July and August 2018
TABLE OF CONTENTS

COMMISSION DECISIONS
07-12-18

MICHAEL WILSON, JUSTIN
GREENWELL and BRANDON
SHEMWELL v. ARMSTRONG
COAL COMPANY, INC.

KENT 2015-673-D

Page 973

07-31-18

RAIN FOR RENT

WEST 2016-730-M

Page 976

08-02-18

THE AMERICAN COAL COMPANY LAKE 2011-13
and UNITED MINE WORKERS Of
AMERICA and UNITED STEEL,
PAPER and FORESTRY, RUBBER
MANUFACTURING, ENERGY,
ALLIED INDUSTRIAL and SERVICE
WORKERS INTERNATIONAL
UNION

Page 983

08-02-18

ROCKWELL MINING, LLC

WEVA 2017-220

Page 994

08-22-18

CONSOL PENNSYLVANIA COAL
COMPANY, LLC

PENN 2014-816

Page 998

08-29-18

THE AMERICAN COAL COMPANY

LAKE 2011-701

Page 1011

08-29-18

MACH MINING, LLC

LAKE 2014-77

Page 1048

08-30-18

SIGNAL PEAK ENERGY, LLC

WEST 2016-624-R

Page 1059

i

COMMISSION ORDERS
07-16-18

MARK AUGUSTINE, employed by
METZGER REMOVAL, INC.

SE 2018-113-M

Page 1089

07-16-18

CANYON FUEL COMPANY, LLC

WEST 2018-0273-M

Page 1092

08-02-18

THE OHIO COUNTY COAL
COMPANY

WEVA 2018-0165

Page 1096

08-20-18

DURACAP MATERIALS LLC

SE 2018-95-M

Page 1101

08-21-18

BEELMAN TRUCK CO.

SE 2018-84-M

Page 1104

08-28-18

POCAHONTAS COAL COMPANY,
LLC

WEVA 2014-395-R

Page 1107

08-28-18

R.J. MCDONALD, INC.

YORK 2017-136

Page 1116

08-30-18

PETE LIEN & SONS INC.

CENT 2017-444-M

Page 1118

08-30-18

SOUTHERN AGGREGATES, LLC

CENT 2017-515

Page 1122

08-30-18

M-CLASS MINING, LLC

LAKE 2017-333

Page 1126

08-30-18

CUMBERLAND CONTURA, LLC

PENN 2017-153

Page 1129

08-30-18

OAK GROVE RESOURCES, LLC

SE 2017-212

Page 1134

08-30-18

BARNETTE CONTRACTORS, INC.

VA 2017-176

Page 1137

08-30-18

CHAVARRIA CONSTRUCTION,
INC.

WEST 2017-292-M

Page 1140

ii

08-30-18

THOMAS L. PUCKETT, employed by
FRASURE CREEK MINING, LLC

WEVA 2015-932

Page 1144

08-30-18

ESSROC CEMENT CORPORATION

WEVA 2016-284-M

Page 1147

08-30-18

ESSROC CEMENT CORPORATION

WEVA 2016-350-M

Page 1151

08-30-18

ROCKWELL MINING, LLC

WEVA 2017-412

Page 1155

08-30-18

PANTHER CREEK MINING, LLC

WEVA 2017-476

Page 1158

08-30-18

ROCKWELL MINING, LLC

WEVA 2018-30

Page 1161

ADMINISTRATIVE LAW JUDGE DECISIONS
07-20-18

THE DOE RUN COMPANY

CENT 2015-441-M

Page 1165

07-23-18

CUMBERLAND CONTURA, LLC

PENN 2018-50-R

Page 1218

07-30-18

THE MONONGALIA COUNTY
COAL COMPANY, successor to
CONSOLIDATION COAL
COMPANY

WEVA 2015-0509

Page 1234

08-22-18

RAIN FOR RENT

WEST 2017-0377

Page 1267

ADMINISTRATIVE LAW JUDGE ORDERS
07-16-18

SEC. OF LABOR O/B/O KELLY
RAWLEY v. J.L. SHERMAN
EXCAVATION CO. and PAMELA
AND JEFFREY SHERMAN

WEST 2018-0034DM

Page 1283

07-18-18

M-CLASS MINING, LLC

LAKE 2018-0188-R

Page 1288

iii

Review was granted in the following case during the months of July and August 2018:
Secretary of Labor v. The Doe Run Company, Docket Nos. CENT 2015-318, et al. (Judge
Lewis, July 20, 2018)
Secretary of Labor v. Peabody Midwest Mining, LLC., Docket No. LAKE 2017-450 (Judge
Simonton, June 28, 2018)

Review was not denied in any case during the months of July and August 2018.

iv

COMMISSION DECISIONS

40 FMSHRC Page 972

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

July 12, 2018
MICHAEL WILSON, JUSTIN GREENWELL
and BRANDON SHEMWELL

Docket No. KENT 2015-673-D

v.
ARMSTRONG COAL COMPANY, INC.
BRANDON SHEMWELL

Docket No. KENT 2016-96-D

v.
ARMSTRONG COAL COMPANY, INC.
JUSTIN GREENWELL

Docket No. KENT 2016-108-D

v.
ARMSTRONG COAL COMPANY, INC.
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION APPROVING SETTLEMENT
BY: Althen, Acting Chairman, and Jordan, Commissioner
These proceedings arise under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (“Mine Act” or “Act”). They involve complaints of interference filed by
Michael Wilson, Justin Greenwell, and Brandon Shemwell (“Complainants”) against Armstrong
Coal Company (“Armstrong”) pursuant to section 105(c)(3) of the Act. 30 U.S.C. § 815(c)(3).
After a hearing on the merits, an Administrative Law Judge concluded that Armstrong
had interfered with the Complainants’ rights as miners’ representatives with respect to the claims
in Docket Nos. KENT 2016-108-D and KENT 2015-673-D, but found no unlawful interference
with respect to Shemwell’s claim in Docket No. KENT 2016-96-D. 39 FMSHRC 1072, 1094-96
(May 2017) (ALJ). Armstrong and Shemwell, respectively, filed petitions seeking review of the
Judge’s findings. The Commission granted review on June 15, 2017.
On November 1, 2017, Armstrong Energy and its affiliates (including the Respondent)
initiated proceedings before the United States Bankruptcy Court for the Eastern District of
Missouri (“Bankruptcy Court”) under Chapter 11 of the United States Bankruptcy Code. 11

40 FMSHRC Page 973

U.S.C. § 101 et seq. On February 2, 2018, the Bankruptcy Court entered an order confirming
Armstrong’s bankruptcy plan and authorizing Armstrong to settle certain outstanding causes of
action, including the proceedings at issue.
Accordingly, the parties have filed a joint motion to approve settlement. Pursuant to the
agreement, the terms of the settlement shall be confidential.
Having reviewed the terms of the proposed settlement agreement, the Commission grants
the parties’ joint motion for approval of settlement.1 Armstrong is hereby ordered to make
monetary payments to Complainants in accordance with the terms of the Settlement Agreement.
These proceedings are dismissed.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

1

Acting Chairman Althen notes his colleagues’ suggestion in their concurrence that the
standard for review of a penalty settlement under section 110(k) of the Act, 30 U.S.C. § 820(k),
governs a settlement by a miner of his/her own section 105(c)(3) case. A section 105(c)(3) case
is litigated by an individual miner at his/her own cost and expense and “in his own behalf.” He
wonders, therefore, whether the Commission or a Judge could substitute their judgment
concerning whether a settlement is fair and reasonable for the judgment of the complaining
miner who wants to settle, thereby requiring him to continue his litigation. Separately, could the
Commission or a Judge reject a private settlement as not in the “public interest” and compel a
miner to continue his case at his cost and risk of loss? Because these questions are not at issue
here, Acting Chairman Althen only expresses a concern. He would suggest full briefing and
argumentation of these issues before a Judge or the Commission rejects a settlement because it
was not “fair” to the miner who wants it or the settlement of the miner’s action on his own behalf
fails to achieve a public interest.

40 FMSHRC Page 974

Commissioners Young and Cohen, concurring:
We join our colleagues in approving the settlement, without qualification. We write
separately due to the unusual posture of this case.
Typically, the Secretary is a party in cases brought before us under the Act, and
settlement motions presented to the Commission by the Secretary include language excepting
proceedings under the Mine Act from terms limiting the operator’s liability. While the Secretary
is not a party to this settlement, parties in proceedings brought under section 105(c)(3) should
recognize that the Commission has held that we have a duty to review and approve settlements of
discrimination cases, including provisions unrelated to penalties. Sec’y of Labor on behalf of
Maxey v. Leeco, Inc., 20 FMSHRC 707 (July 1998).
The settlement agreement contains, among other provisions, a confidentiality clause. We
note that even though this agreement is not within the scope of section 110(k) of the Act, 30
U.S.C. § 820(k), and the Secretary is not a party to the agreement, the Commission should
review settlements of cases brought under section 105(c)(3) under the standard we have
established for approval of settlements, i.e. whether the settlement is fair, reasonable, appropriate
under the facts, and protects the public interest. American Coal Co., 38 FMSHRC 1972, 1982
(Aug. 2016). The Commission thus should especially review non-monetary settlement terms,
including non-admission-of-liability clauses and confidentiality clauses, to determine whether
they may improperly limit the operation of the Act in contravention of the public interest.
In the present case, the operator has ceased operations, closed and sealed the mine,
entered bankruptcy proceedings and sold the mine’s assets. There is thus not a risk of potential
harm to the public interest.

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

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

40 FMSHRC Page 975

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

July 31, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEST 2016-730-M

RAIN FOR RENT
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
BY THE COMMISSION:
This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2012) (“Mine Act”), and concerns two citations issued by the Secretary of Labor’s Mine
Safety and Health Administration (“MSHA”) to Rain For Rent.1 One citation alleges a failure to
procure an inspection of an air tank. The second citation alleges a failure to label a safety can.
After a hearing on the merits of the citations, a Commission Administrative Law Judge
found that the Secretary had demonstrated violations of both standards. The Judge assessed civil
penalties of $100 per citation. 39 FMSHRC 1448 (Jul. 2017) (ALJ). Rain For Rent filed a
petition for discretionary review with the Commission, which we granted. After review of the
issues raised in the petition, we affirm the Judge’s decision.
I.
Factual and Procedural Background – Citation No. 8785486
In July 2016, MSHA Inspector Nicholas Basich was conducting an inspection at a sand
and gravel mine in California. A Rain For Rent service truck was parked near the mine shop. A
mechanic had arrived to work on the mine’s water pumps. A compressed-air receiving tank and
an air compressor were mounted on the bed of the truck. The mandatory safety standard at 30

1

Rain For Rent is a contractor that provides temporary liquid handling solutions,
including pumps, tanks, filtration and spill containment. Joint Stip. 1.

40 FMSHRC Page 976

C.F.R. § 56.130152 requires compressed-air receiving tanks to be inspected by an inspector with
a valid National Board Commission3 in accordance with the applicable chapters of the National
Board Inspection Code (“NBIC”).
Basich searched the tank for an indication that it had been inspected, but found no sign
that the requirements of the safety standard had been satisfied. After calling Rain For Rent’s
office, the mechanic was still unable to provide any record demonstrating compliance. As a
result, Basich issued Citation No. 8785486, alleging a violation of section 56.13015.
Thereafter, a Rain For Rent employee removed the tank and discovered a metal plate
affixed to it, bearing the name of the tank’s manufacturer (Manchester Tank) and the year 2014.
At the hearing, a photo of the metal plate was admitted into the record. Robert Kelly George, the
vice president of environmental health and safety for Rain For Rent, testified that he believed the
metal plate demonstrated that the tank had been inspected by the manufacturer in accordance
with the requirements of the safety standard.4 Tr. 93-94, 96. Inspector Basich did not observe the
metal manufacturer’s plate at the time of inspection, but testified nevertheless that its existence
did not demonstrate compliance with the mandatory safety standard. Tr. 49-50.

2

Section 56.13015, 30 C.F.R. § 56.13015, states that:
(a) Compressed-air receivers and other unfired pressure vessels
shall be inspected by inspectors holding a valid National Board
Commission and in accordance with the applicable chapters of
the National Board Inspection Code . . . .
(b) Records of inspections shall be kept in accordance with
requirements of the National Board of Inspection Code . . . .

3

The National Board is an organization “comprised of Chief Inspectors of States and
Cities of the United States, and Provinces of Canada and is organized for the purpose of
promoting greater safety to life and property by securing concerted action and maintaining
uniformity in the construction, installation, inspection and repair of boilers and other pressure
vessels and their appurtenances . . . .” Sec’y Ex. 4 at 3 (NBIC Manual).
4

In California, a state serial number is stamped on a tank by a qualified inspector after an
inspection. Tr. 29-30; Cal. Code Regs. tit. 8, § 462(g) (“Qualified inspectors making the first
field inspection of air tanks . . . shall stamp on the tank a State serial number . . . which shall
became a permanent means of identification. This assigned number . . . shall be stamped adjacent
to the manufacturer’s ASME Code stamping . . . .”)

40 FMSHRC Page 977

The Judge found that the record did not demonstrate that a person with a valid National
Board Commission had performed an inspection. The Judge relied on the inspector’s testimony
that there was no evidence that the tank had been inspected since its manufacture by an
individual with a National Board Commission.5 39 FMSHRC at 1452; Tr. 22, 29, 51-52.
Accordingly, the Judge concluded that the Secretary had established a violation of section
56.13015.
II.
Disposition – Citation No. 8785486
Rain For Rent essentially makes two arguments regarding the citation on review: (1) the
Judge impermissibly incorporated California state requirements into the safety standard without
proper legal notice and in violation of Rain For Rent’s due process rights; and (2) the Judge’s
finding is not supported by substantial evidence. We are not persuaded.
A. The Judge did not rely on California state law.
Rain For Rent argues that Inspector Basich issued the citation because the air tank lacked
a state serial number stamp assigned in accordance with Cal. Code Regs. tit. 8, § 462(g). Rain
For Rent contends that this California regulatory requirement was incorporated into the federal
mandatory safety standard without due process of law.
Rain For Rent is wrong. The Judge did not find a violation of the standard because of a
failure to satisfy the California Code.6 Instead, the Judge held that Rain For Rent failed to
provide any evidence demonstrating that a person with a National Board Commission had
inspected the tank as required by the plain language of section 56.13015(a). 39 FMSHRC at
1452; 30 C.F.R. § 56.13015(a) (“pressure vessels shall be inspected by inspectors holding a valid
National Board Commission”).
The standard provided Rain For Rent with adequate notice that an inspection by a person
with a valid Commission was required. See Canyon Fuel Co., 39 FMSHRC 1578, 1582 (Aug.
2017) (notice is established when the language of the standard provides unambiguous notice of
its requirements) (citations omitted). In short, we reject Rain For Rent’s due process argument.

5

The Judge noted that the purpose of the NBIC is to maintain the integrity of pressure
vessels after they have been placed into service, and the NBIC requires that inspections be
conducted at the time of installation. Here, the installation occurred after the manufacturer’s
inspection. 39 FMSHRC at 1452 n.8.
6

The Judge explicitly found California regulations to be inapplicable to this proceeding.
39 FMSHRC at 1452 n.7.

40 FMSHRC Page 978

B. The Judge’s decision is supported by substantial evidence.
Rain For Rent also argues that the Judge’s decision lacks the support of substantial
evidence.7 Specifically, it maintains that the Judge erred by failing to recognize that a compliant
inspection was performed by the manufacturer in 2014.
There is no evidence in the record that indicates that a person with a valid National Board
Commission ever inspected the tank. George conceded that he was unaware of any inspection
conducted by an inspector with a valid Commission during the time that Rain For Rent owned it.
Tr. 134. Furthermore, Rain For Rent’s reliance on the manufacturer’s prior inspection as
allegedly satisfying the safety standard requirements fails to appreciate the purpose of the NBIC.
As the Judge noted, a manufacturer is governed by different inspection standards. 39 FMSHRC
at 1452 n.8. The NBIC governs inspections of air tanks after they are placed into service and
requires the inspection to be performed at the time of installation. Id. (citing Sec’y Ex. 4 at 3, 5).
In contrast, the ASME (The American Society of Mechanical Engineers) Boiler and Pressure
Vessel Code establishes the manufacturer’s inspection requirements concerning the construction
of the tank.8 9 Therefore, according to the NBIC, the existence of a metal plate signifying that
7

“Substantial evidence” means “‘such relevant evidence as a reasonable mind might
accept as adequate to support [the Judge's] conclusion.”’ Rochester & Pittsburgh Coal Co., 11
FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)).
8

George referred to the manufacturer’s code as the “ASTM” standard and the Judge
adopted the use of that term. 39 FMSHRC at 1451 (citing Tr. 86-88, 93; R. Ex. 1). However, the
metal plate at R. Ex. 1 appears to contain the insignia of the ASME, which publishes the
standards governing the construction of air receiving tanks. See Why “Demand The Mark”
www.asme.org/shop/certification-accreditation/why-demand-the-mark (last visited May 31,
2018). Notably, Rain For Rent introduced no document authored by the ASTM (American
Society for Testing and Materials), nor did it provide citation to an ASTM standard.
9

The opening paragraphs of the NBIC refer to the relationship between the ASME code
and the NBIC. Specifically, it states:
The ASME Boiler and Pressure Vessel Code establishes rules of
safety governing the design, fabrication and inspection during
construction of boilers and pressure vessels.
It is the purpose of the NATIONAL BOARD INSPECTION
CODE to maintain the integrity of such boilers and pressure
vessels after they have been placed into service by providing rules
and guidelines for inspection after installation, repair, alteration
and rerating, thereby helping to ensure that these objects may
continue to be safely used.
Sec’y Ex. 4 at 3 (emphasis added).

40 FMSHRC Page 979

Manchester Tank inspected the tank after constructing it does not prove that a person with a valid
National Board Commission inspected the tank after it was placed into service.
Rain For Rent also contends that the absence of a record of inspection is not evidence
that an inspection was not performed. Section 56.13015 has two subsections: one requires a
proper inspection and the other requires that the operator maintain records. The citation at issue
alleged a violation of the entire standard. Sec’y Ex. 2. It logically follows that, when an
inspection is not performed, there are no records to be maintained. Accordingly, the absence of
any record of inspection supports the Judge’s finding of a violation.
Rain For Rent further maintains that the Judge erred by failing to follow his prior
decision in D&H Gravel, 31 FMSHRC 272, 279-80 (Feb. 2009) (ALJ) (vacating a citation
alleging a violation of section 56.13015(a) because the operator produced a manufacturer’s
inspection stamp). However, Commission Procedural Rule 69(d) provides that a Judge’s decision
does not constitute binding precedent. 29 C.F.R. § 2700.69(d). Accordingly, the Judge was not
obligated to follow D&H Gravel or any other ALJ decision. Additionally, the Judge expressly
recognized that in that case it did not appear that the question of whether the equipment was
inspected by someone with a valid National Board Commission was raised by either party.10 39
FMSHRC at 1452.
For these reasons, we affirm the decision of the Judge with regard to Citation No.
8785486.
III.
Factual and Procedural Background – Citation No. 8785487
The inspector also observed two red, five-gallon safety cans in the bed of the Rain For
Rent service truck during his July 2016 inspection. The safety cans were manufactured with
multiple warning symbols and statements on their exteriors, e.g., a statement warning that the
safety can is designed to contain flammable liquid. One of the safety cans in the truck contained
diesel fuel. Someone had written the word “diesel” on that safety can. The other safety can in the
truck contained gasoline. There was no writing on that can indicating that it contained gasoline.
The safety standard at 30 C.F.R. § 56.4402 requires that “[s]mall quantities of flammable
liquids drawn from storage shall be kept in safety cans labeled to indicate the contents.” Citation
No. 8785487 alleges that the can containing gasoline lacked the required label.
The Judge affirmed the citation, concluding that the operator failed to label the can to
indicate that it contained gasoline. 39 FMSHRC at 1455.

10

The decision in D&H Gravel followed a hearing on 22 citations in which the operator
defended himself pro se.

40 FMSHRC Page 980

IV.
Disposition – Citation No. 8785487
Rain For Rent contends that the Judge made multiple errors. For instance, Rain For Rent
maintains that the standard’s requirement that safety cans be “labeled to indicate its contents” is
ambiguous. Therefore, it states that it reasonably relied on guidance from the Occupational
Safety and Health Administration (“OSHA”). Moreover, it asserts that in MSHA’s Program
Policy Letter No. P13-IV-01 (Aug. 13, 2013) (“the PPL”), MSHA certified that compliance with
OSHA labeling standards results in compliance with MSHA standards.
While the PPL states that OSHA’s Hazardous Communication Standard, 29 C.F.R. §
1910.1200, is compatible with MSHA’s HazCom standards at Part 47, it further specifies that
some aspects of OSHA’s regulations “may not be compatible with other existing MSHA
standards.” Moreover, the safety standard at section 56.4402 is found in Part 56 of the MSHA
regulations (not Part 47). The PPL also reminds mine operators that they “must comply with all
existing MSHA standards concerning physical hazards as they are defined in those [other
MSHA] standards.” Accordingly, the PPL does not provide an exception to the specific
requirements of section 56.4402.
Rain For Rent further argues that section 56.4402 is overly vague and therefore it lacked
notice as to how to comply. In determining whether a safety standard provides adequate notice,
the Commission generally applies an objective standard, asking “whether a reasonably prudent
person familiar with the mining industry and the protective purposes of the standard would have
recognized the specific prohibition or requirement of the standard.” Ideal Cement Co., 12
FMSRHC 2409, 2416 (Nov. 1990). Because section 56.4402 requires that a safety can be labeled
to identify its contents, a reasonably prudent miner would ensure that the safety can was marked
in a way that identified its contents with a reasonable degree of specificity, e.g., “gas” or
“gasoline.” We further conclude that a reasonably prudent miner would understand that warnings
indicating that the contents are flammable and should not be ingested are not sufficient to
identify the type of flammable liquid within.
Finally, Rain For Rent asserts that the safety can was labeled by color. George testified
that the operator’s policy requires diesel fuel to be in a yellow can and gasoline to be in a red
can.11 However, this defense is significantly undermined by the fact that the diesel fuel in the
truck was also contained in a red can.12

11

Rain For Rent alleges that the supply catalog excerpt at R. Ex. 3 denotes that the red
safety can in use “was designated as red for storage of gasoline pursuant to the manufacturer.” R.
Br. at 19. We note that the manufacturer’s catalog actually states that the “Type I red safety
can[s] (for flammable liquids) . . . are . . . approved for safe handling and storage of gasoline and
other flammable liquids.” R. Ex. 3 at 11 (emphasis added).
12

George maintained that a written label was added to the red can containing diesel fuel
to denote that the contents of that can varied from the default color code. Tr. 100.

40 FMSHRC Page 981

In any event, as the Judge found, Rain For Rent’s color policy did not provide sufficient
information to satisfy the safety standard. As he explained:
Having two red cans with different contents could cause confusion
where one can is not labeled. Written labels which indicate the
contents of a safety can are intended to help avoid the guesswork
of what might be in a can and help guard against the misuse of the
can’s contents as a result of a lapse in attention, or fatigue. The
lack of the word “gas” or “gasoline” in this instance could result in
such misuse.
39 FMSHRC at 1455-56 (footnote omitted).
The safety standard requires the can to be labeled. We conclude that the Judge did not err
in finding that the safety can lacked an appropriate label. Accordingly, we affirm the decision of
the Judge.
V.
Conclusion
The Judge’s decision upholding Citation Nos. 8785486 and 8785487 is affirmed.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

40 FMSHRC Page 982

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

August 2, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. LAKE 2011-13

THE AMERICAN COAL COMPANY
and
UNITED MINE WORKERS
Of AMERICA
and
UNITED STEEL, PAPER and FORESTRY,
RUBBER MANUFACTURING, ENERGY,
ALLIED INDUSTRIAL and SERVICE
WORKERS INTERNATIONAL UNION
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
BY THE COMMISSION:
This civil penalty proceeding, arising under the Federal Mine Safety and Act of 1977,
30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), is before us for a second time on
interlocutory review. At issue is whether the Commission’s Administrative Law Judge erred in
denying a motion to approve a settlement between The American Coal Company (“AmCoal”)
and the Secretary of Labor.
In our first decision on review, we affirmed in all respects the Judge’s denial of the
proposed settlement. American Coal Co., 38 FMSHRC 1972, 1986 (Aug. 2016). We noted that
the Secretary had chosen this proceeding as a “test case” for advancing his position that the
Commission’s authority to review settlements of contested civil penalties under section 110(k) of

40 FMSHRC Page 983

the Mine Act, 30 U.S.C. § 820(k),1 is much more limited than that described in Black Beauty
Coal Co., 34 FMSHRC 1856, 1860-64 (Aug. 2012).2 We reaffirmed our settlement authority
stated in Black Beauty and concluded that the Judge did not abuse his discretion in denying
settlement approval when, contrary to the Commission’s procedural rules and precedent, the
Secretary refused to provide any facts to support the penalty reduction agreed to in settlement.
We remanded the matter to the Judge, and the Secretary ultimately submitted an amended
motion to approve settlement.
In this decision, we consider a different question: whether the Judge applied an incorrect
legal standard in denying the amended settlement motion. For the reasons discussed below, we
conclude that the Judge erred, vacate his denial, and remand for further proceedings consistent
with this opinion.
I.
Factual and Procedural Background
This case involves 32 contested citations issued to AmCoal in 2010. In 2013, the
Secretary filed a motion to approve a proposed settlement that involved a 30% across-the-board
penalty reduction for each citation, while preserving all citations as written. The Judge issued a
decision denying the motion because the motion had failed to provide any factual support for the
penalty reduction. Rather than provide such facts, the Secretary essentially represented to the
Judge that the proposed settlement was in the public interest and compatible with the
enforcement goals of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”).
We granted interlocutory review of the Judge’s denial. In our decision, noting the rare
split-enforcement model that the Commission shares with MSHA and the unique settlement
review authorized by section 110(k), we stated that “although Congress gave the Secretary most
of the enforcement powers under the Act, it expressly chose to give to the Commission the
authority to assess penalties and approve settlements.” 38 FMSHRC at 1979. We explained that
the Commission applies the standard of whether a proposed penalty reduction is fair, reasonable,
appropriate under the facts, and protects the public interest in evaluating whether a settlement
should be approved. We further stated that factual information supporting the penalty agreed to
1

Section 110(k) provides:
No proposed penalty which has been contested before the
Commission under section 105(a) shall be compromised,
mitigated, or settled except with the approval of the Commission.
No penalty assessment which has become a final order of the
Commission shall be compromised, mitigated or settled except
with the approval of the court.

30 U.S.C. § 820(k).
2

See AmCoal, 38 FMSHRC at 1972-73 (Memorandum from Heidi Strassler, Assoc.
Solicitor for Mine Safety and Health, to Regional Solicitors, May 2, 2014).

40 FMSHRC Page 984

through settlement must be submitted in accordance with Commission Procedural Rule 31, 29
C.F.R. § 2700.31, and Commission precedent. Because the Secretary had not provided facts to
support the proposed penalty reduction, we concluded that the Judge had not abused his
discretion in denying the settlement motion. Accordingly, we affirmed the denial and remanded
for further proceedings.
The Secretary then filed a petition for review of the Commission’s decision with the
United States Court of Appeals for the D.C. Circuit. On March 17, 2017, the Secretary filed a
motion to withdraw his petition from the D.C. Circuit, and the court granted the motion.3
The Secretary subsequently submitted an amended motion to approve the settlement to
the Judge.
In the motion, the Secretary provided additional information. This information did not
include additional facts specifically tied to the six penalty criteria listed in section 110(i) of the
Mine Act, 30 U.S.C. § 820(i),4 for each of the 32 citations. Rather, the Secretary made general
allegations, including that there was a substantial risk that the court could reduce the degree of
negligence or gravity with respect to 14 of the 32 citations, and that one additional citation ran
the risk of being vacated because of a legal dispute between the operator and the Secretary
regarding the standard cited. The Secretary further stated that after trial, if each of the citations at
risk received a worst-case outcome, the resulting penalties would reflect an approximately 50%
reduction from the penalties originally proposed by the Secretary, based on the penalty tables
contained in 30 C.F.R. Part 100. Given this, the Secretary asserted that an across-the-board 30%
reduction reflected an appropriate compromise. The Secretary further submitted that he
considered the fact that the proposed settlement preserved all of the citations as written to be a
significant advantage for future enforcement purposes.

3

Prior to the Secretary’s withdrawal of the appeal, the Commission was informed that the
Department of Justice (“DOJ”) had initiated a process to consider whether it was appropriate for
the Department of Labor to pursue that petition and, if so, what position the United States should
take in the matter. The DOJ requested the Commission to provide its views on the matter. On
January 27, 2017, the Commission submitted to the DOJ its views, which were consistent with
its first interlocutory decision.
4

Section 110(i) provides in part:
In assessing civil monetary penalties, the Commission shall
consider the operator’s history of previous violations, the
appropriateness of such penalty to the size of the business of the
operator charged, whether the operator was negligent, the effect on
the operator’s ability to continue in business, the gravity of the
violation, and the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of a
violation.

30 U.S.C. § 820(i).

40 FMSHRC Page 985

On May 2, 2017, the Judge issued an order denying the Secretary’s motion. 39 FMSHRC
1173 (May 2017) (ALJ). The Judge concluded that the Secretary had again failed to provide
adequate facts to support the 30% across-the-board reduction for each citation agreed to in
settlement. Id. at 1178. The Secretary subsequently sought interlocutory review of the Judge’s
denial.
On May 19, 2017, the Judge issued an order denying the Secretary’s motion for
interlocutory review. 39 FMSHRC 1187 (May 2017) (ALJ). The Judge reiterated his finding that
a “one-size-fits-all 30% reduction is not likely to be satisfactory because each violation is factspecific.” Id. at 1188. The Judge emphasized his view that the facts required are facts about the
alleged violations. The Judge also explained that only “legitimate disputes of fact” are usually
sufficient to support a proposed reduction. Id.
The Secretary again filed a petition for interlocutory review with the Commission, which
AmCoal subsequently joined. The Commission granted interlocutory review and heard oral
argument. As they did below, the United Mine Workers of America (“UMWA”) and the United
Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers
International Union intervened in this proceeding and participated in oral argument.
On review, the Secretary and AmCoal argue that the Judge applied an erroneous legal
standard in concluding that the Secretary failed to provide facts in support of the proposed
settlement. They submit that such facts are not limited to facts related to the section 110(i)
penalty criteria or to the alleged violations. The Secretary and operator further contend that the
Commission’s Procedural Rules do not preclude a settlement of multiple penalties for a uniform
percentage reduction for each penalty and that the Judge’s denial essentially makes such
reductions impermissible. Finally, AmCoal argues that the Commission should not require a
settling party to concede “legitimate” questions of fact during the settlement approval process, as
the Judge required. The intervenor unions respond that the Commission should affirm the
Judge’s order as a proper exercise of his discretion.
II.
Disposition
Our disposition of the first interlocutory appeal of this proceeding, as law of the case, is
the basis upon which this decision stands. See Dolan v. F&E Erection Co., 23 FMSHRC 235,
240 (Mar. 2001). We briefly reiterate only those portions of the decision necessary for
disposition of the instant review.
Section 110(k) of the Mine Act sets forth in relevant part that a proposed penalty that has
been contested shall only be settled if approved by the Commission or court. See n.1, supra.
The legislative history of section 110(k) describes the Congressional intent behind this
provision. The Senate Report states that the “compromising of the amounts of penalties actually
paid” had reduced “the effectiveness of the civil penalty as an enforcement tool.” S. Rep. No. 95181, at 44 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 632 (1978) (“Legis. Hist.”). The
Committee noted that settlement efforts were “not on the record, and a settlement need not be

40 FMSHRC Page 986

approved by the Administrative Law Judge.” Id. In order to solve this problem, Congress
emphasized the need for transparency in the penalty settlement process, so that miners, Congress,
and other interested parties could “fully observe the process.” Id. at 633. The requirements of
section 110(k) were “intend[ed] to assure that the abuses involved in the unwarranted lowering
of penalties as a result of off-the-record negotiations are avoided.” Id. Thus, Congress expressed
its “inten[t] that the Commission and the Courts will assure the public interest is adequately
protected before any reduction in penalties.”5 Id.
Based on the language of section 110(k) and its legislative history, the Commission has
explained that “Congress authorized the Commission to approve the settlement of contested
penalties in section 110(k) ‘[i]n order to ensure penalties serve as an effective enforcement tool,
prevent abuse, and preserve the public interest.’” AmCoal, 38 FMSHRC at 1976 (quoting Black
Beauty, 34 FMSHRC at 1862). In “effectuating this Congressional mandate, the Commission and
its Judges consider whether the settlement of a proposed penalty is fair, reasonable, appropriate
under the facts, and protects the public interest.” Id. at 1976.
The Commission and its Judges “must have information sufficient to carry out this
responsibility.” Id. at 1981. Consequently, through its procedural rules, the Commission has
required parties to submit facts supporting a penalty amount agreed to in settlement. Id. In
particular, Commission Procedural Rule 31 requires that a motion to approve penalty settlement
must include for each violation “the penalty proposed by the Secretary, the amount of the penalty
agreed to in settlement, and facts in support of the penalty agreed to by the parties.” 29 C.F.R.
§ 2700.31(b)(1).
The Commission reviews a Judge’s denial of a proposed settlement under an abuse of
discretion standard. Sec’y of Labor on behalf of Shemwell v. Armstrong Coal Co., 36 FMSHRC
1097, 1101 (May 2014). An abuse of discretion may be found where “there is no evidence to
support the Judge’s decision or if the decision is based on an improper understanding of the
law.” Id. (citation omitted).
As the Commission has repeatedly observed, a Judge’s “‘front line oversight of the
settlement process is an adjudicative function that necessarily involves wide discretion.’” Id.
(citations omitted). Judges must have sufficient information to fulfill their duty of determining if
a settlement of a penalty is fair, reasonable, appropriate under the facts, and protects the public
interest. Moreover, such information permits a Judge to fulfill the duty of articulating reasons for
the approval so that the process of compromising penalty amounts is transparent, as Congress

5

We have recognized that the Commission has “the job of determining whether a
reduced penalty in settlement serves the public interest.” AmCoal, 38 FMSHRC at 1983. The
Commission’s responsibility for performing this job is not satisfied by conclusory statements in
settlement motions that reduced penalties “serve the public interest.” See, e.g., Asarco, Inc.,
18 FMSHRC 2081, 2082-84 (Dec. 1996) (denying settlement motion where the parties merely
represented that the settlement was consistent with the statutory criteria and in the public
interest).

40 FMSHRC Page 987

intended. A Judge who properly determines that a settlement motion lacks sufficient information
may permissibly request further facts from the parties.6 See Black Beauty, 34 FMSHRC at 1863.
The Commission’s settlement procedures have resulted in a near perfect approval rate for
motions to approve settlement. In fact, as the Secretary agreed, Oral Arg. Tr. 19, from fiscal year
2015 through approximately seven months of fiscal year 2018, 99.8% of proposed settlements
have been approved.7
Against this backdrop, we review the Judge’s denial of the proposed settlement in his
May 2 and May 19 orders. The Judge identified the “essential problem” with the Secretary’s
amended motion to approve settlement as a failure to “provide a penalty-factor related
explanation to support the uniform 30% reduction for each citation.” 39 FMSHRC at 1178. The
Judge added that “even if plausible facts were presented and the Secretary admitted those facts
presented genuine disputes,” it would be unlikely for each citation to end up with a 30%
reduction. 39 FMSHRC at 1188.
We conclude that the Judge made prejudicial errors in the determinations supporting his
denial of the proposed settlement, which amounted to an abuse of discretion.
First, the Judge did not refer to the standard we articulated for evaluating penalty
reductions in settlement in our first interlocutory decision, i.e., whether the proposed penalty
reduction is fair, reasonable, appropriate under the facts, and protects the public interest. Neither
is there any indication that the Judge attempted to apply that standard.
Second, the Judge erred by applying the criteria in section 110(i) of the Mine Act in an
overly rigid manner, resulting in determinations that conflict with Commission precedent. The
Judge stated that the facts supporting the settlement “must be tied to the six statutory criteria in
[s]ection 110(i),” and concluded that the Secretary provided “no facts to support the reduction
sought.” 39 FMSHRC at 1176, 1177.

6

It appears that some Commission Judges have a practice of seeking additional
information from parties when evaluating a proposed settlement, and that this procedure works
effectively. Oral Arg. Tr. 21-22, 31-32, 34-35, 50, 75-76. If a party believes that a Judge has
overstepped his or her authority or otherwise committed an abuse of discretion in requesting such
facts, a party may appeal that matter to the Commission on an interlocutory basis. See Solar
Sources, Inc., Unpublished Order dated May 16, 2018 (granting interlocutory review of 39
FMSHRC 2052 (Nov. 2017) (ALJ)).
7

Indeed, during oral argument, counsel for the intervenors pointedly reiterated the
description of the Secretary’s and AmCoal’s position in challenging the Commission’s authority
to require factual support of settlement as a “solution . . . in search of a problem.” Oral Arg. Tr.
55.

40 FMSHRC Page 988

The Judge recognized that the Commission has previously explained that standards for
factual support for a penalty reduction in settlement may be found in section 110(i).8 AmCoal, 38
FMSHRC at 1981; Black Beauty, 34 FMSHRC at 1864. However, we have also stated that
“parties may submit facts supporting a settlement that fall outside of the section 110(i) factors
but that support settlement.” 38 FMSHRC at 1982. We explained that “section 110(k) ‘contains
no explicit restrictions on what a Commission Judge may consider when reviewing a settlement
proposal,’” and that the lack of restrictions does not mean that the Commission’s review is
unbounded. Id. (quoting Black Beauty, 34 FMSHRC at 1865). “Rather, it means that there may
be considerations beyond the six statutory criteria of section 110(i) that are relevant to whether a
settlement proposal is fair, reasonable, appropriate under the facts, and protects the public
interest.” Id. Thus, the Judge erred in restricting the factual submissions to facts relating to only
the section 110(i) criteria.
In this regard, the Judge erred in discounting that the operator had agreed to accept all of
the citations as written. The Secretary makes a valid point that the fact that the proposed
settlement preserves all of the citations as written could assist the Secretary in future
enforcement efforts against this operator by ensuring that the paper record reflects the
Secretary’s views regarding gravity and negligence stated in the citations. The Judge improperly
rejected the value of accepting the citations as written on future enforcement actions as “pure
blather.” 39 FMSHRC at 1191.
The Commission has recognized that “[t]he ‘affirmative duty’ that section 110(k) places
on the Commission and its judges to ‘oversee settlements,’ . . . necessarily requires the judge to
accord due consideration to the entirety of the proposed settlement package, including both its
monetary and nonmonetary aspects.” Shemwell, 36 FMSHRC 1103 (quoting Madison Branch
Mgmt, 17 FMSHRC 859, 867-68 (June 1995)). Although the Judge appropriately determined that
the submission of additional substantive facts to support the proposed penalty reductions was
necessary,9 he erred in not giving any weight to the non-monetary value of accepting the
citations as written.10
8

The amended motion to approve settlement provided stipulations of fact relating to
three of the section 110(i) criteria, that is, AmCoal’s history of prior violations, AmCoal’s size,
and the effect on AmCoal’s ability to stay in business. Mot. to Approve Settlement and Dismiss
Proceeding at ¶ 10.
9

We emphasize that our conclusion that the Judge appropriately determined that the
submission of additional substantive facts was necessary applies only to the confines of the
instant proceeding.
10

Commissioner Cohen asserts that while facts which fall outside the section 110(i)
factors may be relevant, Rule 31(b)(1) also requires the parties to identify substantive facts that
support the penalty agreed to by the parties for each violation. The Secretary represented here
that after a hearing a judge might reduce the level of negligence or gravity with respect to 14 of
the 32 citations, and might vacate another citation because of an undisclosed legal dispute with
the operator, and that in a worst case scenario, the total penalties might be reduced by
(continued…)

40 FMSHRC Page 989

Third, after determining that additional facts pertinent to the six statutory criteria were
necessary to support the penalty reduction, the Judge erred by not permitting the operator to
submit those facts. The Judge noted that the operator’s counsel offered to provide facts to
support the settlement motion. 39 FMSHRC at 1188.11
However, there is no requirement that facts supporting a proposed settlement must
necessarily be submitted by the Secretary. Facts supporting a penalty reduction in a settlement
motion may be provided by any party individually or by parties collectively as long as there is a
certification by the filing party that any non-filing party has consented to the granting of the
settlement motion. See 29 C.F.R. § 2700.31(b)(2).
Fourth, in rejecting the operator’s offer to submit factual support for the proposed
settlement, the Judge stated that the “settlement must express from the Secretary that the
Respondent’s assertions present legitimate questions of fact which can only be resolved through
the hearing process.” 39 FMSHRC at 1188 (emphasis in original); see also 39 FMSHRC at 1188
(“even if plausible facts were presented and the Secretary admitted that those facts presented
10

(… continued)
approximately 50% using the Part 100 penalty tables. S. Br. at 4. These representations did not
provide the Judge with sufficient detail to permit the Judge to have an understanding of why the
penalties were being reduced. The Secretary’s boilerplate recitations of having evaluated the
value of the compromise, the prospects of coming out better or worse after a trial, and
“maximizing his prosecutorial impact” add nothing. As succinctly stated by counsel for the
intervenor UMWA, “by requiring the Secretary to provide some basic justification based on
substantive fact, it creates a record so that interested parties like Congress, like the mine workers,
like the steel workers can observe the process and make sure that we haven’t reverted to the state
of affairs that existed prior to enactment of the current legislation in section 110(k).” Oral Arg.
Tr. 63. By bundling 32 citations into a single proposed settlement and reducing each penalty by
the same percentage, the Secretary seems to be trying to avoid the scrutiny which Congress has
required of the Commission. See S. Rep. No. 95-181 at 45, Legis. Hist. at 633.
Commissioner Cohen further notes that the Commission’s recognition of the importance
of substantive facts in a settlement agreement (and the Secretary’s ability to provide them) is
illustrated by the issuance this day of a decision in another case involving the denial of a
proposed settlement, The Ohio County Coal Co., No. WEVA 2018-0165. In the Ohio County
Coal settlement motion, the Secretary proposed to reduce the penalty for Citation No. 9090883, a
violation of 30 C.F.R. § 75.202(b) caused by a miner working under unsupported roof, based on
a reduction in the level of the operator’s negligence from “moderate” to “low.” The Secretary
explained that the operator was contending that the violation was caused by an hourly employee
and that it was unaware of the violation, an alleged fact supported by the MSHA inspector’s
notes that the foreman was not present when the violation occurred. Based on the Secretary’s
description of these disputed facts, the Commission in Ohio County Coal is reversing the Judge
and approving the proposed settlement.
11

Indeed, AmCoal’s counsel repeated this offer that the operator was “ready” and
“willing” to provide such facts, including during oral argument before us. Oral Arg. Tr. 27.

40 FMSHRC Page 990

genuine disputes, it would be highly questionable if . . . each citation ended up with . . . [a] 30%
reduction”); 39 FMSHRC at 1176 (“facts which are in dispute need to be identified.”).
Facts alleged in a proposed settlement need not demonstrate a “legitimate” disagreement
that can only be resolved by a hearing. The Commission’s Procedural Rules and standing
precedent do not contain such a requirement. Rather, the Commission has recognized that parties
may submit facts that reflect a mutual position that the parties have agreed is acceptable to them
in lieu of the hearing process. See Amax Lead Co. of MO, 4 FMSHRC 975, 977-78 (June 1982)
(“Inherent in the concept of settlement is that the parties find and agree upon a mutually
acceptable position that resolves the dispute and obviates the need for further proceedings.”). Put
another way, the facts required by Rule 31 may include a description of an issue on which the
parties have agreed to disagree. The Commission does not require concessions from parties in
settlement as long as the parties provide mutually acceptable facts that demonstrate the proposed
penalty reduction is fair, reasonable, appropriate under the facts, and protects the public interest.
The Judge’s requirement for “legitimate” questions of fact or facts that present “genuine”
disputes (39 FMSHRC at 1188) is further flawed in that it appears that the Judge has assigned
probative value to some facts without the benefit of an evidentiary hearing. We have recognized
that, in reviewing information supporting a reduced penalty in settlement, a Judge “need not
make factual findings with respect to each of the section 110(i) factors as a Judge would in the
assessment of a penalty after hearing.” AmCoal, 38 FMSHRC at 1982. In a final disposition after
a hearing, a Judge must make findings on each section 110(i) factor in assessing a penalty, while
a Judge’s decision approving settlement need only “set forth the reasons for approval
and . . . be supported by the record.”12 29 C.F.R. § 2700.31(g); Cantera Green, 22 FMSHRC
616, 622-26 (May 2000).
Fifth and finally, the Judge erred in requiring the Secretary to provide an explanation for
the specific numerical percentage reduction of each penalty.13 The Judge determined that facts
were lacking that would explain “the uniform 30% reduction for each citation,” and observed
that “it would be highly questionable if, through some magic, each citation ended up with an
odds-defying 30% reduction.” 39 FMSHRC at 1178; 39 FMSHRC at 1188. He reasoned that “a
one-size-fits-all 30% reduction is not likely to be satisfactory because each violation is factspecific.” 39 FMSHRC at 1188; see also 39 FMSHRC at 1177 (“the Secretary sets forth this new
12

Indeed, in 1980, the Commission amended Rule 31 to delete a requirement that
decisions approving settlement must include a discussion of the section 110(i) criteria in order
“to enhance the flexibility of the judges to approve settlements.” 45 Fed. Reg. 44301, 44302
(1980); see also Black Beauty, 34 FMSHRC at 1866.
13

The Judge found that the uniform percentage reduction for all 32 citations was
additionally problematic because “at least 5 (five) of the citations were specially assessed.” 39
FMSHRC at 1188. Contrary to the Judge’s finding, the subject proposed settlement involves no
penalties that were specially assessed. The five specially assessed penalties referred to by the
Judge were the subject of a separate docket, Docket No. LAKE 2011-12. A decision approving
settlement in LAKE 2011-12 was issued by this Judge on September 13, 2013, and became a
final order of the Commission 40 days after its issuance. 30 U.S.C. § 823(d)(1).

40 FMSHRC Page 991

justification and again, against all odds, miraculously arrives at . . . a 30% across-the-board
reduction”).
As the Judge acknowledged (39 FMSHRC at 1188), we have stated that uniform penalty
reductions are not improper per se. AmCoal, 38 FMSHRC at 1985. Although monetary
considerations that relate to section 110(i) factors may be amenable to explanation about why a
particular numerical reduction is appropriate for a violation, there may be non-monetary
considerations that also support settlement that are not amenable to such precision.
Indeed, when the Commission considers monetary and non-monetary aspects of a
settlement together, across-the-board penalty reductions may be useful, and consistent with the
Commission’s settlement review standard. Id. at 1982. The Judge’s requirements for precise
individual adjustments for each citation or order would effectively make across-the-board
percentage reductions impermissible de facto in large settlements involving multiple citations or
in global settlements involving multiple operations or inspections and a voluminous number of
citations. See, e.g., Aracoma Coal Co., 30 FMSHRC 1160 (Dec. 2008) (ALJ), aff’d,
32 FMSHRC 1639 (Dec. 2010) (approving global settlement); Alex Energy, Inc., 39 FMSHRC
1458 (July 2017) (ALJ) (approving global settlement); Magma Copper Co. N/K/A BHP Copper,
Inc., 1998 WL 433234 (July 1998) (ALJ) (approving an approximately 50% reduction of 46
penalties).

40 FMSHRC Page 992

Given these errors, we vacate the Judge’s denial and remand for further proceedings. The
Judge shall provide the parties with 30 days to submit facts supporting the proposed penalty
reductions, which may be submitted individually or collectively pursuant to Commission
Procedural Rule 31. Consistent with this decision, the Judge shall consider the proposed
settlement, including monetary and non-monetary aspects, in determining whether the proposed
settlement is fair, reasonable, appropriate under the facts, and protects the public interest.
III.
Conclusion
For the reasons set forth above, we vacate the Judge’s denial of the amended proposed
settlement. We remand to the Judge for further submissions and consideration consistent with
this decision.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

40 FMSHRC Page 993

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

August 2, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEVA 2017-220

ROCKWELL MINING, LLC
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Act of 1977, 30 U.S.C. § 801 et seq.
(2012) (“Mine Act” or “Act”). On May 9, 2018, an Administrative Law Judge issued a decision
denying a motion to approve a settlement between the Secretary of Labor and Rockwell Mining,
LLC. On June 5, 2018, the Judge issued an order certifying his ruling for interlocutory review
pursuant to Commission Procedural Rule 76, 29 C.F.R. § 2700.76.
On June 25, 2018, we granted interlocutory review on the question of whether the Judge
applied an incorrect legal standard and abused his discretion in denying the motion to approve
settlement. We also stated that this case presents an issue that is before the Commission in The
American Coal Co., Docket No. LAKE 2011-13 (“AmCoal”), and stayed this proceeding
pending further order of the Commission.
We hereby lift the stay in this proceeding.1 We conclude that the Judge applied an
incorrect legal standard in denying the settlement motion and abused his discretion. For the
reasons discussed below, we vacate the Judge’s order denying the settlement motion and remand
for further proceedings.
I.
Factual and Procedural Background
This case involves seven citations, for which the Secretary initially proposed penalties in
the sum of $6,977. On November 30, 2017, the Secretary filed a settlement motion agreed to by
both parties. By the terms of that settlement, one citation would be vacated and six citations
would be affirmed. Three of the six citations would be affirmed as issued and their civil penalty
amounts would remain as proposed by the Secretary. The penalties for Citations Nos. 9068232,
9070540 and 9070542, however, would be reduced under the terms of the settlement.
1

On this same date, we also issue our decision in AmCoal.

40 FMSHRC Page 994

With respect to Citation No. 9068232, which alleged a rib control violation, the penalty
would be reduced from $446 to $244. In support of the reduction, the motion to approve
settlement states that Rockwell argued that evidence would establish that it was not negligent,
that it was taking steps to control the ribs by installing rib bolts, and that the cited rib conditions
likely occurred after the most recent examination of the area. The motion also provides that the
“Secretary notes that no rock dust was observed in the cracks in the ribs indicating that the
cracks were fairly recent.” Mot. at 3.
With regard to Citation No. 9070540, which alleged a failure to maintain required
clearance in an escapeway due to a parked mantrip, the penalty would be reduced from $2,598 to
$2,000. The settlement motion sets forth Rockwell’s argument that it was not negligent because
there was no evidence as to how long the mantrip was parked or that management was aware of
it.
As to Citation No. 9070542, which alleged a cable splicing violation, the penalty would
be reduced from $666 to $443. The motion states that Rockwell argued that the levels of gravity
and negligence were “overwritten” and that the violation was not of a significant and substantial
nature because there were no exposed inner leads in the splice, that the cable was continually
moved, and that the damage likely occurred sometime after the most recent weekly electrical
examination. Mot. at 4.
The Judge denied the settlement on the basis that it lacked sufficient factual support. The
Judge concluded that there was no representation by the parties that there is a legitimate dispute
on any issue of fact or law. In his order certifying his denial for interlocutory review, the Judge
explained that it was “insufficient for the Secretary to merely identify the Respondent’s
contentions.” Order dated June 5, 2018 at 3 (emphasis in original). Rather, in his view, the
Secretary must acknowledge that the “Respondent has identified legitimate issues of fact, which
matters are in dispute and which can only be resolved by the hearing process.” Id. He concluded
that no information was presented to help him discern whether there was a legitimate dispute of
fact or law with respect to Citation Nos. 9070540 and 9070542. As to Citation No. 9068232, he
determined that the Secretary’s observation regarding the lack of rock dust observed in the ribs’
cracks was insufficient without a representation from the parties that there was a legitimate
dispute of fact or law.

40 FMSHRC Page 995

II.
Disposition
The Commission reviews a Judge’s denial of a proposed settlement under an abuse of
discretion standard. Sec’y of Labor on behalf of Shemwell v. Armstrong Coal Co., 36 FMSHRC
1097, 1101 (May 2014).2 When the Commission and its Judges evaluate settlement motions, we
consider “whether the settlement of a proposed penalty is fair, reasonable, appropriate under the
facts, and protects the public interest.” The American Coal Co., 38 FMSHRC 1972, 1976 (Aug.
2016).
The Commission and its Judges “must have information sufficient to carry out this
responsibility.” Id. at 1981. Consequently, through its procedural rules, the Commission has
required parties to submit facts supporting a penalty amount agreed to in settlement. Id. In
particular, Commission Procedural Rule 31 requires that a motion to approve penalty settlement
must include for each violation “the penalty proposed by the Secretary, the amount of the penalty
agreed to in settlement, and facts in support of the penalty agreed to by the parties.” 29 C.F.R.
§ 2700.31(b)(1).
We conclude that the Judge erred in his denial of the settlement motion. First, he did not
refer to or apply the standard set forth above that we use for evaluating penalty reductions in
settlement.
Second, the Judge erred in concluding that a motion to approve settlement must include
an acknowledgement by the Secretary that the Respondent’s assertions present legitimate
questions of fact which are in dispute and can only be resolved through the hearing process. As
we stated in our AmCoal decision issued today, facts alleged in a proposed settlement need not
demonstrate a “legitimate” disagreement that can only be resolved by a hearing. The
Commission’s Procedural Rules and precedents do not contain such a requirement.
Rather, the Commission has recognized that parties may submit facts that reflect a mutual
position that the parties have agreed is acceptable to them in lieu of the hearing process. See
Amax Lead Co. of MO, 4 FMSHRC 975, 977 (June 1982) (“Inherent in the concept of settlement
is that the parties find and agree upon a mutually agreeable position that resolves the dispute and
obviates the need for further proceedings.”). Put another way, the facts required by Rule 31 may
include a description of an issue on which the parties have agreed to disagree. The Commission
does not require concessions from parties in settlement as long as the parties provide mutually
acceptable facts that demonstrate the proposed penalty reduction is fair, reasonable, appropriate
under the facts, and protects the public interest.
Accordingly, we conclude that the Judge applied an incorrect legal standard in denying
the settlement motion and abused his discretion in denying the motion to approve settlement.
2

An abuse of discretion may be found where there is no evidence to support the Judge’s
decision or if the decision is based on an improper understanding of the law. The American Coal
Co., 38 FMSHRC 1972, 1976 (Aug. 2016).

40 FMSHRC Page 996

III.
Conclusion
For the reasons set forth above, we hereby vacate the Judge’s decision denying the
settlement and remand this matter to the Judge for reconsideration consistent with this opinion
and our decision in AmCoal issued on this date.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

40 FMSHRC Page 997

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

August 22, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. PENN 2014-816

CONSOL PENNSYLVANIA COAL
COMPANY, LLC
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
BY THE COMMISSION:
This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2012) (“Mine Act” or “Act”). Consol Pennsylvania Coal Company, LLC (“Consol”)
appeals an Administrative Law Judge’s decision upholding a citation issued to it by the
Department of Labor’s Mine Safety and Health Administration (“MSHA”). 39 FMSHRC 1279
(June 2017) (ALJ). The citation alleges a violation of 30 C.F.R. § 50.10(b)1 for Consol’s failure
to immediately contact MSHA after learning that a miner had sustained an injury that had “a
reasonable potential to cause death.”
We conclude that substantial evidence supports the Judge’s finding that Consol had a
duty to contact MSHA immediately after the accident. We also conclude that the Judge did not
err in his penalty determination. Accordingly, we affirm the finding of a violation and the
assessed penalty.

1

30 C.F.R. § 50.10(b) states: “The operator shall immediately contact MSHA at once
without delay and within 15 minutes . . . once the operator knows or should know that an
accident has occurred involving . . . (b) [a]n injury of an individual at the mine which has a
reasonable potential to cause death . . . .”

40 FMSHRC Page 998

I.
Factual and Procedural Background
A. Factual Summary
This case arose from an injury to a miner at a large underground coal mine in
Pennsylvania. In August 2013, miner Robert Stern, an employee of GMS Mine Repair and a
contractor at the mine, was helping scoop operator Daniel Greathouse free a scoop weighing 510 tons which had become stuck on a 5-ton rail car.2 At approximately 3:15 a.m., Stern stepped
between the two machines to assess the problem when the rail car suddenly became dislodged.
Due to slack in the rail car’s chain, it drifted back towards Stern, crushing him against the scoop
bucket. Greathouse immediately reversed the scoop, moving it forward, and Stern fell to the
ground.
The mine section foreman, John McDonald, and miner Colby Watson, who were working
about 900 feet away, arrived on the scene within three to four minutes of being notified of the
accident. When McDonald arrived, Stern was conscious and lying on his side. Stern said that he
had been pinched and that he was in a lot of pain. He could not move his legs and could only feel
a pinch in one leg. When Stern’s legs were moved, he screamed in extreme pain.
McDonald immediately got on the radio and urged Consol Fire Boss and certified
emergency medical technician (“EMT”) Shannon Smith to get to the scene right away because
there was “a man crushed.” Tr. 165. He instructed Watson to get a gurney and the EMT kits.
McDonald then called the Bunker to request that an ambulance be called and to have haulage
cleared so that Stern could leave the mine quickly. As they removed Stern from the mine, he
instructed the Bunker to call Life Flight, an emergency helicopter service. Shift Foreman Donny
Tomlin, who was in a different part of the mine and one of Consol’s employees responsible for
notifying MSHA of reportable accidents, was also notified of the incident over the radio.
Within 10 minutes of receiving McDonald’s call over the radio, EMT Smith, along with
fellow Fire Boss Donald Wolfe, arrived on the scene. Smith noticed that Stern’s leg was bent
awkwardly, as if it was broken, and he could not move or feel anything in one leg. Wolfe applied
a cervical spine brace to Stern’s neck to hold it straight in case there was a spinal injury. There
were abrasions and bruising on the right side of Stern’s waist and hip area, as well as a small
amount of blood.
As they were leaving the mine with Stern, Smith and McDonald noticed that Stern’s
abdomen was swollen or distended causing them to become concerned about internal bleeding.
Stern also stated that it felt like something was coming out of his penis. Smith checked Stern’s
genitalia but did not see anything wrong. Smith performed an assessment on Stern called
DCAPBTLS, in which he checked for deformities, contusions, abrasions, punctures,
bruising/burns, tenderness, lacerations, and swelling. Upon completion of the assessment, Smith
2

A scoop is a type of diesel or battery-operated equipment with a scoop attachment for
cleaning up loose material, for loading mine cars or trucks, and hauling supplies. Am. Geological
Institute, Dictionary of Mining, Mineral, and Related Terms 484 (2d ed. 1997).

40 FMSHRC Page 999

testified that he knew that “we had to get Stern out of the mine . . . fairly quickly.” Tr. 183. As
they were removing Stern, Smith called the Bunker to have Life Flight waiting. Smith and
McDonald testified that internal bleeding can cause death. Tr. 179-80, 225.
Stern asked Smith to tell his wife and family that he loved them if something happened to
him. Smith checked Stern’s pulse and determined it was not elevated. It took approximately 4045 minutes to get Stern out of the mine from the time of the accident. When Smith turned Stern
over to paramedics, he gave them his notes on what had occurred.
Meanwhile, Eric Cecil, who was working in the Bunker, called Mine Supervisor Michael
Tennant at home at about 3:30-3:45 a.m. to notify him about the accident and that EMTs were on
the way. Tennant, who is also responsible for notifying MSHA of accidents, immediately called
his boss Eric Shuble, the mine general superintendent, to inform him of the accident. Tennant
then headed to the mine. While en route, Tennant received a second call from the Bunker, in
which additional details of the accident were provided, including the fact that Life Flight had
been called.3 He arrived at the mine at around 4:50 a.m., roughly 20 minutes after Stern had left
for the hospital. Although Tennant, a licensed EMT, did not drive to the mine every time there
was an accident, he chose to on this particular occasion because he stated that “an employee [had
been] pinched between two large pieces of equipment.” Tr. 243, 268.
At 5:09 a.m., roughly two hours after the accident had occurred, Tennant called MSHA
and the Pennsylvania Department of Environmental Protection to report the accident.
According to the MSHA Escalation Report, Tennant notified MSHA of the accident at
5:09 a.m. MSHA Inspector Thomas Bochna learned of the accident at about 5:30 a.m., shortly
after arriving to work. Bochna’s investigation revealed that the accident occurred at about 3:15
a.m. The report also described the injuries as “unknown.” Tr. 53; Ex. GX-3.
Bochna arrived at the mine at 7:00 a.m. the same day to begin an investigation. He
proceeded to interview a number of Consol and GMS employees who were present during or
immediately after the accident. Bochna interviewed Stern at the Health South Rehab Facility on
September 4, 2013. He did not speak with any medical personnel who had treated Stern on the
day of the accident or check with the hospital regarding Stern’s injuries or condition. Roy
Cumberledge, GMS Coordinator for the mine, told Bochna that a doctor at the hospital had
opined that Stern’s bleeding would stop on its own. Bochna did not ask anyone if they thought
Stern’s injuries had a reasonable potential to cause death nor did he ask about Stern’s vital signs.
According to statements by witnesses at the hospital, Stern suffered a broken pelvis bone and
some internal bleeding that stopped on its own before surgery. He underwent surgery at about
1:00 p.m. to repair his pelvis.
A company-generated handout provided during the operator’s safety talk following the
accident described Stern’s accident as having “a high potential for fatal accident.” Ex. GX-10.
Similarly, an internal Consol Report of Personal Injury (RPI) rated Stern’s accident as having a
fatal potential of 5 out of 5 rating, with 5 having the highest potential of fatality.

3

Calls were also placed to Stern’s wife and to representatives of GMS.

40 FMSHRC Page 1000

Upon completion of his investigation and 43 days after the incident, Bochna issued a
citation for Consol’s failure to notify MSHA immediately of the accident as required by 30
C.F.R § 50.10(b). Consol contested the citation.
B. Judge’s Decision
A Commission Administrative Law Judge affirmed the violation. He found that
“reasonable potential to cause death” in section 50.10(b) is a clear and unambiguous standard.
He determined that a “totality of the circumstances” test should be used when analyzing the
reporting requirement, and that it is reasonable that the Secretary consider the circumstances that
resulted in an injury. 39 FMSHRC at 1294-95.
In considering the “totality of the circumstances,” the Judge determined that when
considering “mental and physical signs and symptoms, this Court has given much more
probative weight to the evidence of injury available at the scene of the accident and at the time of
the accident and immediately thereafter.” Id. at 1295 (emphasis in original). He opined that,
when assessing the propriety of the operator’s section 50.10(b) determination, less weight is
given to medical information gathered at the hospital and thereafter. Guided by Commission
precedent, the Judge reasoned that “the need for a prompt determination is inherent in section
50.10 and that permitting operators to wait for a medical or clinical opinion would frustrate the
immediate reporting of accidents.” Id.
The Judge found that given the protective purpose of the Act, the applicable standard, and
the totality of the circumstances, a prudent operator, knowledgeable of the industry, should have
known that Stern’s injuries had a reasonable potential to cause death. The Judge identified
specifically that Stern was crushed between two multi-ton pieces of equipment, had abdominal
swelling and severe pain, felt a bizarre sensation of something coming out of his genitals, had an
oddly bent leg, inability to move his legs properly, visible abrasions and some blood loss, and
made a dying proclamation. The Judge found these were signs and symptoms indicative of a
potentially fatal injury. He also concluded that Consol’s decision to call Life Flight was made
because of justifiable concern that Stern might have internal bleeding, which could be life
threatening. Id. at 1292-98.
The Judge rejected Consol’s fair notice argument, reasoning that the circumstances
presented here demanded that a reasonably prudent person would believe that Stern’s condition
had the potential to cause death. Id. at 1298-99.
For the same reasons, the Judge affirmed the Secretary’s assessment of moderate
negligence. He found that the available signs and symptoms indicated that Consol knew or
should have known that an accident occurred that had a reasonable potential to cause death.
Although he acknowledged that Consol reacted quickly and efficiently to help Stern and that it
did eventually alert MSHA, the Judge did not find that these sufficiently mitigated its negligence.
After considering the six statutory penalty criteria found at 30 U.S.C. § 820(i), the Judge also
determined that the Secretary’s proposed statutory minimum penalty of $5,000 was appropriate.
Id. at 1298-1300.

40 FMSHRC Page 1001

II.
Disposition
Section 50.10(b) provides in pertinent part that an “operator shall immediately contact
MSHA at once without delay and within 15 minutes . . . once the operator knows or should know
that an accident has occurred involving . . . (b) [a]n injury of an individual at the mine which has
a reasonable potential to cause death.” 30 C.F.R. § 50.10(b) (emphasis added). The Commission
has held that section 50.10 is triggered by the occurrence of an “accident,” as defined in 30
C.F.R. § 50.2(h). Cougar Coal Co., 25 FMSHRC 513, 520 (Sept. 2003).4
The Mine Act and MSHA regulations do not define “reasonable potential to cause death,”
and the Commission has not found it necessary to do so. Signal Peak Energy, LLC, 37 FMSHRC
470, 474 (Mar. 2015).5 However, the Commission has held that “an operator, in determining
whether it is required to notify MSHA under 30 C.F.R. § 50.10, must resolve any reasonable
doubt in favor of notification.” Id. at 477.
The Commission has also held that when determining whether a generally worded
standard is intended to apply to a specific situation, the evidence must be evaluated under the
“reasonably prudent person” test. Ideal Cement Co., 12 FMSHRC 2409, 2415 (Nov. 1990)
(“given the broad wording of this standard intended to be applied to myriad factual contexts, . . .
it is appropriate to evaluate the evidence in light of what a “reasonably prudent person, familiar
with the mining industry and the protective purpose of the standard, would have provided in
order to meet the protection intended by the standard.”); Quinland Coals, Inc., 9 FMSHRC 1614,
1617-18 (Sept. 1987); see also Emergency Mine Evacuation, 71 Fed. Reg. 71,430, 71,433-34
(Dec. 8, 2006) (“In using the ‘reasonable potential to cause death’” basis for injuries and
entrapments, the MINER Act6 and the final rule retain an element of judgment . . . . [T]he
operator’s decision as to what constitutes a ‘reasonable potential to cause death’. . . is based on
what a reasonable person would discern under the circumstances.”) (internal citations omitted).
4

Section 50.2(h)(2), for purposes of this citation, defines “accident” as “[a]n injury to an
individual at a mine which has a reasonable potential to cause death.” 30 C.F.R. § 50.2(h)(2).
The regulation implements section 3(k) of the Act, which states that “’accident’ includes a mine
explosion, mine ignition, mine fire, or mine inundation, or injury to, or death of, any person.” 30
U.S.C. § 802(k).
5

Commissioner Cohen continues to believe, as he stated in Signal Peak, 37 FMSHRC at
474 n.8, that the Commission should adopt a definition for “reasonable potential to cause death,”
and suggests the following definition: “The reporting requirement of section 50.10(b) is triggered
when a miner is injured in a manner that would cause a reasonably prudent mine operator to
consider the possibility that the injured miner’s life may be in jeopardy. Obviously, because the
extent of an injury is not always immediately apparent, the totality of the circumstances,
including how the injury occurred, should be considered by the mine operator.”
6

Congress enacted the Mine Improvement and New Emergency Response Act of 2006,
Pub. L. No. 109-236, 120 Stat. 493 (“MINER Act”) in response to fatal accidents at underground
coal mines.

40 FMSHRC Page 1002

Therefore, consistent with our holding in Signal Peak, when assessing the merits of a
violation under section 50.10(b), the Commission employs a reasonable person standard,
resolving reasonable doubt in favor of notification. 39 FMSHRC at 474, 477.
A. “Totality of the Circumstances”
Consol argues that the Judge incorrectly applied a “totality of the circumstances” test,
maintaining that the Commission expressly rejected such test in Signal Peak, supra. We
disagree. The operator erroneously construes the Commission’s declining to further define the
term “reasonable potential to cause death” in Signal Peak as a rejection of the principle that the
“totality of the circumstances” must be considered when assessing a violation under section
50.10(b). See Signal Peak, 37 FMSHRC at 474.
On the contrary, we have held that “[t]he immediateness of notification under section
50.10 must be evaluated on a case-by-case basis, taking into account . . . all relevant variables
affecting reaction and reporting.” Wolf Run Mining Co., 35 FMSHRC 3512, 3517 (Dec. 2013),
quoting Consolidation Coal Co., 11 FMSHRC 1935, 1938 (Oct. 1989) (emphasis added). Given
the inability to acquire quickly a clinical diagnosis and the need for prompt reporting, readily
available information such as the nature of the accident and any observable indicators of trauma
are relevant and proper for consideration in assessing whether an injury is reportable. Signal
Peak, 37 FMSHRC at 476.
The phrase “totality of the circumstances” describes the scope of the available evidence
considered when making a section 50.10(b) determination. As the Judge correctly noted, the
scope of the relevant evidence available to assist for purposes of section 50.10(b) generally will
consist of the evidence available at the scene of the accident, at the time of the accident, and
immediately following the accident. 39 FMSHRC at 1295. While the record will often contain
subsequent relevant information from medical professionals, this information will likely not
materialize until the time to make a decision to notify MSHA has already passed. Therefore, it is
less probative in a section 50.10(b) analysis.
Here, the Judge considered the totality of the relevant evidence available to Consol
management during the period immediately surrounding Stern’s injury. Specifically, he reviewed
the signs and symptoms of injury,7 such as whether Stern was conscious and alert, his complaints
of pain, apparent physical abnormalities, and the cause of Stern’s injury. The Judge also
considered the response Consol deemed necessary to insure Stern’s health and safety. See
Cougar Coal, 25 FMSHRC at 520 (considering foreman’s performance of CPR on unconscious
miner who became conscious and alert shortly thereafter).
Accordingly, we conclude that the Judge’s analysis was proper and entirely consistent
with Commission precedent.

7

Consol also characterizes the Judge’s consideration of the “signs and symptoms” of
injury as yet another distinct standard erroneously applied by the Judge. However, the signs and
symptoms of a victim’s injury will be the crux of an analysis used to determine whether an injury
has a “reasonable potential to cause death.” Consequently, this argument is without merit.

40 FMSHRC Page 1003

B. “Reasonable Potential to Cause Death”
Consol primarily bases its defense upon the definition of the term “accident” in 30 C.F.R.
§ 50.2(h). In particular, Consol focuses upon the key phrase – the definition of an “injury to an
individual at a mine which has a reasonable potential to cause death.” 30 C.F.R. § 50.2(h)(2). In
turn, section 50.10(b) uses that terminology in identifying accidents an operator must report
immediately.
Consol asserts that the definition of an immediately reportable accident necessitates a
fact-based analysis of whether the injuries to the injured miner as a matter of medical fact caused
a reasonable potential for death. Applying this view, Consol asserts the Secretary must prove by
a preponderance of evidence that the injured miner actually faced a reasonable potential for
death.8
Consol then contends that the evidence in this case shows that there was not an actual
reasonable potential for death, and the Secretary did not introduce any evidence proving such
potential. Consol asserts that its employees never thought there was a potential for death, that the
internal bleeding which did occur stopped on its own, and that the hospital waited more than
seven hours to perform surgery to repair the miner’s broken body. Thus, Consol argues that the
evidence does not demonstrate that Stern’s injuries resulted in a reasonable potential for death.
The fundamental problem with Consol’s defense is that it misinterprets the regulation.
Consol’s error lies in the perspective from which it evaluates the miner’s injuries. The
notification requirement does not, and cannot, rest upon a post-medical treatment analysis of the
likelihood of death from the injuries. The regulation does not create grounds for a guessing game
regarding whether an injury, as a matter of post-hoc analysis, created any degree of danger to the
miner’s life. See Cougar Coal, 25 FMSHRC at 521 (the decision to call MSHA “cannot be made
upon the basis of clinical or hypertechnical opinions as to a miner’s chance of survival.”).
The decision whether to call must be made immediately and often by persons with little
medical expertise. The Commission has held that, “[o]nce a person with sufficient authority to
call learns of an event injuring a miner, the clock begins to run on the period for evaluation of
whether the injury presents a reasonable potential to cause death and a determination of whether
a call is required.” Signal Peak, 37 FMSHRC at 476. The regulation, therefore, does not look to
an opinion of a medically qualified expert.
A person with sufficient authority to call must make the decision whether to call based
upon whether a reasonable person with the information known by him/her would have
considered the injuries as creating a reasonable potential for death. Of course, the primary
information is the nature of the injury and the miner’s condition. However, as noted above,
relevant information includes the totality of circumstances including the nature of the event
causing the injury. The outcome determinative inquiry in this case is whether responsible Consol
employees had information that would lead a reasonable person to conclude there was a
8

Consol asserts: “To meet his burden of proof, the Secretary is required to present
competent and convi ncing evidence that the injury sustained had a reasonable potential to cause
death. 30 U.S.C § 8 l 3(j); 30 CFR § 50. 10.” PDR at 10.

40 FMSHRC Page 1004

reasonable potential for death based upon the nature of the injury and the totality of the
circumstances. The Judge found such information existed. We agree.
In the instant matter, Section Foreman McDonald, who had EMT training, and EMT
Smith were among the earliest persons to arrive on the scene of the accident. They immediately
determined that Stern had been pinned between two large machines, weighing between 5 and 10
tons. He was lying on the ground in extreme pain and had complained that it felt as if “his guts”
were coming out of his genitals. There was swelling in Stern’s abdomen, which indicated
possible internal bleeding, and he could not move or feel one of his legs, which suggested a
possible spinal injury.9 See Signal Peak, 37 FMSHRC at 475-76 (concluding that the miner’s
“initial condition presented a sufficient possibility of internal injury and spinal damage that a
reasonable person should have recognized that an injury with a reasonable potential to cause
death had occurred.”). Shortly after the accident, much of this information was also relayed from
the Bunker to Mine Supervisor Michael Tennant who is a licensed EMT as well. Tr. 232-34.
Obviously, Stern had suffered a host of extremely painful and very serious injuries. There
was an odd bend to his leg as if it were broken, and there were abrasions and bruising on the
right side of his waist and hip area with a small amount of blood. Stern also asked Smith to tell
his wife and family that he loved them if something were to happen to him, an indication that
Stern was in extreme pain and believed that he might die. 39 FMSHRC at 1296-99. All of these
symptoms reveal severe injuries. Perhaps most importantly and certainly outcome determinative
here, when Smith and McDonald were taking Stern out of the mine, they became aware of
possible internal bleeding, knew such bleeding could cause death, and asked for a Life Flight due
to concern over the nature and severity of Stern’s injuries, including the circumstances which
caused them.
Smith testified that he had called Life Flight because he wanted to err on the side of
caution regarding internal bleeding, which he acknowledged could be fatal. 39 FMSHRC at
1297. McDonald candidly testified that when he observed Stern’s abdomen, he “got nervous”
because he knew there could be internal bleeding, which he knew had a “reasonable potential to
cause death.” Tr. 225, 229. Tennant also agreed that Stern’s accident had a high potential to be
fatal. Tr. 247. Smith further stated that this was the first time Life Flight had been called since he
began working at the mine.
In light of the knowledge and training possessed by Tennant, McDonald, and Smith, we
conclude that someone with sufficient authority at Consol was aware of Stern’s injury-causing
event. These employees surely realized from their training that, when a miner is pinched between
9

Based on MSHA’s experience and common medical knowledge, some types of “injuries
which have a reasonable potential to cause death” include concussions, cases requiring cardiopulmonary resuscitation (CPR), limb amputations, major upper body blunt force trauma, and
cases of intermittent or extended unconsciousness. These injuries can result from various
indicative events, including an irrespirable atmosphere or ignitable gas, compromised ventilation
controls, and roof instability. 71 Fed. Reg. at 71,434. However, this passage clearly indicates that
this list was not intended to be exhaustive, and was meant to provide a sample of some injuries
that could have a reasonable potential to cause death, as well as some events that could produce
such injuries.

40 FMSHRC Page 1005

major pieces of equipment and then suffers from a distended and hardened abdomen, there is a
high potential if not a likelihood of internal bleeding. In turn, nearly every knowledgeable
witness testified to the obvious – namely, internal bleeding is a potential cause of death.10 Under
these circumstances, the evidence overwhelmingly demonstrates that a reasonable person
possessing the available information would have concluded there was a reasonable potential for
death.
Testimony that Stern was conscious, alert, talking, and presented no elevated pulse or
obvious signs of breathing problems does not alter this conclusion. The Commission has
previously rejected the assertion that because a miner is conscious and alert following an
accident, management could reasonably conclude that there was no potential for death. Cougar
Coal, 25 FMSHRC at 520; see also Signal Peak, 37 FMSHRC at 476 (noting that while the
miner presented some stable vital signs, all vitals were not taken, thus evaluation was not
exhaustive or conclusive and did not establish that the miner’s injuries posed no reasonable
potential for death). Indeed, Consol’s limited assessment of Stern’s vital signs could not readily
determine the extent of any internal bleeding, its cause, or the potential for additional tears or
damage to internal organs or other factors. Under these circumstances, knowing that internal
bleeding may cause death, any reasonable person could not conclude otherwise than that a
potential for death existed.11
Consol also argues that the Judge gave undue weight to the cause of injury, because the
regulation is injury-based, not incident-based. However, the Commission has repeatedly held that
the nature of the accident is relevant in determining whether an injury is reportable under section
50.10. Signal Peak, 37 FMSHRC at 475-76 (holding that a miner being propelled 50-80 feet due
to blast and having a significant back protrusion indicated a reasonable potential to cause death);
Cougar Coal, 25 FMSHRC at 520-21 (holding that an electric shock, 18-foot fall, and head
injury had a “per se” reasonable potential for death); see also Mainline Rock & Ballast, Inc., 693
10

Consol argues that the Judge failed to address a significant conflict between section
103(j) of the Act, 30 U.S.C. § 813(j), and 30 C.F.R. § 50.10(b). It contends that section 103(j),
which states that an operator must call MSHA when it “realizes” an injury has occurred,
conflicts with section 50.10(b), which states that MSHA must be called when an operator “knows
or should know” that an accident has occurred. PDR at 31-32. We need not consider that
argument. In this case, there is no doubt that a reasonable person evaluating the known facts
would have found a reasonable potential for death. The operator knew the requisite information.
11

Although the hardening of Stern’s abdomen could have been the result of other types
of injuries, the symptoms occurred after pinching between large pieces of equipment. And while
the bleed turned out to be non-fatal, this in no way negates the finding that the nature of Stern’s
injuries, as readily observed by Smith and McDonald, presented a reasonable potential to cause
death. Under this regulation, operators are not expected to know with absolute certainty the
extent of a miner’s injuries because this is simply impossible within the short window in which
they must make the determination. Additionally, as noted above, the Commission has explicitly
emphasized “that an operator, in determining whether it is required to notify MSHA under 30
C.F.R. § 50.10, must resolve any reasonable doubt in favor of notification.” Signal Peak, 37
FMSHRC at 477.

40 FMSHRC Page 1006

F.3d 1181, 1189 (10th Cir. 2012) (stating that an operator should have been alerted to the
potential for death by the fact that the miner was pulled through a roller).
Consol acknowledged the high danger of a pinch point injury. Foreman McDonald
testified that red zone training is frequently given at the mine not only because of the tight areas
and mobile equipment there, but because red zone violations are considered particularly
dangerous. Tr. 224. Consol even used the accident involving Stern as an example in its Pinch
Point/Red Zones training handout, which specifically noted that this particular accident “had a
high potential for a fatal accident.” Ex. GX-10; Tr. 212-14. Similarly, in Consol’s internal RPI,
which discusses incidents at all company mines and assigns them fatal ratings between 1 and 5,
Stern’s mechanism of injury was rated as having a fatal potential of 5 out of 5. Exs. GX-14, RX5; Tr. 260-67.
Consol also argues that Bochna performed an inadequate investigation because he failed
to acquire medical records and statements from medical personnel to support the conclusion that
Stern’s injuries had a reasonable potential to cause death. However, as we emphasized above,
section 50.10 requires operators to notify MSHA “immediately . . . at once without delay and
within 15 minutes” once an operator knows that an accident has occurred. 30 C.F.R. § 50.10.
Therefore, “[g]iven the need for a prompt determination inherent in section 50.10 . . . permitting
operators to wait for a medical or clinical opinion would ‘frustrate the immediate reporting of
near fatal accidents.’” Signal Peak, 37 FMSHRC at 476 (citation omitted); see also 71 Fed. Reg.
71,433-71,434 (“the operator’s decision as to what constitutes a ‘reasonable potential to cause
death’ ‘cannot be made upon the basis of clinical or hypertechnical opinions as to a miner’s
chance of survival’. . . . The decision to call MSHA must be made in a matter of minutes after a
serious accident.”) (internal citation omitted).12
Lastly, Consol argues that it lacked fair notice of how the regulation would be applied
because neither the Commission nor MSHA has defined “reasonable potential to cause death.”
However, the Commission has held that in interpreting and applying broadly worded standards,
the appropriate test is not whether the operator had explicit prior notice of a specific prohibition
or requirement, but whether a reasonably prudent person familiar with the mining industry and
the protective purposes of the standard would have recognized the specific prohibition or
requirement of the standard. Ideal Cement Co., 12 FMSHRC at 2416.
Under the circumstances presented in this case, a reasonably prudent person familiar with
the protective purpose of section 50.10(b), would have recognized that a miner who had been
pinned between two multi-ton machines and who suffered from Stern’s symptoms had sustained
an injury with a “reasonable potential to cause death,” and that MSHA should have been
immediately notified. The Judge’s application of the standard is in harmony with the
12

See Consolidation Coal, 11 FMSHRC at 1938 (finding that section 50.10 “accords
operators a reasonable opportunity for investigation,” but that the investigation “must be carried
out . . . in good faith without delay and in light of the regulation’s command of prompt, vigorous
action”); see also 71 Fed. Reg. 12,252, 12,260 (Mar. 9, 2006) (noting that “[t]aking too much
time to determine whether . . . an accident occurred” is a common reason for violations of section
50.10).

40 FMSHRC Page 1007

Commission’s decisions in Signal Peak and Cougar Coal. Therefore, we reject Consol’s notice
argument.
Accordingly, we conclude that based on the substantial evidence presented in this case, a
reasonably prudent miner, familiar with the mining industry and the protective purpose of section
50.10(b), would have concluded that Stern’s injuries had a “reasonable potential to cause death”
and would have immediately reported the injuries to MSHA.
C. Penalty
Finally, Consol argues that the Judge erred in failing to consider a penalty lower than the
statutory minimum of $5,000 because the Commission assesses penalties de novo and is not
bound by section 110(a)(2) of the Act. Section 110(a)(2) states that an operator “who fails to
provide timely notification to the Secretary as required under section [103](j) of this [Act]
(relating to the 15 minute requirement) shall be assessed a civil penalty by the Secretary of not
less than $5,000 and not more than $60,000.”13 30 U.S.C. § 820(a)(2).14 The operator contends
that because this section refers to the Secretary’s penalty assessment, it does not bind
Commission judges. We reject this contention.
The Commission has determined that an assessment of penalty for a non-flagrant
violation of section 50.10(b) is governed by section 110(a)(2) of the Act, which, as noted,
imposes statutory minimum and maximum amounts. 30 U.S.C. § 820(a)(2); Signal Peak, 37
FMSHRC at 484 n.22. Thus, the Judge here was simply unable to consider a penalty less than the
minimum imposed by Congress when it passed the Miner Act.
We base our conclusion in large part on the Miner Act’s legislative history. In briefly
discussing the section that amends the statutory reporting requirements, the Senate Report states:
Section 5 requires MSHA notification within 15 minutes
for a subset of situations which are currently defined as accidents
under regulation [30 C.F.R. § 50.2(h)]. . . . [It] is the intent of the
committee that the minimum fine of $5,000 be assessed only for
those accidents described in 30 CFR 50.2(h)(1), (2) and (3) [which
include an injury to an individual at a mine which has a reasonable
potential to cause death]. . . .
...
13

In January 2018, the minimum penalty was increased to $5,903 and the maximum
penalty was increased to $70,834 to account for inflation. 30 C.F.R. § 100.4(c); see also
Department of Labor Federal Penalties Inflation Adjustment Act Annual Adjustments for 2018.
83 Fed. Reg. 7, 15 (Jan. 2018). However, the minimum penalty in effect at the time of the
violation, i.e., $5,000, applies here.
14

Section 103(j) requires an operator to notify the Secretary “within 15 minutes of the
time at which the operator realizes that . . . an injury . . . of an individual at the mine which has a
reasonable potential to cause death, has occurred.” 30 U.S.C. § 813(j). This is the same conduct
required by sections 50.10(a), (b), and (c) of the Secretary’s regulations.

