SEPTEMBER AND OCTOBER 2008

COMMISSION DECISIONS AND ORDERS
10-07-2008
10-15-2008
10-15-2008
10-15-2008
10-22-2008
10-22-2008
10-22-2008
10-28-2008
10-30-2008

Twentymile Coal Company
Bledsoe Coal Corporation
Voss Sand Works, Inc.
Jacob Mining Co., LLC.
United Taconite, LLC.
DBS, Inc.
Dixie Sand and Gravel, Inc.
Jessee Stone Company
Stratcor, Inc.

WEST 2007-375
KENT 2008-808
LAKE 2008-422-M
WEVA 2008-565
LAKE 2008-483-M
SE
2008-547-M
SE
2008-774-M
VA 2008-278-M
CENT 2008-595-M

Pg. 911
Pg. 915
Pg. 918
Pg. 922
Pg. 926
Pg. 929
Pg. 933
Pg. 936
Pg. 940

WEVA 2007-384
PENN 2007-325
KENT 2004-220-R
LAKE 2007-156
SE
2008-389-R

Pg.943
Pg. 953
Pg. 962
Pg. 966
Pg. 974

WEST 2008-1451-R
KENT 2008-1483-R

Pg. 982
Pg. 988

ADMINISTRATIVE LAW JUDGE DECISIONS
09-08-2008
09-30-2008
10-10-2008
10-27-2008
10-29-2008

Kingwood Mining Company, LLC.
Cumberland Coal Resources, LP
Blue Diamond Coal Company
Black Beauty Coal Company
Jim Walter Resources, Inc.

ADMINISTRATIVE LAW JUDGE ORDERS
09-12-2008
09-19-2008

Agapito Associates, Inc.
Rockhouse Energy Mining Co.

i

SEPTEMBER AND OCTOBER 2008

Review was granted in the following case during the months of Se.ptember and October:

Secretary of Labor, MSHA v. IO Coal Company, Docket No. WEVA 2007-293. (Judge Barbour,
August 20, 2008)
Review was denied in the following case during the months of September and October:
Gabriel M. Robles v. LaFarge North America, Inc., Docket No. CENT 2008-115-DM.
(Judge Melick, August 28, 2008)

11

COMMISSION ORDERS

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

October 7, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2008-375
A.C. No. 05-03836-127865

v.
TWENTYMILE COAL COMPANY
BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act''). On June 30, 2008, the Commission received from
Twentymile Coal Company ("Twentymile'') a motion by counsel requesting that the Commission
reopen proceedings involving a penalty assessment that had become a final order of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On October 2, 2007, the Department of Labor's Mine Safety and Health Administration

(''MSHA") issued Proposed Assessment No. 000127865 to Twentymile, proposing penalties for
various citations, including Citation No. 7620939. On January 31, 2008, the Commission
received from Twentymile a request to reopen so that it could contest the penalty associated with
Citation No. 7620939. Twentymile explained that due to a processing error, the penalties that
Twentymile was not contesting were not paid until November 2007.

30 FMSHRC 911

On May 16, 2008, the Commission issued an order denying without prejudice
Twentymile's request to reopen. 1 Twentymile Coal Co., 30 FMSHRC 384 (May 2008). The
Commission explained that, while Twentymile,s request addressed the mistake that led to the late
payment of the uncontested penalties, it did not explain the company's separate failure to return
the assessment form to MSHA in order to contest the penalty associated with Citation No.
7620939.
On J\Ule 30, the Commission received a second motion to reopen from Twentymile.
Twentymile alleges that it failed to timely contest the proposed assessment related to Citation
No. 7620939 because a Twentymile employee, who does not regularly process proposed
assessments, directed that both the payment for uncontested citations and the checked assessment
form indicating the contested penalty be sent to the same location.2 The Secretary did not file a
response to the second motion to reopen.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (''JWR'}. In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under whic~ for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R.
§ 2700.1(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, ifthe defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

1

After a motion to reopen has been denied ''without prejudice," a movant has the
opportunity to file another request to reopen in order to remedy the procedural defects that led to
the denial.
2

Payment of a proposed penalty must be sent to MSHA at a St. Louis, Missouri, address,
while the form contesting a proposed penalty must be sent to MSHA at an Arlington, Virginia,
address.
30 FMSHRC 912

Having reviewed Twentymile's June 30 request, in the interests ofjustice, we remand this
matter to the Chief Administrative Law Judge for a determination of whether good cause exists

for Twentymile's failure to timely contest the penalty proposal and whether relief from the final
order should be granted. If it is determined that such relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 913

Distribution:
R. Henry Moore, Esq.

Arthur M. Wolfson, Esq.
Jackson Kelly, PLLC
Three Gateway Center
401 Liberty Avenue, Suite 1340
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296

Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 2511t, Floor West
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30FMSHRC 914

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

WASHINGTON, DC 20001

October 15, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. KENT 2008-808
AC. No. 15-11065-133242

v.
BLEDSOE COAL CORPORATION

BEFORE: Duffy, Chairman; Jordan, Young and Cohen, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act"). On April 8, 2008, the Commission received ftom Bledsoe
Coal Corporation ("Bledsoe") a motion made by counsel to reopen a penalty assessment that bad
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On December 5, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000133242 to Bledsoe, proposing penalties for six
violations totaling $118,538. In the motion, counsel states that Bledsoe intended to contest the
penalties but by mistake erroneously failed to do so. Counsel explains that the company's safety
director marked the assessment sheet to contest all the proposed assessments and made a
contemporaneous notation on the first page, but due to clerical error the assessment was not
timely submitted to MSHA. In the safety director's affidavit attached to the motion, he attests
that he marked the proposed assessment and fotwarded the sheet to clerical personnel in his
office, who misunderstood his notation and did not mail the assessment to MSHA within 30 days
ofreceipt. The Secretary states that she does not oppose Bledsoe's request to reopen.

30 FMSHRC 915

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res.• Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Bledsoe's motion, in the interests ofjustice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Bledsoe• s failure to timely contest the penalty proposal and whether relief from the final order
should be granted. If it is determined that such relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 916

Distribution:

John M. Williams, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
2333 Alumni Park Plaza, Suite 310
Lexington, KY 40517

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296

Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor West
Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30FMSHRC 91 7

FEDERAL MINE SAFETY AND HEALTH R_EVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUJTE9500

WASHINGTON, DC 20001

October 15, 2008

SECRETARY OF LABO~

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. LAKE 2008-422-M
A.C. No. 11-03114-136303

VOSS SAND WORKS, INC.

BEFORE: Duffy, Chairman; Jordan, Youn& and Coh~ 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. (2000) ("Mine Act"). On May 19, 2008, the Commission received from Voss Sand
Works, Inc. ('~oss Sand'') a letter seeking to reopen a penalty assessment that may have become
a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

On January 16, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000136303 to Voss Sand, proposing civil penalties
for three citations. Voss Sand did not respond to the Proposed Assessment. On April 24, 2008,
the Secretary issued a Notice of Delinquency to Voss Sand.
In response to the Notice of Delinquency, Voss Sand sent a letter to the Secretary on May
13, 2008. Voss Sand stated that it did not receive the proposed assessment and requested a
hearing on the citations. Voss Sand attached to its request the delinquency notice from MSHA
seeking payment of the penalties.

29 FMSHRC 918

The Secretary states that she does not oppose Voss Sand's request to reopen the proposed
assessment. She notes, however, that the proposed assessment was sent by Federal Express to
the address of record, but was returned undelivered. The Secretary further urges the operator to
take all steps necessary to ensure that, in the future, any penalty assessments are contested in a
timely manner. For clarity, the Secretary attached to her response the proposed assessment and
Federal Express tracking record. 1
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept 1995).

1

On June 9, 2008, the Commission received from Voss an "Answer to Contest the
Petition for Assessment of a Penalty." The answer is premature. An operator is required to file
an answer within 30 days after service of a petition for assessment of penalty filed by the
Secretary. 29 C.F.R. § 2700.29. The Secretary's petition for assessment of penalty is not filed
until after the operator submits a timely contest of the proposed penalty assessment. Id. Here,
Voss did not timely contest the proposed assessment. Voss's May 13, 2008 letter constitutes a
request to reopen the assessment. Because the Secretary has not filed a petition for assessment of
penalty, Voss is not required to file an answer. Accordingly, we strike the answer filed by Voss
from the record.
29 FMSHRC 919

Having reviewed Voss Sand's request and the Secretary's response, in the interests of
justice, we remand this matter to the Chief Administrative Law Judge for a determination of
whether good cause exists for granting Voss Sand relief from the final order. Ifit is determined
that relief from the final order is appropriate, this case shall proceed pursuant to the Mine Act
and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Mic

Robert F. Cohen, Jr., Commissioner

29 FMSHRC 920

Distribution:
Daniel P. Foltyniewicz
Risk Manager
Voss Sand Works, Inc.
P.O. Box 765
1900 E. Cemetery Rd.
Morris, IL 60450
W. Christian Schumann, Esq.

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

29 FMSHRC 921

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
801 NEW JERSEY AVENUE, NW
SUITE9500

WASHINGTON, DC 20001

October 15, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA)

Docket No. WEYA 2008-565
AC. No. 46-05978-132359

v.
JACOB MINING COMPANY, LLC
BEFORE: Duffy, Chairman; Jordan, Young, and Coh~ 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. (2000) ("Mine Acf'). On February 19, 2008, the Commission received from Jacob
Mining Company, LLC ("Jacob Mining") a motion by counsel seeking to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) ofthe
Mine Act, 30 U.S.C. § 815(a).

Under section lOS(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U .S.C. § 815{a).
On July 28, 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued four citations to Jacob Mining. The company timely filed notices of contest
for each of the citations, and the consolidated contest proceeding was stayed pending issuance of

proposed penalty assessments for the citations. Jacob Mining states, however, that when
penalties for two of the citations were proposed in Assessment No. 000132359, issued by MSHA
on November 21, 2007, the assessment was inadvertently placed with other assessments sent to
the company's accounting department for payment. The operator further states that the
assessment was consequently paid.

30 FMSHRC 922

While the Secretary states that she does not oppose Jacob Mining's request to reopen, she
also notes that as of March 6, 2008, MSHA had not received the payment of the penalty
assessment that the operator alleges it remitted.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
The Secretary's statement that MSHA had not received the penalty payments from Jacob
Mining is consistent with her statement earlier this year in the contest proceeding that the penalty
payments at issue here were delinquent. It was that statement which prompted the judge in the
contest proceeding to issue a Show Cause Order regarding whether the contests should be
dismissed because of the apparent failure to contest the penalty assessments, and it is that Show
Cause Order that, according to Jacob Mining, prompted it to seek reopening of the penalty
assessments. Thus, Jacob Mining's professed reason for seeking reopening-inadvertent
payment- is contradicted by the Secretary's records.

30 .fMSHRC 923

Having reviewed Jacob Mining,s request and the Secretary,s response, in the interests of
justice, we remand this matter to the Chief Administrative Law Judge for a detennination of
whether good cause exists for Jacob Mining's failure to timely contest the penalty proposal and
whether relief from the final order should be granted. Ifit is determined that such relief is
appropriate, this case shall proceed pursuant to the Mine Act and the Commission,s Procedural
Rules, 29 C.F.R. Part 2700.1

Robert F. Cohen, Jr.~ Commissioner

1

The parties should immediately consult with one another, and try to resolve the dispute
over whether Jacob Mining paid the two penalties, so as to narrow the issues before the Chief
Administrative Law Judge.
30 FMSHRC 924

Distribution:
Marlc E. Heath, Esq.
Spilman, Thomas & Battle, PLLC
300 Kanawha Blvd. East
P.O. Box273
Charleston, WV 25321
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance
MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25t1t Floor
Arlington, VA 22209-3939
ChiefAdministrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 925

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
801 NEW JERSEY AVENUE, NW
SUITE9500

WASHINGTON, DC 20001

October 22, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEAL1H
ADMINISTRATION (MSHA)

Docket No. LAKE 2008-483-M
A.C. No. 21-03404-147589

v.
UNITED TACONITE, LLC

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY TIIE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act''). On June 18, 2008, the Commission received from United
Taconite, LLC (''UTAC") a motion by counsel seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On April 17, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to UTAC for 54 citations MSHA had issued to
UTAC in 2007 and 2008. UTAC states that the assessment was forwarded to the UTAC area
safety manager, David J. Evans, who was out ofthe office at the time. UTAC further alleges
that, while Evans was gone, the contents of his office were put into storage, so that the UTAC
offices could be remodeled. In an affidavit, Evans states that, consequently, he did not learn that
the proposed assessment had been issued until counsel informed him on June 4, 2008, that
UTAC was delinquent in paying the penalties, at which point he began to look for the form and
realized that a contest of the proposed penalties had not been filed. The Secretary states that she
does not oppose UTAC's request to reopen the penalty assessment.

30 FMSHRC 926

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs.• Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed UTAC's motion, in the interests ofjustice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for UTAC's
failure to timely contest the penalty proposals and whether relief from the final orders should be
granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the
Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.
\

~·

.(. GLL
Robert F. Cohen, Jr., Commissioner
30 FMSHRC 927

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

30 FMSHRC 928

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

WASHINGTON, DC 20001

October 22, 2008
Docket No. SE 2008-547-M
AC. No. 38-00233-134567

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

Docket No. SE 2008-548-M
A.C. No. 09-00721-134513
Docket No. SE 2008-549-M
A.C. No. 09-01015-134514

v.

Docket No. SE 2008-550-M
A.C. No. 09-00955-137103

DBS, INC.

BEFORE: Duffy, Chairman; Jo~ 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. (2000) ("Mine Acf'). On April 4, 2008, the Commission received from DBS, Inc.
("DBS") motions by counsel seeking to reopen four 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).
The Department of Labor's Mine Safety and Health Administration ("MSHA") issued the
four proposed penalty assessments to DBS on December 20, 2007, and January 24, 2008.

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers SE 2008-547-M, SE 2008-548-M, SE 2008-549-M, and SE 2008550-M, all captioned DBS, Inc. and involving similarprocedural issues. 29 C.F.R. § 2700.12.
30 FMSHRC 929

DBS had previously contested the citations contained in those assessments, and the Commission
had assigned them the following docket numbers: SE 2008-84-RM, SE 2008-86-RM, SE 200887-RM, SE 2008-205-RM, SE 2008-206-RM and SE 2008-207-RM.2 DBS asserts that it failed
to realize that it needed to contest the penalty proposals in addition to contesting the citations. It
states that it became aware that the proposed assessments became final on March 26, 2008, when
it received the Secretary's Motion to Dismiss the citation contest cases. In response, the
Secretary states that she does not oppose the reopening of the penalty assessments.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the
may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

case

2

We note that DBS failed to timely contest three of the six citations within 30 days of
receipt of the citations. See 30 U.S.C. § 815(d); Comm. Proc. Rule 20(b), 29 C.F.R.
§ 2700.20(b). Hence, on July 11, 2008, Chief Administrative Law Judge Robert J. Lesnick
issued an Order of Dismissal granting the Secretary's Motion to Dismiss Docket Nos. SE 2008205-RM, SE 2008-206-RM and SE 2008-207-RM. Unpublished Order dated July 11, 2008
("Order of Dismissal''). (In a separate order, he denied the Secretary's motion to dismiss the
other three citations, finding that the operator's contests were timely filed. Unpