agricultural
applications. (Tr. 13:11-21, 34:14-20, 49:14-18, 52:4–53:5, 75:13-15, 80:13–83:25)
3

My findings of fact here and below are based on the record as a whole and my careful
observation of the witnesses during their testimony. In resolving any conflicts in the testimony, I
have taken into account the interests of the witnesses, or lack thereof, and consistencies or
inconsistencies in each witness’s testimony and between the testimonies of the witnesses. I have
also taken into account each witness’s demeanor. Any perceived failure to provide detail about
any witness’s testimony is not a failure on my part to consider it. The fact that some evidence is
not discussed does not mean that it was not considered. See Craig v. Apfel, 212 F.3d 433, 436
(8th Cir. 2000) (holding that administrative law judge is not required to discuss all evidence, and
that failure to cite specific evidence does not mean it was not considered). I have also fully
considered the contents of the official file.
4

Hagy has worked as a metal/nonmetal mine inspector for MSHA since October 2008.
To become an inspector, he completed 6 weeks of field training and 26 weeks of classroom
training at MSHA’s Mine Academy. He has prior industry experience working at a limestone
quarry for 22 years as a drill helper, equipment operator, and plant manager. (Tr. 9:20–11:25)
5

Burnett died prior to the hearing. (Tr. 106:21) The Respondents object to Burnett’s
statements as hearsay. (Tr. 107:1-8) However, hearsay evidence is admissible under the
Commission’s procedural rules. See 29 C.F.R. § 2700.63(a). Moreover, I rely on Burnett’s
statements only to reveal his impressions of the plant as conveyed to Hagy, not to show whether
or not there were buildups of material and dust at the plant. See Fed. R. Evid. 803(1) (providing
that rule against hearsay does not apply to statements describing present sense impressions).

38 FMSHRC Page 1801

When Hagy looked through the doorway of the plant, his view was obscured by
“excessive” airborne dust that prevented him from seeing beyond about fifteen feet into the
building. (Tr. 13:22–14:16, 15:2-12, 18:4-11) Because his visibility was limited and he did not
want to inhale the dust, he waited outside the door for about ten minutes until an employee
arrived and directed him to the control room at the back of the building. (Tr. 14:1-3, 14:17–
15:25) Respondent Ball,6 the shift foreman, was in the control room operating the pelletizer
plant. (Tr. 15:21-23) He was the only person in the plant at the time. (Tr. 76:11-13) Inspector
Hagy asked why the dust was so thick, but as of the hearing date four years later, he could no
longer recall what Ball had said to him. (Tr. 16:16-19, 32:6-10, 38:22-25) Ball immediately
attempted to tamp down the dust by applying water to the material he was processing, which
clogged the machinery and halted production. (Tr. 17:2-9)
Hagy walked through the plant with Ball after the dust had settled. (Tr. 17:8-19, 18:1424) He observed “quite a bit of buildup of material throughout the plant” both in walkways and
on the floor, including multiple areas where footprints were visible and one location where
material was piled to a height of 63 inches. (Tr. 17:11–18:1, 19:2-15) Hagy alleges that he
noticed several other obvious safety hazards, although by the hearing date he could no longer
remember any of them except a large door that was hanging by a hinge which he was concerned
would fall on a miner. (Ex. S-2; Tr. 29:17–30:11) When he reviewed the plant’s workplace
examination records, he found that no hazards had been recorded over the past two weeks except
a leak in the roof. (Ex. S-2 at 5; Tr. 31:11-24)
Based on his observations, Inspector Hagy issued Citation Number 8634338, which
alleges that the operator failed to keep the pelletizer plant’s floor and travelways clear, and Order
Number 8634340, which alleges that the operator failed to conduct an adequate workplace
examination in the pelletizer plant. (Ex. S-1; Ex. S-2; Tr. 20:17–21:2, 26:9–27:18) Citation
Number 8634338 was terminated eight days later, on April 19, 2011, with notation that the
buildups of material in the travelways had been cleaned up. (Ex. S-1 at 3) Order Number
8634340 was terminated on April 20 with notation that shift foremen had been retrained in the
proper performance of workplace exams. (Ex. S-2 at 4)
In July 2011, an MSHA investigator interviewed Ball and the plant’s fine grind
superintendent, Respondent Rose,7 who had been onsite but not at the pelletizer plant the evening
6

Ball began working at the Castlewood Plant in 1994, serving as a general laborer and
mill operator before becoming a certified foreman in 2000 or 2001. At the time of the inspection,
he was the second shift foreman for the dust plant. In this capacity, he supervised five employees
and was responsible for conducting pre-shift examinations, monitoring the plant for potential
problems, and ensuring the safety of his men. (Tr. 72:9-20, 89:2-7; Ex. S-4 at 2)
7

Rose is the fine grind plant superintendent at the Castlewood Plant. He began working
at the mine intermittently in 1980 and became a full-time employee in 1984. Over the years, his
duties have included stacking dust, driving a truck, operating a mill, operating crushers in the
crushing plant, and “[doing] everything in the fine grind plant.” He served as a foreman for 13
years before becoming a superintendent in 1997. As a superintendent, he directly supervises the
plant foremen, including Ball, and is responsible for daily activities at the mine. (Tr. 47:3-20,
63:11-25; Ex. S-3 at 2)

38 FMSHRC Page 1802

of the inspection. (Ex. S-3; Ex. S-4; Tr. 47:25–49:4) The Respondents told the investigator that
the buildups had been caused by a malfunction or imbalance in the pelletizing process that
occurred while running a special product. (Ex. S-3 at 4, 5; Ex. S-4 at 5) At hearing, they
explained that when an imbalance causes the material to become too wet or too dry, it is diverted
and dumped into a “floor bin” area8 as reject material that is later picked up with a skidsteer and
run through the system again. (Tr. 49:12–53:17, 79:4-14, 82:3–83:10, 97:11-13) They suggested
this is a normal part of the pelletizing process that can rapidly generate large amounts of reject
material and dust. (Tr. 49:9-11, 54:12–55:2, 59:3-18, 79:15–80:3, 84:5-20, 91:11-21, 101:5-15)
IV.

LEGAL PRINCIPLES
Section 110(c) Liability

Section 110(c) of the Mine Act provides that “[w]henever a corporate operator violates a
mandatory health or safety standard … any director, officer, or agent of such corporation who
knowingly authorized, ordered or carried out such violation shall be subject to the same civil
penalties” as the corporate operator. 30 U.S.C. § 820(c).
Thus, as a threshold matter, section 110(c) requires a showing that the individual
respondent is a director, officer, or agent of a corporate operator. Although the corporate
operator – in this case, Mountain Materials – need not be a party to the proceeding, another
necessary predicate for 110(c) liability is a finding that the operator violated the Mine Act.
Kenny Richardson, 3 FMSHRC 8, 9-11 (Jan. 1981), aff’d on other grounds, 689 F.2d 632 (6th
Cir. 1982), cert. denied, 461 U.S. 928 (1983).
Importantly, section 110(c) also requires a showing that the individual respondent
knowingly authorized, ordered, or carried out the violation. The Commission has construed
“knowingly” to include both actual and constructive knowledge, explaining that 110(c) liability
is triggered whenever a person “in a position to protect employee safety and health fails to act on
the basis of information that gives him knowledge or reason to know of the existence of a
violative condition.” Kenny Richardson, 3 FMSHRC at 15-16 (emphasis added); accord Sumpter
v. Sec’y of Labor, 763 F.3d 1292, 1299-1300 (11th Cir. 2014); Freeman United Coal Mining Co.
v. FMSHRC, 108 F.3d 358, 362-64 (D.C. Cir. 1997). Specific intent is not required. The
Secretary must prove only that the individual knowingly acted, not that the individual knowingly
violated the law. McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1996 (Aug. 2014) (citing
Warren Steen Constr. Co., 14 FMSHRC 1125, 1131 (July 1992)). Although a showing of
willfulness is not required either, “section 110(c) liability is generally predicated on aggravated
conduct constituting more than ordinary negligence.” Ernest Matney, 34 FMSHRC 777, 783
(Apr. 2012) (citing BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992)); see also
Freeman United, 108 F.3d at 360.
Whether conduct is “aggravated” is determined by looking at all the facts and
circumstances of the case to see if any aggravating or mitigating factors exist. Manalapan
Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal Co., 31 FMSHRC 1346, 1351 (Dec.
8

There is no physical bin. The term “floor bin” simply refers to a section of the floor that
is designated as a holding area for reject material. (Tr. 57:16-24, 90:15-17)

38 FMSHRC Page 1803

2009); Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Big Ridge, Inc., 34
FMSHRC 119, 125 (Jan. 2012) (ALJ Zielinski). These include: (1) the extent of the violative
condition; (2) the length of time that the violative condition existed; (3) whether the violation
posed a high degree of danger; (4) whether the violation was obvious; (5) the respondent’s
knowledge of the existence of the violation; (6) the respondent’s prior efforts in abating the
violative condition; and (7) whether the respondent had been previously placed on notice that
greater efforts were necessary for compliance. Sierra Rock Products, Inc., 37 FMSHRC 1, 4
(Jan. 2015); ICG Hazard, LLC, 36 FMSHRC 2635, 2637 (Oct. 2014); Manalapan, 35 FMSHRC
at 293; IO Coal, 31 FMSHRC at 1351-57; Consolidation Coal, 22 FMSHRC at 353; Cyprus
Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42
(D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal
Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug.
1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc.,
10 FMSHRC 705, 709 (June 1988); see also Ernest Matney, 34 FMSHRC at 783-87 (analyzing
aggravated conduct in 110(c) case by discussing unwarrantable failure factors).
Assuming that 110(c) liability applies, the gravity of the violation and negligence must
also be evaluated in accordance with the Commission’s well-established legal principles,
summarized below, in order to determine the appropriate penalty.
Significant and Substantial (S&S)
The citation and order at issue in this case have been designated by the Secretary as
significant and substantial (“S&S”). A violation is properly designated S&S “if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div.,
Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). The question of whether a particular
violation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc.,
10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
S&S enhanced enforcement is applicable only to violations of mandatory health and safety
standards. Cyprus Emerald Res. Corp. v. FMSHRC, 195 F.3d 42, 45 (D.C. Cir. 1999). The
Secretary bears the burden of proving all elements of a citation by a preponderance of the
evidence. In re: Contests of Respirable Dust Sample Alteration Citations: Keystone Coal Mining
Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d, 151 F.3d 1096 (D.C. Cir. 1998); Jim Walter
Res., Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ Zielinski) (“The Secretary’s burden is to
prove the violations and related allegations, e.g., gravity and negligence, by a preponderance of
the evidence.”).
In Mathies Coal Co., the Commission established the standard for determining whether a
violation was S&S:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard – that is, a measure of
danger to safety – contributed to by the violation; (3) a reasonable

38 FMSHRC Page 1804

likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.
6 FMSHRC 1, 3-4 (Jan. 1984).
Traditionally, the third element of the Mathies test has presented the most difficulty when
determining whether a violation is S&S. In U.S. Steel Mining Co., the Commission provided
additional guidance: “[T]he third element of the Mathies formula ‘requires that the Secretary
establish a reasonable likelihood that the hazard contributed to will result in an event in which
there is an injury.’” 7 FMSHRC 1125, 1129 (Aug. 1985) (citing U.S. Steel Mining Co., 6
FMSHRC 1834, 1836 (Aug. 1984)). The Secretary, however, “need not prove a reasonable
likelihood that the violation itself will cause injury.” Cumberland Coal Res., 33 FMSHRC 2357,
2365 (Oct. 2011) (citing Musser Eng’g, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010)), aff’d, 717
F.3d 1020 (D.C. Cir. 2013). Further, the Commission has found that “the absence of an injuryproducing event when a cited practice has occurred does not preclude a determination of S&S.”
Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005) and Blue Bayou Sand & Gravel,
Inc., 18 FMSHRC 853, 857 (June 1996)). This evaluation is also made in consideration of the
length of time that the violative condition existed prior to the citation and the time it would have
existed if normal mining operations had continued. Elk Run Coal Co., 27 FMSHRC at 905; U.S.
Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984).
The Fourth and Seventh Circuits have interpreted the Mathies test somewhat differently
by placing the emphasis and the bulk of the analysis on the second element of the test. See Knox
Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148 (4th Cir. 2016); Peabody Midwest Mining,
LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 2014). Because the Castlewood Plant is located in the
Fourth Circuit, my S&S analysis will follow the Fourth Circuit’s ruling in Knox Creek.
According to the Fourth Circuit, the second element of the Mathies test “primarily accounts for
the Commission’s concern with the likelihood that a given violation may cause harm” because
“for a violation to contribute to a discrete safety hazard, it must be at least somewhat likely to
result in harm.” Knox Creek, 811 F.3d at 162. The Fourth Circuit also held that the occurrence of
the hazard must be assumed at the third prong of the Mathies test, characterizing the appropriate
inquiry as whether the hazard, assuming it occurred, would result in serious injury. Id. at 161-65.
Gravity
The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is
often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC
1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (Mar. 1983),
aff'd, 736 F.2d 1147 (7th Cir. 1984) and Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681
(Apr. 1987)). The seriousness of a violation can be examined by looking at the importance of the
standard which was violated and the operator’s conduct with respect to that standard, in the
context of the Mine Act’s purpose of limiting violations and protecting the safety and health of
miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ Fauver). The
gravity analysis focuses on factors such as the likelihood of an injury, the severity of an injury,
and the number of miners potentially injured. The Commission has recognized that the likelihood

38 FMSHRC Page 1805

of injury is to be made assuming continued normal mining operations without abatement of the
violation. U.S. Steel Mining Co., 7 FMSHRC at 1130.
Negligence
“Negligence” is not defined in the Mine Act. The Commission, has, however,
recognized that “[e]ach mandatory standard … carries with it an
accompanying duty of care to avoid violations of the standard, and
an operator’s failure to meet the appropriate duty can lead to a
finding of negligence if a violation of the standard occurs.” A.H.
Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining
whether an operator met its duty of care, we consider what actions
would have been taken under the same circumstances by a
reasonably prudent person familiar with the mining industry, the
relevant facts, and the protective purpose of the regulation. See
generally U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984).
Brody Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015); Jim Walter Res., Inc., 36 FMSHRC
1972, 1975 (Aug. 2014); Spartan Mining Co., 30 FMSHRC 699, 708 (Aug. 2008). “Thus in
making a negligence determination, a Judge is not limited to an evaluation of allegedly
‘mitigating’ circumstances. Instead, the Judge may consider the totality of the circumstances
holistically.” Brody Mining, LLC, 37 FMSHRC at 1702.
Indeed, the Part 100 regulations “apply only to the proposal of penalties by MSHA and
the Secretary of Labor; under both Commission and court precedent, the regulations do not
extend to the independent Commission, and thus the MSHA regulations are not binding in any
way in Commission proceedings.” Id. at 1701-02 (citing Jim Walter Res., Inc., 36 FMSHRC at
1975 n.4, and Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984)
(“[N]either the ALJ nor the Commission is bound by the Secretary’s proposed penalties … we
find no basis upon which to conclude that [MSHA’s Part 100 penalty regulations] also govern
the Commission.”), aff'g 5 FMSHRC 287 (Mar. 1983)). Although the Secretary’s part 100
regulations are not binding on the Commission, the Secretary’s definitions of negligence in those
provisions are illustrative.
Mitigation is something the operator does affirmatively, with knowledge of the potential
hazard being mitigated, that tends to reduce the likelihood of an injury to a miner. This includes
actions taken by the operator to prevent or correct hazardous conditions.
Penalties
The principles governing the authority of Commission administrative law judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i)
of the Mine Act delegates to the Commission and its judges the “authority to assess all civil
penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing
penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). When an operator notifies the Secretary

38 FMSHRC Page 1806

that it intends to challenge a penalty, the Secretary petitions the Commission to assess said
penalty. 29 C.F.R. § 2700.28. Thus, the Commission alone is responsible for assessing final
penalties. See Sellersburg Stone Co. v. FMSHRC, 736 F.2d at 1151-52; American Coal Co., 35
FMSHRC 1774, 1819 (June 2013) (ALJ Zielinski).
Section 110(i) of the Mine Act sets forth six statutory criteria for the Commission to
consider when assessing civil penalties. See 30 U.S.C. § 820(i). These six criteria also apply,
with appropriate revisions, to the assessment of penalties against individuals under section
110(c). Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1764 (Aug. 2012). Specifically, the
Commission has indicated that judges should consider the following criteria when assessing a
penalty against an individual: (1) the individual’s history of previous violations; (2) the
appropriateness of the penalty to the individual’s income and net worth; (3) the effect of the
penalty on the individual’s ability to meet his financial obligations; (4) whether the individual
was negligent; (5) the gravity of the violation; and (6) the demonstrated good faith in abatement
of the violative condition. Id.; Ambrosia Coal & Constr. Co., 19 FMSHRC 819, 823-24 (May
1997); Sunny Ridge Mining Co., 19 FMSHRC 254, 271-72 (Feb. 1997).
The Commission has repeatedly held that substantial deviations from the Secretary’s
proposed assessments must be adequately explained using the Section 110(i) criteria. E.g.,
Sellersburg Stone Co., 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May 2000);
Cantera Green, 22 FMSHRC 616, 620-21 (May 2000). A judge need not make exhaustive
findings but must provide an adequate explanation of how the findings contributed to his or her
penalty assessments. Cantera Green, 22 FMSHRC at 621.
Although all of the statutory penalty criteria must be considered, they need not be
assigned equal weight. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).
Generally speaking, the magnitude of the gravity of a violation and the degree of negligence are
important factors, especially for more serious violations for which substantial penalties may be
imposed. Musser Eng’g, Inc., 32 FMSHRC 1257, 1289 (Oct. 2010) (judge justified in relying on
utmost gravity and gross negligence in imposing substantial penalty); Spartan Mining Co., 30
FMSHRC 699, 725 (Aug. 2008) (appropriate for judge to raise a penalty significantly based
upon findings of extreme gravity and unwarrantable failure); Lopke Quarries, Inc., 23 FMSHRC
705, 713 (July 2001) (judge did not abuse discretion by weighing the factors of negligence and
gravity more heavily than the other four statutory criteria). For example, violations involving
“extreme gravity” and/or “gross negligence,” or, as stated in the former section of 105(a), “an
extraordinarily high degree of negligence or gravity, or other unique aggravating circumstances,”
may dictate higher penalty assessments. See 30 C.F.R. Part 100, Final Rule, 72 Fed. Reg. 13592601, 13621.
V.

FINDINGS AND DISCUSSION
A.

Threshold Finding of Corporate Agency

As a preliminary matter, I find that Respondents Ball and Rose were agents of a corporate
operator within the meaning of section 110(c). The parties stipulated that Mountain Materials is a
corporation. (Ex. S-5) Ball and Rose admitted that at all times relevant to these proceedings, they

38 FMSHRC Page 1807

were employed by Mountain Materials as shift foreman and superintendent, respectively.
(Answer ¶7) The Respondents also admitted they were “agents” of the company within the
meaning of section 3(e) of the Mine Act, 30 U.S.C. § 802(e), which defines an agent as “any
person charged with responsibility for the operation of all or a part of a coal or other mine or the
supervision of the miners in a coal or other mine.” (Answer ¶7; Tr. 45:22-25) Both men were
charged with responsibility for the operation of the pelletizer plant and the supervision of miners
working there. (Ex. S-3 at 2; Ex. S-4 at 2, 5; Tr. 63:18–64:12) Accordingly, the Respondents are
subject to section 110(c) as corporate agents.
B.

Citation Number 8634338 (Housekeeping Violation)

Citation Number 8634338 alleges a violation of 30 C.F.R. § 56.20003(a). The Secretary
seeks an individual penalty against Respondent Ball for this violation.
1.

Violation of 30 C.F.R. § 56.20003(a)

Section 56.20003(a) is a broad, general “housekeeping” standard that provides:
“Workplaces, passageways, storerooms, and service rooms shall be kept clean and orderly.” 30
C.F.R. § 56.20003(a). Thus, the Secretary must establish two elements: (1) the cited area is a
“workplace,” “passageway,” “storeroom,” or “service room,” and (2) the area is not being kept
clean and orderly. The Secretary bears the burden of proving each element of the violation by a
preponderance of the evidence. RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept.
2000), aff’d, 272 F.3d 590 (D.C. Cir. 2001). The Secretary may properly charge an operator with
a violation if a reasonably prudent person familiar with the protective purposes of the cited
standard and the factual circumstances surrounding the alleged violation, including any facts
peculiar to the mining industry, would have recognized a hazard warranting corrective action
within the purview of the applicable regulation. LaFarge North America, 35 FMSHRC 3497,
3500-01 (Dec. 2013); Ideal Cement Co., 12 FMSHRC 2409, 2415-16 (Nov. 1990); Alabama ByProducts Corp., 4 FMSHRC 2128, 2129 (Dec. 1982).
In this case, Inspector Hagy alleges that § 56.20003(a) was violated when the mine
operator failed to keep travelways clean and orderly in the pelletizer plant. (Tr. 20:17–21:5; Ex.
S-1) Specifically, the narrative portion of the citation states that there were buildups of material
“throughout the floor and the travel ways” of the plant, including one area where the material
was 63 inches high and several areas where miners had been walking through the buildups. (Ex.
S-1 at 1) Hagy supported these allegations by documenting and describing specific locations
where he observed buildups.
Buildups in Front of the MCC
One such location was on the floor in front of the MCC (the motor control center or
master control center), which houses the electrical switches that lock out the pelletizer plant. (Tr.
25:10–26:2, 76:18) Hagy observed and photographed accumulated material with footprints in it
at this location. (Ex. S-1 at 6) Respondent Ball did not deny that there were buildups of material
in front of the MCC. He testified that this area is adjacent to the disc that spins the material into
pellets, which emits “small particles that fly everywhere” when it malfunctions, and that the

38 FMSHRC Page 1808

plant had malfunctioned the day of the inspection. (Tr. 76:14-77:17) Ball also conceded that he
was the person who had walked through the built-up material, leaving footprints. (Tr. 19:21–
20:1, 25:10-15, 88:8-14) He testified that there is a “little walkway” running through the area
that is used by the plant operator. (Tr. 77:2-4)
I find that the area in front of the MCC constitutes a “passageway” under § 56.20003(a)
because miners must pass through it in order to access the MCC, as evidenced by the fact that
Ball referred to it as “a little walkway” and walked through it. This area was not being kept clean
and orderly, in violation of § 56.20003(a).
Buildups in the Floor Bin Area
Elsewhere on the plant floor, Hagy photographed a pile of material that had accumulated
to a height of 63 inches. (Ex. S-1 at 5; Tr. 19:2-7) Respondents Ball and Rose did not dispute that
the 63-inch pile existed. (Tr. 53:18-24, 73:2, 88:4, 92:8-9) They also agreed that, as depicted in
the photograph, there were visible footprints or a “goat path” in the pile as if someone had
walked across it. (Tr. 55:18-21, 88:1-7; Ex. S-1 at 5) Ball stated that an access road had been cut
through the pile on the prior shift so that miners could drive equipment through the area hauling
pallets of sodium to be “poured in the bottom” or reject material to be dumped back on the belt.
(Tr. 72:23–73:13, 90:22–91:10; Ex. S-4 at 4)
Respondents suggested it is acceptable for material to accumulate in this area because it
is designated as a floor bin, not a walkway or workplace. (Tr. 49:9-11, 53:22–55:2, 79:15–80:3,
91:11-21, 94:9-17) According to Respondents, allowing reject material to collect here does not
present a safety issue because miners should know to avoid walking through the area if material
is present. (Tr. 55:9-13, 95:4–96:13) However, relying on miners’ skill and attentiveness to
prevent injury “ignores the inherent vagaries of human behavior.” Peabody Coal Co., 19
FMSHRC 1381, 1385 (Aug. 1997). Moreover, the footprints and Ball’s account of an access
road running through the pile show that miners were actually using this area as a passageway. In
fact, Ball admitted that the area could be characterized as a travelway under the circumstances
(Tr. 94:25–95:5), bringing it within the ambit of § 56.20003(a). The pile of material in this area
was so large that a reasonably prudent person would have at least made an attempt to begin
clearing it. I find that this area was not being kept clean and orderly, in violation of §
56.20003(a).
Buildups in Other Parts of the Plant
Other parts of the plant aside from the MCC and floor bin areas were also covered in
dust, according to Inspector Hagy. (Tr. 19:8-15, 43:13-15, 108:9-21) For example, a catwalk
around one of the crushers or mills was so full of rocks and dust that the material was rolling off
the sides. (Tr. 19:10-13, 108:12-15, 114:20–115:2) Hagy described the accumulations as
excessive. (Tr. 19:14) He did not recall seeing any parts of the plant floor that were clear. (Tr.
19:16-20, 108:22-24) There were so many places in need of cleaning that it was difficult to list
them all, he testified. (Tr. 115:7-9)

38 FMSHRC Page 1809

The Respondents did not specifically challenge these allegations. Ball stated that if the
catwalks or stairs had been “bad,” he was sure he would have written them up, but he “c[ould]n’t
really remember.” (Tr. 97:14-22) Rose opined that “on the most part, we run a pretty good –
pretty clean house” (Tr. 59:22-24), but did not address Hagy’s account of material blanketing the
floor and spilling over the sides of the catwalk around the crusher. Ball and Rose also attempted
to explain why the citation was not terminated for eight days. They testified that they had
probably finished cleaning the plant relatively quickly, but had to wait several days for Inspector
Hagy to return to terminate the citation. (Tr. 68:4–71:9, 78:19–79:3, 87:3-23) However, Hagy
testified that although the floor probably could have been cleaned with a loader in just a few
hours, “it was all the catwalks and these other areas that had to be manually shoveled and
cleaned that took the amount of time that it did.” (Tr. 108:18-21)
After considering all the evidence, I find Hagy’s description of the conditions at the
pelletizer plant to be more credible than Respondents’. I fully credit Hagy’s testimony that there
were extensive buildups of material throughout the travelways and floor of the plant, in violation
of § 56.20003(a).
I also reject Respondents’ suggestion that the buildups of material were a normal,
unavoidable part of the mining process. Respondents argue that the dust and buildups developed
very rapidly at the beginning of the shift when an attempt to make a particularly difficult product
triggered a malfunction that required Ball, who was not the regular plant operator, to dump large
amounts of reject into the floor bin to prevent it from accumulating elsewhere. (Resp. Br. 6; Tr.
57:4-6, 73:22–75:12, 77:18–78:9, 97:1-10, 101:3-15) Ball testified that his normal practice
would be to clean up the material in the bin area once the plant is running smoothly again. (Tr.
97:23–98:1) The implication is that the plant would have been cleaned in due time, but the
material built up too rapidly to be addressed before the inspector showed up. However, the
buildups were very extensive and bore footprints in multiple places. It is improbable to believe
they arose in the short period of time suggested by Respondents. Also, Ball admitted that a pile
of material was already present before his shift began. (Tr. 72:16–73:10, 86:1-7) A reasonably
prudent person would have recognized a hazard and initiated a cleanup. Ball chose to begin
running the plant instead. This action was inconsistent with the standard of care placed on the
operator under § 56.20003(a). Because the operator failed to keep passageways clean and orderly
in the plant, § 56.20003(a) was violated.
2.

S&S and Gravity

Inspector Hagy marked this violation as S&S and reasonably likely to result in a
permanently disabling injury to one miner. (Ex. S-1) He was concerned that “[i]f normal mining
practices were to continue in this condition, [with] people walking over this excessive amount of
material, dust in the plant, visibility low, it’s reasonably likely we could have had a serious
injury” such as a broken bone caused by a miner tripping and falling over material in the floor or
falling down a flight of stairs. (Tr. 21:9–23:3)
I have already found a violation of the mandatory safety standard at § 56.20003(a),
satisfying the first element of the Mathies test for S&S.

38 FMSHRC Page 1810

The second Mathies element requires a showing that the violation contributed to a
discrete safety hazard. As conceded by Respondents Ball and Rose, this violation contributed to
the hazard of a miner slipping, tripping, or falling due to the built-up material. (Tr. 65:1-11,
88:19–89:21) According to the Fourth Circuit, “for a violation to contribute to a discrete safety
hazard, it must be at least somewhat likely to result in harm.” Knox Creek, 811 F.3d at 162. The
buildups of material at issue in this case were located in travelways and on the floor of the active
pelletizer plant in areas where miners worked and traveled, as evidenced by the footprints in
many of the buildups. The buildups were so extensive that Inspector Hagy did not see any clear
paths across the floor. (Tr. 19:16-20, 108:22-24) If normal mining operations had continued, it
was reasonably likely that miners accessing the equipment in the pelletizer plant building would
have to walk over and through the widespread accumulations, as Respondent Ball admitted
doing. The accumulated material included dust, rocks, and pellets. (Tr. 53:6-13, 77:4-6, 79:1923, 114:20-24) It would be difficult for a miner to keep his footing in these materials. Airborne
dust obscured visibility in the plant (Tr. 18:4-11), increasing the chance that a miner would lose
his footing and fall while trying to cross the unstable and uneven surfaces created by the
buildups. Given these factors, I find that this violation was more than “at least somewhat likely
to result in harm” to miners and that the safety hazard to which it contributed was discrete.
Accordingly, the second Mathies element is satisfied.
The third and fourth Mathies elements inquire whether the hazard, assuming it occurred,
would be reasonably likely to result in a reasonably serious injury. As noted above, the hazard
presented by this violation was a slip- or trip-and-fall hazard. Extensive buildups were present
both on elevated catwalks and on the floor of the pelletizer plant. If a miner were to lose his
footing in the buildups and fall against a piece of machinery, down a flight of stairs, or onto the
hard plant floor, especially from an elevated catwalk, he would be reasonably likely to sustain
reasonably serious injuries such as broken bones, muscle sprains, or permanently disabling
injuries related to contacting moving machine parts. Accordingly, the third and fourth Mathies
elements are satisfied.
Because the evidence satisfies all four elements of the Mathies test, I find that this
violation was S&S.
Based on my findings above, I also find that the gravity of this violation was serious
because it was reasonably likely to result in a serious or permanently disabling injury to a miner.
3.