40 FMSHRC Page 1008

Section 5–Prompt Incident Notification. This provision
codifies the recent MSHA emergency regulation which requires
that operators make notification of all incidents/accidents which
pose a reasonable risk of death within 15 minutes of when the
operator realizes an accident has occurred. It would fix a minimum
civil penalty of $5,000, up to $60,000 (which is the current
maximum) for failure to do so.
S. Rep. No. 109-365 at 9, 13 (2006) (emphasis added). This is the extent of the discussion. There
is no reference to the fact that the Secretary proposes penalties and Commission judges assess
them. The Senate Report simply states that a minimum penalty of $5,000 is to be imposed.
In addition, section 110(a)(4) states that “[i]f a court, in making such review, sustains the
order, the court shall apply at least the minimum penalties required under this subsection [section
110(a)].” 30 U.S.C. § 820(a)(4). A statutory scheme that permits the Commission to assess any
penalty, however minimal, but requires a reviewing court to impose a penalty of at least $5,000,
makes no sense.
Therefore, because assessment of Consol’s violation of section 50.10(b) is governed by
section 110(a)(2) of the Act, the Judge properly assessed a penalty of $5,000.

40 FMSHRC Page 1009

III.
Conclusion
For the reasons set forth above, we conclude that substantial evidence supports the
Judge’s finding that a reasonable person, familiar with the mining industry and the protective
purpose of section 50.10(b), would have concluded that Stern’s injuries had a reasonable
potential to cause death and that Consol should have called MSHA immediately upon learning of
the injuries giving rise to such potential. We also conclude that the Judge properly applied the
requirements of section 110(a)(2) of the Act and did not err by imposing the penalty of $5,000.
Accordingly, the Judge’s decision is affirmed.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

40 FMSHRC Page 1010

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

August 29, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos.

v.

LAKE 2011-701
LAKE 2011-881
LAKE 2011-962
LAKE 2012-58

THE AMERICAN COAL COMPANY
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
BY THE COMMISSION:
This case, arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2012) (“Mine Act” or “Act”), comes before us on appeal for the second time to
determine whether the Administrative Law Judge properly explained his assessed penalties in
this matter, which involves “special assessments” by the Secretary of Labor,1 and whether
substantial evidence supports the penalties assessed by the Judge.
On remand from the Commission’s first decision in this case, 38 FMSHRC 1987 (Aug.
2016), the Administrative Law Judge reaffirmed the five penalty assessments he had assessed for
citations issued by the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) to The American Coal Company (“AmCoal”). 38 FMSHRC 2612 (Oct. 2016) (ALJ).
AmCoal appeals the Judge’s remand decision, alleging that the Judge’s penalty
assessments are arbitrary in part because he failed to explain how he set the penalty amounts,
which, the operator argues, substantially deviated from the amounts that would have been
assessed under the Secretary’s regular assessment formula. AmCoal also argues that the Judge’s
penalty assessments are not supported by substantial evidence.
Commissioners Jordan and Cohen vote to affirm the Judge’s decision, while Acting
Chairman Althen and Commissioner Young vote to vacate and remand the Judge’s decision. The
effect of the split decision is to allow the Judge’s decision to stand as if affirmed. Pennsylvania
Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), aff’d on other grounds, 969 F.2d 1501 (3d
Cir. 1992).
1

In this case, the Secretary proposed penalties using his procedures for “special
assessment” rather than the “regular assessment” formula the Secretary commonly employs.
Compare 30 C.F.R. § 100.5 (“Determination of penalty amount; special assessment”) with 30
C.F.R. § 100.3 (“Determination of penalty amount; regular assessment”).

40 FMSHRC Page 1011

I.
Facts and Proceedings Below
A. Background2
In the Judge’s initial decision, he affirmed all five violations at issue in this case and the
associated significant and substantial (“S&S”)3 designations. 35 FMSHRC 3077, 3099-122
(Sept. 2013) (ALJ). For four of the five citations, the Judge reduced the level of negligence, and
for one citation, he reduced the level of gravity alleged by the Secretary. The Judge assessed a
total penalty of $43,200 for the five violations, compared to the specially assessed total penalty
of $69,608, which MSHA proposed.4
The Judge declined to address AmCoal’s broader arguments about the validity of
MSHA’s special assessments5 and the appropriate standard for reviewing the Secretary’s
proposed penalties. He explained that because the Commission alone is responsible for assessing
final penalties, the Secretary’s decision to propose a regular or a special assessment is not
relevant to the Commission’s determination of a penalty amount.

2

This case involves four roof control violations of 30 C.F.R. § 75.202(a) and one
violation of a transportation safeguard, 30 C.F.R. § 75.1403. The factual background concerning
the five violations at issue in this case has been fully set forth in both the Judge’s and
Commission’s initial decisions.
3

The S&S terminology is taken from section 104(d) (1) of the Act, 30 U.S.C.
§ 814(d)(1), which distinguishes as more serious any violation that “could significantly and
substantially contribute to the cause and effect of a . . . mine safety or health hazard.”
4

The penalties for the five violations proposed by the Secretary and as assessed by the
Judge are as follows:
Citation No.
8428508
8432118
8432126
8432129
8432052

Regulation
75.202(a)
75.202(a)
75.202(a)
75.202(a)
75.1403

Sec’y Proposal
$40,308
$9,100
$7,700
$7,700
$4,800

5

ALJ assessment
$20,000
$7,200
$6,100
$6,100
$3,800

MSHA may specially assess penalties pursuant to 30 C.F.R. § 100.5, which states that
“MSHA may elect to waive the regular assessment under § 100.3 if it determines that conditions
warrant a special assessment.” 30 C.F.R. § 100.3(a). Section 100.5(b) states that “[w]hen MSHA
determines that a special assessment is appropriate, the proposed penalty will be based on the six
criteria set forth in § 100.3(a). All findings shall be in narrative form.”

40 FMSHRC Page 1012

AmCoal appealed the Judge’s first decision, arguing that MSHA’s special assessments
were arbitrary because the Secretary failed to meet his burden of substantiating enhanced special
assessments. It contended that as a result, the Judge erred by using the Secretary’s proposed
special assessments as a baseline. AmCoal further argued that the Judge should have relied
instead on MSHA’s regular assessment formula when determining the penalty amounts in this
case.
In its first decision, the Commission reaffirmed its independent authority to assess
penalties de novo based on the penalty criteria contained in section 110(i) of the Mine Act, 30
U.S.C. § 820(i),6 and stated that the Secretary’s proposal is not a baseline for the Judge’s
independent assessment. 38 FMSHRC at 1995. Noting the Secretary’s unilateral discretion to
issue a special assessment, the Commission majority explained that the Secretary is not required
to explain the reasons for his decision to specially assess a violation. Id. at 1993.
The Commission majority concluded that the Judge did consider the section 110(i)
criteria, but could not determine whether he relied on the Secretary’s special assessments as a
baseline and thus could not determine whether he independently assessed the penalties in this
case. The majority vacated the penalties and remanded the case to the Judge to explain whether
he relied on the Secretary’s special assessments and to provide an adequate explanation of the
bases for his assessments. The majority also instructed the Judge to address the history of
violations criteria pertaining to the safeguard violation because he failed to address the evidence
and explain its impact on his assessment.7 Id. at 1997-98.

6

Section 110(i) of the Mine Act provides that the Commission is authorized to assess all
penalties under the Act and that the penalties must reflect consideration of six statutory factors:
[1] the operator’s history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator’s ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the
[operator] charged in attempting to achieve rapid compliance after
notification of a violation.
30 U.S.C. § 820(i).
7

Then Commissioner Nakamura, concurring in part and dissenting in part, would have
affirmed the Judge’s penalty assessments regarding the four roof violations and joined the
majority in remanding only the penalty for the safeguard violation. Id. at 1999-2003.
Commissioner Jordan, dissenting, would have affirmed all five penalty assessments. Id. at 200405.

40 FMSHRC Page 1013

B. The Judge’s Decision
On remand, the Judge stated that he did not rely on the Secretary’s proposed special
assessments as a starting point, nor did he make an across-the-board reduction of the proposed
assessments in determining his final assessments. 38 FMSHRC at 2617. The Judge further
explained that, in general, any “substantial deviations” from the Secretary’s proposed
assessments were due to his disagreement with the Secretary’s negligence determinations and
that he gave “great weight to the facts that the operator was large in size and able to continue in
business despite the penalties imposed.” Id. The Judge asserted that he “imposed penalties that
[he] felt were large enough to serve as an effective enforcement tool and discourage further
violations.” Id. Specifically refuting the operator’s arguments to the contrary, the Judge
concluded that “this mine operator inarguably had a significant history of violations.” Id. at
2618.
In discussing the relevant facts pertaining to the section 110(i) criteria for each of the five
violations, the Judge repeatedly noted the mine’s large size, the operator’s ability to continue in
business, and its excessive violation history for the four roof violations. Pertaining to the
safeguard violation, the Judge specifically considered the evidence related to the operator’s
history of such violations. The Judge also noted the operator’s good faith abatement and
explained that any deviation from the Secretary’s proposed assessments was due to the reduced
negligence and/or gravity findings for each violation. The Judge reaffirmed the penalties he
proposed in his initial decision.
II.
Disposition
In its second appeal, AmCoal continues to argue that the Judge’s assessments are
arbitrary and excessive because he failed to provide any explanation of how he arrived at the
particular assessment amounts or to provide an adequate explanation for the bases of his
assessments. It contends that the Judge on remand “failed to fully discuss the evidence bearing
upon the appropriate penalties, failed to explain how he set his assessment amounts, and thus
failed to adequately explain the bases of his assessments and their substantial deviations from the
assessments proposed by the Secretary and those that would have resulted under the regular
assessment mechanism.” PDR at 10. AmCoal also argues that the Judge erred in justifying his
assessments based solely on the mine’s large size and violation history when the Secretary’s
special assessments did not rely on such factors. AmCoal asks the Commission to require a
Judge who does not rely on the Secretary’s proposed special assessment to explain a substantial
deviation from what would have been proposed under the regular assessment mechanism under
30 C.F.R. § 100.3. Finally, AmCoal contends that substantial evidence does not support the
Judge’s penalty assessments based on the mine’s size and excessive violation history.
The separate opinions of the Commissioners follow.

40 FMSHRC Page 1014

Commissioners Jordan and Cohen, writing in favor of affirming the Judge’s decision:
The Commission’s judges are accorded broad discretion in assessing civil penalties under
the Mine Act. Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986). Such discretion is not
unbounded, however, and must reflect proper consideration of the penalty criteria set forth in
section 110(i), as well as the deterrent purpose of the penalty. Id. (citing Sellersburg Stone Co., 5
FMSHRC 287, 290-94 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984)); Black Beauty Coal
Co., 34 FMSHRC 1856, 1864-69 (Aug. 2012).
Commission judges are not bound by the Secretary’s penalty regulations set forth at 30
C.F.R. Part 100, including those utilized to compute a special assessment. E.g., Sellersburg Stone
Co. v. FMSHRC, 736 F.2d at 1151-52 (“neither the ALJ nor the Commission is bound by the
Secretary’s proposed penalties”). The Judge’s duty is to make a de novo assessment based upon
his or her review of the record. The Commission has required an explanation of any substantial
divergence from the penalty proposal of the Secretary. Sellersburg, 5 FMSHRC at 290-94. As a
general matter, a judge’s penalty assessment is an exercise of discretion which we review under
an abuse of discretion standard. Id.
In this case, the Commission’s remand was for a very limited purpose: “On remand, the
Judge should explain whether he relied on the Secretary’s specially assessed proposed penalties
[as a benchmark or starting point] and provide an adequate explanation for the bases of his
assessments, in light of the record evidence and his section 110(i) findings[;] . . . the Judge must
also make a finding as to the history of violations pertaining to the safeguard violation, . . .” 38
FMSHRC at 1997-98. The Judge did exactly what we required of him. He clearly stated that he
had not used the Secretary’s specially proposed assessments as a baseline or starting point for his
assessments, and he explained how he had determined the five assessments. 38 FMSHRC at
2615.
AmCoal argues that the Judge abused his discretion by failing to adequately explain the
bases for his penalty assessments. In particular, AmCoal contends that the Judge erred by not
using the amount that would have been imposed under MSHA’s regular assessment formula as a
reference point in making his own penalty determinations. AmCoal also mounts a substantial
evidence challenge to the Judge’s application of the section 110(i) penalty criteria. As we find
neither argument persuasive, we would affirm the Judge’s penalty assessments.
A. The Judge Committed No Legal Error.
AmCoal argues that any judge who does not adopt the Secretary’s underlying rationale
for specially assessing a penalty must consider the amount that would have been proposed under
the Secretary’s regular assessment formula at 30 C.F.R. § 100.3 as a reference point, and must
justify any departure from that amount. In this case, the operator considers the Judge’s
disagreement with the Secretary’s negligence and gravity determinations to constitute a rejection
of the Secretary’s bases for a special assessment. Not only does AmCoal consider the negligence
and gravity findings to provide inadequate support for the penalty the Judge imposed, AmCoal
also maintains that the remaining penalty criteria – such as the mine size, ability to continue in

40 FMSHRC Page 1015

business, and violation history – do not support the imposition of what AmCoal claims are the
“elevated” assessments imposed by the Judge.1
The Commission has already rejected the line of reasoning offered by AmCoal. When
this case was previously before us, the operator contended that Judges must utilize the dollar
amounts that would have resulted from the regular assessment process as the baseline for
determining their penalty, and must explain any substantial divergence from that figure. 38
FMSHRC at 1990. Ultimately, however, the majority’s remand instructions only required the
Judge to: (1) explain whether he relied on the Secretary’s specially assessed proposed penalties
(which he did, answering in the negative) and (2) provide an adequate explanation for the bases
of his assessments (which he did, see 38 FMSHRC at 2618-2622). 38 FMSHRC at 1997. Thus,
the discussion in the operator’s brief comparing the Judge’s penalty assessments with what
would have been imposed under the regular assessment mechanism is misplaced and irrelevant.
We again decline to require Commission Judges to rely upon MSHA’s regular
assessment formula as a reference point in assessing penalties where a Judge chooses not to
adopt the Secretary’s special assessment proposal. Such a practice would compel the
Commission’s Judges to use the Secretary’s penalty regulations and point system, contrary to
Commission and federal court precedent, thereby undermining the independence of the Judges in
assessing penalties.
As we emphasized in U.S. Steel Mining Co.:
The Act does not condition the penalty assessment authority
and duties of the Commission upon the manner in which the
Secretary of Labor has chosen to implement his statutory
responsibility for proposing penalties. Therefore, it is irrelevant to
the Commission for penalty assessment purposes whether a penalty
proposed by the Secretary in a particular case was processed under
§ 100.3 [the regular penalty assessment regulation] . . . or § 100.5
[the special assessment regulation].
6 FMSHRC 1148, 1150 (May 1984); see also Sellersburg, 736 F.2d at 1151-52; Mach Mining,
LLC v. Sec’y of Labor, 809 F.3d 1259, 1263-64 (D.C. Cir. 2016) (“‘[U]nder both Commission
and court precedent, the regulations do not extend to the independent Commission, and thus the
MSHA regulations are not binding in any way in Commission proceedings.’”) (citations
omitted).
In making his or her de novo assessment, a judge may assign different weights to the
section 110(i) penalty criteria according to the circumstances of the case. Knight Hawk Coal,
1

If the Commission were to accept AmCoal’s argument that the Judge erred in relying on
the mine’s large size and violation history after reducing some of the negligence and gravity
findings, we would effectively be binding and limiting the authority of Commission judges to
consider some of the section 110(i) factors.

40 FMSHRC Page 1016

LLC, 38 FMSHRC 2361, 2373-74 (Sept. 2016); Lopke Quarries, Inc., 23 FMSHRC 705, 713
(July 2001). Moreover, the Judge is “not required to weigh the criteria in the same manner that
the criteria are weighed in the proposal of a penalty.” Jim Walter Res., Inc., 36 FMSHRC 1972,
1980 (Aug. 2014). As long as the Judge’s findings and independent weighing of the penalty
factors are supported by substantial evidence, and his or her assessment is not infected by plain
error or an abuse of discretion, the Commission will affirm the Judge’s assessment.
Here, the Judge emphasized the record evidence pertaining to the operator’s large size, its
ability to continue in business, its violation history, and the need to provide an effective
deterrent. With regard to several violations, the judge considered the negligence and gravity to be
less severe than the determinations reached by the Secretary.2 The Judge weighed all of these
factors in determining a penalty.
Our colleagues consider any special assessments by the Secretary to be inherently
arbitrary and subjective “by their very nature.” Slip op. at 28. Embracing a cognitive bias theory
they describe as “anchoring,” they contend that a Commission judge cannot avoid becoming
mentally attached (“anchored”) to whatever proposed dollar amount the Secretary’s special
assessment process has produced. In other words, in their view, any specially-assessed proposed
penalty effectively prevents a Commission judge from independently applying the statutory
penalty criteria and assessing a penalty de novo.3 Using our colleagues’ logic, we should
consider any penalty imposed by a judge for a violation that was specially assessed by the
Secretary, to be basically the fruit of the poisonous tree, and therefore inherently suspect.4
Despite our colleagues’ skepticism regarding a judge’s ability to independently determine
an appropriate penalty once the Secretary proposes a special assessment, our colleagues
nevertheless conclude they should remand this matter once again, in order for the Judge to make
another attempt at an independent penalty determination. However, it would appear that our
colleagues would accept the Judge’s penalty assessment only if it is tethered to the regular
assessment system. See slip op. at 30 n.17 (“The reader may find an implication that regular
assessments, in fact, should constitute a form of anchor whereas special assessments may not.
That is true in a general sense.”).
2

We note, however, that he affirmed the S&S designations for all five violations.

3

Thus, our colleagues implicitly reject as untrue the Judge’s emphatic statement –
answering the critical question on remand – that he “did not use and has not used the Secretary’s
proposed specially assessed penalties as a baseline or starting point.” 38 FMSHRC at 2615
(emphasis in original). The Commission should not treat the statements of its Judges in such a
cavalier manner.
4

We note that the percentage of violations actually subjected to special assessment is
very small. In response to a request from the Commission during oral argument in this case the
Secretary reported that in fiscal year 2015, 1,069 (or less than 1%) of 115,483 assessments were
special assessments. Letter from W. Christian Schumann, Counsel, Appellate Litigation, Office
of the Solicitor, to Lisa M. Boyd, Executive Director, FMSHRC (May 2, 2016).

40 FMSHRC Page 1017

In this case, the special assessments resulted in large part from the Secretary’s frustration
with AmCoal’s repeated history of noncompliance, particularly with regard to roof and rib
violations. This would appear to be a justifiable rationale. Notably, an operator’s history of
previous violations is the first penalty criteria mentioned in section 110(i), and the legislative
history of the Mine Act supports the significance Congress’ attached to it:
In evaluating the history of the operator’s violations in assessing
penalties, it is the intent of the Committee that repeated violations
of the same standard, particularly within a matter of a few
inspections, should result in the substantial increase in the amount
of the penalty to be assessed. Seven or eight violations of the same
standard within a period of only a few months should result, under
the statutory criteria, in an assessment of a penalty several times
greater than the penalty assessed for the first such violation.
S. Rep. No. 181, at 43, reprinted in Senate Subcomm. on Labor, Comm. on Hum. Res.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 631 (1978).5
Our colleagues attempt to downplay the concern of MSHA (and Congress) by claiming
that AmCoal’s violation history is not significant when considered in relation to the violation
history of other large coal operators in the mining industry. Even assuming that to be the case,
we do not believe MSHA’s penalty proposal must be based on an assessment of an operator’s
behavior solely in the context of industry-wide statistics. Here the inspector who recommended
that four of the citations be specially assessed, Edward Law, explained what prompted his action:
[Ninety-seven violations of section 75.202(a)6] in two
years, that’s almost 50 a year, that’s a big number. To me, that’s
something they should be taking care of and they should be
making changes to take care of that. And the people should be

5

The Secretary was also provided with a serious enforcement tool to address operators
who demonstrated a “pattern of violations.” 30 U.S.C. § 814(e). In subsequent amendments,
Congress provided that certain violations be deemed “flagrant” thereby subjecting them to
penalties significantly higher than the maximum typically allowed under the Act. The “flagrant”
designation applied to violations indicating a “reckless or repeated failure to make reasonable
efforts to eliminate a known violation of a mandatory health or safety standard that substantially
and proximately caused, or reasonably could have been expected to cause, death or serious
bodily injury.” 30 U.S.C. § 820(b)(2) (emphasis added).
6

Section 75.202(a) requires that the “roof, face and ribs of areas where persons work or
travel should be supported or otherwise controlled to protect persons from hazards related to falls
of the roof, face or ribs and coal or rock bursts.”

40 FMSHRC Page 1018

trained so that they’re taking care of it on their own; and it would
eliminate a lot of those.
Tr. at 243.7
Moreover, Inspector Law further testified that in the period prior to his issuance of the
citations for violations of section 75.202(a), he had repeatedly talked with AmCoal officials
about the need to “do something about these areas that are being found to be inadequately
supported.” Tr. at 295. In the context of unwarrantable failure cases, the Commission has held
that repeated warnings about an unsafe practice by MSHA inspectors constitute grounds for
finding that an operator is on notice that its safety program is inadequate. See Brody Mining,
LLC, 37 FMSHRC 1687, 1699-1700 (Aug. 2015) (citing San Juan Coal Co., 29 FMSHRC 125,
131 (Mar. 2007)). The same principle applies to enhancing penalties based on the section 110(i)
factor of the operator’s history of previous violations.
Our colleagues acknowledge that under their theory, a Commission judge cannot avoid
becoming mentally “anchored” to whatever amount the Secretary has proposed, even those
computed under the regular formula. In an attempt to reconcile this “anchoring” with their
steadfast support of the Commission’s independent authority to assess penalties de novo, based
on the penalty criteria contained in section 110(i) of the Mine Act, they suggest that the regular
penalty proposed by MSHA be considered “an authorized anchoring” because in their view it
reflects application of a uniform and regularized system. They consider special assessments, on
the other hand, to “flow from formalized calculations largely, and sometimes wholly, unrelated
to the violation.” Slip op. at 28.
Our colleagues’ concern is not born out in the instant case, nor do we believe they have
made a persuasive argument that special assessments generally are based on irrelevant factors.
The Secretary has implemented a scheme which allows the Secretary to propose a special
assessment when he deems it appropriate, and we recognize that “the Secretary has very broad
discretion to devise a scheme implementing the Act’s civil penalty guidelines.” Coal
Employment Project v. Dole, 889 F.2d 1127, 1129 (D.C. Cir. 1989).8
If an operator wishes to challenge a penalty determination, the operator is afforded the
opportunity for a hearing and a de novo assessment by a Commission judge, based on an
independent application of the statutory criteria. We disagree with our colleagues that the
7

The number of prior violations of section 202(c) issued in the two years prior to the
ones at issue here varied from 97 to 109. This is due to the fact that the four citations were each
issued on different dates within a five-month period. Thus, the two year time period differed
slightly for each violation.
8

That case involved a challenge to the validity of a single penalty assessment provision
the Secretary had implemented. Because the Court could not determine if the single penalty
would be adequately reflected in the operator’s history of violations, it remanded the case so that
the Secretary could amend or establish regulations as necessary. 889 F.2d at 1136-39.

40 FMSHRC Page 1019

relevant question before the Judge should be: on what basis does the Secretary justify a
substantial heightening of penalties from regular penalties? Slip op. at 29. This approach is
inconsistent with our longstanding jurisprudence when reviewing a judge’s penalty assessment,
in which we focus on the penalty criteria in section 110(i) and determine whether the judge’s
decision reflects a reasonable application of those factors.
Our colleagues, citing no legal precedent, would announce a new standard for
Commission review of penalty determinations: a judge’s penalty assessment must be consistent
with other assessments. Slip op. at 20. This assertion begs the question “consistency with what?”
Is it consistency with penalties other Commission judges have assessed in allegedly similar
circumstances? Or is it consistency with the particular Judge’s prior decisions, as our colleagues
suggest in section III.B of their opinion, slip op. at 33. The only “consistency” which seems to
satisfy our colleagues is consistency with the Secretary’s regular assessment system. See slip op.
at 20 & 29-30 n.17. This position is irreconcilable with both the existence of the Secretary’s
special assessment system as well as the independence of Commission Judges. In short, besides
having no legal foundation, this approach is unworkable and inconsistent with the bedrock
concept of a judge’s obligation to assess a de novo penalty based on the section 110(i) criteria.
Accordingly, we conclude that the Judge committed no legal error in assessing the
penalties herein on remand.
B. Substantial Evidence Supports the Judge’s Penalty Assessments.
AmCoal’s remaining arguments involve the sufficiency of the evidence substantiating the
Judge’s penalty assessments. On remand, in specific response to the question posed to him in the
Commission’s first decision, the Judge clarified that he did not rely upon nor utilize the
Secretary’s proposed special assessments as a benchmark for his assessments and instead relied
on the record evidence pertaining to the section 110(i) penalty criteria to explain his penalty
assessments. 38 FMSHRC at 2615. AmCoal contends that the only statutory criteria mentioned
or relied upon by the Judge to warrant increasing penalties beyond the regular assessment
mechanism are the “great weight” given to the fact “that the operator was large in size and able
to continue in business despite the penalties imposed,” 38 FMSHRC at 2617, and the Judge’s
finding that “as a general matter, regardless of possible inconsistencies in the record, this mine
operator inarguably had a significant history of violations.” Id. at 2618. However, AmCoal fails
to recognize that the Judge, relying on Black Beauty Coal Co., also appropriately took into
consideration the deterrent effect of his penalty assessments, by imposing penalties “large
enough to serve as an effective enforcement tool and discourage further violations.” Id. at 2617.
Hence, deterrence provided another ground for his penalty determinations.9
9

We also note that the Judge found all five penalties to be S&S, a finding requiring the
violations to be more serious than an ordinary violation. See 30 U.S.C. § 814(d)(1) (S&S
designates a violation that “could significantly and substantially contribute to the cause and
effect of a . . . mine safety or health hazard”). Thus, although the Judge did not specifically rely
on the S&S findings to support his assessed penalties, we disagree with our colleagues’
statement that the Judge did not find any “aggravation” in these cases. Slip op. at 35.

40 FMSHRC Page 1020

AmCoal further contends that the findings related to the operator’s size and history of
violations are not supported by substantial evidence. In particular, it maintains that because the
mine is indeed so large, it necessarily will have a greater number of violations and that this
would give the impression that AmCoal has a worse history of violations than it actually does.
We reject AmCoal’s arguments.
The Judge provided an extensive explanation for his penalty determinations, including his
consideration of the section 110(i) criteria. 38 FMSHRC at 2617-22. That the operator takes
issue with the relevance or import of these factors in ultimately determining the penalty amount
does not establish that the Judge abused his discretion. As discussed below, the Judge explained
that a significant part of his consideration in determining the penalty amount was the large size
of this mine, the fact that the penalties would not affect the operator’s ability to continue in
business, and the need to assess penalties that would deter the operator from continuing to violate
the cited standards. Id. at 2617. All these are relevant factors for the Judge to consider in
assessing the penalty pursuant to section 110(i). Moreover, deterrence is a relevant factor that
Judges may consider in assessing penalties. See Black Beauty Coal Co., 34 FMSHRC at 1864-69
(in approving or rejecting a proposed settlement, a Commission ALJ may take into account the
deterrent effect of the penalty).
1. Size of the Mine
The Judge considered the amount of coal produced by this mine and determined that the
mine was large and that size was a significant factor to consider when determining the penalty
amounts. 38 FMSHRC at 2618. He noted that the mine tonnage exceeded six million tons and
the production of its controlling entity exceeded twenty-nine million tons. The Judge did not err
in assigning great weight to the fact that the operator was large in size. As noted above, the
Judge, in conducting an independent assessment, may assign varying weights to the penalty
criteria based on the record.
2. Violations History
AmCoal contends that the finding that its violations history is excessive is not
qualitatively or quantitatively substantiated by the record. It argues that the Judge simply relied
on the record evidence of the number of past violations and made a conclusory determination
that the operator’s history was excessive.
However, the record contains evidence of the operator’s repeated history of
noncompliance, particularly with regard to the roof and rib violations, and the inspector testified
as to his opinion that the operator’s history was excessive.
With respect to Citation No. 8432118, Inspector Law “recommended the citation for
special assessment because the operator had a ‘lot of issues with ribs’ and roofs and had been
cited a ‘pretty high’ number of times for 202(a) violations.” 35 FMSHRC at 3089. Citation No.
8428508 stated that “Standard 75.202(a) was cited 109 times in two years at [the] mine.” Id. at
3106. The inspector acknowledged consideration of AmCoal’s excessive history as influencing
the decision to propose special assessments. As the Judge noted in his initial decision,

40 FMSHRC Page 1021

“Respondent’s past history of violations involving ribs and roofs was considered by Law in
recommending a special assessment.” Id. at 3090.
Regarding Citation Nos. 8432126 and 8432129, the inspector again testified that he
recommended special assessments due to the operator’s history of violations. Id. at 3092 (“Law
had again recommended a special assessment because . . . of Respondent’s past violation
history.”); 3096 (“Law had recommended a special assessment for essentially the same reasons,
number of previous citations/violations that existed for the other citations testified to.”).
The Judge may evaluate the evidence in the record and make credibility determinations.
Here, the Judge found that, based on the MSHA inspector’s testimony, the operator’s history was
significant. AmCoal presents no basis for overturning the Judge’s credibility determinations.10
As to the safeguard violation, the Commission majority instructed the Judge on remand to
consider the evidence and make a finding as to the history of violations pertaining to the
safeguard violation. 38 FMSHRC at 1997-98.11 On remand, the Judge found that AmCoal had 19
previous violations in the preceding 15 months involving the general safeguard standard (30
C.F.R. § 75.1403). As previously discussed, the Judge determined that the mine’s overall history
of violations was significant. 38 FMSHRC at 2620 & n.10.12
AmCoal contends that the Judge failed to make a finding as to the history of violations
pertaining to the specific safeguard notice at issue in this case. First, “[t]he Commission has
previously held that the references in section 110(i) to an ‘operator’s history of previous
violations’ refers to the operator’s general history of previous violations, not just to violations of
a kind similar to the one giving rise to the penalty assessment.” Jim Walter Res., Inc., 28
FMSHRC 983, 995 (Dec. 2006). Hence, we conclude that the Judge appropriately considered the
operator’s history of 19 safeguard violations here.
Even if the Judge failed to explicitly make a quantitative finding on AmCoal’s history of
this type of safeguard violation, any error was harmless. The violation involved a ram car
striking a miner standing on the back side of a curtain. 38 FMSHRC at 2621. The Judge
10

A judge’s credibility determinations are entitled to great weight and may not be
overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992);
Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981).
11

In the Commission’s initial decision in this case, Commissioner Jordan affirmed the
$3,800 penalty for the safeguard violation, stating that the Judge’s single omission in not making
a finding on the history of violations criterion did not constitute an abuse of discretion. 38
FMSHRC at 2004.
12

Our colleagues insist that a mine operator’s history of violations must be considered
against the histories of other coal operators in the mining industry. Slip op. at 32. We find no
support for such a proposition in the text of the Mine Act, in the legislative history of the law, or
in Commission precedent.

40 FMSHRC Page 1022

otherwise affirmed the Secretary’s proposed findings, particularly moderate negligence and
serious gravity, and assigned greater weight to the high level of gravity in his penalty
determination. Id. at 2622. He further noted that this safeguard notice violation involved one of
the ten “rules to live by” and was S&S. Id. at 2621. Thus, based on the record evidence and his
findings on the other penalty criteria, we conclude that the Judge adequately substantiated his
penalty assessment for the safeguard violation and hence did not abuse his discretion in assessing
a penalty of $3,800.
III.
Conclusion
The Judge did not abuse his discretion in assessing the penalties for these five S&S
violations. He made no legal error, and his determinations regarding the section 110(i) penalty
criteria are supported by substantial evidence. For the foregoing reasons, we would affirm the
Judge’s penalty assessments.

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

40 FMSHRC Page 1023

Acting Chairman Althen and Commissioner Young, in favor of vacating and remanding:
For the reasons set forth below, the penalties issued by the Judge in this case are
arbitrary, capricious, and excessive. We would therefore vacate and remand.
The Mine Act identifies six specific penalty criteria for use by both the Mine Safety and
Health Administration (“MSHA”) in proposing and the Commission in assessing penalties. The
Act does not identify guidelines for setting penalties or require either agency to adopt a
formulaic system for the application and weighing of the criteria. However, it was inevitable that
one or both agencies would do so to avoid the appearance of arbitrary assessments. Significantly
disparate penalties for similarly situated operators charged with similar violations would be all
but inevitable without some uniform framework.
Faced with this dilemma, MSHA developed a point system to apply to its penalty
assessments in most cases (“regular” assessments). That regular assessment system provides a
reasonable measure of uniformity and predictability to assessments.
MSHA has also promulgated a regulation pursuant to which it issues significantly higher
assessments to deter certain types of violative activity. These are “special” assessments.
The difference between the procedures for making and the reasons for imposing regular
versus special assessments may, in some cases (including this one) result in the adoption of
arbitrarily enhanced penalties.
BACKGROUND
I.

Assessments

This case involves five citations. One of the citations, Citation No. 8432052, was for a
safeguard violation. The other four citations alleged violations of 30 C.F.R. § 75.202(a). For
convenience, the discussion in this opinion deals exclusively with the four violations of section
75.202(a) and does not consider the separate safeguard violation, a relatively low-dollar
violation.
A.

Regular Assessments

Recognizing the need for systematic guidance for proposing penalties to provide for
relative uniformity in penalty assessments, MSHA acted. Through notice and comment
rulemaking, MSHA implemented a formula for penalizing typical citations1 through the
1

Use of the phrase “typical citations” does not suggest acceptance of any violation of a
mandatory safety standard. It reflects only that all involved in the mining industry know that the
rigorous and frequent inspection of mines by hundreds of inspectors for violations of detailed
and complex mandatory safety standards in a constantly changing mining environment results in
(continued…)

40 FMSHRC Page 1024

“regular” point system, which assigns points for the penalty criteria related to the size of the
operator, frequency of violations, negligence, and gravity depending upon where an operator and
the violation fall along continuums of the frequency of violations, negligence, and gravity. The
points are added and converted into a penalty assessment according to a penalty point conversion
table. 30 C.F.R. § 100.3(g) Table XIV.
The Commission has never sought to impose a regular or uniform system to guide Judges
toward fair and consistent assessment of penalties. Instead, the Commission has long recognized
the utility of MSHA’s regular point system to a fair and systematic application of the penalty
criteria. It is therefore now axiomatic that if a Judge imposes penalties that substantially diverge
from the penalties proposed by MSHA using the regular point system, the Judge must explain the
reason for such divergence based on the penalty criteria. See, e.g., Sellersburg Stone Co., 5
FMSHRC 287, 293 (March 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). In Sellersburg, the
Commission stated that when a Judge imposes a penalty that substantially diverges from the
originally proposed penalty, the Judge must explain the bases for such penalty to ensure
credibility and avoid the appearance of arbitrariness.
The Commission has repeatedly reaffirmed the Sellersburg instruction. See, e.g., Unique
Electric, 20 FMSHRC 1119, 1123 & n.4 (Oct. 1998); Dolese Bros. Co., 16 FMSHRC 689, 695
(Apr. 1994); Hubb Corp., 22 FMSHRC 606, 612 (May 2000); Cantera Green, 22 FMSHRC 616,
622-623 (May 2000); Douglas R. Rushford Trucking, 22 FMSHRC 598, 601 (May 2000);
Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008); Performance Coal Co., 35 FMSHRC
2321 (Aug. 2013); Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3104 (Dec. 2014); Newmont
USA Limited, 37 FMSHRC 499, 506 n.8 (Mar. 2015).2
The Commission requires such explanations even when the Judge has considered and
made findings on all penalty criteria:
Here, the Judge considered and made findings on all six section
110(i) factors and assessed a penalty that was 23% below that
1

(… continued)
yearly issuance of tens of thousands of citations. For example, in calendar year 2017, MSHA
issued 104,792 citations. https://www.msha.gov/data-reports/statistics/mine-safety-and-healthglance.
2

In enacting the Mine Act, Congress recognized the benefit of the regular point system
implemented under the Coal Act by MSHA’s predecessor, the Mine Enforcement Safety
Administration (“MESA”), describing MESA as having “adopted a schedule or gradation of
violations to provide consistency in imposing penalties under the Coal Act. The committee
recognizes that such a schedule will be equally applicable to situations in noncoal mining and
should allay unwarranted misapprehensions by operators of excessively heavy fines.” H.R. Rep.
No. 95-312, 95th Cong., 1st Sess. 20, reprinted in Senate Subcomm. on Labor, Comm. on
Human Res., 95th Cong., Legislative History of the Federal Mine Safety and Health Act of 1977,
at 357, 376 (1978).

40 FMSHRC Page 1025

proposed by the Secretary. However, the Judge did not offer any
explanation for the divergence, for instance, by explaining whether
he gave special weight to various criteria, and thus failed to
provide the basis for meaningful review of the penalty by the
Commission. . . . Accordingly, we remand the penalty associated
with Citation No. 6685833 to the Judge for further explanation
consistent with this decision.
Hidden Splendor, 36 FMSHRC at 3104 (citation omitted).
A Judge need not explain insubstantial variances due to the Judge’s evaluation of the case
or adjustments in penalty criteria findings such as minor adjustment of a violation on the
continuums of negligence and gravity. However, if the Judge imposes a penalty that is
substantially higher or lower than the penalty assessed under the regular point system, the Judge
must provide a sufficient justification based upon his/her findings of fact related to penalty
criteria. The Commission has never defined “substantially,” but it has consistently explained the
reason for the Sellersburg requirement, stating the first time this case was before us that “[t]he
Commission’s reason for requiring an explanation for a substantial divergence between the
Secretary’s proposed penalty and a Judge’s assessed penalty is to maintain the integrity of the
assessment process.” American Coal Co., 38 FMSHRC 1987, 1994 (Aug. 2016).3
Of course, penalty assessments still will vary and two Judges are unlikely to assign an
identical penalty even when cases involve similarly situated operators found liable for violations
of the same standard and with similar gravity, negligence, and other penalty criteria. However, a
decent respect for fairness and regularity in a penalty system suggests that the penalties not be
grossly disparate. The Sellersburg principle seeks that objective.
B.

Special Assessments

Separately from the regular point system, MSHA reserved a discretionary right to
propose substantially higher penalties in individual cases through a “special assessment” process.
30 C.F.R. § 100.5. MSHA did not propose or adopt through rulemaking any formula for

3

The requirement for an explanation of a substantial divergence from a penalty assessed
under the regular point system at section 100.3 is not an incursion into the Judge’s authority or a
grant of deference to MSHA. It is recognition of the importance of the regular point system for
essentially uniform initial assessments based upon standard criteria, thereby advancing fair and
uniform penalty assessments across the tens of thousands of assessments made annually. The
regular point system constitutes a reasonable effort to normalize penalties across operators and
violations. A regularly assessed penalty is not a “baseline” to be adjusted upwards or downwards
but it does provide a vital reference point to assist the Commission in achieving consistent, nonarbitrary assessments.

40 FMSHRC Page 1026

computing special assessments and does not have published guidelines for when it would make
special assessments.4
On the face of 30 C.F.R. 100.5, a special assessment is entirely discretionary and
arbitrary. Originally, MSHA put some meat on the bones of special assessments through a list of
eight specific categories of violations reviewed for possible special assessments.5 In 2007,
MSHA scraped the meat from the bones revising the regulation to simply say that it “may elect
to waive the regular assessment under § 100.3 if it determines that conditions warrant a special
assessment.” 30 C.F.R. § 100.5. The regulation provides that “MSHA may elect to waive the
regular assessment under §100.3 it determines that conditions warrant a special assessment.”
30 C.F.R. § 100.5. The regulation further provides that all findings will be in a narrative form. 30
C.F.R. § 100.5(b). It does not define or describe violations that warrant a special assessment.
Typically, the narrative findings for special assessments are brief and conclusory. The
hearing record will also include a “Special Assessment Narrative Form,” which reflects a
4

MSHA does not specially assess only those violations that are especially egregious due
to negligence or gravity. Recently, the Secretary settled five citations in Docket No. LAKE
2011-12. MSHA specially assessed the citations because they were violations of “Rules to Live
By” rather than for necessarily indicating a high level of negligence. Although specially
assessed, three of the citations were for moderate negligence. The Secretary agreed to settle
based on the negligence found by the inspector. The settlement reduced the total penalties from
$87,300 to $28,500. A special assessment, therefore, does not necessarily arise from an
allegation of a high level of misconduct on the part of the operator, and the Secretary in a prior
similar case agreed to a substantially reduced penalty based upon findings of moderate
negligence. This stands in sharp contrast to the Judge’s arbitrary determination in this case to
assess penalties doubling or quadrupling a special assessment for the violation as found by him.
5

Prior to April 2007, MSHA’s regulations listed eight specific categories of violations
reviewed for possible special assessments. The specific types of violations were:
(1) Violations involving fatalities and serious injuries;
(2) Unwarrantable failure to comply with mandatory health and
safety standards;
(3) Operation of a mine in the face of a closure order;
(4) Failure to permit an authorized representative of the Secretary
to perform an inspection or investigation;
(5) Violations for which individuals are personally liable under
Section 110(c) of the Act;
(6) Violations involving an imminent danger;
(7) Discrimination violations under Section 105(c) of the Act; and
(8) Violations involving an extraordinarily high degree of
negligence or gravity or other unique aggravating circumstances.
30 C.F.R. § 100.5(a) (2006); 72 Fed. Reg. 13,592, 13,621-22 (Mar. 22, 2007).

40 FMSHRC Page 1027

calculation of both a regular assessment and the special assessment. The regulation does require
MSHA to base the proposed penalty upon the six penalty criteria. Id.
Although section 100.5 does not describe a methodology or system for special
assessments, MSHA informally and without public notice and comment adopted internal
“MSHA Special Assessment Procedures.”6 Regardless of the reason for a special assessment, the
process for determining the amount of the assessment follows the internally prescribed MSHA
formula.
The system does not vary according to the standard violated. The starting point for a
special assessment is the regularly assessed point value. Then, MSHA adds a specified number
of penalty points to negligence and gravity based upon identified conditions of the violation
including, e.g., whether the violation contributed to an accident, involved reckless disregard, or
was the result of an unwarrantable failure. The Special Assessment procedures do not adjust the
penalty for the size of the business, the frequency of violations, or the frequency of repeat
violations. MSHA continues to assign points for those criteria on the regular point formula.
Of course, therefore, the reason for which an inspector may recommend a special
assessment might not relate in any way to the actual special assessment. For example, in this
case, the inspector testified he recommended the violations for special assessment based upon the
operator’s history of violations. Tr. 243. However, history of violations was not an additive
component to the special penalty assessment; thus, the operator’s history of violations played no
role in the calculation of the “special” or “higher than regular” assessment. Instead, MSHA
added a substantial number of points for gravity and negligence even though it did not change
the gravity or negligence evaluations.7
Having added penalty points to the violations, MSHA computes the special (higher)
assessment through reference to the regular Penalty Conversion Table at section 100.3(g). Under
the internal procedures, MSHA may then add or subtract up to 25% from the table result in
assessing a final penalty. A special assessment, therefore, results from a decision to increase an
assessment substantially through the addition of penalty points, principally for gravity and
negligence, according to a fixed formula, followed by a discretionary decision whether to raise or
to lower the calculated assessment by up to 25%.
A decision by MSHA to assess specially may be viewed as somewhat analogous to a
decision by a Judge to diverge substantially from a proposed regularly assessed penalty. In
making a special assessment, the Secretary asserts a need for a substantially higher penalty.
When MSHA issues a special assessment, MSHA must support its request with substantial
6

The procedures are Attachment A to this opinion. MSHA’s website
(https://www.msha.gov) also sets out the procedures.
7

Ironically, given that MSHA based the greatly increased assessment upon the addition
of penalty points to negligence and gravity, the Judge actually reduced the negligence on all of
the violations and the gravity on one of the violations.

40 FMSHRC Page 1028

evidence relating the need for the proposed penalty to the penalty criteria. Indeed, when this
very case was previously before us, the Commission held that the Secretary “bear[s] the
‘burden’ before the Commission of providing evidence sufficient in the Judge’s
discretionary opinion to support the proposed assessment under the penalty criteria. When a
violation is specially assessed, that obligation may be considerable.” 38 FMSHRC at 1993.
In light of the entirely subjective, discretionary decision to assess specially in the first
place and the special assessment procedures themselves, special assessments do not seek to
assess similar operators a relatively similar penalty for similar violations. A special assessment
instead constitutes a determination by MSHA to impose a penalty substantially higher than the
regular penalty in a specific case. It is an especially punitive exaction for purposes of deterrence.
Unlike a regular assessment, the special assessment process, applied through informal
procedures upon which MSHA has not allowed public comment, does not assure the integrity of
administrative processes. Indeed, the special assessment system may result in the very danger
feared in Sellersburg — namely, “the credibility of the administrative scheme providing for the
increase or lowering of penalties after contest may be jeopardized by an appearance of
arbitrariness.” Sellersburg, 5 FMSHRC 293. The danger of a special assessment against which
Judges must guard, therefore, is that the penalty assessed by MSHA, already diverging from the
system designed to avoid arbitrariness, may not reflect proper consideration of the penalty
criteria.
In turn, a Judge may not simply pick a penalty amount out of the air but must exercise
prudence to assess a penalty that, based upon the evidence, is consistent with a fair penalty
assessment program. Therefore, when MSHA asserts the need for a special assessment, Judges
must demand the presentation of the “considerable evidence” necessary for an assessment that
does not track with the consistent penalization of violations based upon the penalty criteria as
furthered by the regular penalty system.
C.

Commission Review of Assessments

In Sellersburg, the Commission recognized that a Judge’s discretion in assessing
penalties is wide but not unbounded. The assessed penalty must reflect proper consideration of
the statutory penalty criteria. 5 FMSHRC at 290-294. Substantial evidence must support the
assessment, and the assessment must be consistent with the statutory penalty criteria. Pyro
Mining Co., 6 FMSHRC 2089, 2091 (Sept. 1984). Although all the penalty criteria are important,
emphasis ordinarily rests with the negligence and gravity criteria. Spartan Mining, 30 FMSHRC
at 724-25. When a Judge fails to give proper weight to penalty criteria or fails to reflect proper
consideration of the criteria, the Commission may set aside the assessed penalty and make the
final assessment. Westmoreland Coal Co., 4 FMSHRC 491, 492 (Apr. 1986).
An additional principle bears upon the consideration of this case. Courts of Appeals have
rebuked the Commission for an absence of consistency in decision-making. In Noranda Alumina,
L.L.C. v. Perez, 841 F.3d 661 (5th Cir. 2016), and Lone Mountain Processing, Inc. v. Sec’y of
Labor, 709 F.3d 1161(D.C. Cir. 2013), federal circuit courts found that inconsistency in the

40 FMSHRC Page 1029

Commission’s application of principles for evaluation of motions to reopen required vacature of
the Commissions’ denial of such motions.
Although there are obvious differences between motions to reopen and penalty
assessments, the Commission expects Judges to exercise consistency in their penalty
assessments. Otherwise, Judges are just picking numbers out of the air. Indeed, such consistency
is the raison d'être for the Commission’s Sellersburg principle. The Commission’s recognition of
the regular point system as providing a measure of consistency across different operators is a
good but not final assurance of the regularity and predictability inherent in a fair penalty system.
If, on the face of an assessment, a Judge has applied one or more penalty criteria in a particularly
different or inconsistent fashion from other cases, the deviation is a matter of concern and may
dictate vacature of the inconsistent penalty as arbitrary and capricious.
In reviewing a penalty assessment, the Commission determines whether substantial
evidence justifies the penalty and whether the penalty is consistent with the statutory penalty
criteria. Pyro, 6 FMSHRC at 2091. When the Commission, using this standard, concludes that
the penalties assessed do not properly reflect the penalty criteria, it may reassess penalties as
warranted by the record. See, e.g., United States Steel Corp., 6 FMSHRC 1423, 1431-32, 1434
(June 1984).
II.

The Special Assessments in This Case

This case demonstrates MSHA’s application of its procedures for special assessments.
Using the largest monetary penalty (Citation No. 8428508) as an example, and recalling that the
inspector cited frequency of violations rather than negligence or gravity as the reason for the
special assessment, the following table sets forth MSHA’s addition of points to the regular point
assessment for gravity and negligence in order to arrive at the 2011 special assessment under the
Part 100 regular and the MSHA Special Assessment Procedures.
Penalty Factor
Adversely Affect Staying in
Business
Mine Size
Controller Size
Frequency
Repeat Frequency
Gravity (Likelihood)
Gravity (Severity)
Gravity (# Persons Affected)
Negligence
Imminent Danger
Unwarrantable Failure
Defiance of Order
Abatement

Calculation of what
MSHA regular assessment
would have been
No affect

MSHA special assessment

15
10
10
8
30
10
1
35
0
0
0
0

15
10
10
8
35 (added 5)
20 (added 10)
2 (added 1)
40 (added 5)
0
0
0
-2 (subtracted 2)

40 FMSHRC Page 1030

No affect

Additional penalty points
Total Points
Resultant Penalty from Table XIV
Good Faith Abatement
Discretionary increase/reduction
Final Penalty

119
$12,563
$1,256
$11,307

19
138
$53,858
—
-25% for this violation
$40,300

As demonstrated, MSHA used its regular point system and then added 16 points to
gravity and 5 points to negligence pursuant to its special assessment procedures. MSHA
subtracted 2 penalty points for abatement and granted a discretionary 25% reduction in the
calculated penalty. In another case, it might have increased the penalty by 25% to a total of
$67,322.
After the hearing, the Judge reduced the levels of gravity to an injury resulting in lost
work days or restricted duty and negligence to “moderate.” Such lower levels would have
reduced the points accorded those factors in an MSHA regular assessment. Thus, MSHA’s
special assessment of the penalty turns out to have added 20 negligence points to the level of
negligence over the regular point schedule and added 16 points for gravity over the regular point
schedule — a total of 36 points. Therefore, subtracting the 2 points for abatement, MSHA’s
calculation of the special assessment applied 34 penalty points above the regular section 100.3point schedule for the violation as eventually determined by the Judge. As a result, MSHA
assessed an amount of $40,300 for a violation of a nature as found by the Judge that it would
have regularly assessed at $2,282. This $38,000 increase amounts to about a 1,750 percent higher
penalty assessment than regular assessment. Indeed, as shown a few pages below, an MSHA
special assessment for the violation as found by the Judge would have been $5,831.
The penalties for the other three citations reflect similar increases. Of course, MSHA
based all additions of penalty points unrelated to the history of violations.
Citation No.
8432118
8432126
8432129

Penalty under regular assessment
$2,678
$2,282
$2,282

Special Assessment
$9,100
$7,7008
$7,7008

As with Citation No. 8428508, the Judge’s findings, had they been reflected in an MSHA
regular assessment, would have resulted in markedly different assessments for these citations.
For Citation Nos. 8432126 and 8432129, the regular penalty for the violations as found by the
Judge would have been $1,026 and a special assessment would have been $3,493. For Citation
No. 8432118, the regular penalty for the violations as found by the Judge would have been
$1,023 and the special assessment would have been $3,074.9
8

MSHA did not reduce these penalties by 25%.

9

The lower dollar amount results from giving the 25% reduction that MSHA gave for
Citation 8432118 but not for the other citations.

40 FMSHRC Page 1031

III.

The Judge’s Decisions
A.

The Initial Decision

The Judge affirmed all the violations and all S&S findings. 35 FMSHRC 3077,
3099-3122 (Sept. 2013) (ALJ). The Judge reduced the level of negligence alleged by the
Secretary for all four violations. He reduced the level of gravity for one citation. Id. at
3108-09, 3114-15, 3118-19, 3122. Specifically, he made the following changes:
1.
Citation No. 8428508 – The Judge reduced the gravity from an expectation of a
permanently disabling injury to lost or reduced workdays. He reduced negligence from high to
moderate.
2.
Citation No. 8432118 – The Judge reduced negligence from moderate to low. He
sustained a gravity determination of reasonable likelihood of lost workdays.
Citation No. 8432126 – The Judge reduced negligence from moderate to low. He
3.
sustained a gravity determination of reasonable likelihood of lost workdays.
4.
Citation No. 8432129 – The Judge reduced negligence from moderate to low. He
sustained a gravity determination of reasonable likelihood of lost workdays.
The Judge discussed negligence and gravity for each violation in the decision.
Before assessing penalties for specific citations, the Judge considered the arguments of
the parties regarding the imposition of penalties. Id. at 3109-10. According to the Judge, the
Secretary’s argument for specially assessed penalties was that the Judge should take into account
a violation’s level of negligence, possible S&S character, and the history of violations. In turn,
the Judge stated that the operator’s argument was that the changes to section 100.5 in 2007 made
the regulation vague, ambiguous, and undeserving of deference, and that the Secretary had failed
to prove “particularly serious and egregious violations” or “other aggravating circumstances”
justifying enhanced penalties. Id. Although the Judge identified the penalty criteria, he did not
make any findings related to the ability of the operator to stay in business. Further, he never
mentioned the size of the operator.
In the next section of his penalty discussion, the Judge imposed specific penalties for
each citation. He started with Citation No. 8428508. In a brief discussion, he cited the
Commission case law requiring a Judge to explain a substantial deviation from a proposed
assessment, demonstrating an awareness of the limits of his discretion. He then found that he
would deviate substantially from the proposed assessment of $40,308 because he reduced gravity
to lost workdays or restricted duty and reduced negligence from high negligence to moderate
negligence. He imposed a penalty of $20,000.

40 FMSHRC Page 1032

The discussions of the penalties for the other three citations are identical except for
amount:
For the same reasons provided with respect to Citation No.
8428508, supra, the ALJ finds that, in light of Respondent’s
previous violations history and the requirements of pertinent case
law, significant penalties are appropriate.
However, as with Citation No. 8428508, a deviation from
the Secretary’s proposed penalty is warranted. Under Sec. v.
Performance Coal Co., that deviation must be explained. As
discussed supra, Respondent’s conduct was not, in this Court’s
opinion, the result of moderate negligence but only low
negligence.
Affirming the citation as issued with a modification of
negligence from moderate to low the ALJ finds the Secretary’s
proposed penalty should [be] reduced from $[proposed amount] to
$[assessed amount].10
Id. at 3115, 3119, 3122. Consequently, for each penalty, the Judge stated that the reasons are the
same as the reasons for Citation No. 8428508 and explicitly noted a duty to explain a substantial
variation from the MSHA assessed penalty.
B. The Decision on Remand
On remand, the Judge affirmed his prior penalty assessments. 38 FMSHRC 2612
(Oct. 2016) (ALJ). In a general discussion, he stated that the statutory penalty criteria guided
his penalty determinations and that he “emphasizes and clarifies” that he did not use
MSHA’s special assessments as a baseline for his assessments. Separately, the Judge stated
that he imposed the penalties “with no feelings of constraint imposed by the proposed
special assessments.” Id. He found a $20,000 penalty appropriate for Citation No. 8428508.
Apparently thinking that the Sellersburg requirement for an explanation of a substantial
variance applies with equal vigor and identical reasons to special assessments, the Judge
explained his divergence in accordance with the Sellersburg requirement.11 Although the Judge
10

For Citation No. 8432118, the reduction was from $9,100 to $7,200. For Citation No.
8432126, the reduction was from $7,700 to $6,100. For Citation No. 8432129, the reduction was
from $7,700 to $6,100.
11

The Judge stated that “[t]o the extent that there were any substantial deviations in this
Court’s penalty amounts that would require a Sellersburg explanation, this Court notes that, on
the one hand, it frequently disagreed with the Secretary’s negligence assessments.” Id. at 2617.

40 FMSHRC Page 1033

stated he did not use the initial special assessment as a baseline, it is not logically possible that
the initial penalty assessment did not strongly influence his assessment. Indeed, the Judge
explicitly stated that in lowering the penalty based on lowered gravity and negligence, “this
Court was persuaded that the penalty should be reduced (emphasis added).” Id. at 2619.
Therefore, the Judge expressly characterized his assessment as a “reduction” of MSHA’s special
assessment thereby contradicting his own assertion of independence.
After the general discussion, the Judge explained his assessment for each violation.
The Judge cited three reasons for his assessments in these discussions.12
First, for two of the citations — Citation Nos. 8432118 and 8432126 — the Judge
found that the penalties would not affect the operator’s ability to continue in business.
Therefore, he seemed to link the amount of the assessment to a finding that it would not
drive the operator out of business. Id. at 2619.
Second, for Citation Nos. 8428508, 8432118, and 8432126, the Judge cited the size
of the operator. In discussing Citation No. 8428508, the Judge specifically noted that the
operator’s production exceeded 6,000,000 tons and the controlling tonnage exceeded
29,000,000 tons. He found that “[t]he size of Am Coal’s operation would call for more than
a minimal fine as to all the citations at issue.” Id. at 2618.
The Judge did not mention either of these factors in his initial decision. The Judge
did not identify the operator’s ability to continue in business in his initial decision other than
to include it in a list of penalty criteria. In addition, the Judge did not mention the operator’s
size in his initial decision other than to include size in a list of penalty criteria. Nonetheless,
in his remand decision, the Judge asserted that he gave those two factors “great weight.”
Id. at 2617.
Third, as in his initial decision, the Judge cited the history of violations as a factor in
his penalty determination. He expressly rejected any argument that the operator’s violations
history was “not extraordinary or extreme” thereby warranting lesser penalties. Id. at 2618
The Judge did not opine upon whether he viewed the history of violations factor in
an absolute sense — that is, the raw number of violations regardless of total production, or
took into account the frequency of violations relative to the size of the mine and the tons of
coal produced. Importantly, in applying the history of violations factor, the Judge did not
correlate his weighing of that factor with MSHA’s exhibit showing the operator was below
the midpoints for assignment of penalty points regarding both frequency of violations (10
points out of a possible 25) and frequency of repeat violations (6 points out of a possible
20).
12

Not every reason appears in every specific discussion. However, we agree with the
Secretary that because the citations were all for violations of the same standard, were
assessed with the same gravity determination, and three of the four were assessed as low
negligence, the Judge meant to apply the same reasons to all citations.

40 FMSHRC Page 1034

DISCUSSION
For the reasons set forth below, we would find the penalties imposed by the Judge
arbitrary and capricious. This case presents a remarkably clear opportunity to discuss a welldocumented phenomenon of which Commission Judges must be aware and against which
they must gird themselves — an “anchoring” bias.13 “Anchoring” is the term used for the
common human bias — a cognitive bias — in which a person making a decision relies too
heavily on the first piece of information of which he/she becomes aware.
Cognitive scientists and behavioral economists have long understood and described the
anchoring effect. See Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty:
Heuristics and Biases, 185 Science 1124-31 (Sept. 1974). However, this is not the province only
of scientists and specialists. Common sense teaches that the starting, guidelines-departure point
matters. When people are given an initial numerical reference, even if it is random, they tend to
“anchor” their subsequent judgments — as to someone’s age, a house’s worth, how many cans of
soup to buy, or even what sentence a defendant deserves — to the initial number given. When
the number is not random but arises from a supposed “special formula,” the propensity for
swaying a decision must be significantly greater.
Secondly, this Judge’s decision demonstrates a misunderstanding that the Sellersburg
principle applies rigorously to special assessments. Such misunderstanding undoubtedly
influenced the Judge’s penalty decision and, in turn, worsened cognitive bias arising from
MSHA’s initial special assessment.
Separately from these important considerations, the penalties assessed by the Judge
are arbitrary and capricious based upon other errors and inconsistencies in his decision.
Upon remand, the Judge relied upon a penalty criterion irrelevant to the establishing the
amount of a penalty — a criterion not mentioned at all by the Judge in the initial decision
and which does not support his remand decision, and an overemphasis upon one penalty
criterion without weighing its importance to the specific operator before him. Moreover, his
penalty assessment is dramatically inconsistent with his assessment in a very similar (in fact,
virtually identical) case. These errors, along with self-evident cognitive bias and
misapplication of the Sellersburg principle, led the Judge to impose penalties in excess of
reasonable amounts.
The following table demonstrates the effect of anchoring, the undue application of
the Sellersburg principle in the context of a special assessment, and the excessiveness of the
penalties flowing from the Judge’s erroneous application of the penalty criteria.14 The table
is a strong indicator of excess. Even if, standing alone, it does not prove arbitrariness, it
serves to illustrate tellingly the discussion that follows.

13

See generally Section I, infra.

14

The data for the table are set forth in Appendices Attachment B to this opinion.

40 FMSHRC Page 1035

Citation
No.

Penalty that would have
been assessed in 2011
under the regular point
system for violations as
found by the ALJ

Penalty that would
have been assessed in
2011 under the MSHA
special assessment
system for violations
as found by the ALJ

ALJ’s Final
Assessment

8428508

$2,282

$5,831

$20,000

8432118

$1,003

$3,074

$7,200

8432126

$1,026

$3,493

$6,100

8432129

$1,026

$3,493

$6,100

Safeguard

$1,412

$1,412

$3,800

Total

$6,769

$18,328

$43,200

The table illustrates that the Judge imposed a penalty of $20,000 for the moderate
negligence, lost workdays/restricted duty violation he found in Citation No. 8128508. The
regular assessment for the violation would have been $2,282. Using MSHA’s special
assessment procedures the penalty would have been $5,831. This means the Judge’s
assessment was nearly 10 times higher than the ordinary regular assessment and nearly four
times higher than the special assessment MSHA would have sought for the violation as
found by the Judge. Similar changes apply to the assessments of the other violations.
Therefore, recognizing that the regular and special assessments are not outcome
determinative, we nonetheless do not find any sufficient explanation warranting penalties
exceeding a regular assessment by approximately 900% and a special assessment by 350%.
I.

The Anchoring Effect of Special Assessments

Clearly, the recognized anchoring phenomenon is relevant to special assessments. If
MSHA proposes an assessment of $50,000 based upon a “system” developed by it for special
assessments, it is virtually inevitable that such assessment exercises an effect, at least a “tug” in
the words of one court, upon the final assessment.
Courts have long recognized this intuitive cognitive behavior. Circuit courts often refer to
the anchoring effect in considering sentencing guidelines. See, e.g., United States v. Rushton, 738
F.3d 854, 861 (7th Cir. 2013). In Rushton, the court held that:
The calculation [of the sentencing range] is complicated,
mandatory, and done first; thus it is likely to exert a not wholly
conscious tug on the judge when, after having determined the
guidelines range, he is deciding what sentence to give, guided by
the sentencing factors in 18 U.S.C. § 3553(a). See, e.g., Stephanos
Bibas, “Plea Bargaining Outside the Shadow of Trial,” 117 Harv.
L.Rev. 2463, 2515–19 (2004); Birte Englich & Thomas

40 FMSHRC Page 1036

Mussweiler, “Sentencing Under Uncertainty: Anchoring Effects in
the Courtroom,” 31 J. Applied Soc. Psychol. 1535 (2001)
Id.
The Fourth Circuit also set forth the effect of anchoring through a listing of references:
Hon. Mark W. Bennett, Confronting Cognitive “Anchoring Effect”
and “Blind Spot” Biases in Federal Sentencing: A Modest Solution
for Reforming a Fundamental Flaw, 104 J.Crim. L. & Criminology
489, 492 (2014) (“[I]t is critically important for sentencing judges,
probation officers who prepare presentence reports, and practicing
lawyers to understand the potential robust and powerful anchoring
effect of advisory Guidelines and the effect of the ‘bias blind spot’
in determining just sentences.”); Hon. Jed S. Rakoff, Why the
Federal Sentencing Guidelines Should be Scrapped, 26 Fed. Sent'g
Rep. 6, 2013 WL 8171733, at *8 (Oct. 1, 2013) (“[T]he very first
thing a judge is still required to do at sentencing is to calculate the
Guidelines range, and that creates a kind of psychological
presumption from which most judges are hesitant to deviate too
far.”).
United States v. Parral-Dominguez, 794 F.3d 440, 448 n.9 (4th Cir. 2015). A Judge on
the Eleventh Circuit explained anchoring as follows:
Not only have district courts now become used to relying
on them, but the Guidelines inevitably have a considerable
anchoring effect on a district court's analysis:
Anchoring is a strategy used to simplify complex
tasks, in which numeric judgments are assimilated
to a previously considered standard. When asked to
make a judgment, decision-makers take an initial
starting value (i.e., the anchor) and then adjust it up
or down. Studies underscore the significance of that
initial anchor; judgments tend to be strongly biased
in its direction.
Nancy Gertner, What Yogi Berra Teaches About Post–Booker
Sentencing, 115 Yale L.J. Pocket Part 127 (2006),
http://www.thepocketpart. org/2006/07/gertner.html (quotations
omitted).

40 FMSHRC Page 1037

United States v. Docampo, 573 F.3d 1091, 1105 n.5 (11th Cir. 2009) (Barkett, J., concurring, in
part and dissenting, in part).15
Of course, the anchoring phenomenon is not itself a sufficient reason for reversal lest all
penalty assessments become subject to reversal based on a cognitive bias challenge. However, it
would be foolish to suggest Commission Judges are somehow immune to the anchoring
phenomenon. Research suggests otherwise. An experiment conducted on 167 federal magistrate
judges demonstrated that experienced court officers may be affected. Emily L. Forster,
Anchoring and the Expert Witness Testimony: Do Countervailing Forces Offset Anchoring
Effects of Expert Witness Testimony?, 77 Tenn. L. Rev. 623, 635 (2010).
In a sense, the Commission has recognized a regular penalty assessment by MSHA as an
authorized “anchoring” assessment because a regular assessment reflects application of a
uniform and regularized system to an assessment. It is not binding, but a substantial change
requires an explanation in order to assure the integrity of the penalty process. On the other hand,
special assessments issued by MSHA flow from formulized calculations largely, and sometimes
wholly, unrelated to the violation and the untethered discretion to move the assessment within a
range for 25 percent higher or lower. Nonetheless, special assessments undoubtedly create an
anchoring effect resulting in psychological resistance to a great deviation from the special
assessment. Next, we turn to the impact of Sellersburg when applied to special assessments in
general and in this case in particular.
II.

Sellersburg in the Context of Special Assessments

MSHA, and MESA before it, developed the regular point system to avoid the
arbitrariness of penalties likely to arise from assessing penalties without any system
providing for some level of uniformity. Application of the Sellersburg principle to regularly
assessed penalties works to avoid an appearance of arbitrariness in penalty assessments.
Because regular assessments serve the purpose of consistency and uniformity, it is important
for the parties and the Commission to know the reasons for a substantial variance from a
regular assessment.
Special assessments, on the other hand, do not serve a purpose of avoiding
arbitrariness. They are arbitrary by their very nature because they are not moored to
predictive norms and values, as regular assessments are. MSHA has not promulgated any
15

The Journal piece quoted by Judge Barkett is one of many articles confirming the
importance of anchoring in judicial proceedings. See, e.g., Sarah M.R. Cravens, Judging
Discretion: Contexts for Understanding the Role of Judgment, 64 U. Miami L. Rev. 947, 962
(2010); Jelani Jefferson Exum, The More Things Change: A Psychological Case Against
Allowing the Federal Sentencing Guidelines to Stay the Same in Light of Gall, Kimbrough, and
New Understandings of Reasonableness Review, 58 Cath. U.L. Rev. 115, 125 (2008); Chris
Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Inside the Judicial Mind, 86 Cornell L.
Rev. 777, 787–94 (2001); Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the
Exercise of Discretion, 117 Yale L.J. 1420, 1496 (2008).

40 FMSHRC Page 1038

rules defining when it will make a special assessment.16 In turn, the calculation of the proposed
special penalty by MSHA is based largely on arbitrary increases in points and then a wholly
subjective decision to increase or reduce the total calculated penalty. Further, as here, the points
may be added for penalty criteria (negligence and gravity) when the ostensible reason for the
special assessment was frequency of violation. Such a calculation does not have a rational
foundation. A special assessment provides no benefit for assurance uniformity or integrity of the
penalty system. Consequently, when MSHA makes a special assessment, it is uniquely the task
for the Judge to make an independent judgment based upon the record. The Judge may not pull
the penalty out of the air as a perceived compromise between a regular point assessment and an
overstated special assessment. The Judge must explain the penalty based on the penalty criteria
in a manner that shows thoughtful consistency of the penalty amount with the criteria and a
proper penalty under those criteria.
Thus, the Secretary must produce the considerable evidence necessary to justify an
assessment substantially above a normal, regular assessment based on a claim of special
circumstances by MSHA. The Judge’s duty does not diminish the right of MSHA to make
special assessments and does not diminish the right and obligation of the Judge to assess a final
penalty. It simply recognizes that regularity of results is not a goal of special assessments and, as
MSHA itself recognizes, special assessments arise from factors MSHA believes warrant a
discretionary penalty that is inconsistent with the regular assessment process.
When MSHA decides to issue a special assessment the relevant issue is whether the
Secretary introduces a sufficient quality and quantity of evidence to justify the penalty he seeks.
Stated simply, on what basis does the Secretary justify a substantial heightening of penalties
from regular penalties promulgated after notice and comment rulemaking to bring relative
consistency to penalties? This is nothing more than requiring the Secretary to bear the burden of
establishing that the penalty is appropriate, as the Mine Act requires.
This does not mean that the Judge must use the regular point schedule as a starting point
when the Secretary makes a special assessment. It means the fundamental elements of a fair
assessment are critical. The Judge must apply all penalty criteria and must explain fully the basis
for a fair and reasoned penalty based as much as possible upon an objective application of the
penalty criteria.
In prior decisions, the Commission has not expressed clearly enough the distinction
between regular penalty assessments and special assessments. This case presents the opportunity
to clarify the distinction between applying Sellersburg to regular assessments versus special
assessments. Regular assessments follow a system intended to assure the integrity and fairness of
16

MSHA has issued various forms of informal guidance. None of these guides has been
subject to public comment, and none actually establishes any duties for MSHA. Indeed, the
guides themselves provide complete flexibility for MSHA to apply or not apply them in its
discretion. Some of the circumstances most likely to draw special assessments such as a fatality,
are predictable but not uniformly applied. Further, other special assessments, such as the
assessment in this case, are wholly unpredictable.

40 FMSHRC Page 1039

the penalty system. Special assessments result from a series of subjective decisions and thereby
give rise to the risk of an arbitrary system. While the special assessment process may be
designed to impose a heightened penalty to deter a particular type of conduct, there is no
methodology for the Commission to evaluate the quality of that determination against firm
criteria. Judges need not and should not view the decision to assess specially or the special
assessment itself as the product of a system developed for uniform assessment of fair
assessments. In the case of a special assessment, the Judge must weigh the evidence holistically
taking care to avoid any anchoring influence by the special assessment.17
III.

Errors in the Administrative Law Judge’s Assessment

From the foregoing discussion, it is obvious the Judge, in this case, faced a double
whammy. The special assessment had an anchoring effect upon his evaluation of the penalty. In
turn, his stated belief that the Sellersburg principle applied to the special assessment could only
intensify a predisposition not to stray too far from the special assessment. The penalty imposed
by the Judge undoubtedly is arbitrary and capricious.
A.

The reasons cited by the Judge for the penalties do not support the size of the
penalties.

The Judge does not provide a reasonable basis for the unusually high penalties for three
low negligence violations and one moderate negligence violation. As set forth above and as
pointed out in our earlier decision in this case, when a Judge assesses a penalty at an amount ten
times above the regular assessment and even four times above what a special assessment would
have been, the Judge faces a considerable burden in supporting the penalty. On remand, the
Judge supported his original assessment through reference to three penalty criteria: the penalties
would not affect the operator’s ability to stay in business, the size of the operator, and the
frequency of violations. These findings do not support his assessment.
1.

Affect upon Continuation in Business

It is not entirely clear that the Judge actually meant to “support” the assessment by
mentioning, for the first time on remand, the criterion that the penalty would not interfere
with the continuation of the operator’s business. Regardless, the criterion that a penalty not
put an operator out of business with consequent job losses is not a criterion for enhancing a
penalty substantially. It is a governing or limiting factor — a potential limitation upon a
penalty assessment. The Judge must consider whether a penalty would affect an operator’s
17

The reader may find an implication in this opinion that regular assessments, in fact,
should constitute a form of anchor whereas special assessments may not. That is true in a general
sense. Regular assessments further an institutional and legal purpose of fairness and uniformity.
For that reason, a reason different from cognitive bias, a regular assessment should have weight
with Judges. However, a regular assessment is not outcome determinative. Obviously, changes in
findings on penalty criteria will cause changes and even when the Judge’s finding matches the
allegations of the claim, Judges must decide independently on a fair and appropriate penalty.

40 FMSHRC Page 1040

continuation in business with the resultant loss of jobs and community investment. The fact
that a given penalty will not crush an operator’s mining venture is not a basis for increasing
a penalty assessment without a direct relationship to the subtantive penalty criteria.
Certainly, for example, if a Judge agreed with every aspect of MSHA’s charge related to a
regular assessment, such agreement would not provide a basis for doubling or tripling a
penalty based on the premise that such extreme action would not drive the operator out of
business.
2.

Size of the Operator

The Judge did not even mention the operator’s size as a factor in his initial penalty
assessment. Upon remand, however, the Judge suddenly gave size and the ability to stay in
business “great weight.” 38 FMSHRC at 2617. In inserting this previously unmentioned criterion
into his assessment, the Judge does not deal with the fact that MSHA’s assessment already
factored into the assessment calculation the maximum number of penalty points for size. Of
course, size is size, so that by parity of reasoning if the size of this operator was a reason for such
abnormally high penalties, we must assume that the Judge would apply similar reasoning to all
large operators and assess grossly outsized penalties. Such a position simply is not sustainable
and, in any event, we will see below is not consistent with the Judge’s actions elsewhere.
3.

History of Violations

In this case, the inspector cited the operator’s violation frequency as the reason for a
special assessment. However, MSHA calculated the special assessment by instead arbitrarily
adding penalty points for negligence and gravity. There is no rational connection between the
decision to assess specially a violation due to the frequency of violations and an arbitrary
increase in the penalty based upon negligence and gravity. Here, MSHA simply applied the
arbitrary calculation of its formalized Special Assessment Procedures to a violation even though
MSHA did not assert any need for a special assessment based upon negligence or gravity.
However, even then, the Judge’s use of the history criterion is clearly erroneous.
Notably, under the regular point system, MSHA assigns 10 and 8 points respectively to the
history of violations and history of repeat violations categories. The maximum points in
those penalty categories are 25 and 20, respectively. Assessments of 10 and 8 points fall
below the midpoint for each range used in assessing repeat violations.
Therefore, in assessing the penalties, the Secretary did not place, nor would have
placed, any significant weight either under the regular or special assessment formula on
frequency of violations. The Secretary simply did not base the computation of the large
special assessment on the frequency of violations. At the hearing stage, the Secretary cited
the raw number of violations as a reason for special assessment. The Secretary argued and
Judge accepted that the simple raw numbers of violations, although below the midpoint for
frequency, required a much higher than expected penalty.
The Judge’s decision did not include any analysis of the actual meaning of the raw
numbers of violations to the application of frequency to the appropriate penalty and the

40 FMSHRC Page 1041

Secretary does not supply one on appeal. The Secretary states in his brief that the operator’s
production in 2010 was approximately 6,000,000 tons, accounting for approximately 2% of
the total of 337,594,564 tons of production from all underground coal mines in the United
States in 2010. S. Br. at 11-12. According to MSHA statistics, MSHA cited 2,901 violations
of section 75.202(a) at underground coal mines in calendar year 2010. Most Frequently
Cited Standards for 2010, https://arlweb.msha.gov/stats/top20viols/top20viols.asp. Two
percent of 2,901 citations is 58 citations. Therefore, if an expected frequency were
calculated without further evidence or information, operator(s) producing 2 percent of the
coal would be expected to have 58 citations per year under section 75.202(a).
The Secretary states that in the two years before issuance of the contested citations,
MSHA cited the mine 97 times for violating section 75.202(a). S. Br. at 4. The brief does
not breakdown the citations by year. Using just rough math, 97 divided by two would mean
48.5 citations per year. Using MSHA’s database of operator violations, we find only 33
citations at the mine for violations of section 75.202(a) during calendar year 2010. In any
event, it is clear that the frequency of violations at this mine for violations of section
75.202(a), evaluated on a per-ton basis, actually was better than the average mine’s
occurrences of such violations.
Of course, the parties could perhaps have argued before the Judge regarding the
advantages and/or disadvantages of a large mine regarding violations of section 75.202(a).
Perhaps factors such as efficiency of scale, length of beltlines, speed of beltlines, monitoring
equipment, or other factors should result in markedly better numbers for a large operator.
On the other hand, perhaps such factors as lengthy beltlines, multiple junction points, and
other factors make it more difficult to control accumulations. Judges and Commissioners
certainly do not have the expertise to make such evaluations. Moreover, no such analysis
appears in the Judge’s decision.
As a result, in this case, all we have is a number of violations that is below the
average frequency on a per-ton basis. Here, the Judge considered only the raw number as a
simple, discrete number without considering it in relation to the size of the operator or the
performance by coal operators throughout the mining industry. Further, in both his
decisions, he totally ignored that MSHA’s penalty assessment placed the operator below the
midpoint for frequency rates. These failures to consider MSHA’s finding that the history of
violations fell below the midpoint for both history categories are inexplicable. MSHA’s
calculation accurately reflects the seriousness of the frequency number on a ton-for-ton
basis across the coal industry. We find no basis to ignore those findings that MSHA
submitted to the Judge.
The Secretary never made any effort to explain why frequency numbers falling below its
midline under section 100.3 warranted a quadrupled penalty. More importantly, the Judge did
consider this conundrum in either of his decisions.
In summary, the fact that a penalty will not put an operator out of business is not a basis
for imposing an assessment very substantially above an expected or reasonable penalty. The
Judge did not even mention the size of the operator in imposing his original high assessment and,

40 FMSHRC Page 1042

thus, reference to it upon remand as having “great weight,” indicates a post-hoc rationale in
defense of an unexplained initial decision. Moreover, as we see below, the Judge elsewhere has
not applied size in the manner he applied it in this case, thereby undercutting the significance of
the reference in this remand decision.
Finally, the frequency of the operator’s violations falls below a midpoint for frequency of
violations on MSHA’s table. It is irrational for such a below-midpoint finding to serve as a basis
for assessing penalties many times higher than they would have been under MSHA’s regular and
special assessment point system. Clearly, the Judge initially picked numbers out of the air most
likely based upon a misunderstood application of the Sellersburg principle to the special
assessment and a cognitive bias created by the anchoring assessment by MSHA. Regardless of
the reason, there is no reasonable basis for his final assessments.
B.

The Judge’s assessment is substantially inconsistent with other assessments
made by him.

The Judge issued his remand decision on October 18, 2016. Just several months earlier,
the same Judge imposed a penalty for a violation of 30 C.F.R § 400 upon The Ohio Valley Coal
Company (“TOVCC”), a similar-sized sister company to AmCoal. Ohio Valley Coal Co., 38
FMSHRC 1084 (May 2016) (ALJ Lewis). Identically to AmCoal, the penalty did not threaten the
continuation of TOVCC’s business and TOVCC received the maximum 25 penalty points for
size. The total points for frequency were 17 (one less than AmCoal). However, there were two
distinct differences from the present case. First, the Judge found TOVCC had engaged in a high
degree of negligence and an unwarrantable failure. Second, the Secretary proposed a regular
penalty assessment of $8,421. The Judge accepted and assessed MSHA’s regular penalty
assessment. Therefore, in a case in the same time frame in which a sister company of virtually
indistinguishable size committed an unwarrantable failure with high negligence, the Judge
assessed a penalty less than half of the amount he assessed here for Citation No. 8428508 — a
moderate negligence violation. Further, his penalty of $8,421 in that case is very similar to the
assessments he made in this case for three low negligence violations.
Clearly, these penalties are wildly divergent in ways that are inconsistent with the
progressive discipline imposed by the Act and Sellersburg’s command to avoid arbitrary penalty
determinations.18 Standing alone, such inconsistency requires reworking the penalties in the case
18

We recognize that the comparison of these two cases, which involve the same Judge
and similar facts, is a sui generis situation. We do not suggest that Judges must keep a register of
their penalty assessments over time attempting to achieve some sort of illusory mathematical
consistency. We raise this point in this case because to us it demonstrates the outsized effect the
special assessment had on the final penalty assessment. In the TOVCC case, the Judge
apparently anchored himself to the regular point schedule assessment whereas in the present case
the Judge apparently anchored himself to the special assessment. In light of the TOVCC
decision, it is simply impossible for us to believe the Judge would have assessed AmCoal the
penalties assessed in this case for reasons other than the cognitive tug of the special assessment
and his concern with explaining a substantial divergence from the MSHA special assessment.

40 FMSHRC Page 1043

before us. The duty to re-evaluate the assessment is even more apparent when coupled with the
previously identified errors.
We have compared the penalty here to alternative outcomes because we find it necessary
to thoroughly analyze the essence of the Judge’s decision and the bases he has provided. Our
colleagues suggest that no further analysis is necessary, because the Judge has stated that he
complied with our mandate on remand. Slip op. at 10. Their reason for voting to affirm the
penalty is that simple. But rather than resting on that determination, or providing an evidencebased counterpoint to our analysis, they attack our opinion with a series of non-sequiturs and
erroneous and pejorative misinterpretations.
First, our colleagues elide the true nature of the Judge’s reasoning here by claiming that
the Judge “emphasized the record evidence pertaining to the operator’s large size, its ability to
continue in business, its violation history, and the need to provide an effective deterrent.”19 Slip
op. at 7. In fact, most of these are static criteria that will bear the same weight in any penalty
determination for a given operator. And as we point out above, the Judge did not even mention
mine size in his initial decision, other than in a listing of the six penalty criteria. There is no
indication that it played any significant role in his original assessment. Having already reduced
the charged negligence and downgraded an important gravity finding, when required to explain
his outsized penalty, he bolstered his assessment by rote recitation of the remaining possible
penalty criteria. Amplifying factors on remand that were unremarkable upon the first assessment
is not an “adequate explanation” for the penalty. See 38 FMSHRC at 1997. It is grasping at
straws. We do not criticize a Judge for being human, but we need not be foolishly naive either.
Second, our colleagues erroneously claim that we have said that “any specially-assessed
proposed penalty effectively prevents a Commission Judge from independently applying the
statutory penalty criteria and assessing a penalty de novo.” Slip op. at 7. They charge that our
logic compels the conclusion that any assessment made after a special assessment has been
proposed is “fruit of the poisonous tree.” Id. In fact, we make no such contention. It is the record
that shows that this Judge impermissibly relied on the Secretary’s special assessment in this case
and that his assessment here is impermissibly grounded on a special assessment whose asserted
justifications were found lacking by this Judge in this specific case. We have simply provided an
explanation for the inescapable correlation between an unwarranted special assessment and the
19

Regarding deterrence, we again disagree with any suggestion that it may be considered
as a separate factor. See Black Beauty Coal Co., 34 FMSHRC 1856, 1864-69 (Aug. 2012)
(Commissioners Duffy and Young, dissenting); Lehigh Anthracite Coal, LLC, 40 FMSHRC 273,
299 (Apr. 2018) (Commissioner Althen, dissenting). The inconsistency with the statute and the
potential problems arising from this misapprehension were noted at the time in the Black Beauty
dissent. Black Beauty, 34 FMSHRC at 1864-69. That Black Beauty has not fomented chaos is a
tribute to our Judges and their opinions since that decision, which have reflected a principled
approach bounded by the statutory criteria. We of course recognize deterrence as the animating
purpose behind any effective penalty regime and have no quarrel with a Judge emphasizing
statutory factors that reflect a need for a larger punitive sanction to encourage corrective action
and deter further serious violations of safety standards.

40 FMSHRC Page 1044

Judge’s own assessment, grounded on a known, established, judicially-recognized fact of the
occurrence of cognitive bias.
To acknowledge this reality is not to claim that a Judge may not independently assess a
penalty using the statutory criteria. It only serves, in this case, to explain a penalty grossly
outside the norm and to advise Judges and ourselves to guard against psychological tugs
common to the human experience.
Our colleagues also erroneously claim we “downplay” the operator’s history of
violations, and the significance Congress attached to this factor. Id. at 8. We do not. We simply
note that the Judge himself did not find this to be a factor of such aggravation, in his initial
assessment, as to warrant an extraordinarily large penalty. On remand, it cannot therefore stand
unchallenged, and virtually alone among the section 110(i) criteria, as a basis for penalties that
are, by any measure, extraordinary.20
The facts of this case are wholly unsupportive. There is no special finding of
unwarrantable failure, recklessness, or high negligence here, as one would expect with a history
of profligate and repeated indifference or ineffectiveness. But our colleagues would hold that the
operator should nonetheless be punished as a serious, serial malefactor. Our colleagues’
suggestion that statements of an inspector are enough, on their own, to justify an increase in a
penalty because the operator has been repeatedly warned about unsafe practices (slip op. at 9),
carries no weight at all — not because such warnings are not important, but because the Judge
chose not to agree with the inspector that the failure to heed the warnings amounted to a serious
lack of reasonable care.
Our colleagues further suggest that we would impose a “new standard” that requires
consistency with other assessments by the Judge. Slip op. at 10. They say we would beg the
question, “consisten[t] with what?” Id. (emphasis added). This is not so, either. All we are
demanding is factual validation of the necessary assumption upon which our colleagues rely: that
this operator’s history is so excessive that it must be damned as a scofflaw with an excessive
violations history. This is virtually the only mutable factor that might support a huge penalty, but
the Judge did not find extraordinary negligence, gravity, an unwarrantable failure, or any other
aggravation here. Thus, it is entirely fair to ask – yes – “excessive compared to what?”
All we have done is point out that the entirety of the record refutes the Judge’s
conclusion, and that a further analysis of the operator’s relative safety performance and the
Judge’s own perceptions of this very factor foreclose the determinative effect our colleagues
have assigned to it. In assessing the penalty, the Judge failed to recognize that the frequency of
penalties for an operator the size of this respondent was below the midpoint for the industry
20

As we have noted, supra, at 26, the penalties here not only greatly exceeded those that
would have been assessed under the regular assessment schedule, they were significantly higher
than penalties that would have been imposed under the special assessment guidelines, had the
negligence, gravity, and other criteria been calculated in accord with the Judge’s own findings on
those factors.

