MAY AND JUNE 2009

COMMISSION DECISIONS AND ORDERS

05-06-2009
05-06-2009
0510612009
05-06-2009
05-06-2009
05-06-2009
05-06-2009
05-07-2009
05-11-2009
05-11-2009
05-14-2009
05-14-2009
05-14-2009
05-20-2009
05-20-2009
05-21-2009
05-22-2009
05-27-2009
05-27-2009
05-28-2009
06-01-2009
06-01-2009
06-01-2009
06-01-2009
06-02-2009
06-10-2009
06-10-2009
06-10-2009
06-10-2009
06-15-2009
06-15-2009
06-15-2009
06-16-2009
06-17-2009
06-24-2009
06-24-2009
06-29-2009

Morris, Inc.
Precision Drilling, Inc.
Mosaic Phosphates Company
Dickenson-Russell Coal Co., LLC.
Castle Wood Products
Fisher Sand & Gravel Company
Premier Chemical, LLC.
Thomas J. Smith, Inc.
XMV, Inc.
Brahma Group, Inc.
Ron Powell emp. By Oakridge Sand & Gravel
Black Mountain Industrial Minerals, LLC.
Hancock Materials, Inc.
Alex Energy, Inc.
Spartan Mining Company, Inc.
Brooks Run Mining Co., LLC.
WKJ Contractor's Inc.
Lafarge Aggregates Southeast, Inc.
Randy Pack
Sidney Coal Company
Hopkins County Coal, LLC.
ABC Gravel, Inc.
Lapp & Sons
Mingo Logan Coal Company
Lehigh Southwest Cement Company
Oxford Mining Co., LLC.
Unimin Corporation
Dickenson-Russell Coal Company
Long Branch Energy
Freedom Energy Mining Co.
Lehigh Southwest Cement Co.
West Virginia Mine Power, Inc.
Dennis Demers Trucking
Moraine Materials Company
Youngman Rock, Inc.
KWV Operations, LLC.
Canyon Fuel Company, LLC.

i

CENT 2009-1
SE 2009-26-M
SE 2009-93-M
VA 2008-395
WEST 2008-1389-M
WEST 2009-132-M
WEST 2009-200-M
PENN 2008-102
WEVA 2008-1783
WEST 2009-109-M
WEST 2009-344-M
WEST 2009-422-M
WEST 2009-423-M
WEVA 2009-662
WEVA 2009-764
WEVA 2009-1628
KENT 2009-624
SE 2009-707-M
KENT 2009-517
KENT 2009-862
KENT 2009-740
WEST 2009-468-M
WEST 2009-533-M
WEVA 2009-835
WEST 2009-512-M
LAKE 2009-381-M
SE 2009-362-M
VA 2009-175
WEVA 2009-43
KENT 2009-705
WEST 2009-505-M
WEVA 2009-934
YORK 2009-44-M
LAKE 2009-271-M
CENT 2009-347-M
WEVA 2009-1038
WEST 2009-232

Pg.495
Pg.501
Pg.504
Pg.507
Pg. 510
Pg. 513
Pg.516
Pg.520
Pg.523
Pg.527
Pg.531
Pg.534
Pg.537
Pg.540
Pg.543
Pg.547
Pg. 551
Pg.555
Pg.559
Pg.562
Pg.566
Pg.569
Pg.572
Pg.575
Pg.578
Pg.581
Pg. 583
Pg.586
Pg.589
Pg.592
Pg.595
Pg.599
Pg.602
Pg.606
Pg.609
Pg. 612
Pg.615

ADMINISTRATIVE LAW JUDGE DECISIONS

05-12-2009
05-19-2009
05-29-2009
06-10-2009
06-17-2009
06-23-2009
06-29-2009

Tri-Star Mining, Inc.
Rockhouse Energy Mining Co.
Yurnun Edwurd Jaxun v. Asarco, LLC.
Wolf Run Mining Company
Dynamic Energy, Inc.
Nally & Hamilton Enterprises, Inc.
Walter Kuhl

YORK 2007-76-R
KENT 2009-537
WEST 2007-811-DM
WEYA 2006-853
WEYA 2007-448-R
KENT 2008-712
PENN 2008-76-M

Pg.619
Pg.622
Pg.631
Pg. 640
Pg.670
Pg.689
Pg. 700

LAKE 2009-395-R
KENT 2009-302-D
SE 2008-124-R
LAKE 2009-253
LAKE 2009-391
LAKE 2009-487
LAKE 2009-589
LAKE 2009-598
LAKE 2009-616
WEST 2009-189

Pg. 709
Pg. 717
Pg. 724
Pg. 729
Pg. 732
Pg. 734
Pg. 736
Pg. 738
Pg. 740
Pg. 742

ADMINISTRATIVE LAW JUDGE ORDERS

05-15-2009
05-29-2009
06-04-2009
06-30-2009
06-30-2009
06-30-2009
06-30-2009
06-30-2009
06-30-2009
06-30-2009

Mach Mining, LLC.
Billy Brannon v. Panther Mining, LLC.
Jim Walter Resources, Inc.
Solar Sources, Inc.
Black Panther Mining, LLC.
Five Star Mining, Inc.
Five Star Mining, Inc.
Five Star Mining, Inc.
Five Star Mining, Inc.
Mountain Coal Company, LLC.

ii

MAY AND JUNE 2009

Review was granted in the following case during the months of May and June:

Secretary of Labor, MSHA v. North American Drillers, LLC., Docket No. LAKE 2008-2-R, and
LAKE 2008-98. (Judge Melick, April 9, 2009)
There were no cases filed in which review was denied during the months of May and June:

lI1

COMMISSION ORDERS

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

May6, 2009

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2009-1
A.C. No. 39-01381-152957

v.
MORRIS, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY: Jordan, Young, and Cohen, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (''Mine Act"). On October 1, 2008, the Commission received from Morris,
Inc. ("Morris") a request to reopen a penalty assessment that became a final order of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On June 1, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Assessment No. 000152957 to Morris, proposing penalties for two citations
that MSHA had issued to Morris on April 30, 2008. According to the Secretary, any contest of
those penalties was due on July 17, 2008. However, the Secretary's records show that Morris did
not file a contest until July 25, 2008, when it contested one of the two proposed penalties. The
request to reopen does not explain the reason for the delay in filing. The Secretary states that she
does not oppose the request.

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR."). In evaluating requests to
31 FMSHRC 495

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Because Morris's request for relief does not explain the company's failure to contest the
proposed assessment on a timely basis, we hereby deny the request for relief without prejudice.
See Eastern Associated Coal, LLC, 28 FMSHRC 999, 1000 (Dec. 2006). We recognize the
concerns expressed in the Chairman's dissenting opinion, and we are sympathetic to a small pro
se operator which filed its notice of contest only eight days late. However, in order to justify the
reopening of an order which the Mine Act deems final under its strict time limits, the record
should provide an explanation, as required by Rule 60(b), for why those time limits were not met.

31 FMSHRC 496

The words ''without prejudice" mean that Morris may submit another request to reopen
Assessment No. 000152957 with respect to the penalty it seeks to contest. 1

Robert F. Cohen, Jr., Commissioner

1

Morris must establish good cause for not contesting the citation and proposed penalty
within 30 days from the date it received Assessment No. 000152957 from MSHA. Under Rule
60(b), the existence of "good cause" may be shown by a number of different factors including
mistake, inadvertence, surprise, or excusable neglect on the part of the party seeking relief, or the
discovery of new evidence, or fraud, misrepresentation, or other misconduct by the adverse party.
Morris should include a full description of the facts supporting its claim of"good cause,"
including how the mistake or other problem prevented Morris from responding within the time
limits provided in the Mine Act, as part of its request to reopen. Morris should also submit
copies of supporting documents with its request to reopen.
31 FMSHRC 497

Chairman Duffy,· dissenting:
I would reopen this matter, 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, and, consistent with Rule 28, order the Secretary to file a petition for assessment of penalty
within 45 days. See 29 C.F.R. § 2700.28.
Morris, Inc. is a very small, seasonal sand and gravel operator filing for reliefpro se
because it was eight days late in contesting the Secretary's proposed penalty of$100.00. The
Secretary does not oppose reopening the matter.
MSHA's data profile for Morris, Inc., indicates that the mine has been in operation since
September of 1990. The operator's reported compliance history, dating back to 1995, shows that
the mine has been cited for 35 violations, 16 of which were issued in 1995, and has had two
reportable lost time injuries during that same 14-year period. Total hours of operation per year
have ranged between 7,372 hours and 32,944 hours, with the average being 14,921 hours. For
2008, the year the citation in question was issued, the mine operated for 8,644 hours. The
number of employees at the mine in 2007-2008 ranged from six to eight, including one office
worker.
Morris, Inc. is not a very litigious operator. MSHA's records show that most of the
operator's proposed penalties have been paid in fu.11. 2
Consequently, it is fair to say that this small operator, by its limited experience, would not
be intimately familiar with the procedures and deadlines associated with the contesting of
proposed assessments of civil penalties before the Commission, the consequences of not
contesting them on time, or the roadmap to Commission relief from final orders imposing those
assessments.
Given these facts, I do not see what is to be gained, other than strict adherence to form, by
forcing Morris, Inc., and the Secretary to expend additional time and trouble over an eight-day
delay in contesting a $100.00 penalty in order to obtain the Commission's approval to proceed
with this case when there is no dispute between the parties on whether the matter should
appropriately proceed in this forum. Except in circumstance where the prerogatives of the
2

In 1999, however, the operator paid $7,555.00 in lieu of a proposed assessment of
$14,055.00 for three violations, and in 2000 it paid $665.00 in lieu of a proposed assessment of
$1,215.00 for five violations. MSHA's public information regarding Morris, Inc., does not
indicate whether those reduced penalties were arrived at through negotiations with the Secretary
alone or whether they arose from a settlement entered into before the Commission. A search of
the Commission's archives does not yield any substantive cases involving Morris, Inc., although
MSHA' s website indicates that two citations issued in January of this year are currently under
contest.
31 FMSHRC 498

Commission are so strong as to demand otherwise, I have generally taken the position that
unopposed motions to reopen uncontested assessments that have become final Commission
orders should be granted as a matter of course (so long as they are filed within a year of the final
orders in question). The circumstances of this case underscore the advisability of that approach.
It should be sufficient for the Commission's and the Secretary's purposes to admonish Morris,
Inc., that it is incumbent upon mine operators to respond to proposed penalty notices in a timely
manner and that unwarranted delays in the future will not be acceptable.
I therefore dissent.
\

31 FMSHRC 499

Distribution:
Jean Morris
Human Resources Director
Morris, fuc.
P.O. Box 1162
Pierre, SD 57501
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 500

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

May6, 2009

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE-2009-26-M
A.C. No. 09-01112-134284 Q7X

v.
PRECISION DRILLING, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On October 14, 2008, the Commission received from
Precision Drilling, Inc. ("Precision") a request to reopen a penalty assessment that may have
become a final order of the Commission pursuant to secti.on 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section I 05(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

31 FMSHRC 501

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Precision's request indicates that, upon receipt of the proposed assessment, it filed a
contest of one of the two penalties proposed on the assessment. The Secretary states that she
does not oppose the reopening of the proposed penalty assessment but does not address
Precision's assertion that it filed a contest.
Having reviewed Precision's request and the Secretary's response, in the interests of
justice, we hereby remand this matter to the Chief Administrative Law Judge for a determination
of whether good cause exists for Precision's apparent failure to timely contest the penalty
proposal and whether relief from the final order should be granted. If it is determined that such
relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F.R. Part 2700.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 502

Distribution:
R. K. Smith, President
Precision Drilling, Inc.
90 Hickory Springs Industrial Drive
Canton, GA 30115
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25•h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 503

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

May6, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2009-93-M
A.C. No. 08-01117-157102

v.
MOSAIC PHOSPHATES COMPANY

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 5, 2008, the Commission received from
Mosaic Phosphates Company ("Mosaic") a motion from counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
However, we have held that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

31 FMSHRC 504

for a failure to tiniely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
The Secretary states that she does not oppose the reopening of the proposed penalty
assessment. The record indicates that the contest form was sent too late in part due to an illness
in the family of one of Mosaic's employees.
Having reviewed Mosaic's request and the Secretary's response, in the interests of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 505

Distribution:
Peter Gould, Esq.
Patton Boggs LLP
1801 California Street
Suite 4900
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 251h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 506

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

May6, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 2008-395
A.C. No. 44-06444-149645

v.
DICKENSON-RUSSELL
COAL COMPANY, LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 20, 2008, the Commission received from
Dickenson-Russell Coal Company, LLC ("Dickenson-Russell") a motion made by counsel
seeking to reopen a penalty assessment that had become a final order of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). fu evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
31 FMSHRC 507

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
The Secretary states that she does not oppose reopening the proposed penalty assessment.
The record indicates that a recently hired employee of the operator forwarded a check covering
all citations covered by a proposed penalty assessment except for two citations which the
operator intended to contest. However, the employee inadvertently neglected to file contests for
those two penalties. When he learned of his mistake, he belatedly submitted the contest form to
the Secretary.
Having reviewed Dickenson-Russell's request and the Secretary's response, in the
interests of justice, we hereby reopen this matter and remand it to the Chief Administrative Law
Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural Rules,
29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for
assessment of penalty within 45 days of the date of this order. See 29 C.F .R. § 2700.28.

Mich

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 508

Distribution:
Timothy W. Gresham, Esq.
Penn Stuart & Eskridge
P.O. Box 2288
Abingdon, VA24212
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 509

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

May6, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2008-1389-M
A.C. No. 10-02079-148956

v.
CASTLE WOOD PRODUCTS

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 8, 2008, the Commission received from Castle
Wood Products ("Castle Wood") a letter seeking to reopen a penalty assessment that may have
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section I 05(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31FMSHRC510

The Secretary states that she does not oppose the reopening of the proposed penalty
assessment. The record indicates that a company official may have sent the contest form in a
timely basis but that MSHA has no record of receiving it. Upon learning that the proposed
assessment was delinquent, the operator promptly filed this request to reopen.
Having reviewed Castle Wood's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F .R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31FMSHRC511

Distribution:
Rosanna K. Castle
Castle Wood Products
711 Desert Wind Rd.
Boise, ID 83716
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC512

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

May6, 2009
SECRETARY OF LABOR,
MINE SAFETY AND. HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-132-M
A.C. No. 48-01488-155930

v.
FISHER SAND & GRAVEL COMPANY

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

§ 801 et seq. (2006) ("Mine Act"). On November 10, 2008, the Commission received from
Fisher Sand & Gravel Company ("Fisher'') a letter seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On July 3, 2008, the Department of Labor's Mine Safety and Health Administration
issued a proposed penalty assessment to Fisher, proposing civil penalties for several citations. In
its request, Fisher states that it would like to contest the citations.
The Secretary opposes Fisher's request to reopen. She states that the operator failed to
provide any explanation as to why it did not timely contest the penalties. She requests that the
Commission deny the operator's request to reopen.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
31 FMSHRC 513

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Fisher's request to reopen and the Secretary's response, we agree with
the Secretary that Fisher has failed to provide any explanation for its failure to timely contest the
proposed penalty assessment. Accordingly, we deny without prejudice Fisher's request. 1 See,
e.g., Eastern Associated Coal, LLC, 30 FMSHRC 392, 394 (May 2008); James Hamilton
Constr., 29 FMSHRC 569, 570 (July 2007).

Robert F. Cohen, Jr., Commissioner

1

The words "without prejudice" mean that Fisher may submit another request to reopen
the case so that it can contest a penalty assessment. fu the event that Fisher chooses to refile its
request to reopen, it should disclose with greater specificity the reasons for its failure to contest
the proposed assessment in a timely manner.
31FMSHRC514

Dsistribution:
Sarah Diede
Human Resource Assistant
Fisher Industries
P.O. Box 1034
3020 Energy Drive
Dickinson, ND 58602-1034
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC515

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

May6, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2009-200-M
A.C. No. 26-00002-147595

v.
Docket No. WEST 2009-201-M
A.C. No. 26-00002-150910

PREMIER CHEMICAL, LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). 1 On November 20, 2008, the Commission received from
Premier Chemical, LLC (''Premier") a request from the operator seeking to reopen two penalty
assessments that had become final orders of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On April 17, 2008, and May 15, 2008, the Department of Labor's Mine Safety and Health
Administration issued proposed penalty assessments to Premier, proposing civil penalties for 59
citations. In its request, Premier states that it paid the assessments but would like to reopen
them. Premier states that "much confusion was and is still surrounding the assessment process
along with factual disagreement with the related citations."

1

Pursuant to Commission Procedural Rule 12, 29 C.F.R. § 2700.12, on our own motion,
we hereby consolidate Docket Nos. WEST 2009-200-M and WEST 2009-201-M, as both
dockets involve similar procedural issues and similar factual backgrounds.
31FMSHRC516

The Secretary opposes Premiers's request to reopen. She states that the assertion of the
cause for Premier's failure to timely file- "confusion ... surrounding the assessment process" does not constitute a showing of the exceptional circumstances warranting reopening. She
requests that the Commission deny the operator's request to reopen.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section IOS(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31FMSHRC517

Having reviewed Premier's requests to reopen and the Secretary's response, we agree
with the Secretary that Premier has failed to provide a sufficiently detailed explanation for its
failure to timely contest the proposed penalty assessment. Premier's conclusory statement that its
failure to timely file was due to confusion surrounding the assessment process does not provide
the Commission with an adequate basis to justify reopening. Accordingly, we deny without
prejudice Premier's request. 2 See, e.g., Eastern Associated Coal, LLC, 30 FMSHRC 392, 394
(May 2008); James Hamilton Constr., 29 FMSHRC 569, 570 (July 2007).

Robert F. Cohen, Jr., Commissioner

2

The words "without prejudice" mean that Premier may submit another request to reopen
the case so that it can contest a penalty assessment. In the event that Premier chooses to refile its
request to reopen, it should disclose with greater specificity the reasons for its failure to contest
the proposed assessment in a timely manner.
31FMSHRC518

Distribution:
Jennifer Williamson
Safety Coordinator
Premier Chemicals, LLC
P.O. Box I77
Gabbs, NV 89409
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
I I 00 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 2000I-2021

3I FMSHRC 519

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

May7, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2008-102
A.C. No. 36-08065-130918

v.
THOMAS J. SMITH, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On May 4, 2009, the Commission received from Thomas J.
Smith, Inc. ("Smith") a letter seeking review of an order of Chief Administrative Law Judge
Robert J. Lesnick entering a default judgment for the Secretary of Labor in this case.
The Chief Judge's jurisdiction in this matter terminated when his default order was issued
on April 9, 2009. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's procedural
rules, relief from a judge's decision may be sought by filing a petition for review within 30 days
of its issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70{a). We construe the letter from
Smith to be a timely filed petition for discretionary review.
On August 26, 2008, Chief Judge Lesnick issued a show cause order to Smith stating that
it had failed to file an answer to a petition for penalty assessment sent to it by the Secretary on
January 3, 2008, and that Smith would be found in default ifit did not file an answer or show
good cause for not doing so within 30 days of the order. On April 9, 2009, Chief Judge Lesnick
issued an order finding that Smith had failed to respond to the show cause order and entering a
judgment by default for the Secretary.
On May 4, 2009, the Commission received a letter from L. Ray Bashline, Smith's Safety
Director, seeking review of the Chief Judge's default order. The letter did not provide reasons
regarding why the company had not answered the petition nor responded to the show cause order,
other than stating that the show cause order had not been forwarded to the Safety Director.

31 FMSHRC 520

Because Smith's letter does not address the validity of the Chief Judge's default order,
nor provide any reasons why the default order should be vacated, we hereby deny the petition.
Consequently, Smith currently stands in default in this matter.
However, we have observed that default is a harsh remedy and that, if the defav.lting party
can make a showing of good cause for a failure to timely respond, the case may be reopened and
appropriate proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529,
1530 (Sept. 1995). Moreover, the Commission has found guidance in Rule 60(b) of the Federal
Rules of Civil Procedure under which, for example, a party could be entitled to relief from a final
order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See 29
C.F.R. § 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable by the
Federal Rules of Civil Procedure"); Jim Walter Res., Inc., 15 FMSHRC 782, 787(May1993).
Consequently, if Smith can justify its failure to answer the petition for penalty assessment
and its failure to respond to the judge's show cause order, it may submit a request to the
Commission, with supporting documentation, asking it to reopen this case. See Prairie
Materials Sales, Inc., 26 FMSHRC 800, 801, & n.1 (Oct. 2004). Such a request, which must be
filed within 30 days of the date of this order, should explain in detail why the operator failed to
file an answer to the Secretary's penalty petition and why it failed to respond to the judge's show
cause order. Smith should include a full description of the facts supporting its claim of"good
cause," including why the show cause order was not transmitted to the Safety Director.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 521

Distribution:
Thomas J. Smith, President
Thomas J. Smith, Inc.
2340 Smith Rd.
Shelocta, PA 15774

L. Ray Bashline, Safefy Director
Thomas J. Smith, Inc.
2340 Smith Rd.
Shelocta, PA 15774
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC522

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

May 11, 2009
SECRETARY OF LABOR,
MINE SAFETY AND·HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEYA 2008-1783
A.C. No. 46-09017-155948

XMV,INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On September 4, 2008, the Commission received from XMV,
Inc. ("XMV") a letter by counsel seeking to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On July 7, 2008, the Department of Labor's Mine Safety and Health Administration
issued Proposed Penalty Assessment No. 000155948 to XMV, proposing civil penalties for a
citation and several orders. In its request, XMV asserts that it did not file a timely contest due to
a misunderstanding between the operator and its law firm regarding who was responsible for
contesting the assessment. 1 The Secretary states that she does not oppose XMV's request to

1

We note that XMV also failed to file a timely contest of two proposed assessments
issued by MSHA on June 3, 2008. In a request to reopen these penalties, (Docket Nos. WEYA
2009-47 and 48), XMY attributed its failure to unspecified confusion among office employees.
In those cases, the Commission denied the requests to reopen without prejudice because XMV
had not provided a sufficiently detailed explanation. XMV, Inc., 31 FMSHRC _____:) slip op. at 3,
31 FMSHRC 523

reopen the proposed penalty assessment.
We have held that in appropriate circwnstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Cominission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

In a recent case involving a motion to reopen a penalty assessment, the Commission
denied without prejudice an operator's request which was based on an "unintentional error in the
transfer of the Proposed Assessment from [the operator] to counsel" Atlanta Sand & Supply Co.,
30 FMSHRC 605, 606 (Ju)y 2008). The Commission concluded that the operator failed to
"provide sufficient information to determine whether or not good cause may exist to reopen the
final order." Id.

Nos. WEYA 2009-47 and 48 (Mar. 18, 2009).
31 FMSHRC 524

Similarly, XMV has failed to provide a sufficiently detailed explanation for its failure to
timely contest the proposed penalty assessment. Its brief assertion that it believed the assessment
would be contested by its counsel, while its counsel thought the operator would file the contest,
does not provide the Commission with an adequate basis to justify reopening. Because XMV
provides no specific facts justifying relief, we deny without prejudice XMV's request. 2 See
James Hamilton Constr., 29 FMSHRC 569, 570 (July 2007).

Robert F. Cohen, Jr., Commissioner

2

In the event that XMV chooses to refile its request to reopen, it should state with
specificity the facts and circumstances it believes would justify reopening the final order and
should include any relevant documentation with the request.
31 FMSHRC 525

Distribution:
M. Scott Meachwn, Esq.
Flaherty, Sensabaugh & Bonasso, PLLC
200 Capitol Street, P .0. Box 3843
Charleston, WV 25338-3843
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th F'loor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 526

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

May 11, 2009
SECRETARY OF LABOR,
MINE SAFETY AND.HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-109-M
A.C. No. 04-00011-136931 H409

v.
BRAHMA GROUP, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 3, 2008, the Commission received from
Brahma Group, Inc. ("Brahma") a letter seeking to reopen a penalty assessment that had become
a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

On October 3, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued two citations to Brahma. Thereafter, on October 17, Brahma filed a notice of
contest of the citations. According to Brahma's director of risk management, since the time
Brahma filed the contest, it heard nothing further until it recently was informed that collections
efforts had been commenced to collect penalties arising out of the citations. Brahma's director
further states that Brahma had been unaware of the proposed penalty assessment and collection
efforts because notices were repeatedly sent to the wrong address.
fu response, the Secretary states that she does not oppose Brahma's request for relief.
However, the Secretary notes that the proposed assessment and delinquency notice were mailed
to the address of record. The Secretary attached to her response a copy of the Contractor

31 FMSHRC 527

Information Report containing Brahma's name and address. The Secretary added that Brahma
should take necessary steps to ensure that the address of record is accurate.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section IOS(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
It is an operator's responsibility to file with MSHA the address of a mine and any changes
of address. 30 C.F.R. §§ 41.10, 41.12. Operators may request service by delivery to another
appropriate address provided by the operator. 30 C.F.R. § 41.30.
It is unclear from the record whether MSHA mailed the proposed assessment to Brahma's
official address of record at the time of assessment and whether Brahma maintained its correct
address with MSHA. If MSHA sent the proposed assessment to Brahma's official address of
record, grounds may exist for denying Brahma's request for relief. Mass Transport, Inc., 30
FMSHRC 997, 999 (Nov. 2008). If, however, MSHA mailed the proposed assessment to an
incorrect address, the proposed assessment may not have become a final Commission order and
Brahma's request maybe moot.

31 FMSHRC 528

Having reviewed Brahma's request and the Secretary's response, we remand this matter
to the Chief Administrative Law Judge for a determination of whether Brahma's request should
be granted. We ask the Chief Judge, in considering the matter, to resolve the dispute over
whether MSHA sent the proposed assessment to Brahma's official address ofrecord at the time
of assessment. The Judge shall order further appropriate proceedings based upon that
determination in accordance with principles described herein, the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 529

Distribution:
Robert S. Fox
Director of Risk Mngmt.
Brahma Group, Inc.
1132 South 500 West
Salt Lake City, UT 84101
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra Jrunes, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 530

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEWJERSEYAVENUE, NW
SUITE9500
WASHINGTON, DC 20001

May 14, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-344-M
A.C. No. 35-00524-156092 A

v.
RON POWELL, employed by
OAKRIDGE SAND & GRAVEL

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On January 7, 2009, the Commission received from Ron
Powell a request to reopen a penalty assessment against Powell under section 110(c) of the Mine
Act, 30 U.S.C. § 820(c), that had become a final order of the Commission pursuant to section
lOS(a) of the Mine Act, 30 U.S.C. § 815(a).
Under the Commission's Procedural Rules, an individual charged under section l IO(c)
has 30 days following receipt of the proposed penalty assessment within which to notify the
Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders. Jim Walter Res.,
Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to reopen final
section 105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure under which, for example, a party could be entitled to relief from a final order of
the Commission on the basis of mistake, inadvertence, or excusable neglect. See 29 C.F.R.
§ 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
31FMSHRC531

timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995)~
The Secretary supports reopening of the proposed penalty assessment in order that the
parties' agreement to settle the penalty assessment can be approved. The record indicates that
there had been confusion as to which penalties were included in the settlement being negotiated
among the parties and, as a result, the penalties involving Mr. Powell were not timely contested.
Having reviewed Mr. Powell's request and the Secretary's response, we grant reopening
and hereby remand this matter to the Chief Administrative Law Judge for a ruling on the motion
for approval of the settlement attached to the Secretary's response.

issioner

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 532

Distribution:
Hafez Daraee, Esq.
Jordan, Schrader, Ramis, P .C.
P. 0. Box 230669
Portland, OR 97281
Jeannie Gorman, Esq.
Office of the Solicitor
U.S. Department of Labor
1111 Third Avenue, Suite 945
Seattle, WA 98101-3212
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room-2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 533

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

May 14, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-422-M
A.C. No. 26-02636-167226

v.
BLACK MOUNTAIN INDUSTRIAL
MINERALS, LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On January 27, 2009, the Commission received from Black
Mountain Industrial Minerals, LLC ("Black Mountain") a letter seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure u:µder which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
31 FMSHRC 534

merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
fu the request, the operator's Director of Operations and Environmental Health and Safety
submits that the proposed penalty assessment, which was issued on October 29, 2008, was sent to
his predecessor, who had left the company in October 2008. The director explains that because
he recently assumed the position of director and because the operator's facility experienced a
layoff, the proposed penalty assessment was not forwarded to him in a timely manner. The
Secretary states that she does not oppose reopening the proposed penalty assessment.

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

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 535

Distribution:
Fionn O'Neill
Director Of Operations
Can Am Minerals, Inc.
2600 Old Crow Canyon Rd.
Suite 202, San Ramon, CA 94583
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 251h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 536

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

May 14, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-423-M
A.C. No. 42-01122-150148

v.
HANCOCK MATERIALS, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (''Mine Act"). On January 22, 2009, the Commission received a letter
seeking to reopen a penalty assessment issued to Hancock Materials, Inc. ("Hancock") that may
have become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
Hancock seeks reopening on the grounds that it became aware of Proposed Assessment
No. 000150148 more than 30 days after it had been issued, at a time when the operator was no
longer in business. The Secretary of Labor confirms that Hancock was no longer in business
when the proposed assessment was mailed and further states that the proposed assessment was
returned to the Department of Labor's Mine Safety and Health Administration (''MSHA") as
undelivered. She submits that because service of the proposed assessment was not achieved, the
assessment did not become a valid final order. The Secretary states that she will mail the

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 823(c), the Commission has delegated the power to rule on this reopening request to a threemember panel.
31FMSHRC537

proposed assessment to the address provided by Hancock, and Hancock will then have 30 days
after receipt to either pay the proposed assessment or contest it. ·
Having reviewed Hancock's request and the Secretary's response, we deny Hancock's
motion as moot. The Secretary may mail the proposed assessment to Hancock at the address
provided in this proceeding, and this case shall proceed pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700.2 See Lehigh Cement Co., 28 FMSHRC
440, 441 (July 2006).

2

It appears that the Secretary has determined that the manner in which MSHA attempted
service in this case was insufficient. MSHA pennits operators to provide addresses other than
the operator's official address for service. 30 C.F.R. § 41.30. Accordingly, the Secretary may
mail the proposed assessment to the address provided by the operator in this proceeding in order
to achieve service.
31 FMSHRC 538

Distribution:
Dirk Hancock
Hancock Materials, Inc.
360 South 5th Place
Show Low, AZ. 85901
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 539

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

May20, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION·(MSHA)
Docket No. WEVA 2009-662
A.C. No. 46-08877-170008

v.
ALEX ENERGY, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On January 13, 2009, the Commission received from Alex
Energy, Inc. ("Alex Energy'') a motion from counsel seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
However, we have held that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (''JWR."). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable

1

Pursuant to section l 13(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 823(c), the Commission has delegated the power to rule on this reopening request to a threemember panel.
31 FMSHRC 540

by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
The record indicates that the contest form was sent late because the operator's standard
procedure for handling proposed penalty assessments was not followed during a key employee's
absence. Upon learning of the delinquency, the operator promptly filed its Motion to Reopen
Penalty Assessment. The Secretary states that she does not oppose the reopening of the proposed
penalty assessment.
Having reviewed Alex Energy's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

31 FMSHRC 541

Distribution:
Max L. Corley, ill, Esq.
Dinsmore & Shohl, LLP
P. 0. Box 11887
900 Lee Street, Suite 600
Charleston, WV 25339
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25•h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 542

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

May20, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2009-764
A.C. No. 46-08808-166004

v.
SPARTAN MINJNG COMPANY, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen; Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On January 29, 2009, the Commission received from Spartan
Mining Company, Inc. ("Spartan") a motion by counsel seeking to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On October 15, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed assessment to Spartan for alleged violations at its Ruby Energy
Mine. As Spartan notes in its motion, the assessment proposes $208,985 in penalties for 163
citations and orders. Spartan alleges that it did not receive the Federal Express envelope
containing the proposed assessment. 1 Spartan requests that the assessment be reopened as to the

1

We note, however, that the Fed Ex Tracking Report appears to indicate that when Fed
Ex attempted to deliver the package on October 22 and 23, 2008, the customer was not available
and/or the business was closed. The full working of the "Details" in the Fed Ex Tracking Report
was not provided in the attachment to Spartan's motion.
31 FMSHRC 543

citations and orders marked on the copy of the proposed assessment it attached to the motion.
However, none of the citations or orders was marked on the attached copy.
The Secretary filed a response to the motion stating that she does not oppose it, but
pointing out the attached assessment lacked any indication regarding which of the penalties
Spartan seeks to reopen. 2 Despite the Secretary pointing out this obvious flaw in the motion,
Spartan did not file a reply to the Secretary's response, or submit an amended motion to reopen
with a marked assessment. The Secretary also noted in her response that ''the proposed
assessment was mailed via Federal Express to the address of record at the time of assessment in
this case. The operator has since updated its Legal ID Report to indicate a new address that was
effective January 21, 2009."
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the ~ommission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Because Spartan's motion states that it seeks to reopen only some of the penalties as
marked on the attached assessment form, but fails to specify which penalties those are, its motion
is deficient on its face. Consequently, we deny Spartan's motion without prejudice.
In the event that Spartan refiles this motion, it should include a complete copy of the Fed
Ex Tracking Report. It should also describe any circumstances which existed on October 22 and
23, 2008, which may have interfered with delivery of the Fed Ex package containing the
2

We consider the Secretary's position in this case in light of the provisions of the
"Informal Agreement between Dinsmore & Shohl Attorneys and Department of Labor- MSHA
- Attorneys Regarding Matters Involving Massey Energy Company Subsidiaries" dated
September 13, 2006. Therein, the Secretary agreed not to object to any motion to reopen a matter
in which any Massey Energy subsidiary failed to timely return MSHA Form 1000-179 or
inadvertently paid a penalty it intended to contest so long as the motion to reopen is filed within a
reasonable time. Thus, we assume that the Secretary is not considering the substantive merits of
a motion to reopen from any Massey Energy subsidiary so long as the motion is filed within a
reasonable time. Such agreements obviously are not binding on the Commission, and the
Secretary's position in conformance with the agreement in this case has no bearing on our
determination on the merits of the operator's proffered excuse.
31 FMSHRC 544

proposed assessment. Additionally, Spartan should explain the discrepancy in the address listed
in the Legal ID Report noted by the Secretary.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 545

Distribution:
Carol Ann Marunich, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 546

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

May21, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2008-1628
A.C. No. 46-09066-149361

v.
BROOKS RUN MINING
COMPANY, LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 13, 2008, the Commission received from Brooks
Run Mining Company, LLC ("Brooks Run") a motion made by counsel seeking to reopen a
penalty assessment that had become a final order of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31 FMSHRC 547

The Secretary states that she does not oppose the reopening of the proposed penalty
assessment. 1
The record indicates that the operator's receptionist failed to forward the proposed
penalty assessment to the safety manager, who did not learn of the assessment until he received a
delinquency notice. The motion to reopen was filed promptly.

1

We consider the Secretary's position in this case in light of the provisions of the
"Informal Agreement between Dinsmore & Shohl Attorneys and Department of Labor- MSHA
- Attorneys Regarding Matters Involving Massey Energy Company Subsidiaries" dated ·
September 13, 2006. Therein, the Secretary agreed not to object to any motion to reopen a matter
in which any Massey Energy subsidiary failed to timely return MSHA Form 1000-179 or
inadvertently paid a penalty it intended to contest so long as the motion to reopen is filed within a
reasonable time. Thus, we assume that the Secretary is not considering the substantive merits of
a motion to reopen from any Massey Energy subsidiary so long as the motion is filed within a
reasonable time. Such agreements obviously are not binding on the Commission, and the
Secretary's position in conformance with the agreement in this case has no bearing on our
determination on the merits of the operator's proffered excuse.
31 FMSHRC 548

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

·f?~
1 hl .\':-- c.L... \ .
~.
~
.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 549

Distribution:
Max L. Corley, ill, Esq.
Dinsmore & Shohl, LLP
P. 0. Box 11887
900 Lee Street, Suite 600
Charleston, WV 25339
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 550

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

May22, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2009-624
A.C. No. 15-19116-157695 N137

v.
WKJ CONTRACTOR'S INC.

BEFORE: Duffy, Chairman; Jordan, and Young, Commissioners 1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On January 8, 2009, the Commission received from WKJ
Contractor's Inc. ("WKJ") a motion by counsel seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On July 22, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000157695 to WKJ, proposing a civil penalty for
Citation No. 7505222. In its request, WKJ states that a copy of an attached "notice of appeal"
was mailed to MSHA's office in Barbourville, Kentucky, on September 2, 2008. The attached
document states that it serves to appeal the citation. The Secretary states that she does not
oppose reopening the proposed penalty assessment.

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 823(c), the Commission has delegated the power to rule on this reopening request to a threemember panel.
31FMSHRC551

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Although it appears that the operator may have attempted to contest Citation No.
7505222 by mailing its notice of contest to MSHA's office in Barbourville, Kentucky (see 29
C.F .R § 2700.20(b)),2 the operator fails to provide an explanation for why it failed to timely
contest the proposed penalty assessment by returning the completed assessment form to MSHA's
Civil Penalty Compliance Office in Arlington, Virginia, as instructed by the assessment form
(see also 29 C.F.R. § 270Q.26).

2

We note that the Commission's Docket Office was not informed that MSHA had
received WKJ' s notice of contest of the citation. As a result, no contest proceeding has been
docketed.
31 FMSHRC 552

Because WKJ's request for relief does not explain the company's failure to contest the
proposed assessment on a timely basis, we hereby deny the request for relief without prejudice.
3
See FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007).

Mic

3 If WKJ submits another request to reopen, it must establish good cause for not

contesting the proposed penalty assessment within 30 days from the date it received it from
MSHA. Under Rule 60(b) of the Federal Rules of Civil Procedure, the existence of"good cause"
may be shown by a number of different factors including mistake, inadvertence, surprise, or
excusable neglect on the part of the party seeking relief, or the discovery of new evidence, or
fraud, misrepresentation, or other misconduct by the adverse party. WKJ should include a full
description of the facts supporting its claim of"good cause," including how the mistake or other
problem prevented WKJ from responding within the time limits provided in the Mine Act (30
U.S.C. § 815(a)), as part of its request to reopen. WKJ should also submit copies of supporting
documents with its request to reopen.
31 FMSHRC 553

Disttribution
James W. Craft, II, Esq.
21 North Webb Avenue
Whitesburg, KY 41858
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 554

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

May27, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)
Docket No. SE 2008-707-M
A.C. No. 09-00023-139485

v.
LAFARGE AGGREGATES
SOUTHEAST, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 26, 2008, the Commission received from Lafarge
Aggregates Southeast, Inc. ("Lafarge") a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On February 12, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Penalty Assessment No. 000139485 to Lafarge, proposing a civil
penalty for Citation No. 7794610, which arose from a May 2007 inspection. Lafarge
subsequently received a letter dated May 7,2008, from MSHA, informing Lafarge that the
proposed penalty assessment had become a final order of the Commission. On May 21, 2008,
the Commission received from Lafarge a request to reopen the final order. fu its request, Lafarge
stated that it intended to timely contest the proposed penalty but that it had failed to do so due to
"administrative error."

The Secretary responded that Lafarge's conclusory assertion of the cause for its failure to
timely file did not constitute a showing of the circumstances required to obtain reopening under
31 FMSHRC 555

Federal Rules of Civil Procedure 60(b). She requested that the Commission provide the operator
with an opportunity to satisfy the requirements for reopening. ·The Secretary stated that once the
operator submitted a response, she would indicate whether she believed that reopening was
warranted.
On July 25, 2008, we issued an order denying Lafarge's request without prejudice.
Lafarge Aggregates Southeast, Inc., 30 FMSHRC 633 (July 2008). We explained that Lafarge
had failed to provide a sufficiently detailed explanation for its failure to contest the proposed
penalty assessment, and that its conclusory statement that its failure to timely file was due to
"administrative error'' did not provide an adequate basis to justify reopening.
On August 26, 2008, the Commission received from Lafarge a second motion to reopen.
In its request, the operator alleges that its safety manager did not receive the subject proposed
penalty assessment, although he did receive two other proposed penalty assessments arising from
the same May 2007 inspection. Lafarge explains that its intent to contest the subject proposed
penalty is evident from its actions in timely contesting the two proposed penalty assessments that
arose from the same inspection, participating in conferences with MSHA, and denying related
allegations at issue in an MSHA special investigation. Lafarge's Safety Manager states that he
mistakenly believed that MSHA was planning to modify Citation No. 7794610 and, as a result,
he was not concerned by the significant amount of time that passed without notification by
. MSHA of a proposed penalty assessment. Lafarge concludes that the subject proposed penalty
assessment must have been mistakenly misplaced or misdirected within its office.
The Secretary responds that, after reviewing Lafarge's explanation for its late filing, she
does not oppose reopening the final order.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 556

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

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 557

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

31 FMSHRC 558

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

May27, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2009-517
A.C. No. 15-17110-159591 A

v.
RANDY PACK

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On January 9, 2009, the Commission received a motion by
counsel seeking to reopen a penalty assessment against Randy Pack under section 110(c) of the
Mine Act, 30 U.S.C. § 820(c), that may have become a final order of the Commission pursuant to
section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under the Commission's Procedural Rules, an individual charged under section 1 lO(c)
has 30 days following receipt of the proposed penalty assessment within which to notify the
Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.
On August 7, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") apparently issued Proposed Assessment No. 00159591A to Pack relating to Citation
No. 6648616, which had been issued on September 14, 2007. Pack states that, since a
conference on the citation in February 2008, neither he nor his counsel received any
correspondence regarding the citation or a related proposed penalty assessment. Pack further
states that they were unaware that a civil penalty had been proposed until he received a notice of
delinquency from MSHA, dated November 14, 2008. In a letter dated February 3, 2009, the

1

Commissioner Cohen did not participate in this matter.
31 FMSHRC 559

Secretary states that she does not oppose reopening the proposed penalty assessment. The
Secretary served her response on Pack's counsel and attached a copy of the proposed assessment.
Here, Pack never received notification of the proposed penalty assessment as required
under Commission Procedural Rule 25. 2 Under the circumstances of this case, we conclude that
Pack was not notified of the penalty assessment, within the meaning of the Commission's
Procedural Rules, until sometime af):er February 3, 2009, when he received a copy of the
assessment form from MSHA. Pack, through his attorney, notified MSHA of his intent to
contest the proposed penalty assessment by his motion to reopen. We conclude that Pack has
timely notified the Secretary that he wished to contest the proposed penalty, once he had actual
notice of the proposed assessment. See Cline, 31 FMSHRC 354, 355 (Mar. 2009).
Accordingly, the proposed penalty assessment is not a final order of the Commission.
We remand this matter to the Chief Administrative Law Judge for assignment to a judge. This
case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. 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.

2

Commission Procedural Rule 25 states that the "Secretary, by certified mail, shall
notify the operator or any other person against whom a penalty is proposed of the violation
alleged, the amount of the proposed penalty assessment, and that such person shall have 30 days
to notify the Secretary that he wishes to contest the proposed penalty assessment." 29 C.F.R.
§ 2700.25. Here, the Secretary was required to send the penalty proposal at issue to Pack at his
home address or "in care of' counsel at counsel's address.
31 FMSHRC 560

Distribution:
Billy R. Shelton, Esq.
Jones, Walters, Turner & Shelton PLLC
151 N. Eagle Creek Drive, Suite 310
Lexington, KY 40509
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC561

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

May28, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2008-862
A.C. No. 15-09724-135356

v.
SIDNEY COAL COMPANY

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On April 17, 2008, the Commission received from Sidney
Coal Company ("Sidney Coal") a motion made by counsel to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a fmal order of the Commission. 30 U.S.C. § 815(a).
On January 8, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000135356 to Sidney Coal, proposing penalties for
eleven citations and orders that had been issued to the company in September and December
2007. According to Sidney Coal, it contested four of the violations in a notice of contest
docketed as Nos. KENT 2008-52 through KENT 2008-55, which have been stayed pending the
assessment of a proposed penalty. Sidney Coal asserts that the company's safety director faxed
the proposed assessment to its attorneys but that they have no record of having received the
document. It explains that due to an undetected mechanical failure beyond its control, the
proposed assessment was not contested. Sidney Coal states that it always intended to contest the

31 FMSHRC 562

proposed assessments associated with the four orders it previously contested and requests the
Commission to grant its request to reopen the proposed assessment. 1
The Secretary states that she does not oppose Sidney Coal's request to reopen the
proposed penalty assessment. 2
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessmen~ that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be ehtitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

1

We note that the boxes for six citations/orders were checked on the proposed
assessment form.
2

We consider the Secretary's position in this case in light of the provisions of the
"Informal Agreement between Dinsmore & Shohl Attorneys and Department of Labor - MSHA
- Attorneys Regarding Matters Involving Massey Energy Company Subsidiaries" dated
September 13, 2006 ("Informal Agreement"). Therein, the Secretary agreed not to object to any
motion to reopen a matter in which any Massey Energy subsidiary failed to timely return MSHA
Form 1000-179 or inadvertently paid a penalty it intended to contest so long as the motion to
reopen is filed within a reasonable time. Thus, we assume that the Secretary is not considering
the substantive merits of a motion to reopen from any Massey Energy subsidiary so long as the
motion is filed within a reasonable time. Such agreements obviously are not binding on the
Commission, and the Secretary's position in conformance with the agreement in this case has no
bearing on our determination on the merits of the operator's proffered excuse.
31 FMSHRC 563

Having reviewed Sidney Coal's motion, in the interests ofjustice, we remand this matter
to the Chief Administrative Law Judge for a determination of whether good cause exists for
Sidney Coal's failure to timely contest the penalty proposal and whether relief from the final
order should be granted. We also direct the judge to determine what, if any, backup system
3
Sidney Coal and its counsel had in case of a mechanical or other failure in faxing a document
and whether the operator intended to contest four or six proposed penalties. If it is determined
that relief from the final order is appropriate, this case shall proceed pursuant to the Mine Act
and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Robert F. Cohen, Jr., Commissioner

3

Sidney Coal states in an affidavit that it faxed the proposed assessment to its attorneys
for contest on Januazy 17, 2008. We note that in three recent cases involving the reopening of
uncontested proposed assessments which had become final, the same law firm mishandled faxes
from its clients requesting that the firm contest proposed penalties. See Road Fork Development
Co., 30 FMSHRC 220 (Apr. 2008); Clean Energy Mining Co., 30 FMSHRC 224 (Apr. 2008);
Long Fork Coal Co., 30 FMSHRC 228 (Apr. 2008). In each of these cases, which involved total
assessments of $89,666, technical or mechanical failures involving office equipment were also
cited as the reason why the proposed assessments were not contested. This case involves
assessments totaling $90,598. Given the amount of penalties at stake, the existence, or nonexistence, of systems to prevent chronic or recurring errors of this nature is relevant to the Chief
Administrative Law judge's determination of whether the neglect in this case was excusable. We
note that courts have held in Rule 60(b) cases that mistakes resulting from institutionalized
procedures, or lack of"quality control" type of procedures, are not excusable. See Rogers v.
Hartford Life & Accident Ins. Co., 167 F.3d 933, 938-939 (5th Cir. 1999).
31 FMSHRC 564

Distribution:
Sarah Ghiz Korwan, Esq.
Dinsmore & Shohl, LLP
P. 0. Box 11887
900 Lee Street, Suite 600
Charleston, WV 25339
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. OfLabor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 565

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

June 1, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2009-740
A.C. No. 15-18826-171552

v.
HOPKINS COUNTY COAL, LLC

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On February 23, 2009, the Commission received a motion by
counsel to reopen a penalty assessment issued to Hopkins County Coal, LLC ("HCC") that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On December 16, 2008, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Proposed Assessment No. 000171552 to HCC, proposing
penalties for 80 citations that had been issued to the operator for alleged violations at its Elk
Creek mine. According to affidavits from the mine's general manager and safety director
included with the motion, the assessment was received on December 29, 2008, and marked with
the intent to contest 38 of the proposed penalties. However, an ice storm led to a week-long

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), the Commission has delegated the power to rule on this reopening request to a
three-member panel.
31 FMSHRC 566

power outage at the mine in late January and early February 2009 that prevented the timely
submission of the contest form.
The Secretary states that she does not oppose the reopening of the assessment, but notes
and provides documentation that the proposed assessment form was received by HCC on
December 22, 2008, and thus was already late by the time the ice storm hit on January 27, 2009.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed HCC's motion and the Secretary's response, in the interests of justice,
we remand this matter to the Chief Administrative Law Judge for a determination of whether
good cause exists for HCC's failure to timely contest the penalty proposal and whether relief
from the final order should be granted. On remand, the Chief Judge should obtain from HCC an
explanation for the discrepancy between the December 22, 2008, date the Secretary says the
assessment was received by HCC, and the December 29, 2008, date HCC states in its motion that
it received the assessment. If it is determined that such relief is appropriate, this case shall
proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

31 FMSHRC 567

Distribution:
Gary D. McCollum, Esq.
Hopkins County Coal, LLC.
771 Corporate Drive, Suite 500
Lexington, KY 40503
W. Christian Schumanii, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 568

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

June 1, 2009
SECRETARY OF LAB.OR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-468-M
A.C. No. 24-02250-162526

v.
ABC GRAVEL, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On January 28, 2009, the Commission received a letter
regarding a penalty assessment issued to ABC Gravel, Inc. ("ABC") that may have become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
ABC states that the assessment at issue, No. 000162526, was not received because there
was no one at its address to receive the Federal Express delivery of the assessment. The
Secretary confirms that the package was returned undelivered, and states that she will again mail
the assessment to ABC, this time by US Postal Service certified mail, and that ABC will then
have 30 days after receipt to either pay the proposed assessment or contest it. 2

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), the Commission has delegated the power to rule on this reopening request to a
three-member panel.
2

The Secretary further explains that, if there is no one at ABC's address of record, ABC
will have to pick up the certified mailing at the local post office. The Secretary states that, if
31 FMSHRC 569

Having reviewed ABC's letter and the Secretary's response, we deny ABC's request to
reopen as moot. The Secretary may proceed as she has outlined in her response, and, if any of
the proposed penalties are contested by ABC, this case shall proceed pursuant to the Mine Act
and the Commission's Procedural Rules, 29 C.F.R. Part 2700. See Lehigh Cement Co., 28
FMSHRC 440, 441 (July 2006).

ABC has another address at which someone would be available to receive and sign for mail,
ABC should change its address of record to that address on its Legal Identity Report on file with
MSHA.

31 FMSHRC 570

Distribution:
Leon Helmer
ABC Gravel, Inc.
856 Willow Creek
Red Lodge, MT 59068
W. Christian Schumami, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 571

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

June 1, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-533-M
A.C. No. 50-01571-159284

v.
LAPP&SONS

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On February 20, 2009, the Commission received a request to
reopen a penalty assessment issued to Lapp & Sons ("Lapp") that may have become a final order
of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

On August 5, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000159284 to Lapp, proposing penalties for two
citations and an order that had been issued to Lapp. After receiving no response, MSHA sent
Lapp a delinquency notification on or around November 4, 2008, for the assessment. Lapp states
that it had faxed a letter contesting the citations and order to the MSHA inspector shortly after
receiving them in accordance with his instructions, but never heard anything further until it
received the delinquency notice on December 11, 2008.

1

Pursuant to section l 13(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), the Commission has delegated the power to rule on this reopening request to a
three-member panel.
31FMSHRC572

The Secretary states that she does not oppose the reopening of the assessment, but notes
that the proposed assessment and delinquency notice were mailed to the operator's address of
record.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
th.at default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Lapp includes with its request to reopen a copy of its Legal Identity Report dated June 18,
2008, that shows a differenl address from the August 5, 2008, Proposed Assessment issued by
MSHA. From the record, it thus appears that MSHA did not update Lapp's address of record,
which would explain why Lapp did not receive the assessment. There is thus no final order in this
case to reopen. Accordingly, we deny Lapp's request to reopen as moot and remand this matter to
the Chief Administrative Law Judge for further proceedings as appropriate, pursuant to the Mine
Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. See Lehigh Cement Co., 28
FMSHRC 440, 441(July2006). Because Lapp's request indicates it wishes to contest both
citations and the order, its request can serve as the operator's notice of contest of all three
penalties. Consequently, and 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.

31 FMSHRC 573

Distribution:
Clayton Lapp, Co-Owner
Lapp&Sons
P.O. Box 30076
Central, AK 99730
W. Christian Schumanii, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 574

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

June 1, 2009
SECRETARY OF LABOR,
MINE SAFETY AND·HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2009-835
A.C. No. 46-09029-167319

v.
MINGO LOGAN COAL COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On February 11, 2009, the Commission received a motion by
counsel to reopen a penalty assessment issued to Mingo Logan Coal Company ("Mingo Logan")
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On October 29, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000167319 to Mingo Logan, proposing penalties for
60 citations that had been issued to the operator for alleged violations at its Mountaineer II mine.
According to the affidavit from that mine' s safety manager included with the motion, on
November 12, 2008, he had sent MSHA a contest form indicating Mingo Logan's desire to
contest 16 of the proposed penalties. Attached to the affidavit is a copy of the contest form with

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), the Commission has delegated the power to rule on this reopening request to a
three-member panel.
31 FMSHRC 575

certain boxes checked and a handwritten note allegedly indicating when the form was mailed.
The affidavit further states that on the following day Mingo Logan sent MSHA a check for the
uncontested penalties. Nevertheless, on January 29, 2009, Mingo Logan received a delinquency
notice from MSHA regarding the penalties on the assessment form that Mingo Logan claimed it
had contested.
The Secretary states that she does not oppose the reopening of the assessment, but notes
that there is no record of MSHA having received the contest form.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remeciy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Mingo Logan's motion and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

31 FMSHRC 576

Distribution:
Donna C. Kelly, Esq.
Dinsmore & Shohl, LLP
P.O. Box 11887
900 Lee Street, Suite 600
Charleston, WV 25339
W. Christian Schwnann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 577

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

June 2, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-512-M
A.C. No. 04-00034-168884

v.
LEHIGH SOUTHWEST CEMENT
COMPANY

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On February 17, 2009, the Commission received a request to
reopen a penalty assessment issued to Lehigh Southwest Cement Company ("Lehigh Southwest")
that may have become a final order of the Commission pursuant to section 105(a) of the Mine
Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). fu evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), the Commission has delegated the power to rule on this reopening request to a
three-member panel.
31 FMSHRC 578

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l{b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
The record indicates that the operator sent the contest form to the St. Louis, MO address
for penalty payments to the Department of Labor's Mine Safety and Health Administration
("MSHA"), instead of to MSHA's Arlington, VA address for notices of contests. The record
also indicates that the contest form had been forwarded to and received by the proper MSHA
office four days after the 30-day deadline. The Secretary states that she does not oppose the
reopening of the assessment.
Having reviewed Lehigh Southwest's request and the Secretary's response, in the interests
of justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, cQnsistent 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. In the future, Lehigh
Southwest should take care that it submits any contest form to the address MSHA has specified on
the form.

31 FMSHRC 579

Distribution:
Timothy King
Safety Coordinator
Lehigh Southwest Cement Company
15390 Wonderland Blvd.
Redding, CA 96003
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 580

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

June 10, 2009
SECRETARY OF LABOR,
MINE SAFETY AND- HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2009-381-M
A.C. No. 33-04213-171304

v.
OXFORD MINING CO., LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On March 19, 2009, the Commission received from Oxford
Mining Co., LLC ("Oxford") a request to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake; inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 581

Oxford's general counsel states that Oxford timely mailed its contest along with its
payment for uncontested penalties to MSHA's office in St. Louis, rather than to the Civil Penalty
Compliance Office in Arlington, Virginia. The Secretary states that she does not oppose the
reopening of the proposed penalty assessment.
Having reviewed Oxford's request and the Secretary's response, in the interests of justice,
we hereby reoperi this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 582

Distribution:
Michael B. Gardner, Esq.
Oxford Mining Co., LLC.
544 Chestnut St.
P.0.Box427
Coshocton, OH 43812
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC583

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

June 10, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. SE 2009-362-M
A.C. No. 31-01518-171602

UNIMIN CORPORATION

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On March 26, 2009, the Commission received from Unimin
Corporation ("Unimin'') a request to reopen a penalty assessment that had become a final order
of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) C'JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 584

Unimin states that it sent a letter to MSHA requesting a conference on one of the citations
underlying the proposed assessment, and MSHA did not respond. According to Unimin, this
caused it to miss "the next step" in contesting this citation. The Secretary states that she does not
oppose the reopening of the proposed penalty assessment.
Having reviewed Unimin's request and the Secretary's response, in the interests of
justice, we remand this matter to the Chief Administrative Law Judge for a determination of
whether good cause exists for Unimin's failure to timely contest the penalty and whether relief
from the final order should be granted. If it is determined that relief from the final order is
appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R.§ 2700.

Michael

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 585

Distribution:
Juanita Powell
Unimin Corp.
48 West Boxcawen St.
P.O. Box 768
Winchester, VA 22604
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC586

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

June 10, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 2009-175
A.C. No. 44-02277-170766

v.
DICKENSON-RUSSELL COAL COMPANY

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On February 13, 2009, the Commission received from
Dickenson-Russell Coal Company ("Dickenson-Russell") a motion from counsel seeking to
reopen a penalty assessment that had become a final order of the Commission pursuant to section
105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
However, we have held that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

31 FMSHRC 587

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
The record indicates that operator inadvertently sent the form contesting five of the
proposed penalties, as well as a check for the six uncontested penalties, one day late. The
Secretary states that she does not oppose the reopening of the proposed penalty assessment.
Having reviewed Dickenson-Russell's request and the Secretary's response, in the
interests of justice, we :hereby reopen this matter and remand it to the Chief Administrative Law
Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural Rules,
29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for
assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 588

Distribution:
Wade W. Massie, Esq.
Penn, Stuart & Eskridge
P.O. Box 2288
Abingdon, VA 24212
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 589

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

June 10, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2009-43
A.C. No. 46-08429-152382

v.

LONG BRANCH ENERGY

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On October 2, 2008, the Commission received from Long
Branch Energy ("Long Branch") a motion by counsel to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
Long Branch states that it did not send the contest form for the proposed penalty
assessment in question to the Mine Safety and Health Administration but instead inadvertently
paid the penalties for the two citations covered by the proposed penalty assessment. Long
Branch also states that the two citations are for alleged violations that later were the subject of
failure to abate orders which the operator timely contested pursuant to section 105(d) of the Mine
Act. See 30 U.S.C. §§ 814(b), 815(d). The Secretary states that she does not oppose the
reopening of the proposed penalty assessment.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
31 FMSHRC 590

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

Robert F. Cohen, Jr., Commissioner

31FMSHRC591

Distribution:
Michael T. Cimino, Esq.
Jackson Kelly, PLC
1600 Laidley Tower
P.O. Box553
Charleston, WV 25322
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 592

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

June 15, 2009
SECRETARY OF LABOR,
MINE SAFETY AND"HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2009-705
A.C. No. 15-07082-128255

v.
FREEDOM ENERGY MINING
COMPANY

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On February 12, 2009, the Commission received from
Freedom Energy Mining Company ("Freedom Energy") a motion from counsel to reopen a
penalty assessment that had become a final order of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
The proposed penalty assessment at issue, No. 000128255, was issued to Freedom Energy
by the Department of Labor's Mine Safety and Health Administration ("MSHA") on October 4,
2007. Freedom Energy states that it intended to file a contest as demonstrated by the cover letter
which its counsel drafted at that time 1 but that through inadvertence of counsel, the contest was
not filed with MSHA.

1

Freedom Energy purports to have attached a copy of the cover letter to its motion to
reopen as an exhibit. However, the exhibit was not attached to the copy of the motion which the
Commission received.

31 FMSHRC 593

In response, the Secretary states that the assessment at issue cannot be reopened because
it became a final order of the Commission on November 14, 2007, which is more than one year
before Freedom Energy filed its reopening request.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). Jn evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
We have been presented with Freedom Energy's failure to timely contest the proposed
penalty assessment. Under Rule 60(b), any motion for relief must be made within a reasonable
time, and in the case of mistake, inadvertence, or excusable neglect, not more than one year after
the order was entered. Fed. R. Civ. P. 60(b). Because Freedom Energy did not seek relief from
the final order until more than one year had passed, its request is untimely. JS Sand & Gravel,
Inc., 26 FMSHRC 795, 796 (Oct. 2004). Accordingly, Freedom Energy's request is denied.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 594

Distribution:
Carol Ann Marunich, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 595

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

June 15, 2009

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-505-M
A.C. No. 04-04075-171970

v.
LEHIGH SOUTHWEST CEMENT
COMPANY

BEFORE: Duffy, Chairnfan; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On February 10, 2009, the Commission received a request to
reopen a penalty assessment issued to Lehigh Southwest Cement Company ("Lehigh Southwest")
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On December 18, 2008, the Department of Labor's Mine Safety and Health
Administration ("MSHA'') issued proposed penalty Assessment No. 000171970 to Lehigh
Southwest. The operator's request to reopen does not address any attempt on its part to file a
contest with MSHA or to pay any of the 22 penalties proposed by the assessment. Rather,
Lehigh Southwest filed with the Commission a contest form marked to indicate its intent to
contest eight of the penalties, and a letter it previously filed with MSHA contesting, shortly after
their issuance, the eight citations associated with those penalties, and a ninth citation for which a
penalty is not included in Assessment No. 000171970.

31FMSHRC596

In response, the Secretary states that the request to reopen is deficient in that it includes
no explanation for why the contest form was not timely filed, and thus the request should be
denied.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105{a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 597

Because Lehigh Southwest's request for relief does not explain the company's failure to
contest the proposed assessment on a timely basis, and is not based on any of the grounds for
relief set forth in Rule 60(b ), we hereby deny the request for relief without prejudice. See FKZ
Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007). The words ''without prejudice" mean that Lehigh
Southwest may submit another request to reopen the assessment.'
t

~

Michael~~

Robert F. Cohen, Jr., Commissioner

1

If Lehigh Southwest submits another request to reopen, it must establish good cause for
not contesting the eight citations and proposed penalties within 30 days from the date it received
the assessment from MSHA, and state that it has paid the other 14 penalties. Under Rule 60(b)
of the Federal Rules of Civil Procedure, the existence of"good cause" maybe shown by a
number of different factors including mistake, inadvertence, surprise, or excusable neglect on the
part of the party seeking relief, or the discovery of new evidence, or fraud, misrepresentation, or
other misconduct by the adverse party. Lehigh Southwest should include a full description of the
facts supporting its claim of"good cause," including how the mistake or other problem prevented
it from responding within the time limits provided in the Mine Act, as part of its request to
reopen. Lehigh Southwest should also submit copies of supporting documents with its request to
reopen.

31 FMSHRC 598

Distribution:
Heather Osburn
Safety Consultant
Lehigh Southwest Cement
24001 Stevens Creek Blvd.
Cupertino, CA 95014
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC599

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

June 15, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2009-934
A.C. No. 46-09210-173699

v.
WEST VIRGINIA MINE POWER, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On March 6, 2009, the Commission received from West
Virginia Mine Power, fuc. ("Mine Power") a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31 FMSHRC 600

MSHA sent the proposed assessment on January 8, 2009, and claims that it was delivered
to the operator on January 13, 2009. Mine Power states that its safety consultant was absent from
the mine on a trip and did not know the precise date that the proposed assessment form was
delivered because the document had not been date-stamped upon receipt. It further states that on
February 12, 2009, the safety consultant forwarded the form to its counsel for filing, and that the
contest was filed the next day, which was one day late. The Secretary states that she does not
oppose the reopening of the proposed penalty assessment.
Having reviewed Mine Power's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29
C.F.R.§ 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for
assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

ss10ner

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 601

Distribution:
Justin A. Rubenstein, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 602

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

June 16, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK 2009-44-M
A.C. No. 43-00692-156127

v.
DENNIS DEMERS TRUCKING

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On December 1, 2008, the Commission received from
Dennis Demers Trucking ("Demers") a letter seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
However, we have held that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) (".!WR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700. l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings _on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31 FMSHRC 603

On July 8, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Penalty Assessment No. 000156127 to Demers. The record
indicates that Federal Express was unable to deliver the proposed penalty assessment on July 22,
2008, to the operator's location of record. According to Demers, the reason for the non-delivery
was that the owner's daughter passed away unexpectedly the day before, on July 21, and no
employee was at the office location. The Secretary states that she does not oppose the reopening
of the proposed penalty assessment.

Here, Demers never received notification of the proposed penalty assessment as required
under Commission Procedural Rule 25 .1 Under the circumstances of this case, we conclude that
Demers was not notified of the penalty assessment, within the meaning of the Commission's
Procedural Rules, and the proposed penalty assessment has not become a final order of the
Commission. We also conclude that Demers received a copy of the proposed penalty assessment
when it received the Secretary's letter of December 8, 2008, addressed to the Commission, with a
copy of the proposed assessment attached.

1

Commission Procedural Rule 25 states that the "Secretary, by certified mail, shall
notify the operator or any other person against whom a penalty is proposed of the violation
alleged, the amount of the proposed penalty assessment, and that such person shall have 30 days
to notify the Secretary that he wishes to contest the proposed penalty assessment." 29 C.F.R.
§ 2700.25.

31 FMSHRC 604

Having reviewed Demers' request and the Secretary's response, in the interests of justice,
we hereby remand this matter to the Chief Administrative Law Judge for further proceedings
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. If the
operator has not already done so, it should submit the proposed assessment form to MSHA,
indicating which penalties it wishes to contest, within 30 days of the date of this order. See 29
C.F.R. § 2700.26.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 605

Distribution:
Dennis Demers
Dennis Demers Trucking
892 Porter Brook Rd.
East Hardwick, VT 05836
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31 FMSHRC 606

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

June 17, 2009
SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2009-271-M
A.C. No. 33-01695-165924

v.
MORAINE MATERIALS COMPANY

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On February 3, 2009, the Commission received from
Moraine Materials Company ("Moraine") a motion by counsel to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
However, we have held that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
31 FMSHRC 607

Moraine states that the penalty assessment is for a citation that it timely contested
pursuant to section 105(d) of the Mine Act. 30 U.S.C. § 815(d). Moraine explains that it failed
to later contest the penalty assessment because its counsel mistook the assessment for a duplicate
of another assessment in a related case, an assessment which counsel did contest. The Secretary
states that she does not oppose the reopening of the proposed penalty assessment.
Having reviewed Moraine's request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 608

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

31 FMSHRC 609

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

June 24, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2009-347-M
A.C. No. 34-00569-170725

v.
YOUNGMAN ROCK, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On March 26, 2009, the Commission received from
Youngman Rock, Inc. ("Youngman") a request to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the CommissioIL 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700. l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31FMSHRC610

Youngman states that it had never previously received citations from MSHA and that it
attempted to contact an MSHA official on several occasions, either by telephone or fax, to
indicate that it wanted to contest the citations and penalties. The Secretary states that she does not
oppose the reopening of the proposed penalty assessment.
Having reviewed Youngman' s request and the Secretary's response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly~ consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R.§ 2700.28.

Robert F. Cohen, Jr., Commissioner

31FMSHRC611

Distribution:
George Paul Glover, President
Youngman Rock, Inc.
P.0.Box49
Muskogee, OK 74402
W. Christian Schumarin, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSJIA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC612

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

June 24, 2009
SECRETARY OF LABOR,
MINE SAFETY AND·HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2009-1038
A.C. No. 46-08122-170790

v.
Docket No. WEVA 2009-1039
A.C. No. 46-08904-170801
KWV OPERATIONS, LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). 1 On March 25, 2009, the Commission received from KWV
Operations, LLC ("KWV") motions by counsel seeking to reopen penalty assessments that had
become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the

1

Pursuant to Commission Procedural Rule 12, 29 C.F.R. § 2700.12, on our own motion,
we hereby consolidate Docket Nos. WEVA 2009-1038 and WEVA 2009-1039, as both dockets
involve similar procedural issues and similar factual backgrounds.
31 FMSHRC 613

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
KWV states that its vice president received the assessments and marked the citations that
he intended to contest and then forwarded them to KWV' s coiporate office. KWV further asserts
that through "inadvertence or mistake" the assessments were not timely returned to MSHA. The
Secretary states that she does not oppose the reopening of the proposed penalty assessment.

31FMSHRC614

Having reviewed KWV's motions and the Secretary's response, we conclude that KWV
has not provided a sufficiently detailed explanation for its failure to timely contest the proposed
penalty assessments. KWV' s conclusory statement that its corporate office failed to timely file
the contests because of "mistake or inadvertence" does not provide the Commission with an
adequate basis to justify reopening. Accordingly, we deny the requests for relief without
prejudice. 2 See Eastern Associated Coal, LLC, 30 FMSHRC 392, 394 (May 2008); James
Hamilton Constr., 29 FMSHRC 569, 570 (July 2007).

-

Robert F. Cohen, Jr., Commissioner

2

IfKWV submits another request to reopen, it should include a full description of facts
supporting its claim of "mistake" or "inadvertence," including how the mistake or other problems
prevented KWV from responding within the time limits provided in the Mine Act, 30 U.S.C.
§ 815(a), as part ofits request to reopen.
31FMSHRC615

Distribution:
Billy R. Shelton, Esq.
Jones, Walters, Turner & Shelton PLLC
151 N. Eagle Creek Drive, Suite 310
Lexington, KY 40509
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

31FMSHRC616

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

June 29, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2009-232
A.C. No. 42-01566-161872

v.
CANYON FUEL COMPANY, LLC

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

§ 801 et seq. (2006) ("Mine Act"). On December 2, 2008, the Commission received a motion by
counsel to reopen a penalty assessment issued to Canyon Fuel Company LLC ("Canyon Fuel")
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

31FMSHRC617

The record indicates that the safety manager for the operator intended to contest one
penalty contained on a proposed assessment form and instructed his administrative assistant to
pay all the other penalties on the assessment form but that one penalty. According to the
operator, the administrative assistant, who was new at the time, inadvertently failed to mail in the
assessment form contesting the one penalty. The Secretary states that she does not oppose the
reopening of the assessment.
Having reviewed Canyon Fuel's request and the Secretary's response, in the interests of
justice, we hereby reoi}en this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F .R. § 2700.28

Robert F. Cohen, Jr., Commissioner

31 FMSHRC 618

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

31FMSHRC619

ADMINISTRATIVE LAW JUDGE DECISIONS

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

May 12, 2009
TRI-STAR MINING, INC.,
Contestant

CONTEST PROCEEDINGS
Docket No. YORK 2007-76-R
Citation No. 6604148; 07/09/2007

V.

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

Docket No. YORK 2007-77-R
Citation No. 6604149; 07/09/2007
Docket No. YORK 2007-78-R
Citation No. 6604150; 07/09/2007
Docket No. YORK 2007-79-R
Citation No. 6604621; 07/09/2007
Docket No. YORK 2007-8Q-R
Order No. 6604622; 07/09/2007
Docket No. YORK2007-81-R
Order No. 7146873; 07/09/2007

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

CNIL PENALTY PROCEEDINGS
Docket No. YORK 2007-101
A.C. No. 18-00713-125178
Docket No. YORK 2008-52
A.C. No. 18-00713-131071

TRI-STAR MINING, INC.,
Respondent

Docket No. YORK 2008-108
A.C. No. 18-00713-138815
Job#3

DECISION APPROVING SETTLEMENT
Before: Judge Feldman

The captioned civil penalty and contest cases are before me based upon Petitions for
Assessment of Civil Penalties filed pursuant to section 105(d) of the Federal Mine Safety and
Health Act of 1977, as amended, 30 U.S.C. § 815(d) (''Mine Act"). These proceedings concern
six alleged violations of the Secretary's mandatory safety standards of Part 77, 30 C.F.R. Part 77,
governing surface coal mines. The citations and orders citing the subject violations were issued
as a result of a Mine Safety and Health Administration (MSHA) investigation of an April I 7,
31FMSHRC619A

2007, highwall accident at Tri-Staring Mining, Inc.'s (''Tri-Star's") surface facility. As a result
of the accident, Dale Jones and Michael Wilt were fatally injured when they were exposed to a
highwall collapse that occurred while they were operating equipment at the bottom of the pit.
The citations and orders in issue allege violations of30 C.F.R § 77.1000 that requires the
mine operator to establish a plan to insure highwall bank stability; 30 C.F.R. § 77.1006(a) that
prohibits men from working near dangerous highwalls; 30 C.F.R. § 77.l 713(a) that requires
on-shift inspections for hazardous conditions; 30 C.F. R. § 77.1713(c) that requires the mine
operator to maintain ari inspection book noting the remedial action taken with respect to
hazardous conditions noted during on-shift inspections; 30 C.F. R. § 77 .1003 the requires
the width and height of benches to be determined by the type of equipment in use; and
30 C.F. R. § 77.1004(a) that requires highwalls to be examined for hazards after every rain, ''
freeze or thaw.
These proceedings were scheduled for hearing on July 21, 2009. On May 6, 2009, the
Secretary filed a motion to approve a settlement agreement and to dismiss these proceedings.
A reduction in civil penalty from $185,324.00 to $105,324 is proposed. The significant
reduction in penalty apparently is based on the vagaries of litigation with respect to the extent
that dangerous highwall conditions were foreseeable. In this regard, the parties have agreed that
Order No. 6604622 concerning exposing miners to dangerous highwall conditions, and
Order No. 6604148 concerning Tri-Star's failure to record hazardous highwall conditions
in an on-shift examination book, shall be modified to 104(a) citations reflecting that the
cited violations were not attributable to Tri-Star's unwarrantable failure.
I have considered the representations and documentation submitted in these matters and
I conclude that the proffered settlement is appropriate under the criteria set forth in Section 11 O(i)
of the Act, 30 U.S.C. § 820(i). WHEREFORE, the motion for approval of settlement IS
GRANTED, and IT IS ORDERED that the respondent pay a total civil penalty of $105,324.00
in satisfaction of the six cited violations. Pursuant to the parties agreement, the $105,324.00 civil
penalty will be paid in twelve (12) monthly installments. The first monthly payment of
$8,777.00 is due on July 1, 2009, and shall be followed by monthly payments of $8,777.00 on the
first of each subsequent month, until the full amount of $105,324.00 has been paid and received.

Payment shall be sent to the U.S. Department of Labor, Mine Safety and Health
Administration, P.O. Box 790390, St. Louis, Missouri, 63179. Each check shall be made
payable to the U.S. Department of Labor/MSHA. Failure to make any installment payment
within 30 days of the due date will result in the remaining balance of the $105,324.00 civil
penalty becoming due and payable immediately. Upon timely receipt of the entire $105,324.00
civil penalty, the captioned contest and civil penalty matters ARE DISMISSED.

Jerold Feldman
Administrative Law Judge
31 FMSHRC 620

Distribution: (Regular and Certified Mail)
Ronald Gurka, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Boulevard,
22nd Floor, West, Arlington, VA 22209-2247
Adele L. Abrams, Esq., Law Office of Adele L. Abrams, P.C., 4740 Corridor Place, Suite D,
Beltsville, MD 20705
/rps

31 FMSHRC 621

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

May 19, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 2008-537
A.C. No. 15-17651-135834-02

v.
ROCK.HOUSE ENERGY MINING
COMPANY,
Respondent

Mine No. I

DECISION
Appearances: Brian W. Dougherty, Esq., Vicki L. Mullins, Esq., U.S. Department of Labor,
Nashville, Tennessee, on behalf of the Petitioner
Carol Ann Marunich, Esq., Dinsmore & Shohl, LLP, Morgantown, West Virginia,
on behalf of the Respondent
Before:

Judge Barbour

This case is before me on a Petition for the Assessment of Civil Penalty filed by the
Secretary of Labor ("Secretary'') on behalf of her Mine Safety and Health Administration
("MSHA") against Rockhouse Energy Mining Co., ("Rockhouse"). The matter arises under
sections 105(a) and l IO(a) of the Federal Mine Safety and Health Act of 1977 ("the Mine Act").
30 U.S.C. §§ 815(a), 820(a). In the petition, the Secretary alleges Rockhouse, in three instances,
violated safety standards for underground coal mines, standards that are set forth in Part 75, Title
30, Code of Federal Regulations. 30 C.F.R., Part 75. She further alleges each of the violations
was a significant and substantial contribution to a mine safety hazard ("'S&S"). She proposes a
total assessment of $5,160 for the alleged violations.
After the Secretary's petition was filed, Rockhouse answered, asserting it did not violate
the standards, or, if it did, that the violations were not S&S. Rockhouse also took issue with the
gravity and negligence findings MSHA's inspector made with regard to each alleged violation.
After the matter was assigned to me, I scheduled it to be heard in Pikeville, Kentucky.
Due to difficulties in finding a hearing site in Pikeville, the location was changed to Hazard,

31 FMSHRC 622

Kentucky. 1 At the hearing the parties presented testimonial and documentary evidence regarding
the alleged violations. Also at the hearing, but prior to going on the record, I asked counsels if
they objected to my issuing a bench decision with regard to each of the alleged violations.
Counsels stated they did not. Rather than submitting post-hearing briefs, counsels were given,
and accepted, the opportunity to summarize their parties' positions at the close of evidence. Tr.
11-12.
My findings follow. Editorial changes have been made for clarity's sake.

CITATION NO.
66576439

DATE
12/13/07

30CFR§
75.202(A)

The citation states in part:
Additional roof support is needed in the 010-0
MMU left return [N]o. 1 entry starting at x-cut 4 of the No.
7 belt and extending inby to x-cut 11, a distance of approximately 560 feet. A roof fall has occurred in the [N]o.
12 x-cut and the entry outby. This show[ s] signs of adverse conditions in that there are cutters along each rib
line, large pieces of draw rock are hanging ready to fall,
and visible cracks [are] running with the entry.
This airway is required to be traveled by the
weekly mine examiner once per week.
Gov't. Exh. 1.
In pertinent part, section 75.202(a) requires "[t]he roof ... of areas where persons work
or travel shall be supported or otherwise controlled to protect persons from hazards relating to
falls of the roof"
Regarding Citation No. 66576439, I stated:
I find the violation existed as [set forth] in
the citation and as testified to by [MSHA] Inspector
David Stepp. In making this finding[,] I [do not] discredit
the testimony of ... [Rockhouse's weekly examiner,
Mike] Muncy[;] I simply believe Mr. Stepp's testimony
reflects a more complete and ... full [recollection] of
1

Hazard was not as convenient as Pikeville for the witnesses and counsels, and I thank
them for their willingness to accommodate me.
31 FMSHRC 623

the conditions that existed [in the No. 1 entry] on
December 13. I find that Inspector Stepp's description of
the draw rock that existed in the cited 560-foot area of the
... [No. 1] entry, ... [and in particular] the channeling that
existed on both sides of the entry, ranging from hairline cracks
to ... [cracks] up to two to three inches wide, to be indicative
of an entry that was taking weight and that was showing marked
signs of progressive deterioration. The cited roof required
either additional support, or needed to be removed from access
to miners, something Rockhouse did [later] by dangering it off.
I further find the condition was ... [S&S]. The hanging
draw rock, as Mr. Stepp testified, posed a visually obvious
danger to Mr. Muncy as he traveled the area [during the weekly
examinations he conducted]. And the channeling and cracks
indicated[,] as mining continued[,] rock was reasonably likely to fall.
Indeed, Mr. Stepp's believable testimony that he noted fallen
pieces of rQck in the cited area of the entry ... is persuasive
to me that the progression of the deterioration had reached
the point where falling rock could be expected.
Mr. Muncy traveled the area weekly. Had the citation
not been issued, it is reasonably likely he would [have]
continued ... [making the examinations and] ... he would
have been a moving target as he rode through the cited area.
I recognize [a] rock or roof fall would have had to coincide
with his passage ... to injure him, but I cannot base a
[non-S&S] conclusion on the fact he would have had... to
... (be] at the wrong place at the wrong time to ... [be] struck.
It is enough that the roof was reasonably likely to fall and
that Mr. Muncy was required regularly to travel where ...
falls were reasonably likely to occur. Had Mr. Muncy been
hit, he most likely would have suffered a serious injury
or worse. [T]hus, I find the violation was both S&S
and serious.
[However,] I do not believe the Secretary has
established aiiything more than moderate negligence on
Rockhouse's part. The roofs condition was progressive.
While I infer ... [the condition of the roof] constituted a
violation on December [6,when the entry was last examined]
.... I cannot find, based on the evidence, [the roofs condition
was so serious ... on December 6 ... [it then] constitut[ed] an

31 FMSHRC 624

S&S violation. [T]herefore, I cannot conclude the roofs
condition was so glaringly obvious [on December 6] that
the failure ofRockhouse to [additionally] support ... [the
roof] or to danger it off at that time constituted high
negligence. [In addition,] ... the Secretary has not [otherwise]
shown between December [6] and December [13] that
Rockhouse['s] management [should have] been aware of
the condition of the roof as it existed on December [ 13].
Tr. 330-333.

CITATION NO.
66576443

DATE
12/13/07

30CFR§
75.400

The citation states:
Accumulations of loose coal have been allowed
to accumulate in the roadway of the 010-0 MMU right
return airway starting at ss# 30526 and extending inby
4 x-cuts to the section feeder line. This loose coal
ranged in depth from l to 6 inches and was deposited
along the entire length of this area.
[The] area is the immediate return for the
right side of the 010-0 MMU that produces coal 2 shifts
per day and has a dead work crew that works 3rd shift.
Gov't Exh. 6.

In pertinent part, section 75 .400 requires "[c]oal dust, ... loose coal, and other
combustible materials ... [to be] cleaned up and not be permitted to accumulate in active
workings."
Regarding Citation No. 66576443, I stated:
[The] Secretary has alleged a violation of section 74.400
[and] Roc.khouse has conceded the violation. [See Tr. 315.]
[Regarding the Secretary's S&S allegation,] Rockhouse's
counsel has established there were no ignition sources present on
December [ 13,] ... when the violation was cited. There were no
equipment permissibility violations. There were no face ignitions.
There was no methane. Does the record establish ... an

31 FMSHRC 625

injury-causing event could have occurred? Yes, it does. But the
Secretary's evidence is simply too speculative to conclude one
was reasonably likely. Basically[,] the Secretary has
established ... [only] that ... accumulations [of combustible
materials] were present and that potential ignition sources
might come into existence in the future [- a]nd I emphasize
the word might- but i]f this were enough to establish an
S&S violation, then virtually every accumulation [violation]
... would be S&S, something ... the Act does not contemplate.
However, the fact an ignition source could occur ...
establishes ... the violation was serious. Clearly, had the
accumulations ignited - and I'm fully persuaded by the testimony
the Secretary ... presented ... [including] Mr. Stepp's testimony
- that the loose coal could have ignited, and that the finely ground
coal dust [could have] propagated a methane explosion. If these
things had happened, then all miners on the section would have
been subject to serious injury ... [or] death. [T]his is enough
to make the violation serious.

[I am] further persuaded ... the extent of the accumulations
was such ... they should have been observed and corrected during
more than one preshift examination, and certainly during at least
one on-shift examination. Inspector Stepp found Rockhouse was
moderately negligent, which means ... [the company] did not
meet the standard of care required ... and I agree.
Tr. 333-335.

CITATION NO.
66576447

DATE
12113107

JOCFR§
75.1403-6(b)(3)

The citation states in part:
None of the 4 sanding devices installed on
the ... diesel mantrip would work when tested. [The]
mantrip was parked [underground] at the end of the
track near the 010-0 MMU when inspected with no
sand available on the [mantrip.] [The] mine has many
hairpin curves and steep hills that must be maneuvered
to exit the mine.
Gov't Exh. 10.