Respondent Ball’s Liability and Negligence

Ball can be held individually liable for a penalty under section 110(c) if he “knowingly
authorized, ordered or carried out” the violation. It is not necessary to find that he intended to
violate the safety standard, actually knew a standard was being violated, or displayed willfulness.
See Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 362-64 (D.C. Cir. 1997)
(actual knowledge or specific intent not required); Ernest Matney, 34 FMSHRC 777, 783 (Apr.
2012) (willfulness not required); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992)
(conscious disregard of safety standard not required). It is sufficient to find that he should have
known of the violation but nonetheless authorized, ordered, or carried out the violative conduct
and, in doing so, engaged in more than ordinary negligence. See, e.g., McCoy Elkhorn Coal

38 FMSHRC Page 1811

Corp., 36 FMSHRC 1987, 1996-99 (Aug. 2014) (affirming 110(c) liability when foreman was
aware of coal accumulations but directed production to continue before initiating cleanup).
I find that Ball knew there were buildups of material throughout the pelletizer plant on
April 11, 2011, and should have known that this condition violated § 56.20003(a). As shift
foreman, he was responsible for reviewing prior examination records and conducting his own
examination to ensure the workplace was clear of safety hazards. (Ex. S-4 at 2, 3, 5, 7; Tr. 89:27, 92:24–93:6) He customarily walks through the workplace at the beginning of the shift to
ensure the area is safe for his men, and he did so on April 11. (Tr. 72:16–73:21) At that time, he
was aware that the plant had not been running smoothly. He observed a pile of reject material on
the plant floor that was so large a road had been cut through it, and he walked through buildups
of material in front of the MCC. (Tr. 73:1-13, 86:1-7, 88:11-14) He was aware that the
housekeeping standard requires travelways to be kept clear and that buildups in travelways pose
a slip/trip hazard. (Tr. 88:15–18) He admits it was his responsibility to clear buildups and make
sure dust was controlled at the plant. (Tr. 90:1-3, 91:22–92:11; Ex. S-4 at 5) He also admits that
buildups in travelways or a large pile such as the one he saw in the floor bin area create a hazard,
and that he could have made a managerial decision to initiate immediate cleanup action. (Tr.
88:19–89:21, 93:7-22) Despite knowing that hazardous conditions existed and being in a position
to address them, Ball failed to do so. Instead, he added to the buildups by running the plant. (Tr.
73:14–74:3, 95:18-24) I find that his actions amounted to carrying out and implicitly authorizing
the violation.
Ball argues that he works with friends and family members at the mine and would never
deliberately interfere with his coworkers’ safety or violate a safety practice or standard. (Tr. 8:2–
9:1) However, deliberate intent to commit a violation is not required. See McCoy Elkhorn, 36
FMSHRC at 1996. Even if Ball genuinely did not realize the buildups were extensive enough
that they needed to be cleared in order to meet the standard of care prescribed in § 56.20003(a),
he still can be held liable as a foreman for failing to take adequate steps to meet that standard of
care. See Sumpter v. Sec’y of Labor, 763 F.3d 1292, 1300 (11th Cir. 2014) (rejecting good faith
as a defense to 110(c) liability); LaFarge Constr. Materials, 20 FMSHRC 1140, 1148-49 (Oct.
1998) (noting it is incumbent on agents to recognize serious hazards and meet the standard of
care proportionate to the danger); Prabhu Deshetty, 16 FMSHRC 1046, 1051 (May 1994)
(rejecting argument that foreman did not realize accumulations were extensive enough to
constitute a violation).
As discussed above, 110(c) generally requires a showing of aggravated conduct, which is
analyzed with reference to factors such as the extensiveness, obviousness, dangerousness, and
duration of the violation, the respondent’s knowledge of the violation, his abatement efforts, and
whether he was on notice that he needed to make a greater effort to comply with the Mine Act.
Notice of the need for greater compliance efforts generally takes the form of specific
warnings from MSHA or a history of past similar violations. See Dawes Rigging & Crane
Rental, 36 FMSHRC 3075, 3080-81 n.5 (Dec. 2014). In this case, MSHA did not single out the
Respondent to warn him that he needed to make a greater effort to comply with the housekeeping
standard.

38 FMSHRC Page 1812

However, Ball had knowledge of the violation in that he was fully aware of the
conditions at the plant and was familiar with the requirements imposed on him by § 56.20003(a)
and by his role as a foreman, yet he failed to make any effort to abate the violation until
Inspector Hagy arrived at the plant and asked him about the dust. (Tr. 88:15-18, 89:2-7, 90:1-3,
91:22–94:13) The violation was very obvious. The photographs taken by Inspector Hagy show
that the buildups of material would have been readily discernable to anyone who walked into the
pelletizer plant. (Ex. S-1 at 5-6; see also Tr. 24:8-9, 65:12-16) The violation was extensive both
in terms of the physical extent of the buildups and the time taken to cleat them: numerous areas
in the plant were affected; large amounts of material had been permitted to accumulate in some
locations, such as the 63-inch pile in the floor bin and the overflowing catwalk around the
crusher; and it took eight days for the citation to be terminated. The violation was dangerous in
that the buildups contributed to the hazard of a miner incurring serious injury in a slip- or tripand-fall accident. I agree with Inspector Hagy that the large amounts of material could not have
accumulated in one shift, and therefore the duration of the violation was longer than a shift. (Tr.
23:8-22, 39:18-21) These are all aggravating factors.
Despite Ball’s knowledge of the violation, the extensiveness and obviousness of the
violative conditions, and the danger they posed, he failed to take abatement action. Ball has not
shown that there were any significant mitigating factors. For these reasons, I find that he engaged
in aggravated conduct constituting more than ordinary negligence in connection with this
violation.9 Because he knowingly authorized and carried out this violation and his conduct was
aggravated, he is liable for a penalty under 110(c).
Based on my finding of aggravated conduct with no mitigating factors, I also find that
Ball’s negligence in connection with this violation was high.
4.

Penalty

The Secretary requests that I assess a penalty of $1,200.00 against Ball for this violation.
As discussed above, the criteria to be considered when assessing a penalty against an individual
respondent include: (1) his history of previous violations; (2) the appropriateness of the penalty
to his income and net worth; (3) the effect of the penalty on his ability to meet his financial
obligations; (4) whether he was negligent; (5) the gravity of the violation; and (6) the
demonstrated good faith in abatement of the violative condition. Mize Granite Quarries, Inc., 34
9

Consistent with this finding, it was appropriate for Inspector Hagy to mark the violation
as an unwarrantable failure, which is defined as aggravated conduct constituting more than
ordinary negligence. Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); Emery Mining
Corp., 9 FMSHRC 1997 (Dec. 1987). However, the unwarrantable failure allegation in the
citation is directed against Mountain Materials, not Respondent Ball, as evidenced by the fact
that the Secretary’s proposed penalty against Ball falls below the $2,000.00 statutory minimum
for unwarrantable failure violations (see 30 U.S.C. § 820(a)(3)(A)), so it is unnecessary to
address the unwarrantable failure determination here. See Kenneth D. Bowles, 29 FMSHRC 1055
(Nov. 2007) (ALJ Barbour) (declining to address unwarrantable failure allegation in 110(c)
case); Charles Clevinger, 26 FMSHRC 485, 499 (June 2004) (ALJ Feldman) (distinguishing
between operator’s aggravated conduct and individual agent’s aggravated conduct).

38 FMSHRC Page 1813

FMSHRC 1760, 1764 (Aug. 2012); Ambrosia Coal & Constr. Co., 19 FMSHRC 819, 823-24
(May 1997); Sunny Ridge Mining Co., 19 FMSHRC 254, 271-72 (Feb. 1997).
With regard to the first penalty criterion, the Secretary has not provided any information
on Ball’s violation history. Ball asserts that he has worked at the Castlewood Plant for more than
thirty years and has never been accused of the type of aggravated conduct necessary to establish
110(c) liability. (Resp. Br. 6) I conclude that he does not have a history of 110(c) violations.
The second and third penalty criteria are intended to account for factors such as the
Respondent’s income and family support obligations, the appropriateness of the penalty in light
of his job responsibilities, and his ability to pay. Sunny Ridge, 19 FMSHRC at 272. The
Commission has encouraged ALJs to make specific findings as to the Respondent’s net worth
and income and the nature and extent of his financial obligations. Ambrosia, 19 FMSHRC at
824. However, in this case, the parties have presented no information that would shed any light
on Ball’s personal financial status aside from the fact that he is a shift foreman who has worked
at a limestone processing plant for more than thirty years.
The remaining penalty criteria are negligence, gravity, and good faith abatement efforts.
My findings on gravity and negligence are discussed at length above. The evidence shows that
this violation was promptly abated in good faith by shutting down the plant for eight days in
order to clean up the accumulations.
After considering the statutory penalty criteria, I find that $1,200.00 is an appropriate
penalty to assess against foreman Ball for this serious, high-negligence violation.
C.

Order Number 8634340 (Examination Violation)

Order Number 8634340 alleges a violation of 30 C.F.R. § 56.18002(a). The Secretary
seeks an individual penalty against Respondent Rose for this alleged violation.
1.

Violation of 30 C.F.R. § 56.18002(a)

The cited mandatory safety standard provides: “A competent person designated by the
operator shall examine each working place at least once each shift for conditions which may
adversely affect safety or health. The operator shall promptly initiate action to correct such
conditions.” 30 C.F.R. § 56.18002(a). This standard can be satisfied by a preshift examination
conducted at the beginning of the shift or by an onshift examination. (Tr. 42:9-24) The standard
carries an implicit adequacy requirement. As the Commission recently explained, the
examination must be adequate in the sense that it must identify the hazardous conditions that
would be recognized by a reasonably prudent competent examiner. Sunbelt Rentals, Inc., 38
FMSHRC _, Docket Nos. VA 2013-275 et al., slip op. at 9 (July 12, 2016).
According to the Respondents, the competent persons designated by the operator to
conduct workplace examinations at the Castlewood Plant are the shift foremen. (Tr. 60:20-22,
92:24–93:6; Ex. S-3 at 5; Ex. S-4 at 5) As of the inspection date, there was no written policy in
place for conducting workplace exams. (Ex. S-3 at 3, 6; Ex. S-4 at 3) The examiners were

38 FMSHRC Page 1814

expected to record the exam results in the mine’s preshift books, which were kept in a control
room until full and then stored in Rose’s office. (Ex. S-3 at 3, 4; Ex. S-4 at 4; Tr. 64:4-9) Rose,
who holds overall responsibility for safety at the plant, generally reviewed the exam records.
(Ex. S-3 at 3, 6; Tr. 64:1-12)
Order Number 8634340 alleges that proper workplace examinations were not being
conducted at the pelletizer building, sand plant, and pulverized bagging area. (Ex. S-2 at 1) Both
the order and Inspector Hagy’s contemporaneous Citation/Order Documentation state that Hagy
issued six citations, some for violations that were of a serious nature, at these locations during
the April 11, 2011 inspection. (Ex. S-2 at 1, 5) Hagy described two of these violations at hearing.
The first was the built-up material throughout the pelletizer plant and the second was a heavy
door that was broken and hanging by one hinge. (Tr. 29:22–30:11) Hagy believed that the
operator had violated § 56.18002(a) because all the violations he cited on April 11 were obvious,
but no action was being taken to correct any of them, and the only hazard reported in the
preceding two weeks’ worth of examination records was a leak in the roof. (Tr. 27:5-18, 29:1721) Hagy took pictures of the examination records for the weeks of March 28 to April 2, 2011,
and April 3 to April 9, 2011, which confirm that no hazards were recorded in any areas of the
Castlewood Plant during that timeframe except water leaks. (Ex. S-2 at 6, 7) In fact, there is no
indication that five of the seven areas listed on the examination forms were actually examined at
all. Id. Two of the areas were marked “OK” on some days, but the boxes where examination
results should be recorded for the other five areas are completely blank. Id.
I have already found that buildups of material were present in the pelletizer plant for
more than one shift, constituting “conditions which may adversely affect safety or health” within
the meaning of § 56.18002(a). I credit Inspector Hagy’s undisputed allegation that he issued five
other violations during the inspection. Rose testified that he and Ball probably did not notice the
broken door because it stays open most of the time (Tr. 60:8-19), but the Respondents failed to
explain why the obvious, extensive buildups of material were not reported and corrected through
a proper workplace examination or why the exam records do not address any of the other
violations referenced by Hagy. The fact that two weeks’ worth of exam record forms were left
blank for some areas of the plant suggests that these areas may not have been examined at all.
Further, any exam that was performed at the pelletizer building on the day of the inspection was
inadequate in that the examiner failed to identify and address the obvious, extensive buildups of
material. Accordingly, I find that § 56.18002(a) was violated.
2.

S&S and Gravity

Inspector Hagy marked this violation as S&S and reasonably likely to result in a
permanently disabling injury to one miner. (Ex. S-2) He believed the violation contributed to the
same hazard as Citation Number 8634338, namely, the hazard of a person tripping or slipping
and falling in the buildups of material in the pelletizer plant, leading to serious injuries such as
broken bones. (Tr. 27:19–29:14) He also believed the door that was hanging by a hinge
presented a safety hazard because it could fall on a miner. (Tr. 29:7-10; Tr. 30:6-8)
The first element of the Mathies test for S&S is satisfied because a mandatory safety
standard was violated. The second Mathies element is also satisfied because this violation

38 FMSHRC Page 1815

contributed to the discrete safety hazards of a miner tripping and falling in the buildups of
material or the heavy door falling on a miner and injuring him. Although the violation did not
itself create these hazards, the operator’s failure to identify and promptly correct the hazards
through a proper workplace exam contributed to the risk that the hazards would occur and cause
injury. I have already found that, assuming a slip/trip-and-fall accident were to occur in the
pelletizer building, it would be reasonably likely to result in serious injury. This finding satisfies
the third and fourth elements of the Mathies test. Accordingly, this violation is S&S.
I find that the gravity of this violation is serious because it was reasonably likely to result
in serious injury to a miner, as discussed above. The inspector’s gravity designations are
consistent with my findings and I uphold them.
3.

Respondent Rose’s Liability and Negligence

Superintendent Rose can be held liable for a “knowing” violation under 110(c) if the
examination violation involves aggravated conduct and he knew or should have known of the
violation but nonetheless authorized, ordered, or carried out the violative conduct.
I find that Rose should have known of this violation. As the fine grind superintendent at
the pelletizer plant, he is responsible for dust control, daily activities, supervision of the foremen,
and overall safety at the plant. (Ex. S-3 at 2, 5; Tr. 63:22-25, 64:10-12) He spends 80-90% of his
workday in the plant area. (Ex. S-3 at 3) He is also the person responsible for reviewing the
examination records. (Ex. S-3 at 3, 6; Tr. 64:1-3) Although he was not in the pelletizer building
when Hagy inspected it, he was onsite that day and should have been aware of the buildups of
material, given that they were extensive, obvious, and had been amassing long enough to create a
63-inch pile in one location, and given that he was responsible for daily activities and safety at
the plant. Given his position and responsibilities, Rose had a duty to make sure that the foremen
he supervised were conducting proper workplace examinations. He should have recognized their
failure to correct the obvious hazardous conditions in the pelletizer plant, and he should have
noticed the blank spaces in the exam records indicating that his men may not be duly conducting
the required exams. Whether he turned a blind eye to the spotty exam records and the buildups in
the pelletizer plant, or whether he simply failed to adequately supervise the foremen working
beneath him, his actions amounted to knowing authorization of this violation.
I further find that Rose engaged in aggravated conduct constituting more than ordinary
negligence in knowingly authorizing the violation. Several aggravating factors contribute to this
determination. As discussed above, this violation posed a serious degree of danger to miners by
virtue of its contribution to the likelihood of a slip/trip-and-fall accident or other accident
stemming from the hazards that were not identified and corrected through a proper exam. The
violation was also obvious. The widespread presence of built-up material in the plant and the
blank spaces stretching across two weeks’ worth of exam records rendered it very apparent that
adequate workplace exams were not being conducted. The violation was also extensive in terms
of the area affected and the hazards missed by the examiners. Failure to conduct an adequate
exam affects the entire workplace, and in this case, six violations were permitted to exist because
they were not addressed through a proper workplace exam. Rose should have known of this
violation, yet took no abatement action, even though he could have stopped production to

38 FMSHRC Page 1816

address the hazards and could have instructed his foreman of the need to conduct more effective
exams. Rose has not identified any significant mitigating factors. For all these reasons, I find that
Rose engaged in aggravated conduct in connection with this violation,10 and he is liable for a
penalty under 110(c).
Based on my finding of aggravated conduct with no mitigating factors, I further find that
Rose’s negligence was high.
4.

Penalty

The Secretary requests that I assess a penalty of $1,500.00 against Rose for this violation.
As was the case for Respondent Ball, the parties have not presented any evidence
regarding Rose’s income, net worth, or financial obligations aside from the general fact that he
holds a position as fine grind superintendent at the Castlewood Plant, where he has worked for
35 years. (Resp. Br. 6) Thus, the record does not support specific findings on the appropriateness
of the penalty to Rose’s income and net worth or its effect on his ability to meet his financial
obligations.
The Secretary also has not provided any information about Rose’s violation history.
Rose, like Ball, asserts he does not have a history of 110(c) violations. (Resp. Br. 6) I accept this
assertion.
My findings on gravity and negligence are discussed in detail above. I further find that
this violation was abated promptly and in good faith, in that the shift foremen at the plant were
retrained on the proper performance of workplace exams within a week of the violation. (Ex. S-2
at 4) The foremen’s hours were also changed so that they would have time to perform more
thorough workplace examinations. (Ex. S-4 at 7) In addition, Rose indicated to the MSHA
investigator that he began reviewing the exam records more frequently after receiving this
violation. (Ex. S-3 at 3)

10

As discussed in footnote 9, my finding of aggravated conduct would support Inspector
Hagy’s designation of this violation as an unwarrantable failure, but the unwarrantable failure
allegation is not relevant here.

38 FMSHRC Page 1817

After considering the penalty criteria, I find that $1,500.00 is an appropriate penalty to
assess against superintendent Rose for this serious violation involving high negligence and
aggravated conduct.
ORDER
It is hereby ORDERED that Tim M. Ball pay a penalty of $1,200.00 and Ricky A. Rose
pay a penalty of $1,500.00 within thirty (30) days of the date of this order.11

/s/ L. Zane Gill
L. Zane Gill
Administrative Law Judge
Distribution:
Jason S. Grover, Esq., U.S. Department of Labor, Office of the Solicitor, 201 12th Street South,
Suite 401, Arlington, VA 22202
David M. Toolan, Esq., Oldcastle Law Group, 900 Ashwood Parkway, Suite 600, Atlanta, GA
30338-4780

11

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO
63179-0390.

38 FMSHRC Page 1818

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE NW, SUITE 520N
WASHINGTON, D.C. 20004

July 28, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. SE 2015-136-M
AC No. 40-02213-370090

v.
NYRSTAR GORDONSVILLE, LLC,
Respondent

Mine: Cumberland Mine

SUMMARY DECISION
Before:

Judge Bulluck

This case is before me upon a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor (“the Secretary”) on behalf of the Mine Safety and Health Administration
(“MSHA”) against Nyrstar Gordonsville, LLC (“Nyrstar”), pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The Secretary seeks a civil
penalty in the amount of $5,000.00 for an alleged violation of his mandatory safety standard
regarding timely accident notification.
Nyrstar filed a Motion for Summary Decision and Supporting Memorandum of Points
and Authorities (“Resp’t Mot.”) with attached exhibits (“Exs. R-1 through R-6”), including a
copy of the citation, MSHA Inspector James Hollis’ notes, an autopsy report, affidavits and
phone call logs of Adolph Minert and Eric Steidl, and a copy of MSHA’s Escalation Report. The
Secretary filed a Response to Respondent’s Motion for Summary Decision/Cross-Motion for
Summary Decision (“Sec’y Mot.”) with Nyrstar’s Assessed Violation History Report (“Ex. P-1”)
and Joint Stipulations (“Jt. Stips.”) attached. Nyrstar then filed a Reply in Opposition to the
Secretary’s Cross-Motion for Summary Decision (“Resp’t Reply”). The following are issues for
resolution in this case: (1) whether Nyrstar violated 30 C.F.R. § 50.10(a); and, if so (2) whether
Nyrstar was highly negligent in violating the standard; and (3) the appropriate penalty.
Pursuant to Commission Rule 67(b), “[a] motion for summary decision shall be granted
only if the entire record, including the pleadings, depositions, answers to interrogatories,
admissions and affidavits, shows: (1) that there is no genuine issue as to any material fact; and
(2) that the moving party is entitled to summary decision as a matter of law.” 29 C.F.R. §
2700.67.
It is well settled that summary decision is an extraordinary measure and the Commission
has analogized it to Rule 56 of the Federal Rules of Civil Procedure, which the Supreme Court

38 FMSHRC Page 1819

has construed to authorize summary judgment only “upon proper showings of the lack of a
genuine, triable issue of material fact.” Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9
(Jan. 2007) (citations omitted). When considering a motion for summary decision, the
Commission has noted that “the Supreme Court has stated that ‘we look at the record on
summary judgment in the light most favorable to . . . the party opposing the motion,’ and that
‘the inferences to be drawn from the underlying facts contained in [the] materials [supporting the
motion] must be viewed in the light most favorable to the party opposing the motion.’” Id. at 9
(quoting Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962); United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)).
Based on agreement of the parties to file cross motions for summary decision and the
facts, as represented by the parties, I find that there is no genuine issue as to any material fact.
For the reasons set forth below, I conclude that the Secretary is entitled to summary decision as a
matter of law, AFFIRM the citation, as modified, and assess a penalty against Nyrstar.
I. Joint Stipulations
Stipulations of Fact:
1. Mine Superintendent Adolph Minert was not at the Cumberland Mine on
Sunday, November 16, 2014.1
2. At approximately 13:08 [1:08 p.m.], on November 16, 2014, hoistman Donald
Gentry, an hourly non-management employee, called Mr. Minert to inform him
that Danny Thom was found in the change house and that Mr. Thom had killed
himself. The change house is located on mine property at the Cumberland Mine.
3. Mr. Minert drove to the Cumberland Mine immediately after the call from Mr.
Gentry and arrived at approximately 13:19 [1:19 p.m.].
4. While Mr. Minert was in transit to the Cumberland Mine, he called Eric Steidl,
Operations Manager for Middle Tennessee Mines, which includes the
Cumberland Mine, and informed him that Danny Thom was found in the change
house and it appeared he had committed suicide.
5. At the Cumberland Mine, Mr. Minert was not permitted to enter the change
house where Mr. Thom’s body was found. Mr. Minert spoke with mine personnel,
the police, and EMS responders who were at the scene on the mine site.
6. After hearing back from Mr. Minert, Mr. Steidl called the MSHA Hotline at
1-800-746-1553 at approximately 13:31 [1:31 p.m.] to report the incident.
7. No one answered the call, so Mr. Steidl left a message reporting an apparent
suicide at the Cumberland Mine and left his name and contact number for a call
1

The relevant date has been corrected. See Resp’t Reply at n.1.

38 FMSHRC Page 1820

back. MSHA recorded Mr. Steidl’s phone call as being received at 13:33 [1:33
p.m.]. MSHA called Mr. Steidl back to collect the necessary information.
8. After an inspection of the scene and interviewing witnesses, Inspector James
(Mike) Hollis issued Citation No. 6464299 to Nyrstar Gordonsville, alleging a
violation of 30 C.F.R. § 50.10(a).
General Stipulations:
A. Respondent is subject to the Federal Mine Safety and Health Act of 1977 and
to the jurisdiction of the Federal Mine Safety and Health Review Commission.
B. The presiding Administrative Law Judge has the authority to hear this case and
issue a decision.
C. Respondent has an effect upon commerce within the meaning of Section 4 of
the Federal Mine Safety and Health Act of 1977.
D. Respondent operates the Cumberland Mine, Mine ID 40-02213.
E. The citation in this docket is complete, authentic, and admissible.
F. The inspector’s notes for the citation (identified in Paragraph E above) are
complete, authentic, and admissible.
G. The exhibits and affidavits, and attachments thereto, filed with Respondent’s
Motion for Summary Decision are complete, authentic, and admissible.
H. Respondent is a zinc mine with more than 250,000 hours worked in 2014.
I. The citation in this docket was properly served on Respondent by a duly
authorized representative of the Secretary on the date stated therein.
J. The civil penalty proposed in this docket will not affect Respondent’s ability to
remain in business.
II. Factual Background
Nyrstar operates the Cumberland Mine, an underground zinc mine, in Smith County,
Tennessee. Jt. Stips. D, H. At 1:08 p.m. on Sunday, November 16, 2014, hoistman Donald
Gentry called Mine Superintendent Adolph Minert at his home to report that miner Danny Thom
had killed himself inside the mine’s change house. Ex. R-4 at 2; Jt. Stips. 1, 2. Minert lives about
10 minutes from the mine, and drove there immediately upon receiving the call from Gentry. Ex.
R-4 at 2; Jt. Stip. 3. While en route to the mine, he called Nyrstar Operations Manager Eric Steidl
to inform him that Thom was found in the change house and it appeared that he had committed

38 FMSHRC Page 1821

suicide. Ex. R-4 at 2, Ex. R-5 at 2; Jt. Stip. 4. Later, on December 16, a county medical examiner
confirmed the cause of Thom’s death as suicide. Ex. R-3 at 4.
At 1:19 p.m., Minert arrived at the mine and told Steidl that he would call him back as
soon as he gathered more information. Ex. R-4 at 2; Jt. Stip. 3. While police on-site prevented
Minert from entering the change house, he spoke with them, Gentry, geology technician Joe
Spoon, and EMS responders. Ex. R-4 at 2; Jt. Stip. 5. At 1:31 p.m., immediately following
Minert’s follow-up call, Steidl called MSHA to report Thom’s death based on Minert’s report to
him. Ex. R-5 at 2; Jt. Stip. 6. No one answered the initial call at MSHA, so Steidl left a voicemail
at 1:33 p.m. Ex. R-6; Jt. Stip. 7. MSHA returned Steidl’s call at 1:38 p.m. and gathered the
necessary information. Ex. R-6; Jt. Stip. 7.
After inspecting the scene and interviewing witnesses, MSHA Inspector James (Mike)
Hollis issued the citation in question to Nyrstar for failure to report Thom’s death to MSHA
within the mandated 15-minute reporting period. Ex. R-2 at 16; Jt. Stip. 8.
III. Findings of Fact and Conclusions of Law
Inspector Hollis issued 104(a) Citation No. 6464299 on November 16, 2014, alleging a
violation of section 50.10(a) that had “no likelihood” of causing an injury, and was due to
Nyrstar’s “high” negligence.”2 The “Condition or Practice” is described as follows:
The company failed to immediately contact MSHA at once without delay and
with-in the 15 minutes, when the death of an individual was discovered at the
mine on November 16, 2014. A company agent knew of the incident at
approximately 13:08 [1:08 p.m.] and MSHA was not notified until approximately
34 minutes later.
Ex. R-1. The citation was terminated on November 25, 2014, after Nyrstar held meetings with
management, and included instructions addressing the requirements of section 50.10(a) in its
emergency procedures.
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
Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas
Co., 11 FMSHRC 2148, 2152 (Nov. 1989)).
2

30 C.F.R. § 50.10(a) provides that “the operator shall immediately contact MSHA at
once without delay and within 15 minutes at the toll-free number, 1-800-746-1553, once the
operator knows or should know that an accident has occurred involving: (a) A death of an
individual at the mine; (b) An injury of an individual at the mine which has a reasonable
potential to cause death; (c) An entrapment of an individual at the mine which has a reasonable
potential to cause death; or (d) Any other accident.”

38 FMSHRC Page 1822

The Secretary argues that he is entitled to summary decision as a matter of law because
Nyrstar knew or should have known that a reportable death had occurred at the mine when
Minert received the call from Gentry at 1:08 p.m. and, therefore, further investigation before
calling MSHA was unnecessary. Sec’y Mot. at 1, 7-8. The Secretary supports these contentions
by arguing that no reasonable inference can be drawn from the record that undermines the
truthfulness of Gentry’s report to Minert, and that the 2006 revisions to section 50.10, and the
Commission’s decisions in Consolidation Coal, 11 FMSHRC 1935 (Oct. 1989); Wolf Run
Mining, 35 FMSHRC 3512 (Dec. 2013); and Signal Peak Energy, 37 FMSHRC 470 (Mar.
2015), only permit an operator to perform a pre-reporting investigation to determine whether a
reportable death has occurred at the mine. Sec’y Mot. at 5-6, 8. Furthermore, the Secretary
argues, the judge’s reasoning in Premier Chemicals, 29 FMSHRC 686 (Aug. 2007) (ALJ), which
permitted an operator to perform an investigation after management knew of a reportable event,
is irreconcilable with Commission precedent and has not been followed in later cases. Sec’y Mot.
at 6 n.6.
In response, Nyrstar contends that it is entitled to summary decision as a matter of law,
arguing that the 15-minute notification requirement was triggered at 1:29 p.m., when Minert
verified Thom’s death to Steidl after concluding a reasonable investigation into the information
conveyed by Gentry. Resp’t Mot. at 4, 7-8. Nyrstar further argues that to reduce the risk of
frivolously notifying MSHA of non-reportable accidents, Minert, as a management employee,
should have been permitted to conduct a first-hand investigation before calling MSHA because
the initial report, coming from rank-and-file miner Gentry, was not enough to constitute
knowledge on the part of Minert. Resp’t Reply at 5, 8-9. In support of this contention, Nyrstar
interprets Consolidation Coal, 11 FMSHRC 1935; Wolf Run, 35 FMSHRC 3512; Signal Peak,
37 FMSHRC 470; Hanson Aggregates Midwest, 35 FMSHRC 2412 (Aug. 2013) (ALJ); and
Premier Chemicals, 29 FMSHRC 686, as affording it an opportunity to investigate potentially
reportable accidents before calling MSHA, irrespective of the rank-and-file miner’s veracity.
Resp’t Reply at 4-6, 9.
The Commission has stated that the investigation period prior to reporting only lasts until
the operator knows or should know that a reportable event has occurred; once a person with
sufficient authority to call MSHA learns of a reportable event, the reporting period is triggered.
Signal Peak, 37 FMSHRC at 476; Wolf Run, 35 FMSHRC at 3518. In Signal Peak, there was
sufficient information to trigger the reporting period when a shift foreman encountered a miner
who had been thrown 50-80 feet from a roof fall and sustained a back injury. 37 FMSHRC at
476, 477 n.7 (stating that the determination of whether an incident is reportable “must resolve
any reasonable doubt in favor of notification”). The Commission has also found that an
underground foreman’s statements that “we had a mine explosion or something in here” and “get
mine rescue here right now” to a manager on the surface were enough to create knowledge of a
reportable accident under section 50.10. Wolf Run, 35 FMSHRC at 3516-18. In Wolf Run, the
Commission explained that Consolidation Coal merely “stands for the proposition that although
an operator should be afforded a reasonable opportunity to investigate, once it is determined that

38 FMSHRC Page 1823

a reportable accident has occurred, an operator must act immediately to report the incident.”3 35
FMSHRC at 3518.
Nyrstar cites Premier Chemicals and Hanson Aggregates in support of the operator’s
right to investigate whether a reportable accident has occurred prior to the 15-minute time frame
in which it must contact MSHA. In Premier Chemicals, the judge found the safety coordinator’s
20-minute investigation reasonable because, despite notice of a miner’s collapse at the mine, the
cause of death was not immediately known, the possibility of an ongoing risk to other miners
existed, the investigation was prompt and MSHA was notified shortly thereafter, and the miner’s
death was confirmed to have resulted from natural causes. 29 FMSHRC at 690-92. Similarly, a
citation charging a violation of section 50.10 was vacated upon a finding that a non-fatal heart
attack was not a reportable injury, and an alternative finding that the 15-minute reporting
requirement was not breached because operators are afforded a “‘reasonable opportunity to
investigate an event’” before the reporting requirement is triggered. 35 FMSHRC at 2414 n.5,
2416-17.
Nyrstar’s reliance on Premier Chemicals and Hanson Aggregates is misplaced. These
cases were decided before the Commission’s Wolf Run and Signal Peak decisions, which made
clear that a pre-reporting investigation is not a per se guarantee, but rather an opportunity that
ends once an operator knows or should know that a reportable accident has occurred.
Furthermore, there is no indication in Signal Peak, Wolf Run, or Consolidation Coal that
knowledge of a reportable event is contingent upon management’s opportunity to observe the
event first-hand. In fact, such a limitation would effectively undermine the Commission’s
direction to “resolve any reasonable doubt in favor of notification.” Signal Peak, 37 FMSHRC at
477. Thus, Nyrstar was not entitled to perform a pre-reporting inspection simply because Gentry
was a rank-and-file miner rather than a management-level employee.
Under the circumstances of the instant matter, it is undisputed that Gentry informed
Minert via a phone call at 1:08 p.m. that Thom had killed himself. Therefore, Minert was aware
that the cause of Thom’s death, by its very nature, foreclosed any reasonable inference that other
miners were exposed to an ongoing hazard. Furthermore, no reasonable inference can be drawn
from the established facts to suggest that Gentry’s report was not clear or credible, or that he had
reason to falsely report the incident. Drawing all reasonable inferences in favor of Nyrstar, I find
that Minert had been given all the information that he needed during the 1:08 p.m. phone call to
know that a reportable accident had occurred, and that the 15-minute reporting timeline had been
triggered at that time.
Accordingly, I find that Nyrstar violated the reporting requirement in section 50.10(a)
when Thom’s death was untimely called in to MSHA 23 minutes after the operator was put on
notice of its occurrence, and exceeded the 15-minute rule by eight minutes.

3

The pre-2006 version of section 50.10 involved in Consolidation Coal and Wolf Run,
required an operator to “immediately contact” MSHA in the case of a reportable event, with no
mention of a specific time frame for reporting. The final rule changing the provision to include
the “within 15 minutes” language became effective in December 2006. See 71 Fed. Reg. 71430
(Dec. 8, 2006).

38 FMSHRC Page 1824

B. Gravity and Negligence
The record establishes that Thom’s death did not arise from an ongoing hazard affecting
miners’ safety, and that the delay in reporting the incident to MSHA had no likelihood of
exacerbating his condition or putting others in peril. The Commission has found a violation of
section 50.10 to have resulted from high negligence where the operator had no intention of
reporting the incident or intentionally delayed reporting. See Wolf Run, 35 FMSHRC at 3518
(finding the operator highly negligent because the record “strongly suggest[ed]” that
“management was motivated not to contact MSHA immediately in order to avoid enforcement”);
Rex Coal Co., 38 FMSHRC 208, 210, 213 (Feb. 2016) (affirming the operator’s high negligence
when a miner searched for another miner instead of calling MSHA regarding a reportable event,
which MSHA learned of through a news report).
Minert arrived at the mine 11 minutes after receiving the call from Gentry. Another 12
minutes elapsed between Minert’s arrival on-site and Steidl’s call to MSHA. Despite the
inference drawn in favor of Nyrstar, that its management personnel held a good-faith belief that
an investigation into Thom’s death was warranted prior to contacting MSHA, it was
unreasonable to assess the information initially conveyed to Nyrstar as insufficient notice of a
reportable incident requiring immediate contact with MSHA; Gentry’s call clearly conveyed that
a death had occurred inside the change house and that suicide was the probable cause. It was
reasonable for Minert and Steidl to agree that Minert follow up with his own investigation, but
only after MSHA had been contacted without delay. After all, Nyrstar was always free to
supplement its report to MSHA as more information became available. All things considered,
however, including the promptness with which Nyrstar called MSHA after concluding its 12minute in-house investigation, I find no indication that Nyrstar intended to avoid or even
forestall enforcement. Therefore, Nyrstar’s conduct constituted no more than ordinary, or
moderate, negligence.
IV. Penalty
While the Secretary has proposed a civil penalty of $5,000.00, the judge must
independently determine the appropriate assessment by proper consideration of the six penalty
criteria set forth in section 110(i) of the Act, 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). Notwithstanding
application of Sellersburg criteria, however, the Act imposes a minimum penalty of $5,000.00
for section 50.10 violations. 30 C.F.R. § 110(a)(2).
Applying the penalty criteria, and based upon a review of MSHA’s online records, I find
that Nyrstar is a large operator, with no prior violations of section 50.10(a), and an overall
violation history that is not an aggravating factor in assessing an appropriate penalty.4 As
stipulated, the proposed civil penalty will not affect Nyrstar’s ability to continue in business. Jt.
Stip. J. I also find that Nyrstar demonstrated good faith in achieving rapid compliance after
4

Nyrstar’s motion to strike the Elmwood/Gordonsville mine’s violation history from Ex.
P-1, opposed by the Secretary, is DENIED, inasmuch as the appropriate weight has been
accorded to that evidence.

38 FMSHRC Page 1825

notification of the violation. The remaining criteria involve consideration of the gravity of the
violation and Nyrstar’s negligence in committing it. These factors have been discussed fully.
Therefore, considering my findings as to the six penalty criteria, the penalty is set forth below.
It has been established that this violation of section 50.10(a) had no likelihood of
resulting in an injury, that Nyrstar was moderately negligent, and that the violation was timely
abated. Therefore, I find that a penalty of $5,000.00, the statutory minimum proposed by
Secretary, is appropriate.
ORDER
ACCORDINGLY, the Secretary’s Cross-Motion for Summary Decision is GRANTED,
Respondent’s Motion for Summary Decision is DENIED, and it is ORDERED that the
Secretary MODIFY Citation No. 6464299 to reduce the level of negligence to “moderate,” and
that Nyrstar Gordonsville, LLC, PAY a civil penalty of $5,000.00 within 30 days of the date of
this Decision.5

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

Distribution:
Thomas Motzny, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street,
Suite 230, Nashville, TN 37219
Dinah L. Choi, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 222 SW Columbia Street,
Suite 1500, Portland, OR 97201

5

Payment should be sent to: Mine Safety and Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please include docket
number and AC number.

38 FMSHRC Page 1826

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004
TELEPHONE: 202-434-9933 / FAX: 202-434-9949

July 1, 2016
BRIAN JACKSON,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. CENT 2016-0178-DM
SC-MD-16-02

v.
ALAN RITCHEY MATERIALS CO., LC,
Respondent.

Mine: Pope’s Point
Mine ID: 34-01930

ORDER ON MOTION
Before the Court in this Section 105(c)(3) discrimination action is Respondent Alan
Ritchey Materials Co., LC’s (“Alan Ritchey”) Motion to Strike Complainant’s First Amended
Complaint. For the reasons which follow, because the Court finds that the First Amended
Complaint is superfluous, the Motion is GRANTED. However, the Complainant’s original
complaint before the Mine Safety and Health Administration (“MSHA”) remains intact and this
proceeding, along with the Court’s observations and comments about the nature and limits of
Mine Act discrimination proceedings, as set forth below, moves forward towards its October 12,
2016, hearing date.
Complainant Brian Jackson filed a discrimination complaint with MSHA on November
24, 2015. According to his handwritten complaint, Jackson stated, in essence, that on November
17, 2015 he showed up for work and was then advised that he would be assigned to work on a
boat that evening. Concerned about the assignment, Jackson then went to the plant manager’s
office “to explain [that he did] not feel safe on the river at night time due to [the] sinking [of] a
boat on July 28, 2015.” Jackson was on that boat. He was told that, despite his concerns, he had
to perform the work on the dredge. Jackson then expressed the same issue to his supervisor,
Daniel Baker, and advised Baker that he would return to work the next day. When Jackson
arrived at work the following day, he was informed that he no longer had a job with Alan
Ritchey. Jackson’s complaint stated that he believed his discharge was “due to [his] feeling
unsafe and discrimination against [him] being a registered Choctaw Nation Tribal Member.”
MSHA’s discrimination report acknowledges that “Mr. Jackson [asserts that he] was terminated
after he told his supervisor that it was unsafe to work in a small boat on the river in the dark to
repair a cable near the dredage (sic) [i.e. “dredge”]. Mr. Jackson refused to do this particular job

38 FMSHRC Page 1827

again because two weeks prior the boat he was in sanked (sic) to where (sic) the fire department
had to be called in to rescue him.” 1
Thereafter, on January 5, 2016, MSHA sent a letter to Jackson advising that, pursuant to
its investigation, it did not believe there was sufficient information to establish by a
preponderance of the evidence that a violation of Section 105(c) occurred.
Complainant Jackson filed an appeal of MSHA’s determination on January 21, 2016.
Critically, he did state “I request an appeal of MSHA’s determination dated January 5, 2016.”
That statement constitutes a sufficient basis to preserve the Complainant’s appeal under Section
105(c)(3). On February 1, 2016, Ronald R. Huff, Esq. advised, by letter to the Federal Mine
Safety and Health Review Commission (“Commission”) that he was representing the
complainant. On May 19, 2016, the case was assigned to this Court.
Subsequently, Attorney Huff filed, on June 10, 2016, Complainant’s “First Amended
Complaint.” That Amended Complaint alleges the grounds for Jackson’s safety concerns
involving working on a boat, asserts that he refused to work under such unsafe conditions, and
that he was then discharged from his employment with the Respondent. First Amended
Complaint, ¶ 5-11. However, the Amended Complaint then adds that “[d]uring the course of his
employment, Complainant, a member of the Choctaw Nation, was subjected to discrimination,
harassment, and derogatory comments from supervisors and fellow employees based on his
ethnicity.” 2 Id. at ¶ 12. It continues, stating that “Complainant was also subjected to sexual
harassment by his supervisor, Daniel Baker, who threw feminine hygiene products at him and
telling him, ‘this is for your bleeding p***y.’” Id. at ¶ 13. The Amended Complaint then returns
to Jackson’s original discrimination complaint, filed with MSHA, noting that it “alleg[ed] he was
discharged because he refused to work under unsafe conditions.” Id. at ¶ 14. Further, the
Amended Complaint notes that Jackson alleges he “was discharged in violation of Section 105(c)
of the [Mine Act] . . . for refusing to work under unsafe or unhealthy conditions.” Id. at ¶ 18.

1

This recounting should not be viewed as findings of fact. Rather, it is a recounting of
the Complainant’s version of the events which led to his discharge from Respondent’s
employment and MSHA’s remark in that report about the allegations.
2

Jackson’s appeal of the MSHA determination made the same claims, stating:

During the course of my employment, I, a member of the Choctaw Nation, was
subjected to discrimination, harassment, and derogatory comments from
supervisors and fellow employees based on my ethnicity. These include being
called a ‘f**king Injun’ and ‘damn Indian.’ I was also told to ‘get [my] brown a**
over here.’ I was also subjected to sexual harassment by my supervisor, Daniel
Baker, who threw feminine hygiene products at me and telling me ‘this is for your
bleeding p***y.’ This was witnessed by Joshua Hall. I seek reinstatement to my
position as Ground Hand and lost earnings.

38 FMSHRC Page 1828

On June 15, 2016 Respondent filed its Motion to Strike Complainant’s First Amended
Complaint (“Respondent’s Motion”). 3 Respondent asserts that there were procedural flaws in
Complainant’s Amended Complaint and that “Complainant [ ] substantially changed the
allegations and the claims for relief” in that filing from his original complaint. Respondent’s
Motion, at 3.
Discussion
Both sides displayed some misunderstanding about discrimination claims under the Mine
Act. Therefore, the basic elements for such claims are briefly reviewed. A complainant alleging
discrimination under the Mine Act establishes a prima facie case of prohibited discrimination by
presenting evidence sufficient to support a conclusion that the individual engaged in protected
activity and that the adverse action complained of was motivated in any part by that activity. See
Turner v. Nat’l Cement Co. of California, 33 FMSHRC 1059, 1064-67 (May 2011); Sec’y o/b/o
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds
663 F.2d 1211 (3d Cir. 1981); Sec’y o/b/o Robinette v. United Castle Coal Co., 3 FMSHRC 803,
817-18 (Apr. 1981). The operator may rebut the prima facie case by showing either that no
protected activity occurred or that the adverse action was in no part motivated by protected
activity. See Robinette, 3 FMSHRC at 818 n.20. If the operator cannot rebut the prima facie case
in this manner, it nevertheless may defend affirmatively by proving that it also was motivated by
the miner’s unprotected activity and would have taken the adverse action for the unprotected
activity alone. See id. at 817-18; Pasula, 2 FMSHRC at 2799-800; see also E. Assoc. Coal Corp.
v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying Pasula-Robinette test).
Of particular importance to this case, the Court calls attention to the fact that protected
activity does not encompass all types of discrimination. Protected activity includes filing or
making complaints under or related to the Act or exercising any other statutory right afforded by
the Act. 30 U.S.C. § 815(c)(2). The Act states that protected activity includes when a miner “has
filed or made a complaint under or related to this Act, including a complaint notifying the
operator or the operator’s agent . . . of an alleged danger or safety or health violation.” 30 U.S.C.
§ 105(c)(1).
“Under the Act, protected activity includes filing or making a complaint of an alleged
danger, or safety or health violation, instituting any proceeding under the Act, testifying in any
such proceeding, or exercising any statutory right afforded by the Act.” Sec’y. o/b/o Piper v. Ken
American Res., 35 FMSHRC 1680, 1680 n.1 (June 2013) (ALJ Andrews) (citing Pasula, 2
FMSHRC at 2799).
“The purpose of the protection is to encourage miners ‘to play an active part in the
enforcement of the [Mine Act]’ recognizing that, ‘if miners are to be encouraged to be active in
matters of safety and health, they must be protected against any possible discrimination which
3

Also considered by the Court were Complainant’s Motion for Leave to file its First
Amended Complaint, its response to Respondent’s Motion to Strike its amended complaint, and
Respondent’s Reply to Complainant’s Response to Respondent’s Plea to the Jurisdiction and
Motion to Dismiss.

38 FMSHRC Page 1829

they might suffer as a result of their participation.’” Sec’y. o/b/o Rodriquez v. C.R. Meyer &
Sons, 35 FMSHRC 981, 982 (Apr. 2013) (ALJ Steele) (quoting S. Rep. No. 181, 95th Cong., 1st
Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources,
95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at
623 (1978)).
“[W]hile the Act does not expressly state that miners have the right to refuse work under
conditions involving health or safety dangers, ‘the Commission and the courts have recognized
the right to refuse to work in the face of such perceived danger.’” Lujan v. Signal Peak Energy,
37 FMSHRC 1362, 1364 (June 2015) (ALJ Barbour) (quoting Dykhoff v U.S. Borax, Inc., 22
FMSHRC 1194, 1198 (Oct. 2000)).
Accordingly, Mine Act discrimination claims may not entertain other types of
discrimination, such as those based on sex, religion, age, or national origin. There is a further
important limitation where a Section 105(c)(3) claim is involved; it is confined to the grounds of
cognizable claims which were raised before MSHA and its investigation of such claims. Thus,
the complaint, and MSHA’s investigation of the allegations in it, establishes the extent of the
court’s jurisdiction. Hatfield v. Colquest Energy, 13 FMSHRC 544 (April 1991) 4; Pontiki Coal
Co., 19 FMSHRC 1009, 1017 (June 1997).
Thus, there are two limiting factors: (1) only those non-extraneous, cognizable, grounds
claimed by the miner when the complaint of discrimination is made to MSHA may be raised
when appealing a determination by MSHA that it believed there was insufficient information to
establish by a preponderance of the evidence that a violation of Section 105(c) occurred; and
(2), the corollary factor that, upon such an appeal of MSHA’s determination, one may not
attempt to broaden the original basis for the complaint. The latter limitation exists because
MSHA’s investigation is based upon the grounds alleged in the discrimination complaint.
In this instance, Complainant Jackson did allege a cognizable basis for discrimination
under the Mine Act by expressing his safety concerns relating to working on the river at night
time due to the recent sinking of a boat on July 28, 2015. The other expressed grounds in his
complaint, to wit, his allegation of discrimination based on his ethnicity as a registered Choctaw
Nation Tribal Member, as it is not a cognizable protected activity, will not be considered by the
Court.

4

In Hatfield, the operator argued that the complainant’s amended filing pursuant to
Section 105(c)(3) differed too substantially from his complaint filed with the Secretary. The
Commission agreed that the proceeding under Section 105(c)(3) must be based on the matter
initially investigated by the Secretary under section 105(c)(2) or else “the statutory prerequisites
for a complaint pursuant to § 105(c)(3) have not been met.” Hatfield, 13 FMSHRC at 546.

38 FMSHRC Page 1830

Accordingly, the complaint filed by Jackson before MSHA continues to be his complaint
before this Court. Although the Court has noted that some of the grounds in that complaint are
not cognizable, other aspects do not have such an infirmity. As the Commission has observed:
Although section 105(c)(3) refers to an ‘action’ before the Commission, the
person who files this action is referred to in that section as the “complainant.” 30
U.S.C. § 815(c)(3) (emphasis added). . . . The reference to ‘complainant’ is an
acknowledgment that the proceeding under section 105(c)(3) involves the same
alleged discriminatory conduct that prompted the miner's complaint to the
Secretary under section 105(c)(2). The statute does not direct the miner to file a
complaint under section 105(c)(3) because the miner has already filed a
complaint. That is why the miner is referred to in section 105(c)(3) as the
‘complainant.’
Sec’y. o/b/o Gray v. North Fork Coal, 33 FMSHRC 27, 37 (Jan. 2011).
The parties are directed to continue preparation for the scheduled hearing in a manner
consistent with the directions set forth in this Order.
So Ordered.

/s/ William B. Moran
William B. Moran
Administrative Law Judge
Distribution:
Ronald R. Huff, Esq., 112 S. Crockett Street, Sherman, TX 75090
Trenton S. Horner, Esq., J. Craig Brown, Esq., Alan Ritchey, Inc., 740 South IH-35 Frontage
Road, Valley View, TX 76272

38 FMSHRC Page 1831

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

July 1, 2016
SECRETARY OF LABOR, MSHA, on
behalf of CHERYL GARCIA,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. WEST 2014-905-DM
WE MD 14-16

v.
VERIS GOLD USA, INC., and its
successors,
Respondent.

Jerritt Canyon Mill
Mine ID 26-01621

ORDER CONDITIONALLY APPROVING WITHDRAWAL MOTION
Before: Judge Simonton
This case is before me upon a discrimination complaint filed pursuant to section 105(c) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c), by the Secretary of Labor
on behalf of Ms. Cheryl Garcia against Veris Gold USA., Inc.
Complainant Cheryl Garcia, through the Secretary, has withdrawn her complaint in this
matter, originally filed with the Secretary on May 6, 2014, and filed by the Secretary before the
Commission on August 4, 2014, and moves for an Order of Dismissal, with prejudice, of their
respective complaints against Veris Gold USA, Inc., and any claimed or potential successor(s),
including but not limited to Jerritt Canyon Gold, LLC, Whitebox Asset Management, and Eric
Sprott.
Consistent with prior court review, the joint motion is CONDITIONALLY
APPROVED. This matter will be immediately dismissed with prejudice upon notification from
the Secretary and the Complainant of full execution of the parties’ agreed upon resolution.

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

38 FMSHRC Page 1832

Distribution: (U.S. First Class Mail)
Brad Mantel, U.S. Department of Labor, Office of the Solicitor, Division of Mine Safety and
Health, 201 12th Street South, Suite 401, Arlington, VA 22202
Niamh E. Doherty, Office of the Solicitor, U.S Department of Labor, 350 S. Figueroa Street,
Suite 370, Los Angeles, CA 90071
Cheryl Garcia, 450 Castle Crest Dr., Spring Creek, NV 89815
Mark R. Kaster, Dorsey & Whitney LLP, Counsel for Jerritt Canyon Gold, 50 South Sixth Street,
Suite 1500, Minneapolis, MN 55402
Annette Jarvis, Dorsey & Whitney LLP, Counsel for Jerritt Canyon Gold, 136 South Main
Street, Suite 1000, Salt Lake City, UT 84101
Shaun Heinrichs, Veris Gold, 688 West Hastings Street, Suite 900, Vancouver, BC V6B 1P1,
Canada
Cathy L. Reece, Counsel for Whitebox Management, LLC, 2394 East Camelback Rd., Ste. 600,
Phoenix, AZ 85016
Tevia Jeffries, Dentons Canada LLP, Counsel for Bankruptcy Monitor, 250 Howe Street, 20th
Floor, Vancouver, BC V6C 3R8, Canada

38 FMSHRC Page 1833

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9956 / FAX: 202-434-9949

July 6, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. SE 2016-132-M
A.C. No. 08-01287-402507A

v.
RALPH W. DUSHANE, employed by
CEMEX CONSTRUCTION
MATERIALS OF FLORIDA, LLC,
Respondent.

Mine: Brooksville South Cement Plant

ORDER DENYING DISMISSAL
Before: Judge Rae
This case is before me upon a petition for assessment of civil penalties filed by the
Secretary of Labor against Ralph W. Dushane (“Respondent”) in his capacity as an employee
and agent of Cemex Construction Materials of Florida, LLC (“Cemex”) under section 110(c) of
the Federal Mine Safety and Health Act of 1977 (“the Mine Act”), 30 U.S.C. § 820(c).
Respondent has filed a motion to dismiss the petition due to the Secretary’s delay in filing it.
Procedural Background
Following receipt of a hazard complaint in October 2012, the Mine Safety and Health
Administration (MSHA) investigated Cemex’s Brooksville South Cement Plant and issued two
violations on November 5 and 7, 2012. Cemex and the Secretary resolved the two violations by
reaching a settlement that was approved by a judge in December 2013. Meanwhile, on March 26,
2013, Respondent received a letter from MSHA informing him of MSHA’s intent to assess
penalties against him under section 110(c) of the Mine Act, which provides in pertinent part:
“Whenever a corporate operator violates a mandatory health or safety standard … any director,
officer, or agent of such corporation who knowingly authorized, ordered, or carried out such
violation … shall be subject to the same civil penalties, fines, and imprisonment that may be
imposed upon” the corporate operator. 30 U.S.C. § 820(c).
After a lengthy delay, the Secretary issued a proposed penalty assessment against
Respondent on February 4, 2016. Respondent timely contested the proposed penalties. The
Secretary filed a penalty petition with the Commission on April 14, 2016. Respondent
subsequently filed his motion to dismiss.

38 FMSHRC Page 1834

Parties’ Arguments
Respondent contends that the Secretary failed to provide notice of the proposed penalty
“within a reasonable time after the termination of [the underlying] inspection or investigation,”
as required under section 105(a) of the Mine Act. 30 U.S.C. § 815(a). Respondent asserts that
MSHA’s internal guidelines set forth the Secretary’s interpretation of what constitutes a
“reasonable time” for assessment of a 110(c) penalty: 18 months from the date of issuance of the
subject violation. See MSHA, U.S. Dep’t of Labor, Program Policy Manual, Vol. I, § 110, at 42
(2015) (“PPM”). In this case, approximately 38 months elapsed between the issuance of the
subject violations in November 2012 and the assessment of the proposed penalties in February
2016. Respondent contends that the Secretary has failed to show adequate cause for this delay.
Respondent further argues that he is prejudiced by the delay because there has been no formal
discovery yet; the case against him is based primarily on the allegations of one other miner
whom he has not yet had a chance to confront through cross-examination; and the lengthy delay
will negatively impact his ability to obtain reliable evidence.1
In response, the Secretary first contends that the proposed assessment was issued within a
reasonable time after termination of the underlying investigation because the investigation did
not end until this matter was referred to the MSHA Office of Assessments on January 31, 2016.
Thus, by the Secretary’s count, it took just four days to issue the proposed assessment. This
argument is predicated on the Secretary’s view that the 110(c) investigation included not just the
initial information-gathering phase at the MSHA district level during which witnesses were
interviewed and documentary evidence was collected, culminating in the issuance of the March
26, 2013 letter notifying Respondent that MSHA was proposing to assess penalties against him,
but also included the approximately 34 months during which MSHA’s Technical Compliance
and Investigation Office (TCIO) and the Office of the Solicitor (SOL) decided whether to refer
the case to the Office of Assessments.
Alternatively, the Secretary contends that three years is a reasonable timeframe for the
issuance of a 110(c) assessment given MSHA’s workload and the logistics of coordinating
among the various offices involved in the 110(c) assessment process. The Secretary asserts that
the guidelines set forth in the PPM are not binding or determinative as to what constitutes a
“reasonable time.” Rather, the Secretary contends that his interpretation of “reasonable time”
advanced in this litigation is entitled to Chevron deference. See Chevron USA, Inc. v. Natural
Res. Defense Council, Inc., 467 U.S. 837 (1984). Finally, the Secretary argues that even if the
time it took to assess a proposed penalty was unreasonable, Respondent has failed to show
legally cognizable prejudice.
1

Respondent also notes in passing that the penalty petition was filed 3 days beyond the
deadline set forth in 29 C.F.R. § 2700.28(a), which provides that the Secretary must file a
petition within 45 days of receiving a notice of contest. Respondent has submitted a USPS return
receipt showing that an MSHA employee signed for the notice of contest on Friday, February 26,
2016. However, MSHA’s internal date stamp on the copy of the notice that was submitted with
the penalty petition indicates it was received on Monday, February 29. The Secretary contends
that this was merely a clerical error. Because the 3-day delay was minimal and apparently was
caused by a clerical error, I find that the delay does not justify dismissal of the petition.