40 FMSHRC Page 1045

Further, this same Judge imposed lesser penalties upon a same-sized corporate relative in a case
that was similar in time and circumstances, but with findings of higher negligence, including an
unwarrantable failure. This is not a “new standard” – it is impeachment by inconvenient facts.
Logical inconsistencies and disparate treatment by the same Judge evince the very sort of
arbitrariness Sellersburg stands against. Our colleagues see no difficulty with a draconian
penalty far outside the bounds of normality for violations as found by the Judge. The penalty
does not square with his own factual findings, and it cannot be reconciled with how he has
treated another operator in virtually identical circumstances. The only correlation that may be
drawn – as the Judge himself repeatedly has done by reference to “reductions” from the proposed
assessment – is to the Secretary’s Special Assessment.
The irony here is that our colleagues claim we treat the statements of the Judge in a
“cavalier manner.” Slip op. at 7 n.3. It is they, though, who uncritically accept the Judge’s
statements without subjecting them to the intellectual rigor the circumstances demand of us on
review. We respect every Commission Judge, but the compelling evidence of bias – evinced by
his own repeated assertion in the original decision that he was “reducing” the penalty based on
mitigating findings – belies the unsupported assertion that he did not use the special assessment
here as a baseline.
We appreciate our colleagues crediting “our view” that regular penalties reflect
application of a uniform and regularized penalty system helping to ensure credibility and avoid
the appearance of arbitrariness. Slip op. at 9. This is not merely “our” view, however. It is the
true core of the Sellersburg decision and has been the view of every Commission and every
Commissioner since the Sellersburg decision in 1983.21 Our colleagues’ opinion ignores the
obvious tension between this essential and central principle and the potential for a result like the
one reached in this case.
Here, the Judge reached findings and conclusions that could not be reconciled with the
Secretary’s proposed assessment grounded on that system’s justifications. In seeking to
nonetheless defend the penalty he calculated, the Judge attempted to rely on factors that do not
21

We repeat from Sellersburg:
When based on further information developed in the adjudicative
proceeding, it is determined that penalties are appropriate which
substantially diverge from those originally proposed, it behooves
the Commission and its judges to provide a sufficient explanation
of the bases underlying the penalties assessed by the Commission.
If a sufficient explanation for the divergence is not provided, the
credibility of the administrative scheme providing for the increase
or lowering of penalties after contest may be jeopardized by an
appearance of arbitrariness.

5 FMSHRC at 293.

40 FMSHRC Page 1046

distinguish the operator as deserving special punishment here and that cannot support the
extraordinary penalty imposed. This is not a “sufficient explanation of the bas[is] underlying the
penalties assessed by the Commission.” Sellersburg, 5 FMSHRC at 293. At best, it represents
post-hoc rationalization. At worst, it reflects, as we have noted above, the potential for the purely
arbitrary assessments we have proscribed for 35 years.
CONCLUSION
For the reasons set forth above, we would reject the Judge’s assessments. We would
again remand the penalty determination to the Judge for assessment of a penalty in a manner
consistent with this opinion and with our precedent in Sellersburg.22

/s/ William I. Althen
William I. Althen, Acting Chairman

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

22

We recognize that we could simply suggest a proper penalty here, but we respect the
proper application of judicial discretion to what is inherently a Judge’s responsibility. We are
confident that the Judge, on remand, would assess an appropriate penalty free of improper
influence from the unfounded special assessment, using the statutory criteria in a manner
consistent with Sellersburg and the record in this case.

40 FMSHRC Page 1047

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

August 29, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. LAKE 2014-77
LAKE 2014-132

v.
MACH MINING, LLC
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
BY: Althen, Acting Chairman; Young and Cohen, Commissioners
This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”), and involves two citations issued by the Department of
Labor’s Mine Safety and Health Administration (“MSHA”) to Mach Mining, LLC (“Mach”).
The citations allege that Mach violated 30 C.F.R. § 75.821(a) by failing to maintain chirp alerts
on a disconnect box and power center.1
Mach contested the citations and the associated civil penalties. The case proceeded to a
hearing before a Commission Administrative Law Judge. After counsel for the Secretary of
Labor presented his case, Mach’s attorney moved for a directed verdict. The Judge granted
Mach’s motion and vacated both citations. 38 FMSHRC 1379 (June 2016) (ALJ). Thereafter,
the Secretary filed a petition for discretionary review challenging the Judge’s grant of directed
verdict in favor of Respondent.

1

Section 75.821 is entitled “Testing, examination and maintenance.” Subsection (a)
requires that:
At least once every 7 days, a person qualified in accordance with
§ 75.153 to perform electrical work on all circuits and equipment
must test and examine each unit of high-voltage longwall
equipment and circuits to determine that electrical protection,
equipment grounding, permissibility, cable insulation, and control
devices are being properly maintained to prevent fire, electrical
shock, ignition, or operational hazards from existing on the
equipment. Tests must include activating the ground-fault test
circuit as required by § 75.814(c).

40 FMSHRC Page 1048

We find that substantial evidence supports the Judge’s conclusion: The Secretary did not
present evidence demonstrating that Mach failed to perform the testing and examination required
by section 75.821(a). Id. at 1381-82 n.2. Accordingly, we affirm the Judge’s decision.
I.
Factual and Procedural Background
Mach operates an underground bituminous coal mine in Williamson County, Illinois. On
June 18, 2013, MSHA Inspectors Britt Belford and John Butcher conducted a quarterly longwall
inspection at the mine, accompanied by Parker Phipps, the Mach longwall coordinator.
When the inspectors reached the headgate in the No. 2 entry outby the longwall face, they
began to examine the mule train.2 Inspector Butcher observed that two of the mule train’s chirp
alerts3 were inoperative. According to Inspector Butcher, the chirp alerts should have been both
flashing and producing a high-pitched noise every two to three seconds. However, Butcher
observed that the chip alerts on the disconnect box and 4000 KVA power center were silent and
did not flash.
Butcher then issued two citations alleging violations of section 75.821(a). Both citations
were designated as “significant and substantial” (“S&S”),4 and the result of a moderate degree of
negligence.
A hearing was held before a Commission Administrative Law Judge. At the conclusion
of the Secretary’s case, Mach made a motion for directed verdict as to the two citations in
question. Mach argued that section 75.821(a) requires that a qualified person must test and
examine each unit of high-voltage longwall equipment and circuits at least once every seven
days. Mach noted that Inspector Butcher testified that the examinations had in fact been
performed. In addition, Mach noted that the Secretary had failed to offer any evidence about the
required seven-day examination of electrical equipment at the longwall.
2

A “mule train” is a colloquial name for the collection of equipment, including
disconnect boxes, pumps, and power centers, that are used to distribute electric and hydraulic
power to the longwall. A “disconnect box” is an electrical box where high voltage cables bring
power into the mule train. The box has a switch that allows miners to cut all power to the entire
mule train. From the disconnect box, power is transferred to power centers and ultimately onto
the electrical equipment used on the longwall.
3

A “chirp alert” is a safety feature on an electrical box that provides an auditory and
visual warning when equipment is energized, thereby reducing the risk of electric shock or
electrocution.
4

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

40 FMSHRC Page 1049

The Secretary contended that it was reasonable to infer from Butcher’s testimony that the
chirp alerts had not been tested, since two were inoperative at the time of the inspection.
Moreover, the Secretary argued that the standard required an ongoing duty of maintenance that
required Mach to maintain the chirp alerts in working condition.
The Judge orally granted Mach’s motion at the hearing. In his written decision, the Judge
explained that he had granted the motion because Inspector Butcher’s allegation rested solely on
the fact that he believed the chirp alerts were not properly maintained. The Judge noted that the
inspector had answered in the affirmative when asked if there was “no dispute in your mind that
the tests that are required by [Section] 75.821(a) were actually performed at the times required,
correct?” 38 FMSHRC at 1382 n.2 (quoting Tr. 109). Because the Secretary had failed to
establish that a qualified person had not tested and examined the chirp alerts within the last seven
days to ensure that the equipment was being properly maintained, the Judge granted the motion
for directed verdict and vacated the citations.
II.
Disposition
On appeal, the Secretary argues that the Judge erred in finding that section 75.821(a) does
not require operators to maintain electrical protection devices on high-voltage longwall
equipment. According to the Secretary, such a reading would allow operators to ignore
nonfunctional electrical equipment for up to an entire seven days, until the operator is required to
perform the next examination. Instead, the Secretary claims that the standard’s regulatory
history and placement strongly supports a plain reading of the standard requiring an ongoing
duty to maintain the chirp alerts.
We find the Secretary’s arguments unconvincing. The Secretary’s characterization of the
regulatory history presupposes that section 75.821(a) was intended to replace the multiple
requirements contained in other regulations that impose a duty to maintain electrical equipment.
However, the standard’s history and context make clear that section 75.821(a) was intended to
supplement, not supplant, existing examination and maintenance requirements.
Prior to the promulgation of section 75.821, mine operators were required to petition for a
modification of 30 C.F.R. § 75.1002 before high-voltage cables could be used to supply power to
their longwall operations. 57 Fed. Reg. 39,041, 39,041-42, 39,047-48 (proposed Aug. 27, 1992).
In 1989, MSHA proposed significant revisions to the existing electrical standards in 30 C.F.R.
Part 75. The proposed revisions would have allowed the use of high-voltage cables without
petitioning for a modification, in exchange for more stringent rules governing electrical longwall
equipment. See 54 Fed. Reg. 50,062-01, 50,122 (proposed Dec. 4, 1989). The proposal, which
did not contain an analog to section 75.821, did not become a final rule. MSHA later said that its
withdrawal of the proposed rule was due, in part, to the fact that the 1989 proposed rule
“specifically focuse[d] on the safety issues related to use of high-voltage with longwall mining
systems and [was] not incorporated within the context of an overall revision to the electrical
safety standards.” 57 Fed. Reg. at 39,042.

40 FMSHRC Page 1050

In 1992, MSHA proposed a new rule to address these deficiencies. The 1992 proposed
rule included a new section 75.821to address testing and examination requirements of high
voltage longwall electrical equipment. Id. at 39,047-48. MSHA stated that section 75.821 was
to be “used in conjunction” with other regulations requiring maintenance, specifically section
75.1002.5 Id. at 39,047. Moreover, the 1992 proposed rule created section 75.813,6 which
requires that all other existing electrical standards apply to longwall circuits and equipment
where appropriate. Id. at 39,043. The final rule, which included section 75.821, was issued on
March 11, 2002, after an extended notice-and-comment period. 67 Fed. Reg. 10,972, 10,992-95.
Consistent with its history and placement, the plain language of section 75.821(a)
specifically requires periodic examinations of longwall electrical equipment. Section 75.821(a)
does not require maintenance of electrical equipment. By its clear and unambiguous terms, it
requires only that:
At least once every 7 days, a person qualified in accordance with
§ 75.153 to perform electrical work on all circuits and equipment
must test and examine each unit of high-voltage longwall
equipment and circuits. . . .
30 C.F.R. § 75.821(a).
In light of the clear and unambiguous regulatory language, we decline the Secretary’s
invitation to read a requirement for maintenance into the standard where one simply does not
exist.7 Had the Secretary intended the standard to contain an ongoing maintenance requirement,
he surely would have done so, as is evident in the numerous regulations that expressly require
maintenance. See, e.g., 30 C.F.R. §§ 75.503, 75.506(a), 75.506-1(a), 75.1002(a), 75.512,
75.1725(a). Indeed, section 75.512 provides, in pertinent part: “All electric equipment shall be
frequently examined, tested, and properly maintained by a qualified person to assure safe
operating conditions.” 30 C.F.R. § 75.512 (emphasis added).
5

30 C.F.R. § 75.821(a) states that “Electric equipment must be permissible and
maintained in a permissible condition when such equipment is located within 150 feet of pillar
workings or longwall faces.”
6

30 C.F.R. § 75.813 states that: “Sections 75.814 through 75.822 of this part are
electrical safety standards that apply to high-voltage longwall circuits and equipment. All other
existing standards in 30 CFR must also apply to these longwall circuits and equipment where
appropriate.”
7

The Secretary cites the Commission’s decision in Nally & Hamilton Enterprises, Inc.,
33 FMSHRC 1759, 1763 (Aug. 2011), as supporting his reading that section 75.821(a)
establishes a duty to maintain. However, the Secretary’s reliance on Nally & Hamilton is
inapposite. In that case, the Commission found that the inclusion of the term “maintain” in 30
C.F.R. § 77.410(c) imposed a continuing responsibility on the operator to ensure that warning
devices were maintained in working condition at all times. Id. at 1763. By contrast, section
75.821(a) contains no such explicit maintenance requirement.

40 FMSHRC Page 1051

In the context of high-voltage longwall equipment, however, the Secretary elected to
promulgate a standard that complemented existing regulations by imposing stricter requirements
for examinations of longwall electrical equipment but did not create an additional maintenance
requirement.
The standards governing high-voltage electrical equipment are part of a total set of
regulations to protect miners’ safety. As 30 C.F.R. § 75.813 clearly states, “[a]ll other existing
standards . . . must also apply to these longwall circuits and equipment where appropriate.”
Thus, the Secretary could have looked beyond section 75.821 for a standard more appropriately
suited to the facts of the case, such as section 75.512. He did not do so.
Instead, the Secretary proceeded to present his case at hearing on a theory not supported
by the evidence. The Secretary alleged a violation of section 75.821(a), which requires a weekly
examination of electrical longwall equipment, but failed to provide any evidence that adequate
examinations were not performed. The Secretary did not submit Mach’s examination records as
evidence nor did he attempt to elicit testimony from adverse witnesses. The only evidence that
the Secretary presented was the testimony of Inspector Butcher, and he testified that Mach had
unquestionably performed the tests required by section 75.821(a).
Because an operator has an ongoing duty under Section 75.512 to maintain its equipment
to protect miner health and safety, it appears that the inspector could have issued citations under
that section. The Commission’s procedural rules provide that petitions for assessment of
penalties by the Secretary shall identify the section of the Mine Act or regulations alleged to
have been violated. 29 C.F.R. § 2700.28(b)(1). These rules reflect the fundamental
requirements of due process that an operator charged with a violation of the Act be given fair
notice of the standard that it has allegedly violated. Neither the citation nor the penalty petition
in this case refers to, let alone asserts, a violation of section 75.512.
Here, after filing the penalty petition, the Secretary could have moved to amend the
citations. In the interest of justice, Judges freely grant such motions absent a showing of
prejudice. See, e.g., Cyprus Empire Corp., 12 FMSHRC 911, 916 (May 1990); El Paso Rock
Quarries, Inc., 3 FMSHRC 35, 38 (Jan. 1981). However, the Secretary never made such a
motion prior to resting his case. Quite reasonably, Mach mounted its defense against the
Secretary’s allegations that the operator violated section 75.821. The Secretary’s citation of a
violation of section 75.821(a) went to a directed verdict without any mention of section 75.512.8
8

Our colleague points to Faith Coal Co., 19 FMSHRC 1357 (Aug. 1997), to suggest this
matter should be remanded for the judge to consider whether Mach violated section 75.512. Slip
op. at 10. In Faith Coal, the inspector mistakenly entered an outdated number for the cited
regulation in the citation paperwork. Neither party noticed the error and proceeded to try the
case at hearing under the correct safety standard, which still existed under a different number in
the Secretary’s safety regulations. The Commission therefore determined that the operator had
suffered no prejudice from the Secretary’s pleading deficiencies and that the Secretary’s request
to amend the citation should be allowed. 17 FMSHRC at 1362. Here, in contrast, Mach directed
its defense against a citation under section 75.821(a) and the Secretary’s novel, expansive
(continued… )

40 FMSHRC Page 1052

Thus, we are left to adjudge only the Secretary’s allegations under section 75.821(a). Given the
lack of evidence of a violation of that section, the Judge correctly vacated the citations upon
Mach’s motion for a directed verdict.9
III.
Conclusion
For the reasons set forth herein, we affirm the Judge’s decision.

/s/ William I. Althen
William I. Althen, Acting Chairman

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

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

8

(…continued)
reading of that standard. Mach has not had the opportunity to defend against allegations that it
violated section 75.512. Thus, the procedural history of Faith Coal renders it inapposite to the
case at hand. We decline to send this case back to the judge to consider whether the operator has
violated a standard the Secretary has never sought to allege.
9

This decision is not criticism of Inspector Butcher. We recognize that MSHA
inspectors have difficult jobs and must make quick determinations in the field when issuing
citations. Inspector Butcher identified defects in the chirp alerts and issued citations to remedy
what he saw as a danger to miner safety. Inspectors may not have the legal expertise required to
always select the appropriate standard when issuing a citation. However, after a citation has
been initially issued, it will be reviewed again by MSHA staff in the process of preparing the
petition for assessment of penalties. Then, if the operator contests the penalty, it is reviewed
again by the Secretary’s trial counsel in preparation for the hearing. Trial counsel must
determine that the facts alleged in the citation constitute a violation of the section of the
regulations cited and, if not, should seek to amend the citation as appropriate. It is incumbent on
the Secretary to make corrections to his pleadings before hearing to ensure the correct violation
is charged and to provide due process.

40 FMSHRC Page 1053

Commissioner Jordan, dissenting:
This case arose when an MSHA inspector determined that two “chirp alerts” on the high
voltage longwall equipment failed to emit any audible sound. Without proper notification from a
functioning chirp alert that certain equipment is energized, miners are at risk of fatal injuries
from electrocution. 38 FMSHRC 1379, 1381 n.2 (June 2016) (ALJ); Tr. 74-75.
The inspector issued two citations, each referencing a violation of 30 C.F.R.
§ 75.821(a).1 The judge below dismissed the challenged citations. He determined that the
standard relied upon by the inspector required tests and examinations of the equipment, but did
not require that the equipment be properly maintained. According to the Judge, unless MSHA
could show that the operator had failed to conduct the mandatory tests and examinations, the
agency could not sustain a violation of this standard. Since the inspector’s testimony did not
contain such proof, the Judge granted the operator’s motion for a directed verdict and dismissed
the two challenged citations. My colleagues have agreed with this narrow construction of
section 75.821(a).
I. Section 75.821(a) requires operators to properly maintain high voltage
equipment.
As the Judge and my colleagues correctly note, the standard in question explicitly
mandates periodic testing and examination of the longwall equipment and circuits. Contrary to
my colleagues’ contention, this instruction does not equate to “clear and unambiguous regulatory
language” restricting the scope of the standard to those specified activities. Slip op. at 4. My
colleagues have chosen to ignore the language explaining that the reason for these exams and
tests is “to determine that electrical protection, equipment grounding, permissibility, cable
insulation, and control devices are being properly maintained to prevent fire, electrical shock,
ignition, or operational hazards from existing on the equipment.” 30 C.F.R. § 75.821(a)
(emphasis added).

1

The standard states:
Testing, examination and maintenance.
(a) At least once every 7 days, a person qualified in
accordance with § 75.153 to perform electrical work on all circuits
and equipment must test and examine each unit of high-voltage
longwall equipment and circuits to determine that electrical
protection, equipment grounding, permissibility, cable insulation,
and control devices are being properly maintained to prevent fire,
electrical shock, ignition, or operational hazards from existing on
the equipment. Tests must include activating the ground-fault test
circuit as required by § 75.814(c).

30 C.F.R. § 75.821(a) (emphasis added).

40 FMSHRC Page 1054

A standard that mandates certain steps be carried out on equipment for the purpose of
determining that such equipment is being properly maintained necessarily imposes an obligation
on the operator to maintain that equipment. This is made evident when one considers the entire
standard. The purpose of section 75.821(a) is not simply to perform tests and examinations. The
purpose, as the standard states, is “to prevent fire, electrical shock, ignition, or operational
hazards from existing on the equipment.” 30 C.F.R. § 75.821(a). In order to prevent these
operational hazards, the equipment must be “properly maintained.” Id.
The standard the inspector referenced in citing Mach is one of a group of regulations
promulgated in 2002 directed at high voltage longwalls. In proposing these standards the
Secretary explained that “[p]roper testing, examination, and maintenance of high voltage
longwall systems would assure that they would not pose increased hazards to miners.” 57 Fed.
Reg. 39,041, 39,047 (proposed Aug. 27, 1992) (emphasis added). By promulgating standards
“related specifically to the safe use of high-voltage longwall equipment,” 67 Fed. Reg. 10,972
(Mar. 11, 2002), MSHA envisioned “increased protection from electrical hazards” (id. at 10,973).
Despite the efforts of the Secretary to create a comprehensive and focused regulatory
scheme relevant to high-voltage longwall equipment, our colleagues insist that only the more
generic standard at 30 C.F.R. § 75.512 may be used to enforce a maintenance requirement in this
case. 2 The majority relies on 30 C.F.R. § 75.813 for this holding.3 However, that standard
simply clarifies that, in addition to the specific safety standards that apply to high-voltage
longwall circuits and equipment, other existing MSHA safety standards continue to apply.
MSHA did not want the mining community to conclude that the new standards were the
exclusive means of regulating high-voltage longwall equipment—section 75.813 means no more
than that. Unfortunately, however, the measure that was included so as to avoid any gaps in the
miners’ protection is being used instead to restrict the Secretary’s prosecutorial discretion and
provide a rationale for vacating citations.4
2

Section 75.512 states in relevant part that “[a]ll electric equipment shall be frequently
examined, tested, and properly maintained by a qualified person to assure safe operating
conditions.”
3

30 C.F.R. § 75.813 states: “Sections 75.814 through 75.822 of this part are electrical
safety standards that apply to high-voltage longwall circuits and equipment. All other existing
standards in 30 CFR must also apply to these longwall circuits and equipment where appropriate.”
4

According to my colleagues, because operators had an ongoing duty to maintain
equipment under section 75.512, and because section75.821(a) should be read to supplement
rather than supplant this obligation, the “standard more appropriately suited to the facts of the
case” is 75.512. Slip op. at 5. The mental acrobatics that will be required of inspectors as a
result of this decision seems daunting.
Indeed, the majority acknowledges that “[i]nspectors may not have the legal expertise
required to always select the appropriate standard when issuing a citation.” Id. at 6 n.9.
With respect, I suggest that the miners’ safety may suffer to the extent enforcement of mandatory
standards is dependent on inspectors needing sufficient “legal expertise.”

40 FMSHRC Page 1055

II. Even if section 75.821(a) were limited to an examination and testing requirement,
the Secretary’s evidence was adequate to sustain a violation.
Section 75.821(a) requires that a qualified person test and examine each unit of highvoltage longwall equipment and circuits “[a]t least once every 7 days.” 30 C.F.R. § 75.821(a)
(emphasis added). The referenced language implies an obligation to examine the equipment
more frequently under certain circumstances. Surely one such circumstance occurs when the
equipment develops a visible defect. In this case the inspector arrived at the site and observed
that two separate warning devices were not functioning.
The inspector testified that miners frequented the area where this equipment was located
and would have noticed the fact the chirpers did not work.
[A]nybody that is around that longwall train should notice that
chirp alert is not working, because, you know, they’re on all the
time there’s power. They’re on—every day when a crew goes—
goes in and gets out of the truck and walks by the disconnect and
the power centers, they’re walking by it and those are chirping and
also the light is flashing. . . . There’s people come there at the
beginning of every shift and there’s electricians walk by, the
foreman walks by, the maintenance foremens walk by, and it’s
noticeable when those chirp alerts are working that they’re
working, and in this case, you know, both boxes, they weren’t
working.
Tr. 76, 91-2.
The existence of the hazardous condition, of which the operator was aware or should
have been aware, would trigger the requirement to test and examine the chirp alerts. Since
failing to take steps to address the defective warning devices could constitute a violation of
section 75.821(a), even under the narrow construction adopted by the Judge and my colleagues,
the Judge erred in issuing a directed verdict at the close of the Secretary’s case.
III. Even if the majority ruling that the operator should have been cited under
section 75.512 were correct, the Commission should remand the case instead of vacating
the citation.
My colleagues in the majority vote to vacate these citations because they conclude the
inspector listed the wrong safety standard on the citation. They believe he should have written
30 C.F.R. § 75.512 on the citation form, instead of section 30 C.F.R. § 75.821(a). Slip op. at 5.
Even if the majority’s determination that section 75.512 is the relevant standard is correct,
the appropriate response would be to remand this matter in order for the Judge to consider
whether the operator violated that section. This approach would be consistent with our decision
in Faith Coal Co., 19 FMSHRC 1357 (Aug. 1997). In that case, the citation alleged a violation
of the wrong standard (the cited standard had previously applied to methane monitors but had
been amended and renumbered). The Judge vacated the citation on the ground that it alleged a

40 FMSHRC Page 1056

violation of the wrong standard and was never modified to assert a violation of the correct
standard. The Commission reversed the Judge’s decision to vacate the citation, holding that the
Judge erred by vacating the citation on the basis of the Secretary’s pleading error. We remanded
for a determination of whether Faith’s conduct violated the correct standard. Id. at 1361-62.
Given that the majority’s central complaint here appears to be that the inspector should have
written section 75.512 on the citation instead of section 75.821(a), we should follow our case
precedent and remand to the Judge.
My colleagues’ concern that such an approach would violate the requirements of due
process is unfounded. Of course, due process requires that an operator receive adequate notice
of charges made against it. Here, Mach was on notice from the time it was first cited that the
inspector considered the violative conduct to be a failure to maintain electrical equipment as
evidenced by the defective chirpers. The citations allege that the volt disconnect box and power
center are “not being properly maintained to prevent electrical shock hazards” and that the “chirp
alerts fail[ ] to emit any audible sound to signal that the [equipment] is energized.” S. Exs. 111,
112. Both citations were abated when new chip alerts were installed. Id.
The Judge recognized that MSHA was charging the operator with failing to properly
maintain the electrical equipment. He emphasized that the inspector stated “it wasn’t his
contention it was a test and examination requirement. He was saying the chirp alerts didn’t
work. It was a maintenance requirement. . . . It’s the inspector’s theory of the case . . . .” Tr.
258.5 Although I believe it to be entirely reasonable and appropriate for the inspector to have
referenced the high voltage longwall standard at 30 C.F.R. § 75.821(a), it would hardly be
prejudicial to amend the citation to refer instead to the requirement at section 75.512.
Mine operators have long been aware of their obligation to maintain electrical equipment.
Section 305(g) of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq.
(1976), used language identical to that of section 75.512 to mandate that “[a]ll electric equipment
shall be frequently examined, tested, and properly maintained by a qualified person to assure safe
operating conditions.” Pub. L. No. 91-173, § 305(g), 83 Stat. 742, 778 (1969). This language
requirement was retained in section 305(g) of the Mine Act, 30 U.S.C. § 865(g).

5

The Judge also told counsel for the Secretary: “You proved that there was a defect.” Tr.

251.

40 FMSHRC Page 1057

The Commission long ago made clear that an operator’s requirement to maintain mine
equipment is an ongoing responsibility. As we observed in Nally v. Hamilton Enterprises, Inc.,
33 FMSHRC 1759, 1763 (Aug. 2011), a case involving a back-up alarm on a truck, we have
“consistently construed ‘maintain’ . . . to require a continuing functioning condition.” See also
Lopke Quarries, Inc., 23 FMSHRC 705, 707-08 (July 2001) (“[t]he inclusion of the word
‘maintain’ in the standard . . . incorporates an on-going responsibility on the part of the
operator”). In sum, Mach was well aware of its legal duty to properly maintain the chirpers.
IV. Conclusion
I would vacate the Judge’s decision and remand this case for further proceedings.

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

40 FMSHRC Page 1058

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

August 30, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEST 2016-624-R

SIGNAL PEAK ENERGY, LLC
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
BY THE COMMISSION:1
This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). At issue is whether the Administrative Law Judge properly
upheld the rejection by the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) of a ventilation control plan proposed by Signal Peak Energy, LLC (“Signal Peak”).
In July 2016, MSHA issued a technical citation to Signal Peak alleging a violation of 30
C.F.R. § 75.370(a)(1).2 MSHA issued the citation after Signal Peak and MSHA reached an
impasse while negotiating provisions of the operator’s ventilation plan. The dispute arises from
MSHA’s denial of the operator’s request for approval to change its ventilation plan from a dualentry tailgate return system to a single-entry tailgate return system.
The operator had argued that changing its ventilation plan would decrease the amount of
oxygen in the gob, or mined-out area, thereby lessening the chance of spontaneous combustion,
and would reduce the risk of material handling and roof control incidents. MSHA in turn
expressed concerns that the operator’s proposed plan could cause noxious gob gases to enter an
area where miners work, reduce available oxygen in that area, and result in less effective
monitoring for a spontaneous combustion event.

1

The votes of the four Commission members regarding whether to affirm the decision
below are evenly divided. All four members join in the factual and procedural background
section of this decision. However, Commissioners Jordan and Cohen join in one opinion voting
to affirm, while Acting Chairman Althen and Commissioner Young vote to reverse the Judge’s
decision.
2

Section 75.370(a)(1) states in relevant part that “[t]he operator shall develop and follow
a ventilation plan approved by the district manager” and that “[t]he plan . . . shall be suitable to
the conditions and mining system at the mine.” 30 C.F.R. § 75.370(a)(1).

40 FMSHRC Page 1059

The Judge affirmed MSHA’s technical citation. In doing so, she held that MSHA’s
rejection of Signal Peak’s proposed plan was not arbitrary and capricious. 39 FMSHRC 638, 653
(Mar. 2017) (ALJ). Signal Peak filed a petition seeking discretionary review of the Judge’s
decision, which we granted.
Two Commission members vote to affirm the Judge’s decision and two Commissioners
vote to reverse the Judge’s decision. As a result, the Judge’s decision will stand as if affirmed.
Pennsylvania Elec. Co., 12 FMSHRC 1562 (Aug. 1990), aff’d on other grounds, 969 F.2d 1501
(3d Cir. 1992).
I.
Factual and Procedural Background
A.

Factual Background
1.

The Mine’s Operations

Signal Peak operates the Bull Mountain Mine, a large underground coal mine in
Montana. The operator primarily mines its coal using the longwall method.
During longwall mining, the operator drives two sets of lengthy parallel entries on each
side of a block of coal. At the end of the entries, the operator creates a crosscut perpendicularly
(at right angles) to connect the parallel entries. The coal along the perpendicular cut becomes the
longwall face.
A shearer moving back and forth across the face extracts the coal from the longwall. In
turn, a conveyor system in an entry transports the coal from the face. The set of entries
containing the conveyor system is the headgate; the parallel set of entries at the other side of the
longwall panel is the tailgate. In developing the panel, there are three headgate entries and three
tailgate entries. Each panel of coal is approximately 22,000 feet long and 1,250 feet wide.
Hydraulic roof jacks support the roof in a canopy above the longwall and shield miners
operating machinery along the face from collapsing rock. As the face retreats, the operator
moves the roof support shields outby towards the mine’s entrance to allow the roof to collapse
into a compressed area known as the gob. Gases may build up in the gob area. To ventilate the
longwall, air flows through the headgate entries, then along the face, and exits the area through
the tailgate entries.
Although the Signal Peak mine does not have a high concentration of methane, it is prone
to spontaneous combustion, which is the “heating and slow combustion of coal . . . initiated by
the absorption of oxygen.” Stip. 4; Am. Geological Inst., Dictionary of Mining, Mineral and

40 FMSHRC Page 1060

Related Terms, 529 (2d ed. 1997) (“DMMRT”).3 Due to this danger and because it had been
experiencing elevated levels of carbon monoxide (“CO”) in the gob, Signal Peak changed from a
“bleeder entry”4 system to a “bleederless” system in January 2010.
A bleederless system reduces the potential for spontaneous combustion by limiting the
oxygen that is available in the longwall gob. Id. The gob area must be isolated and sealed from
the active mining area. Accordingly, a bleederless ventilation system requires the progressive
installation of seals as the panel is mined.
In December 2011, Signal Peak experienced a major event of spontaneous combustion,
which resulted in the loss of approximately 22 production days. The event was caused by oxygen
pulled in by the mine’s exhausting ventilation system through subsidence cracks on the surface
into the rider seam5 above the main seam being mined.
As a result, Signal Peak, with the approval of MSHA, instituted additional measures on
subsequent longwall panels in order to decrease the risk of spontaneous combustion. These
measures included lowering the gob’s oxygen levels by injecting nitrogen into the gob and
monitoring the oxygen levels on an ongoing basis. Further, in January 2013, the operator
replaced the exhausting ventilation system with a blowing ventilation system in order to
pressurize the gob and decrease the danger of pulling air into the gob through cracks in the mine
surface.
In January 2015, Signal Peak submitted a revised ventilation plan that proposed an
additional change, which is the subject of this litigation. It proposed changing from a system in
which air flows out of both tailgate entries (“dual entry system”) to a system in which the air
exiting the longwall would flow only through a single entry (“single entry system”). See attached
diagrams, Sec. Ex. 24 (the dual entry system) and Sec. Ex. 26 (the single entry system).
Under the dual entry system, the operator leaves the tailgate entries open to the first
crosscut inby the panel. As ventilating air exits the longwall, its flow is divided with some going
down entry 1 (entry closest to the panel) while a separate quantity of air is directed back to the
cross cut and then into the other tailgate entry (entry 2) for exit (sometimes called the “backaround return”). Under the single entry system, the tailgate entries are mined as the longwall
develops, and air leaving the longwall exits only through the tailgate entry 1. Like the current
plan, the proposed single entry plan would be a bleederless, blowing air system.
3

The necessary components of spontaneous combustion are: (1) coal of a suitable
chemical and physical nature; and (2) sufficient broken coal and air leaking through it to supply
the oxygen needed. DMMRT at 529.
4

Bleeder entries” are defined as “[p]anel entries driven on a perimeter of a block of coal
being mined and maintained as exhaust airways to remove methane promptly from the working
faces to prevent buildup of high concentrations either at the face or in the main intake airways.”
DMMRT at 55.
5

A “rider seam” is defined as “[a] thin coal seam above a workable seam, or a seam that
has no name.” DMMRT at 460.

40 FMSHRC Page 1061

2.

The Plan Negotiation Process

On January 12, 2015, the operator submitted the proposed plan to Russell Riley, District
Manager for MSHA Coal Mine Safety and Health District 9. On April 3, 2015, Riley rejected the
operator’s plan and requested additional information about seals and monitoring. In Riley’s view,
the operator failed to show that its plan would be “as effective [as the current dual-entry plan] at
minimizing risks to miners such as possible low [oxygen] and [methane] buildup near the tailgate
entries.” Sec. Ex. 4.
On April 23, 2015, the operator submitted another proposed single-entry plan, and met
with MSHA District 9 personnel approximately two weeks later to discuss it. On May 29, 2015,
Riley again rejected the operator’s plan. According to Riley, the proposed plan failed to ensure
that contaminated air from the gob would not “enter the longwall face exposing miners to low
[oxygen] levels at the tailgate and to gob gasses [sic] moving outby around the last shield.” Sec.
Ex. 7. Riley also stated that an increased likelihood of carbon monoxide overexposures and
spontaneous combustion would occur, as well as an increase in carbon dioxide.
On July 9, 2015, Signal Peak and MSHA District 9 personnel met again to discuss the
operator’s proposed single-entry plan. Rather than approve the plan, Riley requested assistance
from the MSHA Director of Technical Support at the Ventilation Division of the Pittsburgh
Safety and Health Technology Center.
On January 13, 2016, MSHA Technical Support issued a report prepared by Dennis
Beiter, Senior Mining Engineer in the Ventilation Division (the Beiter report).6 The report
recommended against approval stating, “the dual tailgate return system . . . results in better
protection for miners and enables earlier detection of spontaneous combustion.” Sec. Ex. 10
(quoting Sec. Ex. 10a at 2).
Riley then rejected the operator’s proposed plan for the third time, relying on Beiter’s
report. The findings of better protection against buildups of toxic gases, lowered oxygen, and
better monitoring were the basis for disapproving the Signal Peak plan.
In March 2016, MSHA District 9 requested that MSHA Technical Support perform two
fan stoppage tests using the mine’s existing dual-entry tailgate return and a simulated singleentry tailgate return. On April 25-28, 2016, the fan stoppage tests were performed by Thomas
Morley, a Mining Engineer in the Ventilation Division, and others.7 On May 3, 2016, MSHA
Technical Support issued a report prepared by Morley. On May 11, 2016, Riley sent a letter to
the operator referencing Morley’s report, which stated that unacceptably low levels of oxygen
occurred during the fan stoppage tests for both plans. Although Morley did not suggest that the
operator’s proposed plan be denied, he recommended that the operator add language to its plan to
6

Beiter was not told whether District 9 had a preference of one plan over the other, but
instead was directed to perform an independent review. Tr. 108-09.
7

The first fan stoppage test occurred on Monday, April 25, for the dual-entry system. It
lasted 90 minutes. The second 90-minute test for the single-entry system occurred three days
later on Thursday, April 28.

40 FMSHRC Page 1062

address fan stoppages, regardless of whether it ultimately used a dual-entry or a single-entry
plan. Sec. Ex. 15a at 5-6; Sec. Ex. 15.
Based on the results of the fan stoppage tests, on May 11, 2016, MSHA notified Signal
Peak that it needed to make immediate changes to its existing ventilation plan to protect miners
in the event of a fan stoppage. On May 16 and 18, 2016, the operator submitted another proposed
single-entry tailgate return ventilation plan.
On June 15, 2016, for the fourth time, Riley rejected Signal Peak’s proposed plan. About
a week later, the operator requested the issuance of a technical citation.8 MSHA subsequently
issued the citation that is the subject of this litigation.9
B.

The Judge’s Decision

The Judge affirmed the citation. 39 FMSHRC at 653. As a threshold matter of law, she
rejected Signal Peak’s argument that the Secretary is required to prove that the operator’s
ventilation plan is “unsuitable” for the mine, holding that operators are “not entitled to . . . de
novo hearing[s] on the merits of . . . plan[s].” Id. at 651. Instead, she held that a district
manager’s rejection of a proposed plan must be “arbitrary, capricious, or an abuse of discretion”
in order to be vacated. Id., citing Prairie State Generating Co., 35 FMSHRC 1985, 1989 (July
2013), aff’d, Prairie State Generating Co. LLC v. Secretary of Labor, 792 F.3d 82 (D.C. Cir.
2015); Mach Min., LLC, 34 FMSHRC 1784, 1790 (Aug. 2012), aff’d, Mach Min., LLC v.
Secretary of Labor, Mine Safety and Health Admin., 728 F.3d 643 (7th Cir. 2013)). Applying the
“arbitrary and capricious” standard of review, the Judge held that Riley’s decision “was based on
careful consideration of all of the relevant factors, and that he did not abuse his discretion in
requiring the mine to use a dual-entry plan.” 39 FMSHRC at 653.
The Judge found that Riley reasonably explained his position that: (1) the dual-entry
system was more effective at removing noxious gases from the tailgate area where miners work,
(2) the dual-entry system enabled better monitoring of conditions in the gob and earlier detection
of noxious gases before the gases reached the working face, (3) the dual-entry system did not
present significant material handling hazards, (4) there was a suitably low risk of spontaneous
combustion under the dual entry system, and (5) fan stoppage tests did not strongly favor either
plan. The Judge found that the District Manager based his decision on a careful consideration of
relevant factors and did not abuse his discretion.
8

The operator had twice before requested issuance of a technical citation. On those
occasions, however, MSHA continued to consider the request and asked for additional
information or investigation.
9

MSHA’s original citation included a reference to the deficiencies in the mine’s current
ventilation plan discovered during the fan stoppage tests. Due to the ongoing negotiations
addressing these deficiencies, however, the Secretary at hearing moved to amend the citation to
remove that portion, and the Judge granted the motion. 39 FMSHRC at 638, n.1. As such, the fan
stoppage deficiencies in the current plan are not at issue in the case before us.

40 FMSHRC Page 1063

Accordingly, the Judge affirmed the citation.
II.
Separate Opinions of the Commissioners
Commissioners Jordan and Cohen, voting to affirm the Judge:
We vote to affirm the Judge’s conclusion that District Manager Riley’s decision to reject
Signal Peak’s proposed single-entry ventilation plan was not arbitrary and capricious. The record
reflects that District Manager Riley carefully weighed several criteria before deciding to reject
the operator’s proposed plan. For instance, he determined that although the single-entry plan
would offer the benefit of potentially diminishing exposure to certain hazards, such as
spontaneous combustion and roof control hazards, any benefit would come at the expense of
protection from other potential hazards, such as an increased likelihood that miners would be
exposed to contaminated air.
The District Manager did not dismiss the operator’s concerns regarding spontaneous
combustion. Rather, he determined that the proposed additional protections against the risk of
spontaneous combustion would be marginal because the mine had already taken adequate steps
to control spontaneous combustion by injecting nitrogen into the gob and installing a blowing
system of ventilation. District Manager Riley reasonably focused on the hazard of oxygendeficient air exiting the gob into the areas where miners work. In sum, Riley rejected the singleentry plan, concluding that the plan “will not ensure that [contaminated] air” from the gob would
not “enter the longwall face exposing miners to low [oxygen] levels at the tailgate and to gob
gasses [sic] moving outby around the last shield.” Sec. Ex. 7.
The Judge concluded that Riley reasonably evaluated the relevant factors and specific
conditions of the mine prior to his determinations about the proposed plan. The Commission is
not in a position to substitute its view for the expertise of the District Manager on this highly
technical issue. Instead, the law requires us to determine whether the Judge’s findings that
informed her decision, on whether the District Manager’s decision was arbitrary and capricious,
was supported by substantial evidence. We conclude that substantial evidence supports the
Judge’s findings.1

1

We also uphold the District Manager’s and Judge’s decisions as necessary to prevent
the weakening of standards under section 101(a)(9) of the Mine Act. 30 U.S.C. § 811(a)(9). In
our view, the Act’s prohibition of weakening of mine health and safety standards is equally
applicable to ventilation plans. Just as new mandatory standards may not “reduce the protection
afforded miners” provided by the standards they replace, see id., we would decline to read new
plans – enforced as mandatory standards – to reduce the protection of miners provided by the
plans they replace. UMWA v. Dole, 870 F.2d 662, 671 (D.C. Cir. 1989) (holding that roof control
plans are enforceable as mandatory standards) (citing Zeigler Coal Co. v. Kleppe, 536 F.2d 398
(D.C. Cir. 1976)).

40 FMSHRC Page 1064

A.

The “Arbitrary and Capricious Standard” of Review Applied by the Judge was
Appropriate and Consistent with Legal Precedent.

Signal Peak argues that the Judge erred in applying an “arbitrary and capricious” standard
of review, and asks the Commission to reconsider its decisions in Prairie State Generating Co.,
35 FMSHRC 1985, 1989 (Jul. 2013) and Mach Mining, LLC, 34 FMSHRC 1784, 1790 (Aug.
2012). Signal Peak urges the Commission to adopt an approach under which, upon appeal of a
ventilation plan dispute, the Judge would hold a de novo hearing at which the Secretary is
required to prove that the operator’s plan is unsuitable, and if so, that MSHA’s plan is suitable.
SP Br. at 13-19; Oral Arg. Tr. 12. We decline to do so.
The Commission has recognized the Secretary’s discretion in the ventilation plan process,
relying upon the Act’s legislative history. See, e.g., Peabody Coal Co., 18 FMSHRC 686, 690692 (May 1996); C.W. Mining Co., 18 FMSHRC 1740, 1746-47 (Oct. 1996). The Senate
Committee Report on the Act stated that “while the operator proposes a plan and is entitled, as
are the miners and representatives of miners to further consultation with the Secretary over
revisions, the Secretary must independently exercise his judgment with respect to the content of
such plans in connection with his final approval of the plan.” S. Rep. No. 95-181, at 25 (1977),
reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 613 (1978) (“Legis. Hist.”).
The Secretary’s ultimate responsibility to approve ventilation plans was expressly
affirmed by the D.C. Circuit and Seventh Circuit respectively. See Prairie State Generating Co.,
supra, aff’d, 792 F.3d 82, 91-92 (D.C. Cir. 2015); Mach Mining, LLC, supra, aff’d, 728 F.3d
643, 657-58 (7th Cir. 2013).
Prairie State and Mach Mining require a Judge to consider whether a district manager’s
decision to deny the operator’s proposed ventilation plan was made arbitrarily, capriciously, or
otherwise amounted to an abuse of discretion. Mach Mining,728 F.3d at 658; Prairie State
Generating Co., 792 F.3d at 93. Under this standard, a district manager’s action may be
considered arbitrary and capricious if the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in view or the product of agency
expertise. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43 (1983). We continue to apply this standard here.2
We reaffirm the application of the “arbitrary and capricious” standard of review in
ventilation plan disputes as best effectuating the independent responsibilities delegated to MSHA
and to the Commission by the Mine Act. As the court recognized in Mach Mining, the process
delegated to the Secretary of approving mine-specific ventilation plans involves a congressional
2

Our colleagues candidly acknowledge that they believe the decisions of the Seventh
Circuit in Mach Mining and the D.C. Circuit in Prairie State Generating Co. were wrongly
decided. Slip op. at 17 n.5. Indeed, their opinion is predicated on a legal theory that is antithetical
to those two circuit court decisions.

40 FMSHRC Page 1065

mandate that his representatives exercise independent judgment. 728 F.3d at 657. Therefore, the
ventilation plan approval process is more akin to the formulation of a safety standard rather than
the enforcement of that standard and, thus, a de novo hearing (prototypically granted when the
Secretary seeks to enforce a safety standard against an operator) regarding the proposed plan
would be inconsistent with Congress’s delegation of responsibilities. See id; see also Prairie
State, 792 F.3d at 91-92. Accordingly, the court in Prairie State held that a “deferential [standard
of] review appropriately respects the Secretary’s policymaking prerogative and ensures that his
determinations are reasonable and adequately supported by the evidence.” 792 F.3d at 92.
For these reasons, we deny Signal Peak’s request to abrogate Prairie State and Mach
Mining.3
3

Our colleagues, purporting to rely on Secretary of Labor v. Canyon Fuel Co., 894 F.3d
1279 (10th Cir. 2018), assert that section 303(o)’s requirement that a ventilation plan be “suitable
to the conditions and mining system at the mine” limits the Secretary’s authority when reviewing
ventilation plans to a determination of whether the plan submitted by the operator to MSHA
“achieves safety and health requirements for adequate ventilation.” Slip op. at 15-17, 18. Our
colleagues expressly reject the idea that “suitable” may include a determination of which of two
proposed ventilation plans affords the greatest safety for miners. Thus, they state, “[s]ection
303(o) does not call for a ‘comparability’ analysis of potentially different ventilation plans.” Id.
at 20. However, our colleagues provide no standard for determining when a proposed plan
“achieves safety and health requirements for adequate ventilation” and do not define the word
“adequate.” Their rejection of MSHA’s ability to compare the relative merits of alternative
ventilation plans lacks legal foundation.
Moreover, our colleagues fail to understand MSHA’s use of the word “minimum” in its
Handbook for Mine Ventilation Plan Approval Procedures. MSHA Handbook Series, Handbook
Number PH13-V-2, Mine Ventilation Plan Approval Procedures (Apr. 2013). The Handbook is
saying that once the ventilation plan is approved, it becomes the minimum standard for
ventilation requirements at the mine. In no way is MSHA suggesting that ventilation plans need
only provide minimum protection for miners.
Far from a decision which “perfectly illustrates” our colleagues’ position, slip op. at 19,
Canyon Fuel reiterated the principle set forth in Mach Mining, 728 F.3d at 658, and Prairie
State, 792 F.3d at 92, that “the Secretary acts arbitrarily if he ‘entirely fail[s] to consider an
important aspect of the problem.’” 894 F.3d at 1297. Indeed, we are not aware of any
pronouncement by the Commission or a circuit court in the history of the Mine Act and its
predecessor Coal Act going back to 1969 which sanctioned the idea that a ventilation plan is
“suitable” because it is adequate even though another plan for the same mine afforded better
protection for miners. Quite to the contrary, in UMWA v. Dole, supra, 870 F.2d at 666, the D.C.
Circuit held: “Thus when new standards replace existing mandatory health or safety standards it
is not sufficient that the new standards demonstrate a reasonable accommodation of the
competing goals of safety and efficient coal mine operation. The statute expressly mandates that
(continued…)

40 FMSHRC Page 1066

B.

Substantial Evidence Supports the Judge’s Findings.
1.

Substantial Evidence Supports the Judge’s Finding that the District Manager
Reasonably Concluded that the Proposed Single-Entry Plan Would Create
an Unacceptable Risk of Noxious Gob Gases and Low Oxygen Entering
Areas Where Miners Work.

The operator’s proposed single-entry plan would change the manner in which the air
travels after sweeping the working face. Specifically, the proposed plan would omit the “T split”
and “back around” return that are components of the dual-entry plan; instead the air would leave
the mine in a single entry, the same entry in which miners work. 39 FMSHRC at 645.
The Commission reviews the Judge’s factual findings under the substantial evidence
standard of review. See 30 U.S.C. § 823(d)(2)(A)(ii)(I). “Substantial evidence” means “such
relevant evidence as reasonable minds might accept as adequate to support [the Judge’s]
conclusion even if it is possible to draw two inconsistent conclusions from the evidence.” Landes
Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987) (citation omitted); see
also Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989). In reviewing the
whole record, an appellate tribunal must consider anything in the record that “fairly detracts”
from the weight of the evidence that supports a challenged finding. Midwest Material Co., 19
FMSHRC 30, 34 n.5 (Jan. 1997) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488
(1951)).
The Judge credited the testimony of both District Manager Riley and the Secretary’s
expert witness Beiter, who explained that because the blowing ventilation system puts pressure
3

(…continued)

no reductions in the level of safety below existing levels be permitted, regardless of the benefits
accruing to improved efficiency.”
Moreover, in actual practice, our colleagues’ insistence that MSHA must view an
operator’s proposed plan in a vacuum and turn a blind eye to an alternative plan (even one
currently in effect at the operator’s mine) is difficult, if not impossible, to apply. As recognized
by Congress, ventilation issues are “complex and potentially multifaceted,” S. Rep. No. 95-181,
at 25 (1977), reprinted in Legis. Hist. at 613, and thus ventilation plans are more readily assessed
by balancing competing concerns in a mine, which necessitates an evaluation of potential
solutions and the potential effects of those solutions on other aspects of the plan. Thus, in
determining “suitability,” there are trade-offs which must be evaluated. In the present case,
MSHA’s plan emphasized protection from noxious gases entering working areas while Signal
Peak’s plan emphasized protection from spontaneous combustion. Rather than an arbitrary
determination of whether a plan (viewed with blinders on to avoid consideration of any other
options) is “adequate,” the process of evaluation involves a balancing of hazardous risks. Instead
of our colleagues’ formulation, we are guided by the D.C. Circuit’s statement in Prairie State
that as used in section 75.370(a)(1) “suitability is a discretionary, contextual exercise of expert
judgment regarding the safeguards needed to keep miners safe.” 792 F.3d at 93.

40 FMSHRC Page 1067

on the gob, noxious gases or low oxygen may be released into areas where miners work, if the
proposed single-entry system was used. 39 FMSHRC at 647; RH Tr. 35-36, 117-18. The minedout gob contains locations where noxious gases can accumulate. Riley and Beiter were
concerned about three different events which could cause the release of noxious gases or low
oxygen to occur: (1) a fan stoppage; (2) the air pressure in the tailgate entries and face becoming
lower than the gob’s air pressure, which would create a path of least resistance for the gases to
travel out from the gob to the working areas, or (3) a delayed rock fall that could push gob air out
on the face. RH Tr. 36-37, 111-12.
Riley testified that under the current plan, in these scenarios, the “back-around return” in
the dual-entry system acts as a “pressure relief valve” to help prevent the gob air from coming
out onto the face. RH Tr. 35. Specifically, the air that flows inby through the gob at the tailgate
from the “T-Split” pushes and directs the noxious gob gases up crosscut 49 and then outby in
tailgate entry number 2 (the “back return” entry), which is sealed off from entry number 1. RH
Tr. 35, 115-16; see also Sec. Ex. 24.
By contrast, the operator’s proposed single-entry system would eliminate tailgate entry
number 2, which means that any noxious gas accumulations would exit the gob and flow directly
into tailgate entry number 1, where miners work. Sec. Ex. 26; RH Tr. 117-18, 121-22; see also
Sec. Ex. 10(a) at 3 (Beiter Report) (concluding that the “potential for miners exiting the tailgate
side of the longwall face to be exposed to more elevated contaminant levels is greater in a
[single-entry] system than in a dual tailgate return system incorporating a back return.”).
Signal Peak claims that the results of a fan stoppage test4 contradict MSHA’s concerns. It
asserts that the oxygen levels for the single-entry test fell to a “slightly lesser degree” than the
dual-entry test, and that therefore the single-entry system was just as safe, if not slightly safer,
than the dual-entry system. Accordingly, it contends that Riley’s rejection of the single-entry
plan was arbitrary.5
4

The test was meant to determine how quickly gases would come out of the gob into the
working face in the event of a fan stoppage.
5

Signal Peak also points to testimony from Morley regarding the fan stoppage tests,
which could potentially be interpreted to suggest that noxious gas and low oxygen would be
unlikely to exit the gob in the event of a fan stoppage, under the single-entry system. See, e.g.,
Tr. 79 (“We didn’t find many contaminants at all”); Tr. 80-81 (stating that “good quality” air
came out from behind the shields); SP Post-Hrg. Br. at 16. This testimony is not relevant,
however, because Morley’s statements were made in response to questions from Signal Peak’s
counsel about the air quality that had occurred during the time in between the two fan stoppage
tests. See Tr. 79 (Q: “[D]id you compare on Monday with readings on Tuesday and Wednesday
to see whether there were more contaminants on the dual entry or the single entry?”) (emphasis
added). The second test did not occur until Thursday, April 28, 2016. Sec. Ex. 15 at 4. As such,
the Judge appropriately did not give much weight to Morley’s testimony in favor of the operator
on this issue.
(continued…)

40 FMSHRC Page 1068

We disagree. Riley considered the results of the fan stoppage test and he determined that
the results did not favor one plan over the other. This determination was supported by substantial
evidence and was within the District Manager’s discretion. Furthermore, there is evidence that
the tests were not performed in accordance with the agreed upon protocols creating doubt about
the reliability of the results. 39 FMSHRC at 649.
The operator also suggests that the back-up fan at the mine rendered the District
Manager’s decision arbitrary and capricious. However, MSHA had provided an opportunity for
Signal Peak to supply necessary information about the back-up fan before it made its decision,
and the operator failed to do so.6 We decline to consider this new information, which was never
communicated to MSHA. See, e.g., Chamber of Commerce v. SEC, 443 F.3d 890, 904 (D.C. Cir.
2006) (holding that interested parties may not “withhold relevant data [in rulemaking
proceedings] and blindside the agency on appeal”). Even assuming that we were to find that the
Judge erred in overlooking the evidence of the back-up fan, this constitutes harmless error
because there is still evidence of the other types of events that could have caused the release of
noxious gases or low oxygen into the areas where miners work, e.g., the air pressure in the
tailgate entries and face could become lower than the gob’s air pressure, which would create a
path of least resistance for the gases to travel from the gob into the working areas or a delayed
rock fall could occur, which would push gob air out on the face. RH Tr. 36-37, 111-12.
As such, we find that substantial evidence supports the Judge’s finding that the District
Manager reasonably concluded that the proposed plan would create an unacceptable risk of
noxious gob gases and low oxygen entering areas where miners work.
2.

Substantial Evidence Supports the Judge’s Finding that the Risk of
Spontaneous Combustion Under the Current Ventilation Plan was Low.

Signal Peak argues that the Judge and the District Manager overlooked material evidence
that the proposed plan would significantly decrease the risk of spontaneous combustion. The
operator relies on the fact that the current plan directs a certain amount of air inby the number 1
tailgate entry for a distance of one crosscut (approximately 225-285 feet) along the inner edge of
5

(…continued)
For the same reason, we reject the operator’s argument that the air in the gob would not come out
into the face during normal mining operations because the mine face has higher air pressure than
the gob. Tr. 130, 143. MSHA was not concerned with normal mining operations. MSHA is
concerned with aberrations from normal mining operations – where the ventilation is being
disrupted or not properly controlled (such as a drop in barometric pressure or a loss of fan
power). RH Tr. 122-23.
6

Signal Peak had never submitted to MSHA any information regarding whether the
back-up fan had a separate power source or whether it could easily be activated – even though
MSHA had specifically requested this information. Sec. Ex. 10(a) at 5 (Beiter Report)
(requesting clarification on “the means or time necessary for implementing [the back-up fan’s]
usage following a main fan outage . . . [and] whether or not the backup main fan was powered by
a power source separate from the main fan”).

40 FMSHRC Page 1069

the gob. Id. at 34; Tr. 128; SP Ex. EEE; Sec. Ex. 24. By contrast, the operator argues that the
proposed single-entry plan would introduce substantially less oxygen into the gob, which would
better prevent spontaneous combustion. SP Br. at 25; RH Tr. 78-79; Tr. 50-51, 128.
The operator also asserts that the proposed plan would introduce less oxygen into the gob
on the headgate side. Specifically, under the current plan, the crosscut seals cannot be installed
until after the longwall passes each crosscut. The operator emphasizes that the seals are currently
built between headgate entries 2 and 3, and that the seals would obstruct access to the primary
escapeway in entry 2 if built prior to the gob advancing. See Sec. Ex. 24. This means that, until
the seal is constructed, there is an opening into the gob through which air could enter. Id. Under
the proposed plan, the seals would be between entries 1 and 2 and so could be built before the
longwall advances without obstructing access to the escapeway. SP Br. 25-26; see also Sec. Ex.
26. This would prevent any temporary opening into the gob through which air could enter.
Despite these arguments, we believe that the Judge did not overlook any material
evidence that the proposed plan would significantly decrease the risk of spontaneous
combustion. The Judge found that the “mine’s current ventilation plan [requiring a blowing
system] has been in place since January 2013 and has successfully limited spontaneous
combustion since that time.” 39 FMSHRC at 644-45. The Judge further concluded that Riley
reasonably determined that the risk of spontaneous combustion was suitably low under the
current plan, and that it was not necessary to decrease the amount of air entering the gob beyond
the current amount. Id. at 652. These findings are supported by substantial evidence.
Riley testified that he had considered Signal Peak’s concerns that the current plan
imposes a significant risk of spontaneous combustion. RH Tr. 41-42. Specifically, Riley testified
that he had taken into account the fact that the mine has a lengthy incubation period (the time for
the coal in the gob to combust when exposed to oxygen).7 RH Tr. 41-43. Based on these criteria,
Riley had concluded that it was not necessary to decrease the amount of air entering the gob
below the current amount.
Furthermore, Riley testified that he had considered the fact that Signal Peak “inject[s]
nitrogen into the gob to help prevent spontaneous combustion” and explained that, since
December 2011, there have been no spontaneous combustion events at the mine, which indicated
to him that the present system is effective. RH Tr. 43, 105-07. Signal Peak’s Vice President of
Engineering Farinelli himself agreed that, since December 2011, the operator has been
successfully mining under the dual-entry system, and controlling spontaneous combustion. Tr.
176. Therefore, the record supports Riley’s determinations, which the Judge recognized, that the
risk of spontaneous combustion is low under the current plan, and that considerations of
preventing spontaneous combustion should not be a decisive factor here in determining the
suitability of the proposed plan.
Moreover, Riley testified that he had taken into account that the mine injects nitrogen 1015 crosscuts (2200 to 3300 feet) behind the face. RH Tr. 79-80; Tr. 31. This indicated to Riley
7

Incubation periods are based on the “temperature versus the moisture content versus the
oxygen content” of the mine. RH Tr. 42-43.

40 FMSHRC Page 1070

that there is no imminent threat of spontaneous combustion caused by the current practice of
introducing air a mere 225-285 feet into the gob on the tailgate side because, if the risk for
spontaneous combustion was so great, the mine would be injecting nitrogen much closer to the
longwall face. RH Tr. 43; see Sec. Ex. 24.
Signal Peak claims that nitrogen injected closer to the face would be diluted by the air on
the face and immediately behind the longwall shields, and therefore would be ineffective in
inerting the gob. Tr. 36-37, 187. However, Beiter testified that only a portion of the nitrogen
would be diluted and carried away by the face airflow, and that, in his view, the operator would
have simply needed to inject a higher quantity of nitrogen closer to the face. Tr. 37-38.
Likewise, Signal Peak’s claim that the current plan allows for more oxygen to be
introduced into the gob on the headgate side conflicts with other evidence in the record. Beiter
rejected this claim in his report. Specifically, Beiter stated that “a curtain was typically installed
in the crosscut inby the longwall face where the headgate seal would later be constructed. That
curtain was described as ‘not tight.’” Sec. Ex. 10(a) at 6. In Beiter’s view, “[c]onstruction of a
more substantial control such as a permanent stopping or framed check curtain (temporary
stopping) instead of a curtain described as ‘not tight’ would reduce the quantity of intake air
leaking into the worked-out area.” Id. This would prevent air from flowing through any opening
into the gob on the headgate side before the seal is constructed. Tr. 10. As stated, the Judge
permissibly credited Beiter’s testimony.
In summary, the record does not reflect that the District Manager failed to give adequate
consideration to the evidence relating to the hazard of spontaneous combustion.
3.

Substantial Evidence Supports the Judge’s Finding that the Current Plan
Allows for Earlier Detection of Spontaneous Combustion.

Even if spontaneous combustion did present a problem here, the Judge recognized that
Riley determined that the dual-entry system enables better monitoring of conditions in the gob.
39 FMSHRC at 648. Indeed, Riley testified that an air monitoring sensor in the dual-entry
system “gives the true air concentrations and the gas that they detect from the back[-around]
return” and “give[s] earlier detection . . . from the gob at this sensor versus not having the back[around] return and having the sensor hung right here on the last shield only about two foot from
the working face and the gob gases would be out into the working area before they were detected
by the detection system.” RH Tr. 40-41.
Beiter testified that detecting spontaneous combustion early would be more difficult in a
single-entry system because of the increased dilution that would occur, which could mask the
existence of the carbon monoxide. Beiter further explained that, in the dual-entry system, “the
contaminants are elevated in that back return airflow. They’re less diluted . . . from a detection
standpoint, the less dilution you have, the more likely you are to find an indication of the
beginning of a heating, of a spontaneous combustion event as opposed to a more diluted
atmosphere,” providing earlier detection of spontaneous combustion. Tr. 18-22, 43; see also Sec.
Ex. 10(a) at 3. The Judge expressly credited Beiter’s testimony, finding that he had “significant
experience with spontaneous combustion.” 39 FMSHRC at 650.

40 FMSHRC Page 1071

Signal Peak argues that the dual-entry system does not provide a reliable method of early
detection of spontaneous combustion. The operator points to testimony by Vice President of
Engineering Farinelli stating that the monitoring advantage of the back-around system described
by Beiter is minimal because the atmospheric monitoring sensor in the back return only measures
the percentage of CO in the tailgate entry – which is relative to how much oxygen is present in
the air. Tr. 146-50. According to Farinelli, if only a relatively low amount of oxygen exists, the
concentration of CO showing up on the sensor is higher. By contrast, higher levels of oxygen
will dilute the concentration of CO, which paints a misleading picture of how much CO is
actually present in the gob.
The Judge chose to rely on the testimony of Riley and Beiter. We find that substantial
evidence, i.e., evidence capable of persuading a reasonable mind, exists to support the Judge’s
finding that the dual entry system provides a better method of early detection of spontaneous
combustion.
4.

Substantial Evidence Supports the Judge’s Finding that the Single-Entry
Plan Would Only Minimally Reduce Material Handling and Roof Control
Hazards.

Although Signal Peak’s proposed plan would obviously reduce material handling and
roof control hazards by eliminating the need to maintain tailgate entry number 2, the Secretary
has demonstrated that the resulting reduction in hazards would be minimal. According to Riley,
the operator has done a “pretty good job” in mitigating the hazards that relate to roof control and
material handling. RH Tr. 43-45, 81-83. According to Beiter’s report, discussions with the
operator’s personnel did not indicate a history of accidents involving material handling during
the installation of standing support in the No. 2 headgate entry of previous longwall panels. Sec.
Ex. 10(a) at 6. Thus, Beiter reasonably concluded that the operator was doing a good job of
installing support in a safe manner. Tr. 14-15, 49-50.

40 FMSHRC Page 1072

Additionally, Beiter testified that he “was not made aware” and “[n]o records were
provided” that there were any issues regarding safe access to construct seals in the dual-entry
system. Tr. 12-13. Indeed, as Farinelli himself testified, “we feel we are doing an excellent job at
managing our roof control.” Tr. 176. As a result, substantial evidence supports the Judge’s
finding that the reduction in material handling and roof control hazards would be minimal under
the single-entry system.
Conclusion
Accordingly, we would hold that under the appropriate standard of review, the Judge’s
decision affirming the District Manager’s rejection of the plan is supported by substantial
evidence.

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

40 FMSHRC Page 1073

Acting Chairman Althen and Commissioner Young, in favor of reversing:
We would find that the Judge applied the wrong legal standard and that substantial
evidence8 does not support a finding that the operator’s ventilation plan was not suitable — that
is, was not appropriate to meet the requirement to provide safe and healthful ventilation at the
specific mine. Accordingly, we would reverse the decision of the Administrative Law Judge and
approve the operator’s plan.
Legal Principles
The focal point of this case is the requirement of section 303(o) of the Mine Act that an
operator must prepare and MSHA must approve a ventilation plan “suitable to the conditions and
the mining system of the coal mine . . . .” 30 U.S.C. § 863(o).9 In turn, the issue narrows further
to the meaning of the term “suitable” and whether substantial evidence supports the Judge’s
determination that the plan prepared by the operator was not suitable.
The Mine Act does not define “suitable.” Courts of appeal and the Commission have held
that in the absence of a statutory definition or a technical usage of the term “suitable,” we apply
the ordinary or dictionary meaning of the word. Canyon Fuel Co., LLC v. Sec’y of Labor, 894
F.3d 1279, 1288 (10th Cir. 2018); Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996).
Consequently, for our purposes, “suitable” means “adapted to a use or purpose,” “having the
necessary qualifications: meeting requirements” and “fitted for, adapted or appropriate to a
person’s . . . needs.” Canyon Fuel, 894 F.3d at 1288.
The purpose of a ventilation plan is to provide safe and healthful atmospheric conditions.
MSHA has stated correctly “[a] sound ventilation plan is essential to maintaining adequate
ventilation and respirable dust control in the mine.” MSHA Handbook Series, Handbook
Number PH13-V-2, Mine Ventilation Plan Approval Procedures (Apr. 2013). MSHA further
correctly identified the test for acceptance stating, “[p]lans adopted by the mine operator and
approved by the district manager define minimum safety and health requirements for the mine.”
Id. Therefore, a suitable ventilation plan — a plan that MSHA must approve — is one that
8

“Substantial evidence” means “such relevant evidence as reasonable minds might
accept as adequate to support [the Judge’s] conclusion even if it is possible to draw two
inconsistent conclusions from the evidence.” Landes Const. Co. v. Royal, 833 F.2d 1365, 1371
(9th Cir. 1987); see also Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989)
quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). In reviewing the whole
record, an appellate tribunal must consider anything in the record that “fairly detracts” from the
weight of the evidence that supports a challenged finding. Midwest Material Co., 19 FMSHRC
30, 34 n.5 (Jan. 1997) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).
9

Signal Peak was issued a technical citation alleging a violation of 30 C.F.R.
§ 75.370(a)(1), which mirrors the language of the Mine Act and provides in relevant part that
“[t]he operator shall develop and follow a ventilation plan approved by the district manager” and
that “[t]he plan shall be designed to control methane and respirable dust and shall be suitable to
the conditions and mining system at the mine.”

40 FMSHRC Page 1074

achieves safety and health requirements for adequate ventilation and respirable dust control at
the specific mine.10
The obligation that a plan must be appropriate for its purpose (suitable) is a consistent
and repeated theme in the Mine Act and underground coal mine regulations. Title III of the Mine
Act contains 14 specific requirements for “suitable” equipment or a “suitable” plan. The
regulations of underground coal mines at 30 C.F.R. Subchapter O, Part 75 contain more than 30
“suitability” requirements.
When an operator presents a ventilation plan to MSHA for approval, the only question
for MSHA is whether the plan provides adequate safety and health protections for the specific
mine. MSHA has promulgated extensive mandatory standards for ventilation. 30 C.F.R. §§
75.300-75.389. Those regulations establish mandatory standards that a ventilation plan must
meet in order to be suitable. Given the purpose and effect of those standards, a ventilation plan
that is adequate for operation of the mine in compliance with those regulations achieves the
conditions for maintaining adequate ventilation and respirable dust control in the specific mine.
Such a plan is therefore suitable.
This case turns upon the issue of substantial evidence — namely, whether substantial
evidence supports the Judge’s decision. Nonetheless, it is useful to review briefly the
development of burden of proof issues in plan approval cases so that we may place the
substantial evidence issue in the proper context.
Unquestionably, the Secretary bears the burden of proof in Commission suitability
proceedings. However, the Commission has taken shifting positions on the standard of proof.
Prior to 2012, the Commission consistently held that the Secretary bore the burden of
establishing by a preponderance of the evidence that the operator’s plan was unsuitable for the
mine in question. See, e.g., Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996) (“Peabody
II”); Peabody Coal Co., 15 FMSHRC 381, 388 (Mar. 1993) (“Peabody I”) (“[t]he Secretary
bears the burden of proving that the plan provision at issue was suitable to the mines in
question”); C.W. Mining Co., 18 FMSHRC 1740, 1748-53 (Oct. 1996).

10

Use of the term “minimum” by MSHA in conjunction with safety and health
requirements appropriately gives one pause. But the agency’s use of the term “minimum” most
certainly does not connote in any way an insufficient system. It means, as MSHA says, that the
ventilation plan must maintain adequate ventilation and respirable dust control in the mine. If the
plan maintains adequate ventilation and respirable dust control, it is suitable. MSHA obviously
and correctly recognizes that there may be many ways of accomplishing a goal. The critical
requirement is that the ventilation plan is appropriate and fit for providing a safe and healthful
atmospheric condition in the specific mine. In this matter, the agency has not analyzed the
operator’s plan from that standpoint, nor has it made a persuasive case that it fully considered the
relative health and safety benefits of the operator’s plan in a way that is not self-contradictory or
superficial.

40 FMSHRC Page 1075

In a 3–2 decision issued in 2012, a Commission majority held that the Secretary’s
burden consisted of showing that MSHA’s disapproval of the suitability of a plan was not an
abuse of his discretion and was not arbitrary and capricious. Mach Mining, LLC, 34 FMSHRC
1784, 1790 (Aug. 2012), aff’d, 728 F.3d 643, 658 (7th Cir. 2013). That standard requires that
the Secretary show MSHA “examine[d] the relevant data and articulate[d] a satisfactory
explanation for its action including a ‘rational connection between the facts found and the
choice made.”’ Id. at 1790-91, citing Twentymile Coal Co., 30 FMSHRC 736, 754, 773-74
(Aug. 2008). The decision did not remove the burden of proof from the Secretary, but adjusted
the standard of proof to an abuse of discretion test. The abuse of discretion standard of proof
does not affect the application of the substantial evidence test as applied to a Judge’s findings of
fact.
The Commission reaffirmed Mach in Prairie State Generating Co., LLC, 35 FMSHRC
1985, 1989 (July 2013). Subsequently, the United States Court of Appeals for the District of
Columbia Circuit affirmed the Commission’s decision. Prairie State Generating Co., LLC v.
Sec’y of Labor, 792 F.3d 82, 92 (D.C. Cir. 2015).11 The circuit court did not find the Mine Act
mandated use of the abuse of discretion standard, but instead accepted the Commission’s
deferential use of that standard stating “[w]e therefore hold that the standard of review applied
by the Commission was at least a permissible one.” Id. at 93. Again, the circuit court’s decision
left in place the substantial evidence requirement that requires MSHA to support a denial of a
plan through presentation of facts pertaining to the proffered plan that sustain a reasonable
conclusion that the plan did not provide for the safety and health requirements at the specific
mine.12

11

In doing so, the circuit court commented upon the expertise of MSHA in reviewing
ventilation plans. With all respect for the circuit court, the Commission and its Judges often deal
with complex issues involving expert witnesses. For example, disputes regarding whether a
violation is significant and substantial turn on the evidence for the Secretary and operator of the
reasonable likelihood of a hazard and the reasonable likelihood of an injury if the hazard occurs.
In S&S cases, the Secretary must establish a preponderance of the evidence demonstrating the
reasonable likelihood of a hazard or injury. Often this involves disputed testimony between
contending experts. Such inquiries call for determinations by Judges very much in the nature of
whether a ventilation plan is fit for providing ventilation in accordance with MSHA’s mandatory
standards.
12

We continue to believe that Prairie State Generating Co., 35 FMSHRC 1985 (July
2013), aff’d, 792 F.3d 82 (D.C. Cir. 2015) and Mach Mining, LLC, 34 FMSHRC 1784, 1790
(Aug. 2012), aff’d, 728 F.3d 643 (7th Cir. 2013), were wrongly decided. Contrary to our
colleagues’ assertions (slip op. at 7 n.2), we recognize that those decisions were upheld by the
circuit courts as permissible interpretations by the Commission, and we do not “reject” the
holdings in those decisions because it is unnecessary to do so. Here, the outcome does not turn
upon the standard of review but rather the fact, demonstrated below, that MSHA’s decision to
reject the operator’s proposed plan was not analyzed under the safety standard provided by the
statute and was not supported by substantial evidence.

40 FMSHRC Page 1076

Most recently, in a case particularly relevant here, the United States Court of Appeals
for the Tenth Circuit reviewed a Commission decision regarding whether an escapeway met the
suitability requirements of 30 C.F.R. § 75.380(d)(5).13 The Commission, by a 2–2 vote, left
standing an Administrative Law Judge’s finding that the escapeway used by the operator was
not the most direct, safe and practical route to the nearest mine opening “suitable” for the safe
evacuation of miners. Canyon Fuel Co., LLC, 39 FMSHRC 1578, 1578-79 (Aug. 2017), aff’d in
part and vacated in part, 894 F.3d 1279 (10th Cir. 2018).
On appeal, the circuit court addressed the Secretary’s burden of establishing a violation
of the escapeway standard:
To establish a violation of § 75.380(d)(5), however, “[i]t is
insufficient for the Secretary to merely cite the designated route as
being out of compliance with the regulation.” S. Ohio Coal, 14
FMSHRC at 1785. Rather, “it is the Secretary’s burden to prove
that, as compared to the designated route, there is at least one other
escapeway route that [he] has determined more closely complies
with the standard’s requirement.” Id.
894 F.3d at 1295-96. The circuit court then turned to an analysis of whether the Secretary had
presented substantial evidence in support of its position. The court found that the Secretary had
failed to carry his burden and reversed the Judge’s decision. Id. at 1296-1300.
Pertinent to this case, the circuit court soundly rejected any notion that a Judge or the
Commission must accept MSHA disapproval of a plan merely because MSHA finds another
plan to be preferable. Even more pertinent, the court’s decision illustrates a point of
fundamental importance to this case — namely, the test of suitability is not which plan MSHA
might prefer, but instead whether the plan (i.e., route in Canyon Fuel) proffered by the operator
is suitable. In other words, the suitability determination is not an opportunity for MSHA to
design a route or develop a plan for the operator. MSHA’s duty is to review the plan submitted
by the operator and determine whether it achieves the requisite safety and health requirements
at the specific mine.14
13

30 C.F.R. § 75.380(d)(5) provides “[e]ach escapeway shall be . . . [l]ocated to follow
the most direct, safe and practical route to the nearest mine opening suitable for the safe
evacuation of miners.”
14

Section 75.380(d)(5) is an unusual suitability provision. It does not require MSHA to
determine only whether an escapeway is sufficient to reach a mine opening “suitable” for safe
evacuation. Instead, if there are more than one escapeways to a suitable evacuation point, MSHA
must decide whether the escapeway designated by the operator is “the most direct, safe and
practical route.” Therefore, unlike section 303(o) that mandates only that the ventilation plan be
suitable, section 75.380(d)(5) may require comparison of alternative “suitable” escapeways. In
the present case, MSHA has not analyzed the operator’s plan in terms of its suitability. As in
Canyon Fuel, this is a fatal flaw. It is self-evident from the record evidence in the case and the
specious and, at times, contradictory, rationales offered by the agency that the District Manager
(continued…)

40 FMSHRC Page 1077

The circuit court’s first inquiry in examining the substantial evidence issue was whether
the operator’s exit point was suitable when examined on its own and without reference to the
MSHA plan. After the court determined that the point of exit under the operator’s plan was
suitable, it then turned to the unique aspect of comparing routes of exit under the governing
standard. Id. at 1297-98.
In Canyon Fuel, there was no dispute that the escapeway preferred by the Secretary
provided a preferable location for exiting the mine. It had more room and quicker access to
medical assistance. However, the operator’s escapeway was “suitable” notwithstanding the
better conditions at the point of exit under MSHA’s preferred route.
Canyon Fuel, therefore, perfectly illustrates that MSHA must make its suitability
determination based on the operator’s specific plan. Even in the unusual circumstances where
the mandatory safety standard required a comparison of escapeways, MSHA could not conclude
an escapeway was unsuitable because it preferred certain characteristics of an alternate
escapeway. It could not compare escapeways and find one “more suitable” than the other. The
court required an initial determination of whether the escapeway developed by the operator was
suitable. Only then did the comparison aspect of this specific regulation come into play.
This is a critical point for this case. Here, MSHA’s duty was not to determine which of
two plans it preferred or to evaluate the proffered plan as though it were a possible alternative to
the existing plan. MSHA’s task was to determine whether the plan submitted by the operator
was suitable. This task does not require or permit formulation by MSHA of a new plan or
comparison by MSHA with an existing plan. The operator’s presentation of the plan calls for a
freestanding, fact-based determination of whether the proffered plan is suitable — that is,
whether it is appropriate for achieving the safety and health requirements at the specific mine.
Where, as in this case, there has been no finding or evidence showing that the operator’s plan

14

(… continued)
made up his mind that he preferred the existing plan and then cobbled together whatever support
he could find to purport that MSHA’s plan was preferable, without holding the operator’s plan to
be unsuitable. Contrary to our colleagues’ claim in footnote 3 of their opinion, MSHA never
made a determination that safety would be unacceptably compromised, taking into account the
relative risks and benefits of both plans. The agency relied on evidence that does not support its
position, such as the fan test results; dismisses without explanation legitimate and evidencebased concerns about material handling safety concerns; and asserts simultaneously that its plan
is superior – again, using the wrong standard – because it provides better response to
spontaneous combustion, while diminishing the operator’s concerns about the occurrence of
spontaneous combustion – which is better addressed by the operator’s plan. In short, the decision
is hobbled by the kind of incoherent and erratic rationalizing that marks arbitrary and capricious
agency actions.

40 FMSHRC Page 1078

has failed to meet those requirements, MSHA’s rejection of the operator’s suitable plan and
demand of a different plan, even applying the Prairie State standard, is an abuse of discretion.15
From the foregoing, we discern that the outcome of a suitability determination in this
case does not depend upon a didactic characterization of the standard of review as beyond a
preponderance of the evidence or abuse of discretion. Instead, at the end of the day, MSHA
must base a refusal to accept a ventilation plan only upon substantial evidence that the proffered
plan would not meet the safety and health requirements at the specific mine. Certain principles
become clear.
First, the Secretary bears the burden of introducing evidence to support the proposition
that the proffered plan does not achieve the safety and health ventilation requirements at the
specific mine.
Second, there is not a presumption that the Secretary’s opinion is correct. Under any
standard of proof, the Secretary must present substantial evidence to support his position. That
evidence must be sufficient for a reasonable person to conclude that usage of the plan under
review is not appropriate to achieve the safety and health ventilation requirements at the
specific mine.
Third, in reviewing a proposed ventilation plan, MSHA does not have a right or
responsibility to determine whether an alternative plan — or even an existing plan — would
also achieve the safety and health ventilation requirements at the specific mine. Section 303(o)
expressly divides responsibilities between the operator and MSHA. The operator has the duty to
develop a plan for maintaining adequate ventilation and respirable dust control in the specific
mine. MSHA has the duty to review the plan. But the mine is not federal property: it is the
operator’s investment-backed business, and under the law it retains the right to have its mining
plans approved unless they fail to conform to duly-promulgated federal and state standards and
regulations, including the health and safety standards imposed by and under the Mine Act.
An operator’s desire to maximize mining efficiency is thus acceptable — or “suitable”
— provided it maintains adequate ventilation and respirable dust control in the specific mine.
Section 303(o) does not require, and indeed does not permit, MSHA to design the ventilation
plan. Section 303(o) does not call for a “comparability” analysis of potentially different
ventilation plans. Thus, section 303(o) does not call for MSHA to develop a plan of its own and
impose such plan upon the operator. Suitability is the standard. If the operator’s plan is suitable
– that is, is appropriate for maintaining adequate ventilation and respirable dust control, then it
meets the requirements of section 303(o).

15

To be sure, because good faith negotiations are required before MSHA rejects a plan, if
MSHA does not find a plan suitable, MSHA must discuss the plan and suggest changes that
would satisfy its concerns with achieving the requisite safety and health. But MSHA may not
reject a suitable plan — that is, one that will achieve adequate ventilation and respirable dust
control in the specific mine — simply because MSHA prefers a different plan.

40 FMSHRC Page 1079

The Judge’s error here is that she failed to evaluate the District Manager’s decision and
the evidence in support of that decision under the correct legal standard, i.e., whether the
operator’s plan was suitable, and instead, simply considered whether MSHA abused its
discretion in rejecting the operator’s plan. The problem with this analysis is that it ignores the
language of the statute and implementing standard and conflates the District Manager’s decision
with the Secretary’s burden of proof at trial. If the Secretary is permitted to simply endorse the
District Manager’s decision with post hoc rationalization and evidence adduced at trial, then an
operator would never prevail where the agency has rejected its proposed plan.16
Application of Legal Principles
The record in this case reveals that MSHA did not review the operator’s plan for
suitability. Instead, MSHA compared the proffered plan to the existing plan and decided it
preferred for the operator to maintain the existing plan. MSHA made a comparability analysis
rather than a suitability analysis. The Secretary did not find, or even offer evidence showing the
new plan proposed by the operator was not suitable — that is, would not meet the requirements
for a safe and healthful environment.
MSHA refused to approve the operator’s proposed plan, despite the fact that the evidence
shows it addressed well the major concerns of the standard, provided a lower risk of spontaneous
combustion, lower risk of exposure to roof control hazards, better adaptability to the escapeway
plan, and equivalent insufficiency to the dual-entry system in terms of what the fan stoppage test
revealed — a problem of noxious gases and low oxygen that MSHA’s alternative plan also failed
to satisfy and that the operator committed to fix. Tr. 50, 70-72, 79, 118-19, 120, 126, 128, 163;
RH Tr. 78-79, 89-90; Sec. Ex. 15(a).
MSHA based its denial of the operator’s proposed plan, and the Judge and our colleagues
base their approving opinions, on comparison-based claims — namely, that (1) the dual-entry
system was more effective at removing noxious gases from the tailgate area where miners work,
(2) the dual-entry system enabled better monitoring of conditions in the gob and earlier detection
of noxious gases before the gases reach the working face, (3) the dual-entry system did not
present substantially greater material handling hazards, (4) there was a suitably low risk of
spontaneous combustion under the dual-entry system, and (5) fan stoppage tests did not strongly
favor either plan.

16

Even under the more deferential standard applied in Mach and Prairie State,
substantial evidence does not support the Judge’s conclusion that MSHA’s District Manager
Riley did not abuse his discretion in rejecting the operator’s proposed plan in this case because
he failed to consider whether the operator’s proposed plan was suitable under section 303(o).