31 FMSHRC 626

Section 75.1403 permits an inspector to issue safeguards ''to minimize hazards with
respect to transportation of men and materials." Sections 74-1403-2 through 75.1403-11, of
which 75.1403-6(b)(3) is a part, set out the criteria by which MSHA inspectors are guided in
requiring safeguards on a mine-to-mine basis. MSHA issued a safeguard to Rockhouse on
February 27, 1996, that required mantrips at the mine to be equipped with "properly installed and
well-maintained sanding devices." See Citation No. 6656447. The subject citation alleges
Rockhouse did not comply with the safeguard notice's requirement.
Prior to the Secretary's presenting evidence with regard to the alleged violation, counsel
for Rockhouse moved for partial summary decision on the S&S issue. Counsel argued an S&S
finding could not be made for a safeguard violation, citing the ruling of Commission
Administrative Law Judge Michael Zielinski in Big Ridge Incorporated, 30 FMSHRC 1172
(November 2008). 2 The Secretary's counsel opposed the motion based on the same arguments
the Secretary made to Judge Zielinski in Big Ridge and to Commission Administrative Law
Judge Jerold Feldman in Wolf Run Mining Co., 30 FMSHRC 1189 (December 2008) (review
granted March 31, 2009). In Wolf Run Judge Feldman held, contrary to Judge Zielinski, that an
S&S finding could be made for a safeguard violation. Because decisions in Judge Zielinski's
cases are pending, his holdings in Big Ridge and Cumberland are not yet final for review
purposes. However, Judge Feldman's ruling became ripe for review after Judge Feldman issued
a decision in Wolf Run (February 26, 2009). Subsequently, Wolf Run appealed, the Commission
granted review, and the issue of whether a valid S&S finding may be made by an inspector when
he or she cites a safeguard is presently before the Commission.
After counsels stated their positions, I explained that I agreed with Judge Zielinski in all
respects and that I would grant counsel for Rockhouse's motion based on Judge Zielinski's
reasoning. Tr. 240-241. Nonetheless, counsels and I agreed evidence should be presented on the
S&S issue so that if my ruling were reversed, an S&S finding could be made on the record. Tr.
241.
Regarding Citation No. 66576447, I stated:
I am persuaded by Inspector Stepp's testimony a violation
existed. The safeguard [criteria] cited[, section 75.1403-6(b)(3),
requires] sanding devices to be operative at all times when being
used at the mine.
[T]o me this clearly means [the devices on the mantrip
must be operative when the mantrip is] capable of being used as
well as [when] the equipment actually is in use.

2

Judge Zielinski also made an identical ruling in Cumberland Coal Co., 30 FMSRHC
1180 (December 2008).
31 FMSHRC 627

The [subject] mantrip was capable of being used. It was
parked at the end of the track, true. But it was not dangered off
or otherwise placed out of service. And as Inspector Stepp rightly
noted, it only required a flick of ... [a] switch to start it up and use it.
With ... [regard to the inspector's S&S finding,] even ifl
had not concluded the S&S finding ha[s] to be vacated because ...
[an S&S finding] cannot be made with regard to [a] safeguard
[violation], I would ... [invalidate] the finding in any event. I am
persuaded by Mr. Adams' testimony an accident due to the mantrip's
non-functioning [sanders] was not reasonably likely. First, I believe
Mr. Adams' testimony established the mantrip was not reasonably
likely to be used before the condition of the sanders was likely to be
found and corrected. In this regard I note that other mantrips were
available and were more likely to be used [than the cited mantrip.]
And I also note that had the [cited] mantrip been used in the regular
course of ... [mining], its operator would have been specifically asked
about its sanders. Moreover, even if an emergency arose, and the
emergency required use of the cited mantrip, Mr. Adams persuaded
me that [the] non-functioning sanders would [have been unlikely]
... to cause an accident.
This is unlike a previous citation involving non-working
sanders at this mine [(See Rockhouse Energy Mining Co.,
30 FMSHRC 1125, 1154-56 (December 2008),] because there
[is] no testimony in [the] situation under consideration today that
the tracks were wet. [A]s Mr. Stepp explained, the mine is dry
during the winter[, and t]he previous violation was cited during
the ... early days of September when, I'll take judicial notice, it
is [still] hot in Pike County.

*

*

*

Moreover, unlike the previous citation, in this particular
instance Rockhouse persuasively offered testimony from an
experienced miner who had ridden numerous times on a rail
mounted mantrip and who had never ... found the need to use
the [sanders] on his rides.
Because I conclude the violation was unlikely to result in
an accident, I find it was only moderately serious . . . . I further
find Rockhouse' s negligence was moderate. As Inspector Stepp
initially concluded, the most likely inference from me to draw is

31 FMSHRC 628

that the sanders were brought into the mine in ... non-working
condition. But given the fact Rockhouse knew the mantrip was
unlikely to be used prior to it being examined, and ... [that when
it was] examined, the condition was likely to be found and corrected,
the existence of the condition [does] not show a high lack of care.
Tr. 335-338.
CIVIL PENALTY ASSESSMENTS

Having found the alleged violations exist, I must assess civil penalties taking into account
the civil penalty criteria set forth in section l lO(i) of the Act. 30 U.S.C. § 820(i). With regard to
the company's history of prior violations, the Secretary offered a computer printout showing
those violations cited from December 15, 2007, through December 14, 2008, for which civil
penalties had been paid. Gov't Exh. 12, Tr. 292-295. The printout indicates a total of 626 paid
violations. This is a large history. In addition, the parties stipulated that Rockhouse is a large
operator and that the proposed penalties would not affect Rockhouse's ability to continue in
business. Tr. 292. Moreover, each of the citations indicates the violations were abated within a
time MSHA found to be adequate. From this, I infer the company exhibited good faith in its
abatement efforts.
CITATION NO.
66576439

DATE
12/13/07

30CFR§

75.202(a)

PROPOSED ASSESSMENT
$2106

I stated at the hearing:
The Secretary has petitioned for the assessment of a civil
penalty of $2106 for the violation. Given the serious nature of the
violation, the moderate negligence ofRockhouse and considering
all of the other civil penalty criteria, I find the proposed penalty to be
appropriate.
Tr. 333.
CITATION NO.
66576443

DATE
12/13/07

30CFR§

75.400

PROPOSED ASSESSMENT
$2106

I stated at the hearing:
The Secretary has petitioned for the assessment of a civil
penalty of $2106 for the violation. Given the serious nature of
the violation ... [and] taking into consideration [Rockhouse's failure]
to meet ... [its] standard of care and the other civil penalty criteria,
31 FMSHRC 629

I conclude a penalty of $1,500 is appropriate.
Tr. 335.

CITATION NO.
66576447

DATE
12113107

30 CFR §
PROPOSED ASSESSMENT
75.1403-6(b)(3) $1304

I stated at the hearing:
_ The Secretary has petitioned for [the assessment of a civil
penalty] of $1304. Given the moderate seriousness of the
violation[,] ... Rockhouse's moderate negligence, [and taking into
consideration the other civil penalty criteria,] I conclude [a penalty
of $800 is] appropriate.
Tr. 338.

ORDER
Within 40 days of the date of this decision, the Secretary IS ORDERED to modify
Citations No. 66576443 and 66576447 by deleting the S&S findings and by changing line lO(A)
from "reasonably likely" to "unlikely." In addition, Rockhouse IS ORDERED to pay civil
penalties totaling $4,406 in satisfaction of the violations in question. Upon modification of the
citations and payment of the penalties, this proceeding IS DISMISSED.

_v,J~;11,:~
David F. Barbour
Administrative Law Judge
Distribution: (Certified Mail)
Brian W. Dougherty, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456
Carol Ann Marunich, Esq., Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Suite 310,
Morgantown, WV 26501

/ej

31 FMSHRC 630

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

May29,2009
DISCRIMINATION PROCEEDING

VURNUN EDWURD JAXUN,
Complainant

Docket No. WEST 2007-811-DM
RM MD 2006-06

v.
ASARCO, LLC,

San Mission Mine
Mine ID 02-00135

Respondent.

DECISION
Appearances: Vurn!Jil EdWi.rrd Jaxun, 5357 N. Fort Yuma Trail, Tucson, AZ 85750-5930,
Complainant;
Mark Savit, Esq., Hugh C. Thatcher, Esq., Patton Boggs LLP, 1801 California St.,
Suite 4900, Denver, CO 80202, for Respondent.
Chief Administrative Law Judge Robert J. Lesnick

Before:

Introduction
This case is before me on a complaint for discrimination filed by Complainant Vumun
Edwurd Jaxun pursuant to Section 105(c)(3) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. §815(c)(3) (2000) (hereinafter the "Mine Act" or "the Act''). 1 Jaxun alleges that

1

Section I 05(c)(3) states:

Within 90 days of the receipt of a complaint filed under paragraph (2), the Secretary
shall notify, in writing, the miner, applicant for employment, or representative of
miners of his determination whether a violation has occurred. If the Secretary, upon
investigation, determines that the provisions of this subsection have not been
violated, the complainant shall have the right, within 30 days of notice of the
Secretary's determination, to file an action in his own behalfbefore the Commission,
charging discrimination or interference in violation of paragraph (1).
30 U.S.C. § 815(c)(3).

31 FMSHRC 631

Respondent, Asarco Inc., discriminated against him in violation of Section 105(c)(l) of the Act
when the company terminated his employment on February 23, 2006, allegedly for safety
complaints he alleges he made before Asarco terminated him. I held a hearing in Tucson,
Arizona on April 29-30, 2008. The parties submitted post-hearing and reply briefs. For the
reasons stated below, I find that Jaxun engaged in protected activity within the meaning of the
Mine Act; however, I find that Asarco did not discharge him in full or in part on that basis.

Background
This case has a long history. It was originally assigned to Administrative Law Judge
Jacqueline Bulluck who dismissed the proceedings because of Jaxun's refusal to obtain counsel
due to, in the judge's assessment, the lack of clarity in Jaxun's representation of himself Jaxun
appealed to the Commission, and in an August 12, 2007, decision, the Commission, while
recognizing the judge's frustration with the lack of coherence in Jaxun's presentation of his case,
held that the judge did not have authority to dismiss the case based upon Jaxun's refusal to obtain
legal counsel. The Commission granted J axun' s request that the dismissal order be set aside.
As Chief Judge, I reassigned this case to Judge Bulluck. Mr. Jaxun filed motions to
reassign the case, which I denied. For reasons unconnected to those motions, I decided to
reassign the case to myself and held a hearing.
At the hearing, I directed the parties to file post-hearing briefs by July 14, 2008. On May
22, 2008, Jaxun filed a Motion to Reopen the Record, which Asarco opposed on June 3, 2008. I
issued an order on July 9, 2008 denying the motion. Considering Jaxun's prose status and his
filing of a motion, I granted the parties additional time to file briefs until August 8, 2008, with
reply briefs being due by August 22, 2008. Asarco filed its brief on July 14, 2008. Jaxun then
filed a motion for extension of time to file his brief, which I granted, giving Jaxun until August
22, 2008 to file a brief, and extending the time period for the filing of reply briefs until
September 12, 2008. On August 8, 2008, Jaxun filed another request to reopen the record, which
I denied on August 22, 2008. Jaxun filed another request for an extension of time to file a brief,
which I granted, allowing Jaxun to file his brief by September 5, 2008, and extending the time
for reply briefs to be filed to September 26, 2008. Jaxun filed his brief on September 5, 2008,
and he filed a reply brief on September 30, 2008.
Since the filing of the final briefs at the end of September, Jaxun has filed several
pleadings even as late as February 9, 2009, when he moved to strike the use of the word ..muck,"
and April 13, 2009, when he raised an issue of a pre-employment physical examination. The
large amount of post-hearing motions and document submissions delayed the issuance of this
decision.

31 FMSHRC632

Findings of Fact
Asarco' s Mission Complex and the Sluny Spill
Asarco Mission Complex in Sahuarita, Arizona produces copper and concentrate
containing copper and silver. Two specific areas of the mine are at issue in this case: the pit and
the mill. Copper is produced at the mill. The milling process begins when the Engineering
Department lays out a drill pattern. (Tr. 433.) Once the pattern is complete, the blasting crew
loads the pattern with blasting agent, the blast is initiated, and the rock mass is broken into
smaller pieces. The broken pieces are loaded onto either 320-ton haul trucks or 240-ton haul
trucks. The pieces are designated as either ore, which goes to the concentrators, or as waste. The
cut-off for determining whether a rock is considered waste is three-tenths of one percent of
copper content. The rock is dumped into a primary crusher and is broken down to six inches or
smaller. The smaller rock then travels up a belt and is dumped into an ore stockpile. The rock is
then drawn into a crusher where it is crushed to a half inch or smaller. The rock goes into the
mill in fine ore bins where it is crushed even more by rod mills and then exits the rod mill to the
ball mill. There, the material is ground to an even finer consistency. Once the material is finely
ground, it is pumped to flotation tanks in which chemicals cause copper particles to adhere to
bubbles that rise to the top of the tanks, enabling the copper to be skimmed off. The remaining
material falls to the bottom of the tanks and is disposed of. The skimmed copper material is
pumped to a filter plant where all but approximately ten percent of the moisture in the copper
material is removed. The material is then hauled to the smelter. (Tr. 433-36.) The final
product, called copper concentrate, is 25 to 29 percent copper. (Tr. 242.) Miners do not come
into direct contact with the copper concentrate. (Tr. 275-76.)

In February 2006, there were a series of bumps or power outages at the mill that caused
material- called "slurry'' - in the ball mills to spill onto the mill floor. Slurry consists of water,
copper bearing material, and waste rock. (Tr. 240--42.) The material that comes out of the ball
mill when there is a bump is not copper concentrate. (Tr. 243.)
On February 21, 2006, the Mine Safety and Health Administration ("MSHA") issued
Asarco a citation for the spill and gave the company one week to abate the spill by cleaning it up.
Asarco assigned probationary employees to assist with the cleanup. (Tr. 142-43.) The company
used a combination of high-pressure water hoses, skid steers, and shovels and wheelbarrows in
the cleanup process. (Tr. 332.)
Jaxun's Employment at Mission Complex
Vumun Jaxun submitted an application to be a haul truck driver at Asarco's Mission
Complex in December of2005. (Tr. 99; Jaxun Trial Ex. 2.) He had less than one year of
experience driving a truck. (Tr. 99.) Jaxun had never before worked at a mine. (Tr. 99.) After
interviewing with Sheila Sweech, an Asarco human resources employee, and John Garcia, Senior
Mine Supervisor at the time of the events in question, Jaxun was hired and commenced MSHA
training on February 14, 2006. (Tr. 101, 489, 102, 407, 104.) He completed three days of newly
31 FMSHRC 633

employed, inexperienced miner safety training, which was conducted by Robert Jordan, Asarco's
Safety Administrator. (Tr. 104, 106, 235-36.) When Jaxun first arrived at the mine site, he
again met with Sheila Sweech, and she provided J axun with several documents, including Rules
of Conduct and the 2001to2004 Mission Complex Labor Agreement. (Tr. 110-11.) Jaxun
understood that once he commenced employment, he would be a probationary employee for the
first seventy-five days. He understood "probationary employee" to mean his employment was on
a trial basis and dependent upon his behavior and work performance. (Tr. 114-15, 121-22.) He
also completed four hours of environmental training on Friday, February 17, 2006, that included
a mine tour with Garcia. (Tr. 129-30.) During the course of the environmental training, Garcia
discussed hazard recognition and instructed the trainees to be careful. {Tr. 131.) On February
20, 2006, Jaxun commenced training on how to conduct a pre-shift examination of a haul truck.
{Tr. 133.) On February 21, 2006, he began truck driver training. (Tr. 136.)
On February 22, 2006, Jaxun started the shift driving a truck, but during the shift, Jaxun
and other probationary employees were picked up and taken to the mine office. (Tr. 143,
145-46.) There, they were informed by Garcia that they would be assigned to the mill to assist in
the cleanup of the slurry spill. (Tr. 147, 150.) Jaxun mentioned his concern about working in the
spilled material in his orthopedic boots to Garcia; however, there were no rubber boots in
Jaxun's size available. (Tr. 61, 67, 336-37.) Garcia took the probationary employees to the mill.
for a tour which was conducted by Kenneth David, Operations Supervisor for the Mission
concentrator. (Tr. 327, 412.) Due to the noise level, the employees wore ear plugs during the
tour. David told the employees to be careful with electrical components and high pressure hoses,
and to be mindful of slipping on the spilled material, which J axun assumed was copper
concentrate. {Tr. 151-52, 154-57, 334.) Jaxun also assumed that the material was hazardous,
stating that he believed he had to wear galoshes, hand protection, eye protection, and head
protection, and to use a respirator. {Tr. 155-57.)

As David commenced to give J axun his cleanup instructions, J axun again expressed a
concern about his orthopedic boots. David requested a pair of galoshes from the warehouse,
which he did not immediately receive because Jaxun's size was not available. (Tr. 334-336.)
Consequently, on February 22, 2006, Jaxun wore his own boots to perform cleanup. David left
the crew, but returned to observe the workers before lunch. (Tr. 342.) Jaxun received a pair of
galoshes on the morning of the February 23, 2006. (Tr. 69.)
On February 23, 2006, Jaxun asked to speak to the Operations Manager. (Tr. 168.) Ron
Allum, Mine Manager at the time of these events, took Jaxun to speak to Mark Kalmi, who was
General Manager. (Tr. 171, 433, 438.) In a sworn statement, Allum mentioned that he did not
know whether a supervisor was present while the employees performed cleanup. (Tr. 176;
Asarco Trial Ex. C.) Jaxun told Kalmi that the company should have hired a contractor to do the
cleanup. (Tr. 180.) Kalmi told Jaxun that the company had the right to assign employees to any
job at the plant. (Tr. 181-82, 438.)

After this exchange, Kalmi met with Allum and Lupita Gonzales, Human Resources
Manager at the time of the events in question, and made the determination to terminate Jaxun's
31 FMSHRC 634

employment. (Tr; 191, 458.)
The Law

Section 105(c)(1) provides in pertinent part:
No person shall discharge or in any manner discriminate against or cause to be
discharged or cause discrimination against or otherwise interfere with the statutory
rights of any miller ... because such 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. § 815(c)(l).
The Complainant bears the burden of proving that discrimination occurred. In order to
establish a prima facie case of discrimination, he must establish that (1) he engaged in a
protected activity; and (2) he suffered an adverse action that was motivated in part by the activity.
Driessen v. Nevada Gold.fields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Sec '.Yon behalf of
Robinette vs. United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981 ); Sec '.Y on behalf ofPasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980).
The operator may rebut the prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by the protected activity. Pasula, 2
FMSHRC at 2799-2800. If an operator cannot rebut the prima facie case, it may still
affirmatively defend the action by proving it was also motivated by the Complainant's
unprotected activity and would have taken the adverse action for the unprotected activity alone.
Id. at 2800; Robinette, 3 FMSHRC at 817-18.
The Commission has also recognized that the Complainant might not be able to offer
direct evidence that adverse action taken against him was motivated in any part by protected
activity, stating "[ d]irect evidence of motivation is rarely encountered; more typically the only
available evidence is indirect." Chacon vs. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov.
1981).
Further Findings of Fact and Conclusions of Law

Protected Activity
The first determination to be made is whether Jaxun engaged in protected activity as
defined by the Mine Act. A complaint made to an operator or its agent of"an alleged danger or
safety or health violation" is described as protected activity in section 105(c)(l) of the Act. 30
U.S.C. § 815(c).
Jaxun asserts that he made several safety complaints, although at hearing, he could not
31 FMSHRC 635

clearly state to whom some of the comments were made. J axun testified that he spoke to a
supeivisor, who was determined to be Garcia, about safety issues. (Tr. 60-61.) Garcia and
Jaxun agree that Jaxun complained to Garcia about performing cleanup in his orthopedic boots.
(Tr. 61, 413.) Jaxun, however, states that he also told Garcia "in so many words" that the
trainees were working in the material "foot deep without galoshes, [or][] monkey suits." (Tr.
60.) At trial, Garcia explicitly denied that Jaxun made any safety complaints, and he denied
making any representations to Jaxun about the type of equipment trainees should wear while
working in the mill. (Tr. 411.) Jn addition to Garcia, Jaxun made complaints to David about
having to wear his $285 orthopedic boots while working on the cleanup. (Tr. 354.)
J axun also testified that he made safety complaints to a supeivisor who escorted him to
the "Mine Operation Manager's" office. (Tr. 71.) It was established at hearing that it was Ron
Allum who escorted Jaxun to Mark Kalmi's office. (Tr. 171.) Jaxun claimed that he discussed
issues related to safety complaints "to some degree" with Allum. Id. As Allum was unavailable
for hearing, Asarco presented a written statement, which was the recording of an inteiview of
Allum conducted by now deceased MSHA special investigator Andrew Lowe. (Tr. 172; Asarco
Trial Ex. C.) Jaxun testified that at the time, the "primary problem bothering [him] was that [the
trainees] were left ... witl].out having been introduced to any mine mill personnel and, basically,
[left] unsupeivised." (Tr. 174.) In his statement, Allum denies that Jaxun mentioned any safety
issue to him. (Tr. 176.) However, in that same statement, Allum says he did not know whether
there was a supeivisor while the trainees performed cleanup work. (Tr. 177; Asarco Trial Ex. C
p. 4.)
Jaxun offered conflicting testimony about his conversation with Kalmi. Initially, he
stated that he spoke to the "Operations Manager" about "safety issues relevant to galoshes, safety
issues relevant to being left unsupervised, [and] safety issues relevant to being improperly
equipped." (Tr. 78.) Later, in his own cross-examination ofKalmi, Jaxun stated, "I don't
remember the exact conversation but I did not get involved in safety issues specifically with
you." (Tr. 456.) Kalmi testified that he did not receive any safety complaints from Jaxun. (Tr.
440--41.) Based upon Jaxun's own conflicting testimony and Kalmi's assertion, I conclude that
Jaxun did not make safety complaints to Kalmi.
Asarco argues that Jaxun failed to establish aprimafacie case of discrimination because
Jaxun did not establish any credible evidence that he made a safety complaint and did not engage
in protected activity. (Resp. Brief at 7.) Asarco argues that Jaxun's testimony that he made
safety complaints to the various mine personnel is unreliable because it was unclear and
contradictory. I find, however, that Jaxun did make a safety complaint to mine management Garcia, David, and Allum, specifically- and, thus, engaged in protected activity. To make a
safety complaint, the Mine Act does not require one to commence the conversation with "I am
making a safety complaint" or any similar statement. Jaxun's complaints, whether valid or not,
amounted to safety complaints because it is clear that he had a concern about his safety. Both
Jordan and Garcia testified that Jaxun asked several questions during both the MSHA training
session and the mine tour. (Tr. 408, 236.) Jn fact, Jordan stated that during training, Jaxun was
"very active, asked a lot of questions." (Tr. 236.) Based upon these statements, it seems
31 FMSHRC 636

apparent that Jaxun showed an interest in safety issues. Later, Jaxun made statements about
having to wear his boots during the cleanup to both Garcia and David. Ms. Gonzales admitted
that while she did not view it as a "safety-related issue," she was aware Mark Kalmi agreed to
loan Jaxun his rubber boots which "could be considered as personal protective equipment." (Tr.
500-01.) Finally, and most persuasively, Jaxun claimed he spoke to Allum about safety issues,
including the lack of supervision. Allum's statement that he did not know whether the trainees
were supervised gives credence to Jaxun's assertion that at least the issue of lack of supervision
was raised. In addition, David said he left the crew and came back before lunch, which also
supports Jaxun's contention that there may have been insufficient supervision. At the very least,
Jaxun must have discussed supervision with Allum for Allum to have made that assertion.
Moreover, even if Jaxun did not make safety complaints to Kalmi, Kalmi testified that he met
with Gonzales and Allum before Jaxun's termination. Allum should have, ifhe did not do so,
put Kalmi on notice that Jaxun had made complaints about safety.2
Motivation of the Adverse Action
Jaxun suffered an adverse action when he was terminated on February 23, 2006.
However, the question remains whether the adverse action was caused by Jaxun's protected
activity. Asarco argues that even if Jaxun did engage in protected activity, he has not shown
discriminatory intent. (Resp. Brief at 18.)
David and Kalmi testified about inappropriate statements that Jaxun allegedly made and
also testified about Jaxun's insubordinate behavior. David recounted that as he attempted to give
Jaxun instructions about his cleanup duties, Jaxun "looked at [him] and said, 'I'm not going to
ruin these [expletive] $285 orthopedic boots."' (Tr. 335-36.) In his cross-examination of David,
Jaxun admitted to complaining about the boots, but notably did not question David on the
manner in which he allegedly made the complaint. (Tr. 354.) Kalmi testified:
.... right away Jr. Jaxun said to me he has got an issue with doing mill cleanup at the
mill. He was hired to be a truck driver and he should be training on a truck at this
time and he said, "At $2.17 a pound copper, I should look in the Yellow Pages and
hire Clean A Mill Company."
I told him that we had management rights to assign people to wherever we thought
they could be best utilized; and he had an exception, took exception to that.
And then I told him his assignment was to go over to the mill and do mill clean up;
and I believe at that time he stood up, he is standing up and he said, "Well we will see
about that." I said, "What do you mean by that?" He said, "I don't care what we have

2

Although Jaxun displayed a concern about the type of work he was being required to
perform as opposed to the job he thought he was hired to perform - truck driving - contrary to
Asarco's argument, I am not convinced that this issue was at the root of his complaints.
31 FMSHRC 637

done in the past."
At that time I said, "Are you special" and he said, "Yes, yes, I am."
(Tr. 438-39.)
Jaxun denied having said ''we'll see about that" and stated that he did not recall one way
or another whether he said he thought he was special. (Tr. 182-83.) However, in Jaxun's crossexamination ofKalmi, Jaxun admits to being "a little grumpy" and ''upset," which leads me to
believe Kalmi's testimony. (Tr. 456.) Kalmi also testified that after his conversation with Jaxun,
he was concerned about Jaxun's unwillingness to perform tasks other than what Jaxun thought he
was hired for, especially since Jaxun was still a probationary employee. He did not know what
J axun would be like after the seventy-five days. He considered J axun' s actions to be
insubordinate. {Tr. 440.)
Based upon Jaxun's failure to rebut David's testimony about Jaxun's use of vulgar
language, Kalmi 's testimony that Jaxun did not make safety complaints to him and was
insubordinate, Jaxun's admission that he did not make safety complaints to Kalmi, and his
admission to being "grumpy'' and "upset," I credit the testimony of David and Kalmi. Moreover,
because Jaxun did not make safety complaints to Kalmi, I find that Kalmi decided to terminate
Jaxun's employment based solely upon Jaxun's insubordinate behavior.
While I do find that J axun made safety complaints, and, therefore, engaged in protected
activity, he was clearly insubordinate and used vulgar language. J axun understood that he was a
probationary employee and could be fired at will by the company. The Mine Act does not grant
miners protection from discipline or termination if, even when making safety complaints, they
behave in a threatening or insubordinate manner. Considering the record as a whole, I do not
find that the adverse action was motivated in any part by Jaxun's safety complaints.
As Jaxun has not met both criteria to establish a prima facie case, his complaint is
DISMISSED.

Robert J. Lesnick
Chief Administrative Law Judge

31FMSHRC638

Distribution:
Vumun Edwurd Jaxun, 5357 N. Fort Yuma Trail, Tucson, AZ 85750-5930
Mark Savit, Esq., Hugh C. Thatcher, Esq., Patton Boggs LLP, 1801 California St., Suite 4900,
Denver, CO 80202
/eh

31FMSHRC639

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

June 10, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 2006-853
A.C. No. 46-08791-090341 01
Docket No. WEVA 2006-854
A.C. No. 46-08791-090341 02

v.
Docket No. WEVA 2007-666
A.C. No. 46-08791-121866
WOLF RUN MINING COMPANY,
Respondent

Sago Mine

DECISION
Appearances: Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for the Petitioner;
R. Henry Moore, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania,
for the Respondent.
Before:

Judge Feldman

These civil penalty proceedings concern Petitions for the Assessment of Civil Penalty
filed pursuant to section l lO(a) of the Federal Mine Safety and Health Act of 1977, as amended
("Mine Act"), 30 U.S.C. § 820(a), by the Secretary of Labor against the respondent, Wolf Run
Mining Company ("Wolf Run"). The petitions seek to impose a total civil penalty of $32,278.00
for 36 violations of mandatory safety standards contained in 30 C.F.R. Parts 75 and 77 of the
Secretary's regulations governing underground coal mines that allegedly occurred at WolfRun's
Sago Mine.
These matters were heard on October 21 through October 23, 2008, in Fairmont,
West Virginia. The parties have presented Motions for Approval of Partial Settlement with
respect to 31 of the 36 cited violations that are the subject of these proceedings. Wolf Run has
agreed to pay $25,257 .00 rather than the $28,339.00 civil penalty initially proposed by the
Secretary for the 31 settled citations. The parties' joint motion for approval of their settlement
terms shall be granted.

31 FMSHRC 640

The Secretary seeks to impose a total civil penalty of$3,939.00 for the remaining five
citations in issue. All of these citations allege a violation of section 75.521, 30 C.F.R. § 75.521,
of the Secretary's mandatory safety standards that pertain to the installation of lightning arresters
on ''ungrounded and exposed power conductors and telephone wires." The citations concern
power lines, power cables and telephone lines that run from the surface to underground areas of
the mine. The citations were issued as a result of the Mine Safety and Health Administration's
(MSHA's) investigation of the Sago Mine explosion on January 2, 2006. It has neither been
contended nor shown that the conditions cited in the subject citations contributed to the
explosion.
To determine ifthe Secretary's interpretation and enforcement of section 75.521 prior to
the Sago Mine accident was consistent with her position in these proceedings, the record was left
open for the Secretary to submit MSHA's history of enforcement of section 75.521 prior to
January 2, 2006. The Secretary filed the requested documentation on January 28, 2009. The
information was marked for identification and is admitted as Government Exhibits 25, 26 and 27.
On March 23, 2009, the Secretary filed additional documentation and joint stipulations, marked
for identification as Government Exhibit 28, concerning Sago Mine's Carbon Monoxide (CO)
monitoring system. Government Exhibit 28 is admitted as Wolf Run does not object to its
admission. The parties exchanged simultaneous post-hearing briefs on April IO, 2009, and filed
simultaneous replies on May 15, 2009, that have been considered in the disposition of these
matters.

I. Statement of the Case
On January 2, 2006, an explosion occurred at approximately 6:26 a.m. in WolfRun's
Sago Mine. At the time of the explosion, 29 miners were underground. Twelve miners were
killed, and one miner was seriously injured. The explosion occurred inby the 2 North Mains
seals, and destroyed all ten of the seals used to separate that area from the active portion
ofthemine.

At the time of the explosion, the area in the vicinity of the mine was experiencing a
storm, accompanied by heavy rain and lightning. Before entering the mine, some Sago miners
observed lightning strikes near mine property. After an extensive accident investigation,
MSHA concluded that methane in an inactive sealed area apparently was ignited by lightning.
The ignition and resulting explosion destroyed the seals, causing portions of the active mine to
fill with toxic levels of carbon monoxide. 1
The Sago mine tragedy heightened MSHA' s awareness with regard to the hazards
associated with lightning strikes. Consequently, MSHA's accident investigation included a
1

This information is taken from MSHA's Sago accident investigation report issued on
May 9, 2007. This information is for background purposes. It is not dispositive of the citations
in issue.
31 FMSHRC 641

complete inspection of all electrical equipment at the mine. As a result of its investigation,
MSHA issued the subject five citations that raise issues concerning the applicability of
section 75.521. This mandatory standard governs lightning arresters on segments of ungrounded
and exposed power conductors and telephone wires that are located on the surface before they
enter an underground mine.
Section 75.521 states:
Each ungrounded, exposed power conductor and each ungrounded, exposed
telephone wire that leads underground shall be equipped with suitable lightning
arresters of approved type within 100 feet of the point where the circuit enters the
mine. Lightning arresters shall be connected to a low resistance grounding
medium on the surface which shall be separated from neutral grounds by a
distance ofno less than 25 feet.
(Emphasis added).
To support the factof the five alleged violations of section 75.521 that the subject
insulated conductors were "exposed," the Secretary relies on the interpretation of section 75.521
contained in the MSHA Program Policy Manual that specifies when conductors are not exposed.
The policy manual states:

75.521 Lightning Arrester; Ungrounded and Exposed Power Conductors and
Telephone Wires
Conductors that are (1) provided with metallic shields; (2) jacketed by a
ground metal covering or enclosure; (3) installed under grounded metal
framework; (4) buried in the earth; or (5) made of triplex or quadraplex that is
supported by a grounded messenger wire, are not considered exposed for the
length so protected. If the trolley wire of a d.c. system is paralleled by an exposed
feeder cable, one lightning arrester would provide protection for both if they are
connected together near the lightning arrester.
Lightning arrester ground fields shall be maintained with as low a
resistance to earth as possible, preferably less than 5 ohms and no more than 25
ohms. Lightning arrester ground fields shall be separated from neutral ground
fields by at least 25 feet. This distance prevents lightning surges from being
transmitted to the neutral field where they could momentarily energize the frames
of equipment grounded to the neutral ground field.
Mines using single-phase power originating at the power company's
secondary and extending underground cannot normally comply with this Section
due to the power company's practice of connecting the lightning arrester ground

31FMSHRC642

to the grotinded neutral which also connects to the center tap of the transformer,
unless an isolation transformer is installed or the power company isolates the
lighting arrester ground from the center tap ground and a separated neutral ground
field is established.
(Emphasis added). (Gov. Ex. 8).
The heightened safety related lightning concerns that have arisen in the aftermath of
this disaster do not alter the Secretary's burden of demonstrating that the cited conditions
constitute violations of section 75.521. Garden Creek Pocahontas Co., 6 FMSHRC 2148, 2152
(Nov. 1989). The pwpose of the lightning arrester requirement in section 75.521 is to prevent or
minimize the risk of energy from a lightning strike on the surface of a mine from entering into
the underground portions of the mine. That is why the language in section 75.521 requires the
installation of lightning arresters on ''ungrounded" power conductors that are separated from the
neutral ground field.
The Secretary asserts that it is the ground wire in a cable that is "grounded" rather than
the power conductors that are not separately grounded because they carry electrical energy.
However, as discussed below, the Secretary may not rely the policy manual to support
her interpretation of the term ''ungrounded power conductor" in section 75.521. Rather, the issue
is whether the Secretary's interpretation, that all power conductors entering an underground mine
are subject to the provisions of section 75.521, even if they are insulated and contained in
grounded cables, is reasonable and, therefore, entitled to deference.
It is undisputed, as acknowledged in MSHA's policy manual, that lightning arrester
protection may not be provided to power conductors that are in cables connected to the neutral
grounds. (Gov. 8). Thus, the Secretary argues, in essence, that it should be inferred from the
language of section 75.521 that a mine operator is prohibited from connecting power cables
entering an underground mine to a neutral ground. However, a regulation may not be interpreted
to mean what an agency intended but did not express. In addition, disconnecting cables that
extend underground from the neutral ground medium would remove ground fault protection.
Consequently, for the reasons discussed, the lightning arrester provisions of section 75.521 do
not apply to cables that are connected to neutral grounds because, in the event of a lightning
strike, electrical energy would be transmitted from the surface through the underground mine
from lightning arrester ground field to the neutral grounds.

II. Fin dines of Fact

a. The Power System
WolfRun's Sago Mine is located in Upshur County, West Virginia. Power to the mine
was delivered from the French Creek substation, located approximately two miles from the mine.

31 FMSHRC 643

(Joint Ex. 1; Gov. Ex. 9). Power from French Creek was transmitted through over-head
transmission lines to a branch transmission line that extended to the mine substation. Id.
As discussed below, a lightning arrester is a device that limits the overvoltage caused by
lightning or other electrical surges by providing an electrical path between an ungrounded
conductor and earth which is used as the grounding medium. (Joint Ex. I). The transmission
lines from the French Creek substation to the mine substation were protected by various
electrical devices inclu_ding lightning arresters. Id.
Transformers located at the mine substation reduced the voltage of the branch
transmission line for underground distribution. Id. Electrical devices, including lightning
arresters located in the mine substation, provided protection for the underground distribution
system. Id. The segments of the high voltage shielded power cables on the surface were
equipped with lightning arresters before the cables entered the underground area of the mine. Id.
Power centers were located throughout the mine to reduce the voltage for use on underground
equipment. Id. With the exception of one underground power center, all underground power
centers contained surge protectors which serve a similar purpose as lightning arresters.
(Tr. 785-87).
The branch transmission line from the mine substation also supplied power to the surface
facilities and equipment. (Joint Ex. I; Gov. Exs. 9, 12). The voltage was reduced for the surface
fan by pole-mounted transformers. Id. The power circuit utilizing these transformers was
protected by lightning arresters. (Joint Ex. l; Gov. Exs. 9, 23; Tr. 84-85). The same pole had a
cable that supplied power for the surface conveyor belts. (Joint Ex. 1; Gov. Exs. 9, 23).
The transmission lines bringing power from the French Creek substation were grounded.
The grounding consisted of two grounded neutral conductors that were installed above the power
conductors from French Creek to the branch circuit leading to the mine substation. (Joint Ex. I).
One neutral conductor was continued from the branch circuit to the mine substation. Id.
This conductor was installed below the power conductors and connected to the ground bed
for the mine substation and surface electric equipment. Id. The lightning arresters on the
surface were linked to the ground bed at the mine substation and grounded at the power poles.
(Gov. Ex. 23; Tr. 85-87, 327, 382, 691). The substation and lightning arrester ground beds were
inspected thoroughly by MSHA inspectors and determined to be in compliance with the requisite
minimum 25 feet separation dictated by section 75.521. (Tr. 724).
A second ground bed or medium, located on the surface, also known as the neutral
ground, was used for the grounding of the underground cables and equipment. (Gov. Ex. 9;
Tr. 691). This ground bed was created by grounding the underground cables and equipment to
the underground frame of the belt conveyor. The belt conveyor frame was grounded to the
neutral ground field on the surface. (Tr. 833-35). As previously noted, this neutral ground bed
for underground equipment was separated by more than 25 feet from the ground bed located

31 FMSHRC 644

under the substation that was used to protect the surface equipment and that served as the
lightning arrester ground bed. (Gov. Ex. 9; Tr. 334).
Government Exhibit 9 is an annotated diagram of the Sago Mine power system and
ground fields that has been appended to this decision and will be referred to hereinafter as
Appendix I. It delineates the surface area from the underground portion of the mine. It illustrates
the electricity path from the French Creek substation to the Sago Mine substation. It depicts the
neutral ground field for underground equipment, located on the surface, designated as "earth"
and the ground field for surface equipment, including lightning arresters, that is located under the
mine substation. Appendix I reflects that the neutral ground and substation ground fields are
separated by at least 25 feet. Appendix I also depicts the frame of the belt conveyor that extends
from the surface underground. It demonstrates how the conveyor frame was used as a ground
medium between the underground equipment and the neutral grounds.
b. Lightning Arresters
As noted, a lightning arrester, connected to power conductors, limits the overvoltage
caused by lightning or other electrical surges by providing an electrical path between an
ungrounded conductor and earth which is used as the grounding medium. 2 (Joint Ex. 1). It is
similar to the overvoltage protection provided by surge protectors. (Tr. 642, 786). Lightning
arresters vary in size and have different voltage ratings. (Tr. 784). They are sized for the amount
of current in the cable they are protecting. (Tr. 432).
MSHA Inspector Arthur Wooten testified that lightning arresters are designed to protect
against both direct and indirect lightning strikes. (Tr. 204, 239). Lightning strikes from as much
as a mile away can cause a surge of energy on power conductors. (Tr. 206, 240). The purpose of
lightning arresters is to direct the excess energy into the ground so that it does not enter the mine.
(Joint Ex. 1; Tr. 194, 223). A lighting arrester has air gaps over which the normal current level
cannot arc. However, if there is an overvoltage on the line, the current will jump that air gap and
the lightning arrester will direct the excess energy through a path to ground. (Tr. 194 - 96).
As noted, the lightning arrester ground field was located at the ground bed for surface equipment
located under the substation.
Wooten explained that in the absence of lightning arresters, the energy from a lightning
strike would not be dissipated into the ground. Rather, the excess energy from a lightning strike
would enter the mine by way of the power conductors and energize the frames of equipment
resulting in a shock or electrocution hazard. (Tr. 316). The excess energy could also cause
arcing that would pose a fire hazard, and an ignition source for methane. (Tr. 220, 240-42).