38 FMSHRC Page 1835

Discussion
Determining whether a petition was filed in a “reasonable time” within the meaning of
section 105(a) requires an analysis of the circumstances of each case, including “whether
adequate cause existed for the Secretary’s delay in proposing a penalty and …whether the delay
prejudiced the [respondent].” Sedgman, 28 FMSHRC 322, 338 (June 2006). In Long Branch
Energy, the Commission held that the Secretary can establish adequate cause merely by
providing a non-frivolous explanation for his delay in filing. 34 FMSHRC 1984, 1991 (Aug.
2012). By contrast, in order to secure dismissal, the respondent must establish that the delay has
resulted in actual prejudice – i.e., prejudice that is “real” or “substantial” (as opposed to
“potential” or “inherent”) and is “demonstrated by a specific showing.” Id. at 1991-93. Although
the respondent’s burden is heavy and the Secretary’s burden is light, the Commission has
explained that “regardless of how important procedural regularity may be, it is subservient to the
substantive purpose of the Mine Act in protecting miners’ health and safety.” Id. at 1991.
Consistent with this principle, Commission ALJs have overwhelmingly disfavored dismissal of
110(c) cases in the wake of Long Branch despite the Secretary’s consistent substantial delays in
completing 110(c) investigations and assessing penalties. See, e.g., Steve B. Rees, 37 FMSHRC
1852 (Aug. 2015) (ALJ); Scott Carpenter, 36 FMSHRC 2311 (Aug. 2014) (ALJ); Adam Whitt,
35 FMSHRC 3487 (Nov. 2013) (ALJ); Duffy, Inc., 35 FMSHRC 2291 (July 2013) (ALJ);
Christopher Brinson, 35 FMSHRC 1463 (May 2013) (ALJ). But see Steve Adkins, 35 FMSHRC
1481 (May 2013) (ALJ) (disagreeing that Long Branch applies in 110(c) context, but still placing
burden on respondent, as moving party, to show actual and meaningful prejudice unless petition
was filed outside 5-year statute of limitations for federal civil suits).
The Secretary argues it took him a reasonable amount of time to file the petition because
the special investigation had ended just four days beforehand. The idea that the length of the
delay is calculated starting at the end of the special investigation is supported by precedent and
by the language of section 105(a). See, e.g., Sec’y of Labor v. Twentymile Coal Co., 411 F.3d
256, 261 (D.C. Cir. 2005) (stating that time to file petition begins at conclusion of accident
investigation); Steve B. Rees, supra (extending this principle to a 110(c) investigation). I am less
certain that it is reasonable for the Secretary to interpret “investigation” to include the period
during which TCIO and SOL review the case before referring it to the Office of Assessments.
The actual investigative work is already complete by then, yet the review period inexplicably
lasted almost three years in this case, raising concerns about fairness to Respondent. Cf. Dyno
Nobel East-Central Region, 35 FMSHRC 265, 267 n.2 (Jan. 2013) (ALJ) (noting that the
Commission has not definitively resolved how to calculate the investigation period in 110(c)
cases, but expressing concern that “because there is a potential for substantial delay in the
initiation and conduct of a section 110(c) investigation, granting the Secretary carte blanche for
that part of the process may well not comport with considerations of fair play and due process for
individual respondents”).
However, I need not decide whether to defer to the Secretary’s interpretation of
“investigation” because Respondent has not made a showing of actual prejudice. The violations
at issue in this case were settled in 2013 and, as Respondent contends, the parties did not engage
in discovery to preserve testimony. Four years have passed since the violations occurred. These
two facts could very well prejudice Respondent’s ability to find witnesses with any recollection

38 FMSHRC Page 1836

of the events. However, it is premature to make that determination now, as Respondent has not
indicated whether there are any necessary witnesses who are physically unavailable or unable to
recall the relevant events. Respondent has alleged only potential prejudice of the sort that
inherently flows from delaying litigation.
I note that although the Commission has been extremely tolerant of the Secretary’s
habitual delays in filing 110(c) petitions, the Commission’s most lenient decisions (such as Long
Branch) came out several years ago when MSHA’s case backlog was at historic levels. This has
not been the case for more than a year. General references to MSHA’s workload can no longer
be accepted at face value as an excuse to spend in excess of three years processing a 110(c) case.
Even if Respondent cannot show actual prejudice, I find such a lengthy delay raises questions
about the reliability of any testimony that is presented, including the testimony of the
investigator.
While Respondent is not entitled to dismissal at this time because he has not made a
specific showing of actual prejudice, I will, however, entertain a renewed motion to dismiss
before or at trial. In the event that Respondent, having had an opportunity to conduct full
discovery, finds witnesses cannot be located or memories have indeed faded to the extent that he
can demonstrate actual prejudice, dismissal may be warranted.

/s/ Priscilla M. Rae
Priscilla M. Rae
Administrative Law Judge

Distribution:
Monica R. Moukalif, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street
SW, Room 7T10, Atlanta, GA 30303
Christopher D. Pence, Esq., Hardy Pence PLLC, P.O. Box 2548, Charleston, WV 25329

38 FMSHRC Page 1837

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

July 11, 2016
SECRETARY OF LABOR, MSHA, on
behalf of CHERYL GARCIA,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. WEST 2014-905-DM
WE MD 14-16

v.
VERIS GOLD USA, INC., and its
successors,
Respondent.

Jerritt Canyon Mill
Mine ID 26-01621

AMENDED ORDER CONDITIONALLY APPROVING WITHDRAWAL MOTION1
ORDER CONDITIONALLY VACATING DEFAULT ORDER
Before: Judge Simonton
This case is before me upon a discrimination complaint filed pursuant to section 105(c) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c), by the Secretary of Labor
on behalf of Ms. Cheryl Garcia against Veris Gold USA., Inc.
Complainant Cheryl Garcia, through the Secretary, has withdrawn her complaint in this
matter, originally filed with the Secretary on May 6, 2014, and filed by the Secretary before the
Commission on August 4, 2014, and moves for an Order of Dismissal, with prejudice, of their
respective complaints against Veris Gold USA, Inc., and any claimed or potential successor(s),
including but not limited to Jerritt Canyon Gold, LLC, Whitebox Asset Management, and Eric
Sprott.
Additionally, Complainant, through the Secretary, moves for an Order to Vacate, with
prejudice, the September 21, 2015, Default Order entered against Respondent Veris Gold USA,
Inc. and any claimed or potential successor(s), including, but not limited to Jerritt Canyon Gold,
LLC, Whitebox Asset Management, and Eric Sprott. In light of the Complainant’s resolution of
her dispute with the Respondents and withdrawal of her claim, my previously issued Default
Order is now moot. I therefore conditionally grant this motion to vacate the default order.

1

Order was amended to include conditional vacatur of the September 21, 2015 Default

Order.

38 FMSHRC Page 1838

ORDER
THEREFORE, consistent, with prior court review, Complainant’s Motion to Withdraw
her Section 105(c) Complaint and to Vacate Default Order, with prejudice, is
CONDITIONALLY APPROVED. This matter will be immediately dismissed with prejudice
upon notification from the Secretary and the Complainant of the full execution of the parties’
agreed upon resolution.

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

Distribution: (U.S. First Class Mail)
Brad Mantel, U.S. Department of Labor, Office of the Solicitor, Division of Mine Safety and
Health, 201 12th Street South, Suite 401, Arlington, VA 22202
Niamh E. Doherty, Office of the Solicitor, U.S Department of Labor, 350 S. Figueroa Street,
Suite 370, Los Angeles, CA 90071
Cheryl Garcia, 450 Castle Crest Dr., Spring Creek, NV 89815
Mark R. Kaster, Dorsey & Whitney LLP, Counsel for Jerritt Canyon Gold, 50 South Sixth Street,
Suite 1500, Minneapolis, MN 55402
Annette Jarvis, Dorsey & Whitney LLP, Counsel for Jerritt Canyon Gold, 136 South Main
Street, Suite 1000, Salt Lake City, UT 84101
Shaun Heinrichs, Veris Gold, 688 West Hastings Street, Suite 900, Vancouver, BC V6B 1P1,
Canada
Cathy L. Reece, Counsel for Whitebox Management, LLC, 2394 East Camelback Rd., Ste. 600,
Phoenix, AZ 85016
Tevia Jeffries, Dentons Canada LLP, Counsel for Bankruptcy Monitor, 250 Howe Street, 20th
Floor, Vancouver, BC V6C 3R8, Canada

38 FMSHRC Page 1839

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004
TELEPHONE: 202-434-9933 / FAX: 202-434-9949

July 12, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2015-987
A.C. No. 46-08637-388319

v.
GATEWAY EAGLE COAL CO., LLC,
Respondent.

Mine: Campbells Creek No. 10

DECISION DENYING MOTION
FOR APPROVAL OF SETTLEMENT
Before: Judge Moran
Over at least the past 33 years, Commission judges, citing section 110(k) of the Mine
Act, 30 U.S.C. § 820(k), have required that settlements must be adequately justified. The
Secretary of Labor has filed a motion to approve settlement in this matter. For the reasons that
follow, as the present motion fails to meet this requirement, the Court has no choice but to deny
the motion.
The settlement motion at issue involves two citations. Citation No. 9055796 pertains to a
section 104(a) action, marked as significant and substantial (S&S), with a fatality as the injury
reasonably expected, and the negligence listed as moderate. The standard invoked, 30 C.F.R. §
75.517, provides: “Power wires and cables, except trolley wires, trolley feeder wires, and bare
signal wires, shall be insulated adequately and fully protected.” Specifically, Citation No.
9055796 alleges:
The 480 volt cable, supplying power to the Fletcher Roof Bolter (co.#406), is not
insulated adequately and fully protected. A splice in the cable is found to be
damaged with exposed conductors. This condition exposes the miners who handle
and/or work or travel near this energized cable to hazards of electrical shock,
which is likely to result in electrocution. Standard 75.517 was cited 11 times in
two years at mine 4608637 (11 to the operator, 0 to a contractor).
The parties’ settlement agreement proposes reducing the civil penalty for Citation No. 9055796
from $1,657.00 to $829.00.

38 FMSHRC Page 1840

The Secretary’s settlement motion presents only the following in support of the 50%
reduction of the proposed penalty: “Respondent presented evidence that miners are required to
check cables prior to each use, a requirement that is more stringent than demanded by
regulations, potentially reducing its negligence. Based on this information and the risks of
litigation, the parties agreed to the stated penalty.” Mot. for Dec. and Order Approving
Settlement, at 4 (Apr. 20, 2016).
The “information” provided by the Secretary, through the Respondent, does not add up,
as section 75.517 does not speak to checking cables prior to each use. Instead, it requires cables
to be “insulated adequately and fully protected,” and such cable conditions were apparently not
present. The Secretary bases his agreement for a 50% penalty reduction “on [that] information,”
which rests only upon a potential reduction in the mine’s negligence, but leaves unanswered how
it is that the mine’s “more stringent” practice did not detect that the splice in the cable was
“damaged with exposed conductors.” Id. Thus, the “more stringent” requirement was ineffective
and the standard itself is not qualified by employing such alleged practices. Instead, it plainly
requires that cables be insulated adequately and fully protected. As noted, the inspector marked
the violation as S&S and the expected injury to be a fatality. Correction of the violation required
that a damaged splice be replaced.
For Citation No. 9055799, another section 104(a) action, marked as S&S, fatal, and with
moderate negligence, invoked 30 C.F.R. § 75.400. That standard, titled “Accumulation of
combustible materials,” provides that “[c]oal dust, including float coal dust deposited on rockdusted 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.” Specifically, Citation No. 9055799 alleges:
Combustible materials have been permitted to accumulate at the #9a Belt Takeup. Dry coal fines have accumulated under the take-up and are found to be
compressed against the moving belt. The coal fines measure 6' long X 17" deep.
This condition exposes miners to hazards associated with mine fires which are
likely to result in fatal injuries due to smoke inhalation. Standard 75.400 was cited
29 times in two years at mine 4608637 (29 to the operator, 0 to a contractor).
(Emphasis added). The parties’ settlement agreement proposes reducing the civil penalty for
Citation No. 9055799 from $3,143.00 to $1,571.00.
The settlement motion states that the Respondent presented evidence that the coal belt
accumulations “could have occurred since the last examination, potentially reducing its
negligence.” Mot. for Dec. and Order Approving Settlement, at 4. The motion also stated that the
Respondent presented evidence that, “in the event of a fire, the expected injuries may be less
severe than originally assessed.” Id. As with the first citation discussed above, the motion seeks a
50% reduction in the penalty. The problem with the asserted basis for the reduction is that the
motion does not provide the information relied upon to support the claim that the accumulations
could have occurred since the last examination, nor does the Secretary weigh in on that claim.
Similarly, there is no basis to support the claim that “the expected injuries may be less severe
than originally assessed.”

38 FMSHRC Page 1841

As the Commission has noted, accumulation violations are serious business.1 In fact, the
provision essentially repeats the statutory language of section 304(a) of the Mine Act. See 30
U.S.C. § 864(a). With respect to the issue of such violations, the Commission has previously
held that
section 75.400 ‘is violated when an accumulation of combustible materials
exists.’ Old Ben I, 1 FMSHRC at 1956. The Commission has further held that a
violative ‘accumulation’ exists ‘where the quantity of combustible materials is
such that, in the judgment of the authorized representative of the Secretary, it
likely could cause a fire or explosion if an ignition source were present.’ Old Ben
Coal Co., 2 FMSHRC 2806, 2808 (October 1980)(‘Old Ben II’) . . . The
Commission [has] emphasized that the legislative history relevant to the statutory
standard that section 75.400 repeats ‘demonstrates Congress’ intention to prevent,
not merely to minimize, accumulations. The standard was directed at preventing
accumulations in the first instance, not at cleaning up the materials within a
reasonable period of time after they have accumulated.’ Old Ben I, 1 FMSHRC at
1957.
Utah Power & Light Co., 12 FMSHRC 965, 968 (May 1990).2
The Court is aware that the Secretary does not care for the Court’s requirements for
additional information to support settlements. However, pursuant to section 110(k) of the Mine
Act, it is the Court’s responsibility to require additional information in motions where reductions
are insufficiently explained. It should be pointed out that the requirement for adequate supporting
information in motions for settlement is not new. Former Chief Judge Paul Merlin invoked this
requirement 33 years ago in a denial of a proposed settlement order, noting that “[t]he Solicitor
has given me no basis whatsoever to approve the proposed settlement. None of the violations are

1

At least one of the Upper Big Branch citations involved an accumulation of loose coal
at a tailpiece, where the material was some two to eight inches in depth along the number 2 belt.
See Citation No. 8094527, issued 07/21/2009.
2

As noted in ICG Knott County, 35 FMSHRC 1027, 1039 (Apr. 2013) (ALJ Moran):

To place these standards in context, the legislative history of the Mine Act details
Congress’ concern with the hazards associated with such belts, noting that ‘many
fires occur along belt conveyors as a result of defective electric wiring,
overheated bearings, and friction; and therefore, and examination of belt
conveyors is necessary.’ S. Rep. No. 91-411, at 57 (1967), reprinted in Senate
Subcomm. On Labor, Comm. On Labor and Public Welfare, Part I Legislative
History of the Federal Coal Mine Health and Safety Act of 1969, at 183 (1975).

38 FMSHRC Page 1842

explained or analyzed.” Yakima Cement, 5 FMSHRC 1278, 1279 (July 1983) (ALJ). The Chief
Judge went on to note:
The Act makes very clear that penalty proceedings before the Commission are de
novo. The Commission itself recently recognized that it is not bound by penalty
assessment regulations adopted by the Secretary but rather that in a proceeding
before the Commission the amount of the penalty to be assessed is a de novo
determination based upon the six statutory criteria specified in section 110(i) of
the Act and the information relevant thereto developed in the course of the
adjudicative proceeding. Sellersburg Stone Company, 5 FMSHRC 287 (March
1983). Indeed, if this were not so, the Commission would be nothing but a rubber
stamp for the Secretary.
Id. at 1279 (emphasis added); see also Columbia Portland Cement, 10 FMSHRC 1375 (Sept.
1988) (ALJ Merlin) (settlement motion denied by Chief Judge Merlin based on insufficient
information). Noting the Secretary’s practice, which continues to be frequently carried out today,
the Chief Judge noted: “Using the same language each time, the Solicitor gives no facts or
rationale to support any of [its] conclusions . . . [and therefore the court has] no basis to accept
[the Secretary’s] representations.” Columbia Portland Cement, 10 FMSHRC at 1375, 1377,
1378, 1379.
Among many examples, in the same vein, a quarter century ago, Judge William Fauver
found two instances of deficient settlement presentations:
The settlement motion does not state or show a factual basis for concluding that
the alleged violation did not present a substantial possibility of resulting in injury
within the context of continued normal mining operations. Determination of that
issue will depend on a fuller presentation and evaluation of the facts. The
settlement will therefore be rejected,” and later in the same decision stated, “[t]he
settlement motion does not state or show a factual basis for concluding that the
alleged violation did not present a substantial possibility of resulting in injury
within the context of continued normal mining operations. For the reasons
discussed above, I find the motion to be insufficient as to this citation.
Consolidation Coal, 13 FMSHRC 748, 751 (Apr. 1991) (ALJ).
In light of section 110(k) and the Commission’s long-established construction of its role
under that provision, in reviewing proposed penalties contested before it, it is difficult to discern
any legitimate basis for the Secretary’s recalcitrance. As it is the Secretary of Labor, not the
Secretary of Commerce, that is objecting to demonstrating the legitimacy of compromises
associated with violations of the Mine Act, one would anticipate that the Secretary would be
anxious to demonstrate that his proposed settlements are patently supportable. Frequently, in
dragging his feet to establish such legitimacy, the Secretary will invoke “transparency” in its

38 FMSHRC Page 1843

submissions. As this Court noted in Bristol Coal, 36 FMSHRC 2198, 2198 (Aug. 2014) (ALJ
Moran):
[I]n Sec. of Labor v. The American Coal Company, LAKE 2011-13 (“American
Coal”) and in its underlying submission to this Court in that case, the Secretary
repeatedly invoked the claim that its approach for settlement submissions
promotes transparency and satisfies the need for public scrutiny, objectives to
which it professedly subscribes. See, for e.g. Sec’s Brief in American Coal at 43.
The Secretary, in this Court’s view, has not caught on to the trend that began in
the late twentieth century that more, not less, public information from government
is the preferred practice. As the dictionary explains, to be ‘transparent’ means to
be ‘easily detected … characterized by visibility or accessibility of information
especially concerning business practices.’ Merriam-Webster.com. Instead, in its
Motion before this Court in American Coal, the Secretary merely proclaimed, in a
decidedly non-transparent manner that ‘[a]fter further review of the evidence, the
Secretary has determined that a reduced penalty is appropriate in light of the
parties’ interest in settling this matter amicably without further litigation. In
recognition of the nature of the citations at issue, and the uncertainties of
litigation, the parties wish to settle the matter with a 30% reduction in the
assessed penalty with no changes to gravity or negligence for any of the citations
at issue.” See, American Coal Motion at 2-3. In the Court’s view, such an
approach is at odds with the normal sense of the meaning of transparency and,
importantly, makes public scrutiny impossible. Further, the Secretary exaggerates,
and some might fairly state outright misrepresents, what is required for a
settlement to pass muster, by asserting that the Commission’s approach requires
‘the Secretary to supply extensive information to justify proposed settlements.’1
See, Sec’s Br. at 5, presently before the Commission under interlocutory review in
American Coal.
Id.
The Court hopes that the Secretary will see the short-sightedness of his lack of
transparency and, rather than fighting his duty to disclose the legitimacy behind his proposed
settlements, instead demonstrate the basis for his compromises.

38 FMSHRC Page 1844

On the basis of the foregoing, the Secretary’s Motion is DENIED. The parties are
directed to provide a sufficient basis to support the proposed settlement reductions or to prepare
for trial. If a trial occurs, regarding any violations that may be established, the Court may impose
a greater, lesser, or the same penalty as that proposed in the motion, but such penalties as may be
imposed will be based upon those facts found through the testimony and documentary evidence
produced in the proceeding.
SO ORDERED

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

Distribution:
Noah AnStraus, Esq., U.S. Department of Labor, Office of the Solicitor, The Curtis Center, Suite
630E, 170 S. Independence Mall West, Philadelphia, PA 19106
Jonathan Ellis, Esq., Steptoe & Johnson PLLC, Chase Tower, Eighth Floor, P.O. Box 1588,
Charleston, WV 25326

38 FMSHRC Page 1845

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

July 14, 2016
SECRETARY OF LABOR, MSHA, on
behalf of CHERYL GARCIA,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. WEST 2014-905-DM
WE MD 14-16

v.
VERIS GOLD USA, INC., and its
successors,
Respondent.

Jerritt Canyon Mill
Mine ID 26-01621

ORDER OF DISMISSAL
ORDER VACATING DEFAULT ORDER
Before: Judge Simonton
This case is before me upon a discrimination complaint filed pursuant to section 105(c)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2), by the Secretary of
Labor on behalf of Ms. Cheryl Garcia (Complainant) against Veris Gold USA, Inc.
(Respondent).
On July 11, 2016, this court issued an Amended Order Conditionally Approving
Withdrawal Motion and Order Conditionally Vacating Default Order stating that this matter
would be dismissed with prejudice and the September 21, 2015 Default Order would be vacated
after confirmation of full satisfaction of the parties’ private settlement agreement. July 11, 2016
Order. On July 12, 2016, counsel for the Complainant and Respondent represented that the
terms of the settlement agreement had been completed and satisfied.
Accordingly, the September 21, 2015 Default Order is VACATED and this matter is
DISMISSED with prejudice.

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

38 FMSHRC Page 1846

Distribution: (U.S. First Class Mail)
Brad Mantel, U.S. Department of Labor, Office of the Solicitor, Division of Mine Safety and
Health, 201 12th Street South, Suite 401, Arlington, VA 22202
Niamh E. Doherty, Office of the Solicitor, U.S Department of Labor, 350 S. Figueroa Street,
Suite 370, Los Angeles, CA 90071
Cheryl Garcia, 450 Castle Crest Dr., Spring Creek, NV 89815
Mark R. Kaster, Dorsey & Whitney LLP, Counsel for Jerritt Canyon Gold, 50 South Sixth Street,
Suite 1500, Minneapolis, MN 55402
Annette Jarvis, Dorsey & Whitney LLP, Counsel for Jerritt Canyon Gold, 136 South Main
Street, Suite 1000, Salt Lake City, UT 84101
Shaun Heinrichs, Veris Gold, 688 West Hastings Street, Suite 900, Vancouver, BC V6B 1P1,
Canada
Cathy L. Reece, Counsel for Whitebox Management, LLC, 2394 East Camelback Rd., Ste. 600,
Phoenix, AZ 85016
Tevia Jeffries, Dentons Canada LLP, Counsel for Bankruptcy Monitor, 250 Howe Street, 20th
Floor, Vancouver, BC V6C 3R8, Canada

38 FMSHRC Page 1847

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH STREET, SUITE 443
DENVER, CO 80202-2536
303-844-3577 FAX 303-844-5268

July 14, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 2016-237-M
A.C. No. 05-04600-399463
Nine Pit

v.
PARK COUNTY ROAD & BRIDGE,
Respondent

ORDER DENYING MOTION FOR SUMMARY DECISION
Before: Judge Manning
This case is before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”),
against Park County Road & Bridge (“Park County”) pursuant to sections 105 and 110 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). Park
County filed a motion for summary decision in which it maintains that the two citations at issue
in this case must be vacated.1 The Secretary filed an opposition to the motion to which Park
County filed a reply. For the reasons set forth below, the motion for summary decision is denied.
Commission Procedural Rule 67 sets forth the grounds for granting summary decision, as
follows:
A motion for summary decision shall be granted only if the entire
record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows:
(1) That there is no genuine issue as to any material fact; and
(2) That the moving party is entitled to summary decision as a
matter of law.
29 C.F.R. § 2700.67(b).

1

In its answer to the penalty petition and in its motion for summary decision, Park
County stated that “Park County Road & Bridge” is not a proper party in this case and that it is
not waiving its objection to this proceeding by filing the motion. In its answer, however, it
admitted that the Nine Pit is operated by Park County, Colorado. I have not addressed this issue
in this order as the Secretary has not responded to this claim.

38 FMSHRC Page 1848

The Commission has long recognized that “summary decision is an extraordinary
procedure.” Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994) (quoting Missouri
Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981)). The Commission has analogized Commission
Procedural Rule 67 to Federal Rule of Civil Procedure 56. Hanson Aggregates New York, Inc.,
29 FMSHRC 4, 9 (Jan. 2007); See also Energy West, 16 FMSHRC at 1419 (citing Celotex Corp
v. Cartrett, 477 U.S. 317, 327 (1986)). When the Commission reviews a summary decision under
Rule 67, it looks “‘at the record on summary judgment in the light most favorable to … the party
opposing the motion,’ and that ‘the inferences to be drawn from the underlying facts contained in
[the] materials [supporting the motion] must be viewed in the light most favorable to the party
opposing the motion.’” Hanson Aggregates New York Inc., 29 FMSHRC at 9 (quoting Poller v.
Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962); United States v. Diebold, Inc., 369
U.S. 654, 655 (1962)).
I. SUMMARY OF ARGUMENT
A.

Park County

Park County contends that Citation Nos. 8932192 and 8932193 should be vacated. The
citations were issued to Park County because a “Community Clean-up Day” was being held on
county property on October 3, 2015. Park County argues that this Clean-up Day was being held
on a flat piece of ground located near, but not in, an idle gravel pit at which no mining operations
were being conducted and at which no mining equipment was present. Park County engaged
Mountain View Waste to operate the Clean-up Day.
In the motion, Park County presents what it labeled as “Undisputed Facts” in support of
its motion. Because the Secretary argues that these undisputed facts do not include all pertinent
information, I have labeled these facts as “Park County Facts” in this order. These facts, with
only minor edits, are as follows:
1. Park County, Colorado, is a Colorado county organized and existing under Title 30 of
the Colorado Revised Statutes. C.R.S. § 30-1-101.
2. Park County is the owner and operator of the Nine Pit, Mine ID No. 0504600, a gravel
pit used only intermittently to produce road base for Park County roads. (Affidavit of Thomas
Eisenman attached as Exhibit 1).
3. In the early autumn of 2015, Park County scheduled three “Community Clean-up Day”
events, on various dates and locations, at which residents of Park County would be allowed
to drop off waste material in dumpsters. The dumpsters would then be hauled away and the
waste material disposed of. Id.
4. The October 3, 2015, location of the Community Clean-up Day was property near
the Nine Pit but “off to [the] side of [the] main property.” (General Field Notes prepared by
MSHA Inspector Kathleen T. Gearity dated October 3, 2015 attached as Exhibit 2, page 3).
Community Clean-up events have been held at this location several times before in previous

38 FMSHRC Page 1849

years without incident since the property adjacent to the Nine Pit is an ideal location for this
activity. (Affidavit of Thomas Eisenman).
5. On October 2, 2015 at 3:14 p.m., MSHA received an anonymous telephone call
“requesting an inspector to go there [to the Community Clean-up] and shut this event down.”
(MSHA Escalation Report attached as Exhibit 3).
6. Rather than call Park County to inquire about the Community Clean-up, MSHA
dispatched an inspector, Kathleen T. Gearity, to the event on October 3, 2015, where Gearity
made observations and took notes and photographs. (Exhibit 2).
7. On October 3, 2015 "no portable plant or mining equipment [was] visible" and "no
mining equipment was on site." (Id. at pages 1 and 3).
8. On October 3, 2015, according to the records of MSHA the “Mine has a status of
temp[orary] idle.” (Id. at pages 1).
9. At the conclusion of her inspection, Gearity noted: “Due to temp idle status no mining
equipment; and location off to side of main property, question of jurisdiction. Will review w/
Field Office Supervisor prior to issuing citations.” (Id. at page 3).
10. No citation was issued by Gearity on October 3, 2015. Instead, she “[a]dvised [the
County to call] in next time to be certain they are in compliance.” (Id. at page 5).
11. On October 6, 2015, Gearity “[r]eviewed the situation w/ Shane Julien, Field
Office Supervisor. Per district recommendation we will not issue citations due to question of
jurisdiction. Ultimately – negative findings.” (Id. at page 5).
12. This conclusion was reiterated in MSHA's Miscellaneous Inspection Information
report in which it is stated: “Per Field Office Supervisor and District Staff there were no
issuances due to question of jurisdiction due to mine temp idle status and no mining activity on
site.” (Miscellaneous Inspection Information attached as Exhibit 4, page 2).
13. At some point subsequent to the events of October 2015, MSHA apparently issued
Citations 8932192 and 8932193. (Copies attached as Exhibit 5). However, the citations were not
served upon or provided to Park County until January 8, 2016, when Shane P. Julien of MSHA
sent copies to the Park County Transportation Director attached to an email reading, in pertinent
part: “Tammy, My apologies, here are the missing citations they did not get sent out by AR as
originally thought. We intended to send them to Mr. Eisenman but did not.” (Email from Shane
P. Julien to Tammie Crawford dated January 6, 2016, with attachments, attached as Exhibit 6).
14. None of the reports prepared by MSHA personnel identify any mine hazard at the site
of the Community Clean-up. (See Exhibits 1, 2 and 3).
15. The Community Clean-up event was not conducted on an area where mining
operations occur. (Exhibit 2; Affidavit of Thomas Eisenman).