40 FMSHRC Page 1080

The fan stoppage tests were inconclusive and at best, favored the operator’s plan.17 As to
points 3 and 4 above, those factors demonstrate that MSHA was making a comparability analysis
rather than a suitability analysis. These factors consider whether the operator’s plan has benefits
that make it “more suitable” than the plan preferred by MSHA.18 The only issue that bears upon
the suitability of the operator’s single-entry plan is whether substantial evidence shows that the
operator’s plan is not sufficient to achieve safety and health requirements related to the
possibility of entry of noxious gases into areas where miners work.19
Rather, MSHA’s disapproval of the operator’s proposed plan was based largely on the
conclusion that the single-entry plan doesn’t justify that it will be “as effective at minimizing
risks” and thus “[w]e feel” that the dual-entry return is the “best option.” Sec. Ex. 4 (emphasis
added). Further considering the pros and cons, MSHA stated in a subsequent rejection that “it
has been decided that dual tailgate entry is in the best interest for health and safety of the miners”
in part because “air course resistance of the tailgate would be four times the value of a dual
return.” Sec. Ex. 7. MSHA provided no explanation as to how this makes the operator’s plan
“unsuitable,” and the record does not support a conclusion that it is.
Citing a report prepared by Dennis Beiter, MSHA’s Senior Mining Engineer in the
Ventilation Division (“Beiter’s report”), finding that the dual tailgate return resulted in better
protection of miners through earlier detection of spontaneous combustion, MSHA rejected the
operator’s plan Sec. Ex. 10; Sec. Ex. 10a (the Beiter report). This finding makes no sense.
MSHA found that the risk of spontaneous combustion under the existing blowing system was so
low that the advantage of the operator’s plan to the prevention of a spontaneous combustion was
irrelevant. Beiter expressly testified “the present system is effectively slowing the potential for
spon com to occur in the workout areas of the longwall panels.” Tr. 106. Then, having found
very little or no risk of spontaneous combustion and no reason for a plan providing additional
preventative advantages, the agency cites possible better detection of a potential combustion as a

17

The results of the fan stoppage tests were inconclusive and certainly did not support
that the operator’s single-entry system was unsuitable to the conditions at the mine. The
Secretary’s own witness, MSHA engineer Thomas Morley, concluded that the fan stoppage test
results for both the dual-entry and single-entry system were similar — which undermines Riley’s
testimony that the dual-entry system is better at preventing gob air from coming out onto the face
than the single-entry system. Tr. 70-72.
18

As Canyon Fuel illustrates, if the operator’s plan was unsuitable, the cited benefits
would not make it suitable. In Canyon Fuel, if the exit point of the operator’s route were not
suitable, the much better conditions of the route of egress would not have made it the most direct
route to a suitable exit. Canyon Fuel, supra, 849 F.3d at 1295-96.
19

Nonetheless, we must comment that the Secretary and Judge’s casual disregard for the
possibility of a spontaneous combustion in a mine with the potential for and history of such
events is troubling. Having had a combustion event, the operator took prudent steps to reduce the
chance of a repeat event. We would not easily dismiss any prudent steps at further reducing the
possibility of such an event.

40 FMSHRC Page 1081

reason for preferring its plan. Therefore, in the agency’s view, outright protection was not useful
but earlier detection was. It is impossible to reconcile these theories.20
Beiter’s report did not find or even suggest that the operator’s ventilation plan was not
suitable. It reads from beginning to end as a “comparison” report. Substantial evidence does not
support that the operator’s plan was unsuitable, or even that MSHA’s plan was more suitable.
Rather, the evidence will indicate that District Manager Riley’s decision to reject Signal Peak’s
proposed plan was arbitrarily driven by a preference for MSHA’s dual-entry system, as MSHA
Official Kevin Stricklin had instructed Riley not to approve the operator’s plan regardless of the
results of the fan stoppage test. Tr. 161-62.
Detection and Removal of Noxious Gases
The Judge found that District Manager Riley had explained in his testimony and letters to
Signal Peak that the dual-entry system is “more effective” because it helps to prevent noxious
gas accumulations in the gob from entering the working areas. 39 FMSHRC at 652. Note the
clear determination that MSHA and the Judge engaged in a comparison study rather than
suitability analysis. MSHA provided no evidence that Signal Peak’s plan was not adequate for
operation of the mine in compliance with all mandatory safety standards for ventilation. In
particular, the Judge cited three different events that MSHA said could cause the release of
noxious gases or low oxygen to occur: (1) a fan stoppage; (2) the air pressure in the tailgate
entries and face becoming lower than the gob’s air pressure — which would create a path of least
resistance for the gases to travel from the gob to the working areas — or (3) a delayed rock fall
that could push gob air out on the face. RH Tr. 36-37, 111-12.
MSHA’s rejection of the single-entry system was premised on the erroneous assumption
that a single-entry would permit low-oxygen gob air to enter the face. Tr. 79, 131, 143, 145-46.
The Beiter report is based upon “expectations.” However, these expectations failed to take into
account the nature of the blowing ventilation system employed at Signal Peak. As Signal Peak
pointed out, the blowing ventilation system was distinguishable from an exhausting ventilation
system.21 In the latter, it is more common to encounter higher levels of methane at the tailgate
drive, because the tendency is to pull air from the gob.22 SP Br. at 21-22; Tr. 131. In fact, prior to
20

As a matter of commonsense as well as safety, the operator clearly desires and designs
a system that provides the best chance of avoiding spontaneous combustion. In response to a
question of why any heating incident is a major event, Fairnelli responded, “[b]ecause [of] the
potential it has to catastrophically destroy the mine and, also, the danger it presents to every
person underground.” Tr. 119.
21

An “exhausting system” means a fan pulls or draws air through the mine. The danger
of an exhausting system, however, is that it may pull air into the gob through cracks in the mine
surface, which increases the danger of spontaneous combustion in the gob. Tr. 250-51. Under the
current “blowing system,” this danger is reduced when fans push and direct the air through the
mine.
22

Significantly, Signal Peak’s mine did not have elevated levels of methane. See Stip. 3.

40 FMSHRC Page 1082

employing the blowing ventilation system, the operator did experience lower levels of oxygen
coming out of the gob onto the face, prompting the change from the exhausting system to the
blowing system. Tr. 188. Because the air pressure at the face is greater than in the gob, under
normal mining, noxious gases do not leak out of the gob onto the face under the blowing system.
Tr. 130, 143.
Moreover, very importantly, the actual conduct of the fan stoppage tests demonstrated
that even when the system was not functional, the oxygen levels were better with the single-entry
system, contrary to MSHA’s unsubstantiated speculation. Tr. 163; RH Tr. 89-90; Sec. Ex. 15(a).
The actual tests, therefore, contradict the “expectation” basis for the incorrect supposition in the
Beiter report thereby undercutting MSHA’s rationale for preferring the dual entry system.
Certainly, they do not support a finding that the single entry system was not suitable in the
context of this case.
MSHA presented no evidence other than a wholly theoretical opinion without any
supporting data, examples, other similar mines, or prior events about a possibility to support that
theory.23 MSHA’s witnesses provided conclusory opinions as to the potential of noxious gases
exiting onto the face in a single-entry system. However, their opinion testimony fails to consider
the evidence pertaining to the air pressure differential employed in the blowing ventilation
system, the high volume of air being pushed across the face in the blowing system, or the fact
that no noxious gases exited the gob during the fan stoppage tests. Tr. 79, 131, 143, 145-46.
Farinelli explained that the operator had a carbon monoxide detection unit at the mouth of
the panel and that it detected not only the amount of carbon monoxide in the airflow but more
importantly the quantity of carbon monoxide. Tr. 149. Therefore, it created a baseline for the
amount of carbon monoxide. Tr. 149. With that information, the operator could trend the amount
of carbon monoxide separate from just measuring amounts in airflow at any given point. Tr. 149.
As the testimony established it is important to know the quantity of CO present in the gob and
the sensor in the No. 1 entry makes that determination. Tr. 148.
The evidence supports that the single-entry system was more effective at addressing the
potential concerns MSHA identified. One type of event posited by MSHA as disrupting the
operator’s ventilation system and potentially allowing for the release of noxious gases was a fan

23

Riley testified about one instance of a concentration of carbon monoxide at the
headgate (opposite side of the longwall from the tailgate) in 2011 before the mine switched to the
blowing ventilation system to help alleviate the danger of a spontaneous combustion. There is no
evidence that MSHA even considered this information in preferring the double entry system.

40 FMSHRC Page 1083

stoppage.24 As noted above, fan stoppage tests did not show an advantage for the existing plan.
In fact, the test revealed that the results were slightly better under the operator’s single-entry
plan. District Manager Riley acknowledged that the oxygen levels fell to a slightly lesser degree
under the test for the single-entry plan. Tr. 163; RH Tr. 89-90; Sec. Ex. 15(a). Thomas Morley,
MSHA Mining Engineer in the Ventilation Division, who performed the fan stoppage tests,
acknowledged on cross-examination that, if miners are “traveling . . . coming off the longwall
face and turning right [onto tailgate entry number 1], . . . if there are contaminants coming out of
the gob at that corner, the more air there is to dilute them, [which would exist under the singleentry system], the better.” Tr. 79. This evidence does not support the decision to prefer the dual
entry system and detracts from the Judge’s finding that the dual-entry system was better suited at
preventing gob air from coming out onto the face. Most importantly, there is not a finding or
evidence that the volume of air would not be suitable for the miners. The Judge accepted an
unproven MSHA preference and failed to cite substantial evidence that the single entry system
would not provide suitable atmospheric conditions.
The other type of hypothesized events that would disrupt the blowing ventilation system
were that a rock fall in the gob might push gob air out on the tailgate area or that, if air pressure
in the tailgate entry fell below the gob’s air pressure, gases might travel out from the gob to the
tailgate where miners occasionally are present. Signal Peak witnesses testified that there was no
evidence that a rock fall pushing gases into the tailgate had ever occurred or that such an event
was even likely to occur, and the Secretary did not contradict that testimony. Tr. 146, 155
(Farinelli’s testimony that no gob air was pushed onto the face due to falls in the gob).
With regard to a change in the air pressure differential allowing gob air to be pushed out
into the working area, Vice President of Engineering Farinelli testified that air pressure in the
active workings and gob are very similar and that air pressure in the gob would stay lower than at
the face. Tr. 145-46. Farinelli testified that even when the barometer has dropped, meaning that
the pressure in the gob was greater than in the mine generally, there had not been low oxygen
concentrations on the longwall face. Tr. 145. A blowing system avoids this issue by providing air
into the mine at higher than atmospheric pressure. Tr. 108, 145-46. Further, the blowing system
pushed a large volume of air across the longwall.

24

Although the Secretary disputes the results of the fan stoppage tests, his theory is
unfounded and speculative. It is undisputed that the tests were still run three days apart, and that
the gob gases had the entire three-day period of time to build back up after the first test,
consistent with the test plan protocols. Sec. Ex. 15. The Secretary has adduced no evidence to
suggest that the gas build-up was affected in any way by the operator’s half-day delay in
converting the tailgate into a single-entry system. In fact, the testimony shows the opposite to be
more likely. The Secretary’s own witness, MSHA engineer Morley, conceded on crossexamination that normal mining operations occurred for all three days in between the tests, as
planned. Tr. 70-71. Furthermore, Morley conceded that having one of the three days of mining
being run as “normal” (i.e., under a dual-entry system) should not have negatively impacted the
gob’s ability to have a sufficient build-up of noxious gases by the time the second test was due.
Tr. 70-72. As such, it seems highly unlikely that the operator’s slight deviation from the testing
protocol in any way interfered with the validity of the test results.

40 FMSHRC Page 1084

The mine typically has approximately 80,000 cubic feet per minute (cfm) of air
movement along the longwall face. Tr. 19. MSHA ventilation standards require 30,000 cfm
across the face of a longwall. 30 C.F.R. § 75.325(c)(1). In a single return, all 80,000 cfm is sent
through one return. MSHA did not provide any evidence showing how a low quantity of nitrogen
or some other gas introduced into this flow by a single, never before occurring and highly
unlikely rock fall could cause the oxygen on the system to fall below an adequate level. Further,
there was no evidence of how long this entirely theoretical shortage of oxygen would exist.
Finally, as for detection, Farinelli testified that in a single-entry system, the operator
collects weekly bag samples around the perimeter of the gob and at the tailgate to monitor for
early indicators of spontaneous combustion, which would serve the same purpose as the tube
bundle under the dual-entry system. Tr. 105-07, 147-48. Signal Peak also tests for air velocity at
the mouth of the tailgate. Tr. 147-48. Because the location of the monitoring in the single-entry
system is stationary, the operator contends that it would be more effective at providing accurate
readings of the trend of carbon monoxide (“CO”), which is a more accurate measure of potential
spontaneous combustion, whereas the monitor in the dual-entry system would be continuously
moved in the No. 2 entry and hence, less accurate of current trends. S. Br. at 27. Thus, the
evidence suggests that the operator’s plan would be as effective as the Secretary’s at detecting
noxious gases. Again, and most importantly, MSHA did not present any evidence that the
operator’s system was insufficient or not suitable. MSHA states only that it prefers its concept to
the operator’s, a position that fails to provide the substantial evidence necessary to sustain the
Secretary’s burden of proof to show the operator proposed plan was inadequate to maintain
adequative ventilation and respirable dust control.
Spontaneous Combustion
Even if one accepts MSHA’s inherently contradictory position that prevention of a
spontaneous combustion was not important but early detection was, no actual evidence supports
a finding that the operator’s plan was not suitable — that is, did not achieve the purpose of a
ventilation plan. First, as noted, MSHA’s witnesses admitted that the risk of spontaneous
combustion was low given the operator’s change to a bleederless system in Janaury 2010. Tr.
185, 253. The operator did so because it had been experiencing elevated levels of CO in the gob.
Stip. 5. The “bleederless” system limits the CO and oxygen in the gob, thus reducing the
potential for spontaneous combustion. Id.
Second, the introduction of nitrogen into the gob served to reduce the level of oxygen in
the gob, thereby further reducing the possibility of spontaneous combustion. Stip. 6; RH Tr. 7980; Tr. 31. In December 2011, Signal Peak experienced a spontaneous combustion event near the
inby end of the headgate on the 2R panel. Tr. 252; Stip. 6. It was caused by oxygen pulled in by
the mine’s exhausting ventilation system through subsidence cracks on the surface into the rider
seam above the main seam being mined. As a result of the event, Signal Peak, with the approval
of MSHA, instituted additional measures on subsequent longwall panels, including lowering the
gob’s oxygen levels by injecting nitrogen into the gob about 10-15 crosscuts inby the face while
monitoring the oxygen levels on an ongoing basis. Stip. 6; RH Tr. 79-80; Tr. 31. In addition, in
January 2013, the operator replaced its exhausting system with a blowing ventilation system. Tr.

40 FMSHRC Page 1085

185. By making these changes, the operator has prevented any more occurrences of spontaneous
combustion. RH Tr. 176.
As Signal Peak noted, the dual-entry system directs a certain amount of air inby in the
No. 1 entry of the tailgate for a distance of one crosscut (approximately 200 feet or more). Tr. 34,
47, 128. This introduces more oxygen into the gob than the single-entry system, which is counter
to the goal of reducing oxygen in order to prevent spontaneous combustion. MSHA’s witnesses
conceded this point. Tr. 50, 128; RH Tr. 78-79. The operator’s proposed plan would omit the “Tsplit” and “back-around return” in the tailgate and seal off the No. 2 entry, and instead have the
air leave the mine in just one entry, tailgate No. 1 entry. SP Ex. M. According to Farinelli, the
single-entry system would better control spontaneous combustion by reducing the amount of air
introduced into the longwall gob both on the headgate side and through the back return. Tr. 11819, 126. Because in a single-entry system the gob isolation seals would be built during the
longwall retreat in the crosscuts between the Nos. 1 and 2 entries, rather than between the Nos. 2
and 3 entries after the longwall face passes, air is not introduced into the gob along the headgate
side.25 Tr. 109-10; RH Tr. 83-86.
The Judge relied on MSHA’s witnesses, who testified about measures to prevent airflow
from the gob into the working face in the dual-entry system. However, Beiter stated that “a
curtain was typically installed in the crosscut inby the longwall face where the headgate seal
would later be constructed. That curtain was described as ‘not tight.’” Sec. Ex. 10(a), at 4. In
Beiter’s view, “[c]onstruction of a more substantial control such as a permanent stopping or
framed check curtain (temporary stopping) instead of a curtain described as ‘not tight’ would
reduce the quantity of intake air leaking into the worked-out area.” Id.; Tr. 10.
While this would prevent air from flowing through any opening into the gob on the
headgate side before the seal is constructed, such measure would be temporary and susceptible to
failure. Farinelli testified that the operator had tried to tighten the curtain in the past but had
encountered difficulties from roof falls occurring behind the longwall face which would blow
down the curtain, requiring mine personnel to have to go back in to rebuild it, creating significant
safe-access risks for miners. Tr. 153-54.
Thus, based on the record, we conclude that substantial evidence does not support
MSHA’s preference for the dual entry system let alone support an unmade finding that the
single-entry system was not adequate for reducing the potential for spontaneous combustion.
Material Handling and Roof Hazards
While the Judge found that Riley had a reasonable basis to believe that material handling
did not pose a significant hazard at the mine and that roof hazards were not more likely to occur
under the dual-entry system, 39 FMSHRC at 650, 652, the evidence is uncontroverted that the
25

There is no evidence in the record that Riley considered the operator’s concern that the
dual-entry system would increase the risk of spontaneous combustion on the tailgate side.
Although Beiter testified that he had considered this concern at the time he drafted his report, he
conceded that his report failed to explicitly address the issue. Sec. Ex. 10(a) at 2; Tr. 27.

40 FMSHRC Page 1086

operator’s plan would minimize the risks to miners of material handling and roof control hazards
associated with the construction of seals immediately adjacent to the unsupported longwall gob.
Sec. Ex. 6 at 2. By not requiring the operator to maintain the tailgate No. 2 entry, miners would
not be exposed to roof control hazards. Tr. 82, 120. It appears that the Judge failed to recognize
the significant risk involved in maintaining the second entry. Under the operator’s current dualentry plan, over 100 seals are constructed each year immediately adjacent to the gob. Sec. Ex. 6.
Beiter even conceded that it is preferable to build the seal in advance of the longwall rather than
right next to the gob. Tr. 12, 48.
Although MSHA’s witnesses testified that the operator has been doing a “pretty good
job” in mitigating the hazards that relate to roof control and material handling, RH Tr. 43-45, 8183; Tr. 14-15, 49-50, an operator’s diligent efforts at ensuring miners’ safety is not tantamount to
a conclusion that the dual-entry system is itself suitable, let alone support for the conclusion that
the single-entry system is unsuitable. Such a conclusion would penalize the operator for its safety
record and would undermine the Act’s purpose.
Ultimately, we conclude that substantial evidence supports that the Secretary only
presented evidence arguing, and even failing there, for MSHA’s preference for the MSHA
endorsed system and did not introduce substantial evidence to show that, in the words of
MSHA’s ventilation plan manual, the operator’s proposed plan was not appropriate to achieve
the safety and health requirements for the mine. This is precisely the same sort of
decisionmaking the Tenth Circuit found unacceptable in Canyon Fuel. Here, as in that case,
MSHA has utterly failed to address competing risks and benefits or to support its rejection of an
operator’s plan with competent evidence.
CONCLUSION
Based on the foregoing, we conclude that the Judge erred in applying the wrong legal
standard and conclude that substantial evidence does not support that the operator’s ventilation
plan was not suitable. Accordingly, we would vacate and reverse the Judge’s decision.

/s/ William I. Althen
William I. Althen, Acting Chairman

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

40 FMSHRC Page 1087

COMMISSION ORDERS

40 FMSHRC Page 1088

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

July 16, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2018-113-M
A.C. No. 31-00057-0444267 A

v.
MARK AUGUSTINE, employed by
METZGER REMOVAL, INC.1

BEFORE: Althen, Acting 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. (2012) (“Mine Act”). On March 15, 2018, the Commission received a motion seeking
to reopen a penalty assessment against Mark Augustine, an employee of Metzger Removal, Inc.,
under section 110(c) of the Mine Act, 30 U.S.C. § 820(c), that has become a final order of the
Commission. Subsequently, the Secretary requested that the Commission grant the motion to
reopen in order to facilitate a global settlement of all outstanding citations against Metzger
Removal and Mr. Augustine.
Having reviewed the movant’s request and the Secretary’s response, we hereby reopen
this matter and remand it to the Chief Administrative Law Judge for further proceedings pursuant
to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

1

When initially docketed, the caption in this matter listed Metzger Removal, Inc., as the
Respondent. The caption has been modified to reflect that the penalty assessment at issue was
assessed against Mark Augustine, an employee of Metzger Removal, rather than the operator.

40 FMSHRC Page 1089

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. In order to effectuate the
settlement identified as the basis of the unopposed motion to reopen, the parties should promptly
file a motion to approve settlement after the Secretary files the petition for assessment of
penalty.2

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

2

We note that the motion to reopen was filed by counsel for Metzger Removal, without
any indication that Mr. Augustine had been consulted or that he had been served with the motion.
We caution that the other parties must ensure that Mr. Augustine is aware of any motion to
approve settlement and that he concurs in that motion. A motion for settlement approval must
represent a genuine agreement between all parties. See Sec’y of Labor on behalf of Pendley v.
Highland Mining Co., LLC, 29 FMSHRC 164, 165-66 (Apr. 2007) (vacating a settlement
agreement which had been jointly proposed by the Secretary and the operator, because the miner
on whose behalf the Secretary had filed the discrimination complaint had not been consulted).

40 FMSHRC Page 1090

Distribution:
Steven D. Weber, Esq.
Parker Poe
Three Wells Fargo Center
401 South Tryon Street, Suite 3000
Charlotte, NC 28202
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Mark Augustine
3533 Alister Ave.
Concord, NC 28027
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 1091

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

July 16, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2018-0273-M
A.C. No. 42-01566-455974

v.
CANYON FUEL COMPANY, LLC

BEFORE: Althen, Acting 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. (2012) (“Mine Act”). On March 13, 2018, the Commission received a motion from
Canyon Fuel Company, LLC (“Canyon Fuel”) seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. §
815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).

40 FMSHRC Page 1092

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on January 12, 2018, and
became a final order of the Commission on February 12, 2018.1
Canyon Fuel states that it did not receive the proposed assessment until March 13, 2018,
when outside counsel contacted MSHA and requested a copy of the assessment form by email.
Canyon Fuel states that MSHA claims that the assessment form was delivered, but that U.S.
Postal Service (“USPS”) records indicated that the assessment was “left at/in the mailbox.”
Canyon Fuel therefore contends that its failure to timely contest the penalty assessment was due
to inadvertence or mistake in mail processing, either on the part of USPS (for failing to properly
deliver mail which was presumably certified and therefore required a signature), or on the part of
Canyon Fuel (for failing to sufficiently monitor mail processing).
The operator further explains that the delay may have been due in part to a mistaken
belief that the assessment for the citation at issue would be included in the same contest form as
another citation issued during the same inspection. On or about March 12, 2018, Canyon Fuel
received the proposed assessment for the other citation and realized it did not address the citation
at issue. Counsel for Canyon Fuel accessed MSHA’s Mine Data Retrieval System, discovered
that the citation at issue was listed as a final order, requested a copy of the relevant proposed
assessment from MSHA, and filed a motion to reopen on March 13, 2018.
The Secretary does not oppose the motion, although he urges greater care in ensuring
future penalties are timely contested, and cautions that he may oppose future motions to reopen.

1

The Secretary’s response to the motion says that this was the delivery date. However,
MSHA has not provided a delivery confirmation receipt.

40 FMSHRC Page 1093

Having reviewed Canyon Fuel’s request and the Secretary’s response, we find that
Canyon Fuel’s failure to timely contest the assessment was the result of mistake or inadvertence
resulting from confusion regarding the issuance of separate assessments for the two citations and,
possibly, an error in mail delivery or processing. We also note that Canyon Fuel acted promptly
and proactively to address the problem. In the interest of justice, we hereby reopen this matter
and remand it to the Chief Administrative Law Judge for further proceedings pursuant to the
Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent
with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the
date of this order. See 29 C.F.R. § 2700.28.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

40 FMSHRC Page 1094

Distribution:
Christopher Peterson, Esq.
Jackson Kelly PLLC
1099 18th St., Suite 2150
Denver, CO 80202
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 1095

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

August 2, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2018-0165

v.
THE OHIO COUNTY COAL COMPANY
ORDER GRANTING REVIEW AND APPROVING SETTLEMENT
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012). On May 7, 2018, an Administrative Law Judge issued a decision denying a
motion to approve settlement. On June 1, 2018, the Secretary of Labor filed a motion asking the
Judge to certify the ruling for interlocutory review. The Judge granted this request on
June 4, 2018.
Commission Procedural Rule 76(a), 29 C.F.R. § 2700.76(a), provides that interlocutory
review is not a matter of right but of the sound discretion of the Commission. In addition, Rule
76(a)(2) requires a majority of Commission members to conclude that the Judge's interlocutory
ruling involves a controlling question of law and that immediate review may materially
advance the final disposition of the proceeding.

This standard having been satisfied, we grant review. The question on review is whether
the Judge abused his discretion in denying the Secretary’s motion to approve settlement. We
conclude that he did, reverse his decision, and approve the settlement.
Factual and Procedural Background
This case involves five citations, for which the Secretary of Labor initially proposed a
total penalty of $10,075. On May 4, 2018, the Secretary filed a settlement motion agreed to by
both parties. By the terms of that settlement, all five citations would be affirmed, four of them as
issued. For those four citations, the penalty amounts would remain as proposed by the Secretary.
Pursuant to the settlement, the remaining citation (Citation No. 9090883) would be
modified to change the negligence level from moderate to low. The proposed penalty for that
citation would be reduced from $5,426 to $2,438. This is the penalty amount that the Secretary
would have assessed pursuant to his penalty regulations, 30 C.F.R. Part 100, had the negligence
initially been assessed as low. The overall penalty for the docket would be reduced from $10,075
to $7,087, constituting approximately 70 percent of the total proposed initial penalty assessment.

40 FMSHRC Page 1096

Citation No. 9090883 charged the operator with a violation of 30 C.F.R. § 75.202(b),
which prohibits miners from working or traveling under unsupported roof. It alleged in pertinent
part that both pads of the automated temporary roof support equipment (“ATRS”) were not in
contact with the roof while roof bolting was being performed. It stated that since both pads need
to be touching the roof to create a supported area, the miner working on roof bolting would have
been reaching past roof support into the unsupported area (because one pad was not in contact
with the roof).
The settlement motion noted the operator’s argument that it was not aware of this
practice,1 which was committed by an hourly employee. The motion further acknowledged that
the inspector’s notes confirmed that the foreman was not present when the violation occurred.
The Judge denied the settlement on the basis that it was insufficiently supported. Dec.
Denying Settlement Mot. at 2. He reasoned that the justification for the penalty reduction for
Citation No. 9090883 was inconsistent with information involving one of the other citations
(Citation No. 9090884).
Citation No. 9090884 charged the operator with a violation of 30 C.F.R. § 75.1725(a),
which requires that machinery and equipment be maintained in safe operating condition. The
citation alleged that the automatic temporary roof support (ATRS) on the machine would not
pivot to allow both pads to contact the roof when uneven roof was present. The negligence level
was marked as low. The Secretary proposed a penalty of $1,096 for the violation, and under the
settlement, the operator agreed to pay the full amount of the proposed penalty.
In denying the settlement, the Judge stated that:
The two citations, 9090883 and 9090884 were issued on
October 27, 2017, within minutes of one another. The problem is that
the justification for the 55 % reduction for No. 9090883 does not
square with the information contained in Citation No. 9090884, unless
the Secretary is asserting that these citations do not relate to the same
piece of equipment. This is so because, for Citation No. 9090883, the
Secretary declares that the Respondent “argue[s] that the operator was
unaware of the cited practice, which was committed by an hourly
employee.” Motion at 4 (emphasis added). Yet, Citation No. 9090884
does not indicate an incorrect practice. Rather it indicates a defect with

1

Since “practice” connotes something which is done on a usual or regular basis, it might
have been clearer and more accurate if the Motion for Settlement had referred to the miner’s use
of the roof bolt machine under unsupported roof as an “action” rather than a “practice.”

40 FMSHRC Page 1097

the machine’s ATRS, as it would not pivot to allow both pads to
contact the roof, a function which the machine should have the ability
to do.
Therefore the Motion is insufficiently supported.
Dec. Denying Settlement Mot. at 2.
Disposition
The Commission reviews a Judge’s denial of a proposed settlement under an abuse of
discretion standard. Sec’y of Labor on behalf of Shemwell v. Armstrong Coal Co., 36 FMSHRC
1097, 1101 (May 2014).2 When the Commission and its Judges evaluate settlement motions, we
consider “whether the settlement of a proposed penalty is fair, reasonable, appropriate under the
facts, and protects the public interest.” American Coal Co., 38 FMSHRC 1972, 1976 (Aug.
2016).
We conclude that the Judge’s denial of the settlement motion constituted an abuse of
discretion. First, he did not refer to the applicable standard set forth above. In fact, he failed to
articulate any standard under which he evaluated this settlement.
Moreover, the Judge’s reason for rejecting the settlement is unsound. His order states that
he denied the settlement motion, even though four out of five citations stand as written by the
inspector and the accompanying penalties are those originally assessed by the Secretary, because
the fifth citation was reduced from moderate to low negligence (with a corresponding reduction
in penalty) based on a rationale which he found inconsistent with the wording of one of the other
citations.
We readily find an explanation for the wording in the motion that the Judge found so
troubling. Both citations were based on the following scenario: a miner was bolting in an entry of
a mine. The basis for Citation No. 9090884, which alleges a failure to maintain machinery in
safe working condition, was that the ATRS on the roof bolting machine was defective in that it
did not properly pivot so as to allow both pads to contact the roof when uneven roof was present
(the situation at the time of the violation). This is a defect in the mining equipment. The
negligence was alleged as “low.” Citation No. 9090883, for which the negligence and penalty
would be reduced under the terms of the settlements, alleges a violation for working under
unsupported roof: Despite the fact that only one of the two pads of the ATRS was in contact with
the roof, the roof bolter operated the machine anyway. This was an action or “practice” by the
roof bolt operator. The citation alleges “moderate” negligence. In the settlement, MSHA agreed
to change the citation to “low” negligence because the foreman was not present.

2

An abuse of discretion may be found where there is no evidence to support the Judge’s
decision or if the decision is based on an improper understanding of the law. 36 FMSHRC at
1101.

40 FMSHRC Page 1098

The Judge cited an alleged conflict between the explanation in the motion for the reduced
negligence level for Citation No. 9090883, in which the Secretary referenced a “practice,” and
Citation No. 9090884, which does not indicate that an illegal practice occurred, but instead
charges that there was a defect in the machinery. We do not see a conflict in the citations or their
explanation in the Motion for Settlement. Section 75.1725(a) (the standard that Citation No.
9090884 alleges was violated) mandates that machinery be maintained in good condition.
Therefore, as one would anticipate, this citation describes a defect in machinery and not the
conduct of a miner.
In short, Citation No. 9090883 was issued because of an action or “practice” by an
individual machine operator (charged with working under unsupported roof) while Citation No.
9090884 was issued for a different reason (a defect in the machine itself). The fact that the
practice (working under unsupported roof) occurred in the context of the second violation (the
defective machinery) does not mean that both citations must be described in similar terms, nor
would we expect them to be. There is thus no conflict between these assertions, which are
reconciled by a simple and logical explanation.
The operator’s knowledge (actual or constructive) is a key component of a negligence
determination. Here, the Secretary has acknowledged that a supervisor was not present when the
miner worked under unsupported roof. In light of this, the Secretary has agreed to reduce the
negligence level for that citation to “low.”3 Similarly, the Secretary has alleged “low” negligence
for the operator’s failure to fix a defect in the roof bolter. The parties’ requested settlement
therefore would align the negligence alleged for the cited action or practice with the negligence
alleged against the operator for the equipment defect. We therefore do not discern an internal
inconsistency in the settlement terms that undermines the parties’ agreement. The Judge’s
conclusion to the contrary cannot stand.

3

The actions of a foreman may be attributable to an operator, but the actions of a rankand-file miner alone may not be so attributable. See, e.g., Midwest Material Co., 19 FMSHRC
30, 35 (Jan. 1997) (“a foreman . . . is held to a high standard of care.”); Fort Scott FertilizerCullor, Inc., 17 FMSHRC 1112, 1116 (July 1995) (holding that the conduct of a rank-and-file
miner is not imputable to the operator in determining negligence for penalty purposes and that,
instead, the operator’s supervision, training, and disciplining are relevant).

40 FMSHRC Page 1099

Conclusion
In denying the settlement motion, the Judge abused his discretion. Consequently, we
reverse his decision. We conclude that the proposed settlement meets the standard set forth
above, grant the motion for review of the Judge’s decision, and approve the settlement.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

40 FMSHRC Page 1100

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

August 20, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. SE 2018-95-M
A.C. No. 40-03343-442373

v.
DURACAP MATERIALS LLC

BEFORE: Althen, Acting 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. (2012) (“Mine Act”). On February 20, 2018, the Commission received from
Duracap Materials LLC (“Duracap”) a motion seeking to reopen a penalty assessment that had
appeared to become a final order of the Commission pursuant to section 105(a) of the Mine Act,
30 U.S.C. § 815(a).
On July 5, 2017, Duracap received a proposed penalty assessment from the Secretary.
On August 4, 2017, the proposed assessment was deemed a final order of the Commission, when
it appeared that the operator had not filed a Notice of Contest within 30 days. MSHA mailed a
delinquency notification to the operator on October 14, 2017, and the case was referred to the
U.S. Department of Treasury for collection on December 14, 2017.
The operator claims that it timely mailed a contest to MSHA. As evidence of the timely
contest, the operator provides a certified mail receipt. Records from the US Postal Service
indicate that the contest was received at the post office in Arlington, Virginia, but was never
delivered to the Secretary. The Secretary does not oppose the request to reopen. Significantly,
the Secretary does not dispute that the contest was received by MSHA on July 13, 2017, before it
purportedly became a final order of the Commission.
Section 105(a) states that if an operator “fails to notify the Secretary that he intends to
contest the . . . proposed assessment of penalty . . . the citation and the proposed assessment of
penalty shall be deemed a final order of the Commission.” 30 U.S.C. § 815(a). Here, the
evidence indicates that Duracap timely notified the Secretary of the contest.

1

Commissioner Cohen has elected not to participate in this matter.

40 FMSHRC Page 1101

Therefore, having reviewed Duracap’s request and the Secretary’s response, we conclude
that the proposed penalty assessment did not become a final order of the Commission because
the operator timely contested the proposed assessment. This obviates any need to invoke Rule
60(b).
Accordingly, the operator’s motion to reopen is moot, and this case is remanded to the
Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

40 FMSHRC Page 1102

Distribution:
Matt Nelson
Duracap Materials LLC
P.O. Box 53426
Knoxville, TN 37950
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 1103

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

August 21, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. SE 2018-84-M
A.C. No. 01-00040-448729

v.
BEELMAN TRUCK CO.

BEFORE: Althen, Acting 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. (2012) (“Mine Act”). On February 7, 2018, the Commission received from
Beelman Truck Co. (“Beelman”) a motion seeking to reopen a penalty assessment that had
appeared to become a final order of the Commission pursuant to section 105(a) of the Mine Act,
30 U.S.C. § 815(a).
On September 23, 2017, the U.S. Postal Service attempted to deliver a proposed penalty
assessment from the Secretary to the operator. However, the assessment was returned
unclaimed. On October 23, 2017, the proposed assessment was deemed a final order of the
Commission, when it appeared that the operator had not filed a Notice of Contest within 30 days.
Subsequently, a delinquency notification was mailed to the operator on December 11, 2017.
The operator claims that it filed a timely contest for a citation underlying the proposed
assessment but claims that it never received the assessment itself. The Secretary does not oppose
the request to reopen. Significantly, the Secretary concedes that the assessment was returned
unclaimed and does not argue that the operator refused to accept delivery of the assessment.
Section 105(a) states that if an operator “fails to notify the Secretary that he intends to
contest the . . . proposed assessment of penalty . . . the citation and the proposed assessment of
penalty shall be deemed a final order of the Commission.” 30 U.S.C. § 815(a). Here, the
evidence indicates that Beelman never received the assessment and thus, did not have an
opportunity to notify the Secretary that it intended to contest the assessment.

1

Commissioner Cohen has elected not to participate in this matter.

40 FMSHRC Page 1104

Having reviewed Beelman’s request and the Secretary’s response, we conclude that the
proposed penalty assessment did not become a final order of the Commission because the
operator never received the assessment. This obviates any need to invoke Rule 60(b).
Accordingly, the operator’s motion to reopen is moot, and this case is remanded to the
Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

40 FMSHRC Page 1105

Distribution:
Jane H. Heidingsfelder, Esq.
Jones Walker LLP
201 St. Charles Ave., 50th Floor
New Orleans, LA 70170-5100
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 1106

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

August 28, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos.

v.

WEVA 2014-395-R
WEVA 2014-1028
WEVA 2015-854

POCAHONTAS COAL COMPANY, LLC

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY: Althen, Acting Chairman; Jordan and Young, Commissioners
These cases involve a notice of contest and two civil penalty proceedings arising under
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012). On December
31, 2015, Pocahontas Coal Company, LLC (“Pocahontas”) filed a petition for discretionary
review (“PDR”), which the Commission granted. On July 10, 2018, Pocahontas filed a motion to
dismiss its PDR. On July 17, 2018, the Secretary of Labor filed a response in support of
Pocahontas’ motion.

40 FMSHRC Page 1107

Upon consideration of Pocahontas’ motion and the Secretary of Labor’s response, the
direction for review issued by the Commission is hereby VACATED and Pocahontas’ appeal is
DISMISSED. The Administrative Law Judge’s summary decision is final and unappealable.1
/s/ William I. Althen
William I. Althen, Acting Chairman
/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner
/s/ Michael G. Young
Michael G. Young, Commissioner

1

These pleadings were initially labeled “under seal.” In an Order issued on July 19, 2018,
the Commission directed the parties to explain why the documents had been designated as such.
The Secretary’s response explained that he had been unaware that Pocahontas was going to file
its motion under seal and did not believe there was any reason for such designation. Pocahontas
agreed to lift its request to seal its prior filing.

40 FMSHRC Page 1108

Commissioner Cohen, dissenting:
Although Pocahontas Coal Company’s motion to the Commission nominally seeks
merely to withdraw the operator’s appeal of this matter and gain dismissal of the proceedings,
the parties’ filings make clear that Pocahontas’s request is part of a broader agreement in which
the Secretary of Labor (“Secretary”) seeks to unilaterally relieve Pocahontas’s Affinity Mine of
its pattern of violations designation. Such a settlement is directly contrary to the express
language of the Mine Act and the Secretary’s own regulations, and approving the settlement only
provides cover for an unlawful agreement by the current administration. I dissent.
I.
Section 104(e) of the Mine Act, 30 U.S.C. § 814(e), sets forth the provisions for the Mine
Safety and Health Administration’s (“MSHA’s”) issuance and termination of a notice of pattern
of violations (“POV”).1 Pocahontas Coal Co., 38 FMSHRC 176, 177 (Feb. 2016). Under those
provisions, if an operator has demonstrated a pattern of violating mandatory health or safety
standards, MSHA inspectors “shall issue an order” withdrawing miners from the area affected by
any discovered significant and substantial (“S&S”) violation.2 30 U.S.C. § 814(e)(1). Section
104(e)(3) provides the method by which a mine may exit from the POV provisions:
If, upon an inspection of the entire coal or other mine, an
authorized representative of the Secretary finds no violations of
1

Section 104(e)(1) provides:
If an operator has a pattern of violations of mandatory health or
safety standards in the coal or other mine which are of such nature
as could have significantly and substantially contributed to the
cause and effect of coal or other mine health or safety hazards, he
shall be given written notice that such pattern exists. If, upon any
inspection within 90 days after the issuance of such notice, an
authorized representative of the Secretary finds any violation of a
mandatory health or safety standard which could significantly and
substantially contribute to the cause and effect of a coal or other
mine safety or health hazard, the authorized representative shall
issue an order requiring the operator to cause all persons in the area
affected by such violation . . . 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.

30 U.S.C. § 814(e)(1).
2

An “S&S” violation is a serious violation which 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.” 30 U.S.C. § 814(d)(1).

40 FMSHRC Page 1109

mandatory health or safety standards that could significantly and
substantially contribute to the cause and effect of a coal or other
mine health and safety hazard, the pattern of violations that
resulted in the issuance of a notice under paragraph (1) shall be
deemed to be terminated and the provisions of paragraphs (1) and
(2) shall no longer apply.
30 U.S.C. § 814(e)(3). The Secretary’s regulations on termination of a pattern of violations
notice effectively repeats the statute. See 30 C.F.R. § 104.4(a); Pattern of Violations, 78 Fed.
Reg. 5,056 (Jan. 23, 2013) (“The final POV rule . . . [m]irrors the provision in the Mine Act for
termination of a POV.”).
II.
In this case MSHA notified Pocahontas that a pattern of violations existed at its Affinity
Mine pursuant to section 104(e) of the Mine Act, and issued Written Notice No. 7219153 on
October 24, 2013. The Notice charged two separate patterns. One of the alleged patterns
included 24 separate S&S roof and rib support citations and orders issued within the preceding
12-month period. The other alleged pattern included 16 separate S&S citations and orders
involving emergency preparedness and escapeway hazards issued within the preceding 12-month
period. Sec’y Memo of Point & Auth. in Support of Mot. for Part. S.D. at 14-15, 24.
MSHA began issuing withdrawal orders pursuant to section 104(e) of the Mine Act, and
these were contested by Pocahontas.3 Pocahontas filed a motion for summary decision and the
Secretary filed a motion for partial summary decision. On November 3, 2015, a Commission
Judge issued an “Order Denying Pocahontas’ Motion for Summary Decision and Granting the
Secretary’s Motion for Partial Summary Decision.” 37 FMSHRC 2654 (Nov. 2015) (ALJ). The
Judge found that the Secretary had proven the existence of a pattern of violations at the Affinity
Mine, and upheld the validity of POV Written Notice No. 7219153. Id. at 2673. After the Judge
issued a subsequent Summary Decision affirming two section 104(e) orders predicated on the
POV notice, the Commission granted Pocahontas’s petition for discretionary review. Then, after
the case was fully briefed, Pocahontas submitted its “Motion to Withdraw Petition for
Discretionary Review”, which included – and was expressly dependent on the approval of – a
proposed settlement agreement between Pocahontas and the Secretary.
The parties’ settlement agreement in this matter provides:
4. In exchange for Pocahontas filing a Motion to Withdraw Appeal
in the Proceeding, and the Commission’s issuance of a full, clear,
and unambiguous dismissal of the Proceeding, MSHA agrees to
immediately terminate Notice of Pattern of Violations Number
7219153 issued at the Affinity Mine on October 24, 2013, and

3

Pocahontas also directly contested the issuance of the POV notice itself, but the
Commission ruled that it does not have jurisdiction to review a direct challenge to a POV notice
independent of a section 104(e) withdrawal order. Pocahontas, 38 FMSHRC at 185.

40 FMSHRC Page 1110

provide prompt written acknowledgement of the same to
Pocahontas.
Pocahontas Mot. at Ex. 1. The motion makes no mention of the statutory provision for obtaining
relief from a POV notice. The Secretary’s response in support of Pocahontas’s motion is
similarly silent toward the law’s plain requirement that Pocahontas pass an inspection free of any
S&S citations before it can be relieved of the POV designation. There is no indication that
Pocahontas’s Affinity Mine has received such a clean inspection.4 Rather than providing a clear
indication to the Commission that the parties are proceeding within the framework of the Mine
Act, the parties attempted to shield their actions from the public by initially filing pleadings
before us in secret (i.e., “under seal”).5
III.
Lacking any evidence that Pocahontas’s Affinity Mine has passed an entire inspection
without receiving any S&S citations, the parties’ settlement agreement is legally unsupportable.
Congress directed that when a mine is in POV status, “a withdrawal order shall be issued” for
“any violation of a mandatory health or safety standard” that is S&S. 30 U.S.C. § 814(e)(2)
(emphasis added). The plain meaning of this language, combined with the express enumeration
of the method by which an operator may exit from the POV provisions, forecloses other avenues
of relief.
The legislative history supports this plain reading of the language. The Senate Report on
the Mine Act explains that an operator that has received its first withdrawal order from the POV
provisions “is subject to the issuance of further [POV] withdrawal orders until an inspection of
4

Indeed, MSHA’s Mine Data Retrieval System indicates that federal mine inspectors
issued section 104(e)(2) withdrawal orders for S&S violations at the Affinity Mine in August
2018. See MSHA, Mine Data Retrieval System: Mine Citations, Orders, and Safeguards,
https://arlweb.msha.gov/drs/ASP/MineAction.asp (searchable by mine name).
5

Although courts may place documents filed with them under seal to protect sensitive
information, federal courts have recognized the common law right of public access to public
records and documents, including judicial records. See Nixon v. Warner Communications, Inc.,
435 U.S. 589, 597–98 (1978). Such access is critical to allow the public and the press to keep a
watchful eye on the workings of public agencies. Here, Pocahontas filed its Motion to Withdraw
Petition for Discretionary Review publicly, but the motion stated, “[a] copy of the Settlement
Agreement is filed separately under seal to this motion as Exhibit 1.” Mot. at 2. A week later the
Commission received the “Secretary’s Response in Support of Pocahontas’ Motion to Withdraw
Petition for Discretionary Review”, on which was imprinted “*FILED UNDER SEAL*”. Upon
receipt of the parties’ filings in this matter, the Commission issued an order directing the parties
to “explain how sealing these pleadings is consistent with Congressional intent that settlements
under the Federal Mine Safety and Health Act of 1977 take place with sufficient transparency so
that the public will be aware of the process.” July 19, 2018 Ord. at 1. In response, the Secretary
and Pocahontas filed pleadings removing the “under seal” designation from their previous
filings. Neither Pocahontas nor the Secretary have ever explained or attempted to provide
justification for their attempt to shield the Settlement Agreement from the public in a cloak of
secrecy.

40 FMSHRC Page 1111

the mine in its entirety discloses no violations of any safety and health standards which could
significantly and substantially contribute to the cause and effect of a mine health or safety
hazard.” S. Rep. No. 95-181, at 32-33 (1977), reprinted in Senate Subcomm. on Labor, Comm.
on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977 at 620-21
(1978) (“Legis. Hist.”).6 The report further elaborates that section 104(e)(3) requires “an
inspection of the mine in its entirety in order to break the sequence of the issuance of orders.” Id.
at 622.
Congress limited the method for ending POV status for good reason. In enacting the
pattern of violations provisions, Congress provided the Secretary with its most powerful tool for
protecting the lives of the nation’s miners. Congress explicitly recognized that the POV
provisions were necessary to “provide an effective enforcement tool to protect miners when the
operator demonstrates [its] disregard for the health and safety of miners through an established
pattern of violations.” Id. at 620. Congress thus recognized that the POV designation was
necessary to ensure compliance with safety regulations at those mines where the other tools in
the Mine Act’s graduated enforcement scheme proved insufficient to curb an operator’s
dangerous behavior. The POV designation signals to an operator that “the mere abatement of
violations as they are cited is insufficient.” Id. at 621.
Congress determined such a powerful enforcement tool was necessary after the
investigation of the 1976 Scotia mine disaster revealed that the mine had a recurring history of
violations that the existing enforcement scheme had failed to address. Id. at 620. But for 35
years, MSHA utterly failed to successfully exercise its authority under the POV provisions. See
78 Fed. Reg. at 5,058 (Jan. 23, 2013). The Secretary did not even issue regulations implementing
the POV provisions until 1990. See Pattern of Violations, 55 Fed. Reg. 31,128 (July 31, 1990).
The 1990 rule contained gaping holes. It counted only citations that had become final orders of
the Commission. 30 C.F.R. § 104.3(b) (1990). And when screening of the final orders identified
mines that had a pattern of disregarding safety regulations, MSHA first provided those
chronically unsafe operators with warning letters of their “potential” POV (“PPOV”) and an
opportunity to improve prior to receiving a POV notice. 30 C.F.R. § 104(a) (1990); 78 Fed. Reg.
at 5,058. As described below, unscrupulous operators such as Massey Energy manipulated the
system, putting profit above the safety of their miners.
Following the disasters at the Sago, Darby, and Aracoma mines in 2006, MSHA began to
develop new screening criteria to better identify mines with recurring safety issues. Even then,
however, enforcement of the POV provisions was completely ineffective. After the catastrophic
explosion at the Upper Big Branch Mine in April 2010, the Secretary’s Office of Inspector
General (“OIG”) conducted a performance audit to evaluate MSHA’s implementation of the
pattern of violations authority conferred under section 104(e) of the Mine Act. The results of the
audit were distinctly summarized in its title: “In 32 Years MSHA Has Never Successfully
Exercised Its Pattern of Violations Authority.” U.S. Dep’t of Labor, O.I.G. Report No. 05-10005-06-001. The OIG Report stated that during the 32 years since passage of the Mine Act,
MSHA had only once issued a POV notice to an operator. Id. at 2. In that one instance, the
6

In contrast, the legislative history makes clear that Congress intended to give the
Secretary “broad discretion in establishing criteria for determining when a pattern of violations
exists.” Legis. Hist. at 621.

40 FMSHRC Page 1112

Commission subsequently modified some of the citations and orders on which the POV notice
was based, and as a result, MSHA did not enforce the order. Id. at 4. The report included several
recommendations, the first of which was: “Evaluate the appropriateness of eliminating or
modifying limitations in the current regulations, including the use of only final orders in
determining a pattern of violations and the issuance of a warning notice prior to exercising POV
authority.” Id. at 24; see also Brody Mining, Inc., 36 FMSHRC 2027, 2030 (Aug. 2014).
The cogency of the OIG Report is illustrated by the Mine Act enforcement history
leading up to the deadly explosion at Massey Energy’s Upper Big Branch Mine. As noted by
Commissioner Young and me in Brody Mining, 36 FMSHRC at 2040-41 n. 11, in 2007 MSHA
put Upper Big Branch on a PPOV because its S&S rate was 11.6 per 100 inspection hours. The
mine then got an improvement plan, and lowered its S&S rate to 5.6 per 100 inspection hours.
Since this was a greater than 30% reduction, MSHA withdrew the POV threat pursuant to the
then-existing regulations. With the threat gone, the mine’s S&S rate went back up.7 Thus, Upper
Big Branch management evaded a pattern of violations notice by bringing down its rate of S&S
violations after receiving a PPOV and achieved removal from that status. It then reverted to its
prior behavior, incurring an excessive number of S&S violations after the POV threat was lifted.
If management had the ability to dramatically reduce the rate of S&S violations, it obviously had
the ability to maintain a reduced level. It chose not to do so, and thus endangered the lives of
miners.8 The deaths of 29 miners would probably have been avoided if the Secretary had
enforced the pattern of violations provisions of the Mine Act as Congress intended.
The Upper Big Branch disaster and the subsequent OIG Report compelled the Secretary
to amend its POV regulations to close the loophole operators had relied upon to evade a POV
notice. With the changes in 2013, MSHA finally established an effective implementation of the
POV regulations, screening mines on an open database and considering all of an operator’s
pending S&S citations.9
IV.
The POV screening criteria are extremely restrictive, and capture only a handful of
mines. But, because of their deterrent effect, the positive impact on mine industry safety has been
7

In the next screening cycle, Upper Big Branch would have received another PPOV
notice except for an MSHA computer error. U.S. Dep’t of Labor, Internal Review of MSHA’s
Actions at the Upper Big Branch Mine-South, Performance Coal Co., at 56-57 (Mar. 6, 2012),
https://www.msha.gov/PerformanceCoal/UBBInternalReview/UBBInternalReviewReport.pdf.
8

The mine’s former superintendent pled guilty to conspiring to hide safety violations
from MSHA inspectors, and Massey Energy’s chief executive ultimately was convicted of
conspiring to willfully violate mine safety regulations. U.S. v. Blankenship, 846 F.3d 663, 666-67
(4th Cir. 2017).
9

The Commission has affirmed the key aspects of the Secretary’s updated POV
regulations. Brody Mining, 36 FMSHRC at 2054 (holding that POV regulations are facially
valid), appeal dismissed, No. 14-1171 (D.C. Cir. Nov. 2, 2015); Brody Mining, LLC,
37 FMSHRC 1914, 1924 (Sep. 2015) (finding the Secretary’s implementing regulations and
definition of “pattern” consistent with section 104(e) of the Mine Act).

40 FMSHRC Page 1113

much broader, with a sharp reduction in the number of total violations and S&S violations and an
even sharper drop in the number of operators that chronically violate safety standards. News
Release, Mine Safety and Health Administration, MSHA Chief: Pattern of Violations Reforms
Have made Mines Safer (Oct. 2, 2014), https://www.dol.gov/newsroom/releases/msha/
msha20141867. At last, vigorous enforcement of the POV provisions as Congress intended has
had the intended effect of reducing the number of the violations that are most dangerous to
miners.
In releasing the Affinity Mine from its POV notice without Pocahontas first satisfying the
statutory requirement of an S&S-free inspection, the Secretary threatens to undermine the
positive impact of these now-effective POV regulations. Abandoning the POV regulation’s strict
application sends the dangerous message that an operator who has chronically disregarded
safety, thus gaining an unfair advantage over safer competitors in the process, may nevertheless
obtain reprieve from the Mine Act’s heaviest sanctions by the grace of a friendly administration
no longer committed to enforcing those sanctions. That message endangers miners. Already in
2017, we witnessed deaths among coal miners nearly double from 2016 despite sagging activity
in the mining industry. See U.S. Dep’t of Labor, MSHA, 2018 Comparison of Year-to-Date and
Total Fatalities for M/NM & Coal (Jun. 5, 2018), https://arlweb.msha.gov/stats/daily-barchart.pdf.
The Secretary’s illicit reconsideration of Pocahontas’s POV status is not the only threat to
undermine the current POV regulations. For over a year, the administration has engaged in
settlement negotiations with mining industry groups challenging the Secretary’s POV
rulemaking. See Ohio Coal Ass’n v. Perez, No. 2:14-cv-2646 (S.D. Ohio May 9, 2017) (order
granting stay of proceedings for parties to engage in settlement negotiations). Any settlement that
alters the key elements of the current POV regulations could again relegate those critical
provisions of the Mine Act to dormant status.
I recognize that the POV notice has been in effect at Pocahontas’s Affinity Mine for five
years. Reasonable minds may disagree over whether the enhanced enforcement for such a period
of time is sufficient and withdrawal of the POV notice appropriate. But that is a question of
policy, which is a matter for Congress to determine. In enacting the Mine Act, Congress did not
allow for such a discretionary reprieve.10 If the Secretary wishes to alter the terms of the Mine
Act, he may propose such changes to Congress where the issue may be debated and considered

10

The Secretary suggests that the termination of a POV notice is committed to his
discretion, and therefore not subject to review. Sec’y Resp. to Mot. to Withdraw PDR at 1-2.
However, this matter is within the jurisdiction of the Commission by virtue of the pending appeal
from the Judge’s Decision. Moreover, although an agency’s decision not to take enforcement
action may be presumed immune from judicial review, “presumptively unreviewable”
expressions of prosecutorial discretion nonetheless “may be rebutted where the substantive
statute has provided guidelines for the agency to follow in exercising its enforcement powers.”
Heckler v. Chaney, 470 U.S. 821, 831–33 (1985). The plain language and statutory history of the
Mine Act make clear that the Secretary here cannot refuse to issue withdrawal orders for S&S
violations at a mine that has been placed on a POV notice and has not yet passed a full inspection
without the issuance of an S&S citation.

40 FMSHRC Page 1114

in the public eye. Such dramatic deviations from the plain meaning of the law should not be
attempted in discrete filings made “under seal” before the Commission.
In passing the Mine Act, Congress declared that “the first priority and concern of all in
the coal or other mining industry must be the health and safety of its most precious resource—the
miner.” 30 U.S.C. § 801(a). In seeking to abandon the POV provisions at the Affinity Mine, this
administration threatens to subvert the first principle of the Mine Act.
The de facto settlement of this matter directly conflicts with the plain language of section
104(e) of the Mine Act. As an independent agency charged with reviewing enforcement actions
brought by the Secretary, this Commission should not assent to such an illegal act. To the extent
that the Commission’s dismissal of these proceedings provides cover to the administration’s
corrupted reading of the law, I dissent.

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

40 FMSHRC Page 1115

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

August 28, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. YORK 2017-136

R. J. MCDONALD, INC.
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2012) (“Mine Act”). The matter is before us upon the Judge’s July 10, 2018 certification
of his April 30, 2018 decision denying the Secretary’s motion to approve settlement and his May
11, 2018 decision denying the Secretary’s amended motion to approve settlement of one citation
and one order.1 See Commission Procedural Rule 76(a)(1)(i), 29 C.F.R. § 2700.76(a)(1)(i). The
Judge denied the motions to approve the settlement because he concluded that the Secretary had
failed to provide sufficient information to support the proposed settlement.
The citation alleges a “significant and substantial” (S&S) violation of the standard at 30
C.F.R. § 56.14101(a)(3) and an unwarrantable failure to comply. In the settlement motion, the
Secretary proposed removing both the S&S and unwarrantable failure designations and reducing
the proposed penalty from $2,314 to $1,107. The order alleges an S&S violation of the standard
at 30 C.F.R. § 46.7(a) that was attributable to a high degree of negligence. The Secretary
originally proposed a $10,500 penalty using his special assessment procedures. In the settlement
motion, the Secretary proposed reducing the penalty to $4,377 (using the regular penalty
procedures at 30 C.F.R. § 100).
Procedural Rule 76 provides that “the Commission, by a majority vote . . . may grant
interlocutory review upon a determination that the Judge’s interlocutory ruling involves a
controlling question of law and that immediate review may materially advance the final
disposition of the proceeding.” 29 C.F.R. § 2700.76(a)(2). Rule 76 further provides that
“[i]nterlocutory review by the Commission shall not be a matter of right but of the sound
discretion of the Commission.” 29 C.F.R. § 2700.76(a).

On June 7, 2018, the Secretary filed an unopposed motion requesting that the Judge
certify his decisions denying the motions to approve settlement for interlocutory review by the
Commission. On July 10, 2018, the Judge certified his rulings for review.
1

40 FMSHRC Page 1116

Upon consideration of the Judge’s July 10, 2018 order, as well as his April 30 and May
11 decisions, we decline to exercise our right of review and deny interlocutory review. Denial of
interlocutory review does not suggest or require any specific action by the Judge or parties in this
case. The Secretary may file a new settlement motion. Accordingly, the case is hereby remanded
to the Judge for further proceedings consistent with the Mine Act, our procedural rules, and case
law.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

40 FMSHRC Page 1117

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

August 30, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2017-444-M
A.C. No. 39-00020-435753

v.
PETE LIEN & SONS INC.

BEFORE: Althen, Acting 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. (2012) (“Mine Act”). On August 2, 2017, the Commission received from Pete Lien &
Sons, Inc. (“Pete Lien”) a motion seeking to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on April 13, 2017, and became a
final order of the Commission on May 15, 2017. MSHA sent a delinquency notice to the operator
on June 28, 2017 for the remaining unpaid amount of the assessment.

40 FMSHRC Page 1118

Pete Lien asserts that it intended to contest the penalties for three of the twelve citations,
but that it mistakenly mailed its contest along with the payment of the uncontested penalties to
MSHA’s St. Louis Payment Processing Center.1 The Secretary does not oppose the request to
reopen, and confirms that MSHA internal records show that it processed a partial payment for
this assessment on May 16, 2017, the day after the assessment became a final order. Pete Lien
filed its motion to reopen on August 2, 2017, after receiving the delinquency notice.
Therefore, having reviewed Pete Lien’s request and the Secretary’s response, we find that
Pete Lien’s failure to timely contest the assessment was the result of a mistake regarding the
proper address for filing a contest with MSHA.2 In the interest of justice, we hereby reopen this

1

Contests of proposed penalties should be sent to the MSHA Civil Penalty Compliance
Office in Arlington, Virginia, as indicated on the Notice of Contest Rights and Instructions,
included with the proposed assessment.
2

However, we note that this is Pete Lien’s third motion to reopen in two years where the
operator sent their contest to the incorrect address. Therefore, we urge the operator to take steps
to ensure that future penalty contests are timely filed to the MSHA Civil Penalty Compliance
Office in Arlington, Virginia. See 39 FMSHRC 1781 (Sept. 2017); 39 FMSHRC 1001 (May
2017). If Pete Lien does not take steps to remedy the faults in its processing of penalty contests,
future motions to reopen may be denied. See, e.g. Oak Grove Res., LLC, 33 FMSHRC 103, 104
(Feb. 2011) (an operator has not established grounds for reopening when the failure to contest a
proposed assessment results from an inadequate or unreliable processing system).

40 FMSHRC Page 1119

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

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

40 FMSHRC Page 1120

Distribution:
Donald Mousel
Safety Coordinator
Pete Lien & Sons Inc.
P.O. Box 440
Rapid City, SD 57709
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 1121

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

August 30, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2017-515
A.C. No. 16-01551-440549

v.
SOUTHERN AGGREGATES, LLC

BEFORE: Althen, Acting 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. (2012) (“Mine Act”). On September 19, 2017, the Commission received from
Southern Aggregates, LLC. (“Southern Aggregates”) a motion seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on June 14, 2017, and became a
final order of the Commission on July 14, 2017. On August 29, 2017, MSHA sent a delinquency
notice to the operator alerting it that a timely contest had not been properly filed.

40 FMSHRC Page 1122

Southern Aggregates asserts that it intended to contest the penalties for two of four
citations but that it mistakenly mailed its contest along with the payment of the uncontested
penalties to MSHA’s St. Louis Payment Processing Center.1 The Secretary does not oppose the
request to reopen, and confirms that MSHA internal records show that it processed a partial
payment for this assessment on July 5, 2017, before the assessment became a final order.
Significantly, Southern Aggregates has not filed any other motions to reopen with the
Commission in the last two years and filed its motion to reopen on September 19, 2017, less than
30 days after MSHA sent the delinquency notice.

1

Contests of proposed penalties should be sent to the MSHA Civil Penalty Compliance
Office in Arlington, Virginia, as indicated on the Notice of Contest Rights and Instructions,
included with the proposed assessment.

40 FMSHRC Page 1123

Therefore, having reviewed Southern Aggregates’ request and the Secretary’s response,
we find that the operator’s failure to timely contest the assessment was the result of a mistake
regarding the proper address for filing a contest with MSHA. In the interest of justice, we hereby
reopen this matter and remand it to the Chief Administrative Law Judge for further proceedings
pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.
Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty
within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

40 FMSHRC Page 1124

Distribution:
Nicholas W. Scala, Esq.
CMSP Chair
Conn Maciel Carey LLP
5335 Wisconsin Ave., NW, Suite 660
Washington, D.C. 20015
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 1125

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

August 30, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. LAKE 2017-333
A.C. No. 11-03189-431867

M-CLASS MINING, LLC
BEFORE: Althen, Acting 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. (2012) (“Mine Act”). On June 30, 2017, the Commission received from M-Class
Mining, LLC (“M-Class”) a motion seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on February 21, 2017, and
became a final order of the Commission on March 23, 2017. MSHA sent a delinquency notice to
the operator on June 2, 2017.

40 FMSHRC Page 1126

M-Class asserts that it failed to timely contest the assessment because, effective January
1, 2017, its prior Safety Director was reassigned to a different position, and a new individual was
assigned to handle proposed assessments. The newly assigned employee had difficulty in
locating some of the citations underlying the assessment at issue, resulting in his failure to timely
contest the assessment. Since then, he has been retrained regarding how to handle proposed
assessments.
The Secretary does not oppose the request to reopen, but urges the operator to take steps
to ensure that future penalty contests are timely filed. The operator claims to have done so,
having retrained the newly assigned employee on handling assessments. In addition, we
recognize that the operator promptly filed its motion to reopen within 30 days of receiving the
delinquency notice.
Therefore, having reviewed M-Class’s request and the Secretary’s response, we find that
the operator’s failure to timely contest the assessment was excusable. In the interest of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

40 FMSHRC Page 1127

Distribution:
Christopher D. Pence, Esq.
Hardy Pence, PLLC
500 Lee St. East, Suite 701
P.O. Box 2548
Charleston, WV 25329
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 1128

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

August 30, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
v.

Docket No. PENN 2017-153
A.C. No. 36-05018-421418

CUMBERLAND CONTURA, LLC
BEFORE: Althen, Acting 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. (2012) (“Mine Act”). On April 14, 2017, the Commission received from Cumberland
Contura, LLC (“Cumberland”) a motion seeking to reopen a penalty assessment that had become
a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on October 5, 2016, and became
a final order of the Commission on November 4, 2016. MSHA records further indicate that a
delinquency notice was mailed to the operator on February 7, 2017, and the case was referred to

40 FMSHRC Page 1129

the U.S. Department of Treasury for collection on April 3, 2017. The Secretary does not oppose
the motion to reopen.
On July 26, 2016, a new parent company for the operator was created as a result of the
bankruptcy of Alpha Natural Resources, the operator’s prior parent company. Press Release,
Alpha Natural Resources, Alpha Natural Resources Successfully Emerges from Bankruptcy
(July 26, 2016), http://ir.alphanr.com/Cache/1500088921.PDF. The operator asserts that when it
received the proposed assessment several months later, it had not fully established a process for
contesting penalties and that “many of the personnel who . . . oversaw and monitored civil
penalty contests previously” remained with Alpha. Mot. to Reopen at 1-2. The operator suggests
that its failure to timely contest the assessment at issue was a direct result of the aforementioned
situation. Specifically, the operator claims that although it promptly completed the contest form
on October 6, 2016, it failed to timely file the contest with MSHA because of “a new system”
and “newly assigned personnel.”1 The operator claims that a new system for handling
assessments did not become functional until December 2, 2016.
On or about February 13, 2017, the operator received a delinquency notice alerting it of
its failure to pay or contest $28,034 in penalties related to the case at hand. Cumberland claims
that it “began to investigate” the failure to timely contest the penalties after receiving the
delinquency notice. However, the operator took no steps to reopen the assessment at issue until
being notified on or about April 13, 2017 that the matter had been referred to the U.S.
Department of Treasury for collection and additional late fees were applied.
The Commission has made it clear that where a failure to contest a proposed assessment
results from an inadequate or unreliable internal processing system, the operator has not
established grounds for reopening the assessment. Shelter Creek Capital, LLC, 34 FMSHRC
3053, 3054 (Dec. 2012); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011); Double
Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland Mining Co., 31 FMSHRC
1313, 1315 (Nov. 2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Pinnacle
Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008). It is the operator’s responsibility to properly
train all personnel who handle proposed assessments. Each proposed assessment sets forth the
deadline for contesting proposed assessments and provides clear instructions on how to file said
contest with MSHA.
In determining whether inadequate procedures warrant denial of a motion to reopen, we
review an operator’s procedures for handling proposed MSHA assessments. We also consider
the reasons for the failure of the internal processing system and the operator’s efforts to correct
any such flaws. Here, the operator does not explain why it needed an extended period of time to
implement a functional internal processing system, or why, after implementing this purportedly
functional system, it failed to take any action on the assessment for a significant period of time,
even after receiving a delinquency notice. In the absence of such explanation, the multiple
failures of the operator’s internal processing system between July 2016 and April 2017 indicate
that the operator made little, if any, effort to correct flaws in its internal procedures.
1

The operator paid the uncontested penalties with a check. However, this check was not
issued until January 12, 2017, two months after the assessment had become a final order of the
Commission.

40 FMSHRC Page 1130

We find that the operator failed to implement a functional system for handling proposed
assessments despite having ample opportunity to do so. The assessment was delivered in
October, several months after the creation of the operator’s parent company. Therefore, before
the assessment was delivered, the operator had ample time to implement a functional system for
contesting penalties. Yet, for more than four months, Cumberland continued to operate its mine
without fully establishing contest procedures. The operator does not provide any reason as to
why it needed an extended period of time to implement a functional system for contesting
penalties.
Furthermore, we are troubled that, after purportedly implementing a functional system for
handling assessments, the operator nevertheless failed to take any action regarding the
assessment for a significant period of time. The new system for handling proposed penalties was
implemented by December 2, 2016. However, the operator failed to file a motion to reopen until
April, despite the fact that the assessment concerned approximately $28,000 in penalties.
Moreover, there is no evidence that the operator made any effort to contact MSHA between
December and April regarding the status of the assessment. The operator’s long delay in taking
any action on a large penalty assessment belies its claim that its system became “fully
functional” in December.
Moreover, we find no explanation for the operator’s delay in responding to the
delinquency notice. We have long held that motions to reopen filed more than 30 days after
receipt of notice of delinquency must explain the reasons why the operator waited to file a
reopening request, and lack of explanation is grounds for the Commission to deny the motion.
See, e.g., Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009); Highland Mining Co., 31
FMSHRC at 1316-17. Here, the operator received a delinquency notice on or about February 13,
2017. However, it did not respond to this notice until April 14, a day after receiving a collections
notice from the Department of Treasury. The operator does not bother to explain why it waited
two months to respond to the delinquency notice.

40 FMSHRC Page 1131

The evidence suggests that the operator’s internal system for handling penalties failed
during three distinct time periods—when it received the proposed assessment, then when it
implemented its new functional processing system, and then again when it received the
delinquency notice. The operator does not provide a sufficient excuse for such failures or any
evidence of efforts to correct such flaws in the system. Therefore, given the multiple unexplained
failures of the internal system, we must conclude that the operator’s failure to contest the
assessment at issue was a direct result of an inadequate or unreliable internal processing system.
Accordingly, we find that the operator has failed to demonstrate an entitlement to
extraordinary relief, and thus we deny Cumberland’s motion.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

40 FMSHRC Page 1132

Distribution:
R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1500
401 Liberty Ave.
Pittsburgh, PA 15222
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 1133

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

August 30, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. SE 2017-212
A.C. No. 01-00851-431085

v.
OAK GROVE RESOURCES, LLC

BEFORE: Althen, Acting 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. (2012) (“Mine Act”). On June 27, 2017, the Commission received from Oak Grove
Resources, LLC (“Oak Grove”) a motion seeking to reopen a penalty assessment that had
appeared to become a final order of the Commission pursuant to section 105(a) of the Mine Act,
30 U.S.C. § 815(a).
On February 13, 2017, Oak Grove received a proposed penalty assessment from the
Secretary. On March 15, 2017, the proposed assessment was deemed a final order of the
Commission, when it appeared that the operator had not filed a Notice of Contest within 30 days.
Oak Grove asserts that it has a centralized internal process for handling proposed
assessments. Under this process, when any assessment is received from MSHA, they are scanned
and e-mailed to the safety manager who reviews the assessments and underlying violations. The
safety manager then marks those violations the company intends to contest on the assessment
form, and mails the form to MSHA when he leaves work for the day.
In an affidavit, the safety manager asserts that, consistent with the process above, he
timely mailed a contest of seven of the citations and orders within the assessment at issue to
MSHA’s Civil Penalty Compliance Office on February 22, 2017. The operator believes that an
error by the postal service resulted in the contest not being delivered to MSHA. The Secretary
does not oppose the request to reopen or dispute the operator’s assertion that it timely mailed the
contest to MSHA. We accept Oak Grove’s representation that it timely mailed a contest of seven
of the citations and orders to MSHA.

40 FMSHRC Page 1134

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, here Oak Grove, by
timely mailing the contest of the assessment, effectively contested seven of the citations and
orders, and their associated proposed penalties.
Having reviewed Oak Grove’s request and the Secretary’s response, we conclude that the
proposed penalty assessment did not become a final order of the Commission because the
operator timely contested seven of the proposed penalties within the proposed assessment.
Accordingly, the operator’s motion to reopen is moot, and this case is remanded to the Chief
Administrative Law Judge for further proceedings on these seven citations and orders pursuant to
the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

40 FMSHRC Page 1135

Distribution:
Jeffrey K. Phillips, Esq.
Steptoe & Johnson, PLLC
One Paragon Centre
2525 Harrodsburg Rd., Suite 300
Lexington, KY 40504
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 1136

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

August 30, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 2017-176
A.C. No. 44-06045-427215

v.
BARNETTE CONTRACTORS, INC.

BEFORE: Althen, Acting 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. (2012) (“Mine Act”). On June 7, 2017, the Commission received from Barnette
Contractors, Inc. (“Barnette”) a motion seeking to reopen a penalty assessment that had become
a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on December 27, 2016, and
became a final order of the Commission on January 26, 2017. Barnette asserts that on January 2,
2017, counsel for the operator sent a letter objecting to the proposed penalty assessment to the
Executive Director of the Federal Mine Safety and Health Review Commission in Washington,
D.C., with a copy to the MSHA District Office in Norton, Virginia.

40 FMSHRC Page 1137

USPS records indicate that the operator’s January 2, 2017 letter was received by the
Federal Mine Safety and Health Review Commission in Washington, D.C. on January 9, several
weeks before the assessment became a final order. See Attachment C to the Secretary’s NonOpposition (receipt indicating delivery date of letter). However, the proposed assessment
instructs the operator to send any contest to the MSHA Civil Penalty Compliance Office in
Arlington, Virginia. Therefore, while the operator mailed its contest before the assessment
became a final order, it incorrectly sent its contest to the wrong agency (i.e., the Commission)
and to an MSHA District Office rather than to the MSHA Civil Compliance Office in Arlington,
Virginia.
We recognize that the operator timely mailed its contest, albeit to the wrong address.
Furthermore, we recognize that the Secretary does not oppose the request to reopen, but urges
the operator to take steps to ensure that future penalty contests are timely filed.
Therefore, having reviewed Barnette’s request and the Secretary’s response, we find that
the operator’s failure to timely contest the assessment was a result of mistake, inadvertence, or
excusable neglect under Rule 60(b). In the interest of justice, we hereby reopen this matter and
remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine
Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with
Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of
this order. See 29 C.F.R. § 2700.28.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

40 FMSHRC Page 1138

Distribution:
Gregory M. Stewart, Esq.
Stewart Law Office, P.C.
940 Park Ave., Northwest
P.O. Box 616
Norton, VA 24273-0616
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 1139

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

August 30, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2017-292-M
A.C. No. 35-03532-416565
Docket No. WEST 2018-269-M
A.C. No. 35-03532-419038

v.
CHAVARRIA CONSTRUCTION, INC.

BEFORE: Althen, Acting 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. (2012) (“Mine Act”). On March 10, 2017, the Commission received from Chavarria
Construction, Inc. (“Chavarria”) a motion 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). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).

1

For the limited purpose of addressing these motions to reopen, we hereby consolidate
docket numbers WEST 2017-292-M and WEST 2018-269-M involving similar procedural
issues. 29 C.F.R. § 2700.12.

40 FMSHRC Page 1140

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment for WEST 2017-292 M was delivered on
August 10, 2016, and became a final order of the Commission on September 9, 2016. In
addition, MSHA records indicate that the proposed assessment for WEST 2018-269-M was
delivered on September 9, 2016 and became a final order of the Commission on October 11,
2016.
Chavarria asserts that it intended to contest portions of these assessments, and that it
mailed the sheet entitled “Notice of Contest Rights” to Arlington, Virginia. However, the chart,
indicating which violations an operator intends to contest, was mailed along with payment of the
uncontested penalties, presumably to MSHA’s St. Louis Payment Processing Center.2 The
Secretary supports the operator’s reopening request so that the parties may enter into a settlement
agreement in this matter.

2

Contests of proposed penalties should be sent to the MSHA Civil Penalty Compliance
Office in Arlington, Virginia, as indicated on the Notice of Contest Rights and Instructions,
included with the proposed assessment.

40 FMSHRC Page 1141

Therefore, having reviewed Chavarria’s request and the Secretary’s response, we find
that the operator’s misunderstanding regarding where to send the chart was a mistake under Rule
60(b). In the interest of justice, we hereby reopen these matters and remand them to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700.
Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

40 FMSHRC Page 1142

Distribution:
Colleen Chavarria
Secretary
Chavarria Construction Inc.
2200 Silver Falls Dr., NE
Silverton, OR 97381
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 1143

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

August 30, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2015-932
A.C. No. 46-09105-387887A

v.
THOMAS L. PUCKETT, employed by
FRASURE CREEK MINING, LLC

BEFORE: Althen, Acting 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. (2012) (“Mine Act”). On March 26, 2018, the Commission received a motion seeking
to reopen this civil penalty case involving Thomas Puckett under section 110(c) of the Mine Act,
30 U.S.C. § 820(c). Puckett is concerned because, although he timely contested a proposed
assessment sent to him by the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) in 2015, and although the proposed assessment was not further processed by MSHA,
he received a letter from MSHA dated March 9, 2018 informing him that the civil penalty had
become delinquent and he owed the government over $8000.
MSHA records indicate that the proposed assessment was delivered on July 28, 2015, and
contested by Puckett on or about August 10, 2015.
On November 21, 2017, the Chief Administrative Law Judge issued an Order requiring
the Secretary to show cause as to why a petition for assessment of penalty had not been filed
within 45 days of Puckett’s timely contest, as required by the Commission’s Procedural Rules.
The Secretary failed to timely file a penalty petition or to otherwise respond to the Show Cause
Order. Accordingly, pursuant to the terms of the Order, the proceeding against Puckett was
dismissed on December 22, 2017. See 29 C.F.R. §§ 2700.28(a), 2700.66(a).
In his motion, Puckett asserts that the proposed assessment was timely contested in
August 2015. He further states he did not receive any further documents from MSHA until
March 2018, when the Secretary issued a letter stating that the assessment had become a final
order and that he was delinquent in paying the assessed penalty.
The Secretary does not oppose the motion to reopen. According to the Secretary,
MSHA’s records indicate that the case was “in contest” on August 10, 2015, but was “closed by
default on January 3, 2018.” The Secretary contends that the assessment became a final order on
February 1, 2018. Presumably relying on these records, the Secretary mailed a delinquency
notice to Puckett on March 9, 2018.

40 FMSHRC Page 1144

MSHA’s records and the Secretary’s response to the motion before us do not accurately
describe the status of this case. The Chief Administrative Law Judge dismissed this matter
because of the Secretary’s failure to file a civil penalty petition. There was no failure to act by
Puckett. Accordingly, the Secretary’s proposed penalty assessment did not become a final order.
Because this matter was dismissed as a result of the Secretary’s failure to prosecute,
Puckett does not owe anything to the government. Accordingly, reopening this matter is
unnecessary.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

40 FMSHRC Page 1145

Distribution:
James F. Bowman
P.O. Box 99
Midway, WV 25878
Thomas L. Puckett
301 Riffe St.
Sophia, WV 25921
Frasure Creek Mining LLC
137 E. Main St.
Oak Hill, WV 25901
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 1146

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

August 30, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. WEVA 2016-284-M
A.C. No. 46-00007-403449

v.
ESSROC CEMENT CORPORATION

BEFORE: Althen, Acting 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. (2012) (“Mine Act”). On October 7, 2016, the Commission received from Essroc
Cement Corp. (“Essroc”) a motion seeking to reopen a penalty assessment proceeding and
relieve it from the default order entered against it.
On April 11, 2016, counsel for the Secretary of Labor filed a petition for assessment of
civil penalty in this matter.1 According to the Secretary’s mailing records, a representative for
Essroc received the petition at the operator’s plant in Martinsburg, WV, on April 15, 2016.
Essroc failed to file an Answer to the penalty petition. On May 23, 2016, the Chief
Administrative Law Judge issued an Order to Show Cause directing Essroc to file an answer in
this matter within 30 days of the order or be held in default. By its terms, the Order to Show
Cause was deemed a Default Order on June 23, 2016, when the operator failed to file an answer
within 31 days. On July 11, 2016, Christine Blackston, Essroc’s manager for safety and
regulatory compliance, attempted to file an Answer in this matter with the Commission. The
following day, an employee in the Commission’s docket office responded to Blackston,
explaining that the operator had defaulted in this matter by failing to timely file a response and
directing Essroc’s representative to the Commission’s guidance on how to request reopening of a
closed case.2

1

On the same day, the Secretary issued a separate civil penalty petition to Essroc in
Docket No. WEVA 2016-350. Essroc also defaulted in that matter and has requested the
Commission reopen that docket. As in this matter, we have rejected Essroc’s request to reopen
Docket No. WEVA 2016-350-M.
2

In a cover letter accompanying Essroc’s late-filed Answer, the operator acknowledged
that its response was late, but that it had forgotten to file an answer.

40 FMSHRC Page 1147

In the October 2016 Motion to Reopen, counsel for Essroc asserts that the citations in this
matter “became a final order for a reason unknown to Essroc,” and further that “Essroc never
received a Petition for Assessment of Civil Penalty.” Essroc supports its motion with an affidavit
by the safety manager at Essroc’s Martinsburg Plant. The safety manager asserts that “[n]either I
nor anyone at Essroc received any additional paperwork from MSHA such as a Petition for
Assessment of Civil Penalty.” He adds that Essroc only learned of the default upon receiving a
delinquency notice from MSHA on around August 8, 2016.
On November 8, 2016, the Secretary filed a response opposing Essroc’s motion to
reopen. Emphasizing that an Essroc employee had signed for the civil penalty petition, the
Secretary asserted that Essroc’s motion to reopen rested “on an assertion that appears to be
factually incorrect.”
On January 9, 2017, Essroc filed a response conceding that it received the civil penalty
petition but explaining that the individual responsible for filing an answer was unable to do so
because of an unusual surge in work duties. Essroc supported its response with an affidavit from
Christine Blackston, the safety and regulatory compliance manager who attempted to file a late
answer in July 2016. She stated that she failed to timely file an answer because of her business
travel schedule, a possible change in corporate ownership, and new administrative duties. Aff. at
1.
The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. §
2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s
decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct
review within 40 days of a decision’s issuance, it becomes a final decision of the Commission.
30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the
Commission.
In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure, under which the Commission may relieve a party
from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or
other reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall
be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy and
that, if the defaulting party can make a showing of good cause for a failure to timely respond, the
case may be reopened and appropriate proceedings on the merits will be permitted. See Coal
Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
The party seeking to reopen a final penalty bears the burden of showing that it is entitled
to such relief, through a detailed explanation of its failure to timely contest the penalty or answer
the Secretary’s petition, and any delays in filing for reopening. See Dynamic Energy, Inc.,
39 FMSHRC 1560, 1561 (Aug. 2017); Higgins Stone Co., 32 FMSHRC 33, 34 (Jan. 2010); Lone
Mountain Processing, Inc., 35 FMSHRC 3342, 3345 (Nov. 2013).

40 FMSHRC Page 1148

We find that Essroc has failed to meet its burden here. Essroc failed to timely respond to
both the Secretary’s civil penalty petition and the Commission Chief Administrative Law
Judge’s subsequent show cause order, despite receiving both documents. When the operator’s
representative attempted to file an answer late in July 2016, a Commission docket office
employee promptly informed the operator of its default and resultant need to request reopening.
Nevertheless, Essroc failed to file its motion to reopen this matter for another three months.
Indeed, Essroc did not request reopening for approximately two months after the operator
received a delinquency notice from the Secretary.3 Once it did file its request to reopen, the
operator erroneously represented that it had never received any of the prior filings. Upon
notification of its material misrepresentations, the operator took nearly two months to identify its
errors and correct the inaccuracies in Essroc’s filings with the Commission.
The safety and regulatory compliance officer’s additional duties and travel schedule did
not justify Essroc’s failure to timely respond to the penalty petition and the order to show cause.
This, coupled with the operator’s unexplained delays in requesting reopening, leads us to
conclude that the operator has failed to meet its burden of establishing good cause for failing to
meet the deadline in the order to show cause. Accordingly, we find that that it has failed to
demonstrate an entitlement to extraordinary relief, and thus we deny Essroc’s motion.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

3

The Commission has held that an operator who files a motion to reopen more than 30
days after receiving notice of its default must explain its delay in requesting relief. See Highland
Mining Co., 31 FMSHRC 1313, 1316-17 (Nov. 2009). Failure to provide such an explanation
may be grounds for denying the motion. Id. Essroc failed to provide such explanation here.