2

This decision contains redundancies because it concerns technical electrical circuitry
issues. The essential concepts that provide the basis for this decision have been repeated for the
sake of clarity.
31 FMSHRC 645

c. · Underground Eguipment and Surface Eguipment
Ground Fields
The Secretary's regulations governing electrical safety in the construction industry define
a "ground" as "[a] conducting connection ... between an electrical circuit or equipment and the
earth ...." 29 C.F.R. § 1926.449. The "neutral grounds" in this case consist ofa low resistance
ground bed that is established on the surface area of the mine. (App. I). It also consists of
all of the underground .equipment and the ground wires that are attached to the ground bed.
(Tr. 383-84). The underground equipment and ground wires are attached to the surface ground
bed through the frame of the belt conveyor. (App. I). As noted, the neutral ground field for
underground equipment at the Sago Mine is depicted on Appendix I and labeled "earth."
(Tr. 380).
Ground fault protection for surface equipment is located on the surface under the
substation. The lightning arrester ground field is also located under the substation. (App. I;
Tr. 325-26). At the Sago Mine there were several lightning arresters that were attached to
overhead high voltage power lines. (Tr. 326). They were connected to ground by solid copper
conductors and a "butt ground" at a power pole. (App. I; Gov. Ex. 23; Tr. 327). A butt ground is
a copper wire that runs down a power pole to the earth. (Tr. 338). The butt ground at the base of
the power poles is linked to the ground bed located under the mine substation.
d. The Hazard Posed by Connecting
Ground Fields
Inspector Wooten analogized an electrical circuit to a waterline with several branches.
When a water valve is opened, water flows through all segments of the waterline. (Tr. 315).
So too, lightning induced energy travels through electrical cables in all directions. (Tr. 315-16).
A ground medium provides electrical energy with a path of least resistance to ground. (Tr. 315).
A problem arises when a lightning arrester is connected to a ground field that is less than 25 feet
from a neutral ground field. (App. I; Tr. 334). Under such circumstances, when ground fields
are in close proximity, any overvoltage can be transferred from one ground field to the other.
The hazard of overvoltage is heightened when the neutral grounds and the lightning arrester
ground field create a path ofleast resistance because the ground wire in the power cable is
connected to the metal frame of the belt structure. In such cases, the conduit of the metal
conveyor frame, that results in connecting the lightning arrester ground field to the neutral
ground field, provides a direct circuit for lightning energy to travel through the mine, a hazard
that the separation provisions of section 75.521 are intended to prevent. As Inspector Wooten
explained, "[i]t's easy to get those two [ground fields] shorted together." (Tr. 323).
James Honaker, an MSHA electrical engineer who participated in the Sago Mine accident
investigation, also explained that lightning arresters could not be installed on power conductors
that are grounded from underground power centers through the conveyor belt frame to the neutral
ground because"... you would have the two ground fields tied together." (Tr. 868-69, 833-34).
31 FMSHRC 646

Honaker noted that such a grounding system would violate section 75.521 that requires the
lightning arrester ground field to ''be separated from neutral grounds by a distance of not less
than 25 feet." (Tr. 869, 874-75, 877). Thus, the determinative fact in these matters is that
overhead high voltage power lines or power cables located on the surface, that are connected to
the lightning arrester ground field at the substation, may not be connected to the neutral grounds.
e. Citations
Citation Nos. 7583316 and 7583317 -Battery Charger Cables
As noted, all five citations in issue allege a violation of section 75.521 of the Secretary's
mandatory safety standards. This regulatory standard applies to ungrounded and exposed power
conductors that are located on the surface before they enter an underground mine. If lightning
arresters are installed, this mandatory standard requires the lightning arrester ground field to be
separated from the neutral grounds by a distance of at least 25 feet.
Citation Nos. 7583316 and 7583317 essentially cite the same condition on two
separate cables. (Gov. Bxs: 2, 3). The rated capacity of each cable was 2,000 volts. {Tr. 274).
Each cable supplied 575 volts power to different battery chargers on the surface. The chargers
were used to charge battery powered.man trips. (Tr. 264-65). As shown in Appendix I, the
cables were attached to, and received power from, a power center that was located in an
underground section of the mine. (Tr. 270-71 ). The power center was grounded through the
metal frame of the belt conveyor to the neutral ground field on the surface. The citations relate to
the portion of each cable, that the Secretary asserts required lightning arrester protection, that was
visible on the ground from the point where it exited the mine until its connection to each battery
charger.
These two cited cables contained six conductors, three of which were phase wires that
conducted power, two ground wires and a ground check monitor wire. (Tr. 273, 289). The three
phase conductors in each cable were each separately insulated and were contained, along with
the ground wires and monitor wires, in a protective outer jacket. (Joint Stip. 23, 27; Gov. 21;
Tr. 427). The cables were undamaged and intact in that there were no bare power conductors
along the length of the cables. (Joint Stip. 27; Gov. Ex. 21).
Wooten testified that the two ground wires and the check monitor wire were not required
to be connected to lightning arresters because they were grounded. The purpose of the ground
wires is to cause the circuit breaker to trip in the event of a fault or short circuit. {Tr. 277). The
ground wires serve no protection against an overvoltage on the power conductors caused by a
lightning strike. (Tr. 278).
Wooten stated that the three phase power conductors are not grounded because they are
current carrying conductors that are not connected to ground. (Tr. 277). The power conductors
must remain ungrounded in order to energize equipment without tripping a circuit breaker.

31 FMSHRC 647

(Tr. 861 ). In the· event of an overvoltage of current on the conductors from a lightning strike, the
conductors would carry the excess current into the mine because there was no path to ground.
(Tr. 278). Lightning arresters would dissipate the electrical energy from a lightning strike by
providing a path for the electrical current to go to ground on the surface rather than to the
underground mine.
Wooten also testified about the significance of the requirement in section 75.521 that
"[l]ightning arresters shall be connected to a low resistance grounding medium on the surface
which shall be separated from neutral grounds by a distance of not less than 25 feet." The neutral
ground "is a low resistance ground bed that has to be established for the underground power
source." (Tr. 383). The neutral grounding medium consists of the ground field on the surface,
all of the equipment in the underground portion of the mine, and the ground wires connected to
that equipment. (Tr. 384). The purpose of the neutral ground is to dissipate the electricity from
the frames of equipment located inside the mine in the event of an electrical fault in the system.
(Tr. 384).
At the Sago Mine, underground power centers and equipment were connected and
grounded to the neutral ground field on the surface through the medium of the metal frame of the
belt structure. As a result of the connection from the cited cables to the power center and to all
underground electrical equipment, in the absence of lightning arresters, a lightning strike on the
cited cables would result in a direct path of elevated electrical current through the power
conductors and on to all electrical face equipment. (Tr. 284). The installation oflightning
arresters would have provided a path to ground for any excess current before it had a chance to
enter the mine. (Tr. 284-285).
However, both Inspectors Honaker and Wooten testified that creating a lightning arrester
ground field for a cable entering an underground mine when the cable is connected to the
neutral ground creates a significant hazard because, in effect, it ties the two ground fields
together. (Tr. 398-400, 868). As previously noted, the purpose of a lighting arrester is to direct
to ground an overvoltage from a lightning strike on a power conductor. When the voltage goes to
ground, it creates an electrical field, the extent of which will depend upon many factors,
including the amount of current and the conductivity of the soil. (Tr. 314). As noted above, if
the neutral ground for the underground electrical equipment is too close to the lightning arrester
grounding medium, or, in this case, where the neutral ground and lightning arrester ground are
connected, lightning current that is transmitted by a lightning arrester to ground can feed
back to the neutral ground through the grounding system for the underground mine equipment.
(Tr. 393-400). This would result in the frames of the equipment becoming energized by
lightning, thus exposing miners to an electrical hazard. (Tr. 399).
Inspector Wooten considered the power conductors to be "ungrounded" as specified
in section 75.521 because they were carrying current and not directly connected to ground.
(Tr. 277). Wooten considered the power conductors to be "exposed" as specified in the cited
mandatory standard, even though the conductors were insulated and contained in a protective

31 FMSHRC 648

outer jacket, because they were exposed to the atmospheric effects of lightning before entering
the underground mine.
The inner insulation serves two functions. Namely, it prevents a short circuit by
separating the conductors, and, it protects persons who handle cables from electrical shock
hazards by preventing contact with energized copper leads inside the wires. (Tr. 205, 218).
Insulation does not provide protection against overvoltage caused by lightning which can be as
high as one million volts. (Tr. 220). Wooten gave no evidentiary significance to the outer jacket
of the cable because it primarily is designed to protect the inner insulated lead wires from
damage.
Wooten determined the power conductors were "exposed" because they did not satisfy
any of the criteria in MSHA's Policy Manual that constitutes an unexposed conductor. (Tr. 291).
Namely, the conductors were not provided with metallic shields; jacketed by a ground metal
covering or enclosure; installed under grounded metal :framework; buried in the earth; or made of
triplex or quadraplex that is supported by a ground messenger wire. (Gov. Ex. 8).
Thus, Wooten issued Citation Nos. 7583316 and 7583317 alleging violations of
section 75.521 because he considered the insulated power conductors contained in the cables
powering the battery chargers to be ungrounded, exposed power conductors that lacked lightning
arrester protection. Wooten designated the citations as significant and substantial (S&S) because
he believed the electrical hazard created was reasonably likely to result in serious or fatal injuries
in the event of a lightning strike. (Tr. 291). Wooten attributed the cited violations to a moderate
degree of negligence because the cables were visible on the surface and they were examined on a
weekly basis. (Tr. 317).
Significantly, because the installation of lightning arresters would contravene the 25 feet
minimum separation of ground fields on cables that were already connected to the neutral
grounds, WolfRun did not install lightning arresters to abate the citations. Rather, WolfRun
abated the citations by removing the cables from the underground power source and, instead,
connecting the cables to the battery chargers from a power source on the surface. (Tr. 324).
The Secretary proposes a civil penalty of $1,238.00 for each of these citations concerning the
battery charger cables.
Citation No. 7583340-High Voltage Overhead Lines
As previously noted, the belt structure which extended from the surface area of the mine
into the underground portion of the mine was connected through the grounding medium to the
underground power centers, as well as all underground electrical equipment. {Tr. 375). As
depicted in Appendix I, Wooten observed that lightning arresters were attached to high voltage
lines suspended outside of the underground mine. The lightning arresters were grounded to a
''butt ground" at a power pole. (Tr. 327, 337, 348). As noted, a butt ground is a copper wire that
runs down a power pole to the earth. (Tr. 338). Several lightning arresters were connected to the

31 FMSHRC 649

butt ground. The butt ground was connected to the ground bed under the substation. (App. I).
A static line was also attached to the butt ground. (Tr. 330, 358). A static line is a line that
runs above high voltage power lines and provides an umbrella like protection from lightning.
(Tr. 348-49, 374).
The ground wire for a power cable, that was supplying power to surface belts, was
attached to that butt ground. (App. I; Tr. 379). That ground wire also was connected to a
segment of the metal frame of the belt structure on the surface. The metal frame of the conveyor
extended from the surface into the underground portion of the mine where it served as the
medium to the neutral ground. (Tr. 330, 351). These connections caused the neutral ground to
be common with the lightning arrester ground, thus defeating the purpose of section 75.521.
(Tr. 340). Through these connections, the energy from a lightning strike had a path from the
surface through the underground mine as a result of the belt metal frame that served as the means
of grounding underground equipment to the neutral ground field. (Tr. 352).
Wooten explained that the manner in which the ground fields were initially established
was not the problem. The location of the lightning arrester ground field, at the butt ground,
was more than 25 feet from what was originally established as the neutral ground field.
(See App. I). As noted, the problem was the connection of the lightning arresters to the
belt frame through the ground wire for a power cable that was supplying the surface belts.
(Tr. 241, 370). That connection eliminated the separation of the butt ground and substation
ground fields from and the neutral grounds. (Tr. 398-400). Electrical current from a lightning
strike would have a path to the butt ground, from the butt ground to the ground wire for the
power cable, along that ground wire to the belt frame, and then into the underground portion of
the mine.
As a result of his observations, Wooten issued Citation No. 753340. The citation states:
The lightning arresters grounding medium was not separated from the neutral
grounds by a distance of 25 feet. The arresters were wired in a manner that would
not prevent the frames of the equipment being used underground which are
connected to the neutral grounding field from becoming energized in the event of
a strike on the surface. The arrester ground was connected to the frames of the
surface belt structure which are entering the mine and are connected to the mine
track and all underground electrical equipment.
(Gov. Ex. 4).
Citation No. 753340 was abated by disconnecting the ground wire from the belt frame.
Wooten designated the violation as S&S because of the three distinct hazards it contributed to: an
electrocution hazard; a fire hazard; and an ignition source hazard. (Tr. 400). Inspector Wooten
testified that an injury was reasonably likely to occur because there was a direct path for
electrical current to travel from the lightning arresters to the metal frame of the belt structure,

31 FMSHRC 650

which extended irito the underground portion of the mine, and to every piece of electrical
equipment in the mine. (Tr. 401).
The power pole where the butt ground was attached, and the belt frame where the ground
wire was connected, were located on the surface area of the mine where people traveled on a
daily basis. In fact, the power pole was just outside the building where the mine manager and the
chief electrician's offices were located. Furthermore, the surface electrical equipment was
subject to monthly examinations. Consequently, Inspector Wooten designated the respondent's
negligence as moderate because the condition was obvious and in plain view. (Tr. 404).
The Secretary proposes a civil penalty of $963.00 for Citation. No. 7583340.
Citation No. 7582485 - Water Pump Cable
Wooten noted that a 120 volt power cable supplying power from the fan house on the
surface to an underground water pump at the No. 10 crosscut in the track entry was not provided
with a lightning arrester. (Joint Stip. 16; Gov. Ex. 1). The power cable contained a ground wire
and copper wires that conducted electricity. Like the cables supplying power to the battery
chargers, the ground wire and the power conductor wires were separately insulated and contained
within an outer protective jacket. However, the ground wire was improperly connected because
it was conducting electrical current. (Tr. 212-13; Gov. Ex. 10). There were no bare power
conductors along the length of the cable. As with the battery power cables, Wooten considered .
the power conductors in the water pump power supply cable to be "exposed" because there was
no metal shielding or other accepted methods of protection or enclosure as enumerated in the
Secretary's policy manual. (Gov. Ex. 8).
Consistent with battery cable Citation Nos. 7583316 and 7583317, Wooten issued
Citation No. 7582485 citing the water pump power supply cable for an alleged violation of
section 75.521 because ofWolfRun's failure to install lightning arrester protection on "exposed"
power conductors. Unlike the cited violations for the battery charger cables, the water pump
supply cable was not grounded to the conveyor frame or otherwise attached to the neutral ground
medium.
For an injury to occur, Wooten explained that a person would have had to be in contact
with the pump at the moment that a lightning strike caused a surge on the cited conductors.
(Tr. 260). He also testified that the cited condition did not pose a reasonable likelihood of fire
because the area around the pump was wet. (Tr. 262). Thus, Wooten characterized the cited
violation as non-S&S because the pump was isolated from other equipment in the mine.
(Tr. 260). The cited cable had rock dust on it and appeared to have been in place for some time.
(Tr. 192). Wooten concluded that the level of negligence was moderate because the pump is
required to be examined on a weekly basis. (Tr. 262). Like the battery cable citations, the cited
condition was abated by removing the cable from the fan house and powering the water pump
from a cable connected to an underground power source. (Tr. 262). The Secretary proposes a
civil penalty of$60.00 for Citation No. 7582485.

31 FMSHRC 651

Citation No. 7335233 - Telephone and Trolley Wires
Citation No. 7335233 cites an alleged violation of section 75.521 because lightning
arresters were not provided on either a telephone wire, or a trolley phone wire, that leads from
the surface into the underground portion of the mine. (Gov. Ex. 5). Kevin Hedrick, an engineer
with MSHA's Technical Support Group, testified that he observed the cited conditions.
However, Hedrick is not authorized to issue citations because he is not an authorized
representative of the Secretary. Consequently Inspector Russell Dresch, who played a
supervisory role in the accident investigation, issued the Citation No. 7335233. Dresch did not
observe the conditions cited in Citation No. 7335233. Rather, he based the citation on Hedrick's
observations.
Hedrick has been employed by MSHA as an electrical engineer for 25 years. (Tr. 597)
His participation in the accident investigation included assisting the electrical team in its
inspection of the environmental monitoring and communication systems at the Sago Mine.
(Tr. 600). Hedrick stated there were two different communication systems - - a hard wired
paging telephone system and a trolley phone system. The paging system allowed communication
between the dispatcher's office on the surface to approximately 20 pagers hard wired at various
locations throughout the mine. (Tr. 602). The trolley phone system allowed communication
from the surface to occupants of man trips in the track entry .
Both the telephone and trolley systems had wires that were connected to the dispatcher's
office and entered the mine at the portal of the track entry. Hedrick testified that he examined the
telephone and trolley wires from the dispatcher's office to the mine portal with the exception of a
portion of the lines that were buried. (Tr. 605, 610, 626). There was approximately 400 feet of
line that ran from the dispatcher's office to the mine portal. (Tr. 613). There were no lightning
arresters connected to either of the wires. (Tr. 626).
The trolley phone wire consisted of two wires that were contained in a single jacket up to
the portal. At that point, the two wires were separated. One wire was suspended along the roof
as an antenna for the length of the track. The other trolley wire was attached to the track and
grounded at the mouth of the portal. Since this trolley wire was grounded before entering the
mine, it did not require a lightning arrester. (Tr. 615 -18, 621). The wire that was hung along
the roof above the track was grounded to the end of the track at the furthest point in the mine.
(Tr. 677-79). Therefore, any lightning energy on the roof trolley wire conductor could be
transmitted into the mine until it reached ground at the end of the track. (Tr. 680). As a
consequence, Hedrick believed the trolley wire attached to the mine roof required a lightning
arrester. (Tr. 622). The telephone wire also consisted of two conductors, neither of which were
grounded. Consequently, Hedrick determined both conductors were required to be equipped with
lightning arresters. (Tr. 623-24).

31 FMSHRC 652

Hedrick and Dresch opined that their understanding of the term "exposed," as it is used in
section 75.521, is that it refers to being exposed to the atmospheric effects oflightning. (Tr. 632,
671. ). Hendrick repeated Wooten's testimony that lightning arresters are designed to provide a
path to ground for an overvoltage that occurs as a result of lightning. (Tr. 627, 630). Hedrick
stated that lighting arresters would significantly reduce the amount of overvoltage that would
enter the mine in the event of a lightning strike. (Tr. 631) Hedrick stated that the transmission of
energy from a lightning strike would pose a hazard in the form of a shock hazard, a fire hazard
and an ignition source hazard. (Tr. 635-36).
Government Exhibit 24 is an annotated photograph that has been appended to this
decision and will be referred to hereinafter as Appendix II. It presents a view of the surface area
of the Sago Mine including the overhead power lines and the conveyor belt assembly. It
illustrates the paths of the telephone and trolley phone cables until the point where they enter
underground at the portal of the track entry.
Dresch designated the cited violation as S&S in nature because he believed it was
reasonably likely that a shock or electrocution injury caused by the ungrounded communication
wires would result in lost workdays or restricted duty. (Tr. 681 ). The cited condition also
created a fire and an ignition hazard as a result of heat that would be generated by an overvoltage
on the lines in the event of a lightning strike. Because the telephone system was a hard wired
system, Dresch concluded that the dispatcher and the miners were regularly exposed to serious
injury should a lightning strike occur. (Tr. 682). Dresch believed injury was less likely with
respect to the trolley system because persons would not be in direct contact with the trolley wire.
(Tr. 683-84).
Dresch considered the lack of lightning arresters to be an obvious condition in that the
wires were visible on the surface of the mine, and mine electrical equipment was examined
monthly by qualified examiner personnel. Dresch acknowledged that MSHA inspectors
apparently did not recognize the need for lightning arresters during previous inspections.
(Tr. 685). Consequently, the negligence attributable to Wolf Run for the cited violation was
deemed to be moderate.
The cited violation was abated by installing a lightning arrester on each of the telephone
paging wire conductors located outside the mine, and installing one lightning arrester on the
outside portion of the trolley wire conductor that was suspended from the mine roof. (Tr. 685).
As noted, the trolley wire that was grounded to the track at the mouth of the track entry
did not require a lightning arrester. (App. II). The Secretary proposes a civil penalty of $440.00
for Citation No. 7582485.

31 FMSHRC 653

f. ·Post-Hearing Submissions
At the conclusion of the hearing, the record was left open for the Secretary to submit
MSHA's history of enforcement of section 75.521 prior to the January 2, 2006, Sago explosion.
This infonnation was requested to determine if the Secretary's interpretation of section 75.521
has been affected by the Sago Mine accident.
On January 28, .2009, the Secretary submitted citations reflecting her relevant
enforcement history with respect to lightning arresters prior to the January 2, 2006.
The citations were divided into three categories. Four citations concerned insulated power cables
(Gov. Ex. 25); 35 citations concerned communication or carbon monoxide (CO) monitoring
systems (Gov. Ex. 26); and 18 citations concerned conditions where the lightning arrester
ground field and the neutral ground field was not separated by at least 25 feet (Gov. Ex. 27).
The citations do not reflect whether the cited power cables, communication lines or CO
monitoring systems were grounded to a common neutral ground or otherwise grounded.

III. Disposition
a. Regulat01y Framework of Section 75.521
The "language of a regulation .... is the starting point for its interpretation."
Dyer v. United States, 832 F. 2d 1062, 1066 (citing Consumer Prod. Safety Common v.
GET Salvinia, Inc. 447 U.S. 102, 108 (1980)). So we must examine the language used by the
Secretary in promulgating section 75.521 as a mandatory safety standard. Section 75.521
provides:
Each ungrounded, exposed power conductor and each ungrounded, exposed
telephone wire that leads underground shall be equipped with suitable lightning
arresters of approved type within I 00 feet of the point where the circuit enters the
mine. Lightning arresters shall be connected to a low resistance grounding
medium on the surface which shall be separated from neutral grounds by a
distance ofno less than 25 feet.
(Emphasis added).
The cited mandatory standard has three components. The meaning and applicability
of these components are disputed by the parties. The three elements of the section 75.521 are:
(1) the power conductor required to be protected from a lightning initiated power surge must be
"exposed;" (2) the power conductor must be "ungrounded;" and (3) the lightning arrester ground
field must be separated from the neutral grounds by a distance of at least 25 feet. In this case, the
cited standard requires interpretation because the operative terms "exposed" and ''ungrounded"
are subject to different meanings.

31 FMSHRC 654

When the meaning of the provisions of a regulatory standard are disputed, the courts and
this Commission have deferred to the Secretary's reasonable interpretation of the regulation.
Energy West Mining Co. v. FMSHRC, 40 F. 3d 457, 463 (D.C. Cir. 1994); accord Sec'y ofLabor
v. Western Fuels - Utah, Inc., 900 F. 2d 318, 321 (D.C. Cir. 1990) ("agency's interpretation ofits
own regulation is 'of controlling weight unless it is plainly erroneous or inconsistent with the
regulation'" (quoting Bowls v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)) (other
citations omitted). Thus, we address whether the Secretary's proffered meaning and application
of section 75.521 is entitled to deference.
b. The Term "Exposed"

As a threshold matter, the meaning of the term "exposed" power conductors as
contemplated by the cited regulation must be resolved. The Secretary seeks to explain the
meaning of an "exposed" power conductor by relying on the provisions of MSHA's policy
manual that enumerate when a power conductor is "not exposed." Specifically, the relevant
provisions ofMSHA's policy manual state:
Conductors that are (1) provided with metallic shields; (2) jacketed by a ground
metal covering or enclosure; (3) installed under grounded metal :framework; (4)
buried in the earth; or ( 5) made of triplex or quadraplex that is supported by a
grounded messenger wire, are not considered exposed for the length so protected.
(Gov. Ex. 8).
Since the cited conductors satisfy none of the enumerated five requirements in the policy
manual, the Secretary asserts the power conductors are exposed despite their insulation and
containment in an outer cable jacket. The Secretary may not rehabilitate ambiguous mandatory
standards by simply explaining in MSHA's policy manual what she intended to, but did not say.
Rather, regulatory interpretations contained in policy manuals or opinion letters, not arrived at
through notice-and-comment rulemaking, lack the force of law and are not entitled to Chevron
style deference. Edward Christensen, et al. v. Harris County, et al., 529 U.S. 576, 586-87 (2000)
(citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)
(a court must give effect to agency's reasonable interpretation of an ambiguous statute);
Bulk Transportation Services, Inc. 13 FMSHRC 1354, 1360 (Sept. 1991) (policy manuals are
expressions of general policy and are not binding regulations); King Knob Coal Co., 3 FMSHRC
1417, 1420 (June 1981) (the express language of a statute or regulation "unquestionably
controls" over material in MSHA'S policy manual) (citations omitted).
Although I am not persuaded by the Secretary's reliance on MSHA's policy manual,
Subpart K of Part 1926 of Title 29 of the Secretary's regulation concerning electrical safety in

31 FMSHRC 655

the construction industry is instructive. 29 C.F.R. Subpart K of Part 1926. Section 1926.449
contains the definitions that are relevant to electrical safety. 29 C.F.R. § .1926.449.
Section 1926.449 reflects that the term "exposed" electrical cables has several meanings
depending on the term's context:
When referring to live parts, the definition of"exposed" is "[c]apable of being
inadvertently touched or approached nearer than a safe distance by a person. It is
applied to parts. not suitably guarded, isolated or insulated."
When referring to wiring methods, Section 1926.449 defines exposed as "[o]n
or attached to the surface or behind panels designed to allow access."
Wolf Run, relying on the functional purpose of insulated wires, as in the first definition
in section 1926.449, argues that the term "exposed" in section 75.521 applies to live electrical
conductors capable of contact. Wolf Run contends that the conductors in the charger cables,
the water pump cable, and the telephone and trolley wires were not exposed because they were
covered by insulation and/or housed in an outer jacket. Therefore, Wolf Run argues that the
subject conductors are nor governed by the lightning arrester provisions of section 75.521.
The Secretary, on the other hand, relies on a definition of"exposed" that is similar to
the wiring method definition in section 1926.449. The Secretary argues that insulated power
conductors prevent electrical shorts rather than protect against overvoltage. (Tr. 205). Similarly,
she asserts the outer jacket of the cable is designed to protect the inner leads from damage rather
than provide protection against lightning. (Tr. 218). Thus, despite the insulation and outer
jacket, the Secretary maintains that the subject power conductors are "exposed" because the
above ground portions of the cables containing them are exposed to the weather related
atmospheric effects of lightning.
The Secretary's interpretation of a regulation is reasonable where it is "logically
consistent with the language of the regulation and ... serves a permissible regulatory function"
General Elec. Co. v. U.S. E.P.A., 53 F.3d 1324, 1327 (D.C. Cir. 1995) (citation omitted). Here,
section 75.521 seeks to mitigate, by means of lightning arresters, the hazard posed by the high
powered transmission of electrical energy from a lightning strike from the surface to the
underground mine. Thus, the focus of the cited standard is on power cables that are situated on
the earth's surface and "exposed" to lightning. It naturally follows that the term "exposed
conductors" refers to the location outside the underground mine, rather than their method of
insulation and protection from human contact.
Moreover, the Secretary's interpretation that the term "exposed" refers to location rather
than wiring method is consistent with the language of section 75.521 that requires "suitable
lightning arresters of approved type within 100 feet of the point where the circuit enters the
mine." Thus, the Secretary's interpretation of"exposed" is consistent with both the language and
the purpose of the cited standard. Consequently, the Secretary's interpretation that the term
"exposed" reflects that the cable is on the surface rather than buried is manifestly reasonable.
31 FMSHRC 656

c. The Term "Ungrounded"
Having concluded that power conductors contained in above ground portions of cables
that run underground are "exposed," the focus shifts to whether the cited power conductors are
''ungrounded." Wolf Run contends the subject power conductors are grounded if the power cable
is grounded, regardless of the method of grounding. The Secretary takes the view that it is the
ground wire in the cable that is grounded rather than the power conductors. In this regard, she
emphasizes that the power conductors are not separately grounded because they carry electrical
energy. Consequently, the Secretary asserts that power conductors in exposed cables located
above ground are governed by section 75.521 even ifthe power conductors are contained in an
insulated cable that is connected to a neutral ground.
Before discussing the meaning of the term ''ungrounded" when read in the context of the
provisions of section 75.521, it is helpful to envision an illustration of the effect of connecting
a lightning arrester ground bed to the neutral grounds at the Sago Mine. Think of an electrical
path entering the mine from the surface in the shape of a: capital ''U." A lightning arrester ground
field is created on the surface at the top of one end of the "U," in this case under the substation.
The curved bottom of the "U" represents the power to the equipment located underground.
The remaining top of the "U'' is the site of the neutral grounds, also located on the surface.
(See App. I). At Sago Mine, the lightning arrester ground field located at one end of the "U,"
would be connected, through the metal conveyor frame ground medium, to the neutral ground
field at the other end of the ''U." In such an event, since lightning induced energy travels through
conductors in all directions, an electrical surge would be directed through the underground mine.
That is why it is impossible to install a lightning arrester on a cable that is connected
underground to the neutral ground fault medium and yet comply with the section 75.521
requirement that ground fields remain separate.
The Secretary's concept of an ''ungrounded power conductor" is fundamentally flawed
because: it is inconsistent with the technical definition; it is inherently inconsistent with the
separation requirements of section 75.521; it is contrary to the language in MSHA's policy
manual;3 and it undermines the purpose of the mandatory standard.

3

The policy manual states:

Lightning arrester ground fields shall be separated from neutral ground fields by at
least 25 feet. This distance prevents lightning surges from being transmitted to
the neutral field where they could momentarily energize the frames of equipment
grounded to the neutral ground field.
(Gov. Ex. 8).
31FMSHRC657

As a threshold matter, the Secretary's proffered meaning of ''ungrounded" is contrary to
the mining industry definition of the term. The industry definition of a "grounded power
conductor'' is:

An insulated or bare cable that constitutes one side of a power circuit and
normally is connected to ground. It differs from a ground wire in that a grounded
power conductor normally carries the load current while the equipment it serves is
in service.
Am. Geological Inst., Dictionary ofMining, Mineral, and Related Terms, 247 (2d. Ed. 1997)
(emphasis added).
Moreover, the Secretary's proposed meaning of the term ''ungrounded power conductor''
places the Secretary in the unenviable position of arguing that a mine operator must comply with
the first requirement of section 75.521, i.e., installation of a lightning arrester, even though such
compliance would violate the second requirement of this standard, i.e., separation of the ground
fields. Rather, the logical meaning of section 75.521 is that it requires that conductors in cables
that extend from the surface to the underground mine must be grounded to either a lightning
arrester ground field, or a neutral ground field, but not both.

fu addition, the Secretary's view that conductors in an insulated grounded cable are
''ungrounded" undermines the purpose of section 7 5.521. As previously noted, if the ground
fields are connected, the purpose of section 75.521 - to minimize the lightning energy that enters
underground - would be frustrated because excess lightning energy could by conveyed through
the underground mine from ground field to ground field. That is why the requirements in
section 75.521 of installing lightning arresters, and, separating the lightning arrester ground field
from the neutral grounds by a distance of at least 25 feet, are mutually exclusive. fu other words,
it is impossible to separate a lightning arrester ground field from a neutral ground field on a cable
that has ground fault protection.
fu the final analysis, the installation of lightning arresters on power conductors in a cable
that is grounded to the neutral ground is prohibited by section 75.521 because it would violate the
25 feet minimum separation. Thus, the Secretary's interpretation that power conductors
contained in insulated cables that are connected to a neutral ground system are governed by
section 75.521 is unreasonable. Rather, the term "ungrounded" in section 75.521, referring to
cables entering a mine that are not grounded, is a condition precedent for the applicability of
section 75.521. As Inspector Honaker testified, installing lightning arresters on conductors in
grounded cables is "doomed to failure." (Tr. 877).

31 FMSHRC 658

In reaching the conclusion that conductors must be connected to lightning arresters, or
connected through the neutral grounds, but not both, I am cognizant of the Secretary's legitimate
goal, particularly in light of the Sago explosion, of mitigating the danger posed by lightning.
The Secretary argues, in essence, that section 75.521 implies that exposed cables entering
underground are prohibited from connecting to the neutral grounds. However, "a regulation
cannot be construed to mean what an agency intended but did not adequately express."
Phelps Dodge Corp. v. FMSHRC, 681F.2d1189, 1193 (9th Cir. 1982) (citations omitted).

Moreover, as explained by fuspector Wooten, lightning arresters and neutral grounds
mitigate different hazards. Lightning arresters mitigate the hazard posed by lightning strikes by
dissipating electrical energy before it enters the mine. (Tr. 384). Neutral ground mediums
provide ground fault protection from electrocution by causing circuit breakers to trip in the event
of a short circuit in electrical mining equipment. (Tr. 277). If the Secretary wishes to
subordinate the hazard posed by short circuits to the hazard posed by lightning she should do so
by rulemaking. In other words, if the Secretary wishes to prohibit cables that enter an
underground mine from being connected to a neutral ground, or prohibit powering underground
equipment from an above ground power center, she should do so explicitly through a
notice-and-comment rulemaking rather than by inference and/or policy manual. 4
However, cables that run from the surface underground that are truly "ungrounded"
present an important distinction because they do not thwart the purpose of section 75.521.
In this regard, the installation of lightning arresters on power connecters contained in such cables
would be consistent with the purpose of section 75.521 -- to direct an electrical surge to the
lightning arrester ground field and away from the underground mine. Thus, the Secretary's
contention that conductors in ungrounded cables (that are not connected to neutral grounds) are
governed by section 75.521 is reasonable as it is consistent with the plain meaning of the
regulation.
By way of summary, power conductors contained in cables connected to the neutral
ground fault medium are not subject to the provisions of section 75.521 because they are not
'"ungrounded". Similarly, power cables~ telephone wires and trolley wires that are not grounded
are subject to section 75.521. Having determined that section 75.521 applies to ungrounded
power conductors that enter underground, we tum to the disposition of each of the subject
citations.

4

MSHA' s current application of section 75.521 apparently is a matter of first impression.
As Wooten explained, "[i]t's an unusual situation to find this like this because usually [mine
operators] want to power everything that's on the surface from the surface and ground everything
to that. And everything that's underground to the underground source."
(Tr. 321).
31 FMSHRC 659

d. Citation No. 7583340 -High Voltage Overhead Lines
As previously noted, Citation No. 7583340 states:
The lightning arresters grounding medium was not separated from the neutral
grounds by a distance of 25 feet. The arresters were wired in a manner that would
not prevent the frames of the equipment being used underground which are
connected to the neutral grounding field from becoming energized in the event of
a strike on the surface. The arrester ground was connected to the frames of the
surface belt structure which are entering the mine and are connected to the mine
track and all underground equipment.
(Gov. Ex. 4).
Citation No. 7583340 was issued because the lightning arrester ground for the overhead
high voltage lines was connected to a ground wire for the power cable supplying the surface belts
which in turn was connected to the conveyor belt frame on the surface. The problem arose
because the underground portion of the conveyor frame was the medium used to connect the
underground equipment to the neutral grounds. This condition clearly constitutes a violation of
the 25 feet separation required in section 75.521. Citation No. 7583340 exemplifies why section
75.521 does not apply to power conductors in cables that are connected through the neutral
ground medium.
To abate the citation Wolf Run was required to remove the ground wire for the power
cable supplying the surface belts from the belt frame. In effect, removal of the ground wire
separated the lightning arrester ground field from the neutral grounds.
Having determined the fact of the violation, we turn to the S&S issue. As a general
proposition, a violation is properly designated as S&S in nature if, based on the particular facts
surrounding that violation, there exists a reasonable likelihood that the hazard contributed to by
the violation will result in an injury or an illness of a reasonably serious nature. Cement
Division, National Gypsum, 3 FMSHRC at 825. In Mathies Coal Co., 6 FMSHRC 1
(January 1984), the Commission explained:
In order to establish that a violation of a mandatory safety standard is significant
and substantial under National Gypsum, the Secretary of Labor must prove:
(1) the underlying violation of a 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 [by the violation] will
result in an injury; and (4) a reasonable likelihood that the injury in question will
be of a reasonably serious nature.

31 FMSHRC 660

6 FMSHRC at 3-4; see also Austin Power Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988),
affg 9 FMSHRC 2015, 2021(December1987) (approving Mathies criteria).

In US. Steel Mining Co., Inc., 7 FMSHRC at 1129, the Commission explained its
Mathies criteria as follows:
We have explained further that the third element of the Mathies formula ''requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." US. Steel Mining Co., Inc.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(l ), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U.S. Steel
Mining Company Co., Inc., 6 FMSHRC 1866, 1868 (August 1984) (emphasis in
original).
The Commission subsequently reasserted its prior determinations that as part of any S&S
finding, the Secretary must prove the reasonable likelihood of an injury occurring as a result of
the hazard contributed to by the cited violative condition or practice. Peabody Coal Company,
17 FMSHRC 508 (April 1995); Jim Walter Resources, Inc., 18 FMSHRC 508 (April 1996).
Resolution of whether a particular violation of a mandatory standard is S&S in nature
must be made assuming continued normal mining operations. US. Steel Mining, 7 FMSHRC
at 1130. Thus, consideration must be given to both the time frame that a violative condition
existed prior to the issuance of a citation, and the time that it would have existed if normal
mining operations had continued. Bellefonte Lime Co., 20 FMSHRC 1250 (Nov. 1998);
Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986).
While unpredictable and random, lightning is an ever present danger during severe
weather conditions. Lightning's unpredictability and randomness must not be confused with the
severity or likelihood of the hazard. For example, it obviously is inadvisable, if not extremely
dangerous, to stand under a tree during an electrical storm. So too, it is dangerous to expose
underground miners to an electrical surge because high voltage overhead power lines entering the
mine are not effectively equipped with lightning arrester protection.
Although I have not concluded that a violation of the provisions of section 75.521
governing lightning arresters is a per se S&S violation, the particular circumstances of this
violation warrant an S&S designation. Significantly, the power line inadequately protected was a
high voltage line capable of carrying a significant surge of electrical energy underground. Such a
surge would create an electrocution hazard to miners who were in contact with, or in the vicinity
of, the conveyor frame or underground equipment. An electrical surge is also an ignition source
that could result in a fire or explosion. The Sago tragedy is a testament to the serious hazard
presented by exposing miners to lightning related dangers. Thus, the facts surrounding the cited
violation, when viewed in the context of continued underground mining operations, in an

31 FMSHRC 661

environment that is unprotected from high voltage lightning related hazards on a daily basis,
support the Secretary's assertion that the cited condition constituted an S&S violation and was
serious in gravity.
The Secretary has adequately supported her assertion that the cited violation was
attributable to a moderate degree of negligence in that the condition was in plain view and
subject to monthly electrical inspections. Wolf Run is a large mine operator that timely abated
the cited condition. The Secretary's proposed $963.00 civil penalty is consistent with the penalty
criteria in section 110(1) of the Mine Act. 5 30 U.S.C. § 820(i). Accordingly, a $963.00 penalty
shall be imposed for Citation. No. 7583340.
e. Citation Nos. 7583316 and 7583317 - Batteiy Charger Cables
Citation Nos. 7583316 and 7583317 essentially cite the same condition on two separate
power cables connected to battery chargers on the surface from a power center that was located in
an underground section of the mine. (App. I; Gov. Exs. 2, 3). The underground power center
was grounded through the metal frame of the belt conveyor to the neutral ground field on the
surface. The power cables cited in Citation Nos. 7583316 and 7583317 were used to supply
power to the No. 4 and No. 8 battery chargers, respectively. The cited conditions were abated by
removing the cables from the underground power source and supplying power to the chargers
from a power source located on the surface.
Section 75.521 prohibits connecting lightning arresters to power conductors that
are connected to the neutral grounds. This is illustrated by the condition cited in
Citation No. 7583340 concerning the high voltage overhead lines that was abated by
disconnecting the lightning arrester ground from the neutral ground conveyor frame medium.
Since the cited power cables in Citation Nos. 7583316 and 7583317 were connected to the
neutral ground medium through the frame of the underground conveyor, the power conductors
contained in the cables are exempt from the provisions of section 75.521. Accordingly,
Citation Nos. 7583316 and 7583317 shall be vacated.

5

In determining the appropriate civil penalty, section 11 O(i) provides, in pertinent part:

... 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.

31 FMSHRC 662

f. Citation No. 7582485 - Water Pump Cable
Citation No. 7582485 states:
The 120 volt underground cable supplying power from the fan house to the No. 3
pump at the [N]o. 10 cross cut in the track entry was not provided with a lightning
arrester.
(Gov. Ex. 1).
Unlike the power cables supplying the battery chargers, the cited power cable, connected
from the fan house located on the surface, to the pump located underground, was not connected
to the conveyor frame or otherwise connected to the neutral grounds. The pump was not
otherwise grounded as the ground wire was conducting electric current. The cited condition was
abated by powering the pump from an underground power source.
Since the cable was not connected to the neutral ground medium or otherwise grounded,
the cable was not exempt from the lightning arrester provisions in section 75.521. Thus,
WolfRun's failure to attach lightning arresters to the conductors contained in the cable
supplying power to the water pump constituted a violation of section 75.521.
I concur with the Secretary's designation of the cited condition as non-S&S in nature.
The water pump was located in an area of the mine that was isolated from other mine equipment.
For injury to occur, a miner would have to be in contact with the water pump the moment a
lightning strike caused a surge in the power cable. Fire was unlikely because of the damp
conditions in the vicinity of the pump. The negligence attributable to Wolf Run is moderate
because the pump was examined on a weekly basis. Consistent with the penalty
considerations in section llO(i) of the Mine Act, the $60.00 civil penalty proposed by the

Secretary is an appropriate penalty that shall be assessed for Citation No. 7582485.
g. Citation No. 7335233 - Tel~hone and Trolley Wires
Citation No. 7335233 states:
The exposed telephone wire and trolley phone wire that lead underground are not
equipped with suitable lightning arresters of approved type within 100 feet of the
point where circuits enter the mine. No lightning arresters were found.
(Gov. Ex. 5).
Both the cited telephone wire and trolley wire were connected from the dispatcher's
office on the surface through the portal of the track entry underground. (App. JI). The telephone
wire, consisting of two conductors, was hard wired to approximately 20 pagers underground.

31 FMSHRC 663

Neither telephone conductor was grounded. Consequently, each conductor required a lightning
arrester in accordance with section 75.521.
The trolley wire consisted of two wires that were separated at the track entry portal.
One wire was grounded by connecting it to the track at the mouth of the track entry. (App. II).
This wire did not require a lightning arrester because it did not extend to an underground area
of the mine.
The other trolley conductor served as an antenna. It was hung along the roof from the
mouth of the track entry to the farthest end of the track where it was grounded. A lightning
arrester was installed on this trolley conductor to abate the citation. The citation was also abated
by installing a lightning arrester on each of the ungrounded telephone conductors. The Secretary
proposed a civil penalty of $440.00 for Citation No. 7335233.
The parties have jointly stipulated that similar insulated power conductors for a
CO monitoring system at the Sago Mine, that also originated at the dispatcher's office, were
equipped with a transient voltage suppressor for protection against lightning. (Gov. Ex. 28).
Significantly, consistent with this decision, the parties' stipulations describing the CO monitoring
system that was protected from lightning do not reflect that the system's conductors were
grounded.
Section 75.521 applies to the telephone wire as neither of the two telephone conductors
was grounded. Accordingly, WolfRun's failure to provide lightning arrester protection for the
telephone conductors constituted a violation of the cited mandatory standard. However,
Wolf Run was not required to attach a lightning arrester to the grounded trolley wire suspended
on the track roof because it was grounded to the end of the track at the furthest point in the mine.
(677-80). I reach this conclusion based on Wooten's testimony that current carrying conductors
that are connected to ground are not governed by section 75.521. (Tr. 277).
With respect to the question of S&S, the Secretary contends that serious injury is
reasonably likely because the dispatcher and miners are regularly exposed to the telephone line
paging system. In evaluating the likelihood of injury, it is significant that, unlike high voltage
overhead power lines that are capable of carrying an excess electrical surge, the telephone
conductors are thin wires that have a relatively low voltage capacity of 12 volts. (Tr. 644).
A lightning surge can create over one million volts. (Tr. 220). Consequently, it is likely that a
lightning power surge would destroy the subject telephone conductors before they entered the
mine, a distance of approximately 400 feet from the dispatcher's office to the mine portal.
(Tr. 613). Thus, it is reasonably likely that lightning induced energy distributed through these
low voltage lines would be interrupted before it could create a significant ignition source or
electrocution hazard. (Tr. 644). Consequently, viewing the circumstances surrounding the
cited violation in their entirety, it cannot be said that the hazard contributed to by the violation,
i.e., a transfer of a high degree of electrical energy into the mine, causing serious or fatal injuries,
is reasonably likely to occur.