38 FMSHRC Page 1850

16. Mountain View Waste did not perform any services at the Nine Pit but, instead,
merely supplied roll off dumpsters on County-owned property adjacent to the Nine Pit Mine Site
for the Community Clean-up. (Affidavit of Thomas Eisenman).
17. At no time on October 3, 2015 was any person exposed to mine hazards. (Affidavit of
Thomas Eisenman).
Citation No. 8932192 charges a violation of section 46.11(a) and alleges, in part, that five
employees of Mountain View Waste were on mine property for a community trash day and had
not received site-specific hazard awareness training. 30 C.F.R. § 46.11(a). Citation No. 8932193
charges a violation of section 46.12(a)(2) and alleges, in part, that Mountain View Waste
employees were on mine property at Nine Pit for a community trash day and they were not given
site-specific hazard awareness training. 30 C.F.R. § 46.12(a)(2).
Based on these facts, Park County argues that Citation No. 8932192 must be vacated. The
cited regulation provides that “site-specific hazard awareness training [must be provided] before
any person specified under this section is exposed to mine hazards.” Persons specified under this
regulation includes “any person who is not a miner as defined by § 46.2 of this part but is present
at a mine site.” 30 C.F.R. § 46.11(b). The term “mine site” is defined as “an area of the mine
where mining operations occur.” 30 C.F.R. § 46.2(f). The Secretary has defined “mining
operations” to mean “mine development, drilling, blasting, extraction, milling, crushing,
screening, or sizing of minerals at a mine; maintenance and repair of mining equipment; and
associated haulage of materials within the mine from these activities.” 30 C.F.R. § 46.2(h). Park
County maintains that it is undisputed that there were “absolutely no mining operations in
progress on October 3, 2015, that there was no mining equipment on site, that the Nine Pit was in
‘temporary idle status,’ and that the Community Clean-up event was conducted not on the mine
site, as that term is defined [in section 46.2(f)], but ‘off to [the] side of [the] main property.’”
(Motion at 7 quoting Resp. Ex. 2, p. 3). Under the undisputed facts, no person was “exposed to
mine hazards.” The Community Clean-up was not being conducted in an area of the Nine Pit
“where mining operations occur.”
Based on the same facts, Park County also contends that Citation No. 8932193 must be
vacated. The cited regulation provides that “[e]ach production-operator must provide information
to each independent contractor who employs a person at the mine on site-specific mine hazards
and the obligation of the contractor to comply with our regulations, including the requirements of
this part.” 30 C.F.R. § 46.12(a)(2). The citation states that Mountain View Waste, the firm hired
to deliver and remove dumpsters at the clean-up event, did not receive information on sitespecific hazards and was not advised by the County that it must comply with MSHA regulations.
Park County argues Mountain View Waste was not an “independent contractor” as that term is
defined by the Secretary because it did not perform any services at the Nine Pit site but, instead
“merely supplied roll-off dumpsters on County-owned property adjacent to the Nine Pit Mine
Site for the Community Clean-up.” (Motion at 11; Resp. Ex. 1, Affidavit of Thomas Eisenman).
The Secretary has defined the term “independent contractor” to mean “any person, partnership,
[or] corporation . . . that contracts to perform services at a mine under this part.” 30 C.F.R. §
46.2(e). Read in context and applying the plain and ordinary meaning of the words used in this
definition, the phrase “perform services at a mine under this part” means that the “entity must be

38 FMSHRC Page 1851

performing mine related work.” (Motion at 12). Park County contends that under any other
construction of the definition the words “at a mine” and “under this part” would have no
meaning and would be superfluous. Id. “Delivery and removal of roll off dumpsters for a nonmining related Community Clean-up day is simply not the performance of ‘services at a mine
under this part.’” Id. Consequently, Mountain View Waste was not an independent contractor as
that term is defined by the Secretary. In addition Mountain View Waste never employed anyone
at a mine as it simply supplied roll-off dumpsters. Finally, because no mining activities were
taking place at the Nine Pit, Park County was under no obligation to “provide information” to
Mountain View Waste “on specific mine hazards.”
B.

Secretary of Labor

The Secretary takes issue with many of the “undisputed” facts listed by Park County, as
discussed below. With respect to Park County Fact 4, whether the Clean-up Day was held “off to
[the] side of [the] main property,” it was still on mine property. To get to the clean-up day, the
“public drives into the mine gate [and onto] mine property [and] past existing stockpiles.” (Sec’y
Opposition at 4, quoting Sec’y Ex. 6, p. 2). Being near stockpiles and behind mine gates strongly
indicate that Mountain View Waste was on mine property.
Park County Fact 5 leaves out the concern of the anonymous caller that “[t]here will be a
front loader being operated and drivers driving trucks with no training.” (Id. at 5, quoting Sec’y
Ex. 4). Park County Fact 7 fails to mention that Inspector Gearity found a front-end loader in
operation at the site and the equipment operator was not wearing a seatbelt. (Sec’y Opposition at
5, quoting Sec’y Ex. 6 p. 2). The equipment operator would have known of his obligation to
always wear a seatbelt had he received the proper MSHA training.
Park County Fact 14 states that MSHA failed to identify any mine hazards at the site of
the Clean-up Day. To the contrary, Citation No. 8932192 lists a number of hazards including
“stockpiles, the pit, and mine equipment such as the screening plant and front-end loader.” In
addition, no County or Mountain West Waste employee at the site had received any hazard
training.
Park County Fact 15 incorrectly states that the Clean-up Day was not held on an area
where mining occurs. Although neither extraction nor milling were taking place on October 3,
mine records show that as recently as September 29 miners engaged in nine hours of material
screening at the Nine Pit. Park County Fact 16 incorrectly states that Mountain View Waste
merely supplied roll-off dumpsters. The facts show, however, that there were five Mountain
View Waste employees at the site and one of these employees was operating a front-end loader.
The Secretary also disputes Park County’s legal arguments. With respect to Citation No.
8932192, Park County relies exclusively on the inspector’s passing phrase that the Clean-up Day
was off to the side. When the facts are analyzed taking into consideration the definition of a
“coal or other mine” in section 3(h)(1) of the Mine Act, it becomes clear that the Clean-up Day
took place at a “mine.” 30 U.S.C. § 802(h)(1). As a consequence, the requirements of section 46
applied to the Clean-up Day. With respect to Citation No. 8932193, the Secretary argues that
although “Mountain View Waste was not assisting in the removal of sand and gravel from the

38 FMSHRC Page 1852

mine site; [it was] nevertheless performing services on mine property at the invitation of the
mine operator, [Park County].” (Sec’y Opposition at 8).
C.

Park County’s Reply

In response to the Secretary’s opposition, Park County makes the following argument.
First, it contends that the Secretary’s opposition rests on mere allegations and denials rather than
specific facts supported by affidavits or other verified documents as required by 29 C.F.R. §
2700.67(d). Second, the Secretary did not address most of the Park County Facts set forth in the
motion for summary decision. Third, Park County responded to specific statements made by the
Secretary in opposition to the Park County Facts. With respect to Park County Fact 7, Park
County notes that it did not mention the front-end loader because it “had absolutely nothing to do
with the mine but was owned, operated, and used by Mountain View Waste to move dumpsters
and pick up trash.” (Park County Reply at 6). The presence of the front-end loader is totally
irrelevant to the issues in this case because it was not mining equipment. In addition, the “facts”
set forth in the two subject citations are mere allegations that were prepared at a later date and
should not be considered in response to a motion for summary decision because the allegations
are not supported by an affidavit. With respect to Park County Fact 15, it is immaterial that
mining occurred at the Nine Pit in the past. The key fact that the Secretary cannot dispute is that
no mining, milling, or stockpiling has ever occurred at the site of the Clean-up Day. Finally, Park
County maintains that it is undisputed that no employees of Mountain View Waste entered the
pit or traveled to other areas on the property other than the site of the clean-up activity where no
mining activity was taking place. (Park County Reply at 8). It cannot be disputed that employees
of Mountain View Waste “never engaged in mining operations and were never exposed to any
mine hazards, as is recited in the Eisenman Affidavit.” Id. at 9.
II. DISCUSSION AND ANALYSIS
The only issue before me at the present time is whether summary decision can be granted.
I reject Park County’s argument that the Secretary failed to comply with Commission Procedural
Rule 67(d). Although the Secretary did not include a declaration or affidavit in his opposition, he
did provide documents to support his position that there are genuine issues of material fact that
must be resolved. I may also rely on the conditions described in the two citations as specific facts
that the Secretary is prepared to establish at an evidentiary hearing. (Exs. 1-7).
I find that there are a few genuine issues of material fact that need to be resolved before I
can rule on Park County’s motion, as follows:
1. The photographs attached to Park County’s motion show a number of stockpiles of
aggregate and other material. It is not clear how close those stockpiles were to the dumpsters and
to the activities of the Mountain View Waste employees. In his affidavit, Thomas Eisenman
stated that he “personally confirmed with Mountain View Waste that no employees entered the
pit area nor were any employees of Mountain View Waste exposed to any mine hazards since no
mining operations were occurring on October 3, 2015 and the Clean-up Day activities were not
at the mine site.” (Affidavit ¶ 7). There was no evidence that the pit was near the location of the
Clean-up Day or that the any “structures, facilities, equipment, machines, [or] tools . . . used in,

38 FMSHRC Page 1853

or to be used in, or resulting from, the work of extracting . . . minerals from their natural deposits
. . . or used in, or to be used in, the milling of such minerals” were anywhere near the Clean-up
Day location. 30 U.S.C. § 801(h)(1). Consequently, only the stockpiles were potentially close
enough to the Clean-up Day location to pose a potential mine hazard. I need to know whether
these material stockpiles were produced as a result of mining or screening activities at the Nine
Pit. If so, I need evidence of the minimum distance between these stockpiles and the Clean-up
Day activities on October 3, 2015. If the exact distances are not known, a reasonable estimate
would be sufficient. If the Secretary believes that these stockpiles were close enough to the area
where Mountain View Waste employees were working, I need evidence as to how the stockpiles
exposed these employees to mine hazards.
2. Park County stated that Mountain View Waste “merely supplied roll off dumpsters on
County-owned property adjacent to the Nine Pit Mine Site for Community Clean-up.” (Eisenman
Affidavit ¶ 7). Yet, five Mountain View Waste employees apparently were present at the Cleanup Day and a front-end loader was used during the event. In its reply to the Secretary’s
opposition to the motion, Park County stated that the front-end loader “was owned, operated and
used by Mountain View Waste to move dumpsters and pick up trash.” (Park County Reply at 6).
This statement contradicts the affidavit of Mr. Eisenman. I need more evidence as to what the
front-end loader was used for and how closely it operated to the stockpiles shown in the
photographs.
I do not believe that an evidentiary hearing will be necessary to resolve these evidentiary
issues. If the parties are unable to settle the case, time will be allowed for them to supplement
their previous filings based on a schedule developed during a conference call with me.
Although I am denying the motion for summary decision because there remain genuine
issues of material fact, I am offering some thoughts on the merits of the case. With respect to
Citation No. 8932192, the hazard training requirement in section 46.11(b) only arises if specified
persons are “exposed to mine hazards.” Those specified persons are individuals who are not
miners but who are present at a “mine site.” Section 46.2(f). A “mine site” does not encompass
the entire mine but only those parts of the mine in which “mining operations occur.” Id. “Mining
operations” include “mine development, drilling, blasting, extraction, milling, crushing,
screening, or sizing of minerals at a mine; maintenance and repair of mining equipment; and
associated haulage of materials within the mine from these activities.” Section 46.2(h). If the
Secretary is unable to establish that the five Mountain View Waste employees were present at a
“mine site,” as defined by the Secretary, and were “exposed to mine hazards,” then I will vacate
the citation. Establishing that these individuals were present at a “coal or other mine,” as that
term is defined in the Mine Act is insufficient to establish a violation of section 46.11(a) in this
instance. In addition, the mere fact that Mountain View Waste brought the dumpsters through the
mine gate would be insufficient
With respect to Citation No. 8932193, a key issue will be whether Mountain View Waste
was an independent contractor as that term is defined in section 46.2(e). Generally, any
contractor performing services at a mine is considered to fit within the definition of independent
contractor in the Mine Act, unless “an entity's contacts with a mine would be so attenuated as to
remove it from the jurisdiction of MHSA.” Northern Illinois Steel Supply Co. v. Sec’y of Labor,

38 FMSHRC Page 1854

294 F.3d 844, 848 (7th Cir. 2002). There comes “a point at which an independent contractor's
contact with a mine is so infrequent or de minimis that it would be difficult to conclude that
services were being performed under the Mine Act.” Id; See also Otis Elevator Co. v. Sec’y of
Labor, 921 F.2d 1285, 1290 n. 3 (D.C. Cir. 1990). If I find that the activities of Mountain View
Waste were de minimis, I will hold that it was not an independent contractor of Park County and
I will vacate the citation. If I find that Park County was an independent contractor, the Secretary
would be required to establish that Mountain View Waste’s employees were exposed to specific
mine hazards for which hazard awareness training would be required.
I strongly encourage the parties to settle this case taking into consideration this order. If
you are unable to settle the case, please advise me by no later than August 9, 2016, so that I may
schedule a conference call to discuss further proceedings.
III. ORDER
For the reasons set forth above, the motion for summary decision filed by Park County is
DENIED. I find that there are genuine issues of material fact that remain in dispute.

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

Distribution:
Michelle A. Horn, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd.,
Suite 216, Denver, CO 80204-3518
horn.michele.a@dol.gov
Herbert C. Phillips, Esq., PO Box 1046, Fairplay, CO 80440
lee@law-hcp.com
RWM

38 FMSHRC Page 1855

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

July 14, 2016
DISCRIMINATION PROCEEDING

MARK BAILEY,
Complainant,

Docket No. WEVA 2016-241-D
PINE CD-2016-03
v.
REX OSBORNE, COLIN MILAM,
ROCKWELL MINING, LLC, and
GATEWAY EAGLE COAL CO., LLC,
Respondents.

Gateway Eagle Mine
Mine ID: 46-06618

ORDER DENYING MOTION TO DISMISS
ORDER DENYING MOTION FOR SUMMARY DECISION
This matter is before me on a Motion to Dismiss due to bankruptcy filing of the original
employer and for Summary Judgment on the merits of the case filed by Respondent Rockwell
Mining, LLC. Complainant Mark Bailey filed a response to the motion. Bailey initiated this case
after being terminated from his employment with Gateway Eagle Coal Co., LLC. He has named
Rockwell Mining, LLC (“Rockwell”) as a party in his action under a theory of successor
liability. In its motion, Rockwell argues that a finding of successor liability against it is
precluded by a bankruptcy court order stating that Rockwell’s parent company, Blackhawk
Mining, LLC, purchased assets including the Gateway Eagle Mine “free and clear of all Liens,
Claims and interests.” Rockwell further argues that under the Commission’s test for successor
liability, it is not a successor to Bailey’s former employer, Gateway Eagle Coal Co., LLC.
Finally, it argues that Bailey’s complaint is without merit and that a finding of summary decision
in favor of Rockwell is appropriate on the merits. For the reasons that follow, the motions are
denied.
I. BACKGROUND
Mark Bailey began working at the Gateway Eagle Mine on February 5, 2014. The mine
was operated at that time by Gateway Eagle Coal Co., LLC. Bailey alleges that he began
refusing to operate his roof bolting machine in return air in late 2014 because of concerns about
inhaling coal and silica dusts while the machine was operating downwind of the continuous
miner. He alleges acts of interference with his refusal to work culminating in his suspension with
intent to discharge on September 10, 2015. He seeks reinstatement to his former position, back
pay, attorneys’ fees, and injunctive relief. Respondents argue that Bailey’s discharge was not
discriminatory, but rather based on excessive absences. Bailey has named Rockwell Mining,
LLC, as a respondent in his case, alleging that Rockwell is a successor-in-interest to Gateway
Eagle.

38 FMSHRC Page 1856

Gateway Eagle Coal Co., LLC (“Gateway Eagle”) and its parent company, Patriot Coal,
filed voluntary petitions for relief under Chapter 11 on May 12, 2015. A bar date for creditors to
file proofs of claim was set for June 27, 2015. In early June 2015, Patriot entered into an
agreement with Blackhawk Mining and its subsidiary, Rockwell Mining, LLC, for Rockwell to
acquire the Gateway Eagle Mine. The plan of acquisition was confirmed by the bankruptcy court
on October 9, 2015. In re Patriot Coal Corp., Ch. 11 Case No. 15-32450 (Bankr. E.D. Va. Oct.
9, 2015) (order confirming plan of reorganization) (“Confirmation Order”). An Administrative
Claims Bar Date was set for November 25, 2015. In re Patriot Coal Corp., Ch. 11 Case No. 1532450 (Bankr. E.D. Va. Oct. 28, 2015) (notice of confirmation, effective date, and bar dates)
(“Notice of Admin. Bar Date”).
The bankruptcy court’s confirmation order approves the sale of assets to Blackhawk “free
and clear of all Liens, Claims and interests … pursuant to the terms and conditions of the
Blackhawk APA.” Confirmation Order ¶ 114. The order further states in its findings of fact and
conclusions of law that:
Blackhawk is not and shall not be deemed, as a result of any action
taken in connection with the Blackhawk Transaction, to: 1) be a
successor (or other such similarly situated party) to any of the
Debtors . . . .
Blackhawk … is not, and shall not be, a successor to the Debtors
by reason of any theory of law or equity . . . .
[Blackhawk and its affiliates] shall have no successor or vicarious
liabilities of any kind or character, including, but not limited to,
any theory of antitrust, environmental, successor or transferee
liability, labor, employment or benefits law … whether known or
unknown as of the closing of the Blackhawk Transaction, then
existing or hereafter arising … with respect to the Debtors . . . .
Confirmation Order ¶¶ 76, 116, 120.
Bailey’s termination occurred after the deadline for filing a proof of claim, but before
Rockwell acquired the mine and before the deadline for filing an administrative claim. Bailey
filed his complaint of discrimination with MSHA on September 23, 2015. MSHA notified him
that it was declining to pursue the complaint on January 21, 2016. Bailey filed his complaint with
FMSHRC on February 22, 2016.
II. STANDARD OF REVIEW
A. Motion to Dismiss
Federal Rule of Procedure 12(b)(6) permits a respondent to file a motion to dismiss a
claim for failure to state a claim upon which relief can be granted. When ruling on a respondent’s
motion to dismiss, the judge “must accept as true all of the factual allegations contained in the
complaint.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002). To survive a motion to
dismiss, a complaint must contain sufficient factual matter to allow the court to draw a

38 FMSHRC Page 1857

reasonable inference that the respondent is liable for the misconduct alleged. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
B. Motion for Summary Decision
Commission Rule 67 provides:
A motion for summary decision shall be granted only if the entire
record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows:
(1) That there is no genuine issue as to any material facts; and
(2) That the moving party is entitled to summary decision as a
matter of law.
29 C.F.R. § 2700.67(b).
In reviewing the record on summary decision, the judge must consider the record “in the
light most favorable to … the party opposing the motion.” Hanson Aggregates N.Y., Inc., 29
FMSHRC 4, 9 (Jan. 2007) (citing Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 473
(1962)). Inferences drawn from the facts in the record must also be viewed in the light most
favorable to the party opposing the motion. Id. (citing United States v. Diebold, Inc., 369 U.S.
654, 655 (1962)).
III. DISCUSSION
A. Discharge in Bankruptcy
In its Motion to Dismiss, Rockwell argues that the bankruptcy court’s October 9, 2015,
order confirming the sale of Patriot Coal’s assets to Blackhawk Mining “free and clear of all
Liens, Claims and interests” precludes a finding of successor liability against it. As explained
below, I find that for due process reasons, it is inappropriate to dismiss the case on these
grounds.
i.

Free and Clear Sales

Gateway Eagle, through its parent company, Patriot Coal, filed for Chapter 11
bankruptcy protection in May 2015 and sought to sell its assets as a part of the bankruptcy plan.
The Bankruptcy Code provides two avenues for the sale of a debtor’s assets during the Chapter
11 bankruptcy process. The first is through the Chapter 11 plan of reorganization, which may
provide for the “sale of all or any part of the property of the estate either subject to or free of any
lien.” 11 U.S.C. § 1123(a)(5)(D). Section 1141(c) of the Bankruptcy Code provides that, with
some exceptions,1 “after confirmation of a plan, the property dealt with by the plan is free and
clear of all claims and interests of creditors, equity security holders, and of general partners in
the debtor.” 11 U.S.C. § 1141(c). The second avenue available is § 363(f), which empowers the
trustee in bankruptcy to “sell property under subsection (b) or (c) free and clear of any interest in
1

The exceptions are not relevant and so are not addressed here. See 11 U.S.C. § 1141(d).

38 FMSHRC Page 1858

such property of an entity other than the estate.” 11 U.S.C. § 363(f). Section 363 may be used
before a reorganization plan is approved and involves fewer procedural requirements than the
reorganization process. See George W. Kuney, Misinterpreting Bankruptcy Code Section 363(f)
and Undermining the Chapter 11 Process, 76 Am. Bankr. L.J. 235, 236 (2002). The transfer
from Gateway Eagle to Blackhawk was accomplished through the plan process, see
Confirmation Order, but cases involving § 363(f) sales are also relevant to this discussion.
Courts have generally decided that the trustee’s power to sell assets “free and clear of any
interest in property” under § 363(f) includes the power to sell free and clear of claims for
successor liability. See, e.g., In re Chrysler LLC, 576 F.3d 108, 126 (2d Cir. 2009); In re Trans
World Airlines, 322 F.3d 283, 288-90 (3d Cir. 2003) (“TWA”); In re Leckie Smokeless Coal Co.,
99 F.3d 573, 582 (4th Cir. 1996); but see Zerand-Bernal Grp., Inc. v. Cox, 23 F.3d 159, 163 (7th
Cir. 1994) (finding that bankruptcy court lacked jurisdiction to enjoin a successor liability suit in
state court against a § 363 asset purchaser after the bankruptcy proceeding closed). These courts
have explained that while successor liability claims are typically not “interests in property” in the
sense of being in rem, they nevertheless “arise from the property being sold.” TWA, 322 F.3d at
290; but see Rachel P. Corcoran, L.L.M. Thesis, Why Successor Liability Claims Are Not
“Interests in Property” Under Section 363(f), 18 Am. Bankr. Inst. L. Rev. 697 (2010) (arguing
that “interests in property” extinguishable under § 363(f) should be limited to in rem interests);
Kuney, supra (similar). For instance, the Third Circuit in TWA found that successor liability
claims for employment discrimination would not have arisen “[h]ad TWA not invested in airline
assets, which required the employment of the EEOC claimants.” 322 F.3d at 290; see also
Leckie, 99 F.3d at 582.
In addition to this textual argument, these courts have observed that “[t]o allow the
claimants to assert successor liability claims against [the purchaser] while limiting other
creditors’ recourse to the proceeds of the asset sale would be inconsistent with the Bankruptcy
Code’s priority scheme.” Chrysler, 576 F.3d at 126 (alteration original) (quoting TWA, 322 F.3d
at 292); see also New Eng. Fish Co., 19 B.R. 323, 329 (Bankr. W.D. Wash. 1982); but see Chi.
Truck Drivers, Helpers & Warehouse Workers Union (Indep.) Pension Fund v. Tasemkin, Inc.,
59 F.3d 48, 49 (7th Cir. 1995) (“In fact, once a bankruptcy proceeding is completed and its
books closed, the bankrupt has ceased to exist and the priorities by which its creditors have been
ordered lose their force.”). Section 507 of the Code lists classes of unsecured creditors entitled to
priority, and successor liability claimants are not among them. 11 U.S.C. § 507.
Finally, these courts have noted that allowing the bankruptcy trustee to sell assets free
and clear of successor liability claims enables it to maximize the sale price of the assets. See
Douglas v. Stamco, 363 F. App’x 100, 103 (2d Cir. 2010); TWA, 322 F.3d at 292-93; Leckie, 99
F.3d at 586-87; In re White Motor Credit Corp., 75 B.R. 944, 951 (Bankr. N.D. Ohio 1987); but
see Zerand, 23 F.3d at 163 (7th Cir. 1994) (suggesting that allowing the bankruptcy court to
immunize buyers in asset sales from liability to a greater extent than can be done under ordinary
property law creates an improper incentive for companies to enter bankruptcy). In TWA, the
court found that “a sale of the assets of TWA at the expense of preserving successor liability
claims was necessary in order to preserve some 20,000 jobs, including those of … EEOC
claimants still employed by TWA, and to provide funding for employee-related liabilities,
including retirement benefits.” 322 F.3d at 293.

38 FMSHRC Page 1859

There is less case law addressing the question of whether an asset sale pursuant to a
reorganization plan may extinguish successor liability. However, the textual argument appears to
be stronger: whereas § 363(f) provides for a sale of property “free and clear of any interest in
such property,” § 1141(c) provides that “after confirmation of a plan, the property dealt with by
the plan is free and clear of all claims and interests of creditors, equity security holders, and of
general partners in the debtor.” 11 U.S.C. §§ 363(f), 1141(c) (emphasis added); see also
Chrysler, 576 F.3d at 125 (deciding to “harmonize the application of § 1141(c) and § 363(f)” by
interpreting the latter to permit sales free and clear of successor liability). If a successor liability
claim can be considered an “interest in property,” it almost certainly can be considered a “claim”
of a creditor.2 Additionally, the arguments for maximizing sale prices and preserving Code
priorities apply equally in the context of § 1141(c).
While the dominant trend is towards permitting bankruptcy courts to extinguish claims
for successor liability, the National Labor Relations Board (“NLRB”) reached a contrary result in
International Technical Products Corp., 249 N.L.R.B. 1301 (1980) (“ITP”). The Board
determined that a bankruptcy court’s free and clear sale order did not extinguish a successor’s
liability for back pay under an NLRB order against the debtor.3 249 N.L.R.B. 1301, 1303 (1980)
(“ITP”). The Board emphasized that a Board order is not focused on the property of the
employer, suggesting that bankruptcy law was therefore inapplicable. The Board stated that
[W]hile a bankruptcy court may have the authority to assign a
certain priority to the Board’s claim for backpay, the authority to
modify or set aside the order upon which the claim is based rests
exclusively with the Board and the appropriate reviewing Federal
courts, and not the bankruptcy courts.
ITP, 249 N.L.R.B. at 1303.
In a recent FMSHRC discrimination case, Judge Moran cited ITP in an order suggesting
that a bankruptcy court’s § 363(f) sale order did not preclude a finding of successor liability
under the Mine Act. Varady v. Veris Gold USA, Inc., 38 FMSHRC __, slip op. at 14, No. WEST
2014-307-DM (Mar. 4, 2016) (ALJ). Judge Moran concluded that “There is nothing in the Mine
Act that relegates it to a status as an appendage of bankruptcy law and therefore there is nothing
which prohibits this Court … from making the legal determination of whether [the asset
purchaser] is a successor entity under the Mine Act.” Id. at 16.
However, the status of ITP as good law is uncertain. While the Board has stated that ITP
is “current Board law,” Leiferman Enters., LLC, 354 N.L.R.B. 872, 872 n.3 (2009), aff’d, 649
2

A “creditor” is defined in the Bankruptcy Code as an “entity that has a claim against the
debtor that arose at the time of or before the order for relief concerning the debtor.” 11 U.S.C. §
101(10).
3

The case was decided under the previous version of the Bankruptcy Act, but was based
primarily on policy concerns rather than textual interpretation and so remains relevant. 249
N.L.R.B. at 1303-04.

38 FMSHRC Page 1860

F.3d 873 (8th Cir. 2011), its reasoning has never been reexamined by the Board. See N.L.R.B.,
Office of General Counsel, Opinion Letter re: In the Matter of RFS Ecusta, Inc., 2005 WL
936629 (Mar. 21, 2005). The Board’s reasoning has also been questioned in later decisions. See
Herbert N. Zimmerman, Inc., 314 N.L.R.B. 107, 112 (1994) (“Whatever the final balance
between the two acts may be, totally ignoring regular bankruptcy proceedings is not it.”); New
Eng. Fish Co., 19 B.R. at 327 (stating that ITP was “based on specious reasoning”); see also In
re Pan Am. Hosp. Corp., 364 B.R. 832, 837 (Bankr. S.D. Fla. 2007) (“The NLRB does not,
however, have a right to assert successor liability to a bona fide § 363 purchaser for
reinstatement and back pay incurred prior to the sale.”)
Reviewing the law as it stands, the most plausible interpretation of the Bankruptcy Code
is that it enables a bankruptcy court to extinguish claims for successor liability through either a §
363(f) sale or a reorganization plan.
ii.