40 FMSHRC Page 1149

Distribution:
Adele L. Abrams, Esq.
Tina M. Stanczewski, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Pl., Suite D
Beltsville, MD 20705
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 1150

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

August 30, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. WEVA 2016-350-M
A.C. No. 46-00007-405740

v.
ESSROC CEMENT CORPORATION

BEFORE: Althen, Acting 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. (2012) (“Mine Act”). On October 3, 2016, the Commission received from Essroc
Cement Corp. (“Essroc”) a motion seeking to reopen a penalty assessment proceeding and
relieve it from the Default Order entered against it.
On April 11, 2016, counsel for the Secretary of Labor filed a Petition for Assessment of
Civil Penalty in this matter. According to the Secretary’s mailing records, a representative for
Essroc received the petition at the operator’s plant in Martinsburg, WV, on April 15, 2016.
Essroc failed to file an Answer to the penalty petition. On May 18, 2016, the Chief
Administrative Law Judge issued an Order to Show Cause directing Essroc to file an answer in
this matter within 30 days of the order or be held in default. By its terms, the Order to Show
Cause was deemed a Default Order on June 20, 2016, when the operator failed to file an answer
within 31 days.
In its Motion to Reopen, Essroc alleged that it never received the Secretary’s April 11
Petition for Assessment of Civil Penalty. In support of its motion, Essroc provided an affidavit
by the safety manager at Essroc’s Martinsburg Plant who avers that he filed the contest
paperwork in this matter but, “[n]either I nor anyone else at Essroc received any additional
paperwork from MSHA such as a Petition for Assessment of Civil Penalty.” The affidavit further
asserted that the operator learned of the default in this matter when it received a notice of
delinquency from MSHA on around August 8, 2016.
On November 8, 2016, the Secretary filed a response opposing Essroc’s motion to
reopen. Emphasizing that an Essroc employee had signed for the civil penalty petition, the
Secretary asserted that Essroc’s motion to reopen rested “on an assertion that appears to be
factually incorrect.”

40 FMSHRC Page 1151

On January 9, 2017, Essroc filed a Response to the Secretary’s opposition to the motion
to reopen. In its response, Essroc conceded that it received the Secretary’s civil penalty petition
but asserted that the individual responsible for filing an answer in the case was unable to do so
because of an unusual surge in work duties. Essroc supported its Response with a new affidavit
from Christine Blackston, the safety and regulatory compliance manager at the mine’s parent
company who was in charge of coordinating the operator’s responses to MSHA civil penalty
petitions.
The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. §
2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s
decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct
review within 40 days of a decision’s issuance, it becomes a final decision of the Commission.
30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the
Commission.
In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure, under which the Commission may relieve a party
from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or
other reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall
be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy and
that, if the defaulting party can make a showing of good cause for a failure to timely respond, the
case may be reopened and appropriate proceedings on the merits will be permitted. See Coal
Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
The party seeking to reopen a final penalty bears the burden of showing that it is entitled
to such relief, through a detailed explanation of its failure to timely contest the penalty or answer
the Secretary’s petition, and any delays in filing for reopening. See Dynamic Energy, Inc.,
39 FMSHRC 1560, 1561 (Aug. 2017); Higgins Stone Co., 32 FMSHRC 33, 34 (Jan. 2010); Lone
Mountain Processing, Inc., 35 FMSHRC 3342, 3345 (Nov. 2013).
We find that Essroc has failed to meet its burden here. Essroc failed to respond to both
the Secretary’s civil penalty petition and the Commission Chief Administrative Law Judge’s
subsequent show cause order, despite receiving both documents. Although Essroc learned of its
default in this matter in early August 2016, the operator did not file a motion to reopen with the
Commission for approximately two months.1 Even then, Essroc’s motion to the Commission and
the sworn affidavit supporting the operator’s request contained material misstatements about
these proceedings. After the Secretary notified Essroc of these errors, the operator still took
nearly two months to identify its errors in this matter and correct the inaccuracies in Essroc’s
1

Essroc’s motion to reopen does not explain why the operator delayed in filing its motion
to reopen for nearly two months after receiving a delinquency notice from the Secretary. See,
e.g., Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009); Highland Mining Co., 31 FMSHRC
1313, 1316-17 (Nov. 2009) (holding that motions to reopen filed more than 30 days after receipt
of notice of delinquency must explain the reasons why the operator waited to file a reopening
request, and lack of explanation is grounds for the Commission to deny the motion).

40 FMSHRC Page 1152

filings with the Commission. As a result, we find that Essroc failed to meet its burden of
establishing good cause for failing to meet the deadline contained in the Order to Show Cause.
Accordingly, we find that the operator has failed to demonstrate an entitlement to relief, and thus
we deny Essroc’s motion.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

40 FMSHRC Page 1153

Distribution:
Adele L. Abrams, Esq.
Tina M. Stanczewski, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Pl., Suite D
Beltsville, MD 20705
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 1154

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

August 30, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2017-412
A.C. No. 46-09152-432866

v.
ROCKWELL MINING, LLC

BEFORE: Althen, Acting 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. (2012) (“Mine Act”). On May 26, 2017, the Commission received from Rockwell
Mining, LLC (“Rockwell”) a motion seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered to P.O. Box 57, Wharton, West
Virginia, on March 6, 2017, and became a final order of the Commission on April 5, 2017. A
contest was filed on April 6, 2017, a day after the assessment became a final order of the
Commission.

40 FMSHRC Page 1155

Rockwell concedes that MSHA mailed the proposed assessment to the P.O. Box and that
the P.O. Box was not checked until March 21, 2017, a couple of weeks after the assessment was
delivered. However, Rockwell claims that MSHA caused undue delay by sending the assessment
to a P.O. Box rather than to its address of record, 54912 Pond Fork Road, Wharton, West
Virginia 25208, and that this contributed to the delay in contesting the assessment. Furthermore,
the operator claims that when the assessment was retrieved from the P.O. Box, it was given to a
receptionist newly hired by the operator. Rockwell implies that the receptionist’s inexperience
with company policies further contributed to the delay in contesting the assessment.
The Secretary does not oppose the request to reopen and does not dispute Rockwell’s
claim that the assessment was not sent to the address of record. Therefore, we find that the
assessment was erroneously delivered to an incorrect address and that Rockwell filed its contest
only a day late.
Having reviewed Rockwell’s request and the Secretary’s response, we find that
Rockwell’s failure to timely contest the assessment was excusable. In the interest of justice, we
hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

40 FMSHRC Page 1156

Distribution:
Todd C. Myers, Esq.
Associate General Counsel
Rockwell Mining, LLC
3228 Summit Square Pl., Suite 180
Lexington, KY 40609
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 1157

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

August 30, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2017-476
A.C. No. 46-09230-437793

v.
PANTHER CREEK MINING, LLC

BEFORE: Althen, Acting 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. (2012) (“Mine Act”). On June 30, 2017, the Commission received from Panther
Creek Mining, LLC (“Panther Creek”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. §
815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on May 17, 2017, and became a
final order of the Commission on June 16, 2017.
Panther Creek asserts that the assessment was not timely contested because the
assessment was mishandled at the mine. The operator did not realize that the assessment had

40 FMSHRC Page 1158

been delivered until June 20, when an employee noticed the envelope containing the assessment
in a file tray at a mine. In response to its failure to timely contest this assessment, the operator is
changing its service address for proposed assessments from P.O. Boxes at mines to the company
office.
The Secretary does not oppose the request to reopen, but urges the operator to take steps
to ensure that future penalty contests are timely filed. We recognize that the motion to reopen
was received by the Commission merely two weeks after the assessment became a final order. In
addition, we recognize that the operator is changing its internal procedures to ensure that future
penalty contests are timely filed.
Therefore, having reviewed Panther Creek’s request and the Secretary’s response, we
find that the operator’s failure to timely contest the assessment was a result of mistake,
inadvertence or excusable neglect under Rule 60(b). In the interest of justice, we hereby reopen
this matter and remand it to the Chief Administrative Law Judge for further proceedings pursuant
to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.
Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

40 FMSHRC Page 1159

Distribution:
Noelle Holladay True, Esq.
Williams, Kilpatrick & True, PLLC
3151 Beaumont Centre Cir., Suite 375
Lexington, KY 40513-1964
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 1160

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

August 30, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. WEVA 2018-30
A.C. No. 46-06618-449006

v.
ROCKWELL MINING, LLC

BEFORE: Althen, Acting 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. (2012) (“Mine Act”). On March 27, 2018, the Commission received from Rockwell
Mining, LLC (“Rockwell”) a motion seeking to reopen a penalty assessment proceeding and
relieve it from the Default Order entered against it.
On December 4, 2017, the Chief Administrative Law Judge issued an Order to Show
Cause in response to Rockwell’s failure to answer the Secretary of Labor’s October 17, 2017,
Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause became a
Default Order on January 3, 2018, once Rockwell failed to file an answer to the penalty petition
within 30 days. The Default Order has since become a final decision of the Commission. 30
U.S.C. § 823(d)(1).
In evaluating requests to reopen, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure, under which the Commission may relieve a party from a final
order of the Commission on the basis of mistake, inadvertence, excusable neglect, or other
reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be
guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc., 15
FMSHRC 782, 787 (May 1993). We have also observed that default is a harsh remedy and that,
if the defaulting party can make a showing of good cause for a failure to timely respond, the case
may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs.,
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
The two alleged violations at issue in this matter are also at issue in a related proceeding
(Docket No. WEVA 2017-425) brought against an agent of Rockwell under section 110(c) of the
Mine Act, 30 U.S.C. § 820(c). Rockwell asserts that it mistakenly believed it had responded to
the penalty petition in this matter, because the parties had already begun litigating the related
docket when the penalty petition for this proceeding was received. Rockwell states that once it

40 FMSHRC Page 1161

realized in February 2018 it had not filed an answer in this proceeding, it immediately did so.1
Rockwell further asserts that it has no record of receiving a copy of the Show Cause Order.
The Secretary does not oppose the request to reopen. The Secretary further represents that
he has moved to vacate the citation and order in question and dismiss the proceeding in the
related docket.2 Accordingly, the Secretary requests that the instant case be reopened, so that
MSHA may also move to dismiss this proceeding.
Having reviewed Rockwell’s request and the Secretary’s response, we hereby reopen the
proceeding, vacate the default order, and remand to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 CFR
Part 2700. Given that an answer has already been filed and the Secretary has elected to vacate the
violations in the related docket, we expect a prompt resolution to this proceeding.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

1

The answer was received by the Commission on February 7, 2018.

2

Because the Secretary elected to vacate the civil penalty proceeding against Rockwell’s
agent, the Judge in that case issued an Order of Dismissal for WEVA 2017-425 on April 5, 2018.

40 FMSHRC Page 1162

Distribution:
Melanie J. Kilpatrick
Williams, Kilpatrick & True, PLLC
3151 Beaumont Centre Circle, Suite 375
Lexington, KY 40513
Ali Beydoun, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

40 FMSHRC Page 1163

ADMINISTRATIVE LAW JUDGE DECISIONS

40 FMSHRC Page 1164

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

July 20, 2018
THE DOE RUN COMPANY,
Contestant,

CONTEST PROCEEDINGS
Docket No. CENT 2015-318-RM
Citation No. 8680899; 03/11/2015

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

Docket No. CENT 2015-319-RM
Citation No. 8680900; 03/11/2015

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

CIVIL PENALTY PROCEEDINGS

Mine ID 23-00409
Fletcher Mine and Mill

Docket No. CENT 2015-441-M
A.C. No. 23-00409-379896

v.

Docket No. CENT 2016-55-M
A.C. No. 23-00409-392975

THE DOE RUN COMPANY,
Respondent.

Mine: Fletcher Mine and Mill

DECISION
Appearances:

Susan J. Willer, Esq., Office of the Solicitor, U.S. Department of Labor,
Kansas City, Missouri, for the Secretary of Labor
Ryan Seelke, Esq., for The Doe Run Co., Respondent

Before:

Judge Lewis

STATEMENT OF THE CASE
These cases arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801
et seq. (the “Act” or “Mine Act”). A hearing was held in St. Louis, Missouri, where the parties
presented testimony and documentary evidence. After the hearing, the parties submitted posthearing briefs and reply briefs, which have been fully considered.

40 FMSHRC Page 1165

FINDINGS OF FACT AND CONCLUSION OF LAW
The findings of fact are based on the record as a whole and the undersigned’s careful
observation of the witnesses during their testimony. In resolving any conflicts in the testimony,
the undersigned has taken into consideration the interests of the witnesses, or lack thereof, and
consistencies, or inconsistencies, in each witness’s testimony and between the testimonies of the
witnesses. In evaluating the testimony of each witness, the undersigned has also relied on his
demeanor. Any failure to provide detail as to each witness’s testimony is not to be deemed a
failure on the undersigned’s part to have fully considered it. The fact that some evidence is not
discussed does not indicate that it was not considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th
Cir. 2000) (administrative law judge is not required to discuss all evidence and failure to cite
specific evidence does not mean it was not considered).
I. JOINT STIPULATIONS
1. The Doe Run Company produces lead -zinc ore from its underground mine operations,
and these mining operations affect interstate commerce.
2. The Doe Run Company is subject to the jurisdiction of the Federal Mine Safety and
Health Act of 1977, as amended (the Act).
3. The Administrative Law Judge has jurisdiction over the disputes in these consolidated
matters.
4. The Doe Run Company is, and has been at all relevant times to the inspection, the owner
and operator of the Fletcher Mine/Mill, Mine ID No. 23-00409, located in Reynolds
County, MO.
5. The Fletcher Mine is a mine as that term is defined by the Act.
6. The MSHA Assessed Violations History accurately reflects the history of Doe Run’s
Fletcher Mine/Mill for fifteen months prior to the date of the contested Citations.
CENT 2016-0055-M
7. On January 21, 2015, a fatal accident occurred at the Fletcher Mine when falling material
from the roof struck a Getman Mechanical Scaler operating in Section RC3PO Northeast
Working Area of the mine.
8. At the time of the accident, the operator of the Getman Mechanical Scaler was inside a
closed protective structure which was positioned underneath a section of mine roof that
was supported by six foot long 1 ½ inch diameter friction stabilizer roof bolts.
9. During the date of the accident, Mine Safety and Health Administration (“MSHA”)
Inspector Jeremy Kennedy was at the Fletcher Mine conducting a quarterly E01
inspection.

40 FMSHRC Page 1166

10. During the day shift on January 21, 2015, Inspector Kennedy traveled to and inspected
the RC3PO Northeast Working Area.
11. During his January 21, 2015, inspection, Inspector Kennedy observed the roof that would
later fall.
12. At the time of the roof fall, approximately 25% of the roof fall cavity was supported with
six foot long 1 ½ inch diameter friction stabilizer-type roof supports.
13. The Mine Safety and Health Administration (“MSHA”) inspected The Doe Run
Company's Fletcher Mine /Mill following the accident.
14. MSHA Inspector Jeremy Kennedy was acting in his official capacity as an authorized
representative of the Secretary when he inspected said mine.
15. MSHA Inspector Michael R. Van Dorn was acting in his official capacity as an
authorized representative of the Secretary when he inspected said mine.
16. MSHA issued a Section 104(a) Citation, No. 8680899, to The Doe Run Company on
March 11, 2015, alleging a violation of 30 C.F.R. § 57. 3201.
17. Citation No. 8680899 has been terminated, as the affected area has been abandoned and
fenced off
18. MSHA also issued a Section 104(a) Citation, No. 8680900, to The Doe Run Company on
March 11, 2015, alleging a violation of 30 C.F.R. § 57. 3360.1
19. Citation No. 8680900 has been terminated, as the affected area has been abandoned and
fenced off
20. The subject Citations were properly served by a duly authorized representative of the
Secretary upon Contestant's agent on the date and place stated in the Citations.
21. The Citations may be admitted into evidence for the purposes of establishing their
issuance and not for the truthfulness or relevancy of any statements asserted therein.
CENT 2015-441-M
22. The Mine Safety and Health Administration (“MSHA”) inspected The Doe Run
Company's Fletcher Mine /Mill after the occurrence of a fatal accident on January 21,
2015.
23. MSHA issued a Section 104(a) Citation, No. 8680902 to The Doe Run Company on
March 12, 2015, alleging a violation of 30 C.F.R. § 48.7(a).

1

The Joint Stipulations submitted mistakenly listed the Citation Number as Citation No.
86870900.

40 FMSHRC Page 1167

24. The subject Citation was properly served by a duly authorized representative of the
Secretary upon Contestant's agent on the date and place stated in the Citation.
25. The Citation may be admitted into evidence for the purposes of establishing its issuance
and not for the truthfulness or relevancy of any statements asserted therein.
26. The proposed penalties in these proceedings will not affect Respondent's ability to
continue in business.
27. The exhibits offered by Contestant and Respondent are stipulated to be authentic, but no
stipulation is made as to their relevance or the truth of the matters asserted therein. The
parties stipulate that the exhibits may be admitted into evidence. Except R, S & T and 4,
5 and 6.2
JX-1
II. SUMMARY OF TESTIMONY
Jeremy Kennedy
At hearing Jeremy Kennedy appeared and testified on behalf of the Secretary.
He had been a MSHA inspector for nine years. His duties included E16 spot inspections,
E04 compliance, E06 fatality and E08 non-fatality investigations. (Tr. 28). He had inspected a
variety of different type mines, including sand and gravel, small and large limestone, zinc and
copper. (Tr. 28-29).3
In 1999 he began working for Respondent. (Tr. 29). During his over eight years of
employment, he worked at various Doe Run mines, including the Fletcher Mine, where he
worked both as a surveyor’s assistant and surveyor. (Tr. 29-30). His job duties included
administering the mine’s bonus program, measuring the advancement of face for tons removed,
and measuring roof bolters’ linear feet of advancement. (Tr. 30).
Kennedy had received training at MSHA’s National Mine Academy in Beckley, West
Virginia. (Tr. 31). Over his career he had inspected the Fletcher Mine on eight different
occasions. He had conducted regular, follow-up, and spot inspections. (Tr. 32). The Doe Run
operation consisted of six mines in all. (Tr. 34). Four were interconnected and two were
satellites. (Tr. 34). Lead, copper and zinc were mined out of Fletcher, utilizing the room and
pillar style.4 (Tr. 35).

2

The last sentence to this stipulation was added by hand.

3

He had also earned a LPN certificate after completing one year of college.

4

Room and pillar mining is a process whereby the miners advance a drift and, while
advancing through the ore body, take slab rounds to both sides and create an intersection. If the
ore body is wide enough, “you will go ahead and turn and make a pillar.” (Tr. 36).

40 FMSHRC Page 1168

Kennedy had gone to Fletcher Mine on January 21, 2015, as part of his E01 regular
inspection. (Tr. 38). His inspection had been going on for approximately one week. (Tr. 39).
Ground conditions, equipment, electrical conditions, and housekeeping were all inspected. (Tr.
39). He actually travelled through the area where the roof fall was to occur, visually inspecting
the site. (Tr. 40).
Fletcher mining operations consisted of a drill cycle, charging or blasting cycle, a load
haul cycle, a scaling cycle, and then a bolting cycle. (Tr. 41). Kennedy noted that no mining was
going on in the area of the impending accident during his inspection. (Tr. 41). He actually
observed the scaler5 that would be involved in the coming fatality. (Tr. 43). During his inspection
of the headings, Kennedy looked for any ground control issues. (Tr. 46). Given his eight and a
half years’ employment by Respondent, Kennedy was familiar with Doe Run’s ground control
practices. (Tr. 46). Ground control is a systematic method of maintaining the back and ribs
through scaling, rock bolting, and other means to ensure safety. (Tr. 47; see also GX-7 Re:
Respondent’s underground roof and ground control policy.)
Test holes may be drilled to evaluate the stability of a back and to look for geological
conditions in the area. (Tr. 47-48). Drillers look at the returns to find what color the cuttings are.
(Tr. 49). The percussion of the drill may cause the rock to give off different sounds depending
upon its condition. (Tr. 49). A drummy sound—like a kettle drum—could be indicative of
unconsolidated material. (Tr. 49-50).
Doe Run’s ground control plan provided for test holes to be drilled in the middle of
intersections.6 (Tr. 51). Part of Fletcher’s ground control plan called for rock bolting.7 (Tr. 53;
GX-7). Two types of bolts were used at Fletcher Mine: “split set” and resin.8 Split set bolts are
driven into drill holes whose diameter is somewhat smaller than the bolts, friction being used to
keep them in place. (Tr. 55; GX-14). Resin bolts come in pre-packaged casings and are shot into
the back, utilizing an epoxy to stay in place. (Tr. 55).
During his inspection of the area of the roof fall, Kennedy observed split set bolts in a 5
foot by 5 foot pattern. (Tr. 56). None of the bolts were sticking out. (Tr. 56-57). Kennedy did not
conduct any soundings. (Tr. 57). He did “not observe anything that was not typical.” (Tr. 57).
When miners enter an area they typically perform a visual inspection. (Tr. 58). If they
have the needed equipment, they may perform other testing methods. (Tr. 58). They will also fill
out work inspection cards. (Tr. 58). On Respondent’s work inspection cards there were sections

5

A mechanical scaler is a piece of equipment that is used to remove unconsolidated
material from the roof and ribs of the mine. (Tr. 43).
6

Intersections are the areas between the rooms and pillars. (Tr. 52).

7

Bolts are pieces of steel inserted into holes drilled into the mine back (roof) to stabilize
the back from rib to rib. (Tr. 53).
8

Split sets are faster and cheaper to use than resin bolts. (Tr. 55). Resin bolts, which have
to be spun into place, have a stronger capacity. (Tr. 55).

40 FMSHRC Page 1169

to note loose rock but no sections to report if soundings or test holes were performed. (Tr. 59;
GX-7, p. 5).
Kennedy could not recall observing any “churned” or “disrupted” rock in the RC3PO
area, the back appearing “smooth” without “unusual features.” (Tr. 59-60).
When disrupted rock is encountered, a scaler might tighten up the pattern of bolts. (Tr.
60). A 4 foot by 4 foot or 3 foot by 3 foot pattern might be used. Sometimes extra-large face
plates might be added to the bolts. (Tr. 60).
There had been recent blasting in the area of the fall (RC3PO) on the Monday prior to the
accident. (Tr. 61). However, Kennedy did not observe any loose rock in the heading. (Tr. 61).
Kennedy had been called on January 21, 2015, because there had been a fatal accident at
Fletcher Mine. (Tr. 62). He arrived at the site shortly after midnight. (Tr. 63). A 103(j) order had
been issued by a district staff member. (Tr. 63). The verbal 103(j) order had been reduced to a
written 103(j) order and then modified to a 103(k) order. (Tr. 64; GX-17). The Respondent’s
rescue and recovery plan had been approved—with modifications—for scaling and rock removal
to effectuate the recovery of John Hoodenpyle. (Tr. 65-66).
Kennedy stayed at the mine for the entire MSHA investigation which lasted
approximately two weeks. (Tr. 67). He took various photographs of the accident site, including
pictures of the scaler involved in the fatality. (Tr. 67-68; GX-3).
The roof fall was approximately 125-200 tons in size. (Tr. 69). The roof height in the fall
area was 18 to 19 feet. The size of the fallen face was 55 feet long by 20 feet wide by 6 feet thick
at its deepest point. (Tr. 73).
The scaler involved in the accident had both a rollover protective system (ROPS) and a
falling object protective system (FOPS)—but they were of no benefit in the instant catastrophic
fall.9 (Tr. 77-78).
The split set bolts in the area had failed and had completely pulled out of the ceiling. (Tr.
79-81; GX-14). There had been no test drilling prior to the roof fall. (Tr. 84).
Kennedy agreed that split set bolts were often used in “brecciated” conditions such as
those found at Fletcher Mine. When he conducted his pre-accident inspection on January 21,
2015, Kennedy was competent enough to recognize hazardous unconsolidated material and to
issue a citation for such. (Tr. 90). Kennedy was unaware of any ground falls at Fletcher Mine
prior to January 21, 2015, which had involved the failure of split sets in brecciated ground. (Tr.
91). During his time as an inspector at Fletcher Mine, he had never issued a § 57.33 EO ground

9

Kennedy noted that, though the scaler’s protective systems had not prevented a fatality,
the victim’s body had been recovered “intact.” (Tr. 78). The victim had not sustained certain
injuries that one would expect to see from a catastrophic failure. (Tr. 78).

40 FMSHRC Page 1170

control citation. (Tr. 91). Nor had he noticed any ground control issues in the roof fall area at the
time of his November 2014 EO1 quarterly inspection. (Tr. 92).
The ground support system that he had observed was that of patterned split set bolts. (Tr.
93). The ground appeared stable and competent. (Tr. 93). No citations were issued in either
November 2014 or January 2015 for Respondent’s failure to document workplace examination
training on 5000-23. (Tr. 94-95).
During his prior inspections of the northeast working area, Kennedy had not observed
any violations involving ground support or control, including faulty bolts or bolt patterns. (Tr.
97-101). Kennedy had actually walked through the roof fall area on January 21, 2015, prior to
the accident. (Tr. 102). He noted no hazardous conditions, changes, or anything else that would
cause him concern. (Tr. 102). The last 2 rows of bolts—bordering the unbolted roof where the
fall occurred—appeared adequate, flush to back. (Tr. 105-106). No ground popping nor cracking
nor unusual noises were heard. (Tr. 106). The active faces and active roadway were free of
adverse conditions. (Tr. 108).
Kennedy’s inspection took place approximately 8 hours before the fatal accident. (Tr.
109).
Scaler operators at Doe Run normally placed the cabs of their units under bolted ground
with the remainder of their units under unbolted grounds, usually positioning themselves 60 feet
from the face. (Tr. 111).
During his inspection of Fletcher Mine, Kennedy had not looked for test hole sites, but
rather focused on bolt patterns and the presence of unconsolidated rock. (Tr. 112). Typically a
driller drills test holes in the back, drilling as vertical as possible. (Tr. 113). Test holes have a
greater height than bolt holes. (Tr. 121). One might be able to examine 3 or 4 feet of return in the
back with a test hole. (Tr. 121-122). Whether drilling bolt or test holes, drill operators look for
abnormal sounds, observe how fast the drill goes up into the rock, and check to see if there is a
void where the steel will jump. (Tr. 113).
Prior to bolting the back, a scaler will scale for unconsolidated rock—which Mr.
Hoodenpyle was doing prior to the roof fall. (Tr. 115). Prior to scaling a scaler will normally take
the tooth of his scaling rig and sound the back. (Tr. 116).
Kennedy opined that, based upon his experience, split set bolts were cheaper and faster to
install as compared to resin bolts. (Tr. 117). However, MSHA had established no set policy as to
which type to use. (Tr. 117). Kennedy knew of no bolts that had failed, separating above the
anchor point. (Tr. 120). Considering Doe Run’s operating history, he found nothing that should
have placed Respondent on notice of inadequate ground control in the fall area. (Tr. 120).
Resin bolts had greater strength than split set bolts. The split set bolts in the fall area had
not broken above the anchorage point but had been stripped out. (Tr. 129). The installation of
resin bolts was more involved than the installation of split sets. (Tr. 130). Resin needed to be
placed inside the drill hole with bolts being spun to mix the two-part epoxy. (Tr. 130-131). If a

40 FMSHRC Page 1171

bolt was over-spun, the bolt was rendered useless. (Tr. 131). Split set bolts, with proper test hole
drilling and hole size, required only friction to remain in place. (Tr. 130-131).
James Vadnal Direct Examination
James Vadnal also appeared and testified upon behalf of the Secretary.
At the time of hearing, Vadnal worked for MSHA in the technical support group, roof
control division. In this capacity he participated in accident investigations, including the fatality
at issue.10 (Tr. 140).
Vadnal had first gone underground into Fletcher Mine on January 23, 2015. (Tr. 150). He
viewed the Getman scaler that had been involved in the fatality.11 (Tr. 151). He traveled to the
fall area located between pillars 7516 and 7517. (Tr. 151). Immediately upon walking up to the
edge of the fall area, Vadnal had noticed that “the rocks had changed.” (Tr. 152). They had gone
from a “layered,’’ “bedded” look to a look where “everything was all jumbled up” or had
“disturbed bedding.” (Tr. 152).
The center of the fall cavity revealed a horizontal bedding plane. (Tr. 154; GX-14, p. 2).
The dolomite at Doe Run had several distinctive beds. (Tr. 154). Each bed was separated from
the ore above or below by a bedding plane. (Tr. 154). Hydro-thermal fluid had been pushed
along these bedding planes; this is where the bulk of the brecciation had taken place. (Tr. 155).
The dolomite rock at Doe Run had been broken apart in the geologic past by the pressures
associated with the injection of lead and zinc ore. (Tr. 155). Angular blocks of dolomite
surrounded by lead and zinc ore could be seen in the area being mined. (Tr. 155). Usually these
blocks were rather small. (Tr. 155). However, in the fall area there was disrupted bedding; it
appeared all the beds had been picked up and jumbled around. (Tr. 156). The blocks of dolomite
that are referred to in brecciation as the “inner class” were feet on a side—as opposed to the
usual inches on side size. (Tr. 155-156).
The changed geology in the accident area was not only inside the fall cavity. (Tr. 157).
The disturbed bedding from the roof fall cavity had carried on over to the face in the left rib and
a portion of the face. (Tr. 157). Photographs of the fall area demonstrated the difference in
10

See also GX-11 for Vadnal’s resume. He had received a bachelor of science in geology
in 1975 and later attained a Master’s Degree in 2007-2008 in safety with an emphasis in mining.
(Tr. 140-141). Vadnal had been hired by MSHA in 2004, becoming an authorized mine safety
inspector. (GX-11). He had gotten his job with the technical support roof control division in
January 2007. (Tr. 147). As a roof control specialist, he had reviewed ground control and roof
control plans and had investigated approximately 100 roof fall accidents. (Tr. 147-148). Prior to
being hired by MSHA, Vadnal had worked for approximately 30 years in the mining industry.
(GX-11). He had worked as a geologist for environmental engineering firms. (Tr. 142). He had
worked in various positions for Arch Coal, including vice president, geology and exploration,
manager of safety and administration, director of geology and exploration, and senior geologist.
(Tr. 141-145; see also GX-11).
11

Vadnal found no evidence that the canopy of the scaler had been compromised.

40 FMSHRC Page 1172

brecciated ground versus churned or larger inner class ground. (Tr. 158; GX-3). Horizontal
bedding lines were essentially the same color. (Tr. 158; GX-3, p. 9). Such horizontal bedding
was the normal look of Fletcher Mine. (Tr. 158-159). The ground around the roof fall had gray
areas with larger class of dolomite that appeared to have “no orientation,” and were jumbled up
and disturbed. (Tr. 159; GX-3, p. 10).
Vadnal opined that the changes he had observed would have been obvious to others as
the changes were “dramatic” in nature. (Tr. 162).
Vadnal helped to prepare a fatal accident report, which contained a graphic representation
of Fletcher Mine’s geologic strata. (Tr. 162; GX-12, p. 3). The report recommended that where
the roof or back of Fletcher Mine had “brecciated dolomite or other hazardous conditions,” a
“change in the density and type of ground support might be warranted.” (Tr. 163-164; GX-12, p.
2). In areas containing highly brecciated ground or disrupted bedding, Vadnal recommended that
test drilling be performed. (Tr. 165). If the test drilling revealed changes in the composition of
the roof, management could be alerted.12 (Tr. 165-166).
Drill holes (for production) look different than test holes. (Tr. 169). Vadnal found no test
drill holes in the area of the fall. (Tr. 168).
In addition to drilling test holes to ascertain possible hazardous conditions, a miner can
also visually inspect an area for changes in texture and color. (Tr. 166-167). Vadnal detected
dramatic changes in the highly brecciated area of the accident site. (Tr. 167).
The ore deposits found at Fletcher Mine were formed by a hydrothermal process: hot,
very mineralized water was pushed directly in and around the dolomite. (Tr. 167-168).
Extraction required both the removal of dolomite and ore. (Tr. 168).
Areas that looked “shaley” would be significant. When there were small shale layers (on
the roof) at Doe Run, this would constitute a hazardous condition. (Tr. 170-171).
If a change in a mine’s geology is observed, an evaluation for possible hazardous
conditions should be performed. (Tr. 171). An evaluation would be an integral part of a ground
or roof control plan. (Tr. 172).
In churned, highly brecciated zones (such as the fall area) the operator’s policy should
require fully grouted resin bolts to be installed for roof support at a maximum spacing of 5 feet
by 5 feet. (Tr. 172; GX-12, p. 2). Number 7 fully grouted resin bolts have approximately three
times the capacity of split set bolts. (Tr. 172). In Vadnal’s opinion a reasonably prudent miner
would recognize the need for a (roof) evaluation in a highly brecciated and churned area. (Tr.
179). It was Vadnal’s further opinion that, considering the approximate 175 to 250 tons of
material that had fallen, an adequate number of resin bolts in the bolted area “could have”
supported the roof area over the scaler. (Tr. 179-180).

12

A test drill hole should extend minimally a foot longer than the longest bolt hole.

40 FMSHRC Page 1173

Typical bolting patterns of 5 by 5 would mean 5 feet between each bolt with 5 feet across
the drift and 5 feet down the drift. (Tr. 180). In tightening a bolt pattern the density of the ground
support could be increased to 4 by 4 pattern. (Tr. 181). By going to a 4 by 4 pattern or adding a
bolt in the center (like the number 5 on dice), the ground control system is made more robust and
is able to carry heavier loads. (Tr. 181). When hazardous conditions are detected, a mine’s roof
control system can be increased by shrinking the bolt pattern or adding a bolt to the center of a
pattern. (Tr. 181-182).
The MSHA fatality report further recommended training of miners to identify brecciated
geologic zones because of the hazards associated with disturbed bedding. (Tr. 182; GX-12, p. 2).
Such training would include presentation of “very good” pictures showing disturbed bedding and
having experts explain what differences (in ground conditions) should be looked for as part of
annual retraining. (Tr. 182). Drillers, in performing test holes, would be advised to immediately
report to management anything found out of the ordinary. (Tr. 183). Further, test holes should be
drilled at the beginning of each drilling cycle to determine separations in the back strata. (Tr.
183). The holes should be drilled as vertical as possible, be a minimum of one foot longer than
the support installed. (Tr. 183). The holes should be marked and the results of the examinations
should be reported to management. (Tr. 183).
Vadnal further found the Doe Run area inspection cards to be inadequate in that they did
not notify the mine regarding conditions detected by visual or audio examinations. (Tr. 184; GX7, pp. 5-6). The cards had no space for the description of abnormal ground condition or for the
results of test drill holes. (Tr. 185).
In the fatality report Vadnal had also recommended that the back should be supported
(bolted) within 30 feet of the drift at all times. (Tr. 185; GX-12, p. 2). This would reduce the
exposure of miners to unbolted ground. (Tr. 186).
Despite having been advised that there had been three other falls at Fletcher Mine prior to
the fatality at issue, Vadnal was unable to visit any of the sites, as Doe Run management was
unable to find or locate such. (Tr. 186).
Vadnal opined that the victim was in a location that exposed him to falling material
because the “accident occurred” and “the material fell.” (Tr. 187). Vadnal further opined that the
accident was preventable: “with proper evaluation and observations, the change in geology could
have been detected and a change in the roof support system could have been made.” (Tr. 187).
In certain areas of Fletcher Mine there were relatively thin shale layers that were
indicative of a weaker roof. (Tr. 187-188; GX-8, p. 4). Persons interviewed stated that roof bolt
operators had been instructed to change from friction stabilizers to 6 foot long fully grouted resin
bolts in these areas. (Tr. 188; GX-8, p. 4). It would be left to the judgement and discretion of the
roof bolt operators to decide ground support spacing and the need for fully grouted bolts.13 (Tr.
188; GX-8, p. 4).

13

Roof bolt operators are not supervisors. (Tr. 189).

40 FMSHRC Page 1174

Most of the scaler involved in the accident was under unbolted ground. (Tr. 190; GX-12,
p. 5). A photograph of the fall area (GX-12, p. 6) revealed how the roof had changed from
typically layered brecciated dolomite to churned disrupted bedding. (Tr. 192). A picture of the
intersection next to the fall area showed the various layers of roof that was referred to as “typical
layered breccia dolomite roof.” (Tr. 197; GX-13, p. 11).
In its Root Cause Analysis, MSHA concluded that Doe Run management had “failed to
establish policies and procedures for identifying hazardous conditions.” (Tr. 199; GX-8, p. 6).
Before the subject fatality, miners had not been required to drill test holes at each intersection in
order to identify adverse ground conditions. (Tr. 199; GX-8, p. 6).
Drilling test holes after an intersection was completed would be too late in the process.
(Tr. 199). Rather test holes should be drilled at the beginning of each drill cycle. (Tr. 200; GX-8,
p. 6). Further, test hole results should be written down and the hole visibly marked. (Tr. 200).
The written observations should be communicated to management. (Tr. 200). Respondent work
area inspection cards should be modified so that test hole results could be recorded. (Tr. 200; see
also GX-7, p. 5).
Doe Run management had also failed to design and install adequate support to control the
roof in areas where there was disrupted bedding of the brecciated zone. (Tr. 200): such as existed
in the RC3PO northeast area where persons worked and travelled. (Tr. 200-201; GX-8, p. 6).
It was further recommended that the roof and ribs be supported with 6 foot fully grouted
number 7 resin bolts or bolts with greater strength and anchorage capacity. (Tr. 202). Bolting
should be within 30 feet of the drift in breccia zones with disrupted bedding.14 (Tr. 202; GX-8, p.
6).
It was further recommended as a corrective action that “management”—someone other
than the bolting machine operator—should determine the type of roof support to be installed to
insure adequate face support. (Tr. 202-203; GX-8, p. 7).
The final root cause of the accident was found to be management’s failure to ensure that
miners performed scaling operations from a safe location that did not expose them to falling
materials.15 (Tr. 203; GX-8, p. 7). As a corrective action it was recommended that new roof
control procedures be established requiring limited distances for unbolted areas to ensure a safe
location for scaling operations. (Tr. 203). Miners should be trained in these procedures. (Tr.
203).

14

In areas with stable back conditions, bolts were to be kept within 100 feet of the work
face. (GX-8, p. 6).
15

Vadnal estimated that 75% to 80% of the victim’s scaler was outside of the bolted area.
(Tr. 205; GX-13, p. 5).

40 FMSHRC Page 1175

Vadnal Cross Examination
On cross examination Vadnal agreed that he had not observed what the back looked like
in the time period immediately prior to the fall. (Tr. 206). He assumed that the changes he had
observed in the fall cavity area were observable prior to the accident. (Tr. 206-207). He had
attempted to learn more about the other falls that had reportedly occurred at Fletcher Mine but
had been unable to obtain further information from Doe Run management, including the mine
geologist. (Tr. 207-208). Vadnal did not know if these other falls had involved bolted ground or
similar ground conditions as involved in Hoodenpyle’s death. (Tr. 208). He had not observed any
shale when he had traveled to the accident area. (Tr. 209).
Although his title was mining engineer, Vadnal did not have a degree in mine
engineering or any other engineering degree. (Tr. 209). In view of his past mining and
engineering work experience, however, the Federal Government had deemed him qualified to be
classified as a mining engineer. (Tr. 209-210). His exposure to brecciated ground conditions,16
prior to the Doe Run accident, was limited to a zinc mine, St. Lawrence Zinc, in New York and
Willow Lake Coal Mine17 in Illinois which had experienced a large number or roof falls. Prior to
the within hearing Vadnal had not ever testified as an expert regarding the holding capacity of
split set bolts. (Tr. 215). Nor had Vadnal, prior to the within matter, ever been retained as an
expert with respect to brecciated ground conditions. (Tr. 215).
Vadnal agreed that not all brecciated ground is adverse. (Tr. 216). He could not say with
any certainty that when breccia is re-cemented back together it would be stronger than what the
rock was before it broke apart. (Tr. 216). He agreed that the “country rock or host rock” at Doe
Run was dolomite and that dolomite was a strong, chemically stable rock. (Tr. 217).
Prior to his first visit on January 22, 2015, Vadnal had never examined the brecciated
ground conditions at Fletcher Mine. (Tr. 218). He concurred that “as a whole” the ground
conditions at Fletcher Mine were stable. (Tr. 218).
There are varying degrees of brecciation. (Tr. 220). A layer of dolomite that has not been
disrupted, when pinned together by roof bolts, forms a (stable) beam that spans the mine
opening. (Tr. 220). However, when layers are no longer present and “everything is all broken,”
the beam is “a lot” harder to establish. (Tr. 220). Nonetheless, a beam may still be established in
highly brecciated ground, if there is adequate bolting. (Tr. 220-221).
Vadnal saw nothing that alerted him as to possible hazardous conditions while travelling
to the accident scene. (Tr. 221, 223). The very edge of the fall between 7508 and 7517 was
“pretty ratty” and Vadnal did not come close to the fall cavity in that area. (Tr. 223).

16

At hearing Respondent’s counsel objected to this Court’s acceptance of Vadnal as an
expert witness based in part upon Vadnal’s lack of experience as to brecciated ground and the
usage of split set bolts. (Tr. 149, 152).
17

Willow Lake had elected not to continue mining in its brecciated areas as opposed to
Doe Run which dealt with such ground conditions regularly. (Tr. 213).

40 FMSHRC Page 1176

He did not interview any of Respondent’s employees or MSHA personnel as to the
appearance of the fall area prior to the accident. (Tr. 232-233). He accorded only “minimal
credit” to Kennedy’s statements that nothing appeared unusual or caused him concern in the cave
area eight hours before the accident. (Tr. 235). Kennedy’s visual inspection would only be part
of an evaluation for hazardous ground conditions, only the start of the evaluation. (Tr. 235).
Vadnal’s opinion would not be altered—even if scalers had been working in the area of fall prior
to the accident. (Tr. 237). Conditions could have changed over time.18 (Tr. 237).
Changes in the size of the inner class would dictate a deeper evaluation of the situation.
(Tr. 239).
Vadnal had not found any areas of change—similar to that observed in the fall area—at
other sites in Fletcher Mine. He had not interviewed any rib bolters at Fletcher Mine. (Tr. 239).
Nor had he travelled the whole of Fletcher Mine or other Doe Run mines. (Tr. 241).
The rubble that fell out of the fall cavity was consistent with large inner class. (Tr. 242).
Vadnal did not see any flat tubular pieces in the rubble. (Tr. 242). He was unable to find any test
holes in the fall area and had been told by an unnamed employee of Respondent that none had
been drilled. (Tr. 244).
Eight bolts had been found in the rubble pile and a ninth bolt in the fall area. (Tr. 245246).
The purpose of test hole drilling was to assess ground conditions. (Tr. 247). If individuals
paid attention, they might also detect changes during “production drilling” but the purpose of
such was to “hurry up and get it down.” (Tr. 247).
A dead weight calculation is computed to determine the amount of ground control
fixtures required to support a certain amount of tonnage that is not moving or is “static.” (Tr.
248). “Dynamic” loads, as opposed to static loads, are more difficult to calculate. (Tr. 248).
Vadnal did not know how the roof fall at issue had occurred. (Tr. 249). The force which
was placed on the bolts that fell was gravity. (Tr. 249). Vadnal had not made calculations as to
the precise number of resin bolts that would have been required to have prevented the ground
fall. (Tr. 250). He did opine that if No. 7 fully grouted 6 foot bolts19 had been installed with a
tighter pattern, there would have “at some point” been sufficient bolts to have held the roof up.
(Tr. 250-251).

18

Vadnal, however, agreed that not all change indicates the existence of adverse ground
conditions. Change can go from bad to good. (Tr. 237-238).
19

Vadnal estimated that resin bolts were three times stronger than friction stabilizers. (Tr.

250).

40 FMSHRC Page 1177

Vadnal further opined that if the split set bolts in the failed roof had been replaced with
the same number or resin bolts in the same 5 foot by 5 foot pattern, the roof would have held.20
(Tr. 251).
Vadnal conceded that he had no idea, however, if a static or dynamic load had ripped out
the bolts. (Tr. 252). He further agreed that it was possible that the ground fall had caused a
cantilever effect on the bolts that were over Mr. Hoodenpyle. (Tr. 253). He further conceded that
he had previously stated that the “best” indicator for present ground conditions was past
operating history in similar ground conditions. (Tr. 254). Vadnal had found no reportable ground
falls at Fletcher Mine in the prior five year operating history. (Tr. 255).
Prior to the accident, the manufacturer had conducted pull tests of the friction stabilizers
in the RC3PO area and they had met spec. (Tr. 256). Surface holes had been drilled at the mine
but were too far from the accident site to the relevant.21 (Tr. 256).
Vadnal had been advised by the individual handing him Doe Run’s ground control plan
that employees had to read the plan and sign it at the end of retraining. (Tr. 257-258). He himself
had never attended any Doe Run training session. (Tr. 258).
Other than the fact that the roof fell, Vadnal based his conclusions that Doe Run was not
following its ground control policy based upon his inability to find any test holes and the
information he had received that none had been drilled. (Tr. 260-261).
Vadnal did not know how or if Doe Run was making calculations in its decisions to use
bolts. (Tr. 262).
It was not a violation of a mandatory safety standard for Doe Run to have had 75% of the
fall area unbolted. (Tr. 264). The ground did not fail above the anchor point of the bolts. (Tr.
265).
Vadnal was “surprised” that a test hole had not been drilled. (Tr. 266). A test driller
would have proceeded “a lot” slower than a production driller and would have watched for
changes in colors in cuttings. (Tr. 268). He would have noted different penetration rates and
would have looked for jumps in the steel that might indicate a crack or void. (Tr. 268). He would
have recorded these findings and conveyed such to management. (Tr. 269).
Vadnal had not spoken to the roof bolter who had bolted the accident site or to any other
hourly employee. (Tr. 269).

20

See Tr. 250-251 for Vadnal’s “in my head” calculations supporting his opinions.

21

Vadnal estimated the closest surface hole to be hundreds of feet from the fall site. (Tr.

256).

40 FMSHRC Page 1178

Vadnal Redirect Examination
The fallen inner class that contained certain of the roof bolts appeared larger than the
inner class circling the opening where the fall occurred and down the rib. (Tr. 269; GX-14,
photograph 9). It was “very possible” that this fallen inner class would have been even more
visible than that remaining on the roof. (Tr. 270).
Vadnal was unaware at the time of his investigation that the roof bolters at Fletcher Mine
were being paid a bonus for how many bolts they installed in a given time frame. (Tr. 270).
Vadnal Examination by the Court
Assuming that a different scaler with a 20 foot longer arm had been used by the victim,
Vadnal opined that a fatality may possibly not have occurred. (Tr. 273).
Michael Van Dorn
At hearing Michael Van Dorn, MSHA field office supervisor, appeared and testified.
Van Dorn had worked as a field office supervisor for 15-16 years. (Tr. 280). He
supervised seven employees in three states. (Tr. 280). He performed regular inspections,
conducted hazard complaint and accident investigations. (Tr. 280). His fatal accident
investigations included fatalities involving heavy equipment, roof falls, and falls from heights.
(Tr. 280).22
Van Dorn headed the investigation of the Fletcher Mine accident. After being telephoned
by Robert Seelke of the fatality, Van Dorn arrived at the mine to learn that Hoodenpyle’s body
had already been recovered and brought to the surface. (Tr. 286). Going underground he headed
to the RC3PO area where he observed that the scaler had been pulled out to the side. (Tr. 288).
Individuals were trimming and cleaning up materials. (Tr. 288).
Along his way to the site, Van Dorn noticed in some places the roof bolts had looked like
the rock had either fallen from around them or had been trimmed from around them. (Tr. 288).
Wherever the roof was domed out at the fall site, the rock had different colors. (Tr. 289).
“Shaley” was a term used by people to describe a layer of shale at Fletcher Mine. (Tr.
289). Van Dorn believed that the different colors he had observed in the dome were due to the
presence of shale.23 (Tr. 289).
22

See Tr. 280-284 for full curriculum vitae. Van Dorn had worked as an MSHA inspector
in various field offices. (Tr. 281). He had earned associate degrees in general business and
applied safety sciences. (Tr. 282). He had inspected Doe Run mines in the past but not Fletcher
Mine. (Tr. 282). Prior to coming to MSHA, he had worked in underground limestone mines for
nine years, including jobs as a scaler and safety representative. (Tr. 283).
23

Van Dorn had noticed two other areas exhibiting shaley different colors on his way to
the roof fall site. (Tr. 289-290).

40 FMSHRC Page 1179

Van Dorn had interviewed miners during the course of his investigation. (Tr. 290). A
miner named Ryan Bowden had advised him that the roof at Fletcher Mine appeared in places to
be shaley. (Tr. 292). Another miner reported a roof fall over by the sump that had taken place
approximately a year ago. (Tr. 292-293). Sam McCabe, a production driller, reported that he
knew of no test drilling in the general RC3PO area. (Tr. 294). Bowden, who was the powder man
in the area, further indicated that there had been blasting in the area. (Tr. 294). Rather than
having a 17 millisecond delay between drifts—a technique that Van Dorn was familiar with—the
pre-accident blasting had involved the tying together of the drifts with detonator cord creating a
lot more vibration.24
In interviewing miners about task training, Van Dorn was advised by scaling machine
operators that they were performing workplace examinations with their cap light. (Tr. 295). None
of the scalers reported that they were sounding the back. (Tr. 295). Task training was conducted
at Doe Run by having an experienced miner train the next person to do the task training or
workplace exam.25 (Tr. 295-296).
Review of Doe Run’s work area inspection cards prior to the accident did not reveal any
information that the miners recognized any changes in ground conditions. (Tr. 298; GX-7). In
looking at other areas of the mine, Van Dorn noticed that the drift next to where the accident
took place had a “domed out” space. (Tr. 299). Van Dorn however was unable to determine what
had caused the space—whether it was due to blasting, scaling, or a falling materials. (Tr. 299).26
Based upon the information gathered by the routine accident investigation team, Van
Dorn had helped to author the final report of investigation that was signed in June 2015. (Tr.
300-302; GX-8). In its discussion of “roof conditions” the report described the predominant type
of roof at Fletcher Mine as horizontally-bedded (layered dolomite) which created favorable roof
conditions. (Tr. 302; GX-8, p. 4). Roof bolt operators had been instructed to change from sixfoot-long friction stabilizers27 to six-foot-long fully grouted resin rock bolts in shaley areas. (Tr.
302; GX-8, p. 4).
Pull tests had been conducted to gauge the support capacity of different types of bolts.
(Tr. 304). Resin bolts were shown to have a greater support capacity than friction stabilizers,
being three times as strong. (Tr. 305). The split sets “yielded” approximately 18,000 pounds or 9
tons as opposed to resin bolts which yielded 40,000 pounds.28 (Tr. 305).
24

Multiple blasts are required to create intersections, creating vibrations through the
rocks that can shake rock loose. (Tr. 294-295).
25

This type of training is called “pass training” or on-the-job training. (Tr. 296).

26

See also GX-13, p. 3 for map location of area between pillars 7507-7517.

27

Friction stabilizers are split set bolts. (Tr. 304).

28

See also GX-8, p. 5, where yield is defined as the maximum anchorage capacity of a
bolt. Testing by the roof bolt manufacturer disclosed six foot long, 1 ½ inch diameter friction
stabilizers yielded at a range of 6-8 tons of force; six foot long, fully grouted, No. 6 headed-rebar
rock bolts yielded at 14 tons; six foot long, fully grouted, No. 7 headed-rebar rock bolts yielded
at 20 tons.

40 FMSHRC Page 1180

In the root cause analysis of the accident it was determined that management had failed to
establish policy and procedures for identifying hazardous ground conditions in that, prior to the
accident, miners were not required to drill test holes at each intersection in order to identify
adverse ground conditions.29 (Tr. 306; GX-8). Test holes were not being drilled; there was not a
good relay of information; if someone found changes in the rock, there was no good way to get
back to management to take any corrective actions needed to stabilize the roof. (Tr. 306-307).
The second root cause of the fatality was determined to be management’s failure to
design and install adequate support to control the roof in the disrupted bedding of the brecciated
zone of the back (roof) in the RC3PO northeast area. (Tr. 307; GX-8). The basis of this opinion
was that Respondent had a roof fall in the area and hadn’t been able to control the roof. (Tr. 307).
The recommended corrective action was for management to establish new policies and
procedures for identifying hazardous ground conditions and for training miners to drill test holes
at the beginning of each drilling cycle to identify any separation in the roof strata. (Tr. 308). The
test holes were required to be drilled, as near to vertical as possible, and should extend not less
than one foot larger than the support installed. (Tr. 308; GX-8). The test holes should be visibly
marked and identified and the examination results recorded on the workplace examination
record. (Tr. 308; GX-8). It had been tech support’s determination that the fall area had, in fact,
contained disrupted bedding. (Tr. 308).
Fletcher Mine had different roof types, including shale, which Van Dorn observed while
travelling in the mine. (Tr. 308-309). Although the mine had areas of water, he saw no areas
where the mine was seeping through the roof. (Tr. 309).
The final root cause of the accident was determined to be management’s failure to ensure
that miners perform scaling operations from a safe location that would not expose them to falling
material. (Tr. 310; GX-9). When the subject accident took place, the back quarter of the scaler
was located under the last row of roof bolts. (Tr. 310-311; GX-13, p. 3). Van Dorn opined that if
the scaler had been set further back toward the existing intersection—up toward pillars 7508 and
7516, Hoodenpyle would not have been injured. (Tr. 311-312; GX-13, p. 3).
GX-6 contained “Fatalgrams” regarding the roof fall accidents, including an accident at a
Doe Run mine in January 1998, in which a surveyor was crushed in a roof fall.30 (Tr. 313-314).
The “Best Practices” listed as a result of this roof fall were that ground conditions should be
tested, as well as visually examined after blasting and prior to work commencing or as ground
conditions warrant. (Tr. 314; GX-6). With further roof fall deaths, it was further recommended
that test holes and examinations be performed after each blast. (Tr. 314-315). Sounding, test
holes, and visual examinations are tools that can be utilized to ascertain possible hazardous
conditions. (Tr. 315). The advisories regarding such are readily available to operators on
MSHA’s website. (Tr. 316-317).
29

The tech support group supplied the primary opinion. (Tr. 306).

30

Fatalgrams are accident reports that can be found at MSHA’s website
(www.MSHA.gov). They describe the results of fatality investigations and make
recommendations to miners and mine operators so that similar such fatal accidents may not
reoccur.

40 FMSHRC Page 1181

In reference to § 57.3360 “Ground support use,” MSHA issued “Rules to Live By”
standards for metal/nonmetal, alerting mine operators of the fatal hazards posed by roof and rib
falls. (Tr. 317-319).
Van Dorn had issued Citation No. 8680899 to Respondent for violation of § 57.3201. (Tr.
319; GX-1). The citation, dated March 11, 2015, was issued because there was a Getman scaler
that was being operated in an area of the Fletcher Mine where the roof fell, hitting the miner and
the machine. (Tr. 320).31
The cab had not provided adequate protection for the miner. (Tr. 322).
The citation had been modified to extend time periods to “get everything terminated.”32
(Tr. 323). The citation was finally terminated with the area being posted, barricaded, and being
abandoned. (Tr. 323; GX-14, p. 14). Given that an accident involving a death had in fact taken
place, the gravity levels assessed were “occurred” in section 10(a), “fatal” in section 10(b), and 1
person affected in section 10(d). (Tr. 324). The level of negligence was determined to be
moderate.33 (Tr. 325).
The violative conduct was found to be S&S in nature. (Tr. 325). The standard was
violated; there was a discrete safety “factor” (hazard) of rocks falling from an 18 foot roof; it was
likely that such a rock fall would result in injury. (Tr. 326; GX-1). The likelihood of rocks or the
ceiling falling was based upon the failure to perform “all the tests and examinations” and the
failure to follow MSHA policies. (Tr. 326). An experienced person was needed to evaluate any
changes and to act accordingly. (Tr. 326). The hazard of rocks falling and striking a person
created the reasonable likelihood of injury. (Tr. 326; GX-1).
Van Dorn also issued Citation No. 8680900 for violation of standard § 57.3360. (Tr. 327;
GX12). This was also a 104(a) S&S citation. (Tr. 327; GX-2).34 This standard required that
operators design, install, and maintain roof bolts to control the ground. (Tr. 328).
In order to develop an adequate ground control plan, mine geologists, engineers, and
others should be consulted. (Tr. 328). They would have to know the ground, know the changes in
it, what kind of material was on the roof, perform appropriate testing, and install long enough
bolts. (Tr. 328-329).

31

See GX-3 for photograph of scaler similar to the one involved in miner’s death. (Tr.

32

Such included the scaling and bolting of the area. (GX-1, pp. 2-13).

321).
33

Van Dorn’s rationale for such is as follows—“the operator, the foreman of the mine at
that time, wasn’t in the area. He didn’t know that this was going to happen. And I just put him at
moderate because high says they knew or should have known.” (Tr. 325).
34

There were no 104(d) citations issued nor were there any special assessment penalties
proposed. (Tr. 327).

40 FMSHRC Page 1182

Van Dorn had issued the citation for violation of § 57.3360 because there had been a roof
fall and roof bolts pulled out. (Tr. 329).
In “good” ground, split set bolts could be used, but resin bolts should be used wherever
there were “bad” ground conditions. (Tr. 330). By performing visual examinations, sound
testings, and drilling test holes, a miner could know if he was entering bad ground. (Tr. 330331).
Based upon his observations and tech support information, Van Dorn concluded that split
set bolts appeared to be exclusively used at Fletcher Mine. (Tr. 332). Given the reports of
another fall over by a sump, Doe Run should have considered changing to resin bolt support. (Tr.
332-333). Tighter bolting patterns to support more weight might also be indicated as a result of
an evaluation and testing of a particular area. (Tr. 333).
As roof bolt(s) had come out and an accident involving death had actually taken place,
the gravity of the injury was assessed as “occurred” and “fatal.” (Tr. 333; GX-2). The operator’s
level of negligence was determined to be “high” because the operator knew or should have
known of the existing conditions. (Tr. 334; GX-2). The citation was marked as S&S because
there was a violation of the mandatory safety standard: the roof had fallen causing injury. (Tr.
334). It was likely that an accident would occur because the operator wasn’t conducting testing
for roof conditions and using resin bolts in the fall area. (Tr. 335).
Van Dorn also issued Citation No. 8680902 for violation of § 48.7(a). (Tr. 335; GX-9).
This citation was amended to reflect a violation of § 48.9 (Records of training). (Tr. 336). This
amended citation had been issued because MSHA had not received MSHA form 5000-23 from
Respondent, recording and certifying that its miners had been task trained on workplace
examinations. (Tr. 336-337). Without such training documentation, MSHA could not ascertain
whether adequate training had been afforded. (Tr. 336). MSHA’s Part 48(a) Training Plan for
Fletcher Mine required in part that any person designated to conduct or supervise workplace
examinations should receive appropriate training relative to this task. (Tr. 337; GX-10). This
training was to be documented on an MSHA Form 5000-23. (Tr. 337; GX-10). The training plan
was to go into effect in October of 2014. (Tr. 338).
The original citation for violation of § 48.7(a) had been issued on March 12, 2015. (Tr.
339; GX-9). No records of refresher training had been provided to MSHA as of March 12, 2015,
approximately five months after the training plan’s effective date in October 2014. (Tr. 339).
With the amendment to § 48.9, the gravity was assessed as “no likelihood” with no lost
workdays and one person affected. (Tr. 340). The violative conduct was determined to be nonS&S. (Tr. 340). The amended citation still listed the negligence level as “high” because the
operator was responsible for knowing what was in his training plan and Respondent should have
known what was in his plan. (Tr. 340). Miners who were interviewed all reported that they
performed their workplace examinations by using the lights off their machines and cap lights, a
few saying that they would be under bolted roof looking out. (Tr. 341). None reported sounding
the back. (Tr. 341).

40 FMSHRC Page 1183

The MSHA assessed violation history report (GX-16) revealed no citations for training
plan violations in November 2014.
Van Dorn Cross Examination
A powder man, Ryan Bowden, was the only miner who had advised Van Dorn that the
mine was “a little shaley.” (Tr. 344, 348). Van Dorn conceded that Jeremy Kennedy and Stephen
Brille’s field notes regarding their interviews of Bowden did not contain any mention of shale.
(Tr. 344-345; GX-15, pp. 10, 19). There was a reference, however, to “a little shale” mentioned
in Van Dorn’s notes of his Bowden interview. (Tr. 346-347; GX-15, p. 23). Van Dorn had not
seen shale at the accident scene. (Tr. 351).
The other area where Van Dorn observed shale was approximately 100 yards from the
cave-in. (Tr. 349). Another area that had caused concern was where the roof had fallen out
around bolts or the roof had been scaled out around them. (Tr. 350). There were no citations
issued because of such. (Tr. 350). These were the only two other areas that had caused concern.
(Tr. 351).
Van Dorn conceded that he had never actually asked specifically in his discussion of
workplace examinations whether soundings were being performed. (Tr. 352). Nobody
interviewed reported that there were adverse ground conditions that required changes in the
ground control policy. (Tr. 353). Nor did Van Dorn specifically ask such. (Tr. 353).
Van Dorn did ask hourly employees if they had any concerns about roof bolting in the
area and none expressed concern. (Tr. 353).
Kennedy also had not observed anything abnormal during his “quick inspection.” (Tr.
354).
Van Dorn believed split sets had been used at Fletcher Mine since 2000 and there had
been no reported accidents regarding such. (Tr. 355).
With the exception of the two areas of concern that he previously testified regarding, Van
Dorn observed no other areas that had ground conditions that disturbed him. (Tr. 356).
It was common in a drill and blast type of mine that domed-out areas would appear on a
shot. (Tr. 358). This would not indicate systemically adverse conditions. (Tr. 358).
Van Dorn did not have any issues with the bolts still in the roof closest to the accident
scene. (Tr. 359). He did not personally inspect the pillars and did not see anything of concern
from a ground control perspective regarding the pillars. (Tr. 360).
No reportable ground falls at Fletcher were found. (Tr. 361). Nor were any unreportable
ground falls located. (Tr. 361-362).

40 FMSHRC Page 1184

Approximately 90% of Fletcher Mine was brecciated ground. (Tr. 364). Van Dorn knew
of no split set failures between 2000 and January 2015. (Tr. 365). Van Dorn was unaware if any
other Doe Run mines had back falls similar to the instant accident. (Tr. 366). There had been no
§ 57.3360 citations issued in the last three years. (Tr. 366-367). Pull testing in 2014 did not
reveal any split set bolts that failed to meet manufacturer’s specifications as to holding capacity.
(Tr. 367-368). The Casteel ground fall was not taken into consideration in issuing the § 57.3360
citation. (Tr. 368-369).
Van Dorn conceded that there was nothing in Fletcher Mine’s history that supported the
issuance of his citation. (Tr. 370). Van Dorn did rely upon the fact that roof bolts had been
sticking straight up after the fall and that they had failed. (Tr. 371). Van Dorn opined that if roof
bolts failed, they were not adequate to hold and therefore a citation was justified. (Tr. 371-372).
The mine’s past operating history would be considered in determining the level of negligence.
(Tr. 372).
Van Dorn agreed that if roof bolts fail, an automatic citation is called for. (Tr. 373-374).
Even if observable ground conditions may have been “okay” according to Inspector Kennedy’s
standards—the roof bolts had pulled out and “that’s where I’m at on issuing it.” (Tr. 373).
It was only after Vadnal pointed out the changes in the fall area did Van Dorn see them.
(Tr. 375).
Disturbed bedding indicates that changes are happening and the area should be checked
out. (Tr. 376). Van Dorn himself saw nothing at Fletcher that immediately struck his attention.
(Tr. 377). He had no idea why the back fell. (Tr. 377). He estimated 175 to 250 tons of rock
fell—of which 75% was in unbolted ground. (Tr. 377). He did not know the amount of force
placed on the split sets during the fall or whether the force was static or dynamic. (Tr. 378-379).
Static force is the “total force pushing down.” (Tr. 378). Dynamic force would be
“movement of it or cantilever type,” having a crowbar effect on the bolts. (Tr. 378).
Van Dorn did not know if resin bolts would have held but there would have been a
greater chance of holding because of their greater holding capacity. (Tr. 378-379). He did not
know whether static or dynamic force had been involved in the roof collapse. (Tr. 379). Van
Dorn had no personal experience installing split sets but had observed them being installed. (Tr.
381-382).
Doe Run’s ground control policy did not require the installation of resin bolts in shaley
conditions. (Tr. 3482; GX-7). Split set bolts can support shaley ground. (Tr. 384). Doe Run’s
ground control policy did allow for bolt spacing to be changed if conditions warranted such. (Tr.
384-385).

40 FMSHRC Page 1185

A driller, Sam McCabe, advised Van Dorn that test drilling was not being performed but
no roof bolters had indicated such. (Tr. 385-389).35
The sole basis for finding a violation of § 57.3201 was that Hoodenpyle “was in a
position where he got injured from falling material.” (Tr. 389). No more factual grounds were
necessary for the issuance of the citation. (Tr. 390). Many mitigating circumstances surrounded
the accident. (Tr. 390).
Van Dorn argued that it was not uncommon for 75-80% of a scaler to be under unbolted
ground. (Tr. 390-391). He further agreed that the scaler cab was under the last row of bolts at the
time of the accident. (Tr. 391). It was not necessarily a violation for a mechanical scaler to be
under unbolted ground. (Tr. 391). Mitigating circumstances had been found as to this accident
because Doe Run management was not in the fall area and had been unaware of the material
falling on the scaler. (Tr. 394). These factors had reduced the level of negligence from high to
moderate. (Tr. 395). Van Dorn agreed that another mitigating factor might be that the (mining)
process employed by Respondent had been in use for a long time without prior incidents. (Tr.
395). That nobody in the fall area had voiced any concerns regarding bolts or ground conditions
would not constitute a mitigating factor in that none of whom were management. (Tr. 396). For
the same reason, the MSHA inspector’s failure to note anything wrong with bolts or ground
conditions would not constitute a mitigating factor. (Tr. 396). The fact that there had been no
split sets failures in the past also would not constitute a mitigating factor as to the scaling
citation. (Tr. 397). The fact that a scaler has FOPS had the potential for being a mitigating factor
but not for the accident at issue. (Tr. 397-398).
During the investigation of the accident Van Dorn had garnered facts warranting the
issuance of Citation No. 8680902. (Tr. 399; Gx-9). As of January 2015 Doe Run had not yet
completed any training under its October 2014 approved training program. (Tr. 399). Van Dorn
agreed that the time this original citation citing a violation of § 48.7(a) had been amended
because the original allegations that no training had taken place were incorrect. (Tr. 400).
Van Dorn had learned that the citation had been amended on Friday prior to the within
hearing.36 (Tr. 402-403). He agreed that no workplace examination training had taken place
between October 14, 2014, when the plan had been approved, and January 26, 2015. (Tr. 403404). Van Dorn did not know if Hoodenpyle had received workplace examination training prior
to his death. (Tr. 406). During his investigation Van Dorn asked various individuals in a
conference room if they had been task trained on performing workplace examinations. (Tr. 407).
All answered “yes,” but none had MSHA form 5000-23 documentation. (Tr. 407). This was the
evidence Van Dorn used to support the amended citation. (Tr. 407-408). Van Dorn had not
considered Hoodenpyle in determining the amended citation but believed him to fall within the
class of people without documentation. (Tr. 406, 410).

35

See same transcript pages for back and forth as to whether this question was limited to
specific intersection of accident.
36

At trial counsel for the Secretary stipulated that the actual filing date was on Monday
before the commencement of hearing on Tuesday, May 23, 2017.

40 FMSHRC Page 1186

Van Dorn opined that Doe Run should have issued 5000-23s to document past training
received prior to the new October 2014 part 48(a) training plan—even though no training had
been afforded subsequent to October 2014. (Tr. 411).
Van Dorn, however, stated that he didn’t agree with the way the amended citation came
about. (Tr. 412). He further acknowledged that the new Part 48(a) training plan did not provide
that Responded should go back and document that training had taken place under a prior
approved plan. (Tr. 413; see also GX-10, p. 13).
If a mine has had a history of falls, whether reportable or not reportable, this could go to a
knowledge of change in conditions in the mine.
The interview notes of Steve Strickland disclosed that Strickland had “glue bolted37
before in bad ground.” (Tr. 417; GX-15, p. 26). Big plates—base plates had also been used
before in bad ground to help with the holding of the roof. (Tr. 417; GX-15, p. 26).
Clay McNail
Clay McNail, superintendent of Fletcher Mine, appeared and testified on behalf of the
Respondent. (Tr. 419). He had been superintendent since 2010 and had worked for Doe Run for
12 years. (Tr. 419-420). His job duties included developing mine plans, working with survey and
geological groups, and travelling on a regular basis throughout the mine.38 (Tr. 420).
Fletcher was one of five active Doe Run mines. (Tr. 422). Doe Run mines were located in
the Viburnum Trend, “a world class lead deposit,” which also contained zinc and copper
materials. (Tr. 424). Fletcher Mine first opened in 1965 and had ground conditions similar to
other mines within the Viburnum Trend. (Tr. 424). Doe Run mines’ host or country rock was
dolomite, dolomitic limestone. (Tr. 425). This was “very competent” rock. (Tr. 425). The method
of mining employed at Fletcher was “modified room and pillar” mining. (Tr. 425). Because of
elevation changes, there is ramping up and down to different levels. (Tr. 425-426). The width of
Doe Run mines depended on the width of the drifts. (Tr. 426).
There is a breccia trend that runs through the area which is followed in the mining
process, which makes for a more snake-like appearance than that found in coal mine maps. (Tr.
426-427). Typical drifts and pillars at Fletcher range from 28 feet to 32 feet in width. (Tr. 427).
The back is usually 16 feet to 18 feet high and no lower than 14 feet due to equipment size. (Tr.
427). Successive mining passes will result in areas as high as 100 feet to 120 feet in the trend.
(Tr. 427). The mining cycle at Fletcher starts with drilling holes in the face and placing
explosives in the holes. (Tr. 427). After the shot is set off, a loader is sent in; this pushes up the
fly rock and mucks what can be mucked. (Tr. 428). When rock can no longer be loaded, a scaler
37

Resin bolting (Tr. 418).

38

McNail first started working in mining in 1994. (Tr. 420). In 1998 he earned a
Bachelor of Science in Mine Engineering with emphasis in explosives engineering. (Tr. 421). In
2012 he earned a Master’s in Mine Engineering with a Minor in Explosive Engineering. (Tr.
421).

40 FMSHRC Page 1187

comes in and, either by machine or hand, takes down the loose rock, making the area safe again.
(Tr. 428). Loaders and trucks will come back in and complete the mucking or loading of the
rock. (Tr. 428). If more scaling is required, scalers may come back in. (Tr. 428). Then the roof
bolter comes in as final part of the cycle. (Tr. 428). Then the process starts over again. (Tr. 428).
At time of the accident bolting was performed at the intersections pursuant to ground
control policy. (Tr. 429). Roof bolts were the main source of ground control at Fletcher Mine.
(Tr. 429). Scaling involved the removal of rock that was not competent and separated by a crack
or something that had the potential to possibly fall of its own accord. (Tr. 429). Blasting often
creates the need for scaling. (Tr. 429).
Fletcher uses mechanical scalers with telescoping booms run by operators. (Tr. 429). It
also uses, as an alternative, man baskets with two employees in the basket, using six foot
aluminum bars with chisel ends to remove the rock by hand. (Tr. 436). Below 25 feet both
methods are used interchangeably; above 25 feet hand scaling is used exclusively. (Tr. 430).
McNail had created a supervisor training presentation regarding ground support. (Tr. 430;
RX-B). In describing the major job duties for mechanical and high boom scaling, McNail listed
the following required actions: make areas safe by hand scaling from the ground up to 100 feet
high with basket trucks; make areas safe by scaling with mechanical scaler; make accurate
judgements on scaled areas that they are safe for the mining cycle to continue; install roof bolts
by required means when necessary; complete other tasks as directed by mine supervisor. (Tr.
431; RX-B). Scaling is performed before rock bolting to ensure that rock is removed to a
competent layer that will allow bolting to best support the ground above it. (Tr. 432). Mechanical
scalers and high boom scalers are trained to sound the roof. (Tr. 432). Roof is sounded with
basically anything that gives audio feedback. (Tr. 432). A mechanical scaler will ram the back
with the tooth of his scaler and listen for sound. (Tr. 432). A hollow sound might indicate a
separation of layers or vug.39 (Tr. 433).
Fletcher Mine employed Getman S330 mechanical scalers such as used by the victim.
(Tr. 433). At the end of the scaler were teeth that allowed the operator into cracks or features that
he found. (Tr. 434). The Getman had a telescoping boom that could extend 25-30 feet, allowing
the operator to stay in his station yet extend his reach. (Tr. 434). The Geman, used by the victim,
had an articulation ROPS/FOPS canopy, giving the scaler a wider range of coverage without the
need to physically move the machine. (Tr. 434). The operation station was located farthest away
from the working end of the machine. (Tr. 434).
Prior to Hoodenpyle’s arrival, the header had already been scaled several times over the
course of a month. (Tr. 436). It had been scaled the day before the accident—both day and night
shift. (Tr. 436).
Fletcher was a “very competent” section of the Bonneterre Formation and had already
had millions of tons extracted from it. (Tr. 436). A good breccia trend ran through the middle of
the mine. (Tr. 436). Adverse ground conditions at Fletcher were not common and very localized.
39

A vug is a small or medium sized cavity in rock. (Tr. 433).

40 FMSHRC Page 1188

(Tr. 437). No matter the job title, all Fletcher Mine employees are trained to identify such
conditions. (Tr. 437). All supervisors at Doe Run underwent annual underground roof and
ground control training. (Tr. 438; RX-D). Employees also received workplace examination
training—either during new miner training or annual refresher training. (Tr. 438).
Adverse ground conditions, such as vug holes or faulting, can be determined by visual
examination. (Tr. 439).
The ground conditions where the fall occurred were similar to those throughout the trend
generally. (Tr. 440; RX-A). A timeline had been developed describing the January 2015 mining
cycle in the fall area prior to the accident. (Tr. 441; RX-Z). The area was shot on January 3.
Scaling took place on January 4; crosshatching was installed on January 5; bolts were also
installed on January 5. (Tr. 442-443). More scaling was performed on January 7. The area was
shot again on January 8, with more scaling on January 10. (Tr. 442). The area was shot again on
January 13 and scaled again on January 15. Another shot occurred on January 18. The area was
scaled on both shifts on January 20. (Tr. 442). Scaling continued on January 21 when
Hoodenpyle entered the area. (Tr. 442; RX-Z).
Vernon Roark was the bolter on January 5 who installed the split set bolts involved in the
accident. (Tr. 443-444).
Split set bolts and resin bolts were used interchangeably in the mine. (Tr. 444). Due to
ground water coming through the roof, resin bolts could not be physically installed in some areas
of the mine because the resin packages containing the glue would be washed out. (Tr. 444-445).
McNail was not aware of any significant ground control issues at the Fletcher Mine as a
whole or in RC over cut area. (Tr. 447). No employee had even complained to him of abnormal
ground conditions. (Tr. 447). He had no knowledge regarding split set bolt failure at Fletcher.
(Tr. 447). McNail had traveled throughout Fletcher Mine and had never personally observed any
adverse ground conditions that had not been controlled. (Tr. 448). It was normal procedure to do
blasting near bolted areas, the rock damage zone from a blast usually extending only a couple of
feet. (Tr. 449).
The ground control policy in force at the time of the accident provided that scaling would
begin a minimum of 60 feet back from the active face. (Tr. 449; RX-F). Generally the outline for
roof bolting and scaling, rock bolting on a 5 by 5 pattern had been historically sufficient for
intersections. (Tr. 449). The ground control policy had not required the use of resin bolts in areas
of shale. (Tr. 449-450). Split sets had been used in areas of shale. (Tr. 450). The space between
7508, 7516, 7517, and 7561, as depicted on the map at RX-E, was not a completed intersection,
and pursuant to the existent ground control policy would not have required a test hole at the time
of accident.
Cross Examination of McNail
On cross examination McNail conceded that blasting created a certain amount of stress
on rock.

40 FMSHRC Page 1189

Before an intersection is completed, there need to be test holes drilled pursuant to ground
control policy. (Tr. 453). Bolting was budgeted for and McNail was not “worried about money.”
(Tr. 455). There were times when adverse ground conditions had required decreased spacing.
(Tr. 455). Pattern tightening was not generally based upon reports of discoloration but upon
reports of shale. (Tr. 456). McNail was not in the fall area the day that the accident had taken
place. (Tr. 456).
Redirect Examination of McNail
The operating history of Doe Run suggested that the ground control policy regarding test
holes was sufficient. (Tr. 457).
Though bolting incurred additional costs and slowed production, Respondent nonetheless
chose to bolt throughout Fletcher Mine, including areas between pillars near the fall site that
were not required to be bolted. (Tr. 457-458).
Questioning by the Court of McNail
McNail didn’t have “any idea” as to the difference in costs between split set and resin
bolts. (Tr. 459).
40

Vernon Roark Direct Examination
At hearing Vernon Roark testified on behalf of Respondent. He had been working as a
roof bolter for Respondent for the last 18 years, 14 of which were at Fletcher Mine. (Tr. 460461). He had received training in sounding the back and bolting, split set and resin. (Tr. 461462). In installing a split set bolt, he would first inspect the area, looking for “loose,” and if none
found, drilling a hole and then driving a bolt into the back. (Tr. 462). When drilling a hole he
looks at shavings and observes the way the steel goes, whether it’s jumping or solid. (Tr. 462).
Shavings can indicate where shale or clay mud is being encountered. (Tr. 462-463). Shale was
grayish in color and mud was red. (Tr. 463). The drill jumps if it hits soft ground or a void. (Tr.
463).
Roark sounded the back every time he drilled a hole. When the steel hits the back, he
could tell if it was solid or “drummy.” (Tr. 464). A drummy sound could indicate a layer was
loose. (Tr. 464). If he encountered possible adverse conditions, he would notify the geologist,
Bob Ridings. (Tr. 464).
In installing a resin bolt, glue is shot in after the hole is drilled. (Tr. 464). The bolt is spun
in and held for a few seconds until the glue sets up. (Tr. 465). He was not aware of a situation
where he would use one type of bolt versus another. (Tr. 465). He had been installing split sets
for the past five years—“that’s about all I put in.” (Tr. 465). Prior to the accident on January 21,
40

As discussed within, this Court found this answer to be less than fully credible given
inter alia McNail’s description of his job duties: “we look at financials and try to interpret those
and control cost according to budget.” (Tr. 420).

40 FMSHRC Page 1190

2015, he had bolted in the fall area on January 5. (Tr. 465). He was unaware of any split sets
failing in the past. (Tr. 466). When he was in the fall area on January 5, 2015, the back and ribs
looked “fine.” (Tr. 466-467). There was no loose or voids. (Tr. 467). There was good color. (Tr.
467). There was nothing visually different from other areas. (Tr. 467). In drilling the bolt hole
and in sounding the back, he noted no unusual shavings nor drumminess in sound nor jumping.
(Tr. 467). The drifts and pillars were unremarkable.
He typically drilled two rows at a time, then returning to put the bolts in, with the whole
process taking about 15 minutes. (Tr. 468). When he drilled in the fall area on January 5, he
noticed nothing that required different spacing. (Tr. 468). He did not observe rounded boulders
in the back. (Tr. 469). There was nothing about the previously installed bolts that concerned him.
(Tr. 469). There were no abnormal noises. (Tr. 469).
Bolters at Fletcher Mine did receive a bonus, calculated by linear feet, for the number of
bolts they installed. (Tr. 469). However, Roark did not care or “worry” about the bonus but
worried about the people going under the bolts. (Tr. 470). He did not consider the area of the
accident that he had bolted a completed intersection. (Tr. 470; RX-E).
Cross Examination of Roark
Split set and resin bolts both have the same size six inch bolt plates. (Tr. 470-471). There
are also larger “butterfly” plates that are 12 inches. (Tr. 471). These larger plates are “not very
often” used. (Tr. 471). The normal bolting pattern is 5 feet by 5 feet. (Tr. 471). On occasion, 4
feet by 4 feet or 3 feet by 3 feet patterns are employed to give more holding power. (Tr. 471472). No supervisor was present before Roark began bolting on January 5. (Tr. 472). Split sets
were quicker to install than resin bolts. (Tr. 472).
In the past Roark had hit clay mud, shale, voids, soft ground, and drummy ground at
Fletcher Mine, all of which might have required tighter bolting patterns. (Tr. 473). He had not
been task trained to use a “jumbo drill” which was a larger drill for drilling test holes. (Tr. 474).
He relied upon Mr. Ridings, the geologist, to pass on information about adverse ground
conditions to a supervisor who would then decide to act or not act upon such. (Tr. 475).
If he encountered a void or vug, he would not file a written report but rather orally inform
his foreman. (Tr. 476).
The bonus given for split set installation ranged from $200 to $800 monthly. (Tr. 476).
Roark agreed that conditions could change in 50 to 100 feet. (Tr. 479). After he stopped
bolting on January 5, he walked into the heading about 25 feet from the face and noted nothing
unusual. (Tr. 479).

40 FMSHRC Page 1191

Roy Folkerts Direct Examination
Roy Folkerts appeared and testified on behalf of Respondent at the hearing. He had held
the job of roof man41 at Fletcher Mine on January 15, 2015. He had operated a mechanical scaler
for more than 30 years and for 10 years at Fletcher Mine. (Tr. 482). Getman “scratchers” or
scalers were used at Fletcher Mine to scratch the face and back to get loose down. (Tr. 484). In
scaling an area Folkerts would first get out of his cab and examine the area for cracks, loose, and
anything abnormal. (Tr. 482-486). He would then return to his machine, stretch out the boom, hit
and sound the back with the tooth42 to see if the back sounded like clay or drummy. (Tr. 484). He
would then do the side of ribs and keep working his way up. (Tr. 484). The teeth are rotated
straight up and down and sideways to do the scaling. (Tr. 486).
Folkerts worked in 10 foot sections, stretching out the boom and moving up every 10
feet. (Tr. 487). As he scaled he would perform multiple soundings each shift. (Tr. 488). When
encountering loose or faults or cracks, he would use different methods to get it down. (Tr. 488).
He had never encountered a drummy or bad back that prevented him from completing the scaling
process by the end of his shift. (Tr. 489). He had been in the RC3PO1 northeast area hundreds of
times prior to the accident, both as a mechanical scaler and hand scaler. (Tr. 489-490). He had
always found the ground conditions to be good. (Tr. 491). He had never observed loose split sets
in the area. (Tr. 492). Sometimes the tooth of a scaler can tug on an installed bolt and bend it but
not pull it out. (Tr. 492-493). On January 20, 2015, he had been working in the area between
7508 and 7516 (RX-E) for several days and had taken four to five soundings. (Tr. 494-495). He
had observed roof bolts in the area between 7516 and 7517 on January 20, 2015, and they all
looked normal and secure. (Tr. 495-496). He did not observe big rocks in the back (as testified to
previously). (Tr. 497). Based upon his opinion and looking at the (fall) area, ground conditions
appeared good from the first time he had been in the (fall) area until the time of accident. (Tr.
498).
Folkerts considered Hoodenpyle a good operator who set his scaler in a proper position.
(Tr. 500). Roark had never experienced material falling on his cab while scaling.
Roy Folkerts Cross Examination
Folkerts had stopped scaling in the area at about 7508 to 7516. (Tr. 502; RX-E).

41

A roof man operates a mechanical scaler, cleaning up headings to ensure safety. (Tr.

481).
42

The tooth of a Getman is in front of the boom on a swivel head. (Tr. 485). The swivel
head had two teeth and could be pulled back and forth. (Tr. 484; RX-C).

40 FMSHRC Page 1192

Thomas Welch Direct Examination
Thomas Welch testified at hearing for Respondent. An hourly employee, he had worked
at Doe Run for 22 years, six years as a loader operator.43 (Tr. 505). As a front-end loader
operator, his job duties were to go in after a round has been shot, muck the heading out, clean it
up, get it ready to be scaled and bolted and re-drilled and again start the mining cycle. (Tr. 507).
Some scaling was done with the bucket on the loader. (Tr. 507). Any time scaling can’t be
performed with the bucket, the area is ribboned off and mechanical scalers or hand scalers are
brought in. (Tr. 507).
Welch had been working in the roof fall area prior to Hoodenpyle’s death and had been
working on the same shift as the victim. (Tr. 508). He had seen Hoodenpyle “doing his walk
around inspection, like I seen him doing a thousand times.” (Tr. 508). Welch had been in the
bolted area of the fall area. (Tr. 508). He had driven his loader in between pillar 7508 and 7516.
(Tr. 509; RX-E). Everything looked normal: the back looked well; the pins were all in place;
nothing looked like it had recently fallen. (Tr. 509). He had been sitting between 7495 and 7508
(see RX-E) waiting for trucks to be loaded again and had been at the scene approximately one to
one and one half hours prior to Hoodenpyle’s arrival. (Tr. 510).
Prior to the ground fall Welch did not hear anything indicating ground was moving. (Tr.
511). The ground conditions in the fall area appeared similar to the ground conditions in other
areas of the mine. (Tr. 512). He was not aware of any unplanned ground falls of brecciated
ground nor complaints about ground conditions. (Tr. 512). While he did not see the ground fall,
he heard it and thought it sounded “like a lot of rock” for the area. (Tr. 514). When he arrived at
the post-accident site, he noted no shale or other suspicious ground conditions. (Tr. 515-516).
Thomas Welch Cross Examination
When scaling with the bucket of the loader, Welch would only scale up to about 6 feet.
(Tr. 516). He did no sounding in the areas between 7508 and 7516. (Tr. 516-517). Nor did he
check and drill test holes. (Tr. 517). He did not go into the unbolted area between 7517 and 7561.
(Tr. 517; RX-E). He did not examine the ribs or back in the area nor went past the bolted area.
(Tr. 517).
Jason England Direct Examination
Jason England, the safety manager at Doe Run, testified at hearing. (Tr. 520). He had
been Doe Run’s safety manager for 13 ½ years. (Tr. 520). He had previously worked as a safety
manager and specialist. (Tr. 520-521). As safety director, England reviewed citations to help
sites determine which to conference, managed four safety specialists, helped implement and
write training plans. (Tr. 521).

43

Welch had approximately 25 years’ experience in underground mining, working for
two other mines in addition to Doe Run. His jobs included truck driver, loader operator,
mechanical scaler, grade operator, shift extra and development miner. (Tr. 505-506).

40 FMSHRC Page 1193

Miners at Doe Run receive roof and ground control training, including the identification
of adverse ground conditions and procedures such as scaling, in new miners’ classes and annual
refresher training. (Tr. 522-523). Safety specialists, experienced in ground control, demonstrate
the proper use of scaling bars and show the different types of bolts. Safety meetings and
supervisor training throughout the year also touch upon ground control issues. (Tr. 522).
Hoodenpyle would have received training on Doe Run’s ground control policy. (Tr. 523). Every
employee is required to read and sign a copy of the policy. (Tr. 523). RX-N was a compilation of
the training documents signed by Hoodenpyle throughout his career at Doe Run, including
ground control policies.44 (Tr. 523-523; RX-N).
Hoodenpyle had been task trained for the Getman scaler in February 2013. (Tr. 525-526).
As safety director, England would have received notice of any mine accidents but had not
been notified of any accidents involving bolted ground falls prior to January 21, 2015. (Tr. 526).
His review of records disclosed no reports of ground falls in ground supported by split set bolts.
(Tr. 527). Nor had anyone ever expressed concerns to him regarding the use of friction stabilizer
bolts at Fletcher Mine. (Tr. 527). Reviewing records back to 2010, he found no injuries as the
result of ground falls on cabs with ROPS/FOPS. (Tr. 528). Internal investigations revealed
nothing indicating ground support in the area had been inadequate. (Tr. 528).
There were no § 57.3360 violations found in Fletcher Mine’s 10 year citation history. (Tr.
528-529). There was one citation for violation of § 57.3201 in 2009. (Tr. 529). There was no
indication that the mechanical scaling process utilized by Doe Run (for at least the past 10 years)
had exposed miners to the danger of falling material.45 (Tr. 530). There was no record of
mechanical scaler injuries. (Tr. 530). MSHA had never voiced concerns about the process. (Tr.
531).
England had become aware the day before the hearing of the amendment to Citation No.
8680902 from a training violation to a document citation. (Tr. 531).
During the closeout conference England objected to Doe Run being cited for failure to
document workplace examination training. Hoodenpyle had received his workplace examination
training during a time period when the October 2014 plan then in fact did not require such 500023 documentation. (Tr. 535). England did not deem it proper to write a citation on training that
was conducted prior to the new plan’s approval. (Tr. 532). No new miner class training or
refresher training had been conducted or miner transfers had taken place under the new plan
between its approval and the accident date. (Tr. 533). Between the new training plan’s approval
and the date of citation there was nobody at Doe Run who was required to receive task training
on workplace examinations. (Tr. 533).
44

Hoodenpyle had been hired by Doe Run in 2011. His acknowledgements of having
received ground control training were dated February 2011, February 2012, February 2013, and
February 2014. (Tr. 524).
45

The policy provided that all employees upon entering an area perform workplace
examinations. They must start at least 60 feet from the face and scale their way into whatever
heading they’re working in. (Tr. 530).

40 FMSHRC Page 1194

Review of the new Part 48 training plan did not indicate that MSHA forms 5000-23
should have been submitted for workplace examinations under the old training plan. (Tr. 537538; GX-10, p. 13). The first annual refresher training regarding workplace examinations after
accident was in February 2015. (Tr. 539). 5000-23 documentation was issued for such. (Tr. 540).
During the time period between October 2014 and January 2015 MSHA, during its inspections,
issued no citations for 5000-23 documentation violations. (Tr. 540-541).
Jason England Cross Examination
Falls from unbolted ground would not generally be reported. (Tr. 542).
Randall Hanning Direct Examination
Randall Hanning held the position of mine operations manager at Doe Run since October
2014, having worked for the Respondent since September 1998.46 (Tr. 546-547).
As a mine operations manager he manages the production of all the mines, helping mine
superintendents in their daily activities. (Tr. 549). His position is cross functional with other
departments, including maintenance, safety, and budgetary departments. (Tr. 549).
Hanning worked underground at four of Doe Run’s mines. (Tr. 549). Generally, the
ground conditions were similar at all of the mines with dolomite as the host rock and split
stabilizers being utilized since 1998. (Tr. 550). He could not recall any split set failures. (Tr.
551). He was familiar with the installation of both split set and resin bolts. (Tr. 552). He opined
that split sets and resins were “equal depending on how you use them and the situation and all
that.” (Tr. 553).
While holding capacity, by pull testing, disclosed six to eight tons for split sets and 20
tons for resin bolts, Hanning liked split set bolts because in “real wet” ground resin bolts did not
work as well, it being difficult to keep the resin up in the holes. (Tr. 553). With split sets
Hanning was more confident of “a quality installation,” it not taking a “rocket science” to put in
a split set bolt. (Tr. 553-554). With resin bolts, there is a concern that there is not enough resin in
the hole or if there is sufficient spinning. (Tr. 554). Closing the split set pattern will help to
increase the holding capacity to match resin bolts. (Tr. 554). The Doe Run ground control policy
in effect on January 21, 2015, allowed for closer patterns if the bolter reached the determination
such was necessary. (Tr. 555).
Hanning had travelled to the fall area after the accident but did not see any adverse
ground conditions on his way to the site. (Tr. 556).

46

Hanning graduated in 1988, receiving a Bachelor of Science in Engineering. (Tr. 548).
He began working for Ascaro at the Sweet Mine in 1988. (Tr. 548). He had worked in mining as
a surveyor, training level supervisor, mine supervisor, general mine supervisor, and mine
superintendent. (Tr. 548-549).

40 FMSHRC Page 1195

Randall Hanning Cross Examination
Split set and resin bolts are the only two types of bolts used at Fletcher Mine. (Tr. 558).
They are not necessarily selected based upon ground conditions. (Tr. 558). There are two types
of machines used in installing bolts: a split set and resin bolter. (Tr. 558). If one is unavailable,
then the other one is used. (Tr. 559). Bolters are paid a bonus depending upon the amount of
bolting they do in a given time period. (Tr. 559). The incentive program can range from $200 to
$800 a month. (Tr. 559).
Hanning had not visited the fall area prior to the accident and hadn’t made any evaluation
of ground conditions. (Tr. 559).
There was no requirement in Doe Run’s ground control policy in effect in January 2015
that test drill holes be marked. (Tr. 560).
The fall area was not a wet area that would have prevented the use of resin bolts. (Tr.
562).
Hanning had observed split set bolts being installed in areas containing shale. (Tr. 563564). Such a practice was not prohibited by Doe Run’s ground control policy in effect in January
2015. (Tr. 564).
George Moellering Direct Examination
George Moellering, Respondent’s Southeast Missouri exploration manager, appeared and
testified at hearing. He had worked for Doe Run for 28 ½ years.47 (Tr. 572). He had held his
current position as Southeast Missouri exploration manager since 2012. (Tr. 576). His duties
were basically the same as chief mine geologist with some additional duties, including setting
policy for the mine geology group. (Tr. 576). Moellering had analyzed surface hole logs, graded
faces, and mine planned to avoid “dilution.”48 (Tr. 577). As a geologist he would often go
underground to visually determine different types of rock structures to help in the mining
decision-making process. (Tr. 578).
Doe Run’s mining areas run approximately 32.5 miles long. (Tr. 578; RX-A). The
breccia trend at Doe Run is very intense in some places such as the Buick Mine and other places
it is very subtle. (Tr. 580; RX-A). The entire Viburnum Trend had been dolomitized over the
47

RX-8 contains Moellering’s complete resume. He earned a B.S. in economic geology
in 1988. From 1989 to 2004 he worked as a mine geologist for Doe Run, working initially as a
grade control geologist and then as a mine geologist. (Tr. 574-575). He then worked for eight
years with Doe Run as chief mine geologist, overseeing 10 mine geologists, a couple grade
control geologists, and an underground drill foreman. (Tr. 575). His duties included grading
faces with breccia in them, locating new ones, controlling the dilution, mine planning,
budgeting—“everything…to do with mine geology, including surface drilling.” (Tr. 575-576).
48

Dilution is rock with no ore in it. The goal is keep as much of such out of the system as
possible. (Tr. 577).

40 FMSHRC Page 1196

years, the dolomite sequence being narrow, generally less than two to three miles wide. (Tr.
581).49
In particular the Fletcher Mine had one of the higher grades in the Viburnum Trend with
very strong and stable dolomite host rock. (Tr. 583-584). The geologic conditions in Fletcher
Mine and in the accident area—RC3PO Northeast—were similar to other parts of the Doe Run
complex. (Tr. 584-585; RX-A). Although the general breccia is the same, every run is going to
look different. (Tr. 585). The rocks are turned different ways every round: taking a picture of it
in one area and comparing a picture of it in another area would not show like images but the
general structure would be the same. (Tr. 585). So changes (in appearance) would be quite
common. (Tr. 585).
RX-I contained a photograph of a classic breccia taken at Casteel Mine which was a
typical representation of breccia found in the Doe Run mines. (Tr. 586-587).50 Describing
different photographs of breccia with fracturing and different blocks of colored material,
Moellering opined that none of the pictures depicted adverse ground conditions. (Tr. 587-589;
RX-I). As breccia is re-cemented together over millions of years it can become even stronger in
character. (Tr. 589-590). Brecciated ground conditions do not per se constitute hazardous
conditions. (Tr. 590-591).
Moellering had walked with Vadnal to the fall area on January 21, 2015, and noted the
changes that Vadnal had alluded to but found the changes to be “no surprise” in a breccia trend.
(Tr. 591). As one comes from slightly brecciated ground into the main core of the breccia,
change is expected. (Tr. 591-592). Moellering observed various changes in the face of the
accident area: lighter color rock; different colors in some of the rocks; gray silt51 showing in the
back. (Tr. 593-594; area between 7561 and 7517 on RX-E). Nothing that Moellering observed
did he find to be as a geologist unusual. (Tr. 595). He saw no shale on the ribs or back. (Tr. 595).
There was a surface hole approximately 140 feet in front of the mine workings that had
not been cut with mining. (Tr. 596; RX-J). He had evaluated the lithology of the surface hole and
found it to be typical of every other surface hole in the area. (Tr. 598). Nothing in the hole
indicated the existence of adverse conditions. (Tr. 598). Nor did he see anything unusual about
the elevation around 1086. (Tr. 599). He also did not detect any shale in the fall area and/or rocks
in the fall area depicted in the photograph at GX-13, page 006. (Tr. 600-601).
In examining the photograph of rock laying between the pillars 7517 and 7561 (RX-E)
Moellering opined that the rock looked like it had come out of the portion of the fall between
7517 and 7561. (Tr. 601). In looking at the photographs of the fallen rock, he did not note the
change that he noticed on the face between 7561 and 7517. (Tr. 601). The face appeared to be
49

See Moellering’s full testimony at Tr. 579-583 for more complete description of
geological process leading to formation of Viburnum Trend and its mining history.
50

See Tr. 585-587 for more detailed technical description of breccia formation.

51

Gray silt is originally deposited as limestone, basically a lime mud stone; it’s
predominantly dolomite and generally very thick bedded. (Tr. 594).

40 FMSHRC Page 1197

highly brecciated and the material on the ground appeared to be pretty well flat bedded. (Tr.
602). He saw no evidence of shale in the rocks that had fallen on the scaler cab. (Tr. 603).
Moellering disagreed with Vadnal’s assessment that heavily disrupted bedding could not
hold a good back. (Tr. 604). Recementation was the key: if the rock was well-cemented together,
there would be no problem. (Tr. 604). Based upon his past experience and education, he found
no evidence of inadequate cementation in his review of photographs from the fall area. (Tr. 605).
During his employment at Doe Run he had never seen nor heard of an unplanned ground fall—in
bolted or unbolted ground—of the magnitude of the instant incident in similar ground conditions.
(Tr. 605). As a geologist, he believed brecciated dolomite was safe ground to work under. (Tr.
605-606). Nothing in the photographs reviewed suggest to him as a geologist that ground
conditions required more analysis or testing. (Tr. 606). High brecciated ground, if well cemented,
was safe to work under. (Tr. 606). Mining production at Fletcher Mine, in brecciated condition,
had been ongoing from 1965. (Tr. 607). Moellering had been unaware of any split set failure in
any area of brecciated ground in RC3PO1. (Tr. 607).
Moellering Cross Examination
Surface holes cannot inform a miner whether the back or roof in a given area is stable.
(Tr. 608). Grade sheets are a name for a report that a geologist produces when he’s on any round
that goes underground. A geologist would have the option of making comments on them about
the mining area. (Tr. 608). Although copies are given to other management and employees, grade
sheets are primarily for the purpose of determining an area contains ore that the geologist wants
to have mined. (Tr. 609).
Moellering agreed that ground conditions could change from drift to drift and that was
why evaluations were required. (Tr. 610). The difference in dolomite class (size) had no effect on
its strength. (Tr. 611). Blasting can open seams and enlarge fractures. (Tr. 614). There could
have been vugs, holes, or voids or some other condition that could have occurred in the space
between the surface hole previously testified to and the fall site 140 feet away that could have
affected the stability of the rock. (Tr. 615). Moellering did not participate in decisions on bolting.
(Tr. 615).
It was Moellering’s opinion that the percentage and class of the dolomite in a measured
stone didn’t have any effect on the strength. (Tr. 616).
Moellering Redirect
The cement or matrix in brecciated conditions was generally white sparry dolomite. (Tr.
616).
Moellering Recross
More elements or different types of rock could affect the strength of the matrix. (Tr. 619).

40 FMSHRC Page 1198

Thomas Yanske Direct Examination
Thomas Yanske, Doe Run’s mine services manager, testified at hearing. (Tr. 621).52
As mine services manager Yanske looked after the technical side of mining, assisting in
production, supervising engineers, dealing with ground support. (Tr. 621). Yanske earned a
Bachelor of Science in engineering in 1977 and later earned a professional engineer’s license.
(Tr. 622). In his early career he had been involved with the installation of roof bolts, actually
installing split set bolts. (Tr. 622, 624). Later, he had been further involved with ground control
issues and designing ground control systems. (Tr. 626). He had moved his offices to Fletcher
Mine in 1992, working with pillar extraction and making evaluations as to what would be
required to support roof and back. (Tr. 627). From 1995 to 2003, he had been involved as a mine
engineer with the effect of pillar extraction on rock bolts, evaluating both resin bolts and split set
conventional bolts. (Tr. 627-628). As a mine service manager since 2004, he managed three
groups of employees: a surveying group which did all the surveying underground, ensuring all
the maps were up to date and which also managed the bonus program for miners; a tech service
group which consisted of five engineers who were extensively involved with pillar extraction; a
mine planning group which looked at mining “from all operations from short-term, mid-term, to
long-term planning.” (Tr. 628). His tech service group coordinated with the vendor in setting up
pull tests for the various types of bolts used at the mine. (Tr. 629).
Yanske was familiar with Doe Run’s ground control policy that was in effect on January
21, 2015, and had participated in revising the policy in 2010 to require that the area above a
person jack legging53 needed to be bolted. (Tr. 631). The policy had also been revised after a
fatality in 1998. (Tr. 632). It was provided that workplace examinations would start out 60 feet
from the face. (Tr. 632). Test holes would be utilized and completed one per round. (Tr. 632).
Surveyors would be required to have scaling bars and an area would be tested and scaled before
work began. (Tr. 632).
Yanske was unaware of any unplanned ground falls during the time period between the
institution of the new ground control policy following the 1998 fatality and the instant January
21, 2015 accident. (Tr. 634). The area between pillar 7515 and 7517 where the accident occurred
was not a completed intersection. (Tr. 635). The ground control policy then in effect would not
have required the entire area to be bolted. (Tr. 635).
Although MSHA had requested to see Doe Run’s ground control policy prior to January
21, 2015, MSHA, to Yanske’s knowledge, had not recommended any changes to the policy. (Tr.
636).
In installing split set bolts, a hole is drilled slightly smaller than the bolt itself. (Tr. 637).
The bolt is hammered into place; the friction between the bolt and rock causes a radial force to
the side which holds the layers of rock together. (Tr. 637). A roof bolter machine, rather than a
jack leg, is now used to hammer the friction stabilizer in place. (Tr. 637-638).
52

See RX-K for full resume and Tr. 621-629.

53

Jack legging is when a miner uses an air-operated drill by hand while drilling out the
back. (Tr. 631).

40 FMSHRC Page 1199

The holding capacity of a split set bolt was shown by pull tests to be six to eight tons. (Tr.
638). This holding capacity was shown to be sufficient to support the ground at Doe Run. (Tr.
638). Yanske had actually met the creator of the split set—Dr. Scott—while Yanske had been
attending college in 1977. (Tr. 640). He knew of no failures of split sets since his arrival at Doe
Run in 1990. (Tr. 638).
When installing resin bolts, a hole is drilled and a cartridge of glue is inserted into the
hole. The bolt is then inserted and spun into a two-part epoxy. (Tr. 640). They are separated in
the plastic cartridges themselves. As the bolt is pushed up into the hole, it splits the cartridges
and they rotate a prescribed amount of times. (Tr. 640). The bolt mixes the two parts together
and epoxy glue sets up and holds the bolt into place. (Tr. 640). Resin bolts have a higher holding
capacity than split set bolts but might not be used in ground that has a lot of water coming from
it. (Tr. 641). Split sets cannot be used in soft ground because of the lack of friction. (Tr. 642).
Split sets were appropriate ground support for brecciated conditions and, if properly installed, for
shale.54 (Tr. 642).
Yanske had travelled to the fall area after the accident and did not consider it shaley. (Tr.
643). He did not observe any shale in the area. (Tr. 643). A static load is a load that is in place. A
dynamic load is a load where rock is moving. (Tr. 643). It was difficult to calculate dynamic
loads and Yanske knew of no one who calculated dynamic loads on a regular basis. (Tr. 644). He
also knew of no type of pull test that could measure a dynamic load. (Tr. 644).
Prior to the ground fall bolts had been in place in the fall area for two weeks, since
January 1, 2015. (Tr. 645). Yanske opined one of two things happened after Hoodenpyle had
begun scaling. As Hoodenpyle was reaching out onto unsupported ground with his boom to scale
a piece of loose either he hit a keyblock and dislodged it which in turn allowed other rocks to fall
or some force he generated in scaling caused it to go beyond—to go where it was no longer
equilibrium—and that rock fell. (Tr. 645-646). In turn when it fell, it put dynamic load on those
bolts in place, causing bolts to pull out. (Tr. 646). Yanske felt that the fall did not originate at the
bolted ground because bolts had been in place prior to the ground fall for two weeks. (Tr. 646).
When the ground fall took place, it did not go above the anchor point of the bolt. It actually
separated below the anchor point which made Yanske feel the fall originated in the unsupported
ground. (Tr. 646). The analogy would be similar to an underground miner taking his scaling bar,
sticking it pointed end and trying to pry down a rock. As a miner slides his hands down a scaling
bar it’s very difficult to pry down a rock. But if the miner puts his hands at the far end of the
scaling bar, six feet from the prying point, the fulcrum effect makes it a lot easier. (Tr. 646-647).
The rock out in the unsupported ground acted in the same way as a scaling bar, actually pulling
rock bolts out of the back. (Tr. 647).
Dynamic forces and dynamic loads cannot be anticipated. It would be “strictly
speculation” to state that resin bolts would have prevented the fall. (Tr. 647). With dynamic
loading and the longer the moment arm is, the more force is generated with the rock sitting out
there, even though the weight in the unbolted rock would not be as much in weight as the rest.
54

Proper installation in shale backs might require tightening the spacing to 4 feet by 4
feet, 3 feet by 3 feet, or even 2 feet by 2 feet patterns. (Tr. 642-643).

40 FMSHRC Page 1200

(Tr. 647). The multiplying force could cause the bolts to come out. (Tr. 648). Further, Yanske
opined that a test hole in the middle of the intersection may not have revealed anything adverse.
(Tr. 648). Based upon Doe Run’s operating history and his knowledge of what the current
ground conditions looked like in the area of the accident prior to the fall, he opined that there
was no indication that the six-foot friction stabilizer bolts were inadequate. (Tr. 648).
All breccia is disrupted. Even highly brecciated ground can be supported by split set bolts
as demonstrated by their use in Doe Run mines for decades. (Tr. 649-650).
In conducting a pull test, the load is continued until slippage of the bolt is detected. (Tr.
652). The slippage point indicates the bolt’s maximum holding capacity. (Tr. 652).
Thomas Yanske Cross Examination
In addition to the bolters, other groups involved in production that receive bonuses at Doe
Run are: drillers; roof bolters; backfill operators; mine support people; supervisors (annual
bonuses). (Tr. 654). Geologists also received variable bonuses. (Tr. 654). The faster work is
completed in a safe fashion55, the more the bonus. (Tr. 654).
There is ground in the mine that cannot be safely mined due to geologic features. (Tr.
654). These areas will be bermed and flagged off. (Tr. 655). When too much water is
encountered, more scaling is performed or additional bolts installed. (Tr. 655-656).
A deciding factor in determining whether to utilize split set or resin bolts may be the type
of bolting machine that is available. (Tr. 656). In evaluating a roof, miners look for such features
as fractures that might indicate an opening or movement, shale, color changes in the rock. (Tr.
656). Spacing patterns of bolts might be tightened to increase holding capacity in such situations
as when larger beams like a brow are exposed or where a hole is encountered. (Tr. 658).
Butterfly plates can also be used to prevent materials from falling. (Tr. 658).
Yanske repeated his opinion that the fall had been caused by a keyblock being dislodged
during scaling or some other force that the victim induced causing it to go beyond equilibrium
and fall. (Tr. 659).
Resin bolts in a tightened pattern would have more holding capacity than split set bolts.
Because dynamic loads are so difficult to calculate the safety factor involved in increasing bolt
patterns would be speculative in nature. (Tr. 660).
The area of ground involved in the 1998 Casteel Mine fatality was unbolted. (Tr. 662663). If at the time of the fall Hoodenpyle’s scaler had been back 15 to 20 more feet, he may
have been in a protected area. (Tr. 663).56

55

There are no bonuses for safety alone. (Tr. 654).

56

See Tr. 663-664 for more detailed answer.

40 FMSHRC Page 1201

Thomas Yanske Redirect
Any part of the roof that was being scaled at the time of accident—not just a keyblock—
could have been disturbed, causing a disruption in the equilibrium, setting the fall in motion. (Tr.
667-668).
Thomas Yanske Questioning by the Court
Split set bolts can be installed “a little quicker” than resin bolts. Split sets are also “a little
cheaper” than resin bolts. (Tr. 670).57
Robert Ridings Direct Examination
Robert Ridings testified at hearing. He had been employed at Doe Run since October
2007 and was currently senior mine geologist. (Tr. 671). He had been working at Fletcher Mine
as a geologist on January 21, 2015. (Tr. 672). As a geologist his primary duty was to come up
with a hypothesis of the location of mine ore. (Tr. 672). Based upon data available he tested the
hypothesis by managing underground drilling which took core samples. (Tr. 672). The
underground percussion drill powders rock along the hole that can be assayed for data. He has a
surface expiration program. (Tr. 672). He uses data from all sources to support or not support his
opinion as to where ore is to be found in a certain area. (Tr. 673). He oversees the mining of the
stopes of all the ore bodies that he has found. (Tr. 673). He looks for breccia, fractures,
structures, anything that might serve as a conduit or have permeability for which the ore to
deposit in. (Tr. 673). He goes underground for about four hours on the average of three days per
week. (Tr. 673-674).
His activities include evaluating ground conditions. (Tr. 674). He looks for loose rock.
(Tr. 674). Areas that have stylolite or a parting will be blasted so that loose rock could be
scratched down. (Tr. 674). Any area that presents a concern is taped off and noted on his grade
sheets. (Tr. 675). Nobody can enter it until it’s scaled down and safe. (Tr. 675).
Breccia is the most common form of host rock at Fletcher Mine. (Tr. 675). A geologist
uses grade sheets with mapping to convey to foremen and managers the exact grade of ore
located underground at all the areas being mined. (Tr. 676; RX-R).58 Any adverse condition
would also be noted on the grade sheet. (Tr. 679).
During the month prior to the accident Ridings had in fact worked in the area of the fall
(RC3PO northeast). (Tr. 680). He had created the Doe Run grade sheets in December 2014. (Tr.
680; RX-Q). He did not recall observing any adverse conditions, inadequate ground support, or
any condition indicating a possible hazard on December 26, 2014. (Tr. 681). Nor did he observe
any of such on January 5, 2015, or January 9, 2015. (Tr. 682-683). During an underground trip
on January 12, 2015, he was surveying by eye and saw nothing that would cause alarm. (Tr. 684;

57

See Tr. 669-670 for full answers.

58

See Tr. 677-678 for detailed description for meaning of markings on RX-R.

40 FMSHRC Page 1202

RX-E). On January 16, 2015, the workings had advanced a little. He again saw nothing,
including bolting or ground control, that looked dangerous. (Tr. 684).
On the day of the accident Ridings drove through the exact area where the fall took place
and again saw nothing that would cause alarm. (Tr. 685). The time that he drove through was
approximately 10:30 am to 1:00 pm. (Tr. 685). At the time Ridings was travelling with another
geologist who was training for Fletcher and he was “kind of showing him around.” (Tr. 685).
There was nothing unusual about the brecciated back that he observed in the fall area. (Tr. 687).
He did not notice any boulders in the back in what was to be the proposed intersection. (Tr. 685;
see also RX-E). He actually saw the bolts that would later fall: They looked “good”; plates were
flat up against the back. (Tr. 689).
He saw no evidence of a recent rock fall and heard no sounds, popping or cracking,
indicating ground was moving. (Tr. 690). He saw no evidence of unusual cracks or fractures. (Tr.
690).
As a geologist he is often advised if somebody notes a possible adverse condition. (Tr.
690-691). Usually the first to notice such are roof bolters. (Tr. 691). The roof bolter Vern Roark
had in the past brought possible adverse conditions to Ridings’ attention but did not report
anything about the fall area at issue. (Tr. 691). Nor had anyone else. (Tr. 692).
There was nothing in the month leading up to the accident date that indicated that the
ground support was inadequately supporting the ground. (Tr. 692). The fall area ground was
similar to the entire RC West Fork overcut and similar to areas supported by 5 foot by 5 foot
patterns. (Tr. 692). He did not recall any similar situations where split sets installed in similar
ground conditions had failed. (Tr. 692).
Robert Ridings Cross Examination
On cross examination Ridings agreed that he was not a bolter or driller nor had been
involved in the development of any ground control or safety program at Fletcher. (Tr. 693). He
further conceded that the best way to detect change in brecciated ground conditions is
“continuous” testing and evaluation. (Tr. 694). Test hole results are not reported on the
geologist’s grading sheets. (Tr. 694). Blasting can loosen rock. Ore goes along the fractures in
the rock. (Tr. 695). Fractures operate as a conduit: whatever path permeability for fluids to move
through is where ore can be deposited. (Tr. 695).
Robert Ridings Redirect
As a geologist Ridings considered scaling a method of testing the stability of ground. (Tr.
698). Scalers can definitely spot loose. (Tr. 698).
Ridings carries a scaling bar with him and, if it appears safe to do so, will himself scale
areas of loose. (Tr. 699). There was nothing uncommon about the fractures and cracks that he
observed on January 21, 2015. (Tr. 699). He did not consider the typical cracks in brecciated
ground at Fletcher mine to constitute adverse conditions. (Tr. 701).

40 FMSHRC Page 1203

CONTENTIONS OF THE PARTIES
The Secretary argues that the location of the Getman Mechanical Scaler identified in
Citation No. 8680899 was a violation of 30 C.F.R. §57.3201 because the Mechanical Scaler was
located in area that was only 25% bolted with split set bolts in a 5x5 pattern. The Secretary
argues that the bolting in the area of the fall was inadequate for roof conditions and that the
inadequate bolting was directly related to the failure to thoroughly evaluate and test the roof
conditions. The Secretary argues that being further removed from the fall zone or under an area
that was thoroughly tested, examined, and then properly bolted would have protected the scaler
operator.
Doe Run argues that Citation 8680899 should be vacated because an objective analysis of
all the surrounding circumstances, factors, and considerations establishes that a reasonably
prudent person familiar with the mining industry and protective purposes of the standard would
not have recognized the hazardous condition the standard seeks to prevent, in this case injury
from falling material. Doe Run argues that mechanical scaling is the safest way to bring down
loose material from roof and rib surfaces and that the mechanical scaler that Mr. Hoodenpyle
operated contained many safety features, protecting the scaler operator from rock falls.
Therefore, a reasonably prudent person would have believed the safety features protected the
operator of the mechanical scaler. Doe Run argues that MSHA inspectors Kennedy and Van
Dorn testified they have seen mechanical scalers operate in this position before and that doing so
was not a violation and that such positioning was normal. Doe Run asserts there was nothing that
should have put Doe Run on notice that either the ground support or ground conditions in the
area were insufficient or hazardous.
The Secretary argues Doe Run failed to design, install, and maintain ground support
adequate to the mine conditions. In support of Citation No. 8680900 the Secretary argues that
Doe Run fails the reasonably prudent person test. The Secretary argues that the evidence shown
at trial demonstrated that Doe Run failed to adequately design and install ground control
measures at the Fletcher Mine and that that the measures installed were inadequate for the
conditions existing in the RC3PONE heading. The Secretary argues the fatal roof fall occurred in
an area where 25% of the roof was bolted as direct evidence of the inadequacy of the ground
support for the mine conditions. In support of the argument, the Secretary states that previous
roof falls put the mine on notice of the hazard. The Secretary argues that conditions dictated roof
bolting in the area of the fall should have been done with either a tighter pattern or resin bolts.
The Secretary argues a reasonably prudent person, familiar with the mining industry and the
protective purpose of the standard, would have recognized the hazardous conditions that the
standard seeks to prevent and would have adjusted the bolting accordingly.
Doe Run argues Citation 8680900 should be vacated as it also fails the reasonably
prudent person test. Doe Run argues Citation No. 8680900 should be vacated because the
evidence fails to establish that ground support in the RC3PONE stope was not properly designed,
installed and maintained based on known ground conditions prior to the ground fall and Doe
Run’s mining experience in similar ground conditions as required by C30 C.F.R. §57.3360. Doe
Run also argues that prior to the date of the accident the Fletcher Mine had never experienced
any unplanned ground falls where split set roof bolts failed in similar ground conditions. Doe
Run argues the geology in the area of the fall does not require the use of resin bolts or a tighter

40 FMSHRC Page 1204

bolt pattern. Doe Run relies on the testimony of several witnesses to assert that split set roof bolts
adequately and safely support similar geologic conditions and had done so for decades at Doe
Run mines to include the Fletcher Mine.
The Secretary argues that Citation Nos. 8680899 and 8680900 were properly designated
“Significant and Substantial” per Section 104(d) (1) of the Mine Act. In support of the argument,
the Secretary asserts that the violations associated with the Citations were of such nature as could
significantly and substantially contribute to the cause and effect of a coal or other mine safety or
health hazard. The Secretary argues that both Citations satisfy the four step framework of the
Mathies test: (1) the violation(s) were established as a violation of a mandatory safety standard;
(2) the likelihood of the occurrence of the hazard against which a mandatory safety standard is
directed; (3) the gravity of the violation; and (4) whether violation of the hazard would be
reasonably likely to result in injury.
Doe Run further argues that Citation Nos. 8680899 and 8680900 were improperly
designated as “Significant and Substantial.” In support of this argument Doe Run argues that the
Secretary failed to prove violations of either 30 C.F.R. §57.3360 or 30 C.F.R. §57.3201. Doe
Run argues that if the Secretary is unable to prove a violation of a mandatory safety standard the
Secretary fails the first step of the revised Mathies test rendering the other three steps
unnecessary. Doe Run argues however, that, even if the Court determines the Secretary is able to
meet its burden in regards to step one of the test, element two of the test is unmet because the
likelihood of this occurrence was also unlikely for the same reasons.
ANALYSIS
Issue:

Given that the Mine Act is a strict liability statute and given that a miner was killed due
to the fall of roof material on his scaler due to ground support failure, were there per
se violations of §§ 57.3201 and 57.3360?

Strict Liability
In their post-hearing briefs neither party devoted much of their briefs as to the
applicability of strict liability to the present controversy.59 The Undersigned nonetheless is
convinced that this doctrine lies at the very heart of the matter, playing a decisive role in
determining the fact of violation in cases of accidental roof falls causing death.
The Federal Mine Act has long been understood to be an act based upon strict liability.
The Commission and Circuit Courts have long held that “an operator may be liable without
fault.” Sewell Coal Co. v. FMSHRC, 686F.2d 1066, 1071 (4th Cir. 1982). “Because the Mine Act
is a strict liability statute, any violation of the Act or the mandatory safety and health standards
adopted thereto…would be attributable to the mine operator regardless of whether the mine
operator is at fault.” 27 FMSHRC 721, 731 (2005). In Spartan Mining Co., 30FMSHRC 699,
59

This is so despite this Court’s explicit request to do so. (see, inter alia, Hearing
transcript at pp. 708-711, Secretary’s original brief at p. 20, and Respondent’s brief at pp. 35-37).

40 FMSHRC Page 1205

706 (Aug. 2008) the Commission rejected compliance with internal policy as a defense because
of the Mine Act’s strict liability.
Indeed, the legislative history of the Mine Act confirms the congressional intent that there
should be “liability for violations of the standards against the operator without regard to fault.”
Conf. Rep. No. 761, 91st Cong., 1st Sess. 71, reprinted 1969 U.S. Code Cong. & Ad. News 2503,
2578, 2586.
The history of American mining horrifically documents why there was such a desperate
need for the legislative imposition of strict liability. For generations mine operators had denied
responsibility for miners’ injuries and deaths, hiding behind such hoary legal defenses as
assumption of the risk. All too often operators evaded responsibility by concealing or destroying
evidence of accident causation, the explanation of which was their own avariciousness,
recklessness, and gross indifference to miners’ health and safety.60
The long history of American mining shows how with the aiding and abetting company
lawyers, constabulary, and biased judicial donees, mine operators routinely evaded liability for
even the most flagrant misconduct.61 American mine workers’ ability to obtain even minimal
safety and health protection and minimal measures of justice were regularly blocked by an
enabling political class, which, at Big Mining bidding, servilely refused to pass any meaningful
regulatory reform.62
60

Donald Blankenship’s malevolent shenanigans at Upper Big Branch is but a recent
example of such.
61

This observation should not be construed to imply that present Respondent has in any
way acted reprehensibly.
62

In 1968 President Nixon eloquently described the necessity for new Federal mine
safety legislation:
The workers in the coal mining industry and their families have too long
endured the constant threat and often sudden reality of disaster, disease, and
death. This great industry has strengthened our Nation with raw material of
power. But it has also frequently saddened out Nation with news of crippled men,
grieving widows, and fatherless children.
Death in the mines can be as sudden as an explosion or a collapse of a roof
and ribs, or it comes insidiously from pneumoconiosis or black lung disease.
When a miner leaves his home for work, he and his family must live with the
unspoken but always present fear that before the working day is over, he may be
crushed or burned to death or suffocated. This acceptance of the possibility of
death in the mines has become almost as much a part of the job as the tools and
the tunnels.
The time has come to replace this fatalism with hope by substituting action
for words. Catastrophes in the coal mines are not inevitable. They can be
prevented, and they must be prevented.
Special Message to the Cong. on Coal Mine Safety, Pub. Papers no. 96 at 177-78 (Mar. 3, 1969).

40 FMSHRC Page 1206

For score after score of years, mining state politicians would Pharisaically invoke the
inscrutable nature of God’s will to explain away avoidable accidents. A recent mining
documentary, Blood on the Mountain, cites a particularly egregious example of such exculpatory
theologic mumbo-jumbo. Acting to protect Pittston Coal Company, which operated the infamous
Buffalo Creek Dam, West Virginia governor Arch Moore tried to suppress his own investigatory
committee report regarding the dam’s lethal design and construction. Lamenting the continual
catastrophes that had plagued his state’s mining industry, Moore pietistically blubbered: “why do
all bad things have to happen to West Virginia? These are Acts of God (emphasis added) and
where he picks to deliver his message I don’t know.”63
This history, and Congress’ explicit intent, show that without the imposition of strict
liability—the nation’s miners are put at risk.64
In arguing that a reasonably prudent person test should be applied in determining the fact
of violation, both parties appear to rely upon past Commission holdings in Canon Coal Co., 9
FMSHRC 667 (Apr. 1987) and Harlan Cumberland Coal, 20 FMSHRC 1275 (Dec. 1988).
(Respondent’s Post-Hearing Brief, 42; Secretary’s Post-Hearing Brief, 24). However, a more
recent Commission decision, Jim Walter, 37 FMSHRC 493 (Mar. 2015) raises a substantial
question as to the continuing viability of these precedents. This is particularly so where, as here,
there is an actual accidental rock fall causing death.
In the underlying ALJ decision in Jim Walter, 34 FMSHRC 1386 (June 2012)(ALJ), the
ALJ was confronted with a factual scenario similar to the instant controversy. The victim had
been killed by a large piece of rock that had fallen upon him. All or a portion of the fall area had
been bolted and supported. There were no eyewitnesses to the accident and the victim’s body had
only been discovered subsequently. Relying upon Canon and Harlan, Judge Weisberger found
that the Secretary had failed to establish the existence of objective signs that existed prior to the
roof fall that would have alerted a reasonably prudent person to install additional roof support
beyond which had been actually provided at the time of accident. 34 FMSHRC at 1393.
Accordingly; Judge Weisberger concluded that the Secretary had failed to establish by the
preponderance of the evidence that § 77.202(a) had been violated. 34 FMSHRC at 1393-1394.
On appeal the Secretary argued that the ALJ had erred in applying a reasonably prudent
person test. 34 FMSHRC at 494. The Secretary argued that operators are strictly liable for Mine
Act violations and that, as a result, if a roof fails the roof was (as a matter of law) not supported
or otherwise controlled to protect persons from hazards related to roof falls. (37 FMSHRC at

63

Moore was later convicted of widespread corruption and sentenced to jail in 1990.

64

This is especially so when roof fall accidents are at issue. Such accidents have been
and remain the leading cause of miner fatality. See, inter alia, July 6, 2017 Department of Labor
news release documenting that roof falls since 2013 had led to the deaths of five continuous
mining machine operators and the injury of 83 other operators; September 8, 2017 “Fatalgram”
reporting death of 62 year old section foreman killed in West Virginia mine by a 3 foot by 2 foot
rock fall between roof bolts.

40 FMSHRC Page 1207

494). Thus, the Secretary contended that, under the plain meaning of § 75.202(a)65, a roof fall
demonstrated a per se violation of the standard.66 (37 FMSHRC at 495).
Given “the stark and tragic facts” presented, the Commission indicated that it was not
necessary to decide whether to adopt one or the other test in all roof fall cases involving
allegations of unsupported roof. 37 FMSHRC at 495. However, the majority opinion went on to
state the following:
This leaves the issue of whether the operator failed to support the roof “to protect
persons from hazards related to falls.” When Inspector Wilcox arrived on the
scene, Jerry McKinney was lying fatally injured beneath a large roof fall.
Accordingly, the only conclusion to be reached is that the roof was not supported
to protect the miner from a roof fall. As previously mentioned, the Mine Act is a
strict liability statute, and this fatality resulting from a fall of roof material where
persons work or travel unquestionably demonstrates a violation of section
75.202(a). The roof fall that pinned McKinney under a piece of rock, resulting in
his death, amply demonstrates that the roof was not supported in a manner to
protect him from hazards related to falls.
37 FMSHRC at 496 (emphasis added).
Further, in his concurring decision, Commissioner Cohen specifically addressed the
majority’s refusal to follow the Canon precedent, concluding that “the disposition in this
proceeding effectively overrules the Commission’s decision in Canon Coal.” Id. at 498 (Cohen
Concurring).67 Commissioner Cohen noted that the prudent person analysis in Canon Coal did
not reflect an appropriate interpretation of the requirements of the safety standard to protect
miners and the strict liability of the Mine Act. 37 FMSHRC at 498. “A roof that falls and kills a
miner was obviously not supported ‘to protect persons from hazards related to falls of the roof.’”
Id.

65

§ 75.202(a) provides, in pertinent part, that “the roof, face and ribs of areas where
persons work or travel shall be supported or otherwise controlled to protect persons from hazards
related to falls of the roof…”
66

In the absence of a roof fall the Secretary would retain the reasonably prudent person
test to determine the cited standard had been violated.
67

The majority in footnote 7 of its opinion stated as follows:

We recognize that the decision in Canon Coal Co., 9 FMSHRC 667 (Apr. 1987),
was reached in a factual context similar to that in the present case. However,
in light of the determination set forth immediately above, we decline to follow
the Canon decision.
37 FMSHRC at 497, note 7.

40 FMSHRC Page 1208

The “stark and tragic facts” of this miner’s death are, if anything, more compelling than
in Jim Walter. The roof fall that crushed John Hoodenpyle at Fletcher Mine was far more
massive than the rock fall that pinned and killed Jerry McKinney at No. 7 Mine.68 It was in fact
so massive that it completely squashed the cab of Hoodenpyle’s scaler, despite the cab’s
reinforced canopy. The sound of the roof fall was so thunderous that it could be heard in other
parts of the mine. (see Tr. 514). The roof fall’s force was so tremendous that even the bolted
ground above the scaler cab collapsed.
The ALJ finds that the “stark and tragic” facts in this case require this Court to follow the
Commission’s rationale in Jim Walter rejecting Canon Coal’s and Harlan Cumberland’s prudent
person test in the limited circumstances where there is an accidental roof fall causing death. In
such limited circumstances, the fact of the fatal accident itself, by reason of strict liability,
demonstrates a per se violation of the safety standard.
In reaching this conclusion the ALJ notes that the mandatory safety standards at issue are
essentially identical to § 75.202(a) in that the plain meaning of both standards is there should be
adequate ground control to protect miners from falling materials.
The operative language in § 53.3201 is that “scaling shall be performed from a location
which will not expose persons to injury from falling material…” “The stark and tragic facts” of
this case clearly establish that Mr. Hoodenpyle, while performing his scaling duties, was not in a
“location that prevented his exposure to injury” and indeed death. Likewise, § 57.3360 provides
in pertinent part that the ground “support system be designed, installed, and maintained to
control ground in places where people work.” The facts establishing a massive unplanned and
uncontrolled roof fall in the area where Hoodenpyle worked and others travelled again
demonstrate a clear per se violation of the mandatory safety standard.
In applying a strict liability test to the within controversy, this Court intentionally
declines to address whether the fact of violation as to either standard could be established by
utilizing a prudent miner test. The questions as to whether there were observable signs prior to
the accident, whether there were similar unplanned ground falls, whether there were sufficient
number, type and patterns of bolts used, and whether the accident was caused by geologic, static,
and/or dynamic forces have been all zealously argued by the parties at hearing and in their
respective briefs. Suffice it to say that, given the plethora of questions raised and unresolved, a
prudent person test would have made the Secretary’s case as to fact of violation much more
problematic.
But of course this is exactly the point. When there is a death of a miner in a catastrophic
roof fall, a mine operator cannot and should not escape liability on the fatalistic bases of “just
bad luck” or “Act of God” or “accidents happen” or for that matter good faith conduct and

68

As noted within, the roof fall at Fletcher Mine measured 55 feet by 20 feet by 6 feet.
Tr. 73. The rock fall in Jim Walter was 83 inches by 43 inches by 7 inches. 34 FMSHRC at
1391.

40 FMSHRC Page 1209

unforseeability. A mine operator, in such circumstances, must be held liable under the Mine
Act’s strict liability.69
Accordingly, this Court finds that there were per se violations of §§ 57.3201 and
57.3360.
Issue:

Based upon the particular facts surrounding the violations of §§ 57.3201 and 57.3360
did there exist a reasonable likelihood of the occurrence of the hazard against which
the mandatory safety standards were directed?

The test for whether a violation was Significant and Substantial has been modified
recently by MSHA v. Newtown Energy, Inc., 38 FMSHRC 2033, 2036-2040 (Aug., 2016).
Under the Commission's newly formulated Newtown test, the four steps of the
S&S analysis require determinations of whether:
(1) there has been a violation of a mandatory safety standard;
(2) based upon the particular facts surrounding the violation, there exists a
reasonable likelihood of the occurrence of the hazard against which the
mandatory safety standard is directed;
(3) based upon the particular facts surrounding the violation, the occurrence of
that hazard would be reasonably likely to result in an injury; and
(4) any resultant injury would be reasonably likely to be reasonably serious.
MSHA v. ICG Illinois, LLC, 38 FMSHRC 2473, 2483 (Oct. 2016) (Althen Dissenting).
It has already been found, supra, that there was a violation of a mandatory safety
standard. The distinct safety hazards against which §§ 57.3201 and 57.3360 are directed are
essentially similar: the dangers that materials might fall upon miners scaling, working, or
travelling in areas with insufficient ground support.
However, after carefully reviewing the total record, the ALJ is not persuaded that there
were compelling indicia surrounding the instant violations that would have suggested the
reasonable likelihood of material falling upon Hoodenpyle while he performed scaling in the
RC3PO northeast section.70

69

To paraphrase Sam Spade’s lines to Brigid O’Shaughnessy in The Maltese Falcon:
“When a miner is killed, it’s bad business to let the operator get away with it…bad all around,
bad for every miner everywhere”
70

At hearing this Court requested that the parties address the issue of whether the two
ground control violations met Newton’s revised two-part Mathies Step 2 test. In his brief,
Respondent’s counsel primarily focused upon his contentions that step one of Mathies was not
met in that there were no actual violations of either safety standard. However, Respondent did
argue, in the alternative, that for all the reasons indicating there was no violation, step two was
not met because the “likelihood of occurrence was unlikely.” (see also Footnote 4 of
Respondent’s brief, p. 36).

40 FMSHRC Page 1210

Geologic Features of Viburnum Trend, Fletcher Mine and RC3PO Northeast Stope
This Court accepts the Secretary’s general contention that when dramatic changes in rock
are encountered there should be closer examination and testing. However, the Secretary failed to
carry his burden of showing that Fletcher Mine in general, or the RC3PO northeast stope in
particular, had or displayed geologic features that would have established the existence of a
reasonable likelihood of a rock fall that would have injured Hoodenpyle in his scaler cab.
At hearing Vadnal testified that he had witnessed dramatic changes in the fall area which
should have alerted miners to a potential roof fall hazard. (Tr. 165-168). However, the
Secretary’s own witness, MSHA Inspector Jeremy Kennedy contradicted such testimony,
testifying that he had travelled through the area shortly before the accident and had seen nothing
to alert him that a fall was imminent.71
This Court found Vadnal to be an honest and forthright individual. However, Vadnal had
limited experience in dealing with brecciated ground and lead mining in general. He had no
firsthand experience with Doe Run operations or Fletcher Mine ground conditions prior to the
accident. His visual observations were limited to the time period subsequent to the accident. He
lacked an actual degree in engineering. (Tr. 209-211). Further calling Vadnal’s testimony into
question were various Respondent witnesses who stated they had seen no outward signs of
possible hazardous roof conditions either prior to or after the accident. (See e.g Tr. 447.) All of
these factors diminished the probative weight that this Court accorded Vadnal’s testimony.
This Court also observes that the photographic evidence offered by the Secretary to show
external changes and disruptions of rock indicating the potential likelihood for a roof fall was
problematic. The Respondent’s witnesses all denied that the Secretary’s pictures revealed
obvious stigmata of dramatic change or signs indicating hazardous rock conditions. This Court
could not discern any distinctly different geologic features in the scenes depicted.
Contrary to the Secretary’s assertions otherwise, the mine geologist, George Moellering
testified that the geological conditions in the RC3PO northeast stope were essentially similar to
other parts of the Fletcher Mine as well as other parts of the Viburnum Trend as a whole. (Tr.
585). There was nothing unusual about mining in brecciated ground. Such mining had been
going on since the late 1960s at Fletcher Mine. (Tr. 595, 607).
The ALJ recognizes that Respondent’s witnesses may have offered some self-serving
testimony in their assertions that there were no outward signs indicating the existence of
hazardous roof conditions. Nonetheless, this Court was not persuaded by the Secretary that, at
71

As trier of fact this Court has the duty to decide which evidence presented by either
party is more credible or more persuasive. However, the Secretary does bear the burden of proof.
When it presents testimony that is inherently contradictory, the Secretary places the Court in a
position that might involve improper speculation. See eg. Commonwealth v. Farquharson, 467
Pa. 50, 354 A.2d 545 (1976), wherein the Pennsylvania Supreme Court held that where the
Commonwealth presented evidence that was so contradictory in nature that any verdict based
thereon would be pure conjecture, a jury would not be permitted to return such a verdict.

40 FMSHRC Page 1211

the time of accident, there were any geologic features of the Viburnum Trend, of Fletcher Mine
as a whole, or rock changes in the RC3PO northeast fall area in particular, which would have
indicated that there existed the reasonable likelihood of roof material falling upon Hoodenpyle’s
scaler cab.
Position of Hoodenpyle and the Getman S330 Mechanical Scaler at Time of Accident
At hearing and in his brief(s), Respondent essentially contends that the “prospective
danger” (hazard) of falling materials from inadequately supported ground injuring a miner did
not have an increased likelihood because of the position of Hoodenpyle inside his Getman scaler
at the specific site of the accident.
None of the facts surrounding the violations associated with the position of Hoodenpyle
and his scaler would have created the reasonable likelihood of falling material injuring the miner.
Hoodenpyle had been positioned in his cab 60 feet from the face and his cab was under bolted
ground—a place that historical practice had shown to be protected and safe. (Tr. 111.)
The Getman S330 mechanical scaler which Hoodenpyle operated had many safety
features, including a stable chassis, telescopic boom, and ROPS/FOPS operator’s compartment,
all of which would have decreased the reasonable likelihood of an injury-causing rock fall. Both
the locations of the scaler in general and scaler cab in particular would not in any significant way
increase the likelihood of the occurrence of the hazards against which the mandatory safety
standards were directed. No citations had ever been issued in the past to a miner for positioning
his scaler in such a manner as Hoodenpyle nor had there been any instances of a roof fall
crushing a scaler cab.
Thus, in considering Newton’s “particular facts surrounding the violation” component of
Mathies Step 2, this Court found nothing about the positioning of the scaler 60 feet from the face
or the locating of the scaler cab beneath the last two rows of bolted ground or the reinforced
features of the canopy/cab which would have contributed to the reasonable likelihood of an
injurious roof fall onto Hoodenpyle. Furthermore, I find the negligence in both of these citations
to be Low.72
Type of Bolts and Patterns of Bolt
The Secretary essentially contends that if resin bolts had been utilized in place of split set
bolts and if a tighter bolt pattern had been utilized, the roof in RC3PO northeast may not have
collapsed. (see inter alia Secretary’s brief at 21). Given the total record, this Court finds said

72

It should be noted that the Secretary’s argument for increased negligence was lacking.
Van Dorn’s rationale for such is as follows—“the operator, the foreman of the mine at that time,
wasn’t in the area. He didn’t know that this was going to happen. And I just put him at moderate
because high says they knew or should have known.” (Tr. 325).

40 FMSHRC Page 1212

hypothesis to be transcendentally speculative.73 However, in arguing such the Secretary is also in
essence contending that the type of bolts used and pattern of bolting utilized in the fall area were
additional particular facts surrounding the violations that created a reasonable likelihood of
occurrence of falling materials. This contention is also not supported by the total record.
This Court accepts the arguments of Respondent and credits Respondent’s witness
testimony that split set bolts in typical 5 foot by 5 foot patterns had been successfully and safely
used throughout Doe Run and at Fletcher Mine and did not in any way constitute inadequate
ground control support or techniques.
This of course is not to say that Respondent’s witnesses were altogether forthcoming and
completely believable in their assertions about the interchangeability of split sets and resin bolts
at Doe Run. Beside the availability of appropriate bolting machines, this Court suspects that the
usage of split sets was also motivated by cost and time factors and the lack of bolters possessing
sufficient expertise to efficiently install resin bolts.
This Court also agrees with the Secretary’s contentions that the use of bonuses to reward
productivity may create the potential for unsafe work performance and resulting unsafe
conditions. However, this Court found nothing in the evidence presented that established that
Fletcher Mine personnel had performed their duties in an unduly speedy manner in the RC3PO
northeast stope so as to endanger Mr. Hoodenpyle.
Prior Roof Falls
Although presenting some hearsay evidence about prior roof falls, the Secretary was
unable to locate and examine any actual fall site so as to compare the area and circumstances of
such with the accident site at issue. Inspector Kennedy testified that he was unaware of any falls
prior to January 2015, which involved the failure of split sets in brecciated ground. (Tr. 91).
Vadnal similarly found no reportable ground falls at Fletcher Mine in the five years prior to the
instant fall. (Tr. 255). Van Dorn confirmed this lack of prior roof falls, and argued that such
should be considered a mitigating factor. (Tr. 395).
There was testimony concerning a roof fall in the area in 1998 that led to a fatality. (Tr.
313-314, 632). The Secretary carries the burden of proof, and this Court believes that MSHA
investigators were somewhat derelict in not pursuing a more robust investigation into this area.
The operator revised its procedures after the 1998 fall, including providing that workplace
examinations would start out 60 feet from the face, using test holes, and having surveyors scaling
the area before work began. (Tr. 632). However, there is no indication that MSHA inspectors
focused on investigating the area in any additional manner.
The parties’ explanations for the actual force behind the ground fall that killed Mr.
Hoodenpyle ranged from the simplistic—gravity—to the speculative—dynamic load fulcrum
73

This Court does however adopt that as a general premise of ground support control, the
greater the number of resin bolts used and the tighter the spacing, the lesser the likelihood of a
roof fall.

40 FMSHRC Page 1213

effect. Exact causation need not be proved by the Secretary. However, the etiological mystery at
the heart of this accident impinges upon the issue of whether the Secretary has shown sufficient
particular facts surrounding the violations which indicated the existence of a reasonable
likelihood of occurrence of a roof fall.
Other Evidence
It is also noted that private counsel for the estate of deceased was present at hearing. In
considering the particular facts surrounding the violations the ALJ noted no evidence adduced
that the specific bolts and scaler involved in the accident had a design or manufacturing defect
which would have contributed to the likelihood of a hazardous ground fall. The ALJ does note
however that if the scaler boom or arm in question had been 15-20 feet longer Hoodenpyle’s
death may have been avoided.
In view of the foregoing the Secretary has failed to carry its burden of proving the second
prong of Mathies as set forth by the Commission in Newton and consequently neither of the
within violations are found to be S&S in nature.
Issue:

Did the Secretary’s Amendment of Citation No. 8680902 Prejudice Respondent?

On the day before hearing, on May 22, 2017, the Secretary filed a Motion to Amend
Citation No. 8680902 from a violation of 30 C.F.R. §48.7 to a violation of 30 C.F.R. §48.9. The
original cited training standard requires:
Miners assigned to new work tasks as mobile equipment operators, drilling
machine operators, haulage and conveyor systems operators, roof and ground
control machine operators, and those in blasting operations shall not perform new
work tasks in these categories until training prescribed in this paragraph and
paragraph (b) of this section has been completed. This training shall not be
required for miners who have been trained and who have demonstrated safe
operating procedures for such new work tasks within 12 months preceding
assignment. This training shall also not be required for miners who have
performed the new work tasks and who have demonstrated safe operating
procedures for such new work tasks within 12 months preceding assignment.
30 C.F.R. §48.7.
The amended standard requires:
Upon a miner's completion of each MSHA approved training program, the
operator shall record and certify on MSHA Form 5000-23 that the miner has
received the specified training. A copy of the training certificate shall be given to
the miner at the completion of the training. The training certificates for each
miner shall be available at the mine site for inspection by MSHA and for
examination by the miners, the miner's representative, and State inspection

40 FMSHRC Page 1214

agencies. When a miner leaves the operator's employ, the miner shall be entitled
to a copy of his training certificates.
30 C.F.R. §48.9.
The Secretary argues that its amendment to Citation No. 8680902 did not prejudice Doe
Run because the facts and circumstances that support the violation are identical under either
standard, and that no new defense or additional witnesses were required. It further argues that
Doe Run was permitted to cross examine Inspector Van Dorn at the hearing on any issue related
to the violation. The Secretary argues that its amendment to the Citation on the eve of trial was
not filed in bad faith or for the purpose of delay.
The Respondent argues that there was no excuse for the Secretary’s late modification of
the Citation, and that it will suffer recognizable prejudice as a result of the proposed
modification. Specifically, Respondent argues that its "preparation of witnesses and documents
would have been considerably different if the undersigned would have been informed of the
modification in advance of trial,” and provides specific examples of such. Resp. Post-Hearing
Brief, 64.
The Commission has held that a trial court judge “possesses considerable discretion in
resolving motions seeking leave to amend pleadings.” Cyprus Empire, 12 FMSHRC 911, 916
(May, 1990). Such amendments are to be “liberally granted,” unless the moving party has acted
in bad faith or for purposes of delay, or where the other party is prejudiced in preparing its
defenses. Wyoming Fuel Company. 14 FMSHRC 1282, 1289-90 (August, 1992 ); Brannon v. Panther
Mining. LLC, 31 FMSHRC 1277, 1279 (2009) (ALJ).

At hearing, the parties presented brief arguments for their respective positions regarding
the amendment. This Court provisionally granted the motion to amend in order to accept
evidence relating to the Citation. (Tr. 13). However, the Court made the provisional nature of the
grant explicit, and invited further briefing into the issue, stating, “So that although I’m granting
the motion to amend, I may ultimately find there is prejudice.” Id. Upon review of both parties’
briefs and arguments, this Court finds that the Secretary unduly delayed its amendment and that
as a result the Respondent suffered prejudice.
In the instant matter, Inspector Van Dorn stated in depositions on October 12, 2016, that
the Citation was issued under the wrong standard. Resp. Post-Hearing Brief, Ex-1. Furthermore,
in preparation for the hearing, the parties discussed the Citation, and the Secretary “explicitly
indicated to the [Respondent] that MSHA was electing to take the original allegations (i.e. that
no training was conducted) to trial.” Resp. Post-Hearing Brief, 64. Despite knowing that its
inspector believed the Citation was issued under the wrong standard over 7 months prior to the
hearing, the Secretary waited until the day before hearing to file its motion (and for the day of
hearing to present it to the Court). The only excuse that the Secretary has provided for its
decision to wait until hearing to amend the Citation is that the case had been passed along
through several solicitors. (Tr. 11-12).

40 FMSHRC Page 1215

The Respondent has stated that its preparation for trial was based on the Secretary’s
repeated assurances that the Citation would not be amended. Furthermore, the Respondent states
that as a result of the late modification,
Doe Run was prevented from gathering and presenting evidence of MSHA Form
5000-23s documenting new miner training, annual refresher training and task
training where workplace examinations had been trained on prior to the approval
of the October 2014 training plan. Such evidence is highly probative to the issue
of whether Doe Run was in violation of 30 C.F.R. §48.9 under the Secretary’s
interpretation that it be applied retroactively.
Resp. Post-Hearing Brief, 64. This Court is in substantial agreement with the Respondent that
the Secretary’s delay in amending the Citation was unreasonable, and that the request to amend
on the afternoon before hearing prejudiced the Respondent. Therefore, Citation No. 8680902 is
Vacated.
PENALTIES
The principles governing the authority of the Commission’s administrative law judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i)
of the Mine Act delegates to the Commission and its judges the authority to assess all civil
penalties provided in the Act. 30 U.S.C. 820(i). The Act delegates the duty of proposing
penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess
the penalty. 29 C.F.R. §2700.28. The Act requires that in assessing civil monetary penalties, the
Commission and its judges shall consider the six statutory penalty criteria:
[1] the operator’s history of previous violations, [2] the appropriateness of such
penalty to the size of the business of the operator charged, [3] whether the
operator was negligent, [4] the effect on the operator’s ability to continue in
business, [5] the gravity of the violation, and [6] the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation
30 U.S.C. § 820(i).
The Secretary has proposed penalties of $5,503.00 for Citation No. 8680899, $18,271.00
for Citation No. 8680900, and $745.00 for Citation No. 8680902. The Secretary has submitted
evidence that the operator has a significant history of previous violations, and that it was a large
operator. Furthermore, the assessed penalties would not affect the operator’s ability to continue
in business. Citation No. 8680899 was originally designated as “Moderate” negligence, and
Citation No. 8680900 was originally designated as “High” negligence. Both citations were
designated as “Low” negligence and Non-S&S, supra. The gravity of the citations was properly
designated as “Fatal” and “Occurred,” as a miner died as the result of the violations. The
Citations were modified 13 and 14 times, respectively, over eight months, which illustrated a
limited showing of good faith attempts at compliance. Accordingly, the penalty amount for

40 FMSHRC Page 1216

Citation No. 8680899 is modified to $3,100.00, the penalty amount for Citation No. 8680900 is
modified to $10,300.00, and Citation No. 8680902 is Vacated.
ORDER
The Respondent, Doe Run Company, is ORDERED to pay the Secretary of Labor the
sum of $13,400.00 within 30 days of this order. 74

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

Distribution:
Susan J. Willer, Esq., U.S. Dept. of Labor, Two Pershing Square Building, 2300 Main St., Suite
1020, Kansas City, MO 64108
Ryan D. Seelke, Esq., The Doe Run Co., Fletcher Mine/Mill, 230 County Rd. 849, Centerville,
MO 63633

74

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

40 FMSHRC Page 1217

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

July 23, 2018
CONTEST PROCEEDING

CUMBERLAND CONTURA, LLC,
Contestant,

Docket No. PENN 2018-50-R
Order No. 9078215; 09/28/2017

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

Mine ID: 36-05018
Mine: Cumberland Mine
DECISION AND ORDER

Appearances:

R. Henry Moore, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for
Contestant.
Jordana L. Greenwald, Esq., Office of the Solicitor, U.S. Department of
Labor, Philadelphia, Pennsylvania, for Respondent.

Before:
I.

Judge Lewis
STATEMENT OF THE CASE

This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et. seq. (2006) (“Mine Act” or “Act”). At issue is an imminent danger order issued under section
104(a) of the Act. On January 11, 2018, a hearing was held in Pittsburgh, PA. The parties
presented testimony and documentary evidence and filed post-hearing briefs.
II.

JOINT STIPULATIONS1
The parties have stipulated to the following facts:
1. Cumberland is an “operator” as defined in § 3(d) of the Federal Mine Safety and
Health Act of 1977, as amended (hereinafter “the Mine Act”), 30 U.S.C. §803(d), at
the mine at which the subject Order in this proceeding was issued.

1

The Joint Stipulations were submitted at hearing as Joint 1, which will hereinafter be
referred to as JX-1. The Secretary’s exhibits will be referred to as GX followed by its
alphabetical letter and Contestant’s exhibits will be referred to as CX followed by its number.

40 FMSHRC Page 1218

2. Operations of Cumberland mine are subject to the jurisdiction of the Mine Act.
3. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designated Administrative Law Judge pursuant to
Sections 105 and 113 of the Mine Act.
4. Andrew W. Gallagher, who is a Health Specialist for MSHA and whose signature
appears in Block 22 of the Order at issue in this proceeding, was acting in an official
capacity and as an authorized representative of the Secretary of Labor when the
subject Order was issued.
5. A true copy of the Order at issue in this proceeding was served on Cumberland as
required by the Act.
6. Cumberland Mine is owned and operated by Cumberland Contura, LLC.
III.

SUMMARY OF TESTIMONY

Anthony Gallagher
Anthony Gallagher had been working for MSHA since 2013, first as an inspector trainee
E0-1 inspector, and then for the last two years as a health specialist. Tr. 20-212. His job duties
included “running dust or running noise” on coal mine sections. Tr. 21. Prior to coming to
MSHA, he had worked as a coal miner for 6 years, possessing a miner’s certification.3 Tr. 22.
On September 28, 2017, Gallagher issued a dust citation and imminent danger order to
Cumberland Mine. Tr. 22. He had traveled to Cumberland on E0-1 inspections in the past. Tr.
23. While coming up 81 East Mains Track, going into the 68 headgate area, he observed an offtrack motor and some cap lamps. Tr. 24-26. After going with Contestant’s employees to find
blocking and cribbing materials, Gallagher returned on a mantrip with Bob Dalnoky (the mine’s
senior safety representative). Tr. 26-27, 137. Contestant’s employees started placing materials
under the motor “to start jacking it up and slewing it over.” Tr. 28. Gallagher then saw the cap
lamp of Will Christopher coming through the “least clearing side of the motor” as the motor was
being lifted off the ground with a jack walker.4 Tr. 28-30. The jack walker was attached to the
motor. Tr. 31.
2

Reference to the hearing transcript will be referred to as Tr., followed by the page
number(s).
3

Gallagher did not have any foreman’s or miner’s papers. Tr. 74. He had become an
authorized representative in the spring of 2015. Tr. 74-75. When he had worked at Rosebud
Mining, the transportation utilized was rubber-tired vehicles. Tr. 75. His past experience with
jacking up dollies involved free-standing jacks that were positioned under the dollies so that they
could be slewed over to be put back on the rail. Tr. 75.
4

A jack walker is essentially a hydraulic jack attached to an I-beam that will push down
on the mine floor and move the motor. Tr.30.

40 FMSHRC Page 1219

There was “a lot” of wind, making it difficult to hear conversation without the raising of
voices. Tr. 31. Gallagher flagged both Christopher and an individual in the kitchen operator’s
compartment of the 20-ton motor to stop everything, and ordered that the diesel motor be shut
down. Tr. 32. Gallagher did so because he “was scared” for Christopher’s life. Tr. 32. In his
experience, when blunt pieces of steel5 were being put together, they sometimes “unexpectedly
and very surprisingly” move in an unforeseen direction. Tr. 32.
Gallagher was approximately five or six feet from the diesel motor when Christopher
walked over. Tr. 33. See also GX A. The derailed motor was in the crosscut area. Tr. 35. There
was approximately 36” of space between the motor and rib when Christopher walked through.
Tr. 36. On the other side of the motor there was approximately 6-7 feet of space to the closest
rib. Tr. 37.
After stopping all progress, Gallagher pulled the two motor men, Christopher and
Dalnoky, to the outby end of the motor. Tr.38. He informed them that it was extremely unsafe
for somebody to walk through a pinch point while the motor was being lifted or re-railed. Tr. 38.
Gallagher also opined that there were “too many bosses,” that the re-railing was unorganized,
and that there should have been a plan prior to attempting to re-rail a piece of equipment. Tr. 38.
Respondent’s employees went back to work cribbing up the motor to slew it over, using
the jack walker. Tr. 38-39. As company representatives, including (Jeff) Everett, were walking
up to Gallagher’s right hand side, Gallagher heard a “big bang” when the jack walker had
“unexpectedly slipped or grabbed hold of something and slammed.” Tr. 39.
Gallagher explained to Everett that it was unsafe to have so many people around,
“barking orders,” while a piece of equipment was being moved. Tr. 39. At this point Gallagher
informed Dalnoky that he was issuing a 107(a) imminent danger order for Will Christopher
having walked through the pinch point between the motor and the rib. Tr. 40.
Dalnoky disagreed with Gallagher’s determination, asserting that re-railing equipment
was within Contestant’s expertise, and that it was not an unsafe act.6 Tr. 40.
Gallagher estimated that the time between when he first observed Christopher walk by
the motor and his issuance of a 107(a) imminent danger order was “under three minutes.” Tr. 41.
Christopher had reported that he did not know that the motor was going to be raised when he had
walked through. Tr. 42. Further, the individual in the operator’s compartment had not known that
Christopher was going to walk past the motor. Tr. 42; See also Tr. 50.

5

The “blunt pieces of steel” which Gallagher was referring to were the track, the jack
walker, the frame of the 20-ton diesel motor, the undercarriage, everything that was involved in
the situation. Tr.33.
6

Gallagher noted that Dalnoky was “pretty verbal” in his disagreement. Tr. 40.

40 FMSHRC Page 1220

Gallagher had also spoken with the outby mechanic who reported that a pair of jack
walkers had broken down the day before in the same intersection, approximately 20 feet from
where the motor was sitting. Tr. 43.
Gallagher recorded his notes prior to going underground, while underground, and
subsequently on the surface. Tr. 45; See also GX B. He had made a blunt drawing of the motor
and track according to his observations on the day of the incident. Tr. 47; GX B, p.7. Gallagher
had not specifically mentioned that there had been a bang in his notes. He did not think that the
bang had anything to do with the imminent danger order. Tr. 53.
On the way to terminate the rock dust citation Gallagher had a “man to man
conversation,” with Bob Dalnoky, involving some, “pretty aggressive yelling,” in the
intersection of the occurrence, ending with apologies and a handshake. Tr. 53. Dalnoky further
advised Gallagher that he would lose his job if an imminent danger order were to be issued. Tr.
53. However, this conversation was not mentioned in Gallagher’s notes. Tr. 57.
On the elevator ride to the surface Gallagher has spoken with Christopher. Christopher
had stated that he did not know that they were going to raise a piece of equipment when he
passed the motor. Tr. 56.
Gallagher also spoke with Frank Foster, a member of Contestant’s Safety Department,
who questioned whether there was any other way to deal with the controversy rather than an
imminent danger order. Tr. 58. Gallagher explained this was the tool he had in his toolbox for
such situations. Tr. 58. Gallagher also advised that he would be issuing an S&S Citation if there
was a safeguard existing for this situation. Otherwise, he would be writing a safeguard to stop
such instances from happening in the future.7 Tr. 59.
Gallagher was aware of other occasions when miners were injured in the process of rerailing diesel-powered equipment on similar rail systems.8 Tr. 68. Shortly before the incident at
issue, a miner had sustained a severe foot fracture while re-railing a piece of equipment. Tr. 68.
The father of a coworker of Gallagher’s had been killed in a re-railing accident. Tr. 69. Gallagher
reported that he had feared for Christopher’s life when Christopher had walked between the big
piece of equipment and a coal rib. Tr. 69. He had declined to give a safety talk in lieu of issuing
an imminent danger order because, in his experience, such an approach did not, “clear up the
situation.” Tr. 70.
Gallagher denied knowing of other inspectors who issued safeguards on the same day
that they had witnessed a particular condition. Tr. 71. He conceded that for two months, from
7

Gallagher explained that he could not simply issue a safeguard immediately upon
witnessing an unsafe act without following prescribed procedures. (T. 59-60). A safeguard was
eventually issued on 12/1/17. Tr. 62; See also GX D wherein it states: “This is a notice to
provide a safeguard preventing anyone from positioning themselves in a pinch point while rerailing track mounted equipment.”
8

See cross-examination regarding such incidents at Tr.76.

40 FMSHRC Page 1221

9/28/17 to 12/1/17, the alleged unsafe condition could have occurred again because no safeguard
had been issued. Tr. 73.
Gallagher did not know the specific facts regarding the accident involving an injury at
Enlow Fork Mine referred to in his earlier testimony. He did not know whether jack walkers
were being used. Tr. 76. He also did not know the specifics regarding the fatality at Loverridge
Mine that he referred to. Tr. 76. Nor had he looked into the specifics of the other derailment
injuries that he had testified about. Tr. 76. He testified that he had never re-railed a trackmounted vehicle. Tr. 77.
When Gallagher made his drawing from the inby end of the motor, (GX B, p.7) the motor
was still off the track. Tr. 77.
Gallagher acknowledged that Contestant’s employees whom he had heard, “barking
orders,” would have had to yell to be heard. Tr. 77.
Given the location where motorman Stevens was sitting in the kitchen of the motor,
which was on the inby end, Christopher would have had to walk right by the operator. Tr. 79.
Christopher would be been wearing a cap light and reflective clothing. Tr. 79. The motorman
would have “probably” observed Christopher walk by him. Tr. 80-81.
At the point Gallagher had issued his verbal imminent danger order, Christopher had
already walked by the motor and was out of danger. Tr. 81-82.
Gallagher estimated the distance between the motor and the rib to be approximately 36”.
Tr. 83. He never actually measured the distance (despite the motor having been shut down)9. Tr.
83. Further, he had not noticed whether any of the motor’s wheels were off track. Tr. 85-86. He
did not know how many times Contestant’s employees had to jack up the outby end, or back end
of the motor to get it back on track. Tr. 86. Gallagher agreed that in order to re-rail the motor, it
would be necessary to jack the motor up, place blocking underneath the jack, and then jack the
motor up again so it could be raised high enough to get the wheels up to the rail. Tr. 87. He
further agreed that Dalnoky had not perceived the events at issue to constitute a hazard. Tr. 88.
Gallagher himself had never driven any of the vehicles in the mine because he was an
inspector. Tr. 89. Nor had he ever re-railed any vehicles in the mine(s) because he was an
inspector. Tr. 89.
Gallagher observed the jack walker “abruptly” move but could not determine the
direction of the “jerk”, nor did he know the distance that the jack walker had moved. Tr. 90. The
loud bang that Gallagher heard while watching the re-railing process had “scared” him. He
relayed such to Dalnoky. Tr. 90-91.

9

As discussed infra the ALJ notes the discrepancy between inspector Gallagher’s
testimony and that of Dalnoky on this point, as well as Gallagher’s decision not to perform an
actual measurement of the interspace at issue.

40 FMSHRC Page 1222

Christopher did not advise him, as they were exiting the elevator, that Christopher had
announced to the motorman that he was going to pass the motor. Tr. 92.
Anthony Gallagher Redirect Examination
Gallagher was uncertain of the distance between the rib and motor on the outby end. Tr.
92. He did not recall hearing Dalnoky state that everything was static. Tr. 93.
Jeffrey Spooner
Spooner was a motorman at Cumberland Mine, working in this position for
approximately 4 years. Tr. 96-97. He had begun working for Contestant in June 2011 and had no
previous mining experience. Tr. 99. As a motorman, he essentially transported materials
throughout the mine and moved goods. Tr. 97.
He recalled the incident at issue and testified that he had been working with Shawn
Stevens on that day.10 Tr. 97-98. A guide rail had loosened causing the motor to come off track.
Tr. 98. All four of the locomotives wheels had come off track. Tr. 101. The left inby wheel was
located inside the rail. Tr. 101; See also GX A. The wheel on the other side would have been in
the apex between the three tracks, straight in the turn. Tr. 102. The outby wheels were basically
in the same location(s) inside the track rail. Tr. 102. Two were contained between the two track
rails over the actual rail system. The other two were “completely outside of it between the
straight rail and the turn rail.” Tr. 102.
Typically, when a motor goes off track, jack walkers are used to elevate the motor to slew
it over. Tr. 103. However, in the instant matter, because the wheels had ended up “much lower”11
below the top of the rail, blocking was also required. Tr. 103.
The motor would need to be elevated by the jack walker as high as possible with blocking
being put under the motor and the process repeated until the wheels could clear the rail. Tr. 103.
Initially, Spooner was at the site alone with Stevens. Tr. 104. When Dalnoky and
Gallagher arrived, he took their jeep to obtain blocking at a location approximately 600-800 feet
away. Tr. 104. Stevens remained in the motor with the lights on. Tr. 104. When Spooner
returned, he saw Gallagher walking towards the motor and heard the inspector yell, “stop.” Tr.
105.
Spooner did not believe that the area through which Christopher walked was unsafe. Tr.
106. There was “no way” that the motor could have moved over toward the rib because the
“wheels wouldn’t allow it to jump the rail.” Tr. 106. That was the reason blocking was needed.
Tr. 106. Spooner already on the same day had to jack up the motor 4 to 5 times. Tr. 107.

10

Spooner stated that Stevens had health issues (and was therefore not at the hearing).

11

Spooner estimated that the wheels were 12” to 14” below the rail. Tr.103.

40 FMSHRC Page 1223

The area was loud and noisy due to the airflow and revving up of the engine in the motor
for hydraulics to work. Tr. 108.
It was a typical event for a jack walker to come down and sometimes slew, going under
the I-beam of the rail, causing the “whole thing” to jump and make a loud noise. Tr. 109. It was
just the jack walker that moves; the motor does not move. Tr. 109. When Christopher walked
beside the motor, it was not moving. Tr. 109. Rather, it was just sitting there, idle. Tr. 109.
Typically, when Spooner or his fellow workers are around a motor, a foot is taken off the dead
man so that the motor cannot move and is inoperable. Tr. 109.
Spooner had seen no potential for the motor to have moved over into the walkway where
Christopher was walking. Tr. 110. Christopher would have had to be wearing a cap lamp,
reflective clothing, and blinking lights. Tr. 110.
Spooner agreed that you would not want “a bunch of people milling about,” during rerailing and would want only one-person giving orders. Tr. 111.
During the re-railing at issue, Stevens was communicating with Spooner and Dalnoky
was helping Spooner move the blocking. Tr. 111.
Spooner did not witness personally any movement of the jacks when Christopher walked
up alongside the motor. Tr. 112. Looking outby, Christopher would have been on the right side
of the motor, and both the front and back wheels were on the inside of the rail. Tr. 112. The
motor was sitting at an angle and could not have moved in such a way so as to move (sideways)
to where Christopher was walking. Tr. 112. Jack walkers drop approximately 12”-14” and slew
approximately 6”-8”. Tr. 113.
Jeffrey Spooner Cross Examination
Spooner was not facing the motor when he had heard Gallagher hollering. Tr. 115. He
was not certain whether Christopher had passed the motor entirely when Gallagher had yelled,
“stop”. Tr. 116. Further, he did not actually witness whether the motor was in motion in any
direction when Christopher passed through. Tr. 116. Christopher was certain the motor was not
in motion because if Christopher had walked up and alerted Stevens that he was walking by,
Stevens would have taken his foot off the dead man and stopped all activity. Tr. 117.
Spooner agreed that a miner should not walk by machinery that was being jacked, even if
it were safe to do so because one should not take a chance to go by moving equipment. Tr. 117.
Common sense also dictated such. Tr. 119.
William Christopher
Christopher had worked at Cumberland Mine since 2010. Tr. 122. He had previously
worked as a contractor at Bailey Mine since 2005. Tr. 122. His past mining jobs, including
shuttle car operator, outby utility, general inside laborer, and presently rock dust motorman. Tr.
122.

40 FMSHRC Page 1224

As to the incident at issue, Christopher observed Spooner’s motor off track at the corner
of the 81 East Mains with its lights on. Tr. 123. Coming from an inby direction, Christopher
walked down to the motor. Tr. 124. The motor could not be raised high enough with the blocking
material at the scene so Christopher told Stevens he wanted to get more blocking materials from
Spooner who had just returned to the site. Tr. 124. At that point Christopher walked past Stevens,
down along the right side of the motor to get blocking materials. Tr. 124. Christopher
remembered informing Stevens, “hold that, I want to get cribs from Spooner” before walking
past the motor. Tr. 125. Coming outby, the right hand wheel was between the two rails. Tr. 126.
The left hand wheel would have been in the middle of the other row because “you had to switch
the apex or whatever.” Tr. 126. Christopher thought it was safe to walk by the motor because the
motor was off-track and he had alerted Stevens “to hold that.” Tr. 127.
Christopher did not notice Gallagher flagging him as he walked by. While not
remembering Gallagher’s exact words, Christopher did however recollect that Gallagher had said
something concerning the fact that the motor could have slid over. Tr. 127. Christopher did not
mention if the jack walker had slipped off or had made a sudden movement. Tr. 129.
Subsequently, during a ride in the elevator, Christopher told Gallagher that he had not noticed
whether the motor was being lifted when he walked by. Tr. 130.
William Christopher Cross Examination
Christopher had told Stevens to stop because it was common practice in the mine that
before passing any piece of machinery to make sure the operator knows you are going through.
Tr. 131. It could be unsafe to move the motor while someone was walking by. Tr. 132.
Christopher reported that he could not be sure whether the motor was being raised as he
passed through. Tr. 133. Nor was he sure, whether there were any sudden movements as the
jacking process proceeded. Tr. 135.
Robert Dalnoky
At the time of hearing, Robert Dalnoky had been the senior safety representative at
Cumberland Mine for two years. Tr. 137. His duties included escorting inspectors, performing
training, and ensuring employees worked in a safe fashion. Tr. 137. He had previously worked as
a shift foreman at the Emerald Mine. Tr. 138. Identical rail haulage systems were utilized at both
mines. Tr. 138. Some of Emerald Mine’s motors had in fact been transferred to Cumberland
Mine after Emerald’s closing.12
Dalnoky had Pennsylvania certification papers for mine foreman and assistant mine
foreman. Tr. 141. He also had a two-year mining technical degree from Penn State University.
Tr. 141.

12

Prior to working at Emerald Mine, Dalnoky had worked for Consol and Gateway Mine
as a section foreman and part-time shift foreman. At Consol’s Westland Mine a rail coal haulage
system was used with cars being pulled by 50-ton motors. Tr.139-141.

40 FMSHRC Page 1225

As to the 9/28/2017 incident in question, Dalnoky remembered traveling with Gallagher
to the 68 Head Gate Section. Tr. 142. As they rounded a curve, they came upon a derailed motor
off track. Tr. 142. Spooner flagged them to come forward as he needed some wood. Returning
from 69 Section, Dalnoky saw Christopher talking to the operator of the motor as he was
approaching, Tr. 143. As Christopher passed the motor, Dalnoky saw nothing-unsafe happening.
Tr. 143. The motor was off all four wheels. The outby jack walker was up but the motor was not
moving. Tr. 143.
Dalnoky did not see the jack walker raise the motor any further as Christopher walked by.
Tr. 144. Even if the motor were being raised, there would have been no danger because the
wheels were in between the track(s) and the motor could not have slewed over. Tr. 145-146.
Because of the blowing air, Dalnoky could not hear the words exchanged between Stevens and
Christopher. Tr. 146.
After Christopher had walked past the motor, it began to be jacked up. The tip of the jack
walker was sitting on the flange of the rail and slipped, creating a bang. Tr. 147. At that point,
Gallagher raised his hands, yelling, “stop.” Tr. 146.When Dalnoky asked him “what is the
matter,” Gallagher replied, “you scared me.” Tr. 147.
There followed an exchange between Gallagher and Dalnoky in which Gallagher asserted
that Christopher could have been injured in passing by the motor and Dalnoky asserted that it
was not possible for such. Tr. 148.
After other of Contestant’s supervisory personnel arrived at the scene, Gallagher
announced that he was issuing an imminent danger 107(a) order because “that guy walked along
the rib there,” and “there is just too many people around here.” Tr. 149.
Dalnoky disagreed and became, “a little excited,” at which point Jeffrey Everett grabbed
him by the shoulder. Dalnoky then walked away. Tr. 150.
Dalnoky then helped to get the motor on the track, repairing the guide rail whose bolt had
broken with a new bolt. Tr. 150.
Gallagher advised Dalnoky that an imminent danger order was “the only tool in his tool
box” and could not be convinced from issuing such. Tr. 151.
A map of the site was created to reflect where the motor was at the time the imminent
danger order was issued and where Christopher had walked past the motor. Tr. 152-154; CX 1A.
Dalnoky observed Gallagher taking measurements of the distance between the rib and motor
where Christopher walked which he announced to be three feet. Tr. 154-155.
Subsequently, while in a jeep with Gallagher, Dalnoky apologized for “going off.” Tr.
155. Dalnoky understood how Gallagher, due to his inexperience in rail haulage mines, may
have been frightened by the re-railing scene that he witnessed. Tr. 156. However, he still
disagreed that Christopher’s actions posed an imminent danger. Tr. 156. Dalnoky denied ever
telling Gallagher that he might be fired if an imminent danger order were issued. Tr. 156.

40 FMSHRC Page 1226

When the jack walker skipped off the flange, the motor did not move. Tr. 157. Dalnoky
had written notes immediately after the incident to keep matters fresh in his mind. Tr. 158; CX 2.
He corrected one of the observations contained in the notes to reflect that Christopher had
actually walked down the “wide” side of the motor rather than the tight side. Tr. 158; See also
CX 1A.
Normally, it takes about approximately four times to jack a motor back up onto the rail.
In his career, Dalnoky had re-railed a countless number of motors, lowboys, and equipment. Tr.
159.
Jack walkers (attached to motors) are the “safest thing” to have: there was no chance of
the bar hitting you or the jack flying out. Tr. 160.
Dalnoky characterized the re-railing at issue as a “textbook” operation, stating that
Spooner was the only individual giving directions, and that it was a routine procedure. Tr. 161.
Robert Dalnoky Cross Examination
Dalnoky could not hear the actual exchange between Christopher and the motorman
during Christopher’s walk-by. Tr. 163, 165. He would not have heard if Christopher were giving
directions to Mr. Stevens. Tr. 166.
Dalnoky disagreed that Christopher was in a “pinch zone” at the time of the incident. Tr.
171. The motor was still off on all four wheels when the jack walker was up. Tr. 173. He further
asserted that it was only after Christopher had walked through that the jack walker slipped off
the rail and that Gallagher “went nuts.” Tr. 175. Dalnoky disagreed with the wording of the
Respondent’s written order because the jack walker was not being used when Christopher
walked through. Tr. 185.
Jeffrey Everett
The mine superintendent, Jeffrey Everett, testified at the hearing. He had worked 6 years
as such, previously working for two years as superintendent of Emerald Prep Plant.13 Tr. 192.
On the date in question, Everett travelled to the scene with various corporate personnel
and heard yelling. Tr. 194. He noticed Gallagher yelling and observed Spooner and Dalnoky
with cribbing material in their hands. Tr. 155. He asked Gallagher what was going on and
Gallagher replied that he feared somebody was going to get hurt because more than one person
was giving directions. Tr. 195. At some point Everett learned that a 107(a) order was being
issued. Tr. 196. Everett assumed the order was being issued due to him and other corporate
personnel passing along the tight side of the motor. Tr. 196. He may have put his hand on
Dalnoky’s shoulder. Tr. 198.

13

Everett’s former jobs included: maintenance superintendent since 1999 and union
maintenance man for 22 years. Tr.192.

40 FMSHRC Page 1227

Everett explained the benefits of using jack walkers, which allowed controlled movement
with no risk of falling over. Tr. 200-202. The maximum horizontal movement or side-by-side
movement was 9 inches. Tr. 201-202.
Jeffrey Everett Cross Examination
Everett was not present at the time that Christopher actually walked past the motor and
would not know whether there was any movement of the motor during such time. Tr. 203.
IV.

ISSUE PRESENTED

Did the Secretary carry his burden of proving by the preponderance of the evidence that
the Section 107(a) imminent danger order in question was properly issued?
V.

LAW AND REGULATIONS
Section 107(a), 30 U.S.C. § 817(a) in pertinent part, provides:
If, upon any inspection or investigation of a coal or other mine which is subject to
this [Act], an authorized representative of the Secretary finds that an imminent
danger exists, such representative shall determine the extent of the area of such
mine throughout which the danger exists, and issue an Order requiring the
operator of such mine to cause all persons, except those referred to in section
[104(c)], to be withdrawn from, and to be prohibited from entering, such area
until an authorized representative of the Secretary determines that such imminent
danger and the conditions or practices which cause such imminent danger no
longer exist. (Emphasis supplied)

Section 3(j) of the Act, 30 U.S.C. §802(j) defines an “imminent danger” as “the existence
of any condition or practice in a coal or other mine which could reasonably be expected to cause
death or serious physical harm before such condition or practice can be abated.”
VI.

CONTENTIONS OF THE PARTIES

The Secretary contends that, in the within matter, MSHA’s representative properly
exercised his discretion in issuing a 107(a) order. Inspector Gallagher came upon a scene in
which a 20-ton locomotive was derailed. He heard “too many bosses” yelling orders. (TR. 38,
78, 107, 111). He observed a miner, Christopher, walking through a narrow interspace between
the derailed locomotive and coal rib, and concurrently heard a loud bang and perceived
machinery movement. (TR. 28-30, 38-40). Fearful for the miner’s safety, Gallagher, within
minutes, concluded that an imminent danger order was warranted.
Inter alia, Contestant maintains that, during the time period when Christopher had passed
the derailed motor, it was not possible for the motor to have moved any distance horizontally so
as to have endangered the miner. Any reasonable investigation would have revealed such.

40 FMSHRC Page 1228

VII.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

It is the duty of the Secretary to establish by a preponderance of the evidence that an
imminent danger order is properly issued. This question turns on whether the conditions or
practice observed by the inspector could reasonably be expected to cause death or serious bodily
injury before the practice could be eliminated. Wyoming Fuel Co., 14 FMSHRC 128, 129 (Aug
1992).
An inspector’s issuance of a Section 107(a) order is reviewed under an “abuse of
discretion” standard. Island Creek Coal Co., 15 FMSHRC 339, 345-346 (Mar. 1993). An
imminent danger order will be upheld if the Secretary proves by a preponderance of the evidence
that the inspector concluded, based upon information that was known or reasonably available to
him at the time the order was issued, that an imminent danger existed. Id. at 346.
However, in both Island Creek, 15 FMSHRC at 346, and Knife River Construction, 38
FMSHRC, 289 at 1291 (June 2016), the Commission emphasized that the Judge is not required
to accept an inspector’s subjective perception that an imminent danger existed but rather must
evaluate whether it was objectively reasonable for an inspector to conclude that an imminent
danger existed.
This Court finds that Gallagher had an honest belief that possible movement of the
derailed motor during the time Christopher passed such would have posed an imminent danger.
Gallagher’s descriptions of coming upon the derailment scene and hearing men shouting and
hearing loud noise(s), of observing Christopher entering a narrow space between the motor and
rib, of perceiving possible movement of equipment all support the bona fide and good nature of
Gallagher’s subjective belief.
However considering the specific factual circumstances of the within controversy, this
Court is not persuaded that the inspector’s belief was a reasonable one. As set forth supra in the
summary of testimony, Contestant’s witnesses consistently maintained that it was not physically
possible for the locomotive to have slewed over so as to have struck Christopher at the moment
that Christopher had passed through the rib/locomotive inter-space. (See inter alia Spooner
testimony at Tr. 106, 112 that the locomotive wheels were located inside the tracks and that there
was, “No way… No matter what happened,” that the wheels could jump the rail; Christopher
testimony at Tr. 127; Dalnoky testimony at Tr. 147-148; Everett testimony that jack walkers
were spaced at all four corners of the machine and at that time there was no risk of the machine,
“automatically just falling over” at Tr. 202).
In his investigation, which lasted less than three minutes (TR. 40-41), Gallagher had
failed to take such steps as measuring the actual interspace distance14 and of noting where the
derailed motor’s wheels were actually located vis-à-vis the tracks. Tr. 85-86. As noted intra,
14

This Court specifically accepts Gallagher’s testimony that he had not actually
measured the distance but estimated such, and rejects Dalnoky’s testimony on this point. This
Court also rejects Gallagher’s contention that taking measurements after the ordered work
stoppage would have presented a hazard.

40 FMSHRC Page 1229

brief interviews with available witnesses would have revealed the physical impossibility of
untoward motor movement.
In Knife River Construction, objective observable facts supported the inspector’s
conclusion that an imminent danger order should have been issued. In Knife River, the inspector
stopped what he believed to be an unsafe scraper and asked for a demonstration that the vehicle
was capable of stopping and holding on a grade while it was carrying a load before issuing an
imminent danger order. 38 FMSHRC at 1290. The scraper failed to do so, the inspector observed
it failing to come to a stop on a grade and at the bottom of such. Id. The inspector was aware that
an embankment was under construction and feared that the scraper would continue to travel
toward the waste dump, an area of the mine with multiple grades and depart the embankment. Id.
In Knife River there was clear objective evidence that the scraper could not hold its land
on a grade and/or come to a safe stop. In the instant matter there was no such clear objective
evidence presented by the Secretary that the motor in question, given its location off-track, could
have moved horizontally during the jacking up process so as to have endangered Christopher.
Of course, as discussed within, an inspector’s reasonable belief in the existence of an
imminent danger may be validated -- despite the lack of actual objective evidence supporting his
determination. Hazardous situations often arise when an inspector must necessarily rely solely
upon his own experience, personal perceptions, and instincts in determining the need for an
imminent danger order. However, to avoid a finding of arbitrariness, an inspector must timely
and prudently investigate all available evidence regarding a perceived danger before issuing his
order. This Court finds that Inspector Gallagher failed to fulfill this duty of sensible investigation
and thus abused his discretion.
At hearing and in their briefs all parties essentially concurred that it was unwise and
unsafe for a miner to pass through a squeeze point while machinery is in motion. Indeed,
Contestant has not challenged the notice of Safeguard issued in this matter that prohibits anyone
from positioning themselves in a pinch point while re-railing track-mounted equipment.
This Court suspects that the combination of Dalnoky’s “know it all attitude” and verbal
aggression toward the less experienced Gallagher had played a role in Gallagher’s failure to have
properly investigated whether the derailed motor in question could have in fact moved in such a
manner so as to have injured Christopher.15
This Court finds that, given this case’s particular circumstances, a prudent inspector,
possessing a qualified inspector’s education and experience, would not have concluded after a
reasonable investigation that an imminent danger had actually existed. In reaching this
determination, this Court has made various credibility determinations, including giving credit to

15

Dalnoky displayed the same off-putting hubris at hearing but did offer persuasive
testimony that the derailed motor at the moment Christopher passed had not posed an actual
danger to the miner.

40 FMSHRC Page 1230

Contestant’s witnesses’ consistent assertions that it had not been physically possible for the
derailed motor to have moved horizontally or sideways during the time period in question.16
This Court found Gallagher to be an honest individual. However, this Court concludes
that Gallagher’s inexperience with the re-railing process and machinery at issue, coupled with his
initial misapprehension at viewing what he believed a chaotic and dangerous re-railing scene, led
him to an unreasonable determination based upon inadequate investigation.
Considering also that any imminent danger as to Christopher had already passed once
Christopher had walked by the locomotive, this Court finds that Gallagher had abused his
discretion in issuing the within 107(a) order.
In essence this case scenario raises the following issue. Considering the totality of the
circumstances, including any facts peculiar to the mining industry and including any information
known or readily available, would a prudent inspector reasonably conclude that an imminent
danger in fact existed? This Court is not persuaded that, in investigating the site of the derailment
and in interviewing parties at the scene, a reasonably prudent inspector would have concluded
that an imminent danger was posed.
This Court emphasizes that an inspector is not required—in garnering all available
information—to conduct an unduly prolonged investigation or engage in a lengthy complex
analysis of risk. But he must reasonably inspect the imminent danger scene at issue, question
available witnesses, and make straightforward assessments of whether the condition or practice
at issue in fact can reasonably be expected to cause death or serious physical harm. Given the
total circumstances, Gallagher’s investigation was not sufficient. An example of his investigatory
insufficiency was Gallagher’s failure to note where the motor’s wheels rested— inside or outside
the tracks—after the derailment.
The Court also emphasizes that the within holding is based upon specific credibility
assessments and case specific factual findings. This is a narrow case-specific holding and it in no
way intended to abrogate the general rule that inspectors may reasonably believe an imminent
danger exists even if no mandatory safety standard was actually being violated. See Utah Power
and Light Co., 13 FMSHRC 1617, at 1622 (Oct. 1991).
In finding that Gallagher’s belief that an imminent danger existed was objectively
unreasonable, this Court is not holding that inspectors may only issue 107(a) orders when there is

16

This Court is unable to find that all of the Contestant’s witnesses perjured themselves
on this point. This Court does, however, accept that Dalnoky was incorrect, possibly because of
faulty recollection, in his assertions that Gallagher had actually measured the interspace at issue.
This Court declines to apply a “falsus in uno falsus in omnibus” assessment as to Dalnoky’s
remaining testimony, which was found to be credible in light of such factors as Dalnoky’s
lengthy past experience in the re-railing process at issue.

40 FMSHRC Page 1231

“objective, ascertainable, evidence”17 of looming danger. Nor does this Court suggest that the
Secretary may only prove the existence of an imminent danger by introducing physical evidence,
disinterested corroborative testimony and supporting expert testimony. Such evidence may not
be readily obtainable in imminent danger situations where the unsafe condition can arise
suddenly and in a remote section of the mine, where the inspector is alone, and where physical
evidence is elusive. Rather, this Court merely holds that, consistent with the Mine Act’s purpose
and legislative history and consistent with Commission case law, an issuing inspector’s honest
perceptions must be reasonable ones under the circumstances; and that Gallagher’s
determination, albeit in good faith, was not a reasonable one due to his failure to garner and
consider all available evidence.18
A preponderance of the evidence establishes that it would not have been possible for the
derailed motor to have struck Christopher as he passed through the interspace at issue. This could
have been readily ascertained upon a reasonable survey of the site and upon reasonable inquiry
of available witnesses. Neither of which would have required a prolonged safari in time and
space.
This Court finds that the inspector abused his discretion and acted arbitrarily and
capriciously in issuing the subject order. The 107(a) Order is hereby Vacated.
ORDER
It is hereby ORDERED that 107(a) Order No. 9078215 is VACATED. Having found
that the order is invalid, this case is DISMISSED.
/s/ John Kent Lewis
John Kent Lewis
Administrative Law Judge

17

See Commission’s discussion of and rejection of stringent “objective, ascertainable
evidence” test in validating reasonable belief in Secretary of Labor on behalf of Robinette v.
United Castle Coal Co, 3 FMSHRC 809-812 (April 1981).
18

The proper test for assessing the subjective/objective components of a miner’s work
refusal in discrimination cases is essentially similar to the test applied herein to an inspector’s
107(a) subjective/objective determination. See again Robinette at 808-812 (April 1981) for an
excellent in depth analysis of such.

40 FMSHRC Page 1232

Distribution:
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1500, 401 Liberty
Avenue, Pittsburgh, PA 15222
Jordana L. Greenwald, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630E, The
Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106-3306

40 FMSHRC Page 1233

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

July 30, 2018
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEVA 2015-0509
A.C. No. 46-01968-374332
Docket No. WEVA 2015-0632
A.C. No. 46-01968-377533

v.
THE MONONGALIA COUNTY COAL
COMPANY, successor to
CONSOLIDATION COAL COMPANY,
Respondent

Mine: Monongalia County Mine (formerly
Blacksville No. 2)

DECISION
Appearances:

John Nocito, Esq., Helga Spencer, Esq., U.S. Department of Labor, Office
of the Solicitor, Philadelphia, Pennsylvania for Petitioner;
Jason Hardin, Esq., Artemis Vamianakis, Esq., Fabian VanCott, Salt Lake
City, Utah for Respondent.

Before:

Judge Feldman

The captioned civil penalty proceedings are before me based upon Petitions for
Assessment of Civil Penalty filed by the Secretary of Labor (“the Secretary”) pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977, as amended by the Mine
Improvement and New Emergency Response Act of 2006 (“Act,” “Mine Act,” or “New Miner
Act”), 30 U.S.C. § 815(d), against the Respondent, Monongalia County Coal Company
(“Monongalia”).1 The hearing in these matters was held on March 7, 2017, through
March 9, 2017, in Morgantown, West Virginia.2 The parties’ post-hearing briefs have been
considered in the disposition of these matters.

1

Monongalia County Coal Company does not dispute that it is a proper party based on its
role as successor in interest in Consolidation Coal Company. Resp’t Post-Hr’g Br. at 1-2. For
purposes of this decision, the Respondent shall be referred to as Monongalia, and the mine site
shall be referred to as the Monongalia County Mine. Id at n.1.
2

The issuance of this decision has been delayed due to a medical leave of absence.

40 FMSHRC Page 1234

At issue in WEVA 2015-0632 is 104(d)(2) Order No. 8059209, which alleges a violation
of the mandatory safety standard in section 75.400 as a result of impermissible combustible coal
accumulations along the 5 West No. 1 belt.3 Resp’t Ex. 1. The Secretary seeks to impose an
enhanced civil penalty of $121,300.00 under the “repeated” flagrant provisions of section
110(b)(2) of the New Miner Act. This statutory provision provides:
Violations . . . that are deemed to be flagrant may be assessed a civil penalty of
not more than $220,000. For purposes of the preceding sentence, the term
“flagrant” with respect to a violation means a reckless or repeated failure to make
reasonable efforts to eliminate a known violation of a mandatory health or safety
standard that substantially and proximately caused, or reasonably could have been
expected to cause, death or serious bodily injury.
30 U.S.C. § 820(b)(2).
In American Coal Company, the Commission crafted two interpretations of the
“repeated” language in section 110(b)(2), one “narrow” and one “broad.” American Coal Co., 38
FMSHRC 2062 (Aug. 2016). Under the “narrow” interpretation, a violation can be designated as
flagrant if the duration of the violation, without regard to a history of violations, is sufficient to
warrant a “repeated” designation. Id. at 2065. Thus, the Commission’s “narrow” interpretation of
the flagrant provisions of the Act concerns a discrete ongoing violation. Id. In contrast, the
Commission articulated that its “broad” approach involves a recurrent-type violation analysis,
i.e., analysis of several discrete yet similar violations. Id. This approach allows for a “repeated”
flagrant violation based on a relevant history of similar violations.
Monongalia has stipulated to the fact of the violation of section 75.400 and to the
significant and substantial (“S&S”) nature of the violation.4 Resp’t Post-Hr’g Br. at 2 n.3.
However, Monongalia challenges that the subject violation was attributable to an unwarrantable
failure, and that the violation constitutes a “repeated” flagrant violation. Resp’t Post-Hr’g Br. at
3, 39. The Secretary asserts that the accumulations violation cited in Order No. 8059209 can be
designated as “repeated” based on either the Commission’s “broad” or “narrow” interpretation.
Sec’y Post-Hr’g Br. at 39, 49.

3

Section 75.400 provides:

Coal dust, including float coal dust deposited on rock-dusted surfaces, and other
combustible materials, shall be cleaned up and not be permitted to accumulate in
active workings, or on diesel-powered and electrical equipment therein.
30 C.F.R. § 75.400.
4

As a general matter, a violation is properly designated as S&S if there is a reasonable
likelihood that the hazard against which the mandatory safety standard is directed will result in
an occurrence that is reasonably likely to cause injury of a reasonably serious nature. Newtown
Energy, Inc., 38 FMSHRC 2033, 2037-38 (Aug. 2016).

40 FMSHRC Page 1235

Also before me is 104(d)(2) Order No. 8059212 in Docket No. WEVA 2015-0509 that
alleges a violation of section 75.360(a)(1) of the Secretary’s regulations for a failure to conduct
an adequate preshift examination of the 5 West No. 1 belt during the preceding midnight shift for
the day shift of July 30, 2014.5 The Secretary proposes a civil penalty of $40,300.00 for Order
No. 8059212. Resp’t Ex. at 6. Monongalia has not challenged the fact of the violation or the S&S
designation. Resp’t Post-Hr’g Br. at 58-62. However, Monongalia disputes, in essence, that the
cited inadequate preshift examination is attributable to an unwarrantable failure. Id.
I. Procedural History
The Secretary has identified three non-flagrant predicate 104(d) orders, contained in
Docket Nos. WEVA 2015-74, WEVA 2015-425, and WEVA 2015-473, in support of his
flagrant designation in Order No. 8059209 under the “broad” approach. Given the Secretary's
asserted relevance of the alleged predicates, these predicate dockets were consolidated with the
captioned dockets and stayed on May 12, 2016, pending final disposition of Oak Grove Res.,
LLC, 38 FMSHRC 957 (May 2016) (ALJ). Oak Grove addressed the evidentiary requirements
for a “repeated” flagrant designation with respect to an alleged violation of section 75.400. After
the 30-day appeal period for the May 3, 2016, Oak Grove decision had expired, the predicate
dockets in WEVA 2015-74, WEVA 2015-425, and WEVA 2015-473 were severed on June 14,
2016. Consolidation Coal Co., 38 FMSHRC 1573 (June 2016) (ALJ).6
Oak Grove recognized that the Commission had held “that past [relevant] violative
conduct may be considered in determining whether a condition can be cited as a ‘repeated’
flagrant violation.” Oak Grove, 38 FMSHRC at 964, n.6 (citing Wolf Run Mining Co., 35
FMSHRC 536, 541 (Mar. 2013)). However, Oak Grove held that a violative condition that does
not otherwise meet the statutory definition of flagrant cannot be elevated to flagrant status simply
based on a history of violations. Id. 38 FMSHRC at 960-61. Consequently, in an interlocutory
5

Section 75.360(a)(1) states, in pertinent part:

[A] certified person designated by the operator must make a preshift examination
within 3 hours preceding the beginning of any 8–hour interval during which any
person is scheduled to work or travel underground. No person other than certified
examiners may enter or remain in any underground area unless a preshift
examination has been completed for the established 8–hour interval. The operator
must establish 8–hour intervals of time subject to the required preshift
examinations.
30 C.F.R. § 75.360(a)(1).
6

The transcript for the three-day hearing consists of three volumes, each volume
beginning at page one. Transcript references shall be cited by volume followed by page number.
At trial, Monongalia moved to replace Consolidation Coal Company as its successor in interest.
Tr. I 31-33. The Secretary did not oppose Monongalia’s motion. Id. at 33. Citations to
Consolidation Coal Co. are for pre- trial orders issued prior to Monongalia’s substitution as the
successor in interest.

40 FMSHRC Page 1236

order, the flagrant designation in Oak Grove was deleted based on the Secretary’s failure to
demonstrate the subject accumulations could reasonably have been expected to proximately
cause death or serious bodily injury. Oak Grove Res., 37 FMSHRC 1311, 1321 (June 2015)
(ALJ). The Secretary did not appeal the interlocutory order.
Simply put, Oak Grove held that, while a history of violations may be a relevant
consideration in assessing a civil penalty, predicate violations are not dispositive of whether an
alleged flagrant violation is properly designated as “repeated.” Oak Grove Res., 38 FMSHRC at
960-61. The ALJ holding in Oak Grove was rejected in the American Coal remand, in which the
Commission concluded that a history of similar recurring violations can satisfy the “repeated”
element for a flagrant violation. 38 FMSHRC at 2065. However, the Commission did not specify
the exact role played by a violation history in a “broad” “repeated” flagrant analysis.
Consequently, on remand the Commission directed the ALJ to fashion his own interpretation of
section 110(b)(2), which permits the Secretary to establish a “repeated” flagrant violation “by
taking the operator’s history of previous accumulations violations into account.” Id. at 2082.
As the significance of a relevant violation history remained unclear following American
Coal, the parties were advised that the March 7, 2017, hearing in these matters would be limited
to the Commission’s “narrow” analysis. Consolidation Coal Co., 39 FMSHRC 423, 425 (Feb.
22, 2017) (ALJ). The parties were invited to address, in their post-hearing briefs, whether
Monongalia’s two-year history of 147 section 75.400 violations is sufficient to support a
“repeated” flagrant designation under the “broad” approach. Id. The parties have addressed this
issue. Sec’y Post-Hr’g Br. at 46; Resp’t Post-Hr’g Br. at 37.
II. Stipulations
At trial the parties agreed on the following stipulations:7
1. Monongalia is an “operator,” as defined by § 3(d) of the Federal Mine Safety and Health Act
of 1977, as amended, 30 U.S.C. § 803(d), of the coal mine at which the Orders at issue in this
proceeding were issued.
2. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health Review
Commission and its designated Administrative Law Judge pursuant to sections 105 and 113 of
the Mine Act.
3. True copies of the Orders at issue in this proceeding were served on Monongalia as required
by the Mine Act.
4. The Orders contained in Exhibit “A” attached to the Secretary’s Petition in the subject dockets
are authentic copies of the Orders at issue in this proceeding.
5. The imposition of the proposed penalties will not affect Monongalia’s ability to continue in
business.
7

Stipulations 1-7 are set forth at Tr. I 30-31. Stipulations 8-10 are set forth at Tr. II 12021, 228-29, 233.

40 FMSHRC Page 1237

6. The Mine Operator engaged in mining operations in the United States and its mining affects
interstate commerce.
7. The Blacksville No. 2 Mine now operates as The Monongalia County Mine.
8. The conditions described in Order No. 8059209 constitute a violation of 30 C.F.R. § 75.400,
and the violation was S&S and reasonably likely to result in an injury or illness affecting one
miner.
9. The conditions described in Order No. 8059212 constitute a violation of 30 C.F.R.
§ 75.360(a)(1).
10. The conditions described in Order No. 8059212 were S&S and reasonably likely to result in
an injury or illness affecting one miner.
III. Order No. 8059209
Findings of Fact
The Monongalia County Mine is a large underground coal mine located in the Pittsburgh
coal seam. Tr. I 67. MSHA records reflect that, as of July 30, 2014, the date of the subject mine
inspection, more than 3 million tons of coal had been extracted from the Monongalia Mine.
Sec’y Pet. for Assessment of Civil Penalties, Docket Nos. WEVA 2015-0509 and WEVA 20150632, Ex. A.
At all times relevant to these proceedings, Monongalia was operating four mechanized
mining units (“MMU”): two for the main section, one in the development section, and one for
the longwall section. Tr. I 67, 151-52; Resp’t Ex. 19. Mine operations were performed during
three daily production shifts. Tr. I 68. The day shift was conducted from 8:00 a.m. through 4:00
p.m.; the afternoon shift was conducted from 4:00 p.m. through 12:00 a.m.; and the midnight
shift was conducted from 12:00 a.m. to 8:00 a.m. Id. at 69.
There are approximately 12-and-a-half miles of belt lines in the Monongalia County
Mine. Id. at 158. Coal production from the 20W Headgate and 13W Longwall MMUs was
carried outby from the 5 North and 5 South belts toward the 5 North/5 South belt transfer point,
where the coal was transferred onto the 5 West No. 2 belt. Id. at 163. The 5 West No. 2 conveyor
belt travels outby from the 5 North/5 South belt transfer point to the 5 West No. 2 belt transfer
point located at the 59 block, where it dumps onto the 5 West No. 1 belt, the site of the subject
accumulations. Id. at 163-4. The 5 West No. 1 belt is approximately 75,000 feet long. Id. at 174.
The 5 West No. 1 belt transfers coal onto the 6 North belt at the 5 West No. 1 transfer located at
the 1 block. Id. at 91, 164; Resp’t Exs. 19, 20; Sec’y Ex. 45 (denoted in blue).

40 FMSHRC Page 1238

The Monongalia County Mine is classified as a gassy mine in that it liberates between six
and seven million cubic feet of methane in a 24 hour period. Tr. I 69-70. As such, the mine is
subject to a five-day spot inspection in accordance with section 103(i) of the Act. Id. at 70; 30
U.S.C § 103(i). On July 30, 2014, MSHA Inspector Tyler Peddicord (“Peddicord”) arrived at the
Monongalia Mine at approximately 7:30 a.m. to conduct an E02 methane spot inspection and a
regular E01 inspection at the 13W Longwall section. Tr. I 70-71. Prior to traveling underground,
Peddicord reviewed the preshift, on-shift, and electrical examination records for the 13W
Headgate, the area of the mine he planned to inspect as part of his E01 inspection. Id. at 71. After
reviewing the examination book, Peddicord met with miners’ representative Chad Newbraugh
and mine representative Doug Moyer to discuss his planned inspection for the day. Id. at 72.
Peddicord entered the mine accompanied by Newbraugh and Moyer to perform an E02
section 103(i) methane spot inspection in the 13 W Headgate section. Id. at 71, 74, 147; Tr. II
27-28. They traveled by mantrip. Tr. I 73. However, due to obstructions present at the entry of
the 5 West track, the inspection party was not immediately able to advance to the 13W Headgate
via mantrip. Id. at 73. As a result, the inspection party exited the mantrip, whereupon Peddicord
decided to conduct an E01 inspection of the 5 West No. 1 conveyor belt, which had not yet been
subject to an MSHA quarterly inspection. Id. at 74. The Secretary has proffered a map denoting
the area inspected by Peddicord in the 5 West No. 1 belt entry. Sec’y Ex. 45 (denoted in orange).
Peddicord began his inspection at the 1 block, where 5 West No. l/6 North transfer was
located, and proceeded to travel inby by up to the 40 block. Id. at 93; Sec’y Ex. 45; Resp’t Exs.
19, 20. In the course of his travels, he observed extensive accumulations of coal dust covering
the mine floor, roof, ribs, belt structures, waterlines, and power cables, starting at the 6 block and
extending inby. Id. at 95-96, 107; Sec’y Ex.1; Resp’t Ex. l. The coal dust accumulations he
observed were black in color and measured approximately 1/8 inch for a distance of
approximately 3400 feet, measured from the 6 block to 34 the block. Tr. I 95, 106-07, 133-35. In
addition to the 1/8 inch depth of accumulations, there were ten discrete locations, several of
which were located in the vicinity of the 27 block where the misaligned belt was located, that
measured 16 to 24 inches in depth. Id. at 104-06; Sec’y Exs. 4, 6. At these locations there were a
total of 19 rollers turning in coal. Tr. I 107. Each location measured approximately two to three
feet in length and three feet in width. Id. at 104-6. Thus, these locations totaled approximately 25
to 33 feet in length. Id. at 79, 109, 200; see Sec’y Exs. 1, 8, 45.
Of the nineteen rollers turning in coal, there was one broken roller at the 7 block and one
frozen roller at the 29 1/2 block. Tr. I at 93, 105, 109-10, 112-13; Tr. II 65, 91; Sec’y Exs. 3,11.
The broken roller at the 7 block made substantial noise as a result of metal-to-metal contact and
had heated to the point that it steamed when water was applied. Tr. I at 78, 114; Sec’y Ex. 3. In
addition, a belt misalignment approximately fifty feet in length, starting at the 27 block, caused

40 FMSHRC Page 1239

the belt conveyor to rub against six bottom roller cradles,8 all of which were covered in coal dust.
Tr. II 69; Sec’y Ex. 4. The continued rubbing between the belt conveyor and cradles created
friction sufficient to completely remove the top paint coating from all six cradles revealing the
“shiny metal” underneath. Tr. I 117. Inspector Peddicord was concerned that continued rubbing
between the belt and roller cradles would cut into the belt and result in a tear. Id. Based on his
observations, Peddicord initially informed Moyer that he was issuing a 104(a) citation alleging a
violation of section 75.400. Tr. I 96, 107.
As the inspection party continued inby, additional accumulations were observed,
extending to the 34 block that were in proximity to the two damaged rollers noted above. Sec’y
Ex. 1; Resp’t Ex 1. Peddicord also observed a portion of misaligned belt measuring
approximately 50 feet in length. Tr. I 96-107; Sec’y Exs. 8, 45. Peddicord believed there were
numerous points of contact that could create friction that would generated heat, causing an
ignition hazard which could ignite a fire. Tr. I 78, 108-11, 128; Tr. II 146, 147-49. There were no
active workings in proximity to the cited accumulations along the 5 West No. 1 belt. Tr. I 170. In
fact, the 5 West No. 1 belt entry, which was ventilated with fresh air, was located approximately
three and a half miles from the working long wall face. Id. at 167; Tr. II 30. Consequently,
Peddicord testified that his major concern was ignition (combustion) of the coal accumulations
rather than propagation. Tr. I 78. In this regard, the Secretary’s counsel conceded that he was
asserting that Peddicord’s concern was “a mine fire hazard and not an explosion hazard.” Tr. II
29.
Peddicord concluded that the totality of the circumstances necessitated the removal of the
5 West No. 1 conveyor belt from service in order to repair and replace the damaged rollers,
realign the belt, shovel underneath the nineteen bottom rollers turning in coal and apply rock dust
in the belt entry. Tr. II at 62, 66, 140, 143. Consequently, Peddicord ultimately informed Moyer
that he was issuing a 104(d) order instead of a 104(a) citation. Tr. I 143. It took fifteen to twenty
miners approximately 10 hours to abate the cited conditions. Id. at 141; Sec’y Ex. 8 at 29.

8

In Order No. 8059212, issued for the alleged preshift violation, Peddicord noted the
misaligned belt contributed to the bottom belt contacting seven consecutive bottom roller cradles
at the 27 block. Sec’y Ex. 6. However, Citation No. 8059211, issued by Peddicord for the
misaligned belt referenced in the subject accumulation citation in Order No. 8059209, notes that
the belt misalignment contributed to belt contact with six bottom roller cradles. Sec’y Ex. 4.
Citation No. 8059211, not a subject of this proceeding, is discussed infra. At trial, Peddicord also
testified that the misaligned belt caused belt contact with six bottom roller cradles. Tr. I 116.
Consequently, all references to this issue will be to six bottom roller cradles.

40 FMSHRC Page 1240

Based on his observations, Peddicord issued Order No. 8059209 alleging a violation of
section 75.400. The order states:
Accumulations of combustible material is allowed to accumulate over previously
rock dusted surfaces on the 5-West company #1 belt conveyor in the following
locations: 1) Accumulations of loose coal, and coal fines is allowed to exist from
6 block to 34 block. The accumulations measured 16 feet wide, 1/8 inch thick,
and approximately 3400 feet long. These accumulations are located on the mine
floor, roof, ribs, and belt structure. The accumulations are dark brown in color. 2)
Accumulations are present 10 1/2 block and in contact with both bottom rollers.
These accumulations of coal fines/belt fines measured 3 feet wide, 2 foot long,
and 16 inches deep. 3) Also, accumulations of dry coal fines/belt fines are present
at the 12 1/4 block and in contact with both bottom rollers. These accumulations
measure 3 feet long, 3 feet wide, and 24 inches deep. 4) Accumulations of loose
coal, and coal fines is present at 12 1/2 block, and are in contact with on bottom
roller that is turning in accumulations. These accumulations measured 3 feet long,
3 1/2 feet wide, and 20 inches high. 5) Also, accumulations of coal fines, and
loose coal is in contact with bottom roller at 17 1/2 block. These accumulations
measured 1 foot wide, 2 feet long, and 20 inches deep. 6) Also, accumulations of
coal fines/belt fines is present at 21 3/4 block and contacting both bottom rollers.
These accumulations measured 2 feet wide, 2 feet long, and 22 inches high. 7)
Also, accumulations just inby 23 block are in contact with inside part of both
bottom rollers, allowing rollers to turn in accumulations. These accumulations are
coal fines, and belt fines. These accumulations measured 3 feet long, 1 foot wide,
and 10 inches deep. 8) Also, accumulations of coal fines/belt fines is in contact
with both bottom rollers at 23 1/2 block. The accumulations measured 2 feet
wide, 2 foot long, and 12 inches deep. 9) Also, accumulations of coal fines/belt
fines is present at 24 block and in contact with both bottom rollers. These
accumulations measured 3 feet long, 1 foot wide, and 10 inches wide. These
accumulations were dry and black in color. 10) Also, accumulations of dry coal
fines/belt fines are in contact with 2 consecutive bottom rollers at 25 1/2 block.
The accumulations measured 3 feet wide, 1 1/2 wide, and 10 inches deep in both
locations. 11) Also, accumulations of coal fines/belt fines is allowed to exist on
mine floor, and in contact with bottom roller. Accumulations measured 1 1/2 feet
wide, 1 foot long, and 18 inches deep at 19 3/4 block. This mine is on a 5-day
103(I) spot inspection for liberating over 1 million cubic feet of methane in a 24
hour period. Citation #8059210, and Citation #8059211 are issued in conjunction
with this order for damaged rollers, and belt rubbing metal components in same
areas as cited accumulations. This creates a confluence of factors. Miners work
and travel in these areas each shift in performance of their duties. There is
evidence that these accumulations have existed for an extended period of time,
due to the amount of the accumulations present, and foot prints in the walkway
through the accumulations. A certified mine examiner travels this belt conveyor 3
times a day, and should have been aware that these conditions were present.
Accumulations/roller spillage was visible to the most casual observer.
Examinations are the first line of defense for the health and safety of the miners.

40 FMSHRC Page 1241

These conditions were obvious and extensive and should have been reported and
corrected. History has shown that frictional heat sources such as belt rubbing
structure causes mine fires. If normal mining operations were to continue and
these conditions were left unabated it is reasonably likely that friction sources
present will ignite accumulations, and/or contribute to a fire and/or explosion
occurring nearby. The operator removed the belt from service to correct ignition
sources. Numerous 75.400 citations have been issued at this mine in the past. This
is the third 75.400 order issued on belt conveyors at this mine in the past 6
months. The operator has engaged in aggravated conduct constituting more than
ordinary negligence. The belt was in operation at time of issuance. A mine fire
occurred at this mine on 3-12-12. This violation is an unwarrantable failure to
comply with a mandatory health and safety standard.
Sec’y Ex. 1; Resp’t Ex. 1.
In addition to Peddicord noting the broken roller at the 7 block and the frozen roller at the
29 1/2 block in Order No. 8059209, Peddicord issued Citation No. 8059210, which is not a
subject of this proceeding, citing the two malfunctioning rollers as an S&S violation of section
75.1731(a). Sec’y Ex. 3; Resp’t Ex. 2. The mandatory standard in section 75.1731(a) requires
damaged rollers that pose a fire hazard to be immediately repaired or replaced. 30 C.F.R. §
75.1731(a). Peddicord designated this damaged roller violation as reasonably likely to cause an
injury leading to lost workdays or restricted duty. Sec’y Ex. 3; Resp’t Ex. 2. He attributed the
violation to a moderate degree of negligence. Id. The Secretary proposed a civil penalty of
$1203.00 for Citation No. 8059210. Sec’y Post-Hr’g Br. at 8.
Peddicord also issued Citation No. 8059211, also not a subject of this proceeding, citing
an S&S violation of section 75.1731(b) as a result of the approximately fifty feet of misaligned
belt that he had observed. Sec’y Ex. 4; Resp’t Ex. 3. The mandatory standard in section
75.1731(b) prohibits improperly aligned conveyor belts. 30 C.F.R. § 75.1731(b). Peddicord
designated the cited violation as reasonably likely to result in lost workdays or restricted duty.
Sec’y Ex. 4. Peddicord attributed the violation to a low degree of negligence. Id. The Secretary
proposed a civil penalty of $585.00 for Citation No. 8059211. Sec’y Post-Hr’g Br. at 8.
Citation Nos. 8059210 and 8059211 were the subjects of a Joint Motion to Approve
Settlement in Docket No. WEVA 2015-0033. Sec’y Ex. 5. The settlement terms were that
Monongalia accepted Citation Nos. 8059210 and 8059211 as unmodified and agreed to pay the
initially proposed civil penalties of $1203.00 and $585.00, respectively. Id. These settlement
terms were approved in a Decision Approving Settlement issued on April 21, 2016. Sec’y Ex. 5;
Tr. I 116.

40 FMSHRC Page 1242

Monongalia does not dispute that the cited accumulations in Order No. 8059209
constitute a section 75.400 violation. Resp’t Post-Hr’g Br. at 49. However, Monongalia alleges
several mitigating factors with respect Order No. 8059209. Id. at 40-44. With respect to the
presence of potential ignition sources, Monongalia argues that Peddicord only found two out of
4000 rollers to be defective and fifty feet out of 5000 feet of belt to be misaligned. Id. at 40; Tr. I
197-200. With regard to the length of time the violative conditions existed, Monongalia argues
that the ten discrete areas of deeper accumulations were the result of broken chains on the belt
and that these accumulations existed for less than a day. Resp’t Post-Hr’g Br. at 40. Furthermore,
Monongalia alleges that it was engaging in an ongoing process of repairing chains and cleaning
the associated accumulations. Id.
With respect to the risk of danger the violative conditions posed, Monongalia argues that
there was no methane in the belt entry and that the cited accumulations were not in contact with
the cited ignition sources. Id. at 41-2; Tr. I 180-1; Tr. II 168-9. Additionally, Monongalia argues
that the distance of the accumulations from the mining face, and the Secretary’s characterization
of no more than lost workdays resulting from the risk posed by the defective rollers and
misaligned belt undermine the Secretary’s assertion in Order No. 8059209 that the
accumulations will result in a fatality. Resp’t Post-Hr’g Br. at 42; Tr. I 166-7.
With respect to knowledge and obviousness, Monongalia does not dispute that it was
aware of the cited accumulations. Resp’t Post-Hr’g Br. at 43. In this regard, Monongalia was on
notice that greater efforts were required to comply with section 75.400 by virtue of the reported
capital expenditures it incurred to improve the conditions in 5 West No. 1 belt entry. Tr. II 16162. In addition, Monongalia asserts that it had made efforts to eliminate the violative conditions
by rock dusting and repairing broken belt chains. Tr. II 313, 321.
Disposition
a.

S&S

Monongalia does not contest the cited accumulation violation, Citation No. 8059209, or
that the violation was properly designated as S&S. Sec’y Post-Hr’g Br. at 3-4. However, an
understanding of the S&S legal framework is helpful in providing context to the parties’
stipulations.
The Mine Act describes an S&S violation as one “of such nature as could significantly
and substantially contribute to the cause and effect of a coal or other mine safety or health
hazard.” 30 U.S.C. § 814(d)(1). 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

40 FMSHRC Page 1243

contributed to by the violation will result in an injury or an illness of a reasonably serious nature.
Cement Div., Nat'l Gypsum, 3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co.,
6 FMSHRC 1, (Jan. 1984), the Commission explained:
In order to establish that a violation of a mandatory safety standard is S&S 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.
Id. 6 FMSHRC at 3-4; see also Austin Powder Inc. v. Sec'y of Labor, 861 F.2d 99, 103-04 (5th
Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (Dec. 1987) (approving the Mathies criteria).
Once the fact of a violation has been established under step one of Mathies, the second
Mathies step addresses the extent to which the violation contributes to a particular hazard. In a
change to the Commission’s long-standing interpretation of the Mathies criteria, the Commission
now has opined that the second step analysis is “primarily concerned with likelihood of the
occurrence of the hazard against which a mandatory safety standard is directed.” Newtown
Energy, 38 FMSHRC at 2037 (citing Knox Creek Coal Corp. v. Sec'y of Labor, 811 F.3d 148,
163 (4th Cir. 2016)). Thus, step two of the Mathies test now involves a two-part analysis: first,
identification of the hazard created by the subject violation of the safety standard; and second, “a
determination of whether, based on the particular facts surrounding the violation, there exists a
reasonable likelihood of occurrence of the hazard against which the mandatory safety standard is
directed.” Newtown Energy, 38 FMSHRC at 2038. 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, 1255 (Nov. 1998) (citing Rushton Mining Co., 11 FMSHRC 1432, 1435 (Aug.
1989)); Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986).
Under the Commission’s analysis in Newtown Energy, when evaluating the third Mathies
criterion, the analysis assumes that the hazard identified in step two has been realized, and then
considers whether the hazard would be reasonably likely to result in injury, again, in the context
of “continued normal mining operations.” Newtown Energy, 38 FMSHRC at 2038 (citing Knox
Creek Coal Corp., 811 F.3d at 161-62); Peabody Midwest Mining, LLC, 762 F.3d 611, 616 (7th
Cir. 2014); Buck Creek Coal, 52 F.3d 133 at 135; U.S. Steel Mining Co., 6 FMSHRC 1573, 1574
(July 1984)). In sum, while the methodology for analyzing S&S under the long-standing Mathies
criteria has been modified by Newtown Energy, the Commission acknowledged that “the
ultimate inquiry has not changed.” 38 FMSHRC at 2038, n.8.
Given the fact that section 75.400 violations are the most commonly cited, the
Commission has identified the elements necessary to create a fire or explosion hazard. Resp’t Ex.
15; Most Frequently Cited Standards for 2014, Underground Coal, Jan. 1, 2014 – Dec. 31, 2014,
MSHA, https://arlweb.msha.gov/stats/top20viols/top20home.asp (“Most Commonly Cited
Standards”). When analyzing the degree of hazard posed by section 75.400 violations, the

40 FMSHRC Page 1244

Commission looks to whether the particular facts surrounding the violation can create a
“confluence of factors” that can result in an ignition. Texasgulf, Inc., 10 FMSHRC 498, 501
(Apr. 1988). These factors include “a sufficient concentration of methane in the atmosphere . . .
and ignition sources.” Id. The confluence of factors can create a fire and/or explosion. Id. In this
case, the Secretary asserts that there was a confluence of factors that created a fire hazard. Tr. II
29-30. As previously noted, Monongalia does not dispute that the subject accumulation violation
was properly designated as S&S. However, the Secretary does not assert that the cited
accumulations created a propagation hazard given their distance from the face. Id. at 30-31;
Sec’y Post-Hr’g Br. at 18.
b.

Unwarrantable Failure

The Commission summarized the characteristics of an unwarrantable failure in IO Coal
Co., 31 FMSHRC 1346 (Dec. 2009). The Commission stated:
The unwarrantable failure terminology is taken from section 104(d) of the Act, 30
U.S.C. § 814(d), and refers to more serious conduct by an operator in connection
with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the
Commission determined that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence. Id. at 2001. Unwarrantable failure is
characterized by such conduct as “reckless disregard,” “intentional misconduct,”
“indifference,” or a “serious lack of reasonable care.” Id. at 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek
Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's
unwarrantable failure test).
Id. at 1350.
Thus, whether conduct is “aggravated” in the context of unwarrantable failure is
determined by considering the facts and circumstances of each case to determine if aggravating
or mitigating factors exist. Id. at 1351. These factors include: (1) the extent of the violative
condition, (2) the length of time that the violative condition existed, (3) whether the violation
posed a high degree of danger, (4) whether the violation was obvious, (5) the operator's
knowledge of the existence of the violation, (6) the operator's efforts in abating the violative
condition, and (7) whether the operator had been placed on notice that greater efforts were
necessary for compliance. See id. at 1350-51; Cyprus Emerald Res. Corp., 20 FMSHRC 790,
813 (Aug. 1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir. 1999). These factors must be
viewed in the context of the factual circumstances of a particular case. Consolidation Coal Co.,
22 FMSHRC 340, 353 (Mar. 2000). Accordingly, Commission judges are not required to give
equal weight to the above factors. Emery Mining Corp., 9 FMSHRC 1997, 2001(Dec. 1987).
Thus, the unwarrantable failure question is resolved based on whether there are mitigating
factors that outweigh any aggravating factors. As discussed below, although the aggravating
factors outnumber the mitigating factors, the weight given to the mitigating factors precludes a
finding of an unwarrantable failure.

40 FMSHRC Page 1245

i. Obviousness and Extent of the Violative Condition
Turning to the relevant factors identified by the Commission, with respect to obviousness
and extent, the accumulations were readily observable given the 1/8 inch in depth of coal dust
that was deposited on “the mine roof, ribs, belt structure, [and in] multiple crosscuts” in the
5 West No.1 belt entry for a length of approximately 3400 feet. Tr. I 107. In addition to the
1/8-inch depth of accumulations, there were 10 discrete locations, each measuring approximately
three feet long by three feet wide, where the accumulations measured 16 to 24 inches in depth.
Id. at 104-06. At these locations there were a total of 19 rollers turning in coal. Id. at 107. Thus,
these locations totaled approximately 33 feet in length. Id. at 79, 109, 200; see also Sec’y Exs. 1,
8, 45. The discrete areas of greater accumulations apparently were significantly affected by the
misaligned belt at the 27 block. Sec’y Ex. 6; Resp’t Ex. 4.
However, there were only two malfunctioning rollers out of the approximately 4000
properly functioning rollers that were operating within the 3400-foot expanse inspected by
Peddicord in the belt entry. Id. at 199-200. Similarly, there was only approximately 50 feet of
misaligned belt in the vicinity of the 27 block out of 3400 feet of beltline inspected by Peddicord.
Tr. I 199-201. The misaligned rollers and malfunctioning belt were located a distance of
approximately three-and-a-half miles from the working face. Id. at 167. Although the potential
ignitions sources relied on by the Secretary were less obvious, on balance, the obvious nature
and extent of the accumulations are aggravating factors. See E. Assoc. Coal Corp., 32 FMSHRC
1189, 1195 (Oct. 2010) (citing Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992));
Quinland Coals, Inc., 10 FMSHRC 705, 708 (June 1988).
ii. Duration of the Violative Condition
Monongalia’s self-serving assertion that a significant portion of the cited accumulations
occurred as a result of broken conveyor chains that purportedly occurred only hours before
Peddicord’s inspection is unavailing. Resp’t Post-Hr’g Br. at 40. Rather, I credit Peddicord’s
testimony that a substantial portion of the accumulations existed for at least three shifts. Tr. I
135. I reach this conclusion based on the extensive nature of the accumulations as well as
Peddicord’s observation of footprints tracking through the accumulations, which is further
evidence of their duration. Id. at 136. Moreover, the preshift examination records further support
Peddicord’s opinion that the accumulations existed for at least several shifts. Resp’t. Ex. 25.
Namely, the examination book reflects relevant accumulations located in the 5 West No. 1 belt
entry, from the 25 block to the 34 block, that were noted during the preshift examination
conducted from 1:00 p.m. to 3:00 p.m. on July 29, 2014. Id. This preshift examination was
conducted three shifts prior to the issuance of Order No. 8059209 at 9:30 a.m. on July 30, 2014.
Resp’t. Ex. 25.
In addition, the misaligned belt observed by Peddicord caused the belt conveyor to rub
against six bottom roller cradles, all of which were covered by coal dust. Tr. II 69. The continued
rubbing between the belt conveyor and cradles created friction sufficient to remove the top
coating of paint from all six cradles revealing a “shiny metal” surface. Id. at 117. The frictionrelated damage reflects that the accumulations in the cradles developed over a significant period
of time. Id. Peddicord’s observation of friction-related damage in the areas of these
accumulations also undermines Monongalia’s assertion that these accumulations had recently

40 FMSHRC Page 1246

occurred. Resp’t Post-Hr’g Br. at 43. Consequently, the record supports the Secretary’s
contention that the cited accumulations existed for at least several shifts, and, as such, is an
aggravating factor.
iii. Operator’s Knowledge of the Violative Condition
The Commission has held that knowledge is established by showing the failure of an
operator to abate a violation that it knew or reasonably should have known existed. See Emery
Mining, 9 FMSHRC at 2002-03; IO Coal, 31 FMSHRC at 1356-57 (holding that an operator
“reasonably should have known of a violative condition”); Drummond Co., 13 FMSHRC 1362,
1367-68 (Sept. 1991) (quoting Eastern Assoc. Coal Corp., 13 FMSHRC 178, 187 (Feb. 1991)).
As noted, Monongalia had knowledge of the cited accumulations as reflected by the
preshift examination records that recorded relevant accumulations from the 25 to the 34 block in
the preshift examination conducted during the afternoon shift on July 29, 2014. Resp’t. Ex. 25.
Moreover, it is reasonable to conclude that belt examiners had previously observed the subject
accumulations as evidenced by Peddicord’s testimony of footprints in the accumulations located
in the inspected area. Tr. I 136. Thus, Monongalia’s actual or constructive knowledge of the
cited accumulations is an aggravating factor that weighs in favor of finding an unwarrantable
failure.
iv. Operator’s Notice that Greater Compliance Efforts Are Required
The Commission has noted that repeated similar violations can constitute an aggravating
factor that is relevant to an unwarrantable failure determination in that they serve to put an
operator on notice that greater efforts are necessary for compliance with the cited standard. See
IO Coal, 31 FMSHRC at 1353-55; Amax Coal Co., 19 FMSHRC 846, 851 (May 1997); see also
Consolidation Coal Co., 23 FMSHRC 588, 595 (June 2001). Thus, a relevant excessive history
of similar violations is a significant element of an unwarrantable failure designation. In this case,
Monongalia had been cited for 147 violations of section 75.400 in the two years preceding the
issuance of the subject accumulation violation. Sec’y Ex. 39. Based on this fact alone, it is clear
that Monongalia was aware that greater compliance efforts were required for its adherence to the
mandatory safety standard in section 75.400.
The Commission has also recognized that “past discussions with MSHA” about a
problem “serve to put an operator on heightened scrutiny that it must increase its efforts to
comply with the standard.” San Juan Coal, 29 FMSHRC 125, 131 (Mar. 2007) (citing
Consolidation Coal, 23 FMSHRC at 595). Peddicord testified that in addition to the subject
accumulation violation citation issued on July 30, 2014, there were two additional similar
accumulation violation citations issued in April and May of 2014. Tr. I 140-41. Peddicord further
testified without contradiction that during closeout conferences, mine inspectors counsel mine
operators on how to best avoid the future occurrence of similar violations. Id. at 141. As
previously noted, in recognition of its belt problems, Monongalia reportedly made significant
upgrades and capital improvements to the 5 West No. 1 belt “to enhance the tracking . . . [in an
effort] to reduce spillage in and along the beltlines and drive areas.” Tr. III 54-56; Resp’t Ex. 36.
Thus, Monongalia’s significant history of relevant violations, its relevant capital expenditures,
and its prior closeout conferences with MSHA clearly demonstrate that it was on notice that
greater efforts were required to avoid accumulation violations of section 75.400.

40 FMSHRC Page 1247

v. Operator’s Efforts in Abating the Violative Condition
When considering a mine operator’s efforts to eliminate the subject violative condition,
the Commission focuses on compliance efforts made prior to the issuance of a citation or order.
Enlow Fork Mining, 19 FMSHRC 5, 17 (Jan. 1997). The 5 West No. 1 belt extends in an outby
direction from the headpiece at the 59 block to the tailpiece at the 1 block. Sec’y Ex. 45. This
matter concerns accumulations cited by Peddicord from the 6 block to the 34 block in the 5 West
No. 1 belt entry. Sec’y Ex. 1. The preshift and on-shift reports for the 5 West No. 1 belt
preceding the preshift examination conducted from 5:00 a.m. to 7:16 a.m., immediately prior to
Peddicord’s inspection at 9:00 a.m. on July 30, 2014, are instructive. The notations in these
reports reflect corrective actions for numerous accumulation-related conditions concerning bad
top and bottom rollers and broken chains. Resp’t Ex. 25. The examination records also reflect
notations for spillage and accumulations in need of cleaning or rock dusting. Id. Many of the
accumulation-related conditions were beyond the area inspected by Peddicord, located from the
41 block to the 59 block. Id. As a general proposition, these notations and corrective actions
reflect that the operating conditions in the 5 West No. 1 belt entry were not being ignored. Id.
More specifically, the examination reports reflect notations and corrections taken
immediately prior to the subject inspection in the area observed by Peddicord. Id. For example,
during the preshift examination conducted from 9:00 p.m. to 11:00 p.m. on July 29, 2014, a bad
top roller located at the 22 block was noted in addition to dark gray accumulation present from
the 25 block to the 34 block. Id. The midnight on-shift report of July 30, 2014, reflects corrective
action for broken chains located at the 36, 37, and 39 blocks. Id. Although Peddicord observed a
hot roller at the 7 block and a frozen roller at the 29 1/2 block, his observations did not include a
bad top roller located at the 22 block or broken chains at the 36, 37, or 39 blocks. Sec’y Ex. 3.
Consequently, Peddicord’s failure to cite these conditions leads to the reasonable conclusion that
corrective actions may have been taken immediately prior to Peddicord’s inspection.
Although Monongalia’s efforts to prevent the subject accumulation violation were
unsuccessful, it is apparent remedial actions were being taken during the shifts immediately
preceding the subject inspection. Resp’t Ex. 25. Thus, I view Monongalia’s attempt to improve
the accumulation conditions in the 5 West No. 1 belt entry prior to Peddicord’s inspection as a
mitigating factor.
vi. Degree of Danger Posed by the Violative Condition
The degree of hazard posed by accumulation violations must be viewed in the context of
the fact that fire, smoke, and the danger of an explosion are the natural consequences of
combustion. The D.C. Circuit held that the existence of an emergency should be assumed in
evaluating the degree of hazard for determining whether a violation is properly designated as
S&S. Cumberland Coal Res., LP, 717 F.3d 1020, 1024 (D.C. Cir. 2013) (holding that an
emergency necessitating an evacuation should be assumed in evaluating whether an improperly
hung lifeline constitutes an S&S violation). However, to assume the occurrence of a fire-related
emergency to determine whether a violation constitutes an unwarrantable failure would conflate
S&S designations with unwarrantable failures, thus rendering the majority of section 75.400
violations as unwarrantable. Such a result is problematic as section 75.400 is the most commonly
cited mandatory safety standard. For example, in the year 2014, section 75.400 violations

40 FMSHRC Page 1248

comprised 10.73% of all cited mandatory safety standards. Resp’t Ex. 15; Most Commonly Cited
Standards, MSHA, supra page 11. Rather, a reasoned analysis should be employed to distinguish
those accumulation violations that are unwarrantable from those that are not.
As previously noted, in Texasgulf the Commission noted the degree of hazard associated
with a section 75.400 violation is based on an inquiry as to whether the circumstances
surrounding the cited combustible accumulations create a confluence of factors, such as
explosive levels of methane in proximity to ignition sources that can cause a fire or explosion.
See 10 FMSHRC at 501. With respect to a confluence of factors, it is important to distinguish
accumulations remotely located in belt entries from those that pose a propagation risk by virtue
of their proximity to working places where mining crews are present and dangerous levels of
methane and ignition sources are more prevalent.9
The Commission’s decision in Twentymile is instructive in illustrating the significance of
the location of accumulations. Twentymile Coal Co., 36 FMSHRC 1533 (June 2014). In
Twentymile, the Commission considered the gravity of two separate violations of section 75.400.
Id. The first violation concerned black coal dust accumulations and dark float coal dust located in
the tailgate extending 1700 feet outby into a return entry. Id. at 1534. The Commission
concluded that the subject accumulations were S&S in nature because “there was ample reason
to fear a methane ignition at the face” that would propagate an explosion fed by the dangerous
accumulations of float coal dust. Id. at 1536.
The second violation in Twentymile concerned accumulations near the portal in the belt
entry extending 3400 feet inby. Id. at 1540. The accumulations of coal dust were “very fine” in
nature. Id. These accumulations were located approximately seven miles from the longwall face.
Id. at 1543. The judge concluded that the accumulations were S&S because “a methane
explosion at the [longwall] face can travel ‘long distance[s]’ down mine entries, ‘for a
considerable distance beyond the presence of the methane.’” Id. at 1543 (quoting Twentymile
Coal Co., 32 FMSRC 1431 (Oct. 18, 2010) (ALJ)). The Commission vacated the S&S
designation based on its finding that “[t]here [was] no record evidence that the explosive forces
would travel so far in the mine in question,” and remanded the S&S issue for further
consideration. Id. at 1543, 1544.
Here, risk posed by the potential ignition sources relied on by the Secretary cannot be
disassociated from degree of danger posed by the cited accumulations. The Secretary has
attributed the degree of negligence for the defective rollers and misaligned belt in Citation Nos.
8059210 and 8059211 to moderate and low negligence, respectively. Sec’y Exs. 3, 4. The

9

A working place is defined as “Any place in a coal mine where miners are normally
required to work or travel.” 30 C.F.R. § 75.2 (emphasis added).

40 FMSHRC Page 1249

Secretary proposed civil penalties of $1203.00 for the malfunctioning rollers and $585.00 for the
misaligned belt. Sec’y Ex. 5. These citations were the subjects of a Joint Motion to Approve
Settlement that was approved in a December, 22, 2015, Decision Approving Settlement in
Docket No. WEVA 2015-0033, which required Monongalia to pay the proposed penalties.
Sec’y Ex. 4; Tr. I 116. The Secretary’s attribution for the unaddressed potential ignition sources
to only low or moderate negligence undermines the unwarrantable failure designation. It is true
that the Commission in Twentymile affirmed the unwarrantable failure for the remotely located
accumulations near the portal. 36 FMSHRC at 1546. However, Twentymile is distinguishable in
that it did not involve the presence of violative ignition sources that have been attributed to low
and moderate negligence, and for which the Secretary has proposed relatively low civil penalties.
In this case, although Monongalia has stipulated to the fact of the accumulation violation,
the Secretary has admitted that the cited accumulations located approximately three-and-a-half
miles from the face did not constitute a propagation hazard. Sec’y Post-Hr’g Br. at 4-5; Tr. I 78.
Thus, the Secretary has, in effect, conceded that the danger posed by the cited accumulations was
less than it would have been had the accumulations posed a propagation risk.
While I may have favorably entertained a timely motion to amend Citation Nos. 8059210
and 8059211 with respect the degree of negligence alleged, the Secretary failed to do so. In the
absence of a showing of prejudice, had the Secretary filed a timely motion, I may have been
inclined to find an unwarrantable failure.
Despite the rather de minimis penalty for the defective roller and misaligned belt, the
Secretary now seeks to impose a civil penalty of $121,300.00 for the subject accumulations cited
in Order No. 8059209. Resp’t Ex. 6. Notwithstanding the absence of a propagation hazard, the
Secretary’s attribution of a relatively low degree of negligence attributable to Monongalia’s
failure to address the potential ignition sources relied on by the Secretary undermines his
assertion that the accumulations are attributable to aggravated conduct. Resp’t Exs. 2, 3; Sec’y
Ex. 6.
Despite the distance of the accumulations from the face, Monongalia cannot escape the
fact that the accumulation conditions in the 5 West No. 1 belt entry were obvious, known, and
extensive. Moreover, Monongalia was on notice that greater efforts were necessary for
compliance given the capital expenditures it incurred to address accumulation problems in its
Monongalia County Mine. Consequently, the Secretary has demonstrated that the cited
accumulations are attributable to Monongalia’s high degree of negligence.
However, it is not uncommon for the Secretary to issue 104(a) citations, rather than
104(d) citations, for violations that are attributable to a mine operator’s high degree of
negligence. See Original Sixteen to One Mine, Inc., 36 FMSHRC 2224, 2229 (Aug. 2014) (ALJ)
(upholding the inspector’s issuance of a 104(a) citation due to the operator’s high degree of
negligence); Taft Production Co., 35 FMSHRC 965, 971 (Apr. 2013) (ALJ) (upholding the
inspector’s issuance of a 104(a) citation due to the operator’s high degree of negligence); Black
Beauty Coal Co., 34 FMSHRC 1733, 1574-5 (Aug. 2012) (remanding an ALJ’s affirmation of an
unwarrantable failure designation); Black Beauty Coal Co., 35 FMSHRC 401, 410 (Feb. 2012)
(ALJ) (finding the violation was due to an operator’s high negligence but did not constitute an

40 FMSHRC Page 1250

unwarrantable failure); Bachman Sand and Gravel, 34 FMSHRC 226, 233 (Jan. 2012) (ALJ)
(modifying a 104(d)(1) citation issued due to the operator’s high degree of negligence to a 104(a)
citation at hearing); Cloverlick Coal Co, 31 FMSHRC 1377, 1381 n.2 (Nov. 2009) (ALJ)
(modifying a 104(d)(1) order issued due to the operator’s high degree of negligence to a 104(a)
citation).
Although the subject accumulations are attributable to a high degree of negligence, the
issue is whether Monongalia’s conduct can be properly characterized as aggravated or
indifferent. The relevant preshift examination records for the shifts preceding Peddicord’s
inspection on the morning of July 30, 2014, fail to reveal a level of indifference. Rather, they
reflect that Monongalia took actions, albeit unsuccessfully, to address the accumulation
conditions in the 5 West No. 1 belt entry. Resp’t Ex. 25. Consequently, consistent with
Commission case law, although Monongalia’s negligence was high, the Secretary has failed to
demonstrate that it rose to the level of aggravated or unjustified conduct indicative of an
unwarrantable failure. Accordingly, Order No. 8059209 shall be modified to a 104(a) citation
to reflect that the cited accumulation violation is not unwarrantable.
c.

Flagrant

Congress provided a not so subtle clue for the proximate cause requirement for
imposition of enhanced civil penalties by specifying what a flagrant violation means. Section
110(b)(2) provides:
[T]he term “flagrant” with respect to a violation means a reckless or repeated
failure to make reasonable efforts to eliminate a known violation of a mandatory
safety standard that substantially and proximately caused, or reasonably could
have been expected to cause, death or serious bodily injury.
30 U.S.C. § 820(b)(2) (emphasis added).
Prior to the passage of section 110(b)(2), the most severe sanction under the Act was a
withdrawal order issued pursuant to section 104(d) that subjects an operator to a maximum
penalty of $70,000.00.10 Greenwich Colleries, 12 FMSHRC 940, 945 (Nov. 2011) (citing
UMWA v. FMSHRC, 768 F.2d 1477, 1479 (D.C. Cir. 1985)); 30 U.S.C § 814(d). Withdrawal
orders are issued solely as a consequence of an operator’s unwarrantable conduct evidencing
more than ordinary negligence, without regard to the degree of hazard posed by the subject
violation. Thus, 104(d) withdrawal orders can be issued for non-S&S violations.

10

The issuance of 104(d) withdrawal orders can also result in an interruption of
production. In this case, production was halted from 12:30 p.m. to 8:00 p.m. on July 30, 2014, to
abate the accumulations violation cited in Order No. 8059209. During that period, approximately
10,000 tons of raw materials resulting in 7000 tons of clean coal would have been extracted. At a
market value of $60.00 per ton, the approximate eight-hour interruption in mining activities
resulted in an approximate loss of revenue of $420,000.00. Tr. II 178-80.

40 FMSHRC Page 1251

Similar to the provisions of section 104(d), the flagrant provisions amended the Mine Act
to allow for the imposition of enhanced civil penalties for dangerous violations that are
attributable to reckless or repeated conduct, also demonstrating more than ordinary negligence.
30 U.S.C. § 820(b)(2). However, unlike section 104(d) withdrawal orders, which may be issued
for non-S&S violations that do not pose a high degree of danger, Congress added the “proximate
cause” and “death or serious bodily injury” provisions as prerequisites for a flagrant designation.
Id. Consistent with the Mine Act’s graduated enforcement scheme, section 110(b)(2) provides
for enhanced civil penalties for flagrant violations of up to $220,000.00, adjusted for inflation.
Id; Nat’l Gypsum Co., 3 FMSHRC at 828 (holding that the Mine Act provides for increasingly
severe sanctions for increasingly severe violations).
In American Coal, the Commission remanded a Judge’s flagrant analysis of an
accumulation violation for further consideration of the application of the Commission’s
“narrow” and “broad” interpretations of section 110(b)(2) of the Act. 38 FMSHRC at 2085. As
noted, if appropriate, the Commission directed the Judge “to fashion an interpretation of the
flagrant violation provision . . . which permits the Secretary to establish a violation as flagrant by
taking the operator’s history of previous accumulation violations into account.” Id. at 2082. On
remand, the judge found the subject accumulation violation satisfied the flagrant provision under
a “narrow” analysis. American Coal Co., 39 FMSHRC 1247, 1265 (June 15, 2017) (ALJ). Thus,
the Commission’s “broad” interpretation with respect to “repeated” flagrant designations for
accumulation violations remains unresolved. While I am adjudicating the propriety of the
“repeated” flagrant designation under the “narrow” approach, I will endeavor to address the
differing relevant considerations associated with a “narrow” and “broad” analysis that uniquely
apply to accumulation violations.
In American Coal, the Commission chose to rely on the degree of negligence
demonstrated by an operator’s failure to address a known violation rather than “the degree of
danger posed by a violation,” to distinguish a flagrant violation. 38 FMSHRC at 2070. However,
the Commission could not have intended to disregard two inviolate principles of law. The first is
that it is axiomatic that the degree of danger posed by a hazard and the degree of care required to
avoid that hazard are inextricably intertwined. In other words, the duty to remedy increasingly
dangerous conditions requires an increasingly higher standard of care. See Peklun v. Tierra Del
Mar Condominium Assc., 119 F.Supp.3d 1361(S.D. Fla. 2015); Manchenton v. Auto Leasing
Corp., 605 A.2d 208 (N.H. 1992); Richardson v. Gregory, 281 F.2d 626 (D.C. Cir 1960);
Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (1928).
The second inviolate principle is that “proximate cause,” as contemplated by section
110(b)(2) of the Act, is “[a] cause that directly produces an [injury] and without which the
[injury] would not have occurred.” BLACK’S LAW DICTIONARY 213 (7th ed. 1999). In keeping
with these principles, the flagrant provisions of the Act are intended to address the most
dangerous of violations – those that are known yet remain unabated despite the fact that they can
be reasonably expected to proximately cause death or serious bodily injury.

40 FMSHRC Page 1252

The Commission tracked the provisions of section 110(b)(2) in identifying the
elements for establishing a flagrant violation. These elements are:
(1) there was a condition that constituted a violation of a mandatory health or
safety standard, (2) the violation was “known” by the operator; (3) the violation
either (a) substantially [and proximately] caused death or serious bodily injury, or
(b) reasonably could have been expected to [substantially and proximately]11
cause death or serious bodily injury; (4) there was a failure on the part of the
operator to make reasonable efforts to eliminate the violation; and (5) that failure
was either reckless or repeated.
American Coal, 38 FMSHRC at 2066-67.
With the exception of the “repeated” criterion in element number five, the Commission
did not differentiate between the remaining elements necessary for demonstrating a “repeated”
flagrant violation under a “narrow” analysis from those required under a “broad” analysis. Id.
Thus, with the exception of “repeated,” the remaining statutory provisions of section 110(b)(2)
apply to both a “broad” and “narrow” approach. A “narrow” analysis is a traditional application
of statutory provisions to the facts surrounding a discrete alleged violation. It is only when the
alleged flagrant violation is neither “reckless” nor “repeated” under a traditional analysis that a
history of violations may become material in designating a violation as “repeated flagrant.”12

11

It is fundamental that:

A statute is passed as a whole and not in parts or sections and is animated by one
general purpose and intent. Consequently, each part or section should be
construed in connection with every other part or section to produce a harmonious
whole. Thus, it is not proper to confine interpretation to the one section to be
construed.
2A Sutherland Statutory Construction § 46:5 at 189-201 (7th ed.).
The Commission did not explicitly include the substantial and proximate cause
requirement for instances where death or serious bodily injury has not yet occurred in the
elements required to establish a flagrant violation. Absent a Commission directive to the
contrary, the proximate cause terminology must be inferred with respect to accidents that have
not yet occurred.
12

The untraditional nature of a “broad analysis” is reflected by the Commission’s
American Coal remand instructing the judge “to fashion an interpretation of the flagrant
violation provision . . . which permits the Secretary to establish a violation as flagrant by taking
the operator’s history of previous accumulation violations into account.” 38 FMSHRC at 2082
(emphasis added).

40 FMSHRC Page 1253

i. Narrow Interpretation
Turning to the Commission’s elements with respect to a “narrow” interpretation, element
one is satisfied as the accumulations constituted a violation as reflected by their nature and extent
as well as Monongalia’s stipulation. As previously discussed, the evidence reflects element two
with respect to knowledge is satisfied by virtue of the footprints in the accumulations and
notations in the preshift examination records. Resp’t Ex. 25; Tr. I 136. That Monongalia failed to
make reasonable efforts to eliminate the violative accumulations despite being aware of them
satisfies element number four. Resp’t Ex. 25.
Thus, the remaining elements for a “narrow” flagrant violation require an analysis of the
term “repeated” in element five and the term “proximate cause” in element three, as
contemplated by the statue. In addressing a “narrow” interpretation of the term “repeated” based
on a repeated failure to address violative accumulations, it is helpful to distinguish between
section 75.400 violations that concern accumulations that by nature occur over a period of time
from spillage that occurs spontaneously.
Section 75.400 provides:
Coal dust, including float coal dust deposited on rock-dusted surfaces, and other
combustible materials, shall be cleaned up and not be permitted to accumulate in
active workings, or on diesel-powered and electrical equipment therein.
30 C.F.R. § 75.400 (emphasis added).
As a general proposition, while the Mine Act is a strict liability statute, strict liability
cannot create liability for conduct that does not otherwise violate a mandatory safety standard.
Pragmatically speaking, accumulations of coal dust and coal fines that occur over a period of less
than one shift may not constitute a violation of section 75.400. I reach this conclusion for two
reasons. Such accumulations of coal particles that have occurred over a brief period of time may
not be of sufficient depth to require rock dusting or removal. Obviously, there must be a
minimum depth requirement to constitute a violation of section 75.400. Assuming the bare
minimum depth of such short-term accumulations is sufficient to require removal, the Secretary
would have difficulty demonstrating that the operator “permitted” the accumulations to occur in
that the operator may not have had a reasonable period of time to address them.
However, Monongalia’s stipulation to the fact of the violation constitutes its admission
that it permitted the combustible accumulations to occur without addressing them within a
reasonable period of time. Notwithstanding the stipulation, the evidence reflects that the subject
accumulations existed for at least three shifts based on the nature and extent of the
accumulations, the notations in the preshift examination reports, as well as Peddicord’s
observation of footprints left in the accumulations. Resp’t Ex. 25; Tr. I 136. Having existed for at
least three shifts, the accumulations satisfy the “narrow” interpretation of “repeated” based on
the duration of the subject accumulations, without regard to a history of relevant similar
violations that are necessary under the “broad” approach.

40 FMSHRC Page 1254

Having determined that the duration of the accumulations satisfies the “repeated” fifth
element under the “narrow” approach, we turn to the issue of proximate cause under the third
element. The proximate cause element is essential in demonstrating a flagrant accumulation
violation. Thus, the focus shifts to whether the violative accumulations could be reasonably
expected to cause a fire that will “proximately cause death or serious bodily injury.” As
previously noted, the D.C. Circuit has concluded that an underground mine fire caused by
violative accumulations should be assumed in evaluating whether the violation is properly
designated as S&S. Cumberland Coal, 717 F.3d at 1027. However, the question is whether this
presumed fire gives rise to an assumption that the fire is reasonably expected to substantially and
proximately cause death or serious bodily injury, as required by statute.
In American Coal, the Commission concluded that a potential injury from smoke
inhalation as a result of a mine fire constitutes “a serious bodily injury” as contemplated by the
flagrant provisions. 38 FMSHRC at 2070. However, the flagrant provisions require a showing
that serious smoke inhalation injury or death is “reasonably expected” to occur. 30 U.S.C. §
820(b)(2). The distinction between the likelihood of the occurrence of a “lost workday” injury
and a “permanently disabling” or “fatal” injury with respect to smoke inhalation requires
consideration of the location of the victim. For while fires produce smoke, not all fires pose a
significant risk of grave smoke inhalation injuries. To assume otherwise would render the
majority of frequently cited violations of section 75.400 as flagrant.
The history of fatal or serious injuries associated with belt fires reflects that victims were
located in working places where mine crews were assigned as distinguished from injuries to belt
examiners traveling in entries located in remote areas of the mine. There were 65 reportable fires
from 1980 to 2007, nearly all of which involved mine conveyor belts. Flame-Resistant Conveyor
Belt, Fire Prevention and Detection, and Use of Air from the Belt Entry, 73 Fed. Reg. 80,580,
80,606 (Dec. 31, 2008) [herein after Conveyor Belt Rulemaking]. During this 27-year period,
these fires resulted in three deaths and approximately two dozen injuries. Id.
Of the three deaths, two occurred at the Aracoma Alma No. 1 Mine on January 19, 2006.
MINE SAFETY AND HEALTH ADMIN., U.S. DEP’T OF LABOR REPORT OF INVESTIGATION FATAL
UNDERGROUND COAL MINE FIRE ARACOMA ALMA MINE #1 (2007).13 The deaths occurred when
a twelve-member crew performing roof-bolting and assorted tasks in a return entry attempted to
escape smoke emanating from a longwall belt takeup storage unit in the headgate by entering the
primary escapeway. Id. 7, 9-10. However, missing stoppings caused the primary escapeway to be
inundated with thick black smoke. Id. at 36-37. Ten of the crewmembers escaped the mine by
entering into a personnel door that allowed them to access the secondary escapeway.
Id. at 12. However, the two fatalities occurred when the victims became disoriented and

13

Public documents published by MSHA are subject to judicial notice. Brody Mining,
LLC, 36 FMSHRC 2027, 2030 n.4 (Aug. 2014) (citing Jim Walter Res., Inc., 7 FMSHRC 1348,
1355 n.7 (Sept. 1985)); Black Diamond Constr., Inc., 21 FMSHRC 1188, 1189 n.3 (Nov. 1999)
(citing Jim Walter Res., Inc., 7 FMSHRC at 1355 n.7).

40 FMSHRC Page 1255

continued to travel in the primary escapeway toward the origin of the smoke. Id. at 12-13. The
remaining fatality occurred at the Florence No. 1 Mine on November 27, 1986, when a mine
foreman suffered a fatal heart attack while fighting a belt fire. Conveyor Belt Rulemaking, 73
Fed. Reg. at 80,606.
The remaining relevant accumulation-related fatalities occurred at the Upper Big Branch
Mine on April 5, 2010. MINE SAFETY AND HEALTH ADMIN., U.S. DEP’T OF LABOR, REPORT OF
INVESTIGATION FATAL UNDERGROUND MINE EXPLOSION UPPER BIG BRANCH MINE-SOUTH 1
(2010). The fatalities occurred as a result of a methane ignition located near a longwall tailgate.
Id. at 2. The ignition was caused by worn shearer bits that likely created an ignition source when
the shearer came into contact with sandstone. Id. at 7. The initial methane ignition at the tailgate
ignited a larger accumulation of methane that caused a massive explosion engulfing an extremely
large area of the mine. Id. As a consequence, 29 miners lost their lives. Id.
As a result of its investigation, MSHA concluded the Upper Big Branch Mine disaster
was attributable to violations of a variety of safety standards. Id. at 4-10. These violations
included, inter alia, performing perfunctory mine examinations; failing to maintain the longwall
shearer in satisfactory condition creating an ignition source for accumulated methane; and failing
to remove or rock dust extensive areas of coal dust accumulated throughout the mine, which
provided the fuel source for a massive explosion. Id. at 9. The investigation also determined that
the mine operator’s failure to abide by its roof control and ventilation plans, contributed to the
fall of the tailgate roof, which in turn restricted airflow to the longwall face. Id. at 6. The reduced
airflow permitted dangerous levels of methane to accumulate in the tailgate without being
diluted. Id.
The fatal belt fire at Aracoma and the fatalities caused by the massive explosion at Upper
Big Branch are distinguishable from the risk posed to a belt examiner who is inspecting
conveyors in remote areas of a mine. Rather, the smoke inhalation risk posed to belt examiners is
a matter of degree. Belt entries are ventilated with fresh air. Tr. I 129; Conveyor Belt
Rulemaking 73 Fed. Reg. at 80591. A belt examiner traveling in an outby direction, approaching
the cited accumulations, would become aware of any smoky conditions prior reaching the origin
of the fire, thus avoiding significant exposure to smoke emanating from the cited accumulations.
Similarly, a belt examiner traveling in an inby direction would not be exposed to a significant
risk of serious smoke inhalation as any smoke would be carried away from him in an inby
direction. The greatest risk of a significant smoke inhalation injury to a belt examiner is if the
examiner happened to be at the location of the cited accumulations at the moment of ignition, a
circumstance that is not “reasonably expected” to occur. Finally, any belt maintenance performed
by mine crews in the belt entry would require de-energizing the conveyor, thus eliminating the
risk of fire. 30 C.F.R. § 75.511.
The Commission has noted the Secretary’s citation characterizations of “lost workdays or
restricted duty,” “permanently disabling,” and “fatal” cannot be relied upon by operators “to
circumscribe the definition of ‘serious bodily injury’ . . . in interpreting the flagrant penalty
provisions.” American Coal, 38 FMSHRC at 2069 (citing Brody Mining, LLC, 37 FMSHRC
1687, 1701 (Aug. 2015)). So too, the Commission is not bound by the degree of negligence
attributed to mine operators by the Secretary. Id. at 2083. Rather, the Commission’s negligence

40 FMSHRC Page 1256

determinations should be based upon “the totality of the circumstances holistically.” Id. at 2083,
(quoting Brody Mining, 37 FMSHRC at 1702). Thus, Commission judges retain the de novo
discretion, based on the particular circumstances of a case, to credit or reject the gravity and/or
negligence characterizations in contested citations.
In this case, that potentially deadly smoke inhalation should not be presumed regardless
of the location of the combustible accumulations, is illustrated by the Secretary’s citations for the
non-functioning rollers and misaligned belt. These citations reflect that the potential ignition
sources exposed the belt examiner to no more than injuries that would result in lost workdays or
restricted duty. Sec’y Exs. 3, 4. Thus, the Secretary, in essence, acknowledges that
accumulations located in belt entries several miles from working sections may not pose a
significant smoke inhalation risk.
Here, the subject accumulations are approximately three-and-a-half miles from the
working section where mining crews are assigned. Tr. II 167-68. I do not construe the
Commission’s express concern over the serious consequences of smoke inhalation to apply to
situations where the combustible accumulations are remotely located in belt entries many miles
from the working face, where serious or fatal injuries are not reasonably expected to occur.
Consequently, the evidence, when viewed in its entirety, reflects that the Secretary has failed to
satisfy his burden of demonstrating that a fire caused by the cited accumulations could be
reasonably expected to proximately cause death or serious bodily injury to a belt examiner.
Therefore, the flagrant designation shall be deleted.
Make no mistake. I am not trivializing the inhalation risk to miners in general and to belt
examiners specifically. However, despite MSHA’s well-meaning intentions, confidence in the
implementation of the Act is undermined by attempts to broaden the reach of the statutory
flagrant provisions provided by Congress. See Drummond Co., 14 FMSHRC 661, 674-75 (May
1992) (holding that the Commission’s adjudicative powers are a means to enhance public
confidence in the implementation of the Mine Act). I am only suggesting that Congress could not
have contemplated that the majority of frequently cited section 75.400 violations should be
designated as flagrant simply by assuming grave smoke inhalation injuries occurring as a
consequence of an assumed fire without due regard to the specifics of a particular case.
ii. Broad Interpretation
Spillage, by nature, occurs suddenly. Consequently, a spillage violation may not satisfy
the Commission’s “narrow” duration criteria for a “repeated” flagrant violation. Under the
Commission’s broad approach, an accumulation violation may be designated as a “repeated”
flagrant violation based on a relevant history of similar violations. While a history of violations
is one of many considerations in an unwarrantable failure analysis, consistent with Wolf Run, as
elaborated in American Coal, a relevant recurrent history of violations may provide the sole basis
for a “repeated” designation of a spillage violation under a “broad” analysis. Under such
circumstances, Monongalia’s 147 violations of section 75.400 in the two years preceding the
issuance of a citation for an alleged spillage violation may constitute the requisite recurrent
history under a broad analysis.

40 FMSHRC Page 1257

On the other hand, virtually all coal dust accumulation violations that are not caused by
spillage satisfy the “narrow” “repeated” element because they must have developed and gone
unaddressed for at least more than one shift. Consequently, the question of whether violative
accumulations not caused by spillage can be a “repeated” flagrant violation under the “broad”
approach is moot.
Notwithstanding the moot nature of the “broad” analysis, in American Coal the
Commission sought the Judge’s input with respect to fashioning the criteria for a “broad”
analysis of the “repeated” provision as it applies to accumulation violations. 38 FMSHRC at
2082. In this case, rather than relying on a general history of violations, the Secretary asserts that
“predicate” violations that satisfy the requirements for a flagrant violation, but have not been
designated as flagrant,14 may serve as the basis for demonstrating a “repeated” flagrant violation
under a “broad” analysis.15 Sec’y Post-Hr’g Br. at 46-47.
The Commission has the unquestioned adjudicative authority to resolve disputes
concerning the validity of enforcement actions. Freeman United Coal Co., 6 FMSHRC 1577,
1580-81 (July 1984). In addressing its adjudicative function, the Commission has stated:
The Mine Act expressly empowers the Commission to grant review of
“question[s] of law, policy or discretion,” and to direct review sua sponte of
matters that are “contrary to … Commission policy” or that present a “novel
question of policy….” Since Congress authorized the Commission to direct such
matters for review, we infer that Congress intended the Commission to possess
the necessary adjudicative power to resolve them. The reason the Commission
was created by Congress and equipped with broad remedial powers and policy
jurisdiction was to assure due process protection under the statute and, hence, to
enhance public confidence in the mine safety and health program. Addressing
claims of arbitrary enforcement by the Secretary is at the heart of [the
Commission’s] adjudicative role.
Drummond Co., 14 FMSHRC at 674-75 (emphasis added) (footnote omitted) (citations omitted).
Consistent with Drummond, section 706(2)(A) of the Administrative Procedure Act (“APA”)
requires setting aside agency action that is arbitrary, capricious, or an abuse of discretion.
5 U.S.C. § 706(2)(A).
Although the Commission has concluded that a “broad” analysis is a viable option, the
Secretary’s reliance on predicates in a “broad” analysis must be rejected for several reasons. As
14

The Secretary alleges that the relied upon predicate violations “were the result of
Respondent’s failures to make reasonable efforts to eliminate known violations of a mandatory
health or safety standard that reasonably could have been expected to cause death or serious
bodily injury.” Sec’y Post-Hr’g Br. at 46-47.
15

As previously noted, application of the Secretary’s “repeated” predicate theory in
instances where the discrete violation is not of significant duration, would still require
satisfaction of all other elements identified by the Commission for a flagrant designation.