31 FMSHRC 664

fu view ofthe above, Citation No. 7335233 shall be modified by deleting the portion of
the citation concerning the trolley wires, and by reflecting that the cited condition was non-S&S
in nature. The record reflects the violation was attributable to a moderate degree of negligence
based on the failure of detection during weekly mine inspections. Consistent with the statutory

penalty criteria in section 11 O(i), a civil penalty of $60.00 shall be imposed for Citation
No. 7335233.
I note, parenthetically, that my conclusion that power conductors may be connected to
either a lightning arrester field or the neutral grounds, but not both, is consistent with MSHA's
enforcement history prior to the Sago mine accident. Specifically, the determination that section
75.521 applies to the ungrounded water pump power cable, but does not apply to grounded
battery charger power cables, is consistent with the relevant history of citations furnished by the
Secretary. fu this regard, none of the four citations relied on by the Secretary involving power
cable violations of section 75.521 reflect that the cited cables were attached to ground. (Gov. Ex.
25). Similarly, the 35 citations submitted by the Secretary that concern communication and
monitoring systems do not reflect the systems were connected to a neutral ground. (Gov. Ex.
26). Finally, the 18 citations submitted concerning past violations in instances where both the
lightning arrester ground and neutral grounds were tied to a common medium, such as a
conveyor frame, are similar to the overhead power line violation that has been affirmed in these
proceedings. (Gov. Ex 27).
Moreover, the outcome in this case is consistent with the enforcement history of
section 75.521 prior to the Sago disaster that was related by fuspector Wooten. Wooten noted
that he has issued citations for: communication wires that lacked lightning arresters; power lines
that violated the 25 feet minimum ground field separation; and damaged lightning arresters that
needed of replacement. (Tr. 318-19). However, Wooten's testimony does not reflect any history
of citations that were issued because power cables connected to neutral grounds did not have
lightning arrester protection.
fu the final analysis, the Secretary seeks to require, through an implicit interpretation of
section 75.521, that surface equipment must be powered from a power source located on the
surface, and, underground equipment must be powered from an underground power source.
Alternatively, if the equipment and power sources are not co-located underground or on the
surface, in lieu of installing lightning arresters, the Secretary, consistent with MSHA's policy
manual, seeks to require power cables on the surface to be buried, enclosed in a ground metal
covering, or provided with metallic shields. However, the explicit language of section 75.521
governs over the Secretary's proffered implicit meaning and the provisions of the policy manual.

31 FMSHRC 665

IV. Settlement and Total Liability
These civil penalty proceedings concern a total of 36 citations, 31 of which have been
settled. The total civil penalty initially proposed by the Secretary for the 36 citations was
$32,278.00. Pursuant to the parties' settlement terms, Wolf Run has agreed to pay $25,257.00
rather than the $28,339 .00 civil penalty initially proposed by the Secretary for the 31 settled
citations. The reduction in civil penalty is based on a reduction in the degree of negligence
attributable to Wolf Run with respect to several of the subject citations. I have considered the
representations and documentation submitted by the parties and I conclude that the proffered
settlement is appropriate under the criteria set forth in Section 11 O(i) of the Act. Consequently,.
the parties' motions to approve settlement shall be granted.
The Secretary proposes a total civil penalty of $3,939.00 for the five citations that
have been adjudicated in these matters. These five citations are Citation No. 7582485 in Docket
No. WEVA 2006-853; Citation Nos. 7583316 and 7583317 in Docket No. WEVA 2006-854;
and Citation Nos. 7335233 and 7583340 in Docket No. WEVA 2007-Q66.
Citation Nos. 7583316 and 7583317 in Docket No. WEVA 2006-854 have been vacated.
A total civil penalty of $1,083 .00 has been assessed in these proceedings for the three remaining
citations, consisting of a $60.00 civil penalty for Citation No. 7582485 in Docket No. WEVA
2006-853, a $60.00 civil penalty for Citation No. 7335233 in Docket No. WEVA 2007-666, and
a $963.00 civil penalty for Citation No. 7583340 in Docket No. WEVA 2007-Q66.
Consequently, WolfRun's total liability is $26,340.00.

ORDER
Consistent with this Decision, IT IS ORDERED that Citation No. 7583340 in
Docket No. WEVA 2007-Q66 IS AFFIRMED.

IT IS FURTHER ORDERED that Wolf Run Mining Company shall pay a civil penalty
of$963.00 in satisfaction of Citation No. 7583340.

IT IS FURTHER ORDERED tbat Citation No. 7335233 in Docket No.
WEVA 2007-Q66 IS MODIFIED by deleting the significant and substantial designation,
and that Wolf Run Mining Company shall pay a $60.00 civil penalty for the cited condition.
IT IS FURTHER ORDERED that Wolf Run Mining Company shall pay the $60.00
civil penalty proposed by the Secretary for Citation No. 7582485 in Docket No. WEVA
2006-853 that IS AFFIRMED.

IT IS FURTHER ORDERED that Citation Nos. 7583316 and 7583317 in Docket No.
WEVA 2006-854 ARE VACATED.
31 FMSHRC 666

IT IS FURTHER ORDERED that the parties' motions to approve partial settlement
ARE GRANTED. Consistent with the parties' settlement terms, IT IS ORDERED that
Wolf Run Mining Company shall pay a total civil penalty of$25,257.00 in satisfaction of the
remaining 31 citations that are in issue in these proceedings.
Consistent with the total civil penalty assessment of$1,083.00 for the five citations that
were adjudicated in these matters, as well as the parties' settlement terms, IT IS ORDERED that
Wolf Run Mining Company pay, within 40 days of the date ofthis decision, a total civil penalty
of$26,340.00 in satisfaction of the 36 citations that are in issue in these proceedings.
IT IS FURTHER ORDERED that, upon receipt of timely payment, the civil penalty
proceedings in Docket Nos. WEVA 2006-853, WEVA 2006-854 and WEVA 2007-666
ARE DISMISSED.

Jerold Feldman
Administrative Law Judge
Distribution:
Robert S. Wilson, Esq, Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., ·
22nd Floor West, Arlington, VA 22209
R. Henry Moore, Esq, Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Avenue,
Suite 1340, Pittsburgh, PA 15222

/rps

31 FMSHRC 667

'
'

~s
$·;

~

,!JI

~

II.,)

{i

Frames of eq1.1ip~nt and
lightning a~
connected to stafion
ground ·

t-Q-"

3 lightning arrestors 3
transformer frames ~nd
Verizon phone line
9~~nds solidly con ected

r~-~---..---,,-k~~
. . .,
c~~"jl.l:.

·. Single phase transformer
And lightning arrestor ground
Substation ground system

Overhead groundwires
Connected ,ti;>µghtning
Arrestor ground field

Appendix I

31 FMSHRC 668

Appendix II

31 FMSHRC 669

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

June 17, 2009

DYNAMIC ENERGY, INCORPORATED,
Contestant

v.
SECRETARY OF LABOR
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

CONTEST PROCEEDING
Docket No. WEYA 2007-448-R
Order No. 7264179; 04/26/2007
Mine ID 46-09062
Mine: Coal Mountain No. 1 Surface

DECISION
Appearances: Carol Ann Marunich, Esq., Dinsmore and Shohl, Morgantown, WV, for
Contestant;
Francine Serafin, Esq., U.S. Department of Labor, Arlington, Virginia, for
Respondent.
Before:

Judge Bulluck

In this proceeding arising under section 105(d) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 815(d) ("Mine Act" or "Act"), Dynamic Energy, Incorporated ("Dynamic")
challenges the validity of an order issued pursuant to section 104(d)(2) of the Act. 30 U.S.C.
§ 814(d)(2). The Order alleges that Dynamic violated 30 C.F.R. § 77.1607(b), a mandatory
safety standard for surface coal mines and surface work areas of underground coal mines. The
standard, which applies to loading and haulage equipment, requires that "Mobile equipment
operators shall have full control of the equipment while it is in motion." 30 C.F.R. § 77.1607(b).
While conducting an inspection ofDynamic's Coal Mountain No. 1 Mine, MSHA
Inspector Bruce Billups observed a tractor-trailer truck being pushed up a steeply inclined
haulage road by a grader. Billups believed that the truck driver was not in "full control" of the
tractor-trailer during the procedure, and consequently, issued Order No. 7264179 for violation of
section 77.1607(b). In addition to finding the alleged violation, Billups also found that it was a
significant and substantial ("S&S") contribution to a mine safety hazard, and that it was caused
by Dynamic' s unwarrantable failure to comply with the standard. Dynamic contested the Order,
asserting that there was no violation, or, if there was, it was not S&S or a result of unwarrantable

31 FMSHRC 670

failure. 1 Dynamic sought temporary relief from the Order. 2 The Secretary answered, asserting
that the Order was valid in all respects, and opposed temporary relief. I denied temporary relief,
and scheduled the matter to be heard in Beckley, West Virginia. 3
The issues are whether Dynamic violated section 77. l 607(b) and, if so, whether the
violation was the result ofDynamic's unwarrantable failure to comply with the standard.
I. Factual Backeround
Bruce Billups is an MSHA surface coal mine inspector, a position that he has held for

1 The Order was later modified to delete the S&S finding.

The unwarrantable failure

finding remained.
2

Section 105(b)(2), 30 U.S.C. §104(b)(2), of the Act provides for temporary relief from
an order issued under section 104.
3

Prior to the hearing, the Secretary moved for partial summary judgement. The
Secretary argued that the violation was established on the record. The parties agreed that the
grader pushed the truck up the hill and, in the Secretary's view, the act of pushing the truck
meant that Dynamic "concede[d] ... [that the truck was] assisted up the mountain." Mot. for
Partial Sum. Dec. at 2 (emphasis in original). Therefore, "[t]he only issue ... [to] be addressed
... [is] whether the driver of the ... truck ... had full control of that truck[,]" as required by the
standard. She argued that the key words of the standard are "full control" and, "[i]f a coal truck
driver need[ ed] assistance to navigate the road and [was] being pushed from behind by a grader,
then the driver of the truck clearly [had] yielded some control of the vehicle and it cannot be said
that the driver of that truck [had] 'full control' of the truck." Mot. for Partial Sum. Dec. at 2.
Dynamic countered, arguing that the motion should be denied, because the issue of
whether the truck driver had "full control" over the truck was a genuine issue of material fact. In
Dynamic's view, the regulation must be interpreted to hannonize, not conflict, with its objective,
which is the safe operation ofloading and haulage equipment. Use of the grader to assist a
haulage truck does just that, by "ensuring the truck's smooth operation." Op. to Mot. for Partial
Sum. Dec. at 3. The facts at hearing would show that, "[w ]bile the ... grader may give
assistance, the operator of the truck [was] always in full control ... [in] that the truck's steering
and braking control [was] not compromised and ... there [was] no danger." Op. to Mot. for
Partial Sum. Dec. at 3.
I deferred ruling on the motion at that time. I now DENY the Secretary's Motion for
Partial Summary Decision. As the hearing made clear, the material facts necessary to decide the
issue of liability are very much in dispute.

31 FMSHRC 671

over seven years; Before working for MSHA, he had 25 years of experience in the coal mining
industry. Much of his experience related to the operation of heavy mobile equipment such as
"loader[s], ... dozers, graders, [and] all different types of trucks." Tr. 13. Billups also served as
a surface coal mine foreman. Tr. 14.
The contested Order had its antecedent in an event that occurred on April 25, 2007. On
that date, Billups was conducting an inspection of the Coal Mountain No. 1 Mine, a surface coal
mine located in Wyoming County, West Virginia. Tr. 8; see Stip. 2. Shortly after arriving at the
mine, Billups observed a grader sitting close to a coal haulage truck near the bottom of the
mine's main haulage road. 4 Billups approached the grader operator and asked him what he was
doing. The operator told Billups that when haulage trucks lost traction and were unable to
ascend to the top of the road, he moved the grader behind the trucks and pushed until the trucks
regained enough traction to move on their own. Tr. 16. Billups advised the grader operator that
pushing the trucks was a "bad practice." Tr. 16. He also told the operator that he would discuss
the practice with the mine foreman, Kirby Bragg. Tr. 16.
Later that day, Billups met Bragg. He told Bragg that he, Billups, did not think it was a
good practice to push the loaded coal trucks up the steep grade. Tr. 17. fu fact, Billups indicated
that he believed that the practice violated section 77 .1607 (b). Billups stated, "I told him what
the law was or the standard and I read it to him." Tr. 76; see also 54, 87. Billups testified that he
warned Bragg that if he saw the practice repeated, he would cite the company for a violation of
the regulation. Tr. 75. According to Billups, Bragg stated that he did not think that the practice
was a violation, and that MSHA and the company would have to "agree to disagree." Tr. 17, 76;
see also 369; Ex. 12.
Billups returned the following day to complete the inspection. Upon reaching the mine,
he contacted Bragg, asked him ifhe would like to accompany him, and Bragg declined. Tr. 19.
As Billups traveled in his car toward the area where he intended to resume the inspection, he·
overheard a haulage truck driver on the mine's Citizen's Band ("CB") radio system state that his
truck was stuck and needed a push. Tr. 20. Billups turned his car around and headed toward the
haulage road where he saw the 18-wheel truck. Tr. 20. It had lost traction and could only spin
its wheels. Tr. 20. As Billups watched, he saw the grader "come down the hill, tum around, and
then start to push the truck up the steep grade." Tr. 21; see Ex. R-1 through R-3. The road was
very dusty and, according to Billups, much dust was thrown up by the truck's movements.
Tr. 27; see Ex. R-1 through R-4. Billups did not know how fast the truck and grader were
traveling during the assist, nor did he ask. He did not interrupt the assist, but instead, called
Bragg on the CB radio and informed Bragg that he would issue a withdrawal order. Tr. 26, 6263. He also contacted the truck driver and told the driver that he wanted to speak with him
before he left the mine. Tr. 26.

4

The gravel-surfaced road was steeply inclined. Near its midpoint was a sharp
switchback. Fully loaded haulage trucks were required to ascend the road.
31 FMSHRC 672

After observing the grader operator assist the truck driver, Billups issued Order No.
7264179. The Order states, in relevant part:
The driver of the loaded Kenworth tractor trailer truck Serial No. 98526
being used at the mine to haul coal over a loose dirt and gravel roadway
did not have full control of the truck while it was in motion, in that he had
to be pushed upgrade by a 14H Caterpillar motor grader. It is reasonable
to think that if this continues the truck driver could be injured when
exposed to the hazards of bed pins breaking, or fifth wheel king pin
breaking causing the cargo trailer to be shoved into the truck operator's
cab area. The mine foreman of the operator was warned of this violation
in a pre-inspection conference on 04-25-2007. This violation is an
unwarrantable failure to comply with a mandatory standard.
Ex. R-5.

II. Findin2s of Fact and Conclusions of Law
A. Testimony of the Secretary's Witnesses
1. Bruce Billups
As previously noted, section 77. l 607(b) requires a haulage truck driver to have "full
control" of his truck while it is in motion. Billups issued the Order because, during an assist, the
driver "does not have full control of the steering. He does not have full control of the braking,
and he does not have full control of his acceleration." Tr. 29.
Billups explained that when the truck is being pushed and the truck driver turns the
truck's wheels, ''the tractor [part of the truck) is still going forward ... and the grader is actually
forcing the tractor part of the truck through the turn." This, he stated," is known as
jackknifing."5 Tr. 35. Billups maintained that jackknifing can very easily happen when the road
is composed of loose gravel and dirt, and that on April 26, such was the composition of the
roadway. Tr. 35; see Ex. R-5, R-6. He also stated that the "[truck] driver ... cannot stop as he
wants to," because the force applied by the grader from behind can continue even though the
truck driver applies the brakes. Tr. 34. Billups agreed, however, that the truck driver retained

5

Jackknifing was best explained by Dynamic's expert witness, Jose Calgone. He
testified that it occurs when ''the trailer starts overcoming the tractor .... [and] the direction of
the tractor and the trailer, instead of being one behind the other, starts changing angles." Tr. 363.
According to Calgone, jackknifing can happen "on icy roads, abrupt maneuvers, sudden changes
of direction by the driver ... usually at highway speed." Tr. 363.
31 FMSHRC 673

the ability to use the truck's brakes, as needed. 6 Tr. 67.
Billups also testified that when the truck driver sees an obstruction in the road, such as a
large rock, he ''will tend to let up on the fuel," but the grader operator will continue to push the
truck. Tr. 30. Thus, the truck operator has "cede[d] ... power :from the engine when he let up to
get over a rough area or obstacle." Tr. 30. "[I]f he wants to slow the truck down to go over ...
[a] hump, when he decelerates, the grader still has that driving force pushing him fotward. So he
[does not] have full control of the truck." Tr. 31. Such a situation is dangerous because the force
:from behind can put "oodue pressure" on the bed-pins holding the cargo trailer to the trailer bed,
and on the king-pin connecting the tractor to the trailer. Tr. 37-38. Should either the bed-pins or
king-pin break, the cargo trailer can be forced into the truck's cab. 7 Tr. 37-40. Billups admitted,
however, that he had no idea of the amount of mechanical force necessary for the grader operator
to push the truck bed into the truck cab. Tr. 82-83. He also admitted that, after the grader
finished pushing the truck, he examined the tractor-trailer and found no defects; the bed-pins and
the king-pin showed no visible damage. Tr. 65-66.
With regard to other possible hazards, Billups expressed. concern that the truck driver
might be unable to timely-Stop, in the event that other equipment using the road were on a
collision course with the truck. He understood that during the assist, the truck driver could not
see any oncoming traffic in the ''very steep" area of the road's switchback turn. Tr. 44.
Therefore, the grader operator would continue to push the truck, even though the truck driver
would be trying to bring the truck to a halt. Additional hazards to the truck driver included a 60foot drop-off along one side of the road, as well as a drainage ditch or "sump hole" at the bottom
of the drop-off. 8 Tr. 45-47, 49; see also 125; Ex. R-10.
Finally, Billups explained that when a grader is assisting a tractor-trailer, the grader
operator and the truck driver communicate by CB radio on a channel that is different from that
regularly used by equipment operators at the mine. Tr. 63. Billups expressed concern, however,
that other equipment operators could interfere with the effectiveness of the communication by
unintentionally overriding their designated channel. Tr. 53-54. Billups testified that there had

6

The tractor-trailer's brakes were described by MSHA's expert witness, Ronald Medina,
as consisting of foot operated hydraulic service brakes and spring operated parking brakes. The
parking brakes are not on each wheel and, in general, the service brakes are 50% stronger than
the parking brakes. Tr. 160.
7

Although Billups admitted that he had never seen a bed-pin break as a result of a grader
pushing a tractor-trailer, he maintained that he had heard about it happening "through casual
conversation." Tr. 80. In fact, he stated, a front-end-loader had shoved a tractor-trailer into, and
through, the cab of a truck at a mine operated by Princess Susan Coal Company near
Montgomery, West Virginia. Tr. 81.
8

Medina confirmed, however, that the roadway was "bermed." Tr. 158.
31 FMSHRC 674

been "a multitude of injuries associated with pushing," including injuries to drivers' necks,
backs, and heads, as well as sprains. In his opinion, such injuries were reasonably likely to be
fatal. 9 Tr. 87, 97.
Due to the warning given to Bragg on April 25 about the assist practice, Billlups found
that the alleged violation, committed the next day, was the result ofDynamic's unwarrantable
failure.
2. Ronald Medina

Ronald Medina, a mechanical engineer working at MSHA's Approval and Certification
Center, appeared as an expert witness for the Secretary. See Tr. 102. Medina described the areas
in which he specialized as "hydraulic systems and air systems such as brake systems [and]
steering systems." Tr. 104. He also stated that he participated in approximately 10 to 12 MSHA
accident investigations per year, in order to "evaluate the equipment ... involved in the accident
and determine ifthere were any equipment-related defects that contributed to the accident."
Tr. 105.
In preparing for his testimony, Medina went to the mine with Inspector Billups and took
measurements of the steepness and length of the road where the truck had been pushed. Tr. 106.
He also reviewed photographs of the truck in question. Tr. 106. Referring to the notes and
diagrams that he had made during his investigation, Medina described the subject haulage road as
being composed of dirt covered with loose gravel, and connecting with a state public road used
by regular car traffic. Tr. 107-09, 115. According to him, part of the road was "fairly steep," in
that a 17 % grade lead to the first switchback. Tr. 109, 111. Just before the switchback, the
grade increased to 18% and, as the road entered the switchback, the grade increased again to
19%. Tr. 110; Ex. R-10.
In Medina's opinion, there are several reasons why a truck driver would not have full
control of a fully loaded tractor-trailer haulage truck when it is being pushed by a grader. First, if
the truck driver takes his foot off of the throttle pedal, "there's still the force and the momentum
of the motor grader behind him that pushes him ... forward even though he let his foot off the
9

Billups confirmed that, during his deposition, he had stated that he knew of no fatal
injuries or any other injuries resulting from the practice of pushing tractor-trailor trucks with
equipment. He maintained, however, that since his deposition, he had become aware of MSHA
data showing that "multiple injuries" had been caused by the assist practice. Tr. 57. Medina's
opinion on the likelihood of fatal injuries as a result of the maneuver was more speculative. He
knew of no incidents which had lead to a fatal accident, but believed that there were
circumstances in which the practice "could cause the driver to lose some control of the truck, and
it could develop into a fatal accident." Tr. 162-63 (emphasis added).

31FMSHRC675

throttle pedal." Tr. 112. Moreover, when the truck driver puts his foot on the brake pedal, the
truck's brakes also have to contend with the force of the grader as it continues to push on the
truck which, in tum, increases the stopping distance of the tractor-trailer. Tr. 112-13.
Pushing from behind also increases the possibility that the tractor-trailer will jackknife.
Medina stated that "when the ... grader is pushing on the back of the trailer ... the trailer in tum
pushes on the back of the tractor, so there's a possibility that ... the vehicle will want to fold or
jackknife." Tr. 113-14. The danger of jackknifing is increased if the truck spins out. Tr. 114.
Because of lost traction, the tractor would not be helping in any way to propel the trailer. All of
the force would be coming from the grader, which would increase the possibility that the tractortrailer would "fold." Tr. 117. Further, as the truck is being pushed into the switchback curve, the
danger of jackknifing increases. Tr. 116. Once the tractor turns into the curve, the "difference in
the angle" between the tractor and the grader means that the force from the grader increases the
pressure on the truck to jackknife. Tr. 117-18.
Additionally, Medina believes that the rough patches in the road are another cause for
concern, in that they could cause the tractor-trailer and the grader to separate as the grader pushes
the truck. When the grader reestablishes contact, both vehicles could be jarred and jostled, which
could interfere with the truck driver's ability to steer, shift, and apply the brakes. Tr. 118-19.
Medina also testified that the grader, which is one third of the weight of the loaded truck,
does not have the "traction to be able to control the haul truck if something went wrong and the
haul truck started going backward down the slope." Tr. 119; see also 121-22, 166. This could
happen if the truck's brakes fail or their holding capacity were, for some reason, diminished.
Tr. 119-20, 130. Also, if the truck's U-joint breaks, the truck loses power to its rear wheels and,
in Medina's opinion, "anytime a truck ... on a very steep road ... loses its engine power ...
that's a dangerous situation." Tr. 168. The driver might delay applying the brakes, thinking that
the truck has just jumped out of gear, and the truck could begin to roll backwards, pushing the
grader down the hill with it. Tr. 120-21, 128-29.
According to Medina, another potential loss of control could occur when the grader
pushes the truck around the switchback curve. The grader operator may not be able to see what
is in front of the truck. If another truck is approaching from the opposite direction, the truck
driver may want to stop or slow down, but the grader operator would be unaware of what the
truck driver faces. Consequently, the grader operator would continue pushing the truck where
the truck driver does not want to go. 10 Tr. 132.
Finally, like Billups, Medina believes that an undetected defect could cause the tractor's
10

Medina was concerned that the truck driver and grader operator would be unable to
communicate fast enough via CB radio, to prevent an accident. He was also concerned about
another miner "talking on" the CB channel that the pair was using. Tr. 131-32.

31FMSHRC676

bed-pins or king-pin to fail as the grader pushes the truck from behind. If this were to happen, he
is concerned that the trailer would be pushed into the truck's cab. Tr. 133, 153. In sum, Medina
opined that the practice results in the truck driver "ced[ing] some of the control of the truck to the
grader operator." Tr. 107.

B. Testimony of Dynamic's Witnesses
1. Bobby Justice
B&J Trucking Company owned the truck in question, and Bobby Justice is the owner of
B&J and has driven the truck. Tr. 171-72. Justice has spent 28 years as a truck driver and he and
his company have been associated with Dynamic for six or seven years. Justice testified that the
practice of a grader assisting a tractor-trailer truck up a steeply graded road is common in the
surface mining industry. Tr. 172. He estimated that he had driven trucks assisted by graders
approximately 20 times at Dynamic's mine. He had never been advised that the practice was
unsafe, nor had the drivers ever complained about safety. Tr. 172-73. He indicated that he was
unaware of any accidents resulting from the practice. Tr. 186.
According to Justice, there is a difference between losing traction, which prevents further
travel, and losing control, which prevents steering or stopping. Tr. 174. In his opinion, when a
truck is being pushed, the truck driver "is definitely in full control"ofthe truck, because of full
use of the throttle, brakes and steering. Tr. 175.
Justice explained his understanding of how the practice of assisting trucks works. When a
truck first loses traction, a supervisor is called and informed of the problem. Tr. 180. The grader
operator is then directed to go to the area where the truck has stalled and assist the truck.
Tr. 180. Justice believes that everyone at the miQ.e knows that the truck is going to be assisted,
because they overhear discussions via the mine's CB system. Therefore, "everybody stops and
waits on the truck to be assisted." Tr. 179. Once the grader reaches the truck, the driver and the
grader operator get on the same CB channel, which means that any problems that develop during
the assist will be "instantly" communicated. Tr. 180-82. The driver puts the truck in the lowest
gear possible, and the grader pushes the truck until it can move on its own. I 1 Tr. 175-76.
Because the truck is in low gear, the truck and the grader always travel at speeds ranging from
three to five miles per hour. Tr. 175, 186-87, 196-97. The low speeds mean that dust is not a
problem for the truck driver or the grader operator. Tr. 186-87, 198. Normally, the assist starts
at the steepest part of the road, and it lasts for no more than 30 feet before the tractor-trailer

Justice maintained that he never experienced a truck coming out of gear during an
assist. However, were such a thing to happen, he believes that the truck driver would simply
activate the emergency brake and stop the truck. Tr. 179.
II

31 FMSHRC 677

regains traction.12 Tr. 179, 195.
The truck driver retains the ability to use his brakes. The brakes are subject to inspection
on a daily basis before the truck is taken onto the road. 13 Tr. 176-78. According to Justice, if the
truck's hydraulic brakes lose air and become defective, they will "lock up" and the truck will
stop. Tr. 177. Justice believes that once the brakes lock, they hold the fully loaded truck, even
on a 17% to 19% grade. Tr. 200-10. Therefore, the truck will not roll backward down a grade.
Tr. 200-10. However, Justice acknowledged that brakes can go out of adjustment, which could
affect a truck driver's ability to stop as quickly as he would like. Tr. 191. In Justice's opinion,
even if, for some reason, a truck loses its brakes and starts rolling backwards, it can be stopped
because the grader has good brakes and, in addition, the grader operator can lower the grader's
blade. Tr. 182. In addition, if, for some reason, the truck's transmission slips out of gear into
neutral on its way uphill, the truck driver would "probably just lock his truck up," by engaging
the emergency brake, which would probably necessitate dumping the load. Tr. 194.
Justice testified that he has never had a truck jackknife during an assist, and that he does
not understand how such a thing is possible. Tr. 185-86. Furthermore, he does not believe that a
truck can go off the road while it is being assisted, because the truck driver has full control.
Tr. 186.
2. Derick Steele
Dynamic also called as a witness Derick Steele, the driver of the truck involved in the
assist in question. Steele testified that he has been driving at the mine for approximately two
years. He explained the assist process from the standpoint of a haulage truck driver, He stated
that he is able to determine whether he will need an assist by the way the load feels. If he thinks
an assist is necessary, he will pull to the side of the road .and make sure the grader operator is
alerted via CB radio. After the grader reaches the truck, Steele and the grader operator, "get
on the CB radio and ... have a discussion." Tr. 206. Steele tells the grader operator what gear
the truck will be in, or the grader operator tells Steele what gear the truck should be in--usually
first gear or, as Steele called it, "low, low gear." Tr. 207. All other traffic on the road is stopped.
Tr. 206. Once the grader begins to push the truck, Steele does not change gears. Tr. 208. The
grader operator pushes until the truck gets traction. Tr. 207. While the grader operator is
pushing, Steele has his foot on the throttle. Tr. 209. Ifhe needs to communicate with the grader
operator, he does so over the CB radio. Steele maintained that he never experiences any

12

However, truck driver Derick Steele believes that a truck is usually pushed for "30 to
40 foot, 50 at the most," during an assist. Tr. 214.
13

Grader operator Kenneth Kenneda noted that, although equipment is pre-shift
examined, there are times after the examination when mechanical failure will occur during the
course of the shift. Tr. 264.

31 FMSHRC 678

bumping or jostlirig, because the truck and grader move as a unit. "Me and Darren help one
another," he testified. "If the truck's going and the grader's going, we go. Ifl stop, we don't go.
Ifhe stops, we don't go. You got to help one another. It's teamwork." Tr. 210. Moreover, he
has never had dust-related visibility problems during an assist, because the vehicles do not travel
at speeds that would raise appreciable dust. Tr. 219. Steele also testified that when the grader is
pushing the truck, he can always steer it. Further, although he has the ability to use the truck's
brakes, there is no need to do so. Before the truck gets to the switchback turn, the road levels
somewhat and the truck. usually regains traction. Steele advises the grader operator over the CB
radio that he has traction. The grader will stop pushing, Steele switches gears, and the truck pulls
away. Tr. 215, 219, 223-24.
Steele stated that he does not worry about the truck going over the embankment during
the assist, because the roadway is bermed and "kind of wide," and it gets wider after the curve.
Tr. 216. Further, the truck has traction and is usually moving on its own by the time it reaches
the spot in the road where it could roll off and end up in the sump area. Tr. 216. Additionally,
Steele maintained that he is not worried about jackknifing, because he believes that if the truck
stops, the grader is unable to push it. Tr. 218.
Finally, Steele testified that, although he has experienced problems with a coal haulage
truck coming out of gear and with a broken U-joint, in such case, he is not concerned about the
truck rolling backwards into the grader, because the truck's brakes are reliable. Tr. 226. In this
regard, Steele noted that he conducts a pre-shift examination of the truck, during which he checks
"the tires, the brakes, the drive lines, ... [the] wheels and everything." 14 Tr. 227.
3. Darren Kenneda

Darren Kenneda, the grader operator involved in the assist maneuver at issue, was also
called by Dynamic to testify. Kenneda's description of what usually happens during an assist
mirrored Steele's. Tr. 236-38. Kenneda emphasized that, because the truck moves slowly, the
grader and truck are always in contact and there is no bumping and jostling. Tr. 242. In addition,
he has never experienced a time when he could not communicate with the truck's driver.
Tr. 240. Kenneda always instructs the driver to keep his foot on the throttle, because ifthe driver
takes his foot off, the grader will not be able to push the truck. The loaded truck is just too
heavy, he testified, and without the extra help from the truck, both the truck and grader will come
to a stop. Tr. 241.
Kenneda insisted that he has never experienced problems during an assist. He has never
feared going off the road and over the embankment, or into the sump, because the road is

14

He subsequently testified, however, that "anything is possible," even brake failures.

Tr. 230.
31 FMSHRC 679

"decently wide.,,. Tr. 245-250. He stated that he has never experienced visibility problems. 15
Once the truck enters the switchback, Kenneda can see what is in front of the tractor-trailer, and
if his view is obstructed and another vehicle is coming down the hill, the haulage truck driver
will alert him on the CB. Tr. 264, 268. As for the possibility of jackkniffing, Kenneda does not
believe that it can happen, because if the truck stops, the grader does not have enough power to
move the truck. Tr. 250. For these reasons, Kenneda believes that the truck and the grader are
always under control. 16

4. Kirby Bra1:&
Mine Superintendent Kirby Bragg was the last non-expert witness for Dynamic. Bragg
recalled the inspection of April 25 and 26, and testified about his view of the practice of assisting
tractor-trailer trucks with graders. Bragg has worked in the mining industry since 1975. He
maintained that the practice is common, and that wherever he has worked that tractor-trailers
have been used to haul coal, graders have been used for assistance. Tr. 286.
Bragg described what he recalled happening on April 25:
[Billups] noticed that the grader operator was sitting at the bottom of the
hill. He asked me what the grader operator was doing. I said he was
waiting there to assist some tractor-trailers in that curve area. He
explained to me that he didn't think that was a good practice. And he
explained to me that he didn't like that idea because he thought there was a
possibility that they would not be in full control of their vehicles. And I
explained to him that ... it's a common practice that occurs elsewhere on
other operations, this operation as well, and that both the truck driver and
the grader operator had full control of their equipment they were running,
and it was only for a short ... distance and it was at very slow speeds.
Tr. 286; see also 292. As Bragg remembered, during the discussion, Billups made clear that he
believed that the practice violated section 77.1607(b), but Bragg did not recall Billups saying that
if he saw the grader assisting a tractor-trailer in the future, he would cite the company. Tr. 291-

15

Kenneda maintained that the truck and grader go so slowly that they do not raise "that
much" dust. Moreover, the fans that cool the engine on the front of the truck blow downward on
the roadway, rather than to the side of the truck. Tr. 249.
16

On cross examination, however, Kenneda agreed that if the truck lost its brakes and
rolled back toward the grader, the grader would not be able to stop the truck. Tr. 253. Although
he has never experienced a loss of brakes, he has heard about it happening to other drivers. He
has also heard about problems with a U-joint breaking, problems with steering, and problems
with the transmissions. Tr. 263. Further, he admitted that if the grader's engine stalled while
assisting a truck, the truck would try to move forward. Tr. 254-55.
31 FMSHRC 680

92. Bragg did notinstruct those who worked under his supervision to discontinue the practice,
because "it was an accepted practice," one that had been conducted ''time and again." Tr. 292.
fu fact, depending on weather and road conditions, the practice was an "everyday occurrence."
Tr. 293.
On April 26, when Billups told Bragg that he had seen a grader assisting a tractor-trailer
and, consequently, that he would issue an order, Bragg responded that he did not think that the
practice violated any regulations. Nonetheless, Bragg instructed the grader operator to
discontinue the practice until further notice. 17 Tr. 297.

5. Jose Calon2e
Jose Calonge testified as a tractor-trailer and transportation expert witness for Dynamic.
Calonge holds a Bachelor of Science degree in mechanical engineering from the Missouri School
of Mines and Metallurgy, and is a transportation consultant. Prior to becoming a consultant, he
worked as the chief engineer for Fruehauf Trailers, and he has worked for approximately 40 years
in the trucking industry. 18 Tr. 302-06.

fu preparation for his testimony, Calonge prepared a report based on his review of
documentary background materials and a trip to the mine. Tr. 304-05; Ex. C-7. Calonge testified.
that the practice of pushing a loaded truck is "pretty common, not only ... in the coal industry,
but a lot of industries ... either because of the grade or because of the terrain, mud, obstacles."
Tr. 305; see also 310.
For several reasons, Calonge is also of the opinion that the practice is safe. He explained
that when a tractor-trailer needs an assist, it is because there is insufficient traction between the
wheels of the tractor pulling the trailer up the hill. Therefore, pushing from behind overcomes
the inertia holding back the truck. Tr. 310-11. Calonge described the procedure as benign.
"There's no way ... that he [the driver] cannot have control of this equipment at this very low
speed .... everything is very controlled." Tr. 311. The slow speed allows the truck driver and
the grader operator "ample time to react to any circumstance that might arise .... " Tr. 329.
Although he agreed that the truck could jackknife because of the way the tractor and the trailer
are linked together, Calonge concluded that the slow speed of the vehicles during an assist makes
it ''very unlikely'' to happen. Tr. 322, 351-52. He also opined that the slow speed of the vehicles
makes bumping and jostling a non-issue, as well. Tr. 322.

17

Since issuance of the Order, 18-wheel tractor-trailer trucks are no longer used to haul
coal at the mine, and have been replaced by 10-wheel tandem trucks. Although the tandem
trucks haul less coal than the tractor-trailers, they can ascend the hill without assistance. Tr. 26263, 266-67.
18

However, Calonge is not a professional engineer, and he has no prior experience in the
mining industry. Tr. 333.
31 FMSHRC 681

Calonge expressed no concern that the practice would result in the trailer being pushed
into the cab of the truck as a result of the king-pin failing. He described the king-pin as a ''very
strong structure" that can withstand forces far in excess of those exerted during an assist.
Tr. 309. In fact, he testified that it takes 210,000 pounds of force to shear a king-pin and, at
most, a grader can apply between 25,000 to 30,000 pounds of force. Tr. 321. Further, Calonge
did not believe that failure of the bed-pins could cause a loss of control, because the tractor is
connected to the trailer by "a massive six, seven-inch diameter cylinder in front of that trailer,
[and] this humongous hydraulic cylinder ... is not going to shear." Tr. 319-20.

In Calonge's view, it only takes from 10 to 12 feet of pushing for the truck to gain
traction, "otherwise, it's not going anywhere ifthe wheels are spinning." Tr. 345. Calonge
believes that the grader does not have enough power, by itself, to push the trailer and tractor
uphill when the truck has lost all traction. Tr. 345. Furthermore, from the moment the tractortrailer begins to move, the driver has directional control, and ifthe driver applies the truck's
brakes, the grader does not have enough power to hinder the ability of the tractor-trailer to stop.
Tr. 312, 345-47. Even were the tractor~trailer to lose its service brakes, the brakes would lock
instantaneously on all five axles, and the locked brakes have more than enough capacity to hold a
fully loaded truck, even on a steep hill. Tr. 314-15; see also 334. Moreover, the automatic slack
adjusters on the service brakes mean that the brakes are always properly adjusted. 19 Tr. 317. In
addition, were the truck driver to apply the brakes and the grader were to continue pushing, the
difference in weight of the tractor-trailer and the grader means that the truck would still stop;
The grader simply does not have the power to overcome the weight of the truck. Tr. 318-19.
Further, any time the truck moves in a direction that the driver does not want--for example, if the
truck's transmission fails and the truck begins to roll backward--all the driver has to do is apply
the emergency brake by pulling a lever on the dash board. Tr. 323.
Calonge admitted that his opinions regarding the truck's braking ability and the force
with which the grader pushed, were not based on any mathematical calculations. Tr. 317. He
justified his position by stating that "when you do this for 40 years it's second nature, you
understand these things, not to have to write them and do calculations." Tr. 338.

C. Fact of Violation
The Secretary emphasizes that the standard requires a mobile equipment operator to have
''full control of the equipment while it is in motion." 30 C.F.R. §77.1607(b) (emphasis added).
She states that "the main issue in this case is what is 'full control' and whether or not the
operator of the coal truck is maintaining 'full control' when he is being pushed from behind to
get assistance up the steep grade of the haul road." Sec'y Br. at 6. The Secretary points to
Billups' testimony that during the course of a push, the driver necessarily cedes some control of
the tractor-trailer to the grader operator. She particularly notes Billups' testimony that during the

19

Calonge noted that the equipment is inspected every day and is well maintained.
Tr. 341-42.
31 FMSHRC 682

assist, there are times when the driver needs to decelerate due to road conditions, but the grader
continues to push the truck forward, interfering with the driver's control of the truck. 20 Sec'y Br.
at 8. The Secretary states that when the driver takes his foot off of the accelerator, ''the
propulsion of the truck is being altered by the pushing force of the grader." Sec'y Br. at 9.
Also, according to the Secretary, the braking ability of the truck driver is compromised
because when the driver applies the brakes, the grader continues to push the truck forward.
Sec'y Br. at 8. Citing to Medina's testimony, the Secretary argues that if the truck driver
attempts to apply the brakes while being pushed by the grader, the normal stopping distance is
increased because the truck must also stop the force of the grader, which is continuing its forward
thrust. Sec'yBr. at 10. Therefore, the grader causes the truck driver to "[lose] some control over
[his] braking capabilities." Sec'y Br. at 10. Moreover, there is a possibility that the truck is
subject to an involuntary loss of control, as the grader pushes the truck forward and the truck
begins to tum through the curve of the switchback. The Secretary asserts that, "there is a
possibility that the grader will push the tractor-trailer portion of the truck into a jackknife."
Sec'y Br. at 8. She especially notes Medina's testimony that pushing the truck through the
switchback increases the potential for jackknifing. Sec'y Br. at 10-11.
The Secretary maintains that ''the plain language of the standard ... requires that the coal
truck be able to navigate the haul road under its own power and under the full control of the truck
driver," and that the truck driver lacks "full control over the propulsion, braking and steering of
the equipment," thus establishing the violation. Sec'y Br. at 11.
The company counters that the evidence proves that the grader operator and the coal truck
operator are always in full control when the grader is assisting the tractor-trailer. Dynamic
emphasizes that neither the cited grader nor truck was defective and, when Billups watched the
assist, both vehicles were where their operators intended. Dynamic Br. at 3-4. The company
cites Garrett Const. Co., 4 FMSHRC 2202 (Dec. 1982), in which Commission Administrative
Law Judge Charles Moore found that the operators of equipment that collided, nonetheless, had
"full control" when their vehicles were not defective and the vehicles went where the operators
intended. Dynamic Br. 3-4. Dynamic also notes that the testimony establishes that the practice
of assisting haulage trucks up a grade is common in the industry. Dynamic Br. at 5.
Dynamic argues that the Secretary should be required to establish either that the inspector
observed some loss of control, or that the inspector observed a hazard. Dynamic Br. at 6. All
that Billups observed was a loss of traction, which is not the same as a loss of control. Dynamic
Br. at 7. Moreover, according to Dynamic, the testimony establishes that the practice was safe,
because of the many precautions that were in place. In particular, the slow speed of the assist
rendered the truck driver and grader operator able to react to any situation that might arise.
20

The Secretary also notes that the same problem was identified by her expert witness,
Medina. Sec'y Br. at 9.