Due Process

While most courts agree that the Bankruptcy Code permits a bankruptcy court to
extinguish claims for successor liability, they have found that this power is limited by the
requirements of due process. Courts have recognized that permitting a bankruptcy court to
extinguish claims where the injury occurs after the conclusion of the bankruptcy proceeding
(“future claims”) presents significant due process problems. See, e.g., Chrysler, 576 F.3d at 127
(declining to decide whether order extinguishing claims applied to future claims); Zerand, 23
F.3d at 163; In re Chateaugay Corp., 944 F.2d 997, 1003 (2d Cir. 1991). The Supreme Court has
explained that for a proceeding to satisfy due process there must be “notice reasonably
calculated, under all the circumstances, to apprise interested parties of the pendency of the action
and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950).
The Fifth Circuit addressed the issue of future claims in Lemelle, a wrongful death action
against an alleged successor corporation involving a mobile home fire. Lemelle v. Universal Mfg.
Corp., 18 F.3d 1268 (5th Cir. 1994). The assets of the mobile home manufacturer had been sold
to a third party in bankruptcy, and the alleged successor corporation merged with the reorganized
company after the bankruptcy. Id. at 1271. The mobile home had been manufactured prior to the
bankruptcy, but the fire occurred after the conclusion of the bankruptcy. Id. at 1271. The alleged
successor argued that the wrongful death claim had been discharged in the predecessor’s
bankruptcy. Id. at 1271. The court determined that the wrongful death suit was not a “claim” that
the bankruptcy court could have discharged because the claimants were completely unknown at
the time of the petition and could not have been given notice of the proceeding. Id. at 1277.
Several federal district courts have also addressed the issue of future claims in the context
of § 363(f) asset sales. In re Grumman Olson Industries, Inc., and Schwinn Cycling & Fitness,
Inc. v. Benonis involved products liability actions where the product was manufactured and sold
prior to the bankruptcy, but the injury occurred after the bankruptcy concluded. In re Grumman
Olson Indus., Inc., 467 B.R. 694, 698 (S.D.N.Y. 2012); Schwinn Cycling & Fitness, Inc. v.
Benonis, 217 B.R. 790, 793 (N.D. Ill. 1997). In both cases, the plaintiff named the purchaser of
assets in a § 363 sale as a defendant under a theory of successor liability. 467 B.R. at 699; 217
B.R. at 792-94. The bankruptcy court’s order confirming the sale in each case had declared that

38 FMSHRC Page 1861

the sale was “free and clear of all claims” and that the purchaser would not be liable under a
successorship theory for claims against the debtor. 467 B.R. at 699; 217 B.R. at 792-93. Both
courts concluded that a bankruptcy court’s order could not be enforced to extinguish a claim
“where no injury occurred to the claimant until after the bankruptcy closed, such that the
claimant was not provided with notice of, or an opportunity to participate in, the bankruptcy
proceedings that gave rise to that order.” Grumman Olson, 467 B.R. at 702; see also Schwinn,
217 B.R. at 797.
The court in Grumman Olson acknowledged that, on its face, the sale order would have
extinguished the theory of successor liability pled by the plaintiff. 467 B.R. at 708. But it found
that “Enforcing the Sale Order against the [plaintiffs] to take away their right to seek redress
under a state law theory of successor liability when they did not have notice or an opportunity to
participate in the proceedings that resulted in that order would deprive them of due process.” Id.
The claim at issue differs from the claims in Grumman Olson and Schwinn in that the
injury occurred prior to the discharge in bankruptcy rather than after it. The Eighth Circuit
addressed the issue of due process in a situation similar to the one at hand. Sanchez v. Nw.
Airlines, Inc., 659 F.3d 671 (8th Cir. 2011). In Sanchez, the plaintiff brought suit against his
employer for discrimination against him on the basis of his disability in violation of the
Americans with Disabilities Act. Id. at 672. The employer argued that the claim had been
discharged in its Chapter 11 bankruptcy. Id. at 673. The plaintiff’s claim accrued after the
company had filed for bankruptcy, prior to confirmation of its Chapter 11 plan, but after the
deadline for regular creditors to submit proofs of claim. Id. at 673-74. The court found that
although the plaintiff received notice of the bankruptcy, the notice did not afford him an
opportunity to make an appearance, since his claim accrued after the bar date. Id. at 675-76.
Thus, due process prevented the bankruptcy court from discharging his claim. Id.; see also In re
Savage Indus., Inc., 43 F.3d 714, 720-21 (1st Cir. 1994) (holding that claims arising during
Chapter 11 proceeding survived because claimants did not receive notice).
In this case, Bailey’s claim accrued on the date of his suspension with intent to discharge,
September 10, 2015. This was prior to the plan confirmation date of October 9, 2015, but well
after the bar date of June 27, 2015. Confirmation Order. The parties have not addressed whether
Bailey received notice of the bar date. Nevertheless, any notice he may have received would not
have “afford[ed] a reasonable time for [him] to make [his] appearance,” Mullane, 339 U.S. at
314, since the deadline for submitting claims had already passed.
Rockwell argues that even though Bailey’s claim arose after the regular claims bar date,
Bailey could still have filed an administrative claim. Resp. Mot. for Sum. Dec. at 3 n.7. The
deadline for filing an administrative claim was November 25, 2015, two months after Bailey’s

38 FMSHRC Page 1862

suspension with intent to discharge.4 Bailey disputes that his claim qualified as an administrative
claim. The Bankruptcy Code provides that
After notice and a hearing, there shall be allowed administrative
expenses … including the actual, necessary costs and expenses of
preserving the estate including … wages and benefits awarded
pursuant to a judicial proceeding or a proceeding of the National
Labor Relations Board as back pay attributable to any period of
time occurring after commencement of the case under this title, as
a result of a violation of Federal or State law by the debtor, without
regard to the time of the occurrence of unlawful conduct on which
such award is based or to whether any services were rendered, if
the court determines that payment of wages and benefits by reason
of the operation of this clause will not substantially increase the
probability of layoff or termination of current employees, or of
nonpayment of domestic support obligations, during the case under
this title.
11 U.S.C. § 503(b) (emphasis added). While Bailey is seeking back wages, he has not yet
received an “award” of back pay. Further, the Code refers only to wages and benefits awarded
“pursuant to a judicial proceeding or a proceeding of the National Labor Relations Board.” Id.
The term “judicial proceeding” is not defined in the Code, but Congress’s separate reference to
the NLRB suggests that the term does not encompass administrative proceedings such as those
before the NLRB. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a cardinal principle of
statutory construction that a statute ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” (internal
quotations omitted)). Thus, I find that Bailey could not have brought his discrimination claim as
an administrative claim in the bankruptcy proceeding.
Because Bailey could not have brought his claim in the bankruptcy proceeding as either
an administrative or an ordinary claim, he had no “opportunity to be heard” as required by due
process. Accordingly, I find that Bailey’s claim was not discharged by the bankruptcy
proceeding and that he is not bound by the bankruptcy court’s determination that Blackhawk is
not a successor to Patriot Coal.

4

Bailey did not receive MSHA’s determination on his case until January 21, 2016. He
thus argues that his claim accrued after the Administrative Claims Bar Date, since he could not
have filed a claim with FMSHRC prior to receiving the determination from MSHA. 30 U.S.C. §
815(c)(3). However, courts to address the issue have held that in the analogous case of a Title
VII suit, a right-to-sue letter is “merely a jurisdictional prerequisite, and does not create a claim.”
McSherry v. Trans World Airlines, 81 F.3d 739, 741 (8th Cir.1996). Rather, the claim “arises, for
purposes of discharge in bankruptcy, at the time of the events giving rise to the claim, not at the
time plaintiff is first able to file suit on the claim.” O'Loghlin v. Cty. of Orange, 229 F.3d 871,
874 (9th Cir. 2000).

38 FMSHRC Page 1863

B. Successor Liability
Rockwell argues that even if the Court decides to apply the Commission’s test for
successor liability, it should find that Rockwell is not a successor to Bailey’s former employer,
Gateway Eagle.
The Commission has held that a corporate successor may be held liable for its
predecessor’s violations of the Mine Act. Sec’y of Labor on behalf of Corbin v. Sugartree Corp.,
9 FMSHRC 394, 397 (Mar. 1987), aff’d sub nom. Terco, Inc. v. Fed. Coal Mine Safety & Health
Review Comm’n, 839 F.2d 236 (6th Cir. 1987); see also Munsey v. Smitty Baker Coal Co., 2
FMSHRC 3463, 3465 (Dec. 1980) (applying successorship doctrine in a Coal Act case). In
analyzing whether it is appropriate to impose liability on a successor, the Commission applies a
nine-factor test derived from Title VII case law. Corbin, 9 FMSHRC at 397-98; Munsey, 2
FMSHRC at 3465-66. The relevant factors are:
1) [W]hether the successor company had notice of the charge, 2)
the ability of the predecessor to provide relief, 3) whether there has
been a substantial continuity of business operations, 4) whether the
new employer uses the same plant, 5) whether he uses the same or
substantially the same work force, 6) whether he uses the same or
substantially the same supervisory personnel, 7) whether the same
jobs exist under substantially the same working conditions, 8)
whether he uses the same machinery, equipment and methods of
production and 9) whether he produces the same product.
Munsey, 2 FMSHRC at 3465-66 (alteration in original) (quoting EEOC v. MacMillan Bloedel
Containers, Inc., 503 F.2d 1086, 1094 (6th Cir. 1974)).
Rockwell argues that it had no notice of Bailey’s charge and that it therefore should not
be held liable as a successor. Resp. Mot. for Sum. Dec. at 15-18. A number of courts have agreed
that the issue of notice is dispositive with regard to the imposition of successor liability. See, e.g.,
Rabidue v. Osceola Ref. Co., 805 F.2d 611, 616 (6th Cir. 1986), overruled on other grounds by
Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) (finding that where “the successor had no notice
of contingent charges of discrimination at or before the time of acquisition, the case was
removed from the rationale of MacMillan and successor liability would not attach”); Scott v.
Sopris Imports Ltd., 962 F. Supp. 1356, 1360 (D. Colo. 1997). Rockwell notes that Bailey did
not file his discrimination complaint with MSHA until November 23, 2015. Rockwell first
received notice of the MSHA complaint in a letter from MSHA on November 24, 2015, over a
month after confirmation of the Patriot sale. Resp. Mot. for Sum. Dec. at 17. Bailey argues,
however, that the notice requirement was satisfied when he filed a UMWA grievance opposing
his termination. Comp. Resp. in Opp. at 7. The grievance was resolved on September 15, 2015,
prior to the bankruptcy confirmation. Resp. Mot. for Sum. Dec., Ex. O.
The purpose of the notice requirement is to “ensure fairness by guaranteeing that a
successor had an opportunity to protect against liability by negotiating a lower price or indemnity
clause.” Steinbach v. Hubbard, 51 F.3d 843, 847 (9th Cir. 1995) (citing Golden State Bottling
Co., Inc. v. NLRB, 414 U.S. 168, 185 (1973)); see also Musikiwamba v. ESSI, Inc., 760 F.2d 740,

38 FMSHRC Page 1864

750 (7th Cir. 1985). Accordingly, the relevant time period for notice is before the transfer of the
business. In many cases, courts have looked to the filing of a lawsuit to show notice. See, e.g.,
EEOC v. N. Star Hosp., Inc., 777 F.3d 898, 902 (7th Cir. 2015); Brzozowki v. Corr. Physician
Servs., Inc., 360 F.3d 173, 178 (3rd Cir. 2004); Musikiwamba, 760 F.2d at 751-52; EEOC v.
Nichols Gas & Oil, Inc., 688 F. Supp. 2d 193, 196 (W.D.N.Y. 2010). However, some courts have
held that a successor may have notice of a claim even though no formal claim has yet been filed.
See, e.g., Battino v. Cornelia Fifth Ave., LLC, 861 F. Supp. 2d 392, 405-06 (S.D.N.Y. 2012)
(finding that individual defendant had notice of claim for unpaid wages based on conversation
providing him with knowledge of predecessor’s unlawful action); Walker v. Faith Tech., Inc.,
344 F. Supp. 2d 1261, 1268 (D. Kan. 2004) (finding that successor had notice of claim because
plaintiff complained about discrimination to his project manager, who told official in both old
and new companies about the complaints); cf. Scott v. Sopris Imps. Ltd., 962 F. Supp. 1356,
1359-60 (D. Colo. 1997) (evaluating whether successor had “constructive notice of an imminent,
or even possible claim”). In Golden State Bottling, the Supreme Court upheld a finding that the
notice prong had been satisfied where a managerial employee of the predecessor company had
knowledge of the potential liability, participated in the sale negotiations, and took a similar
management position with the successor. 414 U.S. at 173. The Court noted that those facts
“support[ed] an inference that [the manager] informed his prospective employer of the litigation
before completion of the sale.” Id.
I find that here, Bailey has raised a genuine issue of material fact as to whether Rockwell
had notice of his discrimination charge. Bailey asserts that Rockwell had notice of his claim
based on his grievance of his discharge. Comp. Resp. in Opp. at 7. While the record includes a
copy of the denial of his grievance, it is unclear whether Rockwell knew of the grievance and
whether the grievance provided notice of Bailey’s allegations of discriminatory discharge. Resp.
Mot. for Sum. Dec., Ex. O. Nevertheless, I find that Bailey has raised a question of fact with
regard to this issue. Further, I am unpersuaded by Rockwell’s argument that the bankruptcy
court’s “free and clear” order prevented it from having notice of any claim. See Resp. Mot. for
Sum. Dec. at 15-17. Such a rule would defeat any successor liability claim after a free and clear
sale, and as discussed above, a successor liability claim can in some cases survive a bankruptcy
proceeding.
Addressing the second element of the Munsey test, Rockwell admits that the predecessor,
Gateway Eagle, would have been unable to provide relief to Bailey. Resp. Mot. for Sum. Dec. at
21. Gateway Eagle’s parent company, Patriot Coal, lacked sufficient funds to meet its
obligations, and Gateway Eagle no longer has any employees, making reinstatement impossible.
Id. In Munsey, the Commission implied that the inability of the predecessor to provide relief
counseled in favor of imposing liability on the successor corporation. See Munsey, 2 FMSHRC at
3466. However, Rockwell argues that Gateway Eagle’s inability to provide relief should weigh
against a finding of successor liability, because ordering the successor to provide relief would
“work a damaging windfall in the plaintiff’s favor by the mere serendipity of working for a
company that failed and was sold.” Resp. Mot. for Sum. Dec. at 19.
Rockwell’s approach finds support in the case Musikiwamba v. ESSI, Inc., in which the
Seventh Circuit states that “Unless extraordinary circumstances exist, an injured employee
should not be made worse off by a change in the business. But neither should an injured

38 FMSHRC Page 1865

employee be made better off.” 760 F.2d at 750. However, most courts do not take this approach,
instead holding that a predecessor’s inability to pay weighs in favor of imposing successor
liability. See, e.g., Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 153 (3d Cir. 2014);
Prince v. Kids Ark Learning Ctr., LLC, 622 F.3d 992, 995 (8th Cir. 2010); Terco, Inc. v. Fed.
Coal Mine Safety & Health Review Comm’n, 839 F.2d 236, 239 (6th Cir. 1987). Commission
case law is consistent and follows the reasoning that the inability of a predecessor to provide
relief weighs in favor of successor liability. See Corbin, 9 FMSHRC at 398. Accordingly, I take
that approach here.
The remaining seven factors of the Munsey test “provide a framework for analyzing the
crucial question of whether there was a continuity of business operations and work force between
the successor and its predecessor.” Corbin, 9 FMSHRC at 398. Rockwell concedes that its
operation of the mine involves the same plant, equipment, and method of production as its
predecessor, as well as much of the same workforce. Resp. Mot. for Sum. Dec. at 22. It argues
that despite this, there has not been a “substantial continuity of business operations” at the mine
because Blackhawk has implemented a new business model under which the former Gateway
mine is operated in conjunction with another mining complex. Id. at 23. I note, however, that the
record has not been developed on this point. At present the record concerning successorship is
limited to the affidavits of two employees at the mine, which contain little detail regarding the
management structure, workforce, and production methods at the mine. I thus find that there are
issues of material fact remaining, and that I cannot decide this question on summary decision.
Rockwell also suggests that Gateway Eagle’s bankruptcy compels as a matter of law a
finding that Rockwell has not continued the business of Gateway Eagle, because it was that
business that led to the bankruptcy. Id. at 22. Rockwell has offered no case law in support of that
argument, however, and I am not persuaded by it. Because there remain questions of fact on the
issue of successor liability, I cannot find that Rockwell was or was not a successor in this case
and leave the matter for further development and decision.
C. 105(c)(3) Claim
Finally, Rockwell argues that Bailey’s claim of discrimination is without merit and that it
is entitled to summary decision on the merits.
Section 105(c)(1) of the Mine Act provides that a miner cannot be discharged,
discriminated against, or otherwise interfered with in the exercise of his statutory rights because
he “has filed or made a complaint under or related to this Act, including a complaint notifying
the operator … of an alleged danger or safety or health violation” or “because of the exercise by
such miner … of any statutory right afforded by this Act.” 30 U.S.C. § 815(c)(1).
In order to establish a prima facie case of discrimination under Section 105(c)(1), a
complaining miner must produce evidence sufficient to support a conclusion that (1) he engaged
in protected activity, (2) he suffered an adverse action, and (3) the adverse action was motivated
at least partially by that activity. Driessen v. Nev. Goldfields, Inc., 20 FMSHRC 324, 328 (Apr.
1998); Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18
(Apr. 1981); Sec’y of Labor on behalf of Pasula v. Consol. Coal Co., 2 FMSHRC 2786, 2799
(Oct. 1980), rev'd on other grounds sub nom. Consol. Coal Co. v. Marshall, 663 F.2d 1211 (3d

38 FMSHRC Page 1866

Cir. 1981). The burden of proof for a prima facie case is “lower than the ultimate burden of
persuasion, which the complainant must sustain as to the overall question of whether section
105(c)(1) has been violated.” Turner v. Nat’l Cement Co. of Cal., 33 FMSHRC 1059, 1065 (May
2011).
The complainant is not required to produce direct evidence of the operator’s motive.
Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov.
1981). More often, the complainant proves motive using circumstantial evidence. Id. Facts that
may be relevant to establishing motive include the operator’s knowledge of the protected
activity; the operator’s hostility or animus towards the protected activity; the timing of the
adverse action in relation to the protected activity; and disparate treatment. Id. at 2510-13.
The operator may rebut the prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by the protected activity. Driessen,
20 FMSHRC at 328-29 (citing Robinette, 3 FMSHRC at 818 n.20). The operator may also
defend affirmatively by proving that the adverse action was in part motivated by unprotected
activity of the miner, and that it would have taken the adverse action based on the unprotected
activity alone. Id. (citing Robinette, 3 FMSHRC at 817; Pasula, 2 FMSHRC at 2799-2800). The
operator bears the burden of persuasion for the affirmative defense. Pasula, 2 FMSHRC at 2800.
i.

Protected Activity

Bailey alleges that he engaged in protected activity when he informed his supervisor of a
dangerous condition in the mine and refused to work in that condition. He alleges that sometime
in 2014, he raised concerns with Rex Osborne about operating thin-vein bolting machines in
sections of the mine in which the roof was higher than the height intended for such machines.
Compl. of Discrim. at 2. Later that year, he became concerned about his exposure to dusty
conditions while operating his roof bolt machine in return air while the continuous miner
machine was cutting coal. Id. He began refusing to operate the roof bolt machine in return air. Id.
The Commission has determined that among the statutory rights protected by Section 105(c) is
the right to refuse to work in dangerous conditions. Pasula, 2 FMSHRC at 2790-93.
Rockwell does not address Bailey’s allegations of protected activity in its motion for
summary decision. Construing the record in the light most favorable to Bailey, I will thus assume
for purposes of summary decision that he engaged in protected activity.
ii.

Adverse Action

The parties agree that Gateway Eagle suspended Bailey with intent to discharge him on
September 10, 2015, and that he was ultimately discharged. See Resp. Mot. for Sum. Dec., Ex.
K. Discharge is an adverse action specifically mentioned in Section 105(c).
iii.

Discriminatory Motive

The parties dispute whether Gateway Eagle had a discriminatory motive in discharging
Bailey. Bailey argues that he was discharged for refusing to operate the roof bolting machine in
return air, while Rockwell argues that he was discharged for poor attendance.

38 FMSHRC Page 1867

The record includes ample evidence of Bailey’s poor attendance record. According to a
termination notice from Bailey’s previous employer, he was discharged from a former position
for missing work. See Resp. Mot. for Sum. Dec., Ex. D. At Gateway Eagle, Bailey received a
warning letter in June 2014 for having three unexcused absences in 180 days. Resp. Mot. for
Sum. Dec., Ex. E. He also received a counseling letter regarding attendance issues in August
2014. Resp. Mot. for Sum. Dec., Ex. F. Under the mine’s collective bargaining agreement, a
miner who accumulates three unexcused absences in 180 days should receive counseling on
attendance. Resp. Mot. for Sum. Dec., Ex. P. If subsequent to counseling he again incurs three
absences in 180 days, there is just cause for discharge. Id. Bailey received another warning in
April 2015 that he had incurred three more unexcused absences in 180 days. Resp. Mot. for Sum.
Dec., Ex. G. The letter notified him that he was suspended with intent to discharge. Id. Gateway
Eagle resolved the suspension the same month by having Bailey sign a “Last Chance
Agreement,” in which he promised to maintain an absentee rate at or below the mine average and
not to incur another unexcused absence within the next year. Resp. Mot. for Sum. Dec., Ex. H.
Bailey received another warning in May 2015 for two instances of unexcused tardiness or
leaving early. Resp. Mot. for Sum. Dec., Ex. I. On September 4, 2015, he incurred another
absence, which the mine asserts was unexcused. Resp. Mot. for Sum. Dec., Ex. K. On September
10, 2015, he received a notice of suspension with intent to discharge based on the unexcused
absence and having an absentee rate below the mine average. Id.
Bailey disputes much of Rockwell’s account of his termination. First, he testified at his
deposition that he was not terminated for attendance reasons from his previous job, but rather
resigned due to an undesirable shift change. Comp. Resp. in Opp. at 4. Second, he claims that
one of the absences cited as the basis for the Last Chance Agreement had previously been
resolved to the satisfaction of Gateway Eagle management. Id. Bailey claims that he only entered
into the agreement based on the promise by Gateway Eagle management that the agreement
would be unenforceable so long as he provided documentation to explain the absence. Id.
Further, he argues that the September 4 absence that was the alleged basis for his discharge was
an excused absence for which he should not have been penalized. Id. at 5.
I find that issues of material fact remain regarding Gateway Eagle’s motive in
discharging Bailey. Accordingly, I find that summary decision is inappropriate.
IV. ORDER
Based on my review of the record and the applicable law, I find that there are disputes of
material fact remaining with regard to the merits of Bailey’s claim and the issue of successor
liability, and that Rockwell is not entitled to summary decision as a matter of law. Accordingly,
Rockwell’s motion for summary decision is DENIED. Further, I find that Bailey’s
discrimination claim was not discharged by the Patriot Coal bankruptcy proceeding. Therefore,
Rockwell’s motion to dismiss is also DENIED.

/s/ Margaret A. Miller
Margaret A. Miller
Administrative Law Judge

38 FMSHRC Page 1868

Distribution: (U.S. First Class Mail)
Jonathan R. Ellis, Steptoe & Johnson PLLC, Eighth Floor, Chase Tower, P.O. Box 1588,
Charleston, WV 25326
Samuel B. Petsonk, Mountain State Justice, Inc., 1031 Quarrier St., Suite 200, Charleston, WV
25301

38 FMSHRC Page 1869

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE NW, SUITE 520N
WASHINGTON, D.C. 20004

July 19, 2016
DISCRIMINATION PROCEEDING

SCOTT D. MCGLOTHLIN,
Complainant,

Docket No. VA 2014-233-D
NORT-CD-2013-04

v.
DOMINION COAL CORPORATION,
Respondent.

Mine: Dominion No. 7
Mine ID: 44-06499

ORDER SCHEDULING BRIEFING
Before: Judge Feldman
The initial decision on relief in this discrimination matter awarded back pay to Scott
D. McGlothlin, but reduced McGlothlin’s attorney fees by $31,745.66 — from $88,975.48 to
$57,229.82. 38 FMSHRC 225, 268 (Feb. 2016) (ALJ). The Commission granted McGlothlin’s
petition for discretionary review challenging the reduction in attorney fees. Dominion Coal Corp.
(“Dominion”) did not oppose McGlothlin’s petition. On March 30, 2016, the Commission
reversed the initial decision on relief, approving the $88,975.48 in fees proposed by the parties in
their November 11, 2015, settlement proposal. The Commission held:
Where, as here, the parties have agreed to stipulated attorneys’ fees and there are
no allegations or evidence that such an amount would adversely affect the remedy
afforded the discriminatee, the Judge erred in rejecting the settlement based upon
the agreed upon amount of attorneys’ fees.
38 FMSHRC 401, 402 (Mar. 2016) (emphasis added).
On June 20, 2016, McGlothlin’s counsel filed a motion for award of attorney fees
requesting an additional $41,525.00 for reported legal services rendered during the period July 1,
2015, through June 20, 2016. This period represents work performed to effectuate the parties’
purported November 11 proposed settlement terms with respect to attorney fees, which is now
apparently in dispute.1 This case has now been remanded “for a determination of any further
award of attorneys’ fees.” 38 FMSHRC __, slip op. at 2 (July 15, 2016).
1

Dominion asserts that the terms of the November 11 settlement proposal do not provide
for additional attorney fees beyond the $88,975.48 proposed by the parties. However, given
McGlothlin’s current posture regarding additional attorney fees, despite the parties’ proposed
settlement terms, Dominion now argues that McGlothlin’s counsels’ November 11 “fee petition
was unreasonably excessive in the amount of $31,745.66.” Dominion’s Response, at 12 (July 1,
2016).

38 FMSHRC Page 1870

The parties have been given an opportunity to advise whether they desire to file briefs in
response to the Commission’s remand. Dominion advises that it wishes to file a brief to contest
“the reasonableness of additional attorney fees” sought by McGlothlin’s counsel. McGlothlin
opposes the filing of any additional briefs.
IT IS ORDERED that Dominion’s request to file additional briefing in this matter IS
GRANTED. As the parties have already filed relevant briefs, Dominion’s request will be limited
solely to the issue of the reasonableness of the $41,525.00 in attorney fees sought. Dominion’s
brief should be filed on or before July 29, 2016, and should be limited to no more than 15 pages
double-spaced. Any reply by McGlothlin should be filed no later than August 5, 2016.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge
Distribution:
Evan B. Smith, Esq., Wes Addington, Esq., Appalachian Citizens Law Center, Inc., 317 Main
Street, Whiteburg, KY 41858
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522
David Hardy, Esq., Scott Wickline, Esq., Hardy Pence PLLC, 500 Lee Street East, Suite 701,
P.O. Box 2548, Charleston, WV 25329

38 FMSHRC Page 1871

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

July 19, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2015-1002
A.C. No. 46-09217-499782

v.
GREENBRIER MINERALS, LLC,
Respondent

Mine: Powellton No. 1 Mine

ORDER GRANTING MOTION FOR LEAVE TO FILE OUT OF TIME
AND DENYING MOTION TO DISMISS
Before: Judge McCarthy
This case is before me upon a Motion for Leave to File Out of Time, wherein the
Secretary requests permission to file its Petition for the Assessment of Civil Penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d), beyond
the 45 day-limit established by Commission Procedural Rule 28. See 30. C.F.R. § 2700.28.
This matter involves a single citation, Citation No. 9064978, issued to Respondent
Greenbrier Minerals, Inc. on June 17, 2015. Respondent received the Mine Safety and Health
Administration’s (MSHA) Proposed Assessment on August 5, 2015, and timely contested the
citation by marking the “check for contest box” on MSHA Form 1000-179 and returning the
form to MSHA’s Civil Compliance Office on or about August 21, 2015.
Pursuant to Commission Procedural Rule 28, the Secretary was required to file a Petition
for the Assessment of Civil Penalty with the Commission by October 21, 2015. The Secretary
represents that at the time Respondent’s contest was received in MSHA’S Coal District 12
office, the employee responsible for processing penalty cases had been working in that capacity
for less than a month, and Respondent’s contest to Citation No. 9064978 was inadvertently
overlooked. The Secretary became aware of the oversight on May 5, 2016, and contacted counsel
for Respondent on May 11, 2016. The Secretary then filed his Motion for Leave to File Out of
Time and the Petition for Assessment of Civil Penalty on May 17, 2016. Respondent filed a
Response in Opposition and a Motion to Dismiss on May 27, 2016.
The Secretary argues that the “inadvertent oversight” of failing to process Respondent’s
contest is “understandable and excusable,” and points out that the Commission has allowed late
filing in cases where clerical errors have caused delays in the filing of penalty petitions.
Sec’y’s Mot. for Leave to File Out of Time 2; see Jim Walter Res., 22 FMSHRC 930 (July 2000)

38 FMSHRC Page 1872

(ALJ); Medicine Bow Coal Co., 4 FMSHRC 882 (May 1982); Salt Lake Cty. Road Dep’t,
3 FMSHRC 1714 (July 1981).
Respondent points to Commission Procedural Rule 9(b), which allows extensions of
filing deadlines in exigent circumstances, and contends that “the Secretary must meet the higher
standard of demonstrating exigent circumstances to justify” the granting of its motion.
Respondent argues that the replacement of the employee responsible for processing District 12’s
proposed penalty petitions is not an exigent circumstance. Resp’t’s Mot. to Dismiss 3.
Respondent also argues that the Secretary’s nine-month delay in filing its Petition for the
Assessment of Civil Penalty prejudices its ability to defend itself. Respondent asserts generally
that “as a substantial amount of time passes, as is the case here, memories fade, witnesses
become unavailable, and evidence is lost.” Id. at 4.
Section 105(a) of the Mine Act states that the Secretary is to provide the operator notice
of a proposed penalty “within a reasonable time” after the issuance of a citation or order.
30 U.S.C. § 815(a). Under section 105(d), the Secretary “shall immediately advise the
Commission . . . and the Commission shall provide an opportunity for hearing” after an operator
files a notice of contest for a proposed penalty. 30 U.S.C. § 815(d). Commission Procedural Rule
28 requires that the Secretary file a petition for the assessment of penalty with the Commission
within 45 days of receiving a timely contest of a proposed penalty assessment. 30 C.F.R. §
2700.28. The Commission has explained that the “enforcement of the time limits is a secondary
consideration to the primary purpose of section 105(d), i.e. ensuring prompt enforcement of the
Act’s penalty scheme.” The 45-day time limit, then, should not be viewed as a “procedural
straight jacket.” Long Branch, 34 FMSHRC 1984, 1990 (Aug. 2012).
The Commission’s decision in Salt Lake established two competing interests that must be
weighed when determining whether to dismiss petitions for the assessment of penalties on the
basis of untimely filing. First, “if the Secretary does seek permission to file late, he must
predicate his request upon adequate cause.” Salt Lake, 3 FMSHRC at 1716. Adequate cause to
support late filing “may be found to exist where the Secretary provides a non-frivolous
explanation for the delay,” and the excuse “may not be facially implausible, and should be
supported by evidence sufficient to establish that the delay did not result from “mere caprice” or
through willful delay, intentional misconduct, or bad faith.” Long Branch, 34 FMSHRC at 1991.1
Second, even where the Secretary shows adequate cause, “an operator may object to a
late penalty proposal on the grounds of prejudice.” Salt Lake, 3 FMSHRC at 1716. “Mere
allegations of potential prejudice or inherent prejudice should be rejected.” Long Branch,
34 FMSHRC at 1991; see also Nealy v. Transportation Maritima Mexicana, S.A., 662 F.2d 1275
1

While I find that, in this matter, the Secretary has provided a non-frivolous explanation
for the delay and provided sufficient evidence to show that the delay did not result from
willfulness, intentional misconduct, or bad faith, I note the difficultly in determining what delay
may result from “mere caprice.” Merriam-Webster defines “caprice” as “a sudden, impulsive and
seemingly unmotivated notion or action,” or “a sudden usually unpredictable condition, change,
or series of changes.” This standard seems especially difficult to apply given that “the
Commission presumes that the Secretary’s agents generally act in good faith to uphold the timely
enforcement of penalties assessed under the Act.” Long Branch, 34 FMSHRC 1991, n.11.