40 FMSHRC Page 1258

an initial matter, the Secretary’s failure to designate the purported predicate violations as
flagrant, even though they allegedly satisfy the flagrant provisions, is the epitome of arbitrary
and capricious enforcement action that must be rejected. For it is odd that the Secretary would
propose that alleged predicates that meet the criteria for a flagrant violation, but are not
designated as such, would serve as a basis for designating a subsequent violation as flagrant even
though the violation does not otherwise meet the “reckless” or “repeated” statutory criteria.
Moreover, the Secretary seeks to impose his “predicate” framework on mine operators
without having engaged in a relevant notice and comment rulemaking. The Commission noted in
Drummond, that while the APA does not require adherence to the notice and comment process
for interpretive rules or general statement of policy, a formal notice and comment rulemaking is
required for agency actions that affect substantive rights.16 5 U.S.C. § 553; Drummond Co., 14
FMSHRC at 690, (holding a Program Policy Letter that that affects substantive rights requires a
notice and comment rulemaking under the APA). Clearly, the “predicate” framework that
exposes operators to liability for enhanced penalties under the flagrant provisions affects
substantive rights. See id.
Finally, and perhaps most significantly, the Secretary has failed to successfully
demonstrate a “repeated” flagrant designation based on predicate violations despite having
repeatedly attempted to do so. In this regard, in accumulations cases before the Commission, the
Secretary has consistently sought to settle his “broad” flagrant enforcement positions by
withdrawing his “repeated” flagrant designations. See, e.g., American Coal Co., 40 FMSHRC
330, 332 (Mar. 2018); Oak Grove Res., 38 FMSHRC at 964; Conshor Mining, LLC, 37
FMSHRC 1845, 1846 (Aug. 2015) (ALJ); Wolf Run Mining Co., 31 FMSHRC 479, 479 (Apr.
2009) (ALJ).
Most recently, in American Coal, the Secretary agreed to amended settlement terms for
consideration by the Commission that withdraw the “repeated” flagrant designation for an
accumulations violation. Amended Jt. Mot. to Approve Settlement, Docket No. LAKE 20090035 (May 18, 2018). In so doing, the Secretary agreed to a reduction in the degree of gravity to
reflect that the violation initially designated as “flagrant” will result in no more than a “lost
workday or restricted duty” injury. Id. Having moved for the deletion of the flagrant designation,
the Secretary agreed to reduce the initial proposed penalty of $164,700.00 to $11,307.00. Id. In
an order issued June 15, 2018, the amended settlement terms deleting the flagrant designation,
reducing the level of gravity, and substantially reducing the assessed penalty were approved by
16

It is not uncommon for Congress, through enabling statutes, to delegate to
administrative agencies the authority to establish policy through either rulemaking or
adjudication. See, e.g., City of Arlington, Tex. v. F.C.C., 668 F.3d 229, 240 (Jan 2012) (holding
that the Federal Communications Commission has the discretion to announce rules through
either adjudication or rulemaking). However Congress, in the Mine Act, delegated to the
Commission the exclusive authority to resolve questions of law and policy through adjudication.
30 U.S.C. § 823(a); see Thunder Basin Coal Co. 510 U.S. 200, n.9 (Jan. 1994); see also S. REP.
NO. 95-181, at 47-48 (1977), as reprinted in 1978 U.S.C.C.A.N. 3401, 3446-47. Consequently,
the Mine Act precludes the Secretary from circumventing the rulemaking requirements in section
553 of the APA as he lacks the authority to unilaterally set policy though adjudication.

40 FMSHRC Page 1259

the Commission. Order, 40 FMSHRC ___ (Mar. 2018). Suffice it to say, the Secretary’s
persistent removal of flagrant designations reflects a lack of confidence in his reliance on the
suitability of predicates as a basis for demonstrating a “repeated” flagrant designation in
accumulations cases.
d.

Civil Penalty

The Commission outlined the parameters of its responsibility for assessing civil penalties
in Douglas R. Rushford Trucking, 22 FMSHRC 598 (May 2000). The Commission stated:
The principles governing the Commission's authority to assess civil penalties de
novo for violations of the Mine Act are well established. Section 110(i) of the
Mine Act delegates to the Commission “authority to assess all civil penalties
provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of
proposing penalties to the Secretary. 30 U.S.C. §§ 815(a) and 820(a). Thus, when
an operator notifies the Secretary that it intends to challenge a penalty, the
Secretary petitions the Commission to assess the penalty. 29 C.F.R. §§ 2700.28
and 2700.44. The Act requires that, “[i]n assessing civil monetary penalties, the
Commission [ALJ] shall consider” six statutory penalty criteria:
[1] the operator's history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect of the operator's ability to continue in business, [5] the
gravity of the violations, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.
22 FMSHRC at 600 (citing 30 U.S.C. § 820(i)). The Commission has noted that de novo
consideration of the appropriate civil penalties does not require “that equal weight must be
assigned to each of the penalty assessment criteria.” Thunder Basin Coal Co., 19 FMSHRC
1495, 1503 (Sept. 1997).
In keeping with this statutory requirement, the Commission has held that “findings of fact
on the statutory penalty criteria must be made” by its judges. Sellersburg Stone Co., 5 FMSHRC
287, 292 (Mar. 1983). Once findings on the statutory criteria have been made, a judge’s penalty
assessment for a particular violation is an exercise of discretion, which is bounded by proper
consideration for the statutory criteria and the deterrent purposes of the Mine Act. Id. at 294;
Cantera Green, 22 FMSHRC 616, 620 (May 2000).
The maximum penalty for a violation attributable to an unwarrantable failure is
$70,000.00. 30 U.S.C. § 820(a)(1). The maximum penalty for a violation properly designated as
flagrant is $220,000.00, adjusted for inflation. 30 U.S.C. § 820(b)(2). The Secretary seeks to
impose a civil penalty of $121,300.00 for the subject accumulations violation based on the
assertion that the violation is attributable to an unwarrantable failure, and that it is properly
designated as a flagrant violation.

40 FMSHRC Page 1260

Turning to the civil penalty criteria in section 110(i) of the Act, the evidence reflects that
Monongalia is a large mine operator. Monongalia has stipulated, in essence, that the Secretary’s
proposed penalty in this matter is not disproportionate to the size of its business and would not
impede its ability to remain in business. See stipulation number 5, supra page 4. Monongalia
made good faith efforts to address the cited accumulations after notification of the violation.
While Monongalia’s history of 147 section 75.400 violations issued in the two years preceding
the issuance of the subject citation is not exemplary, the violation history must be viewed in the
context of the large size of the Monongalia County Mine that contains approximately 12 miles of
beltline.
The deletion of the unwarrantable failure and flagrant designations with respect to the
subject accumulations reflects a meaningful reduction in the gravity of the violation as well as
Monongalia’s degree of negligence. Nevertheless, although the flagrant and unwarrantable
designations shall be deleted, the degree of Monongalia’s negligence remains high given the
duration and extent of the subject accumulations. Consequently, a civil penalty of $60,000.00
shall be imposed for modification of 104(d)(2) Order No. 8059209 to a 104(a) citation.
IV. Order No. 8059212
Findings of Fact
After observing the accumulation conditions in the 5 West No. 1 belt entry from the 6 to
the 34 block, Peddicord continued to travel inby to the 40 block. Tr. II 52. At the 41 block
Peddicord traveled through a personnel door where he determined that there was no longer an
obstruction that precluded him from traveling by mantrip to the 13 West headgate section, the
area he initially intended to inspect. Id. Peddicord’s inspection of the 13 West headgate section
did not disclose any violations of mandatory safety regulations. Id. 52-53.
Upon completion of his inspection, Peddicord exited the mine and traveled to the mine
office where he issued citations for the violative accumulation conditions he observed in the 5
West No. 1 belt entry. Id. at 53-54. Although Peddicord reviewed the preshift examination book
for the 13 West headgate section prior to entering the mine, upon returning to the surface,
Peddicord reviewed the preshift examination book for the 5 West No. 1 belt entry. Peddicord
determined that the preshift examination of the belt entry conducted during the midnight shift
between 5:00 a.m. to 7:16 a.m. for the oncoming day shift on July 30, 2014, was inadequate.
Resp’t Ex. 4.
Consequently, Peddicord issued Order No. 8059212 for an alleged inadequate preshift
examination in violation of the mandatory safety standard in 30 C.F.R. § 75.360(a)(l) that he
attributed to an unwarrantable failure. Order No. 8059212 states:
The operator failed to conduct an adequate preshift examination for the 5West Company #1 belt conveyor on the examination conducted on midnight shift
for dayshift of 7-30-2014. A D-2 order #8059209 was issued for accumulations of
combustible material being in numerous locations from 6 block to 34 block on
this belt. Citation #8059210 was issued for damaged rollers being present along

40 FMSHRC Page 1261

this belt conveyor in the same location as cited accumulations. One of these
rollers emitted visible steam when water was applied. Belt was in operation at
time of inspection. Also, Citation #8059211 was issued for bottom belt contacting
7 consecutive bottom roller cradles at 27 block, which is also in the same area as
the cited accumulations. Accumulations were obvious and extensive and in
contact with many bottom rollers. Accumulations were dark brown in color and
easily visible. The accumulations were over 3400 feet long. The person
conducting this examination failed to report and/or record any of the conditions
discovered during inspection. These conditions were obvious and extensive and
should have been reported and corrected. These areas are required to be preshifted
each shift by a certified mine examiner, because this is an active belt conveyor,
and miners are scheduled to work and travel in these areas. A prudent
examination of these areas would have resulted in the condition being found and
reported. Proper examinations are the first line of defense for the health and safety
of the miners. Foot prints were also observed through the cited accumulations
along the cited accumulation areas. This mine is on a 5- day 103 (I) spot
inspection for liberating over 1 million cubic feet of methane in a 24 hour period.
Discovering and reporting hazardous conditions to mine management is one of
the lines of defense for the health and safety of the miners. If normal mining
operations were to continue and inadequate examinations were to continue it is
reasonably likely that miners will suffer injuries from being exposed to unknown
hazardous conditions. This condition is an unwarrantable failure to comply with a
mandatory health and safety standard. This violation is an unwarrantable failure to
comply with a mandatory standard.
Sec’y Ex. 6; Resp’t Ex. 4
Disposition
a.

Unwarrantable Failure

The cited mandatory safety standard in section 75.360(a)(1), provides, in pertinent part:
(a)(1) [A] certified person designated by the operator must make a preshift
examination within 3 hours preceding the beginning of any 8-hour interval during
which any person is scheduled to work or travel underground. No person other
than certified examiners may enter or remain in any underground area unless a
preshift examination has been competed for the established 8-hour interval.
30 C.F.R. § 75.360(a)(1).
In determining whether a violation of section 75.360(a)(1) has occurred, the Commission
looks to whether the preshift examination was “adequate” in identifying hazardous conditions.
See, e.g., RAG Cumberland Resources LP, 26 FMSHRC 639, 648 (Aug. 2004), aff’d, 171 Fed.
Appx. 852 (D.C. Cir. 2005). Here, it is undisputed that the preshift examination was inadequate
as evidenced by Monongalia’s stipulation to the fact of the violation as well as the S&S

40 FMSHRC Page 1262

designation. Tr. II 233. However the extent of inadequacy with respect to an unwarrantable
failure is a matter of degree. Although the general factors of an unwarrantable failure have
previously been discussed, the dispositive issue is whether the cited preshift examination was so
perfunctory or otherwise ineffective that it evidences a degree of negligence that rises to the level
of “aggravated conduct” or “indifference.” Emery Mining Corp., 9 FMSHRC at 2003.
As a preliminary matter, an element of the preshift violation cited in Order No. 8059212
is the failure of the belt examiner to note the conditions cited in Citation No. 8059211 “for
bottom belt contacting [six] consecutive bottom rollers at the 27 block, which is also in the same
area as the cited accumulations.” Sec’y Ex. 6. Specifically, misaligned belt Citation No. 8059211
states, “The 5-West Company # 1 belt conveyor is not properly aligned to prevent the moving
belt conveyor from contacting belt components in the 27 block[.]” Sec’y Ex. 4. Permitting the
misaligned belt condition at the 27 block to remain uncorrected was attributed to a low degree of
negligence. Id. Yet, the Secretary seeks to rely on Monongalia’s failure to note this condition in
the preshift examination to support his assertion that the violation is attributable to aggravated
conduct. Sec’y Ex. 6; Resp’t Ex. 4.
Viewing Order No. 8059212 in its entirety, the violation is predicated on the alleged
inadequacy of the preshift examination conducted from 5:00 a.m. to 7:16 a.m. on July 30, 2014,
rather than on an alleged series of inadequate preshift examinations. Resp’t Ex. 4. Thus,
evaluating the degree of inadequacy of the subject examination requires consideration of the
preshift examiner’s notations holistically to determine the extent to which relevant hazardous
conditions, located between the 6 and 34 blocks, were noted or overlooked. In this regard, the
preshift examiner made several significant relevant notations concerning the belt entry
conditions in the area inspected by Peddicord. Resp’t Ex. 25. These relevant notations are: a bad
top roller at the 23 block; dark gray accumulations at the 25 block through the 34 block; and
spillage at the 16 block through the 25 block. Id. Thus, while the subject preshift examination
was inadequate, the relevant accumulation-related conditions noted by the examiner, including
accumulations from the 15 block to the 34 block, reflect that the examination was neither
perfunctory nor so ineffective as to render it meaningless.
In addition, the cited preshift examination conducted from 5:00 a.m. to 7:16 a.m. reflects
notations for numerous conditions with regard to the belt entry conditions in areas that were not
inspected by Peddicord. Id. Specifically, the preshift examiner noted: broken chains at blocks 96,
and 97; bad top rollers at blocks 40, 55, and 63; bad bottom rollers at blocks 41, 47, 63, and 91;
and water and spillage at the No. 1 tailpiece and No. 2 tailpiece. Id.
In addition to examining the adequacy of the subject preshift examination, the adequacy
of the preshift examinations preceding the subject examination is relevant. The numerous
notations contained in the preceding preshift examinations demonstrate that Monongalia was
aware of its obligation to conduct meaningful preshift examinations pursuant to section
75.360(a)(1). Id. For example, the following notations were recorded: July 27, 2014, preshift

40 FMSHRC Page 1263

records contain notations for broken chains at blocks 26, 38, 39, and 40; July 28, 2014, preshift
examination records contain notations for broken chains at blocks 36 through 40 and spillage at
blocks 25 through 35; and July 29, 2014, preshift records contain notations for broken chains at
blocks 36 through 40, bad top rollers at blocks 22 and 32, accumulations at blocks 25 through 34,
and spillage at blocks 16 through 25. Id.
Consequently, the multiple relevant notations in the preshift examinations immediately
preceding the subject examination support the inference that Monongalia was aware of, and was
not indifferent to, its responsibility to conduct effective preshift examinations. Garden Creek
Pocahontas Co., 11 FMSHRC 2148, 2153 (Nov. 1989) (holding that reasonable inferences may
be drawn if there is a “rational connection between the evidentiary facts and the ultimate fact to
be inferred”).
Significantly, the Secretary has failed to present any evidence of a relevant history of
section 75.360(a)(1) violations that would have placed Monongalia on notice that greater efforts
to perform thorough examinations were required. Sec’y Ex. 40. On balance, although inadequate,
the relevant notations with regard to accumulation conditions between the 6 block and 34 block,
made during the subject preshift examination, reflect that the inadequacy is attributable to no
more than a moderately high degree of negligence. Accordingly, the Secretary has failed to
demonstrate that the subject preshift examination rises to the level of aggravated conduct
evidencing “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious lack of
reasonable care.” Emery Mining Corp., 9 FMSHRC at 2001. Therefore, 104(d)(2) Order No.
8059212 shall be modified to a 104(a) citation to reflect that the cited preshift examination
violation is not attributable to an unwarrantable failure.
b.

Civil Penalty

The Secretary seeks to impose a civil penalty of $40,300.00 for the subject preshift
examination violation. Sec’y Ex. 7. Applying the penalty criteria in section 110(i) of the Act, the
evidence reflects Monongalia is a large mine operator. Monongalia has stipulated, in essence,
that the Secretary’s proposed penalty in this matter is not disproportionate to the size of its
business and would not impede its ability to remain in business. See stipulation number 5, supra
page 4. While the preshift examination was inadequate with respect to accumulation conditions
between the 6 and 34 blocks, there were numerous notations in the examination book along the
entire length of the 5 West No. 1 belt entry. Resp’t Ex. 25. It is an additional mitigating factor
that the ignition sources that concerned Peddicord, that were overlooked by the preshift
examiner, were attributed to low or moderate negligence. Resp’t Exs. 2, 3; Sec’y Exs. 3, 4.
Significantly, the relevant history of violations proffered by the Secretary reflects that it is a
neutral factor in that there were no citations issued for inadequate preshift examinations in the
two years preceding the issuance of Order No. 8059212. Sec’y Ex. 40; JWR, Inc., 28 FMSHRC
983, 995 (Dec. 2006) (holding that a general history of violations is sufficient to defeat an
operator’s claim that an absence of a history of similar violations is a mitigating circumstance
with respect to the appropriate civil penalty). Finally, the deletion of the unwarrantable failure
designation reflects a meaningful reduction in Monongalia’s degree of negligence.

40 FMSHRC Page 1264

Despite the numerous notations concerning accumulations and conveyor conditions along
the entire length of the 5 West No. 1 belt entry, the belt examiner’s failure to adequately note the
accumulations-related conditions between the 6 and 34 blocks during the preshift examination
from 5:00 a.m. to 7:16 a.m. on July 30, 2014, evidences a moderately high degree of negligence.
Given the nature and extent of the unrecorded accumulations, a civil penalty of $22,200.00
shall be imposed for modified 104(a) Citation No. 8059212.
ORDER
IT IS ORDERED that Order No. 8059209 IS MODIFIED to a 104(a) citation to reflect
that the unwarrantable failure and flagrant designations ARE DELETED.
IT IS FURTHER ORDERED that Order No. 8059212 IS MODIFIED to a 104(a)
citation to reflect that the unwarrantable failure designation IS DELETED.
IT IS FURTHER ORDERED that the significant and substantial designations in 104(a)
Citation Nos. 8059209 and 8059212 ARE AFFIRMED.
IT IS FURTHER ORDERED that The Monongalia County Coal Company shall pay a
civil penalty of $60,000.00 in satisfaction of 104(a) Citation No. 8059209, and a civil penalty of
$22,200.00 for 104(a) Citation No. 8059212.
IT IS FURTHER ORDERED that The Monongalia Coal Company pay, within 40 days
of the date of this decision, a total civil penalty of $82,200.00 in satisfaction of the two citations
at issue.17

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge

17

Payment should be sent to the Mine Safety and Health Administration, U.S.
Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please
include the Docket Nos. and A.C. Nos. noted in the above caption on the check.

40 FMSHRC Page 1265

Distribution:
John A. Nocito, Esq., Suite 630E, The Curtis Center, 170 S. Independence Mall West,
Philadelphia, PA 19106-3306 nocito.john@dol.gov
Helga P. Spencer, Esq., Suite 630E, The Curtis Center, 170 S. Independence Mall West,
Philadelphia, PA 19106-3306 spencer.helga.p@dol.gov
Jason W. Hardin, Esq., 215 South State Street, Suite 1200, Salt Lake City, UT 84111-2323
jhardin@fabianvancott.com
Artemis Vamianakis, Esq., 215 South State Street, Suite 1200, Salt Lake City, UT 84111-2323
avamianakis@fabianvancott.com

40 FMSHRC Page 1266

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

August 22, 2018
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. WEST 2017-0377
A.C. No. 04-00156-434274 VVG

v.
RAIN FOR RENT,
Respondent.

Mine: Natividad Plant
DECISION

Appearances: Isabella M. Finneman, Esq., Joshua Love, Esq., U.S. Department of Labor, Office
of the Solicitor, San Francisco, California, for Petitioner;
Byron Walker, Esq., Jack Easterly, Esq., Tim Boe, Esq., Rose Law Firm, Little
Rock, Arkansas, for Respondent.
Before:

Judge Simonton
I. INTRODUCTION

This simplified proceeding is before me upon the Secretary of Labor’s petition for
assessment of a civil penalty pursuant to Section 105(d) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 815(d) (“the Act”).1 The docket involves a single citation issued
pursuant to Section 104(a) of the Act with a proposed penalty of $116.00. The parties presented
testimony and evidence regarding the citation at a hearing held in San Francisco, California, on
May 15, 2018. Based upon the parties’ stipulations, my review of the entire record, my
observation of the demeanor of the witnesses, and consideration of the parties’ legal arguments, I
make the following findings and order.
II. STIPULATIONS OF FACT
The parties jointly filed the following stipulations of fact:
1. Respondent Rain for Rent is a contractor that provides temporary liquid handling
solutions, including pumps, tanks, filtration and spill containment to different industries,
including mine operators in the United States, Canada, and United Kingdom.
1

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

40 FMSHRC Page 1267

2. Respondent provided services to Lhoist North America of Arizona, Inc., which operates
the Natividad Plant, MSHA I.D. No. 04-00156, in Monterey County, California.
3. This matter is subject to the jurisdiction of the Commission and the assigned judge.
4. The subject citation was properly served by a duly authorized representative on the date
and place stated therein, and may be admitted into evidence for the purpose of
establishing its issuance but not for the truthfulness or relevance of any statements
asserted therein.
5. Respondent demonstrated good faith in abating the conditions noted in the subject
citation.
6. The Rain for Rent company truck referenced in Citation No. 8785566 was parked on flat,
level ground in the parking area of the mine office.
7. The MSHA inspector observed the alleged violation referenced in Citation No. 8785566
upon opening the truck door.
8. The MSHA inspector did not communicate with Rain for Rent or its representative before
opening the door referenced in Citation No. 8785566.
9. The truck referenced in Citation No. 8785566 is marked with the Rain for Rent logo and
related information on its exterior.
10. Respondent and its representatives cooperated with the Secretary during the inspection
that resulted in the issuance of the subject citation.
11. Respondent demonstrated good faith in addressing the conditions noted in the subject
citation.
12. The alleged violation in Citation No. 8785566 was terminated immediately after its
issuance.
III. FINDINGS OF FACT
The Natividad Plant is a limestone quarry and mill located in Monterey County,
California, and operated by Lhoist North America of Arizona, Inc. (“Lhoist”). Prior to the
inspection at issue, Lhoist contracted with Rain for Rent (“Respondent”) to pump an
accumulation of rainwater out of the quarry pit. Jt. Stip. #2; Ex. S–6; Tr. 42. Rain for Rent
employee Jaime Tejeda (“Tejeda”) visited the mine site several times to install the pump,
perform maintenance and repairs, and replace the original pump with a larger model. Ex. S–7;
Tr. 42-43. Tejeda signed in at the mine office on behalf of Rain for Rent upon each visit. Id.

40 FMSHRC Page 1268

On February 8, 2018, MSHA Inspector Nicholas Basich arrived at the Natividad Plant to
begin the second day of a routine 11-day inspection.2 Tr. 23. He entered the mine site by turning
off of Old Stage Road into the mine driveway and proceeded approximately 400 feet to the mine
office. Ex. S–2, S–3; Tr. 25. Basich checked in at the office and arranged to meet a Lhoist
representative in the office parking lot to begin the inspection. Tr. 29-30. While waiting, Basich
observed Tejeda drive a flatbed truck into the parking lot, park, and enter the mine office. Tr. 3031. The truck had a “Rain for Rent” insignia on its door and a Department of Transportation
Number, and Basich concluded that Tejeda intended to sign in and enter the quarry site. Jt. Stip.
#9; Ex. S–5; Tr. 33-35. Basich noticed the truck rock back and forth once parked, which led him
to believe that Tejeda did not set the parking brake. Id. Basich approached the truck and, unable
to see the brake through the truck’s windows, opened the driver side door for a better look. Tr.
32-33. He confirmed that the parking brake was not set and began to take photographs of the
condition when Tejeda exited the office and returned to the vehicle. Tr. 32-33, 35. Basich
identified himself to Tejeda as a MSHA inspector, stated that he was conducting an inspection of
the truck based upon his belief that the parking brake was not set, and stated that the parking
brake was in fact not set. Tr. 35-36. He issued Citation No. 8785566 alleging a violation of 30
C.F.R. § 56.14207:
The Ford F-550 Flatbed truck (Rain for Rent company truck), in a parked an
unattended attended [sic] condition adjacent to the mine office at the mine, does
not have the parking brake set. The truck is parked on flat, level ground with the
transmission in park. The practice of not setting the parking brake when leaving a
truck or mobile equipment unattended on a mine site exposes miners to the
unplanned and unwarned movement of the vehicle/mobile equipment. No lost
time injuries would be expected from the truck parked in this locate and in this
condition. If the truck were parked on a slope or grade, serious potentially fatal
crushing type injuries would be expected.
Ex. S–4. Inspector Basich designated the citation non-S&S, unlikely to result in lost workdays,
and the result of Rain for Rent’s moderate negligence. Id. The Secretary assessed a penalty of
$116.00. Rain for Rent quickly terminated the citation. Jt. Stip. #5, 11; Tr. 35, 95.

2

Inspector Basich has worked as an MSHA Inspector for five years. Tr. 22. He worked in
the heavy construction industry for 42 years prior to joining MSHA. Id. He has completed 21
weeks of MSHA training at Beckley Academy and has completed on the job training, special
investigation training, and mobile equipment training. Tr. 23.

40 FMSHRC Page 1269

IV. DISPOSITION
Rain for Rent denies the validity of the citation on multiple grounds.3 Respondent
contends that MSHA lacked jurisdiction over the parking lot and its truck. It argues that the
parking lot is not a “mine” as defined by the Act. Respondent’s Post-Hearing Brief (“Resp. Br.”)
at 8. It further argues that Tejeda was not “performing services” at the mine at the time the
citation was issued and was therefore not an “operator” as defined by the Act. Id. at 5. Rain for
Rent also contends that Inspector Basich violated its Fourth Amendment rights when he entered
the truck while Tejeda was away from the vehicle in contravention of the regular and certain
inspection procedures required by the Mine Act. Resp. Br. at 14; Respondent’s Reply to
Secretary’s Post-Hearing Brief (“Resp. Rep.”) at 3. Rain for Rent also argues Basich’s denial of
its walkaround rights pursuant to § 103(f) of the Mine Act resulted in actual prejudice and
justifies vacatur of the citation in and of itself. Resp. Br. at 17. Finally, Respondent contests the
fact of violation as well as the negligence and gravity designations in the citation. Resp. Br. at
12; Resp. Rep. at 2.
The Secretary contends that MSHA properly asserted jurisdiction over the lot and the
truck. Secretary’s Post-Hearing Brief (“Sec’y Br.”) at 6. The Secretary further contends that the
search of the truck was reasonable because § 103(a) grants MSHA Inspectors the right to enter
and inspect the truck without providing advance notice. Id. at 4. The Secretary also argues that
Rain for Rent was not denied its walkaround rights because Tejeda returned to the truck and
spoke with Inspector Basich while he was still conducting the inspection. Id.
For the reasons set forth below, I affirm the citation as written.
A. Jurisdiction
The Office and Parking Lot
The Mine Act provides that “[e]ach coal or other mine . . . and each operator of such
mine . . . shall be subject to the provisions of this Act.” 30 U.S.C. § 803. Thus, in order to prove
that MSHA had jurisdiction to issue the subject citation in this case, the Secretary must prove
that the violation occurred at a “mine” and that the citation was issued to an “operator.”

3

As a preliminary matter the court denies Respondent’s request for a new hearing based
on the Supreme Court’s recent decision in Lucia v. Securities and Exchange Commission, 135
S.Ct. 2044 (2018). See Respondent’s Post-Hearing Brief, at 21, n. 17. The full Commission
unanimously ratified the appointment of its ALJs on April 3, 2018, more than a month prior to
this hearing. Federal Mine Safety and Health Review Commission, Commission Ratification
Notice, http://www.fmshrc.gov/about/news/commission-ratification-notice (Apr. 3, 2018). Thus,
this court was constitutionally appointed as required by Lucia and Respondent is not entitled to a
new hearing. See Lucia, 135 S. Ct. at 2050; Free Enter. Fund v. Pub. Co. Accounting Oversight
Bd., 561 U.S. 477, 512-13 (2010); see also Jones Bros. Inc. v. FMSHRC, No. 17-3483, slid op. at
11 (6th Cir. July 31, 2018).

40 FMSHRC Page 1270

The Act defines a “coal or other mine” as
(A) an area of land from which minerals are extracted in nonliquid
form . . . (B) private ways and roads appurtenant to such area, and
(C) lands, excavations, underground passageways, shafts, slopes,
tunnels and workings, structures, facilities, equipment, machines,
tools, or other property including impoundments, retention dams,
and tailings ponds, on the surface or underground, used in, or to be
used in, or resulting from, the work of extracting such minerals
from their natural deposits in nonliquid form, . . . or used in, or to
be used in, the milling of such minerals, or the work of preparing
coal or other minerals . . . .
30 U.S.C. § 802(h) (1). The Secretary has interpreted subsection (A) of this definition to refer to
“extraction areas and everything within their boundaries.” See Sec’y of Labor v. Nat’l Cement
Co. of Cal., 573 F.3d 788, 793 (D.C. Cir. July 2009). He interprets subsection (B) to include
roads but not the vehicles on them, while (C) reaches equipment including vehicles, tools, and
other property used in mining but not located within an extraction area. Id. at 795. This
interpretation has been accepted by the D.C. Circuit. Id. (holding that the Secretary’s
interpretation of subsection B is reasonable as part of the Mine Act’s overall enforcement
scheme). The Commission has applied subsection (C) to find that jurisdiction existed over a
warehouse located one mile from the closest extraction site because it was a “facilit[y] … used in
mining.” Jim Walter Res., Inc., 22 FMSHRC 21 (Jan. 2000). The Commission has also affirmed
MSHA’s jurisdiction over various “equipment … used in mining,” including trucks and
conveyors used in the screening process but located on a public road, State of Alaska, Dep’t of
Transp., 36 FMSHRC 2642, 2647 (Oct. 2014); a dragline being assembled at a site one mile
from where coal was being mined, Justis Supply & Machine Shop, 22 FMSHRC 1292, 2000 WL
1682492 (Nov. 2000); and a garage adjacent to an asphalt plant and used for mining work, W.J.
Bokus Industries, Inc., 16 FMSHRC 704 (Apr. 1994). The recent Sixth Circuit case Maxxim
Rebuild suggests that application of subsection (C) may be limited to locations in or adjacent to a
working mine. Maxxim Rebuild v. FMSHRC, 848 F.3d 737, 740 (6th Cir. 2017).
The legislative history of the Act indicates that the intention of Congress was that “what
is considered to be a mine and to be regulated under this Act be given the broadest possibl[e]
interpretation, and it is the intent of this Committee that doubts be resolved in favor of inclusion
of a facility within the coverage of the Act.” S. Rep. No. 95-181, at 14 (1977). Accordingly, the
Commission has construed Section 3(h) (1) broadly in favor of Mine Act coverage. See, e.g.,
State of Alaska, Dep’t of Transp., 36 FMSHRC 2642, 2647 (Oct. 2014); Calmat Co. of Ariz., 27
FMSHRC 617, 622, 624 (Sept. 2005).
I find that the Plant office and the parking lot were “facilit[ies] used in the work of”
mining in accordance with subsection (C). The Natividad Plant is a working mine. The office
and parking lot are located on mine property and adjacent to the Plant’s active extraction sites.
Ex. S–1, S–2; Tr. 26. Lhoist directed mining operations out of the office and kept paperwork and
examination records there. Tr. 30. The parking lot serviced the office and was adjacent to the
Plant’s primary plant crusher. Tr. 30, 64-65, 79. Miners, contractors, and vendors parked their
professional vehicles in the lot to sign in and receive authorization to enter the mine site to

40 FMSHRC Page 1271

perform work. Tr. 30, 79. The office and parking lot are thus geographically and functionally
related to the mining process at Natividad Plant and are subject to MSHA jurisdiction under the
Act.
Respondent contends that the Secretary’s assertion of jurisdiction over the office and
parking lot is inconsistent with the structure and purpose of subsections (B) and (C) because the
Secretary has taken conflicting stances on his inspection policy. Resp. Br. at 8. It contends that
Inspector Basich put forth two novel interpretations of MSHA’s jurisdiction over parking lots at
hearing to improperly include the lot at issue. See Resp. Br. at 9. Respondent contends that these
interpretations, which it nicknamed the “doing business test” and “lease test,” would lead to
absurd results that would permit MSHA to assert jurisdiction over miners’ vehicles in parking
lots located away from the mine or in lots adjacent to but not affiliated with the mine. Id. at 9-10.
Rain for Rent similarly claims that the Secretary’s interpretation necessarily and inappropriately
extends his jurisdiction over any private vehicles located in the parking lot.4 Resp. Br. at 12.
Respondent’s hypothetical scenarios contain material facts that are not present in the
instant case and are therefore of minimal relevance to its disposition. See Nat’l Cement Co., 573
F.3d 788, 796 (D.C. Cir. July 2009) (“The theoretical possibility that an agency might someday
abuse its authority is of limited relevance in determining whether the agency’s interpretation of a
congressional delegation is reasonable”). Here the Secretary reasonably applied the plain
language of subsection (C) to assert jurisdiction over the parking lot in question. The parking lot
is on Natividad Plant property, adjacent to active extraction sites, and used for mine-related
purposes. Likewise, the Secretary did not assert jurisdiction over any private vehicles in this
case, and Inspector Basich took reasonable steps to demonstrate that it was not his intent to do
so. He testified that the truck was clearly labeled as a Rain for Rent vehicle, and Tejeda drove it
on behalf of Rain for Rent to the parking lot with the intent to perform professional services at
the mine. Jt. Stip. #9; Ex. S–5, S–7; Tr. 33-35.
The parking lot is a facility used in the mining process and is subject to the jurisdiction of
the Act.
Rain for Rent’s Operator Status
Rain for Rent also argues that it was not an “operator” subject to the Act because Tejeda
was not “performing services” at the mine when the citation issued. Resp. Br. at 5. Section 3(d)
defines an “operator” as “any owner, lessee, or other person who operates, controls, or supervises
a coal or other mine or any independent contractor performing services or construction at such
mine.” 30 U.S.C. § 802(d). The Commission has held that the independent contractor language
4

Respondent notes that its inability to conduct discovery in this matter prevented it from
determining where Inspector Basich discerned MSHA policy prohibiting the inspection of
personal vehicles. Resp. Br. at 11, n. 6. The court acknowledges that simplified proceedings
limited discovery as required by 29 C.F.R. § 2700.100(b)(5). This does not amount to a
deprivation of due process rights that Respondent alleges. The legal questions presented in this
case and my findings are in no way dependent on Respondent’s inability to depose Inspector
Basich. Respondent had the opportunity to ask the Inspector about MSHA policy at hearing, and
indeed did so. Tr. 91.

40 FMSHRC Page 1272

of Section 3(d) “covers any independent contractor performing more than de minimis services at
a mine.”5 Musser Eng’g, Inc., 32 FMSHRC 1257, 1267–1270, 1276-79 (Oct. 2010) (Company
that prepared permit application and maps contained therein for a mine was an independent
contractor “performing services” at the mine).
The Commission has interpreted the language of § 3(d) to include a wide array of
services that need not be performed on mine property as long as the services are related to the
mine site and its operations. Joy Techs., Inc., 17 FMSHRC 303, 307-08 (Mar. 1995) (Contractor
that sold a continuous miner machine to a mine and performed maintenance services at the mine
site on four occasions was an operator because its work was more than de minimis and essential
to extraction at the mine); Thompson Electric, Inc., 39 FMSHRC 1228 (June 8, 2017) (ALJ)
(Contractor that provided electric services but was never present at the mine site for more than 5
consecutive days was an operator because the contractor was performing maintenance of mine
equipment on mine property); Agapito Assocs., Inc., 34 FMSHRC 3465 (Dec. 2012) (ALJ)
(Consulting company that performed services remotely and spent only 27 days on mine site over
a 12-year period and provided analysis of potential for retreat mining was an operator because its
work influenced the mine’s roof control plan).
I find that Rain for Rent is an “operator” under the Act. Rain for Rent was performing
ongoing services at the Natividad Plant that were related to the mine and its extraction process.
See Musser Eng’g, 32 FMSHRC at 1269; Joy Techs., 17 FMSHRC at 307-08; Agapito Assocs.,
Inc., 34 FMSHRC at 3465. Respondent has an MSHA Mine Contractor Identification Number
and contracted with Lhoist to pump floodwater out of the Natividad Plant’s quarry pit. Jt. Stip.
#2; Tr. 42-43. Lhoist was unable to extract lime from the quarry while water accumulated in the
pit and Rain for Rent’s services therefore facilitated the extraction process.
Rain for Rent’s presence at the mine was also more than de minimis. Prior to the
inspection at issue Tejeda drove the cited truck onto mine property on multiple occasions to
install, repair, and replace a water pump on the mine site. Ex. S–7; Tr. 42-43. On the day of the
citation, Tejeda parked the truck in the office parking lot with the intent to enter the mine site to
perform those same services. Id. Lhoist’s sign in sheets show that Tejeda remained at the mine
site for nearly two hours after signing in. Ex. S–7. Rain for Rent therefore contracted to perform
more than de minimis services directly related to mine operations at the Natividad Plant at the
time of the inspection.
5

Previous Commission cases applied a two-prong test addressing the independent
contractor’s “proximity to the extraction process and the extent of its presence at the mine.” Otis
Elevator Co., 11 FMSHRC 1896, 1902 (Oct. 1989); see also Old Dominion Power Co. v.
Donovan, 772 F.2d 92 (4th Cir.1985). However, the D.C. Circuit explicitly rejected this
approach in its review of the Otis Elevator decision, and no Circuit Court has applied the test
since. Otis Elevator Co. v. Secretary of Labor, 921 F.2d 1285, 1290 (D.C. Cir. 1990) (“Section
3(d) does not extend only to certain “independent contractor[s] performing services ... at [a]
mine”; by its terms, it extends to “any independent contractor performing services ... at [a]
mine.”); see also N. Ill. Steel Supply Co. v. Sec’y of Labor, 294 F.3d 844, 848-49 (7th Cir. 2002);
Joy Techs., Inc. v. Sec’y of Labor, 99 F.3d 991, 999-1000 (10th Cir. 1996). Commissioner Cohen
in Musser stated that a test based on the text of the statute is more appropriate and that the
Commission’s older precedent “merits reexamination.” Musser, 32 FMSHRC at 1267 n.10.

40 FMSHRC Page 1273

Rain for Rent’s contention that Tejeda was not “performing services” because he had not
yet signed in and entered the mine site at the time of the citation unduly narrows the scope of §
3(d). See Agapito Assocs., Inc., 34 FMSHRC at 3470 (“‘[T]he totality of the work’ performed
upon the pertinent project, not just the work relating to the underlying citations, ‘must be
considered on the jurisdiction issue”) citing Musser Eng’g Inc., 32 FMSHRC at 1269. Rain for
Rent was performing pumping services for Lhoist and Tejeda was an employee of Rain for Rent
tasked with performing those services. Tejeda’s work on behalf of Rain for Rent entailed
entering the Plant office to sign in and make his presence known on the site. The mere fact that
Tejeda had not yet signed in does not alter the professional nature of his visit or otherwise
diminish Rain for Rent’s status as an operator. See Musser Eng’g, 32 FMSHRC at 1269 (holding
that even services performed away from mine property are considered to be performed at a mine
if those services “relate to the mine”). The court declines to limit the jurisdictional reach of §
3(d) based upon down-to-the-minute actions of contractor employees on mine property when the
purpose of their presence is to perform services directly related to the extraction process.
Rain for Rent’s claim that the Secretary’s interpretation would improperly subject
contractor vehicles on mine property for purely personal reasons to liability under the Act is
unfounded and irrelevant to the facts surrounding the alleged violation. Resp. Br. at 7. Tejeda’s
truck was a business vehicle and Basich took clear and reasonable investigatory steps to
reasonably conclude that the truck was at the mine on behalf of Rain for Rent and that he was
therefore authorized to inspect it. Tr. 31-35, 73, 92. He credibly testified that the truck had a
“Rain for Rent” decal and a Department of Transportation Number. Tr. 31-35. Basich observed
Tejeda exit the truck and enter the mine office, and concluded that Tejeda intended to enter the
extraction site. Id.
Accordingly, I find that MSHA has jurisdiction over Rain for Rent’s employee and truck.
B. Fourth Amendment Considerations
Inspector Basich’s search of Respondent’s truck in Tejeda’s absence complied with the
Act’s regular and certain inspection procedures provided by § 103(a) and approved by the
Supreme Court.
The Supreme Court has held that the general inspection program of warrantless
inspections authorized by § 103(a) of the Mine Act does not violate the Fourth Amendment.
Donovan v. Dewey, 452 U.S. 594, 605 (1981). The dangerous nature of mining and ease with
which health or safety hazards can be concealed upon advance notice of an inspection indicate
that a warrant requirement would significantly frustrate the purposes of the Act. Id. at 603. The
Court found that in light of these factors, the Mine Act’s warrantless inspection program was a
constitutionally adequate substitute for the Fourth Amendment’s warrant requirement because it
notified operators of regular and frequent searches, outlined what health and safety standards
must be met to comply with the Act, curtailed the extent of government searches, and prohibited
forcible entry by requiring the Secretary to file a civil action when denied entry onto a mining
facility. Id. at 605. All mine owners and operators should thus be aware and even expect
continuous and frequent inspections without a warrant or probable cause. Id.

40 FMSHRC Page 1274

The Commission thus held that a deprivation of §103(f) walkaround rights during an
inspection does not violate the regular and certain inspection procedure provided for by the Mine
Act in violation of the Fourth Amendment because no advance notice is required to conduct an
inspection. SCP Investments, LLC (“SCP I”), 31 FMSHRC 821, 837 (Aug. 2009) (holding that
the failure of an MSHA inspector to permit a representative of the operator to accompany him on
an inspection “does not curtail the inspector’s right to enter and inspect the mine”); see also Big
Ridge, Inc., 36 FMSHRC 1677, 1725-26 (June 2014) (ALJ); DJB Welding Corp., 32 FMSHRC
728, 731, 32 (June 2010) (ALJ). Section 103(a) provides MSHA Inspectors with a right of entry
to, through, or upon any coal or other mine for the purpose of conducting an inspection without
giving advance notice, and includes the “the right to use any investigatory technique reasonably
related to the discovery of violations, so long as it is employed with reasonable limits and in a
reasonable manner.” DJB Welding Corp., 32 FMSHRC at 731-32.
In DJB Welding, the court held that an MSHA Inspector’s entry into a contractor’s
welding truck without notice or permission was reasonable because the truck was a work vehicle
that could present hazardous conditions on the mine site. Id. The search was thus an acceptable
investigatory technique that was reasonably related to enforcement of the Act. Id.
Much like the welding truck in DJB Welding, Inspector Basich’s search of the truck was
part of a routine inspection conducted at Natividad plant. The truck was a work vehicle located
on mine property and owned by a contractor performing work on the mine site, and could have
presented hazardous conditions on the site. Section 103(a) thus granted Inspector Basich the right
to enter the truck to inspect for potential violations without providing advanced notice to the
driver or waiting for him to return to the vehicle. Rain for Rent is an MSHA-registered
contractor and has been subject to MSHA inspections in the past; it should have a reasonable
expectation that regular inspections of its equipment could occur. Dewey, 452 U.S. at 603; cf. Big
Ridge, Inc., 36 FMSHRC 1677, 1726 (June 2014) (ALJ).
Furthermore, Basich’s decision to open the door was reasonably related to determining
whether Rain for Rent violated § 56.14207 of the Act. Basich testified that he noticed the Rain
for Rent truck rock back and forth in a manner that suggested the parking brake was not set. Tr.
33-35. He opened the door in furtherance of this investigation because he could not observe the
parking brake through the window or in any other manner. Tr. 32-33. This investigatory
technique was reasonable and necessary to determine whether the truck presented a hazardous
condition. There was nothing irregular or uncertain about Inspector Basich’s inspection of the
truck that would run afoul of the Supreme Court’s decision in Dewey, require a warrant, or
otherwise violate Rain for Rent’s Fourth Amendment rights.

40 FMSHRC Page 1275

I reject Respondent’s argument that Inspector Basich’s search deprived Respondent of its
claimed right to refuse an inspection based on jurisdictional grounds pursuant to §108(a)(1)(D).6
Section 108(a)(1)(D) does not expressly confer operators the right to refuse an inspection but
prohibits forcible entry and requires that the Secretary file a civil action in federal court when a
mine owner refuses entry onto a mine site or to mine equipment. See Dewey, 452 U.S. at 604.
The prohibition of forcible entry is not necessarily the same as the granted right to deny an
inspection. That the Act authorizes the Secretary to issue a citation to any operator that refuses or
interferes with an inspection indicates that MSHA’s right of entry under § 103(a) is to be
construed broadly and that an operator’s refusal or interference with an MSHA inspection is
forbidden and a “dereliction of [operators’] duty under the Act.” Topper Coal Co., 17 FMSHRC
945, 948 (June 1995) (ALJ) citing Waukesha Lime & Stone Co., 3 FMSHRC 1708 (July 1981).
Nor does the language of § 103(f) suggest that walkaround rights entail an operator’s
right to deny entry. That provision requires that an Inspector give an operator the opportunity to
accompany an inspection for the purpose of “aiding such inspection and to participate in pre- or
post-inspection conferences held at the mine.” 30 U.S.C. § 813(f). Thus, walkaround rights by
their very definition entail participation in an inspection, not refusal. Cf. SCP I, 31 FMSHRC at
832 (“There is nothing in either section 103(f) or the remainder of the Mine Act that indicates
than an operator would have the extraordinary power to essentially nullify an inspection by
refusing to participate in it”) (emphasis added).
Respondent’s interpretation would also curtail the Secretary’s right of entry by requiring
inspectors to provide notice to operators and contractors before each inspection in order to allow
them the opportunity to refuse entry. SCP I, 31 FMSHRC at 837, 842 (“There is no language in
section 103(a) that makes the inspector’s right to enter the mine, or to conduct an inspection and
cite conditions that violate mandatory standards, contingent upon…compliance with…section
103(f)”). Such a requirement is contrary to the language in §103(a) prohibiting advance notice
and would frustrate the objectives of the Act by affording operators the opportunity to address
perceived safety violations before allowing entry. See Dewey, 452 U.S. at 603. To grant all
operators subject to a Mine Act inspection the right to refuse entry would subjugate the § 103(a)
inspection program to the operator’s perceived right to deny inspections and require advance
notice be provided to operators to the detriment of the Mine Act’s enforcement goals.
As a result, Respondent’s interpretation would essentially render any violation of § 103(f)
walkaround rights a per se violation of the Fourth Amendment and nullify otherwise valid
6

Section 108(a)(1)(D) states in relevant part:

The Secretary may institute a civil action for relief, including a permanent or
temporary injunction, restraining order, or any other appropriate order in the
district court of the United States for the district in which a coal or other mine is
located or in which the operator of such mine has his principle office, whenever
such operator or his agent…refuses to permit the inspection of a coal or other
mine…”
30 U.S.C. § 818(f).

40 FMSHRC Page 1276

enforcement actions in contravention of Commission precedent and § 103(f) itself. 30 U.S.C. §
813(f) (“Compliance with this subsection shall not be a jurisdictional prerequisite to the
enforcement of any provision of this chapter”). As noted above, the Commission and its judges
have consistently held that even the arbitrary denial of § 103(f) walkaround rights is not a
violation of the Fourth Amendment’s protections against warrantless searches. See SCP I, 31
FMSHRC at 841-842 (opn. of Comm’r Jordan); Big Ridge, Inc., 36 FMSHRC at 1725-26; DJB
Welding, 32 FMSHRC at 731-32. I decline to limit the Act’s constitutionally approved general
inspection program in such a drastic manner.
Accordingly, the inspection at issue did not violate Rain for Rent’s Fourth Amendment
Rights.
C. Section 103(f) Walkaround Rights
I next turn to whether Inspector Basich violated § 103(f) when he began his inspection of
the truck in Tejeda’s absence. Section 103(f) states in relevant part:
Subject to regulations issued by the Secretary, a representative of the operator and
a representative authorized by his miners shall be given an opportunity to
accompany the Secretary or his authorized representative during the physical
inspection of any coal or other mine made pursuant to the provisions of
subsection (a) of this section, for the purpose of aiding such inspection and to
participate in pre- or post-inspection conferences held at the mine…Compliance
with this subsection shall not be a jurisdictional prerequisite to the enforcement of
any provision of this chapter.
30 U.S.C. § 813(f).
Section 103(f) is a qualified right and the Commission has recognized a crucial
substantive difference between the absence of walkaround participation that is not intended to
vitiate any citations and penalties, and the unauthorized denial of such walkaround rights. SCP
Invs., LLC (“SCP I”), 31 FMSHRC 821, 831-32, (Aug. 2009) (Inspector arbitrarily denied
operator’s walkaround rights when he refused to allow the mine owner onto the mine site
because he had not received new miner training); Big Ridge, Inc., 36 FMSHRC 1677 (June 2014)
(ALJ) (Inspector arbitrarily denied operator’s walkaround rights because he did not permit mine
representative to call for additional representatives to accompany three different teams
performing an impact inspection in different areas). The denial of walkaround rights in itself is
not sufficient to merit vacatur. SCP I, 31 FMSHRC at 834. Commission judges must determine
(1) whether the operator’s walkaround rights were denied arbitrarily and (2) the effect of that
denial on the operator’s case to determine the proper remedy. SCP I, 31 FMSHRC at 821, 827,
829, 830-31; see also DJB Welding, 32 FMSHRC at 734.
In SCP I, the Commission found that the inspector arbitrarily denied the mine owner his
walkaround rights but remanded the case to permit the Judge to determine the effect of a
deprivation of walkaround rights on the operator’s ability to present its defense. SCP I, 31
FMSHRC at 822. Two members of the Commission suggested that the second step of the
analysis should entail an exclusionary hearing to determine what prejudice, if any, resulted from

40 FMSHRC Page 1277

the violation of walkaround rights and exclude evidence accordingly. Id. at 822, 834. One
Commissioner suggested that the Judge retained discretion at hearing to determine the proper
civil penalty with the consideration that a violation of walkaround rights may have affected the
mine’s ability to present evidence relevant to its case. Id. at 839-40. The fourth and final
Commissioner found that the exclusion of the operator from the inspection had no effect on the
trial of the case. Id. at 842-43.
Consequently, subsequent ALJ decisions have diverged on whether the deprivation of an
operator’s walkaround rights may merit vacatur or necessarily precludes it in favor of applying
the exclusionary rule. See SCP Invs., LLC (“SCP II”), 32 FMSHRC 119, 128-29 (Jan. 2010)
(ALJ) (holding that a violation of § 103(f) rights is per se prejudicial and vacating citations based
upon improper denial of walkaround rights “on due process, abuse of discretion and/or prejudice
grounds); DJB Welding, 32 FMSHRC at 734-36 (holding that an operator’s abuse of discretion
in denying walkaround rights provides a sufficient basis for vacating the citations); contra Big
Ridge Inc., 36 FMSHRC at 1735-36 (holding that the Commission requires a showing that denial
of § 103(f) walkaround rights actually prejudiced the preparation or presentation of operator’s
defense and applying the exclusionary rule accordingly).
I find that Rain for Rent was not arbitrarily denied the opportunity to exercise its
walkaround rights. Section § 103(f) requires that operators be given the opportunity to
accompany an inspector during the inspection, and Tejeda was given that opportunity upon his
return. 30 U.S.C. § 813(f). Mr. Tejeda returned to the truck a few minutes into the inspection
while Basich was still taking photographs of the unset parking brake. Tr. 35-36. Basich identified
himself to Tejeda as an MSHA inspector, explained his authority over the vehicle, and explained
why he was inspecting the truck. Id. Tejeda was permitted and able to observe the violative
condition and was present when the citation was issued and abated. Tr. 35, 95. Tejeda therefore
had sufficient opportunity to view the alleged violation, open a dialogue with Inspector Basich
regarding the inspection, and offer mitigating circumstances prior to and after the issuance of the
citation in accordance with § 103(f). Id. I find this opportunity sufficient under § 103(f).
Even assuming arguendo that Inspector Basich arbitrarily denied Rain for Rent its
walkaround rights, the facts do not merit vacatur or the exclusion of evidence derived from the
search.
Inspector Basich did not abuse his discretion in beginning the inspection without Tejeda.
The Commission has found an abuse of discretion “when there is no evidence to support the
decision or if the decision is based on an improper understanding of the law.” SCP II, 32
FMSHRC at 128-29. As discussed above, Basich inspection and entry into the truck in Tejeda’s
absence to determine whether it presented safety hazards was a lawful exercise of his § 103(a)
right of entry. The inspection was well within MSHA’s authority because it was part of a routine
inspection conducted to enforce the safety and health provisions of the Act. It was further based
upon Inspector Basich’s reasonable belief that the truck’s back and forth motion while parked
indicated that the brake was not set in violation of the Act. Basich’s actions were therefore
supported by evidence and based on a proper understanding of MSHA’s right of entry granted
pursuant to § 103(a) of the Act.

40 FMSHRC Page 1278

Respondent argues that Basich abused his discretion because he did not make every
reasonable effort to wait for Tejeda’s return before inspecting the truck. Resp. Br. at 19. I
disagree. Basich took reasonable steps to discover the violation before exercising his right of
entry when he looked into the windows. He had no obligation under the Act to wait for Tejeda’s
return to open the truck door. An inspector has broad discretion on how to approach an
inspection, and an inspector’s decision not to delay an inspection is not a per se abuse of
discretion. DJB Welding, 32 FMSHRC at 735. Even if Basich’s decision to conduct an
inspection initially deprived Rain for Rent of its walkaround rights, he nonetheless had the right
to inspect the truck and gave Tejeda the opportunity to view the scope of the alleged violation
only minutes later. See SCP I, 31 FMSHRC at 887, 842.
Nor did the hypothetical denial result in actual prejudice meriting the exclusion of any
evidence derived from the inspection. See Big Ridge, 34 FMSHRC at 1736-37. Actual prejudice
occurs when an operator can show that the denial of the walkaround rights resulted in its inability
to observe the condition as cited in order to prepare or present its defense on the merits before
the Commission. Id. (citations omitted). Tejeda returned to the truck while the inspection was
ongoing and the violative condition still existed. Tr. 35-36, 95. He observed the violative
condition unchanged from when Inspector Basich first opened the door and was present when the
citation was abated. Respondent does not identify, and the court does not conceive of any
procedural, jurisdictional, or substantive challenges that were lost or adversely affected because
Tejeda was not present at the precise moment Basich opened the door to the truck. Tejeda’s short
absence therefore did not actually prejudice Rain for Rent’s ability to argue its case before this
court.
For the reasons explained above, I find that Rain for Rent was not arbitrarily denied an
opportunity to accompany Inspector Basich on his search of the truck.
D. Citation No. 8785566
Rain for Rent also challenges the fact of violation, gravity, and negligence designations
of the citation. Resp. Rep. at 2.
The Violation
Inspector Basich issued Citation No. 8785566 for a violation of 30 C.F.R. § 56.14207.
That standard provides that “[m]obile equipment shall not be left unattended unless the controls
are placed in the park position and the parking brake, if provided, is set. When parked on a grade,
the wheels or tracks of mobile equipment shall be either chocked or turned into a bank.” 30
C.F.R. § 56.14207.
The Secretary has proven that Rain for Rent violated the standard. The truck was “mobile
equipment” as defined by the regulation. Cortez Gold Mines, 16 FMSHRC 148, 156 (Jan. 1994)
(ALJ Morris) (“Mobile equipment” includes F-150 pickup truck). Mr. Tejeda parked the truck
and did not set the parking brake before leaving the truck to enter the mine office. Tr. 38.
Inspector Basich provided photographs clearly indicating that the parking brake was not set
when the truck was parked and left unattended. Ex. S–5.

40 FMSHRC Page 1279

Respondent contends that the vehicle was not unattended because the driver was ten
yards away and could see the vehicle through the Plant’s office windows. Resp. Br. at 12. This
argument fails. Commission precedent has found vehicles to be “unattended” for the purposes of
section 56.14207 when a miner is not behind the wheel of the vehicle and cannot control the
mobile equipment. See Blanchard Machinery Co., 38 FMSHRC 1786, 1794 (July 2016) (ALJ)
(deferring to the Secretary’s reasonable interpretation); Knife River Constr., 36 FMSHRC 2176,
2181 (Aug. 2014) (ALJ). Here, there is no question that Mr. Tejeda could not control the truck
while in the mine office.
Accordingly, I affirm the violation of section 56.14207.
Negligence
Under the Mine Act, operators are held to a high standard of care, and “must be on the
alert for conditions and practices in the mine that affect the safety or health of miners and to take
steps necessary to correct or prevent hazardous conditions or practices.” 30 C.F.R. § 100.3(d).
The Mine Act defines reckless disregard as conduct which exhibits the absence of the slightest
degree of care, high negligence as actual or constructive knowledge of the violative condition
without mitigating circumstances; moderate negligence as actual or constructive knowledge of
the violative condition with mitigating circumstances; and low negligence as actual or
constructive knowledge of the violative condition with considerable mitigating circumstances. 30
CFR § 100.3: Table X.
The Commission and its judges are not bound to apply the part 100 regulations that
govern MSHA’s determinations addressing the proposal of civil penalties. Newtown Energy,
Inc., 38 FMSHRC 2033, 2048 (Aug. 2016), citing Brody Mining, LLC, 37 FMSHRC 1687,
1701–03 (Aug. 2015). The Commission instead employs a traditional negligence analysis,
assessing negligence based on whether an operator failed to meet the requisite standard of care.
Brody, 37 FMSHRC at 1702. In doing so the Commission considers what actions a reasonably
prudent person familiar with the mining industry, the relevant facts, and the protective purpose of
the regulation, would have taken under the same circumstances. Id. Commission judges are thus
not limited to an evaluation of mitigating circumstances but may instead consider the totality of
the circumstances holistically.” Id.; see also Mach Mining, 809 F.3d 1259, 1264 (D.C. Cir.
2016).
I find Rain for Rent to be moderately negligent. Inspector Basich testified that Tejeda
was unaware that he violated the standard. Tr. 40. Section 56.14207 is a Rule to Live By
Standard. Tr. 35-37. Rain for Rent is a registered mine contractor and is required to train its
employees on the importance of the Rules to Live By standards. Id. Although the truck was on
level ground and the violative condition did not pose a serious threat of injury, Tejeda should
have known that failure to set the parking brake upon parking and exiting the vehicle constituted
a safety violation.
I affirm the moderate negligence designation.

40 FMSHRC Page 1280

Gravity
The Commission has stated that gravity is to be approached “holistically,” focusing on
factors including the likelihood of injury, the severity of an injury if it occurs, and the number of
miners potentially affected. Consol. Penn. Coal Co., 39 FMSHRC 1893, 1902-03 (Oct. 2017);
Newtown Energy, Inc., 38 FMSHRC 2033, 2049 (Aug. 2016).
Inspector Basich testified that the violation was unlikely to result in lost workdays
because the truck was parked on level ground with the engine off and the transmission in the
parked position. Tr. 38-39. Even if the truck were to pop out of the park position, it was unlikely
to roll a significant distance or gain sufficient speed to cause an injury. Tr. 39. Thus, the worst
possible injury would be bruising or contact with a miner’s foot. Id. I credit Inspector Basich’s
testimony and affirm the designation.
V. PENALTY
It is well established that Commission administrative law judges have the authority to
assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Company, 5
FMSHRC 287, 291 (Mar. 1983). The Act requires that in assessing civil monetary penalties, the
Commission ALJ shall consider the six statutory penalty criteria:
(1) the operator’s history of previous violations, (2) the appropriateness of such
penalty to the size of the business of the operator charged, (3) whether the
operator was negligent, (4) the effect on the operator’s ability to continue in
business, (5) the gravity of the violation, and (6) the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation.
30 U.S.C. 820(I).

40 FMSHRC Page 1281

Rain for Rent’s violation history is minimal. Ex. S–8. The Secretary assessed the
statutory minimum penalty and Rain for Rent does not contend that the penalty is
disproportionate to its business or would affect its ability to continue in business. I discussed the
negligence and gravity of the violation in more detail above. I found the violation to be non-S&S
and unlikely to result in lost workdays and the result of Rain for Rent’s moderate negligence.
Rain for Rent quickly abated the citation after being notified of its existence. Jt. Stip. #5, 11; Tr.
95. I assess a penalty of $116.00.
VI. ORDER
The Respondent is hereby ORDERED to pay the Secretary of Labor the sum of $116.00
within 30 days of the date of this decision.7

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

Distribution: (U.S. First Class Mail)
Jack Easterly, Esq., Byron J. Walker, Esq., Tim Boe, Esq., Rose Law Firm, 120 E. Fourth Street,
Little Rock, AR 72201
Isabella M. Finneman, Office of the Solicitor, U.S. Department of Labor, 90 Seventh Street,
Suite 3-700, San Francisco, CA 94103
Joshua Love, Conference & Litigation Representative, U.S. Department of Labor, 991 Nut Tree
Road, 2nd Floor, Vacaville, CA 95687

7

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

40 FMSHRC Page 1282

ADMINISTRATIVE LAW JUDGE ORDERS

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

July 16, 2018
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on behalf
of KELLY RAWLEY,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. WEST 2018-0034-DM

Mine: J.L. Sherman Excavation Co.
Mine ID: 45-03100

J.L. SHERMAN EXCAVATION CO. and
PAMELA AND JEFFREY SHERMAN,
Respondents
ORDER OF DISMISSAL
DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before: Judge McCarthy
This case is before me upon a discrimination complaint filed by the Secretary of Labor on
behalf of Kelly Rawley under section 105(c)(2) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(d). This is the fourth Commission proceeding involving Rawley and
Respondent, J.L. Sherman Excavation Company. The prior proceedings were settled, as outlined
below. This matter is set for hearing on July 17-18, 2018 in Spokane, Washington. On July 12,
2018, the Secretary filed an Unopposed Motion for Approval of First Amended Settlement
Agreement.
Complainant Kelly Rawley was employed at Respondent J.L. Sherman Excavation
Company’s mine. On October 5, 2015, Rawley complained to Respondent’s owner, Jeffrey
Sherman, about brakes on an endloader that made it unsafe to operate. On October 6, 2015,
Jeffrey Sherman told Rawley not to speak with an MSHA inspector. Jeffrey Sherman also
terminated Rawley’s employment with J.L. Sherman.
On November 12, 2015, Rawley filed a Discrimination Complaint with MSHA, alleging
that Respondent interfered with his statutory rights and discriminated against him by instructing
him not to speak with the MSHA inspector and by discharging him because of protected activity
in violation of Section 105(c) of the Mine Act. Rawley withdrew his November complaint after a
representative of Respondent informed him that he had been laid off for the winter, not
terminated, and would be able to return to work in April of 2016.
In the spring of 2016, Respondent reopened the mine but did not recall Rawley. On
April 2, 2016, Rawley filed a new 105(c) complaint with MSHA alleging that he had been
terminated and not rehired by Respondent. MSHA conducted an investigation. On May 12, 2016,

40 FMSHRC Page 1283

the Secretary of Labor filed an Application for Temporary Reinstatement in Docket No. WEST
2016-0467-DM. On May 23, 2016, the parties filed a Settlement Agreement and Joint Motion for
Temporary Economic Reinstatement. On May 26, 2016, Administrative Law Judge Barbour
ordered that Rawley be economically reinstated.
On June 16, 2016, after completion of MSHA’s investigation, the Secretary filed a
Complaint of Discrimination alleging that Respondent interfered with Rawley’s statutory rights
by instructing him not to speak with MSHA, and discriminated against him through discharge or
refusal to rehire. That Complaint was assigned Docket No. WEST 2016-0545-DM.
On April 19, 2017, the Secretary filed an Unopposed Motion to Approve Settlement
Agreement in WEST 2016-0545-DM. The Settlement Agreement provided that Respondent had
interfered with Rawley’s rights under section 105(c) of the Act when Jeffrey Sherman instructed
Rawley not to speak with MSHA on October 6, 2015. The Settlement Agreement further
provided, inter alia, that Respondent would reinstate Rawley to his previous position as leadman,
with specified backpay and benefits, and that Rawley would not be discharged for three years,
except for good cause with advance written notice to Rawley and the Secretary. Rawley and
Respondent’s owners, Jeffrey and Pamela Sherman, also agreed to engage in at least one session
of personal, workplace conflict resolution at Respondent’s expense, no later than June 1, 2017.
Respondent also agreed to provide annual, comprehensive, workplace training on miners’ rights
and responsibilities under the Mine Act.
By Order of Dismissal dated April 27, 2017, the undersigned granted the Secretary’s
Unopposed Motion and approved the Settlement Agreement. Thereafter, Rawley returned to
work for Respondent in late April 2017.
On May 2, 2017, MSHA issued Citation No. 7958951 against Respondent for failing to
pay back wages due Rawley under the terms of the Settlement Agreement. See App. for
Temporary Reinstatement, Docket No. WEST 2017-0598, at 4 (July 25, 2017). Shortly after
receiving Citation No. 7958951, Pamela Sherman allegedly “accused Rawley of calling MSHA
and complained that he was costing her money because of the citation.” Id.
On May 31, 2017, Rawley and Respondent participated in a workplace conflict resolution
session pursuant to the Settlement Agreement in WEST 2016-0545-DM. Id. As part of that
session, Rawley signed an agreement that he would “provide written notification to
[Respondents] of any safety or maintenance concern before any complaint is filed with MSHA or
any agency.” Id. at 5 (herein referred to as the “prior notification policy”).
On June 28, 2017, Respondent terminated Rawley’s employment allegedly for violating
company policy prohibiting the possession of alcohol on company premises. Id. Contrary to the
terms of the settlement agreement approved in WEST 2016-0545-DM, which provided that
Rawley would not be discharged for three years, except for good cause with advance written
notice to Rawley and the Secretary, the June 28, 2017 termination was “effective immediately.”
On July 3, 2017, Rawley filed a new discrimination complaint with MSHA. Id.

40 FMSHRC Page 1284

On July 25, 2017, the Secretary filed a new Application for Temporary Reinstatement
against J.L. Sherman Excavation Company and Jeffrey and Pamela Sherman. The Secretary
alleged that the prior notification policy that was agreed to during the workplace conflict
resolution agreement was contrary to public policy and interfered with Rawley’s statutory right
under section 103(g) to make an anonymous complaint to MSHA about safety or health issues
before complaining to Respondent(s). The Secretary further alleged that Rawley’s June 28, 2017
termination constituted discriminatory retaliation for prior protected activity under section 105(c)
of the Mine Act. The Secretary’s Application was assigned Docket No. WEST 2017-0598-DM.
On July 31, 2017, Respondent agreed to reinstate Rawley, pending the outcome of the
Secretary’s investigation. On August 1, 2017, the Secretary filed a Motion to Withdraw
Application for Temporary Reinstatement. On August 8, 2017, the undersigned granted the
motion and dismissed the temporary reinstatement proceeding.
As noted above, the instant case arises out of the same circumstances as the three
previous proceedings involving Rawley and J.L. Sherman Excavation Company.
The Complaint in the instant proceeding was filed after the Secretary’s investigation of
Rawley’s July 3, 2017 discrimination complaint to MSHA. The Secretary alleges that
Respondents J.L. Sherman, Jeffrey Sherman, and Pamela Sherman engaged in unlawful
discrimination by retaliatory discharge of Rawley because of prior protected activity, and
interfered with Rawley’s exercise of statutory rights under the Act though the prior notification
policy and Pamela Sherman’s alleged coercive statement. First Amended Compl. at 5. The
Secretary seeks to impose a $25,000 civil penalty against all three Respondents. Id. at 5.
The Secretary has filed an Unopposed Motion for Approval of First Amended Settlement
Agreement to resolve the proceedings in Docket No. WEST 2018-0034. The First Amended
Settlement Agreement proposes a reduction in civil penalties from $25,000 to $6,500. First
Amended Agreement at 3. Regarding the events of May 2, 2017 and Citation No. 7958591, the
Settlement Agreement represents that the parties would have presented conflicting testimony at
trial as to whether Pamela Sherman made certain alleged coercive remarks to Rawley about
contacting MSHA and costing her money. Id. at 2. In the unopposed motion, the Secretary
factually explains why he has agreed to withdraw this interference allegation. Unopposed Mot. at
3. Regarding the events of May 31 and the Voluntary Settlement Agreement, the First Amended
Settlement Agreement represents that the Shermans “were unaware [that] the prior notification
provision violated section 105(c) of the Mine Act, even though they should have been aware
[that] the prior notification provision violated section 105(c) of the Mine Act.” First Amended
Agreement at 3. Respondents agree to expunge from Rawley’s personnel file any records relating
to the events of June 27, 2017 through August 4, 2017, including the termination of Rawley’s
employment and his reinstatement following the temporary reinstatement proceedings in Docket
No. WEST 2017-0598. Id. at 4. Respondents also agree to pay Rawley $4,000 in economic
damages.1 The First Amended Settlement Agreement represents that Respondents have retired,
are not now engaging in mining and will not again engage in mining in the future. As a
1

Exhibit A attached to the First Amended Settlement Agreement indicates that both the
$4,000 in economic damages to Rawley and the $6,500 in MSHA civil penalties are being paid
by J.L. Sherman, rather than by Jeffrey and Pamela Sherman.

40 FMSHRC Page 1285

consequence, the First Amended Settlement Agreement does not require Respondent to post
notification of miners’ rights at their worksite. Respondents have instead agrees that they shall
mail a copy of MSHA’s Miners’ Rights Poster to all miners employed at J.L. Excavation
Company between at least June 1, 2017, and November 20, 2017. Id. at 4. Finally, the First
Amended Settlement Agreement states that, aside from the terms outlined above, “the making of
the Agreement is not intended to and shall not constitute an admission by Respondent as to the
merits of the allegations made in the Complaint, or as to any violation of the Federal Mine Safety
and Health Act of 1977 (Mine Act), except in future proceedings brought under the Mine Act.”
Id. at 4.
By email dated July 13, 2018, Rawley’s counsel confirmed that Rawley has found other
employment and waives any right to reinstatement with Respondents.
I have reviewed the settlement motion, as well as the parties’ Settlement Agreement, and
I conclude that the proposed settlement is appropriate under the criteria set forth in section 110(i)
of the Mine Act, is fair, reasonable, and appropriate under the facts, and protects the public
interest because it will further the intent and purpose of the Federal Mine Safety and Health Act,
as amended.
Accordingly, the Secretary’s Unopposed Motion for Approval of First Amended
Settlement Agreement is GRANTED, and the parties are ORDERED to comply with the terms
and conditions in the settlement agreement within 30 days of the date of this order.1 Upon
completion of the terms and conditions of the Settlement Agreement, the captioned proceeding is
DISMISSED.

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

1

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

40 FMSHRC Page 1286

Distribution:
Katherine Kasameyer, Office of the Solicitor, U.S. Department of Labor, 300 Fifth Avenue,
Suite 1120, Seattle, WA 98104
Bruce Brown, Office of the Solicitor, U.S. Department of Labor, 300 Fifth Avenue, Suite 1120,
Seattle, WA 98104
Stephen A. Teller, Teller & Associates, PLLC, 1139 34th Avenue, Suite B, Seattle, WA 98122
Robin R. McCroskey, W. 405 Walnut, Suite 4, Newport, WA 99156
Jeffrey & Pamela Sherman, J.L. Sherman Excavation Co., P.O. Box 250, Newport, WA 99156
Kelly Rawley, P.O. Box 0045, Laclede, ID 83841
/ccc

40 FMSHRC Page 1287

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

July 18, 2018
M-CLASS MINING, LLC,
Contestant,

CONTEST PROCEEDING
Docket No. LAKE 2018-0188-R
Order No. 9104295; 2/24/2018

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

Mine: MC #1
Mine ID: 11-03189

ORDER DENYING SECRETARY’S MOTION TO DISMISS
Before: Judge Simonton
This contest proceeding involves a §103(k) Order, No. 9104295 (“(k) Order”), issued to
M-Class Mining, LLC (“M-Class” or “Contestant”) on February 24, 2018.1 Pursuant to an order
of the court, the parties submitted briefs addressing, among other issues, whether the Court
retains jurisdiction to review a terminated (k) Order and whether the termination action moots
any residual factual disputes. The Secretary filed a motion for dismissal to accompany his brief.
Based on the reasoning below, I deny the motion.
I.

Factual and Procedural Background

M-Class Mining operates the MC#1 mine in Macedonia, Illinois. On February 24, 2018,
M-Class miner Mitchell Mullens was admitted to the hospital after complaining of dizziness and
nausea. The hospital detected elevated carbon monoxide levels in Mullens’ blood and local
police notified MSHA of the incident. M-Class and MSHA immediately opened investigations
into the matter. Inspector Brandon Naas conducted the investigation on behalf of MSHA and

1

Section 103(k) of the Mine Act provides that:

In the event of any accident occurring in a coal or other mine, an authorized
representative of the Secretary, when present, may issue such orders as he deems
appropriate to insure the safety of any person in the coal or other mine, and the
operator of such mine shall obtain the approval of such representative, in
consultation with appropriate State representatives, when feasible, of any plan to
recover any person in such mine or to recover the coal or other mine or return
affected areas of such mine to normal.
30 U.S.C. § 813(k).

40 FMSHRC Page 1288

concluded that Mullens was operating the mine’s No. 1 Diesel Air Compressor when the
symptoms began to present. Naas issued a § 103(k) Order to remove the compressor from service
pending completion of MSHA’s investigation. The next day, MSHA modified the (k) Order to
allow normal mining operations to continue while keeping the compressor out of service for the
duration of its investigation. On March 1, 2018, M-Class submitted a proposal to terminate the
(k) Order. MSHA denied that proposal and provided a list of requirements to be fulfilled for
termination. M-Class submitted a second plan one week later but did not agree to implement
MSHA’s requirements.
On March 15, 2018, M-Class filed a Notice of Contest and Motion for Expedited
Hearing. The court denied the motion and initially set the docket for hearing on May 16, 2018.
On April 27, 2018, the Secretary notified the court via email that MSHA completed its
investigation and terminated the (k) Order. Since the (k) Order did not carry an assessed penalty
and the Secretary did not issue a corresponding § 104 citation, the Secretary assumed that MClass would withdraw its notice of contest. However, M-Class declined to do so because it
believed that the (k) Order was invalidly issued and should be vacated. On May 2, 2018, the
court postponed the hearing and ordered the parties to submit briefs addressing the
Commission’s jurisdiction over a terminated (k) Order, whether termination renders the matter
moot, and any other issues the parties deemed appropriate. The parties submitted briefs on June
18, 2018 and the Secretary concurrently submitted a Motion for Dismissal. The parties filed
replies on June 29, 2018. The case is set for hearing on August 9, 2018.
II.

Disposition

The Secretary contends that the court does not retain jurisdiction to review a terminated
(k) Order because there is no accompanying citation, penalty assessment, or mine closure to
adjudicate. Secretary’s Brief in Support of Motion to Dismiss Notice of Contest, (“Sec’y Br.”) at
6. The Secretary argues that Commission precedent ties its jurisdiction to review (k) Orders to a
closure or withdrawal of a mine, and where, like here, the closure is no longer in effect,
jurisdiction over the (k) Order ceases. Id. For these reasons, the Secretary also contends that the
matter is moot because M-Class no longer has a legally cognizable interest in the outcome of the
contest. See Sec’y Br. at 7-8.
M-Class contends that the court retains jurisdiction over a (k) Order that has not been
vacated. Contestant’s Brief in Support of Jurisdiction for Administrative Contest, (“Cont. Br.”) at
4. Contestant argues that § 103(k) Orders are similar to other orders under the Mine Act, and
therefore operators have the right to contest the issuance or modification of (k) Orders and the
Commission has authority to affirm, modify, or vacate a (k) Order regardless of whether it has
been terminated. Id. at 5. M-Class argues that the case is not moot because the termination of the
(k) Order did not resolve the factual disputes surrounding its issuance. Contestant’s Response in
Opposition to the Secretary’s Motion to Dismiss (“Cont. Resp.”) at 5. Therefore, M-Class
maintains a legally cognizable interest in having the (k) Order vacated and removed from its
safety record. Id. at 3. In the alternative, M-Class cites the D.C. Circuit’s decision in
Performance Coal Co. v. FMSHRC, 642 F.3d 234, 239 (D.C. Cir. 2011), to argue that the
terminated (k) Order falls within the “capable of repetition yet evading review” exception to the
mootness doctrine. Id. at 7.

40 FMSHRC Page 1289

A.

Jurisdiction

I find that the court retains jurisdiction over terminated § 103(k) Orders that no longer
impose restrictions on mine operations.
The parties do not dispute that the Mine Act’s structure and legislative history grant the
Commission authority to review active § 103(k) Orders. See Pocahontas Coal Co., LLC, 38
FMSHRC 176 (Feb. 2016) (hereinafter “Pocahontas I”). The Act’s legislative history states that
“an operator…may appeal to the Commission the issuance of a closure order.” Pocahontas Coal
Co., LLC, 38 FMSHRC 157, 162 (Feb. 2016) (hereinafter “Pocahontas II”) citing American
Coal Co. v. Dep’t of Labor, 639 F.2d 659 (10th Cir. 1981). The Act’s structure authorizes review
of citations and abatement orders under § 104 and imminent danger orders under § 107(a), and
thus similarly grants the Commission authority to affirm, vacate, or modify § 103(k) Orders. See
Pattison Sand Co., LLC v. FMSHRC, 688 F.3d 507, 515-16 (8th Cir. 2012) citing Am. Coal Co.
v. U.S. Dep’t of Labor, 639 F.2d 659, 660-61 (10th Cir. 1981). As such, the Commission may
and in fact has reviewed the validity and scope of a (k) Order, as well as whether an operator
violated the terms of such an Order. See Jim Walter Res., Inc., 37 FMSHRC 1868 (Sept. 2015);
Kentucky Fuel Corp., 38 FMSHRC 2905 (Dec. 2016) (ALJ).
It follows that the Commission’s authority to affirm, modify, or vacate a (k) Order
extends to the review of terminated (k) Orders. As with § 104 Orders, termination does not
resolve or address the factual disputes surrounding the initial issuance of the Order. The
Secretary’s decision to terminate rests upon the end of the action or condition that prompted its
issuance and not a determination of whether the issuance was supported by fact and law.
Commission judges have reviewed whether the Secretary abused his discretion in issuing (k)
Orders on multiple occasions. Although none of those cases appear to have directly addressed a
terminated (k) Order, the court sees no compelling reason to restrict its review in this context.
Since Contestant is seeking vacatur, this court has jurisdiction to review whether the
circumstances surrounding the alleged incident support the issuance of the (k) Order. 2
The Secretary argues that the termination of (k) Orders is dissimilar to the termination of
§ 104 orders because (k) Orders do not allege a violative condition and cannot be abated.
Secretary’s Response to Contestant’s Memorandum (“Sec’y Rep.”) at 4-5. He proceeds to
contend that this difference restricts review of terminated (k) Orders because, once terminated,
these Orders no longer affect the “closure” of a mine. Id. at 5. While true, the court does not
believe that this difference strips the Court of jurisdiction. Even if “termination” carries a
different meaning in the context of (k) Orders, a distinction between the termination and the
vacatur of a (k) Order must remain. The elimination of the “closure” requirement of a (k) Order
does not eliminate the Order from the mine’s record and does not address whether the Order was
validly issued, just as the termination of a § 104 citation or order through abatement does not
resolve the validity of its issuance. The Secretary’s argument effectively treats the termination of
(k) Orders as similar if not identical to vacatur. However, the Secretary’s refusal to vacate the (k)
Order in this circumstance highlights that this cannot be the case. The Secretary does not provide
2

At this time, the Court passes no judgment on the appropriate standard of review for (k)
Orders or the validity of the (k) Order at issue.

40 FMSHRC Page 1290

and the court is unable to determine any other reason for the Secretary’s refusal to do so save to
protect the validity of its initial issuance, which is the crux of M-Class’s contest.3 To preclude
such a contest from review deprives the operator of its right to challenge the (k) Order’s
legitimacy regardless of whether it remains in effect.
Accordingly, the court retains jurisdiction to review the terminated (k) Order.
B.

Mootness

I next turn to the related issue of whether the Secretary’s termination of the (k) Order
rendered M-Class’s contest moot. The Commission has recognized that a case is moot when “the
issues presented no longer exist or the parties no longer have a legally cognizable interest in the
outcome.” North American Drillers, LLC, 34 FMSHRC 352, 358 (Feb. 2012), citing Climax
Molybdenum Co., 703 F.2d 447, 451-52 (10th Cir. 1983). When there is a substantial likelihood
that an allegedly moot question will recur, the matter remains justiciable, and administrative
orders remain justiciable if they are short term orders capable of repetition, yet evading review.
Id.
I find that a live case or controversy exists over the validity of the (k) Order. While the
Secretary’s decision to terminate the (k) Order allowed M-Class to resume using the diesel
compressor, the termination did not resolve any of the issues outlined in its notice of contest. See
Cont. Resp. at 7. The termination does not vacate the (k) Order, does not resolve whether the
Secretary abused his discretion in issuing the Order, and does not determine whether an
“accident” occurred that was necessary to justify the issuance of the (k) Order. Id. M-Class also
notes that the (k) Order remains present on its safety record. Id. at Ex. 1. Mine operators have a
right to challenge Orders issued against it and have a clear interest in maintaining a clean safety
record in the context of the Mine Act and public opinion. It therefore follows that these
unresolved issues sustain M-Class’s legally cognizable interest in the outcome of its contest.
Since a live case or controversy remains, I need not address whether M-Class’s contest
escapes mootness because it falls under the “capable of repetition but evading review” exception
to the mootness doctrine as discussed in the D.C. Circuit’s decision in Performance Coal Co.,
642 F.3d 234 (D.C. Cir. 2011). Cont. Br.at 7. Nonetheless, I take the time to discuss that decision
in order to demonstrate that, even if no live case or controversy exists, the exception likely
applies here.
In Performance Coal Co. v. FMSHRC, the Court rejected the Secretary’s argument that
the operator’s challenge to certain terms of a § 103(k) Order was moot because the Secretary had
3

Even if “vacatur” and “termination” were interchangeable terms in the context of §
103(k) Orders, the Commission has noted that the Secretary’s exercise of his discretion to vacate
a citation or order does not necessarily divest the court of its jurisdiction over that matter. See
North American Drillers, LLC, 34 FMSHRC 352, 355-56 (Feb. 2012). It follows that the
Commission’s jurisdiction would not necessarily cease upon the termination of any citation or
order, especially if “legal and procedural requirements after the vacatur of a citation or order,
such as questions of mootness or the appropriateness of declaratory relief,” remain. Id. at 356.

40 FMSHRC Page 1291

since changed the terms of the Order. 642 F.3d at 237-39. The Court noted that a party can
escape mootness where it can establish that the duration of the challenged action is too short to
be litigated fully before it expires and there is the a reasonable expectation the party will be
subjected to the same action. Id. at 237. The Court held that the case was not moot under this
exception because (1) the Secretary modified the challenged terms of the (k) Order well before
Performance Coal’s challenge could be fully litigated, and (2) there was a reasonable expectation
that the operator would be subjected to the similar actions in the future. Id. at 238. M-Class
contends that this exception applies to the instant case.
M-Class clearly satisfies the first prong of the analysis because MSHA terminated the (k)
Order while the notice of contest was still in the prehearing phase. See Performance Coal Co.,
642 F.3d at 237 (“This court’s jurisprudence recognizes that agency actions which tend to expire
within two years are too fleeting to be litigated fully”) (citations omitted). Here the (k) Order was
issued in February of 2018 and terminated in April, a month before the set hearing date, and MClass had no opportunity to bring its challenge before the court.
Analysis of the second prong requires further examination. In Performance Coal, MSHA
clearly articulated to the court and the operator that it would continue to modify the (k) Order
during its investigation process. Id. at 237. Contestant would therefore continue to be subjected
to the different terms of the same (k) Order. Unlike that case, there is no indication here that
MSHA intends to reissue a similar (k) Order to M-Class or otherwise restrict the use of the
compressor in the future. The Secretary argues that this difference defeats Contestant’s mootness
claim and renders the Performance Coal decision irrelevant. See Sec’y Br. at 8-9; Sec’y Resp. at
5-7.
The Secretary construes the second prong too narrowly. In Performance Coal, the court
noted that the proper question is not “whether [the operator] will again be subjected to the
precise protocol at issue, but whether it will be subjected to further modifications from which it
will seek temporary relief.” Performance Coal, 642 F.3d at 237. Here, the court must therefore
determine whether M-Class is likely to again be subjected to a (k) Order that is terminated before
review can take place. MSHA’s Mine Data Retrieval System shows at least three (k) Orders
issued to M-Class at the MC#1 Mine since the (k) Order at issue. See MSHA Mine Data
Retrieval System, Mine Citations Orders and Safeguards,
https://arlweb.msha.gov/drs/ASP/MineAction.asp (last visited July 12, 2018). I find it reasonably
likely that M-Class will again file a notice of contest against a (k) Order that is later terminated.
Accordingly, I find that the court has jurisdiction to review the validity of the terminated
§ 103(k) and the matter is not moot. The Secretary’s motion is DENIED, and the parties are
hereby ORDERED to comply with the terms of the May 3, 2018 Amended Notice of Hearing.

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

40 FMSHRC Page 1292

Distribution: (U.S. First Class Mail)
Travis W. Gosselin, U.S. Department of Labor, Office of the Solicitor, 230 South Dearborn
Street, Room 844, Chicago, IL 60604
Christopher D. Pence, Wm. Scott Wickline, and James P. McHugh, Hardy Pence PLLC, 500 Lee
Street, East, Suite 701, P.O. Box 2548, Charleston, WV 25329

40 FMSHRC Page 1293