31 FMSHRC 683

Dynamic Br. at 7~ 11. The evidence further establishes that the truck retained its braking and
steering ability during the assist and, finally, that the truck driver and the grader operator were in
constant communication via CB radio. Dynamic Br. at 7-8,11.
Careful review of the evidence supports the Secretary's position. The standard requires a
mobile equipment operator to have "full control of the equipment while it is in motion."
30 C.F.R. §77.1607(b). "Full" is defined as "being at or of the greatest or highest degree" and
"control" is defined as having the "power ... to guide or manage." Webster's Third New
International Dictionary (2002) at 919; 496. Thus, "full control" means having "complete"
power to guide or manage. Here, the evidence shows that when an assist is in progress, as on
April 26, the tractor-trailer driver does not have complete power to manage the truck. For the
driver to have full control, the truck's control mechanisms--its throttle or accelerator, its brakes
and its steering apparatus--must at all times be capable of management by him, and the ability to
activate any one or any combination must not be ceded in any degree to a non-operator of the
equipment. Rather than having full control, the facts reveal that during an assist, the tractortrailer driver and the grader operator share control of the truck, in that both supply power that
causes it to accelerate to the point where its driver can resume full management of the vehicle's
acceleration. 21 The facts also establish that the tractor-trailer driver and the grader operator share
control of the truck's deceleration. 22 Until the tractor-trailer reaches a speed wherein it is able to
pull away from the assisting grader, its driver shares control over the acceleration and
deceleration with the grader operator. Therefore, I find that the cited assist procedure violated
section 77.1607(b), as alleged. 23

D.GRAVITY
fu the Secretary's view, the violation was serious, because she proved that there are many
situations during an assist which can lead to a serious, even fatal, accident. She argues that
visibility problems created by the dust raised during an assist can cause collisions with oncoming

21

I fully credit the testimony of Steele that during the assist, regaining full control of the
truck's ability to accelerate requires the truck driver to keep his foot on the throttle and the grader
operator to keep pushing from behind. Tr. 207-11.
22

I fully credit the common sense opinion of the Secretary's expert, Medina, that when
the truck driver takes his foot off of the throttle, the force from the grader continues to push the
truck forward and, consequently, it will "take a longer time for [the tractor-trailer driver] to slow
down or stop." Tr. 112.
23

Because I have concluded that the tractor-trailer operator's loss of control over the
acceleration and deceleration of the truck establishes the violation, findings with regard to the
alleged loss of control of the truck's braking and steering capacity are unnecessary to resolve the
issue.
31 FMSHRC 684

vehicles. Sec'y Br. at 12. Further, ifthe tractor-trailer's transmission "pop[s] out of gear," the
truck will effectively go into neutral and start rolling backward down the hill, pushing the grader
with it, possibly over the embankment and into the sump. Sec'y Br. at 13-14. Finally, the
problems with steering, especially at the switchback where the driver is "intending to go in one
direction but is being pushed in another," can cause the truck to jackknife. Sec'y Br. at 14.
Additional risks are created by the potential failure of the tractor-trailer's U-joint, which can
cause the truck to roll backwards, and failure of the truck's king and bed-pins, which can cause
the truck bed to go into the cab. Sec'y Br. at 15-16.
Dynamic essentially argues that the practice was not serious, because it did not create a
hazard to any Dynamic employees, including the truck driver or the grader operator.
I find that this was a moderately serious violation. The evidence establishes that the
violation could lead to an accident in which the driver of the truck would be seriously, even
fatally, injured. However, the evidence also establishes that the chance of such an accident was
unlikely, even remote. The Commission has stated that the focus of the seriousness of a violation
"is not necessarily on the reasonable likelihood of serious injury ... but rather on the effect of the
hazard ifit occurs." Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996). However,
there are times, as here, when an assessment of likelihood plays a supplemental role in
determining the gravity of a violation. There is no question that an accident during the assist was
possible, especially an accident caused by the truck experiencing mechanical failure, resulting in
the truck traveling in a direction other than that intended. In fact, as Kenneda pointed out, even.
though equipment is subject to a pre-shift examination every morning, there are times,
nonetheless, when mechanical failure will occur. Tr. 264. I also note the testimony of Steele,
who, when describing the possibility that the truck's brakes could be defective, stated that
"anything is possible," despite the required examinations. Tr. 230. I agree.
The evidence fully supports a finding that, had the brakes failed, the grader could not
have held the truck in place, and I find Kenneda' s testimony persuasive in this regard. Tr. 241.
I also find persuasive in its logic, the testimony of Medina, who explained that, in the event of
the truck rolling backward and the grader operator trying to hold it by lowering his blade, the
procedure would have little effect "because the blade ... is designed to push material forward,"
and the additional weight on the blade would cause less weight on the grader's tires, resulting in
a loss of traction. Tr. 165-66. Therefore, I credit Medina's testimony over the unsupported
assertion of Justice, that lowering the blade could help stop the truck. See Tr. 182. I further note
the credible testimony of Calonge, that if the truck driver had applied the brakes and the grader
operator kept pushing, the tractor-trailer would have stopped shortly because the loaded truck
was heavier than the grader. The grader simply did not have the power to overcome the truck's
weight. Tr. 318-19. From this, I conclude that the converse is true. If the tractor-trailer had
started to roll backward, the grader would not have been able to exert enough force and braking
power to stop the heavier truck, even ifthe grader's brakes operated effectively. A tractor-trailer
with inadequate or no brakes, rolling backward down the steep incline in question, would pose a
hazard to not only the truck driver, but to the grader operator as well. If the truck had hit and

31 FMSHRC 685

I

pushed the grader or if the truck had rolled off of the road, the grader operator and/or the truck
driver could have suffered serious, or even fatal, injury.
However, as I have indicated, in analyzing the gravity of the violation, I must also take
into account the record evidence that such an accident was unlikely. Although Billups believed
that there was a "multitude of injuries" associated with assists, neither he nor any of the
Secretary's other witnesses were able to identify any specific accidents involving a tractor-trailer
with grader assist, or any injuries that occurred as a result thereof. Tr. 54. Rather, the testimony
offered by the Secretary regarding such alleged injuries was general and speculative.24 Further,
although it was possible that the truck's brakes could fail, it was unlikely. The truck's owner,
Bobby Justice, testified that the brakes were subject to daily inspection, and therefore, I infer that
any developing brake problem was likely to be detected. Tr. 176-77. Moreover, for the brakes
to give out, the automatic slack adjusters would have to totally fail--something that was possible,
but not likely, given daily inspections of the brakes. See Tr. 200-01.

In addition, given the low speed of the assist, there was little chance that the tractortrailer would jackknife. I fully credit Calonge's testimony that, although it was conceivable that
the truck couldjackknife,-it was very unlikely. Tr. 322, 351-52, 363. I also find that a collision
with another vehicle during the assist, although possible, was unlikely. As Steele testified, prior
to beginning an assist, traffic is stopped on the road and equipment operators are alerted by CB
that the maneuver is in progress. Tr. 206; see also 263. Furthermore, the low speed at which the
assist takes place means that, in most circumstances, the truck driver and the grader operator will
have ample time to react to any unexpected traffic.
Finally, I find Billups' concern, that the trailer bed can be forced into the operator's cab if
the king or bed-pins break, to be unsubstantiated. Tr. 37-40. As previously noted, the Secretary
did not offer any specific examples that such accidents had ever occurred under circumstances
similar to those at issue. In fact, Billups admitted that he had never seen such an accident, but
had only heard of the possibility "through casual conversation." Tr. 80. I reject Billups'
speculation in favor of the more persuasive explanation of Calonge, that the forces during an
assist are simply insufficient to cause the truck's king-pin or bed-pins to fail. Tr. 331-32.
Moreover, neither Billups nor any other witnesses for the Secretary had apparent knowledge of
the six to seven-inch cylinder that secured the tractor to the trailer, and I accept Calonge's
opinion that the cylinder would have to shear or otherwise break in order for the trailer to go into
the tractor's cab-- a contingency that, under the circumstances, was extremely unlikely. Tr. 332.
For these reasons, I find that the violation was only moderately serious.

24

For example, Medina offered the opinion that jostling "could cause the driver to lose
some control of the truck" and be injured, but he did not support his opinion with specific
examples. Tr. 163.
31 FMSHRC 686

E. Unwarrantable Failure
In the Secretary's view, the violation occurred because ofDynamic's disregard of
Billups' April 25 warning. Sec'y Br. at 17. She contends that Dynamic "completely disregarded
... Billups' instruction and continued to operate in the same fashion" on April 26, and that the
company's continuation of the procedure in the face of the warning was "highly neglectful
conduct ... meet[ing] the definitions of unwarrantable failure and reckless disregard." Sec'y Br.
at 18.
Dynamic argues that if it did not commit high negligence, then "it certainly is not guilty
of aggravated conduct such as that necessary to justify the inspector's unwarrantable failure
finding." Dynamic Br. at 13. The company notes that both Bragg and Kenneda testified that
they did not believe the practice to be a violation. Dynamic Br. at 13. It also emphasizes that no
miners complained to Bragg about the practice, that Bragg knew of no injuries as a result thereof,
that Dynamic never received a prior citation, and that no trucks had jackknifed or gone over a
berm and into the sump. Dynamic Br. at 14.
Unwarrantable failure is "aggravated conduct, constituting more than ordinary negligence
... in relation to a violation of the Act." Emery Mining Corp. 9 FMSHRC 1997, 2004
(Dec. 1987). Unwarrantable failure is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or "a serious lack of reasonable care." Id. 2003-2004;
Rochester & Pittsburg Coal Co., 13 FMSHRC 189, 193-194 (Feb. 1991); see also Rock ofAges
Corp. v. Secy ofLabor, 170 F.3d 157 (2d Cir. 1999); Buck Creek Coal, Inc. v. MSHA, 53 F.3d
133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure test). Moreover, the
Commission has examined the conduct of supervisory personnel in determining unwarrantable
failure, and recognized that a heightened standard of care is required of such individuals. See
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011(Dec.1987) (section foreman held to
demanding standard of care in safety matters); S&H Mining, Inc., 17 FMSHRC 1918, 1923
(Nov. 1995) (heightened standard of care required of section foreman and mine superintendent).
Negligence, of course, is the failure to meet the standard of care required by the circumstances.
I conclude that the violation was not caused by Dynamic' s unwarrantable failure to
comply with the standard. I disagree with the Secretary's position that the company exhibited
"reckless disregard" for compliance, because Bragg "completely disregarded" Billups' warning
of a future citation. Tr. 17; see 54, 87; see also Sec'y Br. at 18. Although the record confirms
that Billups advised Bragg that assisting tractor-trailers with graders is not a good practice, read
section 77.1607(b) to Bragg, and warned Bragg that he would cite the company if he saw the
practice repeated, and that the company engaged in the same conduct the following day, I am not
persuaded that Dynamic' s conduct amounted to "reckless disregard." See Sec'y Br. at 18. The
record reveals that assisting coal haulage trucks in negotiating steep inclines was a common
practice at the mine and in the industry. Tr. 172, 292-93. The company was never cited
previously, nor did MSHA have any policy memoranda or public information bulletins notifying
the industry of the prohibited practice. Tr. 82. As a result, when Billups and Bragg met on April

31 FMSHRC 687

25, they honestly and openly disagreed on the interpretation of the regulation. As evidenced at
hearing, strong arguments were presented by both sides as to whether the truck driver had full
control of the truck during the assist. While I am persuaded that the standard was violated, the
Secretary has failed to establish that repeating the haul truck assist on the second day of the
inspection, despite the inspector's warning, constituted "aggravated conduct," "reckless
disregard" and/or "intentional misconduct" that rises to the level of unwarrantable failure.
The Secretary is effectively asking Dynamic to have accepted, without question, either the
inspector's interpretation of the standard, or being charged with elevated negligence and the
onerous consequences arising there:from. 25 Rather than unwarrantable, I find that Bragg's failure
to ensure discontinuation of the truck assist practice, or to have Dynamic's management seek
modification of the standard's application to its operation, represented ordinary failure to meet
the standard of care required. 26 Therefore, I assess Dynamic's negligence as moderate.

ORDER
WHEREFORE, it is ORDERED that the Secretary MODIFY section 104(d)(2) Order
No. 7264179 to a citation-issued pursuant to section 104(a) of the Act, 30 U.S.C. §814(a), and
reduce the degree of negligence from "reckless disregard" to "moderate," within 30 days of this
Decision. Upon modification of the Order, this case is DISMISSED.

'llUIJll,q~·
R.16~
ueline R. Bulluck
inistrative Law Judge
Distribution: (Certified Mail)
Carol Ann Marunich, Esq., Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Suite 310,
Morgantown, WV 26501
Francine Serafin, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209-2247

25

Unwarrantable failure findings lead to closure orders and heightened penalties under
section 104(d), sections l 10(a)(3)(A), and l 10(a)(3)(B). 30 U.S.C. §§814(d); 820(a)(3)(A);
820(a)(3)(B).
26

Under section 101 (c), an operator may obtain modification of a mandatory safety
standard at its mine upon showing that "an alternative method of achieving the result of such
standard exists which will at all times guarantee no less than the same measure of protection
afforded the miners .... " 30 U.S.C. §81 l(c).
31 FMSHRC 688

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

June 23, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION, (MSHA),
Petitioner

v.
NALLY &HAMILTON
ENTERPRISES, INC.
Respondent

CIVIL PENALTY PROCEEDING
Docket No. KENT 2008-712
A.C. No. 15-19076-141789

Chestnut Flats

DECISION
Appearances:

Jennifer Booth, Esq., Office of the Solicitor, U.S. Department of Labor,
Nasliville, Tennessee, for the Petitioner;
Roy Timothy Cornelius, Billy Parrott, Peggy Langley, Conference and
Litigation Representatives, MSHA, U.S. Department of Labor,
Barbourville, Kentucky, for the Petitioner;
C. Bishop Johnson, Esq., Stephen C. Cawood, Esq., Cawood & Johnson,
PLLC, Pineville, Kentucky, for the Respondent.

Before:

Judge Feldman

This civil penalty proceeding concerns a Petition for Assessment of Civil Penalty filed
pursuant to section l lO(a) of the Federal Mine Safety and Health Act of 1977 (the Mine Act),
as amended, 30 U.S.C. § 820(a), by the Secretary of Labor (the Secretary), against the
respondent, Nally & Hamilton Enterprises, Inc. (N&H). The petition seeks to impose a civil
penalty of $3,095.00 for three alleged violations, designated as significant and substantial (S&S),
contained in 30 C.F.R. Part 77 of the Secretary's mandatory safety standards governing mining
operations at surface coal mines. 1
This matter was heard in Richmond, Kentucky on March 24, 2009. The parties stipulated
that N&H is a mine operator subject to the provisions of the Mine Act, and that N&H abated the
alleged violations in a timely manner. The parties' post-hearing briefs have been considered in
the disposition of this case.

1

Generally speaking, a violation is S&S if it is reasonably likely that a hazard contributed
to by the violation will result in an accident causing serious injury. Cement Division, National
Gypsum, 3 FMSHRC 822, 825 (April 1981 ).
31 FMSHRC 689

I. Findings and Conclusions
Mine Safety and Health Administration ("MSHA") Inspector David A. Faulkner
inspected N&H's Chestnut Flats surface mine from January 3 to January 5, 2008. Faulkner has
been an MSHA coal mine inspector for approximately three years. Prior to his MSHA
employment, he worked in the coal mining industry for seventeen years. Faulkner's family
owned a trucking company and he drove and maintained coal trucks for the family business.
a. Citation No. 7557475
During the course of his January 2008 inspection, Faulkner observed the production pit
where trucks and loaders are operated to remove overburden in order to expose the coal seam.
Faulkner observed a white RD-600SX Mack lube truck that carries liquids such as fuel, oil, and
antifreeze, which is used to service mobile equipment at the pit. Specifically, Faulkner viewed
the lube truck as it serviced a Caterpillar loader, three Caterpillar haul trucks, and three dozers.
At that time, while the lube truck was servicing mobile equipment, Faulkner observed three
people, on foot, adjacent to the mobile equipment, who were on the opposite side of the lube
truck. The individuals apparently were operators of the equipment being serviced.
At approximately 2: 15 p.m., Faulkner inspected the lube truck after it had completed
servicing the mobile equipment. Faulkner noted that the back-up alarm on the lube truck was not
operational. Faulkner explained that a back-up alarm is important because it warns individuals
in high noise environments to avoid walking in the truck's path as it is operated in reverse.
The back-up alarm is particularly important because of the obstructed view resulting from the
position of the tanks on the back of the truck. Consequently, the lube truck operator must rely on
his rear and side view mirrors when backing up.
As a result of his inspection, Faulkner issued Citation No. 7557475 citing an alleged
violation of the mandatory safety standard in 30 C.F.R. § 77.410(c) that provides that "[w]arning
devices [on mobile equipment] shall be maintained in functional condition." (Emphasis added).
Specifically, Citation No. 7557475 states:
The operator failed to maintain the automatic reverse warning device in a
functional condition on the White RD-600SX lube truck, SIN 2189, that is in
operation at this mine. Warning devices shall be maintained in functional
condition. The truck is being used around employees on foot and [in] congested
equipment areas while performing routine maintenance.
(Gov Ex. 2). (Emphasis added).

31 FMSHRC 690

Faulkner designated the violation as significant and substantial because he believed it was
reasonably likely that mine personnel in the pit area will be struck by the lube truck if they are
not warned to stand clear by the back-up alann. The cited condition was attributed to a moderate
degree of negligence. The citation was abated on January 5, 2008, after the back-up alann was
repaired. The Secretary proposes a civil penalty of $946.00 for Citation No. 7557475.
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 meaning would lead to absurd results. See Dyer v. United States, 832
F.2d 1062, 1066 (9th Cir. 1987); Utah Power & Light Co., 11FMSHRC1926, 1930 (Oct. 1989);
Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). The obligation imposed on a
mine operator by section 77 .410(c) of the Secretary's regulations is to maintain equipment in
"functional condition." "Maintenance" has been defined as "the labor of keeping something
(as building or equipment) in a state of repair or efficiency: care, upkeep ..." and "[p]roper care,
repair, and keeping in good order." Walker Stone Co., 19 FMSHRC 48, 51 (Jan. 1997),
quoting Webster's Third New Int'[ Dictionary, Unabridged 1362 (1986), affd, 156 F.3d 1076
(10th Cir. 1998).

a

Thus, the question is whether N&H failed to keep the back-up alann in "good [working]
order." Answering this question requires determining the length of time of the back-up alann
malfunction. The back-up alann was the subject of a pre-shift examination that was performed
at 6:00 am on January 3, 2008. Faulkner examined the pre-shift report and determined that the
pre-shift examiner noted that the back-up alann was functioning properly. As previously noted,
Faulkner determined that the back-up alann was not functioning at 2:15 pm.
Faulkner initially testified that, as a general proposition, it is not uncommon for pre-shift
examiners to perform perfunctory examinations by checking boxes on the examination report
that all systems are functioning properly. (Tr. 45-46). I too recognize that perfunctory pre-shift
examinations are not uncommon. However, in this case, Faulkner does not question the accuracy
of the pre-shift notation that the back-up alann was operating normally. Specifically, Faulkner
testified:
THE COURT: [The attorney for N&H] asked you do you have any reason - he
said that the back-up alann was checked off as operational on the pre-shift and he
asked you if you have any reason to believe otherwise. And you said no, were you
referring to you have no reason to believe otherwise that it was checked off, or
you have no reason to believe otherwise that it was not working at the time of the
pre-shift?
THE WITNESS: I have no reason to believe that the operator did an inadequate
examination. The record is what I look at is the record, that's his record. When
he checks that - -

31 FMSHRC 691

THE COURT: Right. So I'm asking you do you believe that the warning device
was working at the time of the pre-shift?
THE WITNESS: According to the record it was.
THE COURT: I didn't ask you what the record said. I asked you do you believe
it was working?
THE WITNESS: I don't have no reason not to believe it.
THE COURT: So in other words, what time would the pre-shift have occurred?
THE WITNESS: Probably 6 o'clock
THE COURT: 6 a.m.?
THE WITNESS: 6 a.m.
THE COURT: What time were you there?
THE WITNESS: 14:15 when the citation was issued.
THE COURT: That would be 2:15 p.m.?
THE WITNESS: That's correct.
THE COURT: So is it your belief that between 6 a.m. and 2:15 p.m. on
January 3rd, 2008, the back-up alarm became dysfunctional?
THE WITNESS: That's correct.
(Tr. 47-49).
The Secretary does not contend that the severity of the hazard posed by the
inoperable back-up alarm required the lube truck to immediately be removed from service.2
Thus, Citation No. 7557475 concerns a proper maintenance issue rather than a removal from
service question. I am constrained by Faulkner's testimony. While ignoring a pre-shift report
that noted a defective back-up alarm clearly would constitute a violation of section 77.410(c),
Faulkner does not contend that pre-shift examiner determined that the back-up alarm was
inoperable.

2

The mandatory safety standard in section 77.404(a), 30 C.F.R. § 77.404(a), requires that
mobile equipment that is in an unsafe condition must be immediately removed from service.
31 FMSHRC 692

The pre-shift examination is a means to identify defects requiring repair that occurred
during the previous shift. Fundamental fairness dictates that a mine operator must be given a
reasonable period of time to address defects after they are noted by the pre-shift examiner, an
opportunity that the evidence reflects was unavailable to N&H in this case. As the record does
not reflect that the needed repair was not performed in a timely manner, the Secretary has not
demonstrated that N&H failed to maintain the back-up alarm in functional condition.
Accordingly, Citation No. 7557475 shall be vacated.
b. Citation No. 7557476
The RD-600SX Mack lube truck is a tandem three axle vehicle with six brake assemblies.
The three axles are the front steering axle and the two rear drive axles. The six brake assemblies
consist of two brakes on the front wheels of the steering axle, and four brakes on the rear wheels
of the two rear drive axles. Each brake assembly consists of a clamp type brake chamber. When
the brakes are applied by the truck operator, air pressure, held in place by a rubber diaphragm,
accumulates. The air pressure pushes a slack adjuster out which, in tum, is attached to a push
rod that turns a cam shaft that engages the brake shoe. (Tr. 87-88).
During his inspection, Faulkner conducted a brake function test on the Mack lube truck.
Faulkner asked the operator of the truck to operate the engine until a maximum of 120 psi was
achieved which pressurized the braking system. The truck operator was then requested to turn
off the truck engine, place the transmission in low gear, and release the parking brake. Faulkner
then walked around the truck and measured the stroke distance on the brake push rods to
determine the effectiveness of each brake. Excess travel of the push rod causes metal to contact
metal that results in a loss of compression. This condition is corrected by adjusting the slack
adjuster to limit the push rod travel to under two inches. (Tr. 97).
Faulkner testified that he relied on the North America out-of-service criteria guideline for
commercial vehicles. This guideline limits the maximum allowable travel of the push rod for
normal rear brake function is two inches. (Tr. 104, 123-24). Faulkner believed the front drive
axle brake assembly needed adjustment because it had two and one half inches of travel in the
push rod. However, Faulkner conceded that the North America out-of-service guideline is not in
MSHA's policy manual, and it has not otherwise been adopted as an MSHA safety standard.
(Tr. 123).
Faulkner opined that, ifthere is one maladjusted slack adjuster on a truck with five
otherwise functioning brakes, it would have a negative impact on the overall braking system
because it puts additional stress on the five functioning brakes. (Tr. 91-92). Faulkner was
particularly concerned with the loads that the truck carried. He estimated that the truck contained
approximately 4,000 gallons of diesel fuel, 200 gallons of 15-40-oil, 200 gallons of anti-freeze,
200 gallons of transmission fluid, 200 gallons of hydraulic oil, and 200 gallons of used motor oil.
However, Faulkner apparently did not consider the service brakes to be ''unsafe" as contemplated
by section 77.404(a) because he testified the condition of the brakes "did not meet out-of-service
criteria." (See fn. 2; Tr. 110).

31 FMSHRC 693

As a result of his inspection, Faulkner issued Citation No. 7557476 citing an
alleged violation of the mandatory standard in section 77.1605(b), 30 C.F.R. § 77.1605(b).
This mandatory standard states, in pertinent part, "[m]obile equipment shall be equipped with
adequate brakes ...." The citation states:
The operator failed to maintain.the White RD-600SX Mack lube truck, SIN 2189,
in a safe operating condition. The following condition exist[s] on the truck[:] (1)
When checked the drivers' side front drive [rear] axle brake assembly has more
than the allowed 2 inches of travel in the brake chamber push rod. The truck is
used in adverse conditions up and down steep inclines on elevated roadways at
this mine. Mobile equipment shall be equipped with adequate brakes.
(Gov. Ex. 5).
Faulkner designated the violation as significant and substantial because he believed it was
reasonably likely that a lube truck operator will sustain serious or fatal injuries if he lost control
because the brakes ultimately failed due to the compromised brake assembly. The cited
condition was attributed to.a moderate degree of negligence. The citation was abated on
January 5, 2008, after the movement in the push rod was corrected by adjusting the slack
adjuster. The Secretary proposes a civil penalty of $946.00 for Citation No. 7557476.
Despite the alleged maladjustment in the cited brake chamber, Faulkner testified that the
truck operator believed the brakes were functioning normally. {Tr. 114-15). Jn fact, Faulkner
conceded that, unless the push rod movement was individually measured for each brake, there
was no reason to believe the brakes were not functioning adequately as that term is commonly
known in the industry. {Tr. 115-16). Significantly, Faulkner testified that although testing the
slack adjusters during a pre-shift examination is discretionary, slack adjusters are not routinely
checked when brakes are performing normally. (Tr. 113-16; 120-22). Finally, Faulkner testified
that the pre-shift examination reflected that the brakes were functioning properly and that there
was no reason to believe that the pre-shift examination was inadequate. (Tr. 114; 120-22).
The language of a regulation is the starting point for determining whether its provisions
have been violated. Dyer v. United States, 832 F.2d at 1066 (citing Consumer Prod. Safety
Comm 'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). Jn the absence of a statutory
definition or a technical usage of a term, the Commission applies its ordinary meaning.
See e.g., Thompson Bros. Coal Co., 6 FMSHRC 2091, 2096 (Sept. 1984).
Section 77.1605(b), the cited mandatory standard, requires the subject lube truck to be
equipped with "adequate brakes." The applicable meaning of the term adequate is" ... fully
sufficient for a specified or implied requirement." Webster's Third New Int'/ Dictionary,
Unabridged 25 (2002). An entityis "sufficient" when it is "marked by quantity, scope, power,
or quality to meet with the demands, wants, or needs of a situation or of a proposed use or end."
Id. at 2284.

31 FMSHRC 694

The plain use of the terms "adequate" and "sufficient" reflects that section 77.1605(b) is a
functional standard. In other words, service brakes can be deemed adequate as contemplated by
section 77. l 605(b) even if a component part is in need of adjustment. Thus, the dispositive
question is whether the braking system on the lube truck was functioning adequately.
The Secretary has not adopted the North America out-of-service criteria guideline for
commercial vehicles relied on by Faulkner to determine if service brakes are adequate. Rather, in
addressing the issue of when brakes are deemed to be inadequate, it is instructive to consider the
Secretary's mandatory safety standard in section 56.14101, 30 C.F.R. § 56.14101, governing the
minimum requirements and testing for service brakes on trucks that are operated in surface metal
and non-metal mines. The pertinent provisions are:

§ 56.14101 Brakes
(a) Minimum requirements. (1) Self-propelled mobile equipment shall be
equipped with a service brake system capable of stopping and holding the
equipment with its typical load on the maximum grade it travels....

*

*

*

*

(3) All braking systems installed on equipment shall be maintained in
functional condition.
(b) Testing. (l) Service brake tests shall be conducted when an MSHA
inspector has reasonable cause to believe that the service brake system does not
function as required, unless the mine operator removes the equipment from
service for the appropriate repair.
Thus, the Secretary's criteria for determining whether the minimum requirements for
service brakes are satisfied requires ascertaining whether a truck's service brake system is
capable of stopping and holding the vehicle with its typical load on the maximum grade it
typically travels. Although Faulkner expressed his concern with respect to the large capacity of
fluids and load weight carried by the lube truck, the Secretary does not contend the service brakes
were incapable of stopping and holding the vehicle under normal operating circumstances.
Significantly, the Secretary concedes that the lube truck operator believed the brakes were
functionally normally.

31 FMSHRC 695

In the finaI analysis, the issue is not whether the pre-shift examiner conducted a rigorous
enough test to determine if the braking system was adequate. In fact, under the testing provisions
of section 56.14101(b)(l), there is no requirement to conduct a thorough brake test unless there
is reasonable cause to believe that the "brake system does not function as required." Rather,
the issue is whether the Secretary has met her burden of proof of demonstrating that the
brakes were inadequate. Although Faulkner speculated about the additional stress placed on
five operational brake assemblies when the sixth is out of adjustment, there is no meaningful
evidence of inadequate brake performance. Significantly, even Faulkner admitted the condition
of the service brakes did not warrant the lube truck to be removed from service.
Thus, the Secretary has failed to demonstrate the fact of occurance of a section
77.1605(b) violation. Accordingly, Citation No. 7557476 shall be vacated. In reaching this
conclusion I recognize that the Mine Act is a strict liability statute. Asarco, Inc., 8 FMSHRC
1632, 1634-36 (Nov. 1986), aff d, 868 F.2d 1195 (10th Cir. 1989). Under strict liability,
one could argue that N&H is liable, even though the service brakes were capable of stopping
and holding the lube truck with its typical load on the maximum grade it travels, if the
braking system needed an adjustment. However, as the Commission has acknowledged, an
operator may be held liable regardless of fault only "if a violation of a mandatory standard
occurs." Spartan Mining Company, Inc., 30 FMSHRC 699, 706 (Aug. 2008). Here, the
Secretary has failed to prove the fact of occurrence of the cited violation as she has failed to
demonstrate that the lube truck was not "equipped with adequate brakes."
c. Citation No. 7557479
During his inspection, Faulkner observed removal of the overburden from the
coal seam at the base of the pit. The equipment consisted of a 992 Caterpillar loader and
three Caterpillar 777D haulage trucks. Faulkner initially stood at one end of the pit,
approximately 700 feet from the other end of the pit where the loader was loading overburden
material into the haul trucks for transportation to the dump. (Tr. 140). Faulkner testified the
Caterpillar loader was not visible from one end of the pit to the other because of the dust created
by the truck loading process. (Tr. 139-40).
After the trucks were loaded, they proceeded to the dump from the pit area over a
dirt road. (Tr. 148). Faulkner estimated the trucks traveled at a maximum speed of20 miles per
hour. (Tr. 161-62). As the trucks were leaving and approaching the loading site during the
overburden removal cycle, the trucks passed each other on the road. As the trucks approached
each other from opposite directions, the truck operators were side by side in their respective
positions on the left side of the cabs of their trucks. Faulkner observed that the trucks slowed as
they passed each other. Faulkner attributed the reduction in speed by the truck operators to the
dust that was created as the trucks approached. (Tr. 141-42).

31 FMSHRC 696

Faulkner compared the dust to the cloud of dust created behind a passenger vehicle when
it travels down a gravel road. (Tr. 147-48). Faulkner testified the dusty road conditions were
caused by the loosening of the dirt on the road that occurred as a result of truck traffic rather than
by dust accumulations that resulted from removal of the overburden at the pit. (Tr. 146-47).
Faulkner used a wooden ruler to determine the dust in the roadway was approximately two to
four inches deep. (Tr. 139-40).
Faulkner conceded that dust on a dirt road is a natural consequence of truck traffic.
(Tr. 164-65). However, Faulkner explained:
I understand the mining process and when I see trucks traveling in a straight line
and there's no traffic around them I'll allow some dust. But when I see trucks
passing in close proximity and they're having to slow and it's limiting those
operators to what they can see and do then I'll issue a citation. I'm very lenient
as an inspector on dust. There's other people that are probably a lot harder than I am.
(Tr. 165).
As a result of his observations, Faulkner issued Citation No. 7557479 citing an alleged
violation of the mandatory standard in section 77.1607(i) that provides: "[ d]ust control
measures shall be taken where dust significantly reduces visibility of equipment operators
(emphasis added)." Citation No. 7557479 states:
Road dust has been allowed to accumulate about 2 to 3 inches in depth on the pit
floor and haul road exiting the No. 01 coal pit of the mountain top cut through,
and proceeding to the truck dump significantly reducing the visibility of the
operators. There are three Cat 777D haul trucks and a Cat 992G wheel loader
using this area which consists of limited passing and turning areas in the pit,
elevated inclines, and curves that require proper visibility during operation.
Should this condition be allowed to continue a collision will result. Dust control
measures shall be taken where dust significantly reduces visibility of equipment
operators.
(Gov. Ex. 6).
Faulkner designated the violation as significant and substantial because he believed
a collision of haulage trucks was likely to occur as a result of the hazard caused by limited
visibility. If a collision were to occur Faulkner opined that a truck operator would sustain at
least broken bones as a result of the accident. Faulkner attributed the alleged violation to a
moderate degree of negligence. The alleged violative condition was abated when N&H applied
water to the pit floor and haul road. The Secretary proposes a civil penalty of $1,203.00 for
Citation No. 7557479.

31 FMSHRC 697

The Conimission has addressed the burden the Secretary must cany to demonstrate the
fact of the occurance of an alleged violation in its decision in In re: Contests ofRespirable Dust
Sample Alteration Citations, 17 FMSHRC 1819 (Nov. 1995). The Commi~sion stated:
The Mine Act imposes on the Secretary the burden of proving each alleged
violation by a preponderance of credible evidence. Garden Creek Pocahontas
Co., 11 FMSHRC 2148, 2152 (November 1989). The preponderance standard,
in general, me~ proof that something is more likely so than not so.
See 3 Edward J. Devitt et al., Federal Jury Practice and Instructions§ 72.01
(1987); 2 Kenneth S. Brown et al., McCormick On Evidence§ 339, at 439 (41h ed.
1992); Hopkins v. Price Waterhouse, 737 F.Supp. 1202, 1206 (D.D.C. 1990).
17 FMSHRC at 838.
As a threshold matter it is not surprising that Faulkner's view of the Caterpillar loader,
from a distance of approximately 700 feet, was obscured from the dust generated by loading
overburden material into haulage trucks. Rather, the issue is whether the Secretary has
demonstrated a violation of section 77.1607(i) because the dust created by truck travel on the
dirt road "significantly'' reduced the visibility of the haulage truck operators.
It is significant that Faulkner did not speak to any of the truck operators to determine if
they felt their vision was impaired. (Tr. 162). Nor is there any evidence that Faulkner observed
the truck operating conditions from the cabs of the trucks, or from an area in close proximity to
where the trucks were operating. Significantly, Faulkner did not recall whether the truck
operators had turned on their headlights, which would indicate reduced visibility. (Tr. 162).
Dust in depths of approximately two to four inches on a dirt road churned by the tires of haulage
trucks, alone, is inadequate to establish a section 77.1607(i) violation.
It would be easy to prevail if prosecutorial officials could demonstrate an alleged
violation by simply opining that they believed that the violation occurred. However, due process
requires more. In the final analysis, the Secretary must present adequate evidence to support the
inspector's subjective opinion that a violation, namely a significant impairment of visibility,
existed.
In other words, the Secretary must present supporting evidence that the alleged violation
occurred. In this regard, Faulkner failed to obtain the opinion of the truck drivers to corroborate
his belief that visibility was significantly affected. Moreover, it has neither been contended,
nor shown, that the operators relied on their headlights because they believed their visibility
was impaired. Consequently, the Secretary has failed to satisfy her burden of proof.
Accordingly, Citation No. 7557479 must be vacated.

31 FMSHRC 698

ORDER
In view of the above, IT IS ORDERED that Citation Nos. 7557475, 7557476, 7557479
ARE VACATED. Accordingly, Docket No. KENT 2008-712 IS DISMISSED.

Jerold Feldman
Administrative Law Judge
Distribution:
Jennifer D. Booth, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456
Roy Timothy Cornelius, Billy Parrott, Peggy Langley, Conference & Litigation Representatives,
U.S. Department ofLabor;-MSHA District 7, 3837 South US Highway 25 East,
Barbourville, Kentucky 40906
Stephen C. Cawood, Esq., Cawood & Johnson, PLLC, 108 Kentucky Avenue, P.O. Box 128,
Pineville, KY 40977
/rps

31 FMSHRC 699

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

June 29, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

ADMINISTRATION, (MSHA),
Petitioner

CNIL PENALTY PROCEEDINGS
Docket No. PENN 2008-76-M
A.C. No. 36-07715-129546
Docket No. PENN 2008-112-M
A.C. No. 36-07715-131955-01
Docket No. PENN 2008-113-M
A.C. No. 36-07715-131955-02

v.

Docket No. PENN 2008-165-M
A.C. No. 36-07715-134191-01
Docket No. PENN 2008-166-M
A.C. No. 36-07715-134191-02
Docket No. PENN 2008-182-M
A.C. No. 36-07715-136625
Fourmile Gravel Pit

WALTER KUHL,
Respondent

DECISION
Appearances: Mark V. Swirsky, Esq., Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, on behalf of the Petitioner;
Robert J. Jeffery, Esq., Orton & Jeffery, PC, North East, Pennsylvania, on behalf of
the Respondent.
Before:

Judge Melick

These cases are before me upon petitions for civil penalty filed by the Secretary of Labor
pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq., the "Act," charging Mr. Walter Kuhl with violations of mandatory standards and proposing
civil penalties for those violations. The general issue before me is whether Mr. Kuhl violated the
cited standards and, if so, what is the appropriate civil penalty to be assessed in accordance with
section 11 O(i) of the Act. Additional specific issues are addressed as noted.

31FMSHRC700

At hearings, the parties reported that they had reached a settlement of all but three of the
charging documents at issue and supplemented that proposed settlement post-hearing. I have
reviewed the representations and documentation submitted with the proposed settlement and find
that it is acceptable under the criteria set forth in section 11 O(i) of the Act. Accordingly an order for
payment of the agreed penalty will be incorporated in this decision.
Citation No. 6045490, issued pursuant to section 104(d)(l) of the Act, alleges a "significant
and substantial" violation of the standard at 30 C.F .R. § 56.3130 and charges as follows: 1
The mine operator (Walter Kuhl) has engaged in aggravated conduct constituting
unwarrantable failure to comply with mandatory standard 56.3130 by continuing to
disregard his own safety and his employee's safety while mining in the active mine
pit. The high wall face is approximately 30 to 40 feet high, near vertical, consisting
of consolidated sand and gravel. Walter Kuhl has intentionally under-cut
(approximately 3 Ft.) into the high wall near the toe. This mining practice is not
conducive to maintaining the stability of the high wall and exposed his employees to
entrapment/crushing injuries. A withdrawal order No. 6026012 was issued on Dec.
16, 2004, under the provisions of Section 104(d)2 of the Mine Act for violation of
56.3130 during the investigation of a fatal accident for similar mining practices at
this mine site. Mr. Kuhl had his two (2) hourly employee's working in this area of
the mine until the Pennsylvania Dept. OfEnvironmental Protection inspectors issued
a cease and desist order during their site visit the week of May 1, 2007. MSHA has
issued citations on 08/03/04, 11/19/03, 07/28/03, and on 04/26/01 to the mine
operator violating Part 56.3130 of the 30 CFR. This is a reckless andrepeated failure
to make reasonable efforts to eliminate a known violation of a mandatory safety or

1

Section 104(d)(l) provides in relevant part as follows:

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

31FMSHRC701

health standard that substantially and proximately caused, or reasonably could have
been expected to cause, death or serious bodily injury.
A "subsequent action" notice issued to Mr. Kuhl on May 10, 2009, stated as follows:
The termination due date and time are being extended to allow Walter Kuhl
additional time to correct the condition. Mr. Kuhl understands that MSHA will not
accept berms as corrective action to terminate this citation.
The cited standard, 30 C.F.R. § 56.3130, provides as follows:
Mining methods shall be used that will mainu,rin wall, bank, and slope stability in
places where persons work or travel in performing their assigned tasks. When
benching is necessary, the width and height shall be based on the type of equipment
used for cleaning benches or for scaling of walls, banks and slopes.
Richard Burkley has been an inspector for the Department ofLabor's Mine Safety and Health
Administration (MSHA) for over 10 years and has an additional 26 years of industry experience as
a foreman. Inspector Burkley' s testimony is largely undisputed. He testified that on May 8, 2007,
he arrived at the Four Mile Gravel Pit for a regular inspection at around 8:00 a.m. Burkley explained
the purpose of his visit to mine owner Walter Kuhl then proceeded to inspect the pit area. When he
arrived at the pit, he observed loader operator Mike Fenno loading a dump truck located about 30
to 40 feet from the highwall. The highwall at that location was estimated by Burkley to have been
30 to 40 feet high with a concave undercut extending from the toe to one-third the way up the face.
Burkley documented the condition of the highwall with photographs( See Gov't Exhs. IA and lB).
Fenno explained to Burkley that "Walt" dug out the undercut at the end ofFenno's shift the day
before for Fenno to load out that morning.
Burkley instructed Fenno to set up a berm or barrier at the toe of the highwall and then
returned to the mine office. He told Kuhl that he was issuing a citation for undercutting the highwall
and that employees were to backfill the highwall to an angle of repose. Kuhl responded that it was
his mine and that he was going to mine it his way. When Burkley told Kuhl that the law prohibits
undercutting the highwall to create a concave area, a void, and an overhang, Kuhl again responded
that it was his property and that he would mine it his way. Upon his return to the mine the following
day, May 9, 2007, Burkley found that nothing had been changed at the highwall.
On May 20, 2007, MSHA Inspector Thomas Shilling arrived at the Kuhl mine to conduct a
compliance follow-up visit to see if the cited conditions had been abated. Shilling observed that the
highwall was in the same condition as depicted in the photos taken by Inspector Burkley on May 8,
2007. Shilling thereupon issued Order No. 604763 8 under Section 104(b) of the Act for failure to

31 FMSHRC 702

abate the citation issued by Inspector Burkley on May 8, 2007. 2
Loader operator Fenno testified at hearings that he had observed the highwall conditions to
be similar to those as depicted in the Government's photographs (taken on May 8, 2007). Fenno
further testified that when he came to work that morning, Walter said that he had taken the material
down the night before and the material at the base of the highwall was to be loaded out that morning.
In loading the material Fenno was within five to eight feet of the high wall. The same procedures
had been followed on prior occasions as well. According to Fenno, Walter used an excavator to
scrape the wall. Fenno told Inspector Burkley that Kuhl had a practice of digging out the material
from the high wall at the end of the shift and leaving it to Fenno to dig it out the next shift in the
morning.
Within this framework of credible and undisputed evidence it is clear that a reasonable
person familiar with the mining industry and the purposes of the standard would have recognized
that the conditions present at the subject mine on May 8, 2007, constituted a violation of 30 C.F.R.
§ 56.3130. See Secretary v. Cyprus Tonopah Mining Corp. 15 FMSHRC 367 (March 1993). A
vertical highwall in excess of thirty feet in height was undercut by Mr. Kuhl at the toe creating a
concave area near the base.-· He further directed his employee to work in the hazardous area at the
toe. The mining method used did not maintain wall, bank, and slope stability in work areas, but in
fact was intentionally designed to create instability. This was the same mining method that had
previously caused the death of Mr. Kuhl' s son three years before.
In reaching these conclusions I have not disregarded Respondent's claim that the Secretary's
witness, Arnold Belz, testified that the method followed by Kuhl was a "common mining method".
However, this claim is based on an obvious misreading of Belz's testimony. Belz was clearly
referring only to Kuhl's use of an excavator to "scratch" at the highwall and not to Kuhl's
undermining the highwall at the toe (Tr. 146-147).

2

Section 104(b) of the Act provides as follows:

If, upon any follow-up inspection of a coal or other mine, an authorized representative of
the Secretary finds (1) that a violation described in a citation issued pursuant to
subsection (a) has not been totally abated within the period of time as originally fixed
therein or as subsequently extended, and (2) that the period of time for the abatement
should not be further extended, he shall determine the extent of the area affected by the
violation and shall promptly issue an order requiring the operator of such mine or his
agent to immediately cause all persons, except those persons referred to in subsection (c),
to be withdrawn from, and to be prohibited from entering, such area until an authorized
representative of the Secretary determines that such violation has been abated.

31 FMSHRC 703

The violation was also clearly "significant and substantial". A violation is properly
designated as "significant and substantial" if, based on the particular facts surrounding that violation,
there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness
ofa reasonably serious nature. Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April
1981). In Mathies Coal Co., 6 FMSHRC l, 3-4 (January 1984), the Commission explained:

In order to establish that a violation of a mandatory standard is significant and substantial
under National Gypsum the Secretary must prove: (1) the underlying violation of a
mandatory safety standard, (2) a discrete safety hazard - - that is, a measure of danger to
safety - - contributed to by the violation, (3) a reasonable likelihood that the hazard
contributed to will result in injury and (4) a reasonable likelihood that injury in question will
be of a reasonably serious nature.
See also Austin Powder Co. v. Secretary, 861F.2d99, 103-04 (5th Cir. 1988), ajf'g
9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).

The third element of the Mathies formula requires that the Secretary establish a reasonable
likelihood that the hazard-contributed to will result in an event in which there is an injury. U.S. Steel
Mining Co., 6 FMSHRC 1834, 1836 (August 1984), and also that the likelihood of injury be
evaluated in terms of continued normal mining operations. U.S. Steel Mining Co., Inc., 6 FMSHRC
1573, 1574(July 1984); SeealsoHaifWay,Inc., 8FMSHRC 8, 12 (January1986) and Southern Ohio
Coal Co., 13 FMSHRC 912, 916-917 (June 1991).
As noted above, I have found that Mr. Kuhl violated a mandatory safety standard. Mr. Kuhl
himself, in creating the hazardous undercut, worked in the zone of danger and directed one of his
employees, Mr. Fenno, to do so also. The hazard contributed to by Kuhl's violation of Section
56.3130 is that persons working or traveling in proximity to the highwall could be crushed by
collapse of the highwall. There can be no question that an employee crushed by a collapsing
highwall would sustain serious or fatal injuries. Accordingly, the violation herein was ''significant
and substantial" and of high gravity.
The violation was also clearly the result of "unwarrantable failure" and gross negligence.
"Unwarrantable failure" has been defined by the Commission in Emery Mining Corp., 9 FMSHRC
1997 (December 1987), as aggravated conduct constituting more than ordinary negligence.... [and]
is characterized by such conduct as "reckless disregard," "intentional misconduct," "indifference,"
or a "serious lack of reasonable care." Id. At 2001, 2003-2004. See, e.g., Eagle Energy, Inc., 23
FMSHRC 829, 834 (August 2001); Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001);
Dynatec Mining Corp., 23 FMSHRC 4, 15 (January 2001); Windsor Coal Co., 21FMSHRC997,
1000 (September 1999).

In assessing whether a violation is unwarrantable, this Commission has identified a number
of factors that should be considered, including: (1) the extent of the violative condition, (2) the
length oftime the violative condition existed, (3) whether the violation was obvious, (4) whether the
31 FMSHRC 704

condition posed a high degree of danger, (5) whether the operator was on notice that greater efforts
were necessary for compliance. Windsor Coal Company, 21 FMSHRC at 1000; BethEnergy Mines,
Inc., 14 FMSHRC 1232, 1243-44 (August 1992); Mullins & Sons Coal Co., 16 FMSHRC 192, 195
(February 1994);PeabodyCoal Co., 14FMSHRC 1258, 1261(August1992); QuinlandCoals, Inc.,
10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603(July1984).
fu this case there is no dispute that the mine owner himself, Mr. Kuhl, created a vertical
highwall, undercut it at the toe and exposed both himself and one of his employees to the hazard of
a highwall collapse. A supervisor's involvement in violative conduct is particularly persuasive
evidence in establishing a heightened awareness ofthe violative condition and a conscious disregard
of, or indifference toward, miner safety. A supervisor is held to a high standard ofcare, and evidence
of a supervisor's involvement in the violation is an important factor supporting an unwarrantable
failure finding. See e.g. Consolidation Coal Co., 22 FMSHRC 328, 332 (March 2000); and Lafarge
Construction Materials 20 FMSHRC 1140 at 1146 (October 1998).
The violative condition also exposed miners to a high degree of danger. fudeed, as
previously noted, a fatal injury occurred at the subject mine in December 2004 as a result of the same
mining methods (undercutting the highwall) at issue herein. The evidence in this case shows that
Kuhl received, either individually or as an officer of the corporation charged, six prior citations or
orders for violations of the same standard at issue herein i.e. Section 56.3130. 3 For five of these
citations or orders, Mr. Kuhl received individual penalties under Section l lO(c) of the Act. 4 Under
the circumstances, I find that Mr. Kuhl was provided ample and repeated notice that the practices
he followed herein were violations as charged. See e.g. Eagle Energy at 838.
Order No. 6054306, also issued pursuant to Section 104 (d) of the Act, alleges a violation
of 30 C.F.R. § 56.12025 and charges as follows:

3

While Respondent argues that prior violations of the cited standard, issued at a time
when Kuhl was operating as a corporation are not relevant hereto it may reasonably be inferred
that Walter Kuhl, who owned the mine and was vice president of the corporation and actively
involved in the mining operations, was aware of the prior violations (Tr. 250, 251and253).
fudeed Kuhl admitted that he was aware that employees of the corporation had been operating in
the same manner as cited herein (Tr. 257).
4

Section 110(c) of the Act provides as follows:
"Whenever a corporate operator violates a mandatory health or safety standard or
knowingly violates or fails or refuses to comply with any order issued under this Act
or any order incorporated in a final decision issued under this Act, except an order
incorporated in a decision issued under Subsection (a) or Section 105(c), any
director, officer, or agent ofsuch corporation who knowingly authorized, ordered,
or carried out such violation, failure, or refusal shall be subject to the same civil
penalties, fines, and imprisonment that may be imposed upon a person under
subsections (a) and (d).
31 FMSHRC 705

The 110 volt #2 off road diesel fuel pump is not properly grounded to motor frame
to prevent a person :from being electrocuted when making contact with the metal
pump housing. The white and black insulated conductors are hanging down :from the
motor electrical box and plugged into a grounded extension cord. A toggle switch
inside the office turns on circuit to pump. Equipment operators are exposed to this
outside wet condition :frequently each week as they fuel their equipment. The mine
owner stated it had been like this for approximately three years. The owner has to
walk past the condition numerous times daily to access his pickup truck that is parked
next to the tank and pump and also to access the garage where his FEL [front end
loader] that he operates is parked. No records have been documented that a
grounding test has been conducted on this circuit. Walter Kuhl, Owner has engaged
in aggravated conduct constituting more than ordinary negligence in that he has
allowed this electrical circuit to the fuel pump not be ground and tested and that he
has allowed the equipment operators to fuel the mobile equipment with such a
hazard. This violation is an unwarrantable failure to comply with a mandatory
standard.
The cited standard, 30 C.F.R. § 56.12025, provides, in pertinent part, that "[a]ll metal
enclosing or encasing electrical circuits shall be grounded or provided with equivalent protection.... "
Citation No. 6054305 also issued pursuant to Section 104(d)(l) of the Act alleges a
"significant and substantial" violation of the standard at 30 C.F.R. § 56.12008 and charges as
follows:
The power cable to the #2 off road diesel fuel 110 volt pump is not properly bushed
at the electrical compartment on the side of the pump motor. fusulated black and
white conductors are hanging out :from the underside of the compartment. Pump is
in use :frequently during the week to fuel the mine['s] mobile equipment. Owner
states that it has been in this condition for approximately three years. Owner has to
walk past hazard many times daily to get into his truck that is parked next to the tank
and to access the garage where his FEL that he operates is parked. Mr. Walter Kuhl,
Owner has engaged in aggravated conduct constituting more than ordinary negligence
in that he has not taken the appropriate action to have the fuel pump electrical circuit
properly bushed at the electrical compartment and to allow the equipment operators
to fuel the mobile equipment with this condition. This violation is an unwarrantable
failure to comply with a mandatory standard. Photo taken.
The cited standard, 30 C.F.R. § 56.12008, provides that "[w]hen insulated wires, other than
cables, pass through metal :frames, the holes shall be substantially bushed with insulated bushings."
On October 2, 2007, MSHA fuspector Russell West conducted an inspection at the subject
mine. Upon arrival, he met with Walter Kuhl, who identified himself as the owner and person in

31 FMSHRC 706

charge of the mine. During his inspection, Mr. West observed a 110 volt off-road diesel fuel pump
which was allegedly being operated with two electrical violations: (1) a lack of bushing at the
electrical compartment on the side of the pump motor as charged in Citation No. 6054305; and (2)
a lack of grounding for the motor frame as charged in Order No. 6054306. His testimony is
essentially undisputed and fully corroborated by his photographs (Gov't Exhs. 20A and 20B). The
violations are accordingly proven as charged.
The violations were also "significant and substantial". Based on the undisputed evidence I
find that the violation charged in Order No. 6054306 contributed to the hazard of employees being
electrocuted by exposure to energized metal components of the diesel fuel pump. The injury in
question would also likely be serious. In this regard Inspector West explained, without
contradiction, that if the cited condition were left uncorrected during continued mining operations,
the electrical conductor for the fuel pump could become damaged, thus triggering the danger of
electrocution. This is especially true when the fuel pump also lacked a grounding wire. The
violation charged in Order No. 6054306 was therefore clearly "significant ans substantial" and of
high gravity.
Based on the undisputed evidence I also find that the violation charged in Citation No.
6054305 contributed to the hazard of employees being electrocuted by exposure to energized metal
components of the diesel fuel pump. The injury in question would clearly be serious. Inspector
West explained that ifthe cited condition were left uncorrected during continued mining operations,
there would be a substantial risk of employee exposure to an electrocution hazard. This is especially
true when the fuel pump also lacked a bushing for the conductor wires. The violation charged in
Citation No. 6054305 was therefore clearly "significant and substantial" and of high gravity.
I find that both of the violations here at issue (relating to defects on the same diesel fuel
pump) were the result ofthe operator's ''unwarrantable failure". It is undisputed that both violations
had existed for about three years and that the defective wiring had been installed by Mr. Kuhl' s
grandson at his request. It is further undisputed that the subject diesel pump was adjacent to where
Mr. Kuhl parked his truck. Mr. Kuhl would also walk past the violative condition when he went to
the garage to get his front end loader. The pump was also located between the scale house trailer and
the maintenance shop in an area in which all employees would frequently work and travel. I find,
based on this evidence, that the violative conditions were therefore obvious. I further find that the
cited conditions created a danger of electrocution. The danger was contributed to by both the
bushing violation and by the lack of grounding. These violations combined to make use of the
subject diesel pump an extremely hazardous activity.

Under the circumstances I find the Respondent's conduct to have been "aggravated" and
demonstrated "reckless disregard", "indifference," and a "serious lack of reasonable care." The
violations were therefore the result of his ''unwarrantable failure" and high negligence.
In reaching these conclusions I have not disregarded Respondent's argument that the cited
conditions were not obvious since they had not been previously cited despite MSHA inspections over

31 FMSHRC 707

the previous three years. While this argument is certainly entitled to significant consideration I find
that it is outweighed by the operator's own duty to conduct inspections, that Mr. Kuhl himself had
chosen the person (obviously not competent) to install the electrical components on the cited fuel
pump and was, himself, frequently in a position to have observed the violative conditions.

Civil Penalties
Under Section 11 O(i) of the Act, the Commission and its judges must consider the following
factors in assessing a Civil penalty: the history of violations, the negligence of the operator in
committing the violation, the size of the operator, the gravity of the violation, whether the violation
was abated in good faith and whether the penalties would affect the operator's ability to continue in
business. The record shows that the subject mine had about 1,3 82 hours worked during the calendar
year prior to the issuance ofthe subject charging documents and is therefore considered to be a small
mine. The mine, since operated by Mr. Kuhl as a sole proprietor, does not have a significant history
of violations but there had been repeated "knowing" violations by Mr. Kuhl of the standard at 30
C.F.R. § 56.3130. The violation charged in Citation No. 6045490 was not abated in a timely
manner. fudeed the violation was not abated for nearly two months and only after a "Section 104(b)"
order was issued. The tw() electrical violations were abated in a timely manner. The gravity and
negligence fmdings have previously been discussed. The parties have stipulated that the penalties
proposed by the Secretary would not affect the operator's ability to remain in business.

ORDER
Citation Numbers 6045490 and 6054305 and Order Number 6054306 are affirmed as written.
It is hereby ordered that Respondent pay penalties totaling $42,374.00 ($37,800.00, $2,000.00 and
$2,000.00 respectively for the violations charged in the above charging documents as well as
penalties of$574.00 pursuant to the settlement agreement) within 40 days of the date of this order.

GaryMe ck
Administrative Law
(202) 434-9977
Distribution: (Certified Mail)
Mark V. Swirsky, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center,
Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
Robert J. Jeffery, Esq., Orton & Jeffery, P.C., 33 East Main Street, North East, PA 16428

/lh
31 FMSHRC 708

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

May 15, 2009
CONTEST PROCEEDING

MACH MINJNG, LLC,
Contestant

Docket No. LAKE 2009-395-R
Order No. 8414238; 03/13/2009

v.

Mach No. 1 Mine
Id. No. 11-03141

SECRETARY OF LABOR,
MINE SAFETY ANDHEALTH
ADMINISTRATION (MSHA),
Respondent

ORDER DENYING MACH MINING'S MOTION FOR SUMMARY DECISION
ORDER GRANTING IN PART THE SECRETARY'S MOTION
FOR SUMMARY DECISION
This case is before me on a notice of contest brought by Mach Mining, LLC, ("Mach")
against the Secretary of Labor, acting through the Mine Safety and Health Administration
("MSHA"), pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et. seq. (the ''Mine Act"). Mach filed a motion for summary decision under
Commission Procedural Rule 67 and asked for expedited consideration. 29 C.F.R. § 2700.67. In
response, the Secretary filed a cross motion for summary decision. Both parties briefed the
issues.
Section 2700.67 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 oflaw.
On March 13, 2009, an MSHA inspector issued Order No. 8414238 under section
104(d)(l) of the Mine Act alleging a violation of 30 C.F.R. § 75.370(d). The order alleges the
following violation:

A proposed ventilation plan dated February 25, 2009 was
implemented before it was approved by the district manager. The
mine operator has mined over I 000 feet inby the location of the
31FMSHRC709

proposed set up rooms in headgate No. 3. The drawing titled
"Ventilation Plan Map for future Longwall Operations" dated
March 19, 2006, which is part of the current approved plan for this
mine, approved on March 18, 2008, shows a six panel design with
all six panels approximately 18,000 feet deep without any stair
steps.
The proposed ventilation plan addendum, panel 3 extension, was
received by the MSHA District Manager on February 26, 2009.
An acknowledgment letter dated February 26 was sent to the mine
operator stating that approval by the district manager was required.
The mine operator had been put on specific notice in several
meetings and by other letters of this requirement. 1
The MSHA inspector determined that it was unlikely that the cited condition would injure
a miner and that the violation was not significant and substantial. He also determined that the
operator's negligence was high.
The cited safety standard provides:
No proposed ventilation plan shall be implemented before it is
approved by the district manager. Any intentional change to the
ventilation system that alters the main air current or any split of the
main air current in a manner that could materially affect the safety
and health of the miners, or any change to the information required
in §75.371 shall be submitted to and approved by the district
manager before implementation.

I. BACKGROUND
Mach argues that there are no genuine issues as to any material fact and that it is entitled
summary decision as a matter oflaw. Its motion for summary decision is supported by a
declaration from Richard "Pete" Hendrick, who is the president of Mach, as well as provisions
from its ventilation plan. The Secretary's cross-motion for summary decision is supported by a
declaration from Mark 0. Eslinger, who is a supervisory mining engineer for MSHA Coal
District 8, and other supporting material.
The Mach No. 1 Mine is an underground coal mine in Williamson County, Illinois. Mach
develops headgate entries using a continuous mining machine. The mine uses a longwall to mine
the coal. At the time the order of withdrawal was issued, the longwall had just begun mining the

1

The order was subsequently modified to allow Mach to remove the section loading
equipment from Headgate No. 3.
31FMSHRC710

second panel and Headgate No. 3 was being developed with a continuous mining machine in
preparation for future mining of the third and fourth longwall panels. Two mine maps prepared
by Mach are included in the Secretary's exhibits and are discussed by both parties. The first
map, dated March 19, 2006, is entitled "Ventilation Plan Map for Future Longwall Operation"
("2006 Ventilation Plan Map"). (Sec'y Ex. A). The second map, dated October 28, 2008, is
entitled "Ventilation Map 75.1200175.372 Requirements" ("2008 Annual Map"). (Sec'y Ex. B).
MSHA approved Mach's most recent ventilation plan on March 18, 2008. The plan
included provisions describing how Mach will ventilate its gate entries. Mach had previously
submitted the 2006 Ventilation Plan Map that contained projections of Mach's anticipated
mining development as of March 19, 2006. Those projections depicted six panels that were all
about 18,000 feet long. MSHA reviewed 2008 Annual Map as well as earlier maps submitted by
Mach and, by letter dated January 26, 2009, advised Mach that the maps were acceptable. (Sec'y
Ex. C).
All of the ventilation maps that had been submitted by Mach showed all proposed
longwall panels to be of equal length with the result that the setup rooms that would become the
bleeder entries were straight from panel to panel. The district manager sent a letter to Mach
dated February 4, 2009, noting that the 2006 Ventilation Plan Map "showed a six-panel design
will all six panels approximately 18,000-foot depth" and that "[no] stair steps are shown on the
drawing." (Sec'y Ex. D). The letter then warns Mach that the "[f]ailure to obtain approval
before making changes to the bleeder design could be cause for enforcement action." Id.
On February 25, 2009, Mach submitted a ventilation plan amendment to MSHA that
indicated that panel three would be developed about 1,000 feet inby the farthest inby point
depicted on the 2006 Ventilation Plan Map. (Mach Ex. 2). This submission was made at the
request of the MSHA district manager.
The order at issue in this case required miners to be withdrawn from the area ofHeadgate
No. 3 that was inby the area projected on the 2006 Ventilation Plan Map.

II. SUMMARY OF THE PARTIES' ARGUMENTS
The Secretary issued the order of withdrawal because she contends that, when Mach
mined the Headgate No. 3 entries inby the setup rooms projected on the 2006 Ventilation Plan
Map, it violated the terms of its approved ventilation plan. She states that any change in the
information required by section 75.3 71 must be approved by the district manager before
implementation and that the changes being made by Mach had not been approved.
Mach maintains that the order is invalid for two reasons. First, Mach did not violate
section 75.370(d) because it was developing the headgate in accordance with the approved
ventilation plan. The March 2008 ventilation plan detailed the methods that Mach must use
during headgate entry development. Mach was following these approved ventilation methods in
31 FMSHRC 711

Headgate No. 3. Second, the fact that Mach mined beyond the boundary of the projections of
anticipated mining depicted on the 2006 Ventilation Plan Map· is irrelevant. A mine operator's
projections of anticipated mine development shown on a ventilation map are not subject to
MSHA approval. 30 C.F.R. 75.370.(a)(l ). These projections are nothing more than an
indication of anticipated mine development that a mine operator must update at least annually in
its ventilation map. Because anticipated development is not subject to MSHA approval, an
operator is not required to obtain approval from MSHA before it mines beyond the previously
submitted projections. The operator is only required to maintain a current mine map showing all
active workings in a fireproof location on the mine surface.
The Secretary contends that the facts establish a violation of section 75.370(d). Mach
was operating without an approved ventilation plan when it mined 1,000 feet inby the set-up
rooms depicted in the 2006 Ventilation Plan Map. She states that Mach has incorrectly
characterized the 2006 Ventilation Plan Map as a map that simply shows projections of
anticipated mine development that is not part of the mine's ventilation plan. The Secretary
argues that Mach submitted the 2008 Annual Map for that purpose in October 2008. This map
sets out its yearly projections for mining. This map was accepted by MSHA on January 26, 2009
and shows the annual mining projections through October 2009. This map was submitted by the
company to comply with sections 75.370(a)(l), 75.372(b)(14), and 75.1200.
The 2006 Ventilation Plan Map, on the other hand, sets forth a number of things that are
part of a mine's ventilation plan including the design of the bleeder system. This map is part of
the ventilation plan and it requires approval by the district manager because it shows the design
of the bleeder system as required by section 75.371(x). 2 The length oflongwall panels, the
gateways developed for the panels, and the configuration of the bleeder entries is a critical part of
MSHA evaluation of the ventilation plan. Under Mach's logic, it could mine Headgate No. 3 as
far inby as it wants without the approval of MSHA if it follows the gate entry ventilation protocol
contained on page B5 of its current ventilation plan. (Mach Ex. 1). By mining 1,000 feet inby
the set-up rooms shown on the 2006 Ventilation Plan Map, Mach went beyond its approved
bleeder design. Mach was issued the order of withdrawal because it had been previously told by
the district manager that its approved plan did not allow it to mine beyond the panel length set
out in the Ventilation Plan Map.
Mach filed a response to the Secretary's cross-motion for summary decision. It argues
that the law is clear that the Secretary has no authority to approve projections of anticipated
development and an operator need not obtain any additional approval to develop beyond a prior
projection where it is developing pursuant to an approved ventilation plan. Projections of future
mining, even when part of the section 75.372 map, are never subject to MSHA approval. Section
75.370(a)(l). Because such projections are not subject to MSHA approval, the projections
2

Section 75.371states that the "mine ventilation plan shall contain the information
described below and any additional provisions required by the district manager: . . . (x) A
description of the bleeder system to be used, including its design (see 75.334)."
31FMSHRC712

shown on the 2006 Ventilation Plan Map could not have been subject to MSHA approval and
they did not limit Mach's right to develop Headgate No. 3.
Mach alleges that the Secretary is attempting to shift the focus to whether by mining
beyond its previous projections, Mach affected the design and function of its bleeder system.
This argument does not have merit because, at the time the order of withdrawal was issued,
Headgate No. 3 was not physically connected to the bleeder system. The return air in the
headgate traveled outby _down the return air course in the headgate to the mains. As a
consequence, even assuming that Mach might need to amend its ventilation plan at some future
point, a new plan was not required at this time. The order must be vacated because it is
premature and speculative since Mach has not cut into the bleeder entries from Headgate No. 3.

In addition, the 2006 Ventilation Plan Map was not submitted by Mach to satisfy the
requirements of75.37l(x). Mach satisfied this provision on page B2 and the last page of its
approved ventilation plan. (Mach Ex. 1). Mach never intended that the 2006 Mine Ventilation
Map be part of the ventilation plan setting forth requirements for the bleeder entries. Mach
characterizes the Secretary's arguments as "ipse dixit at best" but ''ultimately immaterial."
(Mach Response at 6).
Mach further argues that the court should reject the Secretary's argument that MSHA
advised the company that it could not mine Headgate No. 3 any deeper than the first two panels.
She bases her argument on the February 4, 2009, letter from the district manager and the
"proposed ventilation plan addendum" submitted by the company on February 25, 2009, in
response to this letter. Mach maintains that this correspondence does not alter Mach's legal right
to develop Headgate No. 3. The issues raised in the district manager's February 4 letter "only
bears on ventilation during longwall mining, once the development work in Headgate No. 3 is
complete and panel 3 has been set up and connected to the bleeder entries." (Mach Response at
9). IfMSHA's letter is interpreted to limit Mach's right to develop Headgate No. 3 until it
obtains MSHA approval, then it was acting beyond its authority because "MSHA cannot create
new rules by district manager fiat." Id. at 10.

III. ANALYSIS OF THE ISSUES
I find that I have the authority to determine whether Mach violated section 75.370(a)(l)
as alleged in the order of withdrawal under Commission Procedural Rule 67 because there is no
genuine issue as to any material fact. My analysis of the legal arguments presented by the motion
and cross motion is set forth below.

A. Did Mach Violate Section 75.370(d)?
A mine's ventilation plan consists of two parts: the plan content as prescribed in section
75.371 and the ventilation map with the information prescribed in section 75.372. (Section
75.370(a)(l)). Both of the maps discussed above show that Mach planned to develop the

31 FMSHRC 713

longwall panels to a depth of 18,000 feet. That is, the distance between the mains and the set-up
rooms would be about 18,000 feet. At some point after October 18, 2008, the date of the 2008
Annual Map, Mach decided that it wanted to develop the third longwall panel to a greater depth.
Because Mach takes the position that the depth of mine development is not subject to MSHA
approval, it mined past the 18,000 foot point when it developed the entries in Headgate No. 3. At
the time the order of withdrawal was issued, Headgate No. 3 had been driven about 1,000 feet
deeper than the other gate entries.
There is no allegation in the order of withdrawal that Mach was not properly ventilating
the headgate entry. For example, the ventilation plan calls for 20,000 cfm of air at the last open
crosscut and MSHA does not contend that this requirement was not being met. (Mach Ex. 1,
B5). The issue is whether Mach was required to obtain MSHA's approval before it developed
the headgate entry deeper than the 18,000 feet shown on the approved ventilation maps. As set
forth above, Mach argues that the Secretary's ventilation standards do not require a mine
operator to obtain approval from MSHA if it decides to mine beyond the boundary of anticipated
mining as shown on its ventilation map. Although section 75.372(b)(14) requires that a
ventilation map contain "[p)rojections for at least 12 months of anticipated mine development,"
MSHA does not have the authority to approve or deny these projects. Section 75.371 does not
require a mine operator to include projections of anticipated mine development in its ventilation
plan and section 75.370(a)(l) states that "[o]nly that portion of the map which contains
information required under§ 75.371 will be subject to approval by the district manager." As a
consequence, Mach argues that MSHA did not have the authority to issue the subject order of
withdrawal when Mach mined beyond the projected area of mining development.
Although Mach's arguments have some superficial appeal, I hold that it is looking at the
plan approval process too narrowly. Mach is not only mining beyond its projections of
anticipated mine development shown on the ventilation maps, it is changing the design of the
ventilation system in the longwall panels. By developing the headgate entry for the third panel
deeper into the mine, Mach is, a fortiori, changing the design of the panel. I find that the 2006
Ventilation Plan Map is part of the existing approved ventilation plan. By developing the
headgate 1,000 feet deeper, the bleeder entries will have a different configuration from that
shown on this map. Section 371(x) clearly provides that the design of a bleeder system is part of
the ventilation plan that is subject to approval by the district manager.
Mach argues that the Secretary's arguments concerning section 371(x) are premature and
speculative. I disagree. Once Mach completes its development ofHeadgate No. 3, the modified
design of the bleeder entries proposed by Mach will be a fait accompli. MSHA will either have
to approve the new bleeder system design for the mine or force Mach to abandon any
development mining inby the location of the set-up rooms shown on the 2006 Ventilation Plan
Map. The only map showing the modified gateway and bleeder design was submitted by Mach
on February 25, 2009, and that map has not yet become a part of the mine's approved ventilation
plan. (Mach Ex 2). This map represents a significant change in the ventilation plan and Mach

31 FMSHRC 714

cannot make these changes without the approval of the district manager.3 I find that the
Secretary established a violation. Consequently, Mach's motion for summary decision is denied
and the Secretary's cross-motion for summary decision is granted on this issue.
B. Was the Violation a Result of Mach's Unwarrantable Failure to Comply?
The parties have presented conflicting facts with respect to this element. In its response
to the Secretary's cross-motion for summary decision, Mach set forth evidence in the
supplemental declaration of Mr. Hendrick to show that the alleged violation was not the result of
its unwarrantable failure to comply with the cited standard. These paragraphs state, inter alia,
that Mach decided to start mining the panels about 1,000 feet deeper on the suggestion of an
outside roof control engineering consultant. Mach states that poor roof conditions were
experienced in the set-up entries in the first two panels and it was trying to avoid these conditions
in future panels. It also states that MSHA was aware of this fact and that at least one local
MSHA inspector was present when Mach started mining the Headgate No. 3 beyond the 18,000
feet distance shown in the 2006 Ventilation Plan Map and that no objections were raised. During
a conference call, counsel for the Secretary stated that MSHA cannot stipulate to all of the
evidence set forth in this declaration at paragraphs 3 through 10.
Because there are genuine issues as to material facts, I cannot enter any findings on the
unwarrantable failure issue. I note, however, that if Mach were able to establish at a hearing the
facts alleged in the supplemental declaration, it is unlikely that I would uphold the Secretary's
unwarrantable failure determination. Unwarrantable failure is de.fined as aggravated conduct
constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec.
1987). Unwarrantable failure is characterized by such conduct as ''reckless disregard,"
"intentional misconduct," "indifference," or the "serious lack of reasonable care." Id. 2004-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC at 193-94. The parties are ordered to confer to
try to settle the negligence and unwarrantable failure issues. In the alternative, I am willing to
stay this contest proceeding until the Secretary proposes a penalty for the order of withdrawal.

3

It is not clear from the record whether the district manager has now acted on the
proposed panel extension submitted by Mach. As stated above, the map showing the Panel 3
extension was sent by Mach to the district manager on February 25, 2009. This proposed plan
amendment has been pending for almost three months. Many mines have bleeder systems that
form a stair step pattern.

31 FMSHRC 715

IV.ORDER
Mach Mining's motion for summary decision is DENIED. The Secretary's cross-motion
for swnmary decision is GRANTED on the fact of violation and DENIED on the unwarrantable
failure issue. The parties are ordered to confer to discuss the negligence and unwarrantable
failure issues and report back to me by no later than June 11, 2009.

'

Richard W. Manning
Administrative Law Judge

Distribution:
Suzanne F. Dunne, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn
Street, Room 844, Chicago, IL 60604-1779 (via facsimile and first class mail)
Daniel Wolff, Crowell & Moring, LLP, 1001 Pennsylvania Ave, Washington, DC 20004-2595
(via facsimile and first class mail)

RWM

31 FMSHRC 716

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N. W., SUITE 9500
WASHINGTON, D.C. 20001
(202) 434-9980

May29, 2009
DISCRJMINATION PROCEEDING

BILLY BRANNON,
Complainant

Docket No. KENT 2009-302-D
BARB CD 2008-07

v.

No. l Mine
Mine ID 15-18198

PANTHER MINING, LLC,
Respondent

ORDER GRANTING IN PART MOTION TO COMPEL
AND

ORDERTOSUPPLEMENTTHERECORD
BACKGROUND
In this case, arising under section 105(c)(3) of the Federa1 Mine Safety and Health Act of
1977 (Mine Act), 30 U.S.C. § 815(c)(3), the complainant, Billy Brannon, alleges Brannon was
discriminated against by Panther Mining, LLC ("Panther or ''the company") when:
(1) Company officials "spoke disparagingly about [him]
to other miners ... and encouraged [his] co-workers
to shun him.
(2) Company officials "imposed ... onerous and unsafe
working conditions on [him] by refusing to allow
him to drive a buggy and by making him walk while
performing his assigned job duties.
Complaint of Discrimination (Complaint) 5.
According to the complaint, the alleged discriminatory acts were motivated by the
company's knowledge that Brannon had filed suit against Cloverlick Coal Co., LLC
("Cloverlick") and its parent company, Black Mountain Resources, LLC (Black Mountain),
because he was physically assaulted by Cloverlick's foreman, Robert Salyer. The alleged assault
took place on January 23, 2008. Complaint 1-2. At the time Brannon worked for Cloverlick at
its No. 1 Mine. After the assault, Black Mountain transferred Brannon to Panther's No. 1 Mine.
Panther, like Cloverlick, is a subsidiary of Black Mountain.
On April 25, 2008, one of Brannon's attorneys wrote to Rick Raleigh, Human Resources
Manager for Cloverlick/Black Mountain, that Brannon would file suit against Cloverlick because
31 FMSHRC 717

of the incident. The attorney also asked the Kentucky Office of Mine Safety and Licensing
(OMSL) to bring charges against Salyer before the Kentucky Mine Safety Review Commission,
and to seek the revocation ofSalyer's foreman's certificate. Complaint 2-3. fu response, OSML
conducted an investigation of the incident and interviewed witnesses to the event, including
Raleigh, who had investigated the incident for Black Mountain, and Salyer. Complaint 3.
On June 9, 2008, Brannon made good his stated intent, and filed suit in state court against
Cloverlick and Salyer.. On June 26, 2008, Brannon was transferred from the second shift to the
day shift at Panther's No. 1 Mine and assigned to the position of head drive operator. As a head
drive operator Brannon was responsible for making sure five head drives at the mine remained
operating. The complaint alleges that after the transfer, "several day shift employees told
Brannon that [Panther] management personnel ... had told them negative things about
[Brannon], and had told them not to talk to him or to avoid him." Complaint 3.
One of Brannon's duties as head drive operator was to complete checklist forms reporting
the condition of"batteryrides," head drives and belt take-up areas. Complaint 3. The complaint
asserted Brannon several times documented unsafe conditions when completing the checklists.
Id. The complaint also asserted, when Brannon was assigned to work on the head drives at the
end of June, he was given a buggy to drive from one head drive unit to another. However, on
September 2, 2008, Brannon was told by mine management he could not use a buggy. He had to
walk. The complaint describes walking as "more onerous" and a safety hazard because Brannon
at times was more than 25 feet away from two, self-contained self-rescuers ("SCSRs"), a
violation of Panther's required SCSR plan. Complaint 4. The complaint also alleged Brannon
complained about the SCSR hazard to Panther's mine superintendent, Mark Shelton, and to the
mine foreman. Brannon further alleged that on September 4, a member of mine management,
Richard Bowman, told him that Shelton made him walk because Brannon "had been
documenting problems on the pre-operational checklists and ... having to walk would teach
[Brannon] a lesson." Id.
fu answering the complaint, Panther admitted there was an altercation involving Brannon
and Salyer and that Brannon was transferred to Panther's No. 1 Mine. However, the company
stated that on June 9, 2008, Brannon moved from the second shift to the day shift at his own
request. Answer and Defenses to Complaint of Discrimination (Answer) 1-2. 1 With regard to
the allegation that day shift employees told Brannon that management personnel said negative
things about him, the company maintained it was without sufficient knowledge to admit or deny
the allegation. With regard to the allegation day shift employees told Brannon management ·
personnel said to avoid him, Panther stated employees who complained to mine managers about
having to work around Brannon, ''were advised to avoid him so that safe operations could be
maintained without personal conflicts." Answer 2. According to Panther, its managers were

1

Panther also stated it had not received a copy of the original complaint Brannon filed
with MSHA, and, in fact, a review of the documents attached to Brannon's complaint fails to
reveal a copy of the original complaint.
31 FMSHRC 718

trying to make sure safe operations in the mine would continue without personal conflicts.
Answer 4. The company also denied management officials told miners Brannon was calling
mine inspectors and making safety complaints about the mine. Answer 2.
Although Panther agreed Brannon completed checklists as part of his job as head drive
operator and that some of the items he checked involved potential safety issues, it asserted other
items involved matters Brannon was supposed to correct but did not. Answer 2.
Panther also agreed Brannon was denied use of a buggy to make his rounds on or about
September 2, 2008, but asserted it was because Brannon's assigned buggy was being repaired
and was unavailable. Answer 2. Responding to Brannon's allegation of disparate treatment
("[Brannon] was the only head drive operator at the mine who was not provided with a buggy to
drive" (Complaint 5)), Panther stated there was only one other head drive operator and that he
had "a much greater distance to travel in lower heights than did [Brannon]." Answer 3. Panther
insisted Brannon had to walk when the buggy assigned to him was being repaired, and on at least
one occasion Brannon used the buggy even though it was not ready for use and was "red tagged."
Id. Further, Brannon's buggy once was intentionally disabled while in Brannon's care. Id.
Being without a buggy did not require Brannon to violate the mine's SCRS plan because
Brannon was instructed to carry a one-hour SCRS when he walked to his work sites, and ifhe did
as instructed, he was never out of compliance with the plan. Id. 3. Further, the company denied
Bowman told Brannon that the mine superintendent, Shelton, was making him walk because
Brannon documented problems on the checklists. Id.

EVENTS FOLLOWING THE RECEIPT OF PANTHER'S ANSWER
After the answer was received, the matter was assigned. That same day, Panther filed a
motion to require Brannon to respond to Panther's first interrogatories and first request for
production of documents. I granted the motion and stated that after July 10, 2009, no discovery
would be permitted except for good cause shown. I further stated I expected counsels to
cooperate to ensure all discovery was completed by that date. Finally, I scheduled the case to be
heard in Barbourville, Kentucky, on August 11, 2009.

THE MOTION TO COMPEL
On April 17, 2009, Brannon responded to the company's first interrogatories and requests
for production. In the responses Brannon lodged objections to some of the questions and
requests. On May 12, 2009, the company moved to overrule Brannon's objections to written
discovery requests and to compel Brannon to more fully respond. 2 Respondent's First Motion to
Overrule Complainant's Objections to Written Discovery Requests and to Compel Discovery
(Motion). Specifically, in its first interrogatories the company asked Brannon to state whether he
2

As of the date of this order the Commission has not received a response to the
company's motion from Brannon.
31 FMSHRC 719

ever made audio or video recordings of any happenings or conversations in or around Panther's
mine, and, if so, to state the types of recordings, the dates they were made and the events of
conversation which were recorded. Motion, Exh. A 8. Brannon objected because the
interrogatory did not specify the time period for which the information was sought. It maintained
that recordings made outside the time period covering the events of the proceeding or regarding
events that did not pertain to Brannon's discrimination complaint were irrelevant. Brannon
acknowledged, however, that he made an audio recording of his September 12, 2008,
conversation with Mark Shelton. The conversation concerned Brannon's walking to the head
drives and how he was supposed to carry all of his gear and two SCSRs. Motion, Exh. B 4.
To meet Brannon's objections to the time period covered by the request for infomation
about the recordings, Panther offered to limit its request to those recordings "created on or after
the first alleged discriminatory act, June 26, 2008 [(Brannon's transfer from the second shift to
the day shift)] and before the last claimed discriminatory act on September 11, 2008. 3 Brannon
did not respond to the offer. Motion 2. The company asserted Brannon should be required to
produce all recordings made within the June 26 - September 11 time period that were reasonably
calculated to lead to the discovery of admissible evidence. Panther stated it knew Brannon
surreptitiously taped certain conversations, that the complaint alluded to several things other
miners and management told Brannon and that Brannon should not be allowed to grant Panther
access to one audio tape (the tape of the Brannon/Shelton conversation), but not to the others.
Motion 3.
In the interrogatories, the company also asked Brannon to state whether he kept personal
notes or logs of any events or conversations at Panther's mine. If so, it asked Brannon to
describe the logs and state the dates on which entries were made, and to describe the events or
conversations in the notes. The company also requested copies of all the identified documents.
Motion, Exh. A 9, Exh. B 4. Brannon objected, again because the interrogatory did not identify
the time period for which the materials were sought. He further maintained any logs and notes
kept during a relevant time period were made at the instruction of his counsel and, therefore,
were privileged under the work product doctrine. Motion, Exh. C 5.
In its motion to compel, the company repeated it had offered to limit the requested
documents to those made between June 26, 2008, and September 11, 2008. As for the work
product privilege, the company stated Brannon had not shown the materials were prepared in
anticipation of litigation and, even if they were, the logs and notes were contemporaneous and
contained information Panther could not obtain elsewhere. Motion 5.

Finally, in its request for production, the company asked for a copy of any document

3

As I read the complaint, it does not allege a discriminatory act by Panther on September
11. It may be the company is referring to its receipt of copy of a letter from MSHA notifying
Panther that Brannon had filed a complaint with the agency which the agency was investigating.
The letter was mailed to Panther on or about September I 0, 2008.
31 FMSHRC 720

given to MSHA that related to the events in the complaint. Brannon responded by sending the
company a truncated copy of Brannon's statement to MSHA. Brannon explained that the names
of miner witnesses and information pertaining to miner witnesses had been redacted. Jn the
motion to compel, the company argued the redactions exceeded the scope of any that might be
justified by the Commission's rules. Motion 2.

RULING ON THE MOTION
Discovery is a device to ascertain the facts or information regarding the existence of facts
relative to the issues in a case. The goal of discovery is to provide the parties with an opportunity
to obtain, consistent with recognized privileges, the fullest possible knowledge of the issues and
facts before trial. 29 C.F.R. § 2700.56(b). The basic philosophy behind discovery is that, prior
to trial, a party is entitled to the disclosure of all relevant information in the possession of any
person unless the information is privileged. See, Fed. R. Civ. P. 26(b)(l). The information need
not be admissible at trial. Rather, if the information appears reasonably calculated to lead to the
discovery of admissible evidence, it is subject to disclosure. The courts liberally construe
discovery rules in order to provide parties with the information needed for trial. Thus, a party is
entitled to see many, if not-all, of his or her opponent's cards before proceeding through the
courthouse door. The goal is to level the playing field and help to ensure a fair trial. This is
especially true in administrative law cases where, in order to simplify and expedite proceedings,
judges are loath to strictly construe discovery rules and bar pre-trial disclosure.
When parties are at odds over allegedly discoverable materials, the first question is
whether the materials that are requested to be identified and produced - here, the copies of the
audio tapes, logs and notes - are relevant and likely to likely to lead to admissible evidence. If
so, the next question is whether the materials sought are protected by privilege. If not, the
materials must be identified and produced.

THE AUDIO TAPES
Certainly, audio tapes of mine-site conversations involving the complainant and other
miners made between the time Brannon was transferred from the second shift to the day shift,
June 26, 2008, to the date Panther received notice from MSHA that Brannon had filed a
complaint of discrimination, presumably September 11, 2008, are likely to contain information
reasonably calculated to lead to the discovery of admissible evidence, including the company's
alleged responses to Brannon's alleged protected activities. Therefore, information requested in
Interrogatory 8 is relevant and must be provided absent the names of miner witnesses or
information otherwise identifying miners who may be called as witnesses. 29 CFR § 2700.62.
Accordingly, Brannon's objections to Interrogatory 8 ARE OVERRULED.
In addition, copies of the tapes must be provided to Panther, and Brannon's objections to
producing the audio tapes also ARE OVERRULED. Material on the tapes identifying miner
witnesses or those who may appear must be redacted, and complete copies of the tapes, including
31 FMSHRC 721

redacted material, must be provided to Panther two days before the hearing.
THE LOGS AND NOTES
Certainly, too, information about logs and notes made by Brannon between June 26,
2008, and September 11, 2008 - logs and notes that concern events or conversations at the mine
involving Brannon's alleged protected activities and Panther's and its employees reactions
thereto - are likely to obtain information reasonably calculated to lead to the discovery of
admissible evidence. ht addition, they are likely to contain information relevant to underlying
facts and to the credibility of witnesses, including the complainant. Thus, the information
requested in Interrogatory 9 is relevant.
Brannon's objection that the materials are protected by blanket application of the work
product privilege is not well taken. The work product privilege is a qualified privilege that may
be overcome, as Panther correctly notes, if Panther establishes it has a convincing need for the
materials and is unable to obtain their equivalent without undue hardship. See Haigh v.
Matsushita Electric Corporation ofAmerica, 676 F. Supp. 1332, 1357 (E.D. VA) (1987). I am
persuaded that Panther is right when it argues contemporaneous materials, such as the requested
logs and notes, cannot be replicated and are, in general, more reliable than latter day
recollections. Motion 4. The work-product doctrine should not be implemented so as to upset a
a fair and balanced process by giving the advantage to one side over the other, and valid
concerns enshrined in the doctrine - concerns regarding an attorney's thought process and
strategy- can be accommodated by careful redaction. For these reasons, Brannon's objections to
futerrogatory 9 ARE OVERRULED.
fu addition, copies of materials identified in response to futerrogatory 9 must be provided
to Panther, and Brannon's objections to producing them also ARE OVERRULED. Material on
the copies relating to his attorney's thought processes and strategies must be redacted. fu
addition, material identifying miner witnesses or those who may appear as witnesses must be
redacted, and complete copies of the documents, absent material relating to the thought process
and strategies of Brannon's attorney, must be provided to Panther two days before the hearing.
BRANNON'S STATEMENT TO MSHA
Finally, after reviewing the copy of Brannon's statement to MSHA - the copy that
Brannon sent to Panther - I do not agree with Panther that it is "over redacted." Brannon has
stated he will provided Panther with a complete copy of the statement two days before the
hearing, and this is as it should be under Rule 62. 29 C.F.R. § 2700.62.
SUPPLEMENTATION OF THE RECORD
A copy of Brannon's initial complaint to MSHA would provide a better understanding of
the nature of this case. ACCORDINGLY, within ten days of the date of this Order, Brannon is

31 FMSHRC 722

requested to file such a copy with the Commission.
Further, Brannon's allegations of the protected activity in which he engaged are not
entirely clear from the complaint. ACCORDINGLY, within the same ten days Brannon is
requested to file a list of his alleged protected activities. The list should include a short
description of each protected activity and the date or dates on which it occurred.

'"°~,dC~
David F. Barbour
Administrative Law Judge

Distribution: {Certified Mail)
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522
Wes Addington, Esq., AppIDachian Citizens Law Center, 317 Main Street, Whitesburg, KY
41858
Stephen M. Hodges, Esq., Penn, Stuart & Eskridge, P. 0. Box 2288, Abington, VA 24212

/ej

31 FMSHRC 723

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

June4, 2009
CONTEST PROCEEDING

JIM WALTER RESOURCES, INC.,
Contestant

Docket No. SE 2008-124-R
Citation No. 7693357; 11/02/2007

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

Mine ID 01-00758

CIVIL PENALTY PROCEEDING

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

Docket No. SE 2008-792
A.C. No. 01-00758-148659

v.
Mine No. 3

JIM WALTER RESOURCES, INC.,
Respondent

ORDER DENYING MOTION FOR SUMMARY DECISION
NOTICE OF HEARING
AND
ORDER TO FILE PREHEARING REPORT
These consolidated cases arise out of a fatal accident that occurred on July 30, 2007, and
the citation issued as a result of the fatality. In the civil penalty case the Secretary is petitioning
to assess Jim Walter Resources, fuc. ("JWR") $60,000 for an alleged violation of30 C.F.R. §
77 .171 O(g), a mandatory safety standard requiring that an employee wear safety belts and lines
where there is a danger of falling. 1 The alleged violation is set forth in Citation No. 7693357,
1

30 C.F.R. § 77.l 710(g) states in part: 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 ....

31FMSHRC724

which was issued.on November 2, 2007. In addition to alleging a violation of section
77.1107(g), the citation contains the inspector's findings that the violation was a significant and
substantial contribution to a mine safety hazard (S&S) and was the result of JWR's moderate
negligence.
Citation No. 7693357 states as follows:
A contract employee was not utilizing a safety line (lanyard)
where there was a danger of falling while installing and
dismantling roofing panels on the top of the Jim Walter
Resources, Inc., No. 3 maintenance shop. At approximately
2:30 [p.m.], on July 30, 2007, a contract roofing employee was
fatally injured when he fell for a distance of approximately 28
feet while dismantling the roof panels. The employee was
wearing a safety harness but did not have the safety line
(lanyard) secured. There was a Jim Walter [s]upervisor present
in the vicinity of the shop at the time of the accident. The
operator gave the required hazard training; however, the agent
of the operator did not ensure that the contractor was in
compliance with the applicable regulation.

THE RELEVANT FACTS
JWR owns the No. 3 Mine located in Brookwood, Alabama. The mine is an underground
coal mine with very limited surface activity. See JWR's Motion for Summary Decision at 3.
According to MSHA's Investigation Report, JWR contracted with Hooper and Chandler Steel
Erectors, Inc. (H&C) to replace the roof on the mine's surface maintenance shop. 2 Work was
scheduled to begin on July 30, 2007, the same day the accident occurred. However, before the
H&C contract employees began working, JWR conducted required hazard training for them.
During the training JWR's instructor informed the H&C employees that they had to utilize fall
protection where there was a danger of falling and that they were responsible for complying with
MSHA regulations at all times. After the training was completed, H&C's employees began to
replace the shop roof. At approximately 2:30 p.m, Wade Drew, who was dismantling a
maintenance shop roof panel, slipped and fell approximately 28 feet to his death. As the citation
notes, Drew did not have a safety line attached to his safety harness.
MSHA investigated the accident and, as a result of the investigation, MSHA's inspector
2

JWR's version of its contractual relationship varies slightly from MSHA's. According
to JWR, it first contracted with Hooper & Chandler Steel Erection and Sales, LLC (H&C Sales)
to replace the roof on two buildings at the mine, one being the surface maintenance shop. H&C
Sales then contracted with H&C to do the work. Motion 3.

31 FMSHRC 725

issued the citation, the company contested its validity and MSHA's civil penalty petition
followed. On March 25, 2009, counsel for JWR filed a Motion for Summary Decision. The
Secretary filed a response on April 23, 2009. JWR filed a reply to the Secretary's response on
May 12, 2009. Under Commission Rule 67, 29 C.F.R. § 2700.67(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: (I) 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.

JWR;S MOTION AND THE SECRETARY'S RESPONSE
JWR maintains it is entitled to vacation of the citation as a matter of law because the facts
unquestionably establish section 77.l 710(g) does not apply. The company emphasizes section
77 .1710 states it applies to "[eJach employee" and, therefore, "[t]he language of section
77.l 710(g) requires that the individual in question be an 'employee' of the cited entity." Motion
4-5, quoting Blue Diamond Coal Co., 30 FMSHRC 962, 964 (October 2008). 3 JWR contends it is
undisputed that Wade Drew was an employee ofH&C, not of JWR. JWR did not have control
over the manner in which the work was performed, nor did it supervise H&C's employees.
Because the Secretary chose to use the word "employee" in section 77.1710 rather than ''miner" or
"persons" as she did in other regulations, JWR cannot be found to have violated section
77.171 O(g) since Drew was not an employee of JWR. Motion 5-6.

The Secretary responds that Blue Diamond is "clearly incorrect and inconsistent with prior
Commission cases interpreting ... [the regulation to apply] to both production operators [(like
JWR)] and contractors [(like H&C)], and with the overwhelming body oflaw that has held that
the Secretary has discretion to cite production operators for violations committed by their
contractors." Petitioner's Response to Respondent's Motion for Summary Decision (Response) 2.
Therefore, the word "employee" as used in section 77 .171 O(g) can mean either the employee of
the production operator or the contractor, and if the affected employee is employed by the
contractor, the production operator may be cited. Response 3.

RULING
I conclude the Secretary is right. I find the Secretary's interpretation of"employee" as
3

In Blue Diamond, Commission Administrative Law Judge Avram Weisberger held that
use of the word "employee" in section 77.1701 "creates a specific classification pertaining to
individuals who are employed [by the mine operator]." Blue Diamond, 30 FMSHRC at 964.
Judge Weisberger reached this conclusion by applying the statutory interpretative principle of
expressio unius est exclusio alterius, a principle on which JWR also relies. Judge Weisberger
found that under the principle, "the enumeration of specific exclusions from the operation of a
statute is an indication that the statute should apply to all cases not specifically excluded." Id. at
964. Judge Weisberger held it was improper for the agency to cite the production operator for a
violation of section 77 .171 O(g) that was committed by its contractor's employee; Id.

31 FMSHRC 726

used in section 77. l 71 O(g) to be reasonable and, Blue Diamond aside, to be consistent with
established case law. JWR's restrictive interpretation of "employee" would allow the company to
escape liability for a violation committed by its contractor's employee, contrary to the well
recognized principle that the employees of both production operators and their contractors may be
subject to mandatory standards promulgated under the Mine Act and that an owner-operator like
JWR may be held liable for violations committed by its contractor's employees. As the United
States Court of Appeals for the Fourth Circuit recently stated, "[p ]recluding owner-operator
liability for independent _contractor violations would encourage owners to use contractors as a
means of insulating themselves from safety regulations." Speed Mining, Inc. v. FMSHRC, 528
F .3d 310, 315 (4th Cir. 2008). Thus, when a situation arises in which an employee of a contractor
does not wear the protective clothing or devices specified in section 77 .1710, the employee has
violated the regulation, and the production operator may be held liable for the employee's
violation. fu other words, liability does not hinge on whether the worker is employed by the
production operator or by the contractor. To fulfill the purpose of the Act, under either situation,
the production operator may be liable depending on how the Secretary chooses to proceed. 4
JWR argues that the principle of expressio unius est exclusio alterius means because the
word "employee" was used, all other types of employment relationships must be excluded.
Motion 5. But, by the same reasoning, one would conclude that the use of the word "men" in the
regulations excludes women (see, e.g., 30 C.F.R. § 77.1603(b)), and this simply is not a correct
way to interpret the regulations. Furthermore, JWR argues that it did not exercise control over
H&C's employees, a fact that helps establish that the contractor's employees were not employees
of JWR. JWR's Reply to Secretary's Response, 7-9. I find this irrelevant, because the regulation
should not be interpreted to require an element of control of the affected person by the production
operator, but, rather, that the affected person be employed by either the production operator or the
contractor.
JWR's Motion for Summary Decision is DENIED, and the cases shall proceed to
hearing.

NOTICE OF HEARING
The cases will be called for hearing on September 22, 2009, at 8:30 a.m. in Birmingham,
Alabama. The specific hearing site will be designated later.
The proceedings will be conducted pursuant to the Act and 29 C.F.R. § 2700.50, et seq.
The primary issues are whether the violation of section 77.171 O(g) occurred as alleged, whether
4

As the court in Speed Mining stated, "30 U.S.C. § 814(a) grants the Secretary the
discretionary authority to 'cite the independent contractor, the owner, or both for any violations
of the Mine Act committed by the independent contractor.' " Speed Mining at 314 (quoting
Cyprus Indus. Minerals Co. v. FMSHRC, 664 F.2d 1116, 1119 (9th Cir. 1981)).

31 FMSHRC 727

the violation was S&S and, ifthe violation occurred, the amount of the civil penalty that must be
assessed taking into consideration the statutory penalty criteria.·
Each party shall file with the undersigned and with one another on or before August 28,
2009, a statement regarding each of the following items:
1. Facts that are established by admissions in the pleadings or by
stipulation of the parties' counsels.

2. Facts that remain to be litigated at trial.
3. Issues oflaw that remain to be litigated at trial.
4. Witnesses each party intends to call. 5
5. List of exhibits each party intends to offer in evidence.6
7. Estimate_as to probable length of the trial.
Any party requesting subpoenas for the attendance of witnesses or the production of
documents shall file the request at least 20 days prior to the hearing.
Any person planning on attending the hearing who requires special accessibility features
and/or any auxiliary aids (such as sign language interpreters) must request such features and/or
aids sufficiently in advance of the hearing to allow accommodation, subject to the limitations set
forth in 29 C.F.R. §§ 2706. lSO(a) and 2706.160(d).

_}).A/1d
f. ~
David F. Barbour
Administrative Law Judge
(202) 434-9980
5

If the Secretary intends to call miner witnesses, within the meaning of Commission
Procedural Rule 62, 20 C.F.R. § 2700.62, the number of such witnesses shall be noted in the
statement, and a list of the names of such witnesses and a description of their expected testimony
shall be filed and served on all parties by facsimile copy by 11:00 a.m., E.S.T., on the second
business day prior to the hearing.
6

Copies of all proposed exhibits must be exchanged by the parties. The copies must be
received by opposing counsel(s) no later than September 4, 2009. If proposed exhibits are too
bulky or otherwise impractical to copy, they shall be made available for inspection by opposing
counsel(s) prior to the hearing.

31 FMSHRC 728

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

June 30, 2009

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

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2008-253
A.C. No. 12-02374-139953
Shamrock Mine

v.

SOLAR SOURCES, INC.,
Respondent

Docket No. LAKE 2008-254
A.C. No. 12-01732-139936
Craney Mine

CORRECTED ORDER DENYING RESPONDENT'S MOTION TO DISMISS 1
AND
PREHEARING ORDER
These civil penalty proceedings concern two alleged violations of the new miner training
provisions in Part 48 of the Secretary's regulations. The cited violations were designated as
non-significant and substantial in nature to reflect that it was unlikely that the violations will
result in an accident causing serious injury. See, e.g., Cement Division, National Gypsum,
3 FMSHRC 822, 825 (April 1981). The Secretary has proposed a total civil penalty of$120.00
in these matters.
Solar Sources, Inc., (Solar) has filed a Motion to Dismiss these cases based on its
assertion, in essence, that the Secretary failed to file the underlying Petitions for Assessment
of Civil Penalty within a reasonable time period as contemplated by section 105(a) of the
Federal Mine Safety and Health Act of 1977, as amended (Mine Act). 30 U.S.C. § 815(a).
The Secretary opposes Solar's motion.

1

This Order corrects the Order issued earlier today in these proceedings to more
accurately reflect the Commission's past and current caseload.
31 FMSHRC 729

Section 105(a) provides:
If, after an inspection or investigation, the Secretary issues a citation or order
under section 104, [she] shall, within a reasonable time after the tennination of
such inspection or investigation, notify the operator ... of the civil penalty
proposed ....
(Emphasis added). Thus, this statutory provision requires the Secretary to file a Petition for
Assessment of Civil Penalty within a reasonable period of time after a notice of contest is filed.
Commission Rule 28, 29 C.F.R. § 2700.28, provides that the Secretary shall file her
petition for assessment of civil penalty within 45 days of receipt of a mine operator's contest of a
proposed assessment. The Secretary filed the subject petitions on January 9, 2009, more than
eight months after the end of the 45 day filing period provided in Rule 28. Consequently,
Solar contends the citations in issue must be dismissed because the Secretary failed to act
reasonably when she filed her petitions for civil penalty considerably later than the 45 days
specified in Rule 28.
It is well settled that the Secretary's late filing of a civil penalty petition is not
jurisdictional. In this regard, the Court has noted that statutory processing guidelines generally
are intended to "spur the Secretary to action" rather than to confer rights on litigants that limit
the scope of the Secretary's authority. Sec '.Y ofLabor v. Twentymile Coal Co., 411 F .3d 261
(D.C. Cir. 2005). The 45 day filing guideline in Rule 28 was deemed reasonable at a time when
the Commission's caseload averaged approximately 2,200 contest and civil penalty cases.
In contrast, the Commission currently has 12,880 contest and civil penalty cases that involve
petitions that have been filed by the Secretary. Consequently, strict adherence to a 45 day filing
guideline in the face of this unprecedented workload presently is not warranted.
Significantly, it has neither been contended, nor shown, that the eight month delay by
the Secretary has, in any way, prejudiced Solar. On balance, in the absence of a showing of
prejudice, the Secretary's eight month delay does not provide an adequate basis for imposing the
harsh sanction of dismissal. Accordingly, IT IS ORDERED that Solar's Motion to Dismiss
IS DENIED.
Having denied Solar's Motion to Dismiss, in accordance with the provisions of section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., the above
proceedings will be called for hearing on the merits at a time and place to be selected.
1. On or before September 4, 2009, the parties shall confer for the purpose of discussing
settlement and stipulating as to matters not in dispute. If settlement is reached, a motion for its
approval shall be filed by the Secretary of Labor no later than September 4, 2009.

31 FMSHRC 730

2. If settlement is not agreed upon, the parties shall send to each other and to me no later
than September 4, 2009, synopses of their expected legal argwnents, expected proof, lists of
exhibits that may be introduced in evidence, and matters to which they can stipulate at the
hearing. Each party shall also state its best estimate of the time necessary to present its case at
the hearing, as well as hearing location preference.

Jerold Feldman
Administrative Law Judge

-

Distribution: (Certified Mail)
Edward B. Ritchie, Conference & Litigation Representative, U.S. Department of Labor,
MSHA, 2300 Willow St., Suite 200, Vincennes, IN 47591
G. Daniel Kelly, Jr., Esq., Ice Miller, LLP, One American Square, Suite 3100,
fudianapolis, IN 46282
/rps

31 FMSHRC 731

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

June 30, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2008-391
A.C. No. 12-02394-145030

v.
BLACK PANTHER MINING, LLC,
Respondent.

Mine: Oaktown Fuels Mine No. 1

ORDER DENYING RESPONDENT'S MOTION TO DISMISS
This civil penalty proceeding concerns two alleged violations Part 77 of the Secretary's
regulations. The cited violation was designated as non-significant and substantial in nature to
reflect that it was unlikely that the violation will result in an accident causing serious injury. See,
e.g., Cement Division, National Gypsum, 3 FMSHRC 822, 825 (April 1981 ). The Secretary has
proposed a total civil penalty of $212.00 in these matters.
Black Panther Mining, L.L.C. ("Black Panther") has filed a Motion to Dismiss this case
based on its assertion, in essence, that the Secretary failed to file the underlying Petition for
Assessment of Civil Penalty within a reasonable time period as contemplated by section 105(a)
of the Federal Mine Safety and Health Act of 1977, as amended (Mine Act). 30 U.S.C. § 815(a).
The Secretary opposes Black Panther's motion.
Section 105(a) provides:

If, after an inspection or investigation, the Secretary issues a citation or order
under section 104, [she] shall, within a reasonable time after the termination of
such inspection or investigation, notify the operator ... of the civil penalty
proposed ....
(Emphasis added). Thus, this statutory provision requires the Secretary to file a Petition for
Assessment of Civil Penalty within a reasonable period of time after a notice of contest is filed.
Commission Rule 28, 29 C.F.R. § 2700.28, provides that the Secretary shall file her
petition for assessment of civil penalty within 45 days of receipt of a mine operator's contest of a
proposed assessment. The Secretary filed the subject petition on January 9, 2009, nearly seven
months after the end of the 45 day filing period provided in Rule 28. Consequently,
31 FMSHRC 732

Black Panther contends the citations in issue must be dismissed because the Secretary failed to
act reasonably when she filed her petitions for civil penalty considerably later than the 45 days
specified in Rule 28.
It is well settled that the Secretary's late filing of a civil penalty petition is not
jurisdictional. In this regard, the Court of Appeals for the District of Columbia Circuit has noted
that statutory processing guidelines generally are intended to "spur the Secretaryto action" rather
than to confer rights on litigants that limit the scope of the Secretary's authority. Secretary of
Labor v. Twentymile Coal Co., 411 F.3d 256, 261 (D.C. Cir. 2005). The 45 day filing guideline
in Rule 28 was deemed reasonable at a time when the Commission's caseload averaged
approximately 2,200 contest and civil penalty cases. In contrast, there are currently 12,880
contest and civil penalty cases, the vast majority of which involve petitions that have been filed
by the Secretary. Consequently, strict adherence to a 45 day filing guideline in the face of this
unprecedented workload presently is not warranted.
Significantly, it has neither been contended, nor shown, that the seven month delay by
the Secretary has, in any way, prejudiced Black Panther. On balance, in the absence of a showing
of prejudice, the Secretary's d~lay does not provide an adequate basis for imposing the harsh
sanction of dismissal. Accordingly, IT IS ORDERED that Black Panther's Motion to Dismiss

IS DENIED.

Robert J. Lesnick
Chief Administrative Law Judge
Distribution: (Certified Mail)
Edward R Ritchie, U.S. Department of Labor, Mine Safety and Health Administration, 2300
Willow Street, Suite 200, Vincennes, IN 47591

G. Daniel Kelley, Jr., Esq., Ice Miller, LLP, One American Square, Suite 3100, Indianapolis, IN
46282-0200

/bla

31 FMSHRC 733

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

June 30, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
:Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2008-487
A.C. No. 12-02249-153103

v.
FIVE STAR MINING, lNC.,
Respondent

Mine: Prosperity Mine

ORDER DENYING RESPONDENT'S MOTION TO DISMISS
This civil penalty proceeding concerns eight alleged violations of Part 75 of the
Secretary's regulations. Three of the eight cited violations were designated as significant and
substantial in nature to reflect that it was likely that the violations will result in an accident
causing serious injury. See, e.g., Cement Division, National Gypsum, 3 FMSHRC 822, 825
(April 1981 ). The Secretary has proposed a total civil penalty of $58,684.00 in this matter.
Five Star Mining, Inc., (Five Star) has filed a Motion to Dismiss this case based on its
assertion, in essence, that the Secretary failed to file the underlying Petition for Assessment
of Civil Penalty within a reasonable time period as contemplated by section 105(a) of the
Federal Mine Safety and Health Act of 1977, as amended (Mine Act). 30 U.S.C. § 815(a).
The Secretary opposes Five Star's motion.
Section 105(a) provides:
If, after an inspection or investigation, the Secretary issues a citation or order
under section 104, [she] shall, within a reasonable time after the termination of
such inspection or investigation, notifY the operator ... of the civil penalty
proposed ....
(Emphasis added). Thus, this statutory provision requires the Secretary to file a Petition for
Assessment of Civil Penalty within a reasonable period of time after a notice of contest is filed.
Commission Rule 28, 29 C.F.R. § 2700.28, provides that the Secretary shall file her
petition for assessment of civil penalty within 45 days of receipt of a mine operator's contest of a
proposed assessment. The Secretary filed the subject petition on January 12, 2009, more than
five months after the end of the 45 day filing period provided in Rule 28. Consequently,
Five Star contends the citations at issue must be dismissed because the Secretary failed to act

31 FMSHRC 734

reasonably when she filed her petition for civil penalty considerably later than the 45 days
specified in Rule 28.
It is well settled that the Secretary's late filing of a civil penalty petition is not
jurisdictional. In this regard, the Court of Appeals for the District of Columbia Circuit has noted
that statutory processing guidelines generally are intended to "spur the Secretary to action" rather
than to confer rights on litigants that limit the scope of the Secretary's authority.· Secretary of
Labor v. Twentymile Coal Co., 411 F.3d 256, 261 (D.C. Cir. 2005). The 45 day filing guideline
in Rule 28 was deemed reasonable at a time when the Commission's caseload averaged
approximately 2,200 contest and civil penalty cases. In contrast, there are currently 12,880
contest and civil penalty cases, the vast majority of which involve petitions that have been filed
by the Secretary. Consequently, strict adherence to a 45 day filing guideline in the face of this
unprecedented workload presently is not warranted.
Significantly, it has neither been contended, nor shown, that the five month delay by
the Secretary has, in any way, prejudiced Five Star. On balance, in the absence of a showing of
prejudice, the Secretary's five month delay does not provide an adequate basis for imposing the
harsh sanction of dismissal. Accordingly, IT IS ORDERED that Five Star's Motion to Dismiss
IS DENIED.

~.L.,_~J<Robert J. Lesnick
Chief Administrative Law Judge
Distribution: (Certified Mail)
Edward B. Ritchie, Conference & Litigation Representative, U.S. Department of Labor, MSHA,
2300 Willow St., Suite 200, Vincennes, IN 47591
Drew Miroff, Esq., Ice Miller LLP, One American Square, Suite 2900, Indianapolis, IN 46282
/meh

31 FMSHRC 735
J

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

June 30, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CNIL PENALTY PROCEEDJNG
Docket No. LAKE 2008-589
A.C. No. 12-02249-156265

v.
FNE STAR MJNING, INC.,
Respondent

Mine: Prosperity Mine

ORDER DENYING RESPONDENT'S MOTION TO DISMISS
This civil penalty proceeding concerns one alleged violation of Part 77 of the Secretary's
regulations. This violation was designated as non-significant and substantial in nature to reflect
that it was unlikely that the violation will result in an accident causing serious injury. See, e.g.,
Cement Division, National Gypsum, 3 FMSHRC 822, 825 (April 1981 ). The Secretary has
proposed a total civil penalty of $207.00 in this matter.
Five Star Mining, Inc., (Five Star) has filed a Motion to Dismiss this case based on its
assertion, in essence, that the Secretary failed to file the underlying Petition for Assessment
of Civil Penalty within a reasonable time period as contemplated by section 105(a) of the
Federal Mine Safety and Health Act of 1977, as amended (Mine Act). 30 U.S.C. § 815(a).
The Secretary opposes Five Star's motion.
Section 105(a) provides:
If, after an inspection or investigation, the Secretary issues a citation or order
under section 104, [she] shall, within a reasonable time after the termination of
such inspection or investigation, notify the operator ... of the civil penalty
proposed ....
(Emphasis added). Thus, this statutory provision requires the Secretary to file a Petition for
Assessment of Civil Penalty within a reasonable period of time after a notice of contest is filed.
Commission Rule 28, 29 C.F.R. § 2700.28, provides that the Secretary shall file her
petition for assessment of civil penalty within 45 days of receipt of a mine operator's contest of a
proposed assessment. The Secretary filed the subject petition on January 23, 2009, more than
four months after the end of the 45 day filing period provided in Rule 28. Consequently,
Five Star contends the citation at issue must be dismissed because the Secretary failed to act

31 FMSHRC 736

reasonably when ·she filed her petition for civil penalty considerably later than the 45 days
specified in Rule 28.
It is well settled that the Secretary's late filing of a civil penalty petition is not
jurisdictional. In this regard, the Court of Appeals for the District of Columbia Circuit has noted
that statutory processing guidelines generally are intended to "spur the Secretary to action" rather
than to confer rights on litigants that limit the scope of the Secretary's authority. Secretary of
Labor v. Twentymile Coal Co., 411F.3d256, 261 (D.C. Cir. 2005). The 45 day filing guideline
in Rule 28 was deemed reasonable at a time when the Commission's caseload averaged
approximately 2,200 contest and civil penalty cases. In contrast, there are currently 12,880
contest and civil penalty cases, the vast majority of which involve petitions that have been filed
by the Secretary. Consequently, strict adherence to a 45 day filing guideline in the face of this
unprecedented workload presently is not warranted.

Significantly, it has neither been contended, nor shown, that the four month delay by
the Secretary has, in any way, prejudiced Five Star. On balance, in the absence of a showing of
prejudice, the Secretary's four month delay does not provide an adequate basis for imposing the
harsh sanction of dismissal. Accordingly, IT IS ORDERED that Five Star's Motion to Dismiss
IS DENIED.

~4=f,,~
Robert J. Lesnick
Chief Administrative Law Judge
Distribution: (Certified Mail)
Edward B. Ritchie, Conference & Litigation Representative, U.S. Department of Labor, MSHA,
2300 Willow St., Suite 200, Vincennes, IN 47591
Drew Miroff: Esq., Ice Miller LLP, One American Square, Suite 2900, fudianapolis, IN 46282
/meh

31FMSHRC737
I

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

June 30, 2009

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

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2008-598
A.C. No. 12-02249-156265

v.
FIVE STAR MINING, INC.,
Respondent

Mine: Prosperity Mine

ORDER DENYING RESPONDENT'S MOTION TO DISMISS
These civil penalty proceedings concern four alleged violations of Part 75 of the
Secretary's regulations. The cited violations were designated as non-significant and substantial
in nature to reflect that it was unlikely that the violations will result in an accident causing
serious injury. See, e.g., Cement Division, National Gypsum, 3 FMSHRC 822, 825 (April 1981).
The Secretary has proposed a total civil penalty of$7229.00 in these matters.
Five Star Mining, Inc., (Five Star) has filed a Motion to Dismiss these cases based on its
assertion, in essence, that the Secretary failed to file the underlying Petitions for Assessment
of Civil Penalty within a reasonable time period as contemplated by section 105(a) of the
Federal Mine Safety and Health Act of 1977, as amended (Mine Act). 30 U.S.C. § 815(a).
The Secretary opposes Five Star's motion.
Section 105(a) provides:

If, after an inspection or investigation, the Secretary issues a citation or order
under section 104, [she] shall, within a reasonable time after the termination of
such inspection or investigation, notify the operator ... ofthe civil penalty
proposed ....
(Emphasis added). Thus, this statutory provision requires the Secretary to file a Petition for
Assessment of Civil Penalty within a reasonable period of time after a notice of contest is filed.

31FMSHRC738

Commission Rule 28, 29 C.F.R. § 2700.28, provides that the Secretary shall file her
petition for assessment of civil penalty within 45 days of receipt of a mine operator's contest of a
proposed assessment. Th~ Secretary filed the subject petitions on January 23, 2009, more than
four months after the end of the 45 day filing period provided in Rule 28. Consequently,
Five Star contends the citations in issue must be dismissed because the Secretary failed to act
reasonably when she filed her petitions for civil penalty considerably later than the 45 days
specified.in Rule 28.
It is well settled that the Secretary's late filing of a civil penalty petition is not
jurisdictional. In this regard, the Court of Appeals for the District of Columbia Circuit has noted
that statutory processing guidelines generally are intended to "spur the Secretary to action" rather
than to confer rights on litigants that limit the scope of the Secretary's authority. Secretary of
Labor v. Twentymile Coal Co., 411F.3d256, 261 (D.C. Cir. 2005). The 45 day filing guideline
in Rule 28 was deemed reasonable at a time when the Commission's caseload averaged
approximately 2,200 contest and civil penalty cases. In contrast, there are currently 12,880
contest and civil penalty cases, the vast majority of which involve petitions that have been filed
by the Secretary. Consequently, strict adherence to a 45 day filing guideline in the face of this
unprecedented workload presently is not warranted.
Significantly, it has neither been contended, nor shown, that the four month delay by
the Secretary has, in any way, prejudiced Five Star. On balance, in the absence of a showing of
prejudice, the Secretary's four month delay does not provide an adequate basis for imposing the
harsh sanction of dismissal. Accordingly, IT IS ORDERED that Five Star's Motion to Dismiss
IS DENIED.

~b{.L._:,L
Robert J. Lesnick
Chief Administrative Law Judge
Distribution: (Certified Mail)
Edward B. Ritchie, U.S. Department of Labor, MSHA, 2300 Willow Street, Suite 200,
Vincennes, IN 47591
Andrew J. Miroff, Esq., Ice Miller LLP, One American Square, Suite 2900, Indianapolis, IN
46282

/ms

31 FMSHRC 739

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

June 30, 2009
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CNIL PENALTY PROCEEDING
Docket No. LAKE 2008-616
A.C. No. 12-02249-142777

v.
FNE STAR MINING, INC.,
Respondent

Mine: Prosperity Mine

ORDER DENYING RESPONDENT'S MOTION TO DISMISS
This civil penalty proceeding concerns one alleged violation of Part 75 of the Secretary's
regulations. This violation was designated as significant and substantial in nature to reflect that it
was likely that the violation will result in an accident causing serious injury. See, e.g., Cement
Division, National Gypsum, 3 FMSHRC 822, 825 (April 1981 ). The Secretary has proposed a
total civil penalty of $1,026.00 in this matter.
Five Star Mining, Inc., (Five Star) has filed a Motion to Dismiss this case based on its
assertion, in essence, that the Secretary failed to file the underlying Petition for Assessment
of Civil Penalty within a reasonable time period as contemplated by section 105(a) of the
Federal Mine Safety and Health Act of 1977, as amended (Mine Act). 30 U.S.C. § 815(a).
The Secretary opposes Five Star's motion.
Section 105(a) provides:

If, after an inspection or investigation, the Secretary issues a citation or order
under section 104, [she] shall, within a reasonable time after the termination of
such inspection or investigation, notify the operator ... of the civil penalty
proposed ....
(Emphasis added). Thus, this statutory provision requires the Secretary to file a Petition for
Assessment of Civil Penalty within a reasonable period of time after a notice of contest is filed.
Commission Rule 28, 29 C.F .R. § 2700.28, provides that the Secretary shall file her
petition for assessment of civil penalty within 45 days of receipt of a mine operator's contest of a
proposed assessment. The Secretary filed the subject petition on February 2, 2009, nearly four
months after the end of the 45 day filing period provided in Rule 28. Consequently,
Five Star contends the citation at issue must be dismissed because the Secretary failed to act
31FMSHRC740

reasonably when she filed her petition for civil penalty considerably later than the 45 days
specified in Rule 28.
It is well settled that the Secretary's late filing of a civil penalty petition is not
jurisdictional. In this regard, the Court of Appeals for the District of Columbia Circuit has noted
that statutory processing guidelines generally are intended to "spur the Secretary to action" rather
than to confer rights on litigants that limit the scope of the Secretary's authority. Secretary of
Labor v. Twentymile Coal Co., 411F.3d256, 261 (D.C. Cir. 2005). The 45 day filing guideline
in Rule 28 was deemed reasonable at a time when the Commission's caseload averaged
approximately 2,200 contest and civil penalty cases. In contrast, there are currently 12,880
contest and civil penalty cases, the vast majority of which involve petitions that have been filed
by the Secretary. Consequently, strict adherence to a 45 day filing guideline in the face of this
unprecedented workload presently is not warranted.

Significantly, it has neither been contended, nor shown, that the four month delay by
the Secretary has, in any way, prejudiced Five Star. On balance, in the absence of a showing of
prejudice, the Secretary's four month delay does not provide an adequate basis for imposing the
harsh sanction of dismissal. Accordingly, IT IS ORDERED that Five Star's M;otion to Dismiss
IS DENIED.

~-~

Robert J. Lesnick
Chief Administrative Law Judge

Distribution: (Certified Mail)
Edward B. Ritchie, Conference & Litigation Representative, U.S. Department of Labor, MSHA,
2300 Willow St., Suite 200, Vincennes, IN 47591 ·
Drew Miroff, Esq., Ice Miller LLP, One American Square, Suite 2900, Indianapolis, IN 46282
/meh

31FMSHRC741

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

June 30, 2009
CNIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

ADMJNISTRATION (MSHA),

Docket No. WEST 2009-189
A.C. No. 05-03672-167617

J>etitioner

v.
MOUNTAIN COAL COMPANY, L.L.C.,
Respondent.

Mine: West Elk Mine

ORDER DENYING RESPONDENT'S MOTION TO DISMISS
This civil penalty proceeding concerns an alleged violation of the permissible miner noise
exposure limits in Part 42 of the Secretary's regulations. The cited violation was designated as
significant and substantial in nature to reflect that it was reasonably likely that the violation will
result in an accident causing reasonably serious injury. See, e.g., Cement Division, National
Gypsum, 3 FMSHRC 822, 825 (April 1981 ). The Secretary has proposed a total civil penalty of
$963.00 in these matters.
Mountain Coal Company, L.L.C. (Mountain Coal) has filed a Motion to Dismiss this case
based on its assertion, in essence, that the Secretary failed to file the underlying Petition for
Assessment of Civil Penalty within a reasonable time period as contemplated by section 105(a)
of the Federal Mine Safety and Health Act of 1977, as amended (Mine Act). 30 U.S.C. § 8I5(a).
The Secretary opposes Mountain Coal's motion.
Section 105(a) provides:
If, after an inspection or investigation, the Secretary issues a citation or order
under section 104, [she] shall, within a reasonable time after the termination of
such inspection or investigation, notify the operator ... of the civil penalty
proposed ....
(Emphasis added). Thus, this statutory provision requires the Secretary to file a Petition for
Assessment of Civil Penalty within a reasonable period oftime after a notice of contest is filed.
Commission Rule 28, 29 C.F.R. § 2700.28, provides that the Secretary shall file her
petition for assessment of civil penalty within 45 days of receipt of a mine operator's contest of a
proposed assessment. The Secretary filed the subject petition on November I I, 2008, more than

31FMSHRC742

two years after the end of the 45 day filing period provided in Rule 28. Consequently,
Mountain Coal contends the citation in issue must be dismissed because the Secretary failed to
act reasonably when she filed her petitions for civil penalty considerably later than the 45 days
specified in Rule 28.

It is well settled that the Secretary's late filing of a civil penalty petition is not
jurisdictional. In this regard, the Court of Appeals for the District of Columbia Circuit has noted
that statutory processing guidelines generally are intended to "spur the Secretary to action" rather
than to confer rights on. litigants that limit the scope of the Secretary's authority. Secretary of
Labor v. Twentymile Coal Co., 411F.3d256, 261 (D.C. Cir. 2005). The 45 day filing guideline
in Rule 28 was deemed reasonable at a time when the Commission's caseload averaged
approximately 2,200 contest and civil penalty cases. In contrast, there are currently 12,880
contest and civil penalty cases, the vast majority of which involve petitions that have been filed
by the Secretary. Consequently, strict adherence to a 45 day filing guideline in the face of this
unprecedented workload presently is not warranted.
Significantly, it has neither been contended, nor shown, that the two year delay by
the Secretary has, in any w.ay, prejudiced Mountain Coal. On balance, in the absence of a
showing of prejudice, the Secretary's delay does not provide an adequate basis for imposing the
harsh sanction of dismissal. Accordingly, IT IS ORDERED that Mountain Coal's Motion to
Dismiss IS DENIED.

~·~

Robert J. Lesnick
Chief Administrative Law Judge

Distribution: (Certified Mail)
Mr. Larry Ramey, Conference and Litigation Representative, U.S. Department ofLabor, P.O.
Box 25367, DFC, Denver, CO 80225-0367
Laura E. Beverage, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO
Krisitn R.B. White, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO
80202
/bla

31FMSHRC743

80202

31FMSHRC744

G:O' U.S. GOVERNMENT PRINTING OFFICE: 2009-350-058/74303