38 FMSHRC Page 1873

(9th Cir. 1980) (“Where a plaintiff has come forth with an excuse for his delay that is anything
but frivolous, the burden of production shifts to the defendant to show at least some actual
prejudice.”). The Commission has recognized that this analytic position is consistent with
“allowing such an objection comports with the basic principle of administrative law that
substantive agency proceedings, and effectuation of a statute’s purpose, are not to be overturned
because of a procedural error, absent a showing of prejudice.” Salt Lake, 3 FMSHRC at 1716.
Thus, the Salt Lake test as clarified in Long Branch “rests firmly on the principle that
consideration of procedural fairness to operators must be balanced against the severe impact of
dismissal of the penalty proposes upon the substantive scheme of the statute, and, hence, the
public interest itself.” Long Branch, 34 FMSHRC at 1991 (citing Salt Lake, 3 FMSHRC at
1716).
Applying the Salt Lake standard as clarified in Long Branch, I find that the Secretary has
shown adequate cause to support the late filing of the petition for assessment of civil penalty.
The Commission has, in the past, accepted clerical errors as adequate cause to permit late filing.
In Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089 (Oct. 1993), the Commission permitted
late filing after a three-month delay due to a transfer of files from the MSHA Arlington to the
Denver Solicitor’s office. Similarly, the Commission allowed a two-week delay in Medicine Bow
Coal due to “insufficient clerical help,” 4 FMSHRC at 885, and at least one Commission judge
has allowed late filing when, as in this case, penalty petitions have been inadvertently overlooked
by MSHA clerical staff. See Jim Walter Res. Inc., 22 FMSHRC at 932.
Under the second part of the Salt Lake test, as clarified in Long Branch, dismissal may
still be required if the operator makes a showing of actual prejudice. Here, however, Respondent
has made only general allegations of potential and inherent prejudice, and has not made any real
or substantial showing of specific instances of actual prejudice that will result should the
Secretary be permitted to proceed with filing its Petition for Assessment of Civil Penalty. See
Long Branch, 34 FMSHRC at 1993; see,e.g., Webster Cty. Coal, LLC, 34 FMSHRC 1946, 1952
(Aug. 2012) (upholding ALJ’s determination that prejudice must be pleaded with specificity).
WHEREFORE, the Secretary’s Motion for Leave to File Out of Time is GRANTED,
and Respondent’s Motion to Dismiss is DENIED.

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

38 FMSHRC Page 1874

Distribution:
Lee Awbrey, Esq. U.S. Department of Labor, Office of the Regional Solicitor, Suite 630E, The
Curtis Center, 150 S. Independent Mall West, Philadelphia, PA 19106
Lorna Waddell, Esq., Dinsmore & Shohl LLP, 215 Don Knotts Blvd., Suite 310, Morgantown,
WV 26501
/ccc

38 FMSHRC Page 1875

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

July 21, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JEFFREY S. BREWER,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. PENN 2016-240-D
MSHA Case No.: MORG-CD-2016-14

v.
MONONGALIA COUNTY COAL
COMPANY,
Respondent,

Mine: Monongalia County Mine
Mine ID: 46-01968

ORDER DENYING RESPONDENT’S MOTIONS TO DISMISS
Before: Judge Andrews
Pursuant to section 105 (c)(2) of the Federal Mine Safety and Health Act of 1977
(AAct@), 30 U.S.C. '801, et. seq., and 29 C.F.R. '2700.40, the Secretary of Labor (ASecretary@)
on June 3, 2016, filed a Complaint on behalf of miner Jeffrey S. Brewer (“Complainant”),
alleging that Brewer was discriminated against in violation of his rights under the Mine Act. On
July 8, 2016, Secretary filed a First Amended Complaint on behalf of Brewer, attaching Exhibit
A, which was omitted from the original complaint, and adding in the penalty assessment, with
corresponding Exhibit B. Respondent filed respective Answers and Defenses to the Complaints.
On July 5, 2016, Respondent filed a Motion to Dismiss Complaint based on the miner’s
and Secretary’s untimely filing of discrimination complaints, and on July 15, 2016, Respondent
filed a Motion to Dismiss First Amended Complaint for the same reasons. Respondent argues
that the Mine Act contains a 60-day statute of limitations, after which a miner may not file a
discrimination complaint, unless there are justifiable circumstances. In the instant case, the miner
filed his discrimination complaint 89 days after the alleged discrimination occurred, and the
Respondent argues that the miner knew of his rights under the Mine Act, but chose to pursue
relief through a grievance procedure instead. Respondent also argues that the Secretary failed to
timely file a discrimination complaint on behalf of Brewer, within the 120-day filing period.
The Secretary responded by arguing that Brewer was unaware of his rights under the
Mine Act, as well as filing requirements contained in the Act. Furthermore, the delay was
relatively short, and Respondent alleged no material prejudice. Additionally, the Secretary argues
its failure to timely file occurred because of an unexpected resignation and reassignment of the

38 FMSHRC Page 1876

case in the Solicitor’s office, which should not prejudice the Complainant. Therefore, the
Secretary argues that the matter should not be dismissed.
As Judge Miller has noted,
[t]he Commission's procedural rules do not provide formal guidance on a motion
to dismiss for failure to state a claim. However, Commission judges addressing
similar motions have been guided by Federal Rules of Civil Procedure 12(b)(6)
and 12(c) and treated those filings as motions for summary decision. See e.g.,
Sec'y of Labor on behalf of Chaparro v. Comunidad Argricola Bianci, Inc., 32
FMSHRC 1517 (Oct. 2010) (ALJ).
Mona Kerlock v. Asarco, LLC, 36 FMSHRC 2404, 2405 (Aug. 27, 2014).
Commission Procedural Rule 67 sets forth the grounds for granting summary decision
and requires that it shall be granted only if the entire record shows: (1) That there is no genuine
issue as to any material fact; and (2) That the moving party is entitled to summary decision as a
matter of law. 29 C.F.R. § 2700.67. The Commission has explained that summary decision is an
extraordinary procedure, and, in reviewing the record, the judge should do so in the light most
favorable to the non-moving party. Energy West Mining Co., 16 FMSHRC 1414, 1419 (July
1994); Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007).
I.

Complainant’s Failure to Timely File His Discrimination Complaint

The relevant facts in this matter are that Brewer was suspended with intent to discharge
on October 16, 2015. Brewer grieved the matter, and on December 30, 2015, following an
arbitration hearing, the suspension with intent to discharge was upheld. Brewer filed a
discrimination complaint with MSHA on January 14, 2016—89 days after his initial suspension
and 15 days after the arbitration decision. This was 29 days past the 60-day statutory filing
period.
Any miner who believes he has been discriminated against due to protected activity has
the right under the Act to file a discrimination complaint with the Secretary within 60 days of the
alleged violation. 30 U.S.C. §815(c)(2). The Commission has held that “the time limits in
sections 105(c)(2) and (3) ‘are not jurisdictional’ and that the failure to meet them should not
result in dismissal, absent a showing of ‘material legal prejudice.’” Sec’y of Labor ex rel. Nantz
v. Nally & Hamilton Enterprises, 16 FMSHRC 2208, 2215 (Nov. 1994) (citing Sec’y of Labor
obo Hale v. 4-A Coal Co., 8 FMSHRC 905, 908 (June 1986)). Further, the legislative history

38 FMSHRC Page 1877

plainly states that discrimination filing periods are not meant to be jurisdictional.1 A miner is not
time barred from a discrimination claim when a miner has “justifiable circumstances” for a delay
in filing. Gary D. Morgan v. Arch of Illinois, 21 FMSHRC 1381, 1386 (Dec. 1999). Justifiable
circumstances are evaluated on a case-by-case basis. Id. An example of a justifiable
circumstance is when a “miner within the 60–day period brings the complaint to the attention of
another agency or to his employer, or the miner fails to meet the time limit because he is misled
as to or misunderstands his rights under the Act.” David Hollis v. Consolidation Coal Co., 6
FMSHRC 21, 24 (Jan. 1984), citing legislative history, S.Rep. No. 181, 95th Cong., 1st Sess. 36
(1977), reprinted in Senate Sub-committee on Labor, Committee on Human Resources, 95th
Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 624
(1978).
In the Secretary’s Motion, it states that Brewer did not understand what type of violation
“could trigger the time limit under the Act and erroneously believed that the arbitrator’s decision
was an adverse discriminatory act.” Sec’y Resp. to Resp’t Mot. to Dismiss at 5. Further, Brewer
mistakenly believed, with his union’s guidance, that prior to filing a §105(c) complaint he had to
first exhaust other remedies, including arbitration. Id. at 4. Therefore, Brewer first brought his
complaint to his employer and arbitrated the issue. Id.
Respondent argues that Brewer was aware of his rights under the Mine Act and failed to
timely file his discrimination complaint. Respondent also argues that Brewer clearly knew of his
Mine Act rights because he previously filed a 105(c) complaint, 103(g) complaints with MSHA,
and made safety complaints to mine management. Mem. of Law. in Supp. of Resp’t First Mot.
To Dismiss at 7. I find that any previous experience Complainant has filing 105(c) complaints
does not necessarily relate to the circumstances of this case. Complainant’s prior instance of
filing a discrimination or 103(g) complaint did not by necessity grant him an understanding of
the filing deadlines and exceptions under the Act. Furthermore, Respondent fails to provide any
material prejudice caused by the untimely filing of the discrimination complaint.
Respondent relies primarily on Hollis to support its argument that Complainant did not
timely file a discrimination complaint. Hollis v. Consolidation Coal, 6 FMSHRC 21 (Ja. 1984).
However, Hollis is distinguishable from this case. In Hollis, an evidentiary hearing was held, and
the ALJ found the miner’s claim of ignorance concerning his rights under the Act were not
credible. Hollis v. Consolidation Coal Co., 4 FMSHRC 1974 (Nov. 12, 1982) (ALJ Melick).
“Noting its limited role in reviewing a judge’s credibility determinations, the Commission found
1

Referring to discrimination cases, the Senate Committee stated:
It should be emphasized, however, that these time frames are not intended to be
jurisdictional. The failure to meet any of them should not result in the dismissal of
the discrimination proceedings; the complainant should not be prejudiced because
of the failure of the Government to meet its time obligations.

S. Rep. No. 181, 95th Cong., 1st Sess. 24 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine
Safety and Health Act of 1977, 3401, 2436 (1978).

38 FMSHRC Page 1878

that the judge’s conclusions were appropriate because the miner filed his complaint 133 days
late, despite his assertions that he was knowledgeable about the Mine Act, that he was a militant
chairman of the Safety Committee, and that he had written notice in his arbitration decision of
remedies available under the Mine Act.” Sec’y on behalf of Scoles v. Harrison County Coal Co.,
2016 WL 2956692 at *2 (May 2016)(ALJ) citing Hollis, 6 FMSHRC at 24-25.
In the instant case, there was no factual evidence brought forth demonstrating that Brewer
knew of the time limitations or his rights under §105(c) of the Act. Brewer’s delay in filing was
also only 29 days. Moreover, recent case law has indicated that miners who alleged ignorance of
their Mine Act rights and filed shortly after the 60-day filing period are not time barred from
asserting their discrimination complaints when there is no evidence of material prejudice for
Respondent. See e.g. Daniel C. Howell v. Capitol Cement Corp., 23 FMSHRC 901 (Aug. 6,
2001) (ALJ Bulluck) (4 month delay in filing permitted where miner claimed he lacked
knowledge of discrimination procedure); Sec’y of Labor obo Smith v. Jim Walters Resources,
Inc., 21 FMSHRC 359 (March 23, 1999) (ALJ Melick) (10 month delay excused by filing within
61 days of first learning of section 105(c) and no claim of prejudice by Respondent); Sec’y of
Labor obo Rocoe Ray Young v. Lone Mountain Processing, Inc., 20 FMSHRC 1233 (Oct. 27,
1998) (ALJ Melick) (permitting complaint filed 21 days late); Sec’y of Labor on behalf of
Franco v. W.A. Morris Sand and Gravel, Inc., 18 FMSHRC 278 (Feb. 15, 1996) (ALJ Manning)
(delay of 107 days justified by prompt filing after Complainant first became aware of his rights
under the Act).
II.

The Secretary’s Failure to Timely File a Discrimination Complaint on behalf of
Complainant

Respondent also argues the Secretary failed to timely file a discrimination complaint
within 120 days of receiving Complainant’s discrimination complaint. In Sec’y on behalf of
Howard v. Cave Spur Coal, LLC, the court cited Secretary, ex rel. Donald R. Hale v. 4-A Coal
Company, 8 FMSHRC 905 at 908 (June 1986), stating:
‘… we hold that the Secretary is to make his determination of whether a violation
occurred within 90 days of the filing of the miner's complaint and is to file his
complaint on the miner's behalf with the Commission “immediately” thereafter -i.e., within 30 days of his determination that a violation of section 105(c)(1)
occurred. If the Secretary's complaint is late-filed, it is subject to dismissal if the
operator demonstrates material legal prejudice attributable to the delay. Cf. David
Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 23-25 (January 1984), aff'd
mem., 750 F.2d 1093 (D.C. Cir. 1984) (table); Walter A. Schulte v. Lizza
Industries, Inc., 6 FMSHRC 8, 12-14 (January 1984).’
Sec’y on behalf of Howard v. Cave Spur Coal, LLC, 25 FMSHRC 471,487 (Aug. 2003)(ALJ).
Therefore, in a case where the Secretary untimely files a discrimination complaint,
“without a showing that the delay prejudiced the Respondents, dismissal is not warranted.” Id.
This is in line with the legislative history, which makes clear that a Complainant should not be

38 FMSHRC Page 1879

penalized for the Government’s failure to timely file a discrimination complaint. S. Rep. 95-181
at 36.
The Secretary filed its first complaint 21 days after the 120 day time period expired. The
Secretary attributes this short delay to the reassignment of this case to another attorney after the
unexpected resignation of an attorney in the Solicitor’s Office. Sec’y Resp. to Resp’t Mot. to
Dismiss at 9. This delay was for a short period of time after the filing time period, and
Respondent failed to show that the delay caused any material prejudice. Further, the
Complainant should not be penalized because of the Secretary’s failure to timely file.
Consequently, the miner’s justifications for filing his complaint 29 days late appear
reasonable, and Respondent has not alleged that it has been prejudiced by the delay in filing. The
Secretary’s justifications for filing a complaint and amended complaint on behalf of Brewer 21
days late also appear reasonable and have not caused material prejudice for the Respondent.
Accordingly, the Motions to Dismiss are DENIED.

/s/ Kenneth R. Andrews
Kenneth R. Andrews
Administrative Law Judge
Distribution:
Pilar Castillo, Esq., U.S. Department of Labor, Office of the Regional Solicitor, The Curtis
Center, Suite 630E, 170S. Independence Mall West, Philadelphia, PA 19106
Philip K. Kontul, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., One PPG Place, Suite
1900, Pittsburgh, PA 15222
/ktw

38 FMSHRC Page 1880

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH STREET, SUITE 443
DENVER, CO 80202-2536
303-844-3577 FAX 303-844-5268

July 25, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 2016-383-M
A.C. No. 26-02661-404686 A
Exodus Mine

BLAZE WHITE, employed by
NEWMONT USA LIMITED,
Respondent
ORDER DENYING RESPONDENT’S MOTION TO DISMISS
Before: Judge Manning
This case is before me under section 110(c) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 820(c) (“Mine Act”). Blaze White (“White” or “Respondent”) was a shift
supervisor for Newmont USA Limited (“Newmont”) when the citation and order at issue in this
case were issued. White timely contested the proposed penalties filed by the Secretary of Labor
and filed a motion to dismiss this proceeding due to the Secretary’s delay in proposing penalties
for the alleged violations. The Secretary opposes the motion. For the reasons set forth below, I
deny White’s motion at the present time.
The citation and order at issue in this case were issued following a fatal accident at the
Exodus Mine. The chronology of events is as follows:
feet

June 2, 2013 – A fatal accident occurred when a load-haul-dump vehicle fell about 40
into an open stope.
July 1, 2013 – MSHA issued a citation and order to Newmont under section 104(d)(1) of
the Mine Act. Both state that the shift supervisor engaged in aggravated conduct.
August 2013 – MSHA interviewed miners and supervisors as part of its investigation of
the accident.
September 19, 2013 – MSHA issued its final report on its investigation of the accident.
MSHA’s special investigations unit also began its investigation under section 110(c) of
the Mine Act.

38 FMSHRC Page 1881

October 21, 2013 – MSHA’s Western District Office forwarded the results of its special
investigation to MSHA’s Technical Compliance and Investigation Office (TCIO) for
review.
June 18, 2014 – The Secretary served a petition for assessment of penalty on Newmont
charging the operator with the two violations of MSHA’s safety standards. Newmont
filed its answer to the penalty petition on July 17, 2014.
November 16, 2015 – White voluntarily resigned from his position at the Exodus Mine
and stopped working in the mining industry.
February 26, 2016 – TCIO referred the case to MSHA’s Office of Assessments for a
proposed penalty assessment.
March 3, 2016 – MSHA served its proposed penalty assessment in this case on White,
which White contested on April 1, 2016.
May 17, 2016 – The Secretary served a petition for assessment of penalty on White
charging him with violations under section 110(c). White filed his answer to the penalty
petition and the motion to dismiss on June 16, 2016.
I. BRIEF SUMMARY OF ARGUMENT
Respondent maintains that the 783 day period of time between the accident and the date
that the penalty was proposed against White is unreasonable, that no adequate cause justifies this
delay, and that this delay has prejudiced White. In its response, the Secretary maintaines that the
Mine Act does not authorize the Commission to dismiss a petition for assessment of penalties
based on MSHA’s alleged noncompliance with section 105(a) of the Mine Act. The Secretary
also argues that the penalties were proposed within a reasonable time because he promptly
proposed the penalties after the completion of the special investigation. Finally, the Secretary
maintains that White was not prejudiced by the timing of the proposed civil penalties because he
had ample opportunity to prepare his defenses.
In reply, Respondent takes issue with the Secretary’s position that the “investigation” is
not completed until TCIO forwards the case to the office of assessments. Respondent also
maintains that the Secretary failed to establish that the penalties were proposed within a
reasonable time. It also provides more argument to support its position that White has suffered
actual prejudice as a result of the delay. The Secretary, in his surreply, disputes some of the facts

38 FMSHRC Page 1882

set forth in Respondent’s reply1 and argues that Respondent has not demonstrated that any
witnesses that White may want to call will be unavailable to testify.
II. DISCUSSION
These same issues have been presented to Commission judges on many occasions. For
example, I addressed these issues in my order in Dino Trujillo, 35 FMSHRC 1485 (May 2013).
Rather than repeat what I set forth in that decision, I am incorporating my analysis of the legal
issues in that order into this case by reference. In that case, the respondent calculated that the
Secretary did not file the penalty petition until 1,057 days after the underlying order was issued
to the mine operator. Trujillo at 1486. I determined that a delay of that length was not
unreasonable per se and that the key question in section 110(c) cases is whether the respondent is
able to show actual prejudice as a result of the delay. “Respondent’s showing of prejudice must
be ‘real or substantial’ and ‘mere allegations of potential prejudice or inherent prejudice should
be rejected.’” Trujillo at 1487 (quoting Long Branch Energy, 34 FMSHRC 1984, 1991-93 (Aug.
2012)). If a respondent is unable to show actual prejudice, it is “inappropriate” to dismiss a
citation or order based on the Secretary’s delay. Twentymile Coal Co., 411 F.3d 256, 262 (D.C.
Cir. 2005). This analysis is equally applicable here.
In the present case, Respondent states that certain witnesses no longer work for
Newmont. Newmont has apparently tried to contact two witnesses without success. It states that
“Newmont will continue attempting to contact the witnesses, but cannot be sure of success in
receiving a statement or appearance at hearing of either.” Resp. Reply 3. This case was assigned
to me on June 20, 2016, and a hearing date has not been established. We are in the early stages of
the proceeding. Respondent may be able to locate these potential witnesses before a trial date and
they may be able to testify in some manner.
I agree with the analysis of these issues discussed by Commission Judge Pricilla Rae in
her order denying a motion to dismiss in Ralph W. Dushane, 38 FMSHRC ____, Docket No. SE
2016-132-M (July 6, 2016). She denied the motion because the respondent “alleged only
potential prejudice of the sort that inherently flows from delaying litigation.” Slip op. 4. She
stated, however, that she would “entertain a renewed motion to dismiss before or at trial” if the
respondent determines that “witnesses cannot be located or memories have indeed faded to the
extent that he can demonstrate actual prejudice[.]” Slip op. 4. I reach the same conclusion in this
case.
I have considered the facts and argument presented by the parties in this case and I
conclude that the motion should be denied. Although Respondent suggested that it may be
1

The Secretary argues that White was sent a letter, dated September 13, 2013, from
MSHA Western District Manager Wyatt Andrews which informed White that MSHA “is
proposing to assess an individual penalty against you as an agent of Newmont . . . for knowingly
violating” two safety standards as set forth in the subject citation and order. Sec’y Opposition,
Ex. A. The letter did not disclose the amount of the proposed penalties but offered White the
opportunity to request a conference on the proposed penalties. Respondent disputes that White
received this letter. Resp. Reply 2.

38 FMSHRC Page 1883

prejudiced by the delay, actual prejudice has not yet been established. If Respondent is unable to
locate key witnesses or if these witnesses are unable to testify or recall the events of June 2013,
Respondent will be free to renew its motion to dismiss at that time.
Judge Rae included the following paragraph in her Ralph W. Dushane order. I
wholeheartedly agree with her discussion and encourage the Secretary to take it to heart.
I note that although the Commission has been extremely
tolerant of the Secretary’s habitual delays in filing 110(c) petitions,
the Commission’s most lenient decisions (such as Long Branch) came
out several years ago when MSHA’s case backlog was at historic
levels. This has not been the case for more than a year. General
references to MSHA’s workload can no longer be accepted at face
value as an excuse to spend in excess of three years processing a
110(c) case. Even if Respondent cannot show actual prejudice, I find
such a lengthy delay raises questions about the reliability of any
testimony that is presented, including the testimony of the
investigator.

Slip op. 4. Given that by September 13, 2013, MSHA had determined that it would propose
penalties against White, it is not clear why MSHA did not file its petition for assessment of civil
penalty until May 17, 2016. The matter languished at TCIO between October 21, 2013 and
February 26, 2016. This delay is incomprehensible to me and it does not serve the goal of
advancing the safety and health of the nation’s miners. TCIO’s incompetence is wearing very
thin.
III. ORDER
Respondent’s motion to dismiss this case is DENIED.

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

38 FMSHRC Page 1884

Distribution:
Tara E. Stearns, Esq., Office of the Solicitor, U.S. Department of Labor, 90 7th Street, Suite 3700, San Francisco, CA 94103-6704
Laura E. Beverage, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 802021958
RWM

38 FMSHRC Page 1885

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

July 27, 2016
PENNYRILE ENERGY, LLC,
Contestant,
v.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent.

CONTEST PROCEEDING
Docket No. KENT 2016-432-R
Order No. 9048420; 06/15/2016

Mine: Riveredge Mine
Mine ID: 15-19424

ORDER DENYING MOTION FOR EXPEDITED HEARING
Before: Judge Steele
This case is before me upon a notice of contest under section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(d). Order No. 9048420 was issued to Contestant
on June 15, 2016, for an alleged violation of 30 C.F.R. § 48.25. On July 15, 2016, Contestant
filed a Notice of Contest and a Motion for Expedited Hearing. The Secretary filed the Secretary’s
Answer to Notice of Contest on July 21, 2016. Contestant filed Pennyrile Energy’s Reply to the
Secretary’s Opposition to Motion for Expedited Hearing on July 25, 2016.
The Commission’s procedural rule concerning expedited hearings does not address when
a motion for an expedited hearing should be granted or denied. 29 C.F.R. § 2700.52. Therefore,
Administrative Law Judges retain “informed discretion” in determining whether an expedited
hearing is proper, and they must schedule a hearing within a reasonable time. Secretary of Labor
(MSHA) v. Wyoming Fuel Co., 14 FMSHRC 1282 (Aug. 28 1992). An expedited hearing is
appropriate when there are “extraordinary or unique circumstances resulting in continuing harm
or hardship.” Southwest Portland Cement Co., 16 FMSHRC 2187 (Oct. 4, 1994)
(ALJ); Mountain Cement Co., 23 FMSHRC 694 (June 25, 2001)(ALJ); Consolidation Coal
Company, 16 FMSHRC 495 (February 1994) (ALJ).
Contestant argues that an expedited hearing is necessary because the order at issue is
wrong as a matter of law and “capable of repetition.” Mot. For Expedited Hr’g at 1-2.
Specifically, Order No. 9048420 was issued because an underground miner, who was working
on the surface area of a mine, did not have the training required by Section 115 of the Mine Act
and 30 C.F.R. § 48.25. Notice of Contest Ex. A. Contestant argues that without a hearing to
determine if underground miners are required to obtain this training, miners will continue to get
cited, and thus, an expedited hearing is necessary. Mot. For Expedited Hr’g at 1-2.

38 FMSHRC Page 1886

Contestant fails to demonstrate extraordinary or unique circumstances that result in a
continuing harm or hardship. Miner training is not a hardship that necessitates an expedited
hearing. Additionally, the operator’s disagreement as to MSHA’s regulatory interpretation of 30
C.F.R. § 48.25 does not warrant an expedited hearing.
Accordingly, Contestant’s Motion for Expedited Hearing is DENIED.

/s/ William S. Steele
William S. Steele
Administrative Law Judge
Distribution:
Mark E. Heath, Esq., Spilman Thomas & Battle, PLLC, 300 Kanawha Boulevard, East, P.O.
Box 273, Charleston, WV 25321-0273
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219
/ktw

38 FMSHRC Page 1887

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9933 / FAX: 202-434-9949

July 27, 2016
DANIEL B. LOWE,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. WEST 2014-614-DM
WE-MD 14-04

v.
VERIS GOLD USA, INC., and
JERRITT CANYON GOLD, LLC,
Respondents.

Mine: Jerritt Canyon Mill
Mine ID: 26-01621

ORDER REGARDING COMPLAINANT’S
MOTION TO SET LOCATION OF DEPOSITIONS
As this Court, and more recently the Federal Mine Safety and Health Review
Commission,1 having individually denied Jerritt Canyon Gold, LLC’s (“JCG”)2 request for
interlocutory review, this matter now moves forward with discovery proceedings to determine,
among other matters, if JCG is a successor-in-interest to Veris Gold USA, Inc. (“Veris Gold”).
On June 21, 2016, Complainant Daniel Lowe filed a Motion to Set Location for
Depositions (“Motion for Depositions”).3 Lowe notes that the “Whitebox Entities,” through its

1

Varady v. Veris Gold USA, Inc., 38 FMSHRC __, slip op. (July 11, 2016); Lowe v.
Veris Gold USA, Inc., 38 FMSHRC __, slip op. (July 11, 2016).
2

JCG, formerly known as WBVG LLC, is located at 545 30th Street, Elko, NV 89801.
Its statutory agent is Corporation Service Company, 2711 Centerville Road, Suite 400,
Wilmington, DE 19808.
3

At the behest of Matthew Varady, Lowe’s Motion requests that depositions of the same
entities he wishes to depose be taken together with the closely related discrimination complaint
brought by Varady in Docket No. WEST 2014-307-DM, and that the request is made for
efficiency and to expedite both proceedings. The Court agrees with the request. It notes that,
aside from the particulars of the discriminatory acts committed by Veris Gold against Varady,
and separately against Lowe, that the damages ultimately to be assessed in each case will be
different, all other issues regarding discovery, the proper parties to the proceeding, and the role
and relationships, if any, between Veris Golid, JCG, the Whitebox Entities, Whitebox Asset
Management and Eric Sprott, are shared. Accordingly, because of Lowe’s and Varady’s
identity of interests in terms of these discovery issues, this Order is to be construed to apply fully
to the Varady discrimination complaint. A brief order memorializing this determination will be
issued in the Varady matter.

38 FMSHRC Page 1888

Counsel, Fennemore Craig, P.C., has submitted that any such depositions should be held at the
Minneapolis, Minnesota offices of Whitebox Entities. For the reasons that follow, the Court
holds that any depositions which may need to be held shall be held in Elko, Nevada or via
telephone. Lowe and Varady should understand that they bear the costs associated with such
depositions.4 The Court also explains that, as JCG has been added as a party by virtue of the
Court’s March 14, 2016 Order, Lowe may be able to learn sufficient information through
interrogatories,5 requests for admission, 6 and requests for the production of documents, to
establish JCG’s status as a successor. Such interrogatories, requests for admission and requests
4

This is an appropriate moment to again remind both Lowe and Varady that the final
outcome of this litigation is unknown. The Court can only rule on subjects before it, but it
cannot predict, nor control, what other courts may decide. Due to the element of
unpredictability, the Court again encourages the parties to discuss reasonable and realistic
settlement terms. It is also worth noting that a settlement was reached post-bankruptcy in the
case of Morreale v. Veris Gold U.S.A., Inc., et al, 38 FMSHRC __, slip op. (June 1, 2016) (ALJ),
and Sec’y o/b/o Garcia v. Veris Gold USA, Inc., et al., 38 FMSHRC __, slip op. (July 14, 2016)
(ALJ).
5

“It is common in the practice of civil litigation to underestimate the value of
interrogatories as a method of discovery. Those who exalt the deposition as the most useful form
of discovery often overlook the clear advantages interrogatories have to offer. Interrogatories are
a comparatively inexpensive form of discovery. They are an effective means of identifying
individuals with personal knowledge of facts relevant to the litigation who may then [still] be
deposed. Interrogatories enable a party to flesh out the major facts supporting his or her
opponent’s case [and they] allow . . . a party to identify the existence of documents, their
custodians and their general description. Interrogatory answers can provide all or part of the
factual basis to support or oppose a motion for summary judgment . . . .” Lee v. Flagstaff
Industries Corp., 173 F.R.D. 651, 652 (D.Md. 1997).
6

Requests for admissions in Commission proceedings are governed by Commission Rule
58(b), 29 C.F.R. § 2700.58(b) and, so far as practicable, by Federal Rule of Civil Procedure
(“FRCP”) 36. “Each matter of which an admission is requested shall be separately set forth. . .
. An answering party may not give lack of information or knowledge as a reason for failure to
admit or deny unless the party states that [it] has made reasonable inquiry and that the
information known or readily obtainable by the party is insufficient to enable the party to admit
or deny. The party who has requested the admissions may move to determine the sufficiency of
the answers or objections. . . . Proper use of requests for admissions can expedite and
streamline litigation by establishing matters not truly in dispute and avoiding the expenditure of
time and effort required by other discovery devices. . . . However, in order to achieve that
desired result both parties must fulfill their obligations under the rule. ‘Parties may not view
requests for admissions as a mere procedural exercise requiring minimally acceptable conduct.
They should focus on the goal of the Rules, full and efficient discovery, not evasion and word
play.’ . . . Parties responding to requests, as the rule specifically states, should exercise good
faith by admitting or denying parts of requests, and qualifying responses, where appropriate,
rather than noting blanket objections.” Sec’y o/b/o Jenkins v. Durban Coal, Inc., 22 FMSHRC
1150, 1151-52 (Sept. 2000) (ALJ) (emphasis added).

38 FMSHRC Page 1889

for production of documents may be directed at JCG (including under its prior name(s), such as
WBVG LLC, to learn what information that entity has regarding its relationship to, and
knowledge of, the principals, stockholders, and officers of JCG and the Whitebox Entities,
Whitebox Asset Management and Eric Sprott. Using these discovery methods first may save
Lowe the expenses associated with depositions.
The Court believes it is useful to step back and review the posture of this case. Veris
Gold was found to have discriminated against Lowe in violation of section 105(c) of the Mine
Act.7 Lowe v. Veris Gold USA, Inc., 37 FMSHRC 2337, 2347 (Oct. 2015) (ALJ). Through a
bankruptcy proceeding, Veris Gold was sold. Now it must be determined if JCG and potentially
other entities involved in the purchase of Veris Gold are successors to Veris Gold. Absent an
acknowledgement that JCG and/or the other named entities admit to being successors, discovery
must be undertaken to learn of the relationships, if any, between Veris Gold and those other
entities, to determine if any or all of them are successors-in-interest. JCG and other potential
parties each have an interest in challenging claims that they are successors, as a finding of
successorship would mean that the liability for Veris Gold’s acts of discrimination could be
applied to them. If any of these entities are so determined by the Court to be successors-ininterest, the final phase of this Mine Act proceeding will be to determine those legitimate
damages which may be assessed against such entities. Any entity found to be a successor would
have an interest in addressing the appropriate damages.8
In Munsey v. Smitty Baker Coal, Inc., et al., 2 FMSHRC 3463 (Dec. 1980), the
Commission addressed the remedy due to a complainant and who must provide it when the
complainant’s employer had ceased operations and was purchased by another entity. In Munsey,
Respondent Smitty Baker Coal had ceased its mining operations and P&P Coal Company had
“purchased a lease and equipment from Smitty Baker Coal Company and opened the former
Smitty Baker No. 2 Mine; and Ralph Baker [had] incorporated a new mining company, Mason
Coal Company, in a different location from that of the former Smitty Baker Coal Company
operation.” Id. at 3463. The Commission held that “Ralph Baker can be ordered to reinstate
Munsey at Mason Coal Company; that P&P Coal is a successor to Smitty Baker Coal Company;
and that Ralph Baker, Smitty Baker Coal Company, and P&P Coal Company are jointly and
7

One week before presiding in the Lowe case, this Court heard the section 105(c)(3)
discrimination case brought by Varady against Veris Gold. In that case, this Court also found
that Veris Gold discriminated against Varady in violation of section 105(c) of the Mine Act.
Varady v. Veris Gold USA, Inc., 37 FMSHRC 2037, 2060 (Sept. 2015) (ALJ). Although the
specific acts of discrimination in the Varady and Lowe matters are distinct, in both matters
liability has been established against Veris Gold. As noted, the directions in this Order apply
equally to Varady’s claim.
8

Both Lowe and Varady have submitted multiple damage claims. The Court has made
no ruling on those claims yet. At the appropriate time, rather than sifting through and
comparing their multiple damage submissions, the Court will require one final itemized claim of
damages sought by each complainant. The Court also notes and has informed the complainants
that some of the claims made are not within recognized Mine Act discrimination damages.
Therefore, the Respondents will have an interest in challenging some of those claims.

38 FMSHRC Page 1890

severally liable for the illegal discrimination against Glenn Munsey.” Id., aff’d Munsey v.
FMSHRC, 701 F.2d 976 (D.C. Cir. 1983).
On the subject of successorship, the Commission further held in Munsey that Mason Coal
was liable for Baker’s discrimination against the complainant. The Commission stated:
[It] must afford such affirmative relief as will best restore Munsey to the position
in which he would have been but for the illegal discrimination. We hold that on
the facts of the case reinstatement by Ralph Baker at Mason Coal Company, with
such seniority and benefits as Munsey would have had if the illegal discrimination
had not occurred, is an appropriate remedy in order to fully compensate Munsey
for the effects of the illegal discrimination he suffered.
Id. at 3464. The Commission noted that
the protections of other [] [labor] statutes have been construed to include the
liability of bona fide purchasers and other successors for their predecessors’ acts
of discrimination. E.g., Golden State Bottling Co., Inc. v. NLRB, 414 U.S. 168
(1973); U.S. Pipe & Foundry Co. v. NLRB, 398 F.2d 544 (5th Cir. 1968);
International Technical Products, 249 NLRB No. 183, 104 LRRM 1294 (1980).
Id. at 3465.
With that in mind, the Commission held that in appropriate cases the successorship
doctrine should also be applied in Mine Act cases. In determining whether a new business
entity is a successor employer, the Commission held that nine factors should be considered:
1) [W]hether the successor company had notice of the charge, 2) the ability of the
predecessor to provide relief, 3) whether there has been a substantial continuity of
business operations, 4) whether the new employer uses the same plant, 5) whether
he uses the same or substantially the same work force, 6) whether he uses the
same or substantially the same supervisory personnel, 7) whether the same jobs
exist under substantially the same working conditions, 8) whether he uses the
same machinery, equipment and methods of production and 9) whether he
produces the same product.
Id. at 3465-66 (citing EEOC v. MacMillan Bloedel Containers, Inc. 503 F.2d 1086, 1094 (6th
Cir. 1974)).
Applying these factors, as relevant to Lowe’s (and Varady’s) discovery, the questions
each would likely have regarding JCG, would be: First, whether JCG “had notice of the charge
of discrimination and possible liability at the time of its acquisition of the predecessor’s business
operations.” Munsey, 2 FMSHRC at 3466. This would include whether the owners of Veris
Gold and JCG discussed Lowe’s (or Varady’s) discrimination complaints during the negotiations

38 FMSHRC Page 1891

on the purchase of Veris Gold; whether any of the new owners knew of the Lowe (or Varady)9
litigation. It is noted that a successor’s knowledge of the litigation is sufficient; knowledge of
liability is not necessary.10 It is with regard to this factor that it is proper for Lowe to be able to
learn of the connections, if any, between owners, operating officials, officers and management of
Veris Gold and JCG and Eric Sprott, and the Whitebox Entities. If, through discovery or
through statements already made by counsel, or through the bankruptcy process, there are links
between Veris Gold and JCG, not only would this bear on the first factor but, in the event that
this Court were to find that JCG is a successor and liable for Lowe’s damages, such links may
also give any bankruptcy or federal district court pause about the bankruptcy process that
occurred in this instance, if asked by JCG to negate such liability under the rubric that the
bankruptcy order immunized the successor from all liability. This Court has spoken previously
to this point.11
9

As noted, but with an application of common sense for obvious differentiation between
the cases, where Lowe’s name is mentioned in connection with the issues of successorship and
any links between JCG, Eric Sprott, and the Whitebox Entities, the reference applies equally to
Varady’s discrimination complaint.
10

The Commission’s view of a successor who tries to avoid liability for a predecessor’s
acts of discrimination is that it can “protect itself by either an indemnification clause or a lower
purchase price in the takeover agreement.” Munsey, 2 FMSHRC at 3466 (citing Golden State
Bottling Co. v. NLRB, 414 U.S. 168, 185 (1973)).
11

As this Court noted in its April 8, 2016 Order on Complainant’s Motion to Amend to
Add Various Whitebox Entities as Parties, it observed that:
[T]he Purchaser and Debtors happily agreed that none of the factors which would
point toward a successorship were present, [it also added that it] would be
surprised to learn that the bankruptcy courts engaged in any detailed review of
those claims. Rather, [such bankruptcy courts] more likely accepted in good faith
that those representations were made to them in good faith and grounded in fact,
as opposed to being mere assertions. As mentioned in its Order of March 14,
2016, it is this Court’s understanding that bankruptcy courts of necessity rely
upon the representations of the parties and the monitor. Depending upon what is
learned about the relationships between Veris Gold, Jarrett Canyon Gold, the
Whitebox Entities, and the various individuals who may have commonality
among those enterprises, the bankruptcy courts may have been misled. Further, a
case such as this lays bare the problems identified by the law review
commentaries when 11 U.S.C. § 363(f) proceedings supplant those brought under
§ 1141(c), despite the former’s narrower language and the absence of the
procedural protections which are available under the latter, all as cited in the
Court’s previous Order on Complainant’s Motion to Amend, issued March 14,
2016. For example, [I]f if through discovery, it is shown that there are individuals
who had financial or management interests in Veris, Jarrett Canyon Gold and/or
(continued…)

38 FMSHRC Page 1892

Second, among the factors to consider in determining if successorship applies, is the
ability of the predecessor to provide relief. Lowe is entitled to learn whether Veris Gold has
accounts which remain active and the amount of money in them. This is relevant to any
monetary award which Lowe may be able to establish as due to him as a consequence of his
illegal discharge. However, as Lowe seeks reinstatement, and Veris Gold is no longer in active
mining operations, it cannot provide complete relief to him.12
The third factor, whether there has been a substantial continuity of business operations, as
noted by the Commission, “has been termed the ‘successorship keystone.’” Munsey, 2
FMSHRC at 3467. An aspect of this factor for Lowe to learn about is the existence and length
of any hiatus between the closing of the business under Veris Gold and the reopening by JCG as
an alleged successor. This should be simple to determine through interrogatories or requests for
admission or the production of documents from JCG. Local newspaper accounts about the
operation at the mill may also be used to inform about this issue.
The fourth factor, whether JCG uses the same plant as Veris Gold is plainly apparent, and
Lowe should be able to formalize that fact through a request for an admission from JCG to
determine whether JCG substantially replaced Veris Gold’s operation at the Jerritt Canyon Mill.
The fifth factor, whether JCG uses the same or substantially the same work force as Veris
Gold, should be determinable through interrogatories, if not by JCG’s admission. Thus, Lowe is
entitled to discover the list of employees working at Veris Gold at the time it ceased its
operations and the list of employees JCG had when it took over the mining operations at the
Jerritt Canyon Mill, including those employees hired by JCG in the immediate months after it
took over the Veris Gold operation, for comparison with the predecessor’s employment force.
This information will enable Lowe to compare the number and identity of employees who
worked for Veris Gold with those hired by JCG, a potentially useful comparison, both in raw
numbers and by percentage.
The sixth factor, whether JCG uses the same or substantially the same supervisory
personnel should also be determinable through interrogatories, if not by JCG’s admission. The

11

(… continued)
the Whitebox Entities, such linkage could be troublesome and point to the
appropriateness of holding others accountable as successors.
38 FMSHRC 866, 872 (Apr. 2016) (ALJ).
12

An important distinction between the Lowe and Varady litigation is that Varady did not
seek reinstatement. Lowe seeks reinstatement. At this post-liability stage, Varady cannot now
change his mind and seek reinstatement. The remedy in the case of Lowe would include lost
wages, accrued benefits and seniority along with an offer of reinstatement or a settlement amount
in lieu of reinstatement. As occurred in the Garcia and Morreale discrimination litigations, the
parties are free to negotiate a settlement as to fair compensation and the Court again strongly
encourages this path as a sound way to reach a resolution of the Lowe and Varady matters. This
will require reasonableness on both sides.

38 FMSHRC Page 1893

Court’s comments about the fifth factor, above, apply in a similar fashion to learning about this
factor.
The seventh factor, whether under JCG the same jobs exist under substantially the same
working conditions, should also be determinable through interrogatories, if not by JCG’s
admissions.
The eighth factor whether JCG uses the same machinery, equipment and methods of
production as Veris Gold, should also be determinable through interrogatories, if not by JCG’s
admissions.
The ninth factor, whether JCG produces the same product, is almost certainly
determinable through a request for admission, though interrogatories would likewise be available
to overcome any recalcitrance.
It may also be appropriate, if the facts support it, for JCG to simply acknowledge that,
under Commission jurisprudence, it is a successor-in-interest to Veris Gold. This would be
consonant with JCG’s primary asserted defense—that the bankruptcy court’s determination
insulates it from liability from the discrimination against Lowe.
Even if such an admission is not made, it is important for the parties to appreciate,
especially for Lowe, as he is not an attorney, that the assessment of whether the new owner is a
successor entity does not require that all nine factors must be established by the Complainant.
This has special relevance with regard to the first factor,13 because even if the evidence is
inconclusive, consideration of the other factors may warrant a finding that JCG is a successor
entity.14
Once information regarding these nine factors has been acquired and assembled, Lowe
will be in a position to move for summary judgment on the issue of JCG’s status as a successor
to Veris Gold. If there are legitimate material factual disputes impacting the ability to make a
determination of JCG’s status as a successor, a hearing may be necessary. In making such a
13

In Morreale, the complainant alleged “that the primary controller of JCG, Eric Sprott,
also controlled Whitebox Investments, the DIP lender that approved the parties’ February 20,
2015 settlement agreement.” 38 FMSHRC 889, 889 (Apr. 2016) (ALJ).
14

Again as in Morreale, and relevant to the first successorship factor, this Court agrees
that Lowe is entitled through discovery to learn the answers to the following questions: 1) Did
JCG management learn of the litigation between Lowe or Varady prior to JCG’s purchase of the
Jerritt Canyon Mill mine? 2) Did JCG management learn of any other pending 105(c)
discrimination claims against Veris Gold USA prior to JCG’s purchase of Veris Gold? 3) What
percentage of Veris Gold USA did Eric Sprott and his subsidiary holdings, own and/or control
prior to JCG’s acquisition of the Jerritt Canyon Mill mine? and 4) What percentage of JCG does
Eric Sprott and his subsidiary holdings own and/or control? See 38 FMSHRC 889, 890 (Apr.
2016) (ALJ).

38 FMSHRC Page 1894

determination the Court notes that the Commission has stated “the resolution of any question
concerning successorship involves ‘striking a balance between the conflicting legitimate interests
of the bona fide successor, the public, and the affected employee.’” Munsey, 2 FMSHRC at
3468 (citing Golden State Bottling Co. v. NLRB, 414 U.S. at 181). As a matter of the Mine
Act’s aim of rectifying discrimination, the Commission noted that it “has been stated ‘[w]here
the harm to the discriminatee and to the national policy that would flow from a finding of no
successorship is great, a substantial amount of harm to the new employer must and will be
tolerated.’” Id. (quoting Brown v. The Evening News Association, 473 F. Supp. 1242, 1246
(E.D. Mich. 1979), and Golden State Bottling Co., 414 U.S. at 181).15
The Court notes that a fellow administrative law judge took the same approach—
resolving the factual question of JCG’s successorship status before proceeding to potential
bankruptcy issues—as this Court in another discrimination complaint brought by a different
former employee of Veris Gold. See Morealle, 38 FMSHRC 889 (Apr. 2016) (ALJ).16
Regarding discovery generally, as alluded to earlier, the Court is of the view that much, if
not all, of the information Lowe will need to learn about Whitebox Entities’ relationships, if any,
to Veris Gold and JCG should be available through interrogatories and requests for admissions of

15

The Court recognizes that Munsey arose under the predecessor act to the Mine Act,
the 1969 Coal Act. As the Commission observed, “Congress declared in section 2(a) of the
1969 Coal Act that the first priority and concern of all in the coal mining industry must be the
health and safety of the miner. Section 110(b) was intended to support and enhance the
protection of miners.” Munsey, 2 FMSHRC at 3469. This led the Commission to conclude that,
to meet that objective, and to achieve a full remedy, it was important to hold a successor jointly
and severally for illegal acts of discrimination of a predecessor. Id. The anti-discrimination
provision of the Coal Act applies with equal force to the Mine Act.
16

In one respect, the Court takes a different view than that expressed by the judge in
Morealle. There, the judge ordered “further discovery into the facts of JCG’s acquisition and
operation of the Jerritt Canyon Mill mine . . . to determine if JCG, Eric Sprott and Whitebox
Asset Management are liable as successors in interest for the conduct of Veris.” Morealle, 38
FMSHRC at 890. This Court believes that, unlike JCG’s likely successorship status, it is very
unlikely that Eric Sprott and Whitebox Asset Management would be liable as successors in
interest. Liability against Sprott and Whitebox Asset Management would seem to be barred
absent a showing that the corporate veil of JCG should be pierced—a tall order to meet.
However, as noted, learning about Sprott’s and Whitebox Asset Managment’s relationship to
JCG and any relationships or commonality they had with Veris Gold would be informative in
assessing the applicability of the first factor, whether JCG, as the potential successor company,
had notice of the charge. Accordingly, it is important for Lowe to learn, through discovery,
about JCG’s, Eric Sprott’s and Whitebox Asset Management’s relationship to one another and to
Veris Gold.

38 FMSHRC Page 1895

Veris Gold and JCG. The Commission’s procedural rules speak to these subjects.17 Fennemore
Craig, P.C., (with locations in Arizona, Nevada, and Colorado, but not Minnesota) is
representing Whitebox Entities and has submitted a letter, and later, a response to Complainant’s
Motion to set Location of Depositions, dated June 24, 2016, that any depositions of Whitebox
Entities should be conducted at that entity’s Minneapolis, Minnesota offices. The letter and a
subsequent response to the Complainant’s motion ask the Court to look FRCP 45(c) as to the
proper location for a non-party deposition.18 That provision is invoked for the purpose of
requiring that any deposition of Whitebox Entities be held within 100 miles of Minneapolis,
Minnesota.
However, the Response acknowledges that the Mine Safety Review Commission’s
procedural rules provide, at 29 C.F.R. §2700.57(a), for the testimony of any person, including a
party, by deposition or written interrogatories. Further, 29 C.F.R. §2700.57(b), provides that
“[i]f the parties are unable to agree, the time, place, and manner of taking depositions shall be
17

29 C.F. R. § 2700.58 provides:

(a) Interrogatories. Any party, without leave of the Judge, may serve
written interrogatories upon another party. A party served with interrogatories
shall answer each interrogatory separately and fully in writing under oath within
25 days of service unless the proponent of the interrogatories agrees to a longer
time. The Judge may order a shorter or longer time period for responding. A party
objecting to an interrogatory shall state the basis for the objection in its answer.
(b) Requests for admissions. Any party, without leave of the Judge, may serve on
another party a written request for admissions. A party served with a request for
admissions shall respond to each request separately and fully in writing within 25
days of service, unless the party making the request agrees to a longer time. The
Judge may order a shorter or longer time period for responding. A party objecting
to a request for admissions shall state the basis for the objection in its response.
Any matter admitted under this rule is conclusively established for the purpose of
the pending proceeding unless the Judge, on motion, permits withdrawal or
amendment of the admission. (c) Request for production, entry or inspection. Any
party, without leave of the Judge, may serve on another party a written request to
produce and permit inspection, copying or photocopying of designated documents
or objects, or to permit a party or his agent to enter upon designated property to
inspect and gather information. A party served with such a request shall respond
in writing within 25 days of service unless the party making the request agrees to
a longer time. The Judge may order a shorter or longer period for responding. A
party objecting to a request for production, entry or inspection shall state the basis
for the objection in its response.
(Emphasis added).
18

The Response on behalf of Whitebox Entities does not speak to the location for any
depositions of Jerritt Canyon Gold, LLC, Sprott Entities or Sprott individuals. Whitebox
Response, at 2. However, the same principles described above would be applied.

38 FMSHRC Page 1896

governed by order of the judge.” Accordingly, the Court need not be guided by the FRCP on
this question. However, FRCP Rule 30 offers an alternative to the Court having to resort to
ordering that depositions be conducted in Elko, Nevada, by allowing “Remote Means” for a
deposition:
The parties may stipulate—or the court may on motion order—that a deposition
be taken by telephone or other remote means. For the purpose of this rule and
Rules 28(a), 37(a)(2), and 37(b)(1), the deposition takes place where the deponent
answers the questions.
Fed. R. Civ. P. 30 (emphasis added). See, e.g., Schoenherr v. Smith, 2013 WL 2239304, (E.D.
MichMay 21, 2013); Gee v. Suntrust Mortgage, Inc., 2011 WL 5597124, at *2 (N.D. Cal. Nov.
15, 2011).
Should the other means of discovery prove insufficient, the Whitebox Entities and Lowe
are directed to confer to see if they can stipulate to have the deposition be taken by telephone or
other remote means and to so advise the Court of the outcome of their conference.
As expressed above, the Court is not sure that depositions are needed at this point in
order for Lowe to learn, and as a potential consequence establish, JCG’s status as a successor-ininterest, because interrogatories, requests for admissions, and requests for production of
documents may be sufficient. However, learning about JCG’s status as a successor may not be
enough if, as noted above, Lowe is unable, through such discovery, to learn of the connections, if
any, between owners, operating officials, officers and management of Veris Gold and JCG, and
Eric Sprott, and the Whitebox Entities. It bears repeating that if it is learned that any individuals
or entities were connected with Veris Gold and then through discovery or through statements
already made by counsel or through the bankruptcy process, there are links between Veris Gold
and JCG, not only would this bear on the first successorship factor but, in the event that this
Court were to find that JCG is a successor and liable for Lowe’s damages, such links may also
give any bankruptcy or federal district court pause about the bankruptcy process that occurred in
this instance, if asked by JCG to negate such liability as this Court may find.
The issue of JCG’s participation in these proceedings
In separate letters, JCG, through the law firm representing it, Dorsey & Whitney LLP,
and Attorneys Mark R. Kaster and Annette Jarvis, advised that it would not be participating in
successorship and damages proceedings in the Varady and Lowe matters. Letter from Mark R.
Kaster and Annette Jarvis, (Mar. 18, 2016); Letter from Mark R. Kaster and Annette Jarvis,
(Mar. 28, 2016). The Court does not read those letters as blanket declinations because in the
Varady letter it was framed as a decision to seek discretionary review of the decision adding JCG
as a party and, in the Lowe letter, the declination was specifically described as a decision not to
participate “at this time,” opting for discretionary review there as well. Accordingly, JCG’s
attorneys are therefore directed within seven (7) days of this Order to state whether they
will be participating in the successorship and damages proceedings in the Varady and
Lowe matters. If JCG decides not to participate, the Court, upon taking notice of such evidence
as Lowe may present on the successorship issue, would find JCG in default on the issue of

38 FMSHRC Page 1897

successorship and will then require Varady and Lowe to separately provide a final submission on
the damages claim which the Court will then review and rule upon.
Concluding Remarks
The Bankruptcy Court’s appointed monitor itself identifies a sufficient cast of players in
the purchase of Veris Gold to warrant a full understanding of their relationships, pre and post
Veris Gold’s operations. On May 25, 2015, Ernst & Young, as the Bankruptcy Court’s19
appointed monitor, presented its “Sixteenth Report of the Monitor.” The Report advises that the
DIP lender’s wholly owned subsidiary, WBVG, LLC is the DIP Purchaser. Sixteenth Report of
the Monitor, at ¶15. The DIP Purchaser has disclosed that, at the closing, the DIP Lender will
sell a majority of the membership interest in the DIP Purchaser to 2176423 Ontario Ltd., a
company wholly owned by Eric Sprott, or one of his affiliate entities. Mr. Sprott is a holder of a
pre-petition royalty interest against the Petitioners and one of his wholly owned entities holds
over 20% of the Petitioners’ equity. Id. at ¶16. The Report relates that on May 8, 2015, the
monitor received an “expression of interest” (“EOI”) identified only as the “EOI Party” seeking
to acquire the Jerritt Canyon Mining Operations. That EOI and later a “Revised EOI” was
presented to the DIP. A third EOI was also presented, but it too was not supported by the DIP.
The monitor acknowledged that “[w]hile the DIP Lender’s lack of support for the various EOIs
might be perceived as a potential conflict of interest, the Monitor remains of the view that the
Credit Bid Transaction is the appropriate course of action at this late stage of the proceedings.”
Id. at ¶39 (emphasis added).

19

In this instance, that “Court” refers to the Supreme Court of British Columbia.

38 FMSHRC Page 1898

The Court is fully aware of JCG’s continual invocation of the Bankruptcy Court’s
statements that JCG takes on none of the baggage created by Veris Gold’s acts of discrimination.
However, as this Court has stated more than once, it believes there were significant procedural
and substantive problems with that bankruptcy process and that discrimination is akin to a tort
and as such is not the type of activity that bankruptcy law was intended to insulate corporations
from escaping. Lowe and Varady have the right to identify, through discovery, whether JCG is
a successor entity under Commission precedent and may employ requests for admission,
interrogatories, and depositions to determine that. The Complainants also have a right, per the
discussion above, to learn the names and interests of those officers and shareholders comprising
WBox 2014-1 Ltd, WBVG LLC, Jerritt Canyon Gold LLC, Whitebox Advisors LLC, the
Whitebox Entities and Veris Gold.20
SO ORDERED.

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

20

The response from the Whitebox Entities informs that there is no such entity as
“Whitebox Asset Mgmt,” but MSHA Mine Data Retrieval System lists such an entity, along with
Eric Sprott.

38 FMSHRC Page 1899

Distribution:
Mark Kaster, Esq.
Dorsey & Whitney, LLP
1500 South 6th Street
Minneapolis, MN 55402
Kaster.mark@dorsey.com
Annette Jarvis, Esq.
136 South Main Street, Suite 1000
Salt Lake City, UT 84101
Jarvis.annette@dorsey.com
Daniel B. Lowe
P.O. Box 2609
Elko, NV 89801
danny.lowe@icloud.com
Cathy L. Reece, Esq.
Fennemore Craig, P.C.
2394 East Camelback Road, Suite 600
Phoenix, AZ 85016
creece@fclaw.com
Shaun Heinrichs
Veris Gold
688 West Hastings Street, Suite 900
Vancouver, BC V6B 1P1, Canada
Tevia Jeffries
Dentons Canada LLP
250 Howe Street, 20th Fl.
Vancouver, BC V6C 3R8, Canada
Brad J. Mantel, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street, South, Suite 401
Arlington, VA 22202-5450
mantel.brad@dol.gov
Matthew A. Varady
701 S. 5th Street, #6,
Elko, NV 89801
Urandonk406@gmail.com

38 FMSHRC Page 1900

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street, South, Suite 401
Arlington, VA 22202-5450

38 FMSHRC Page 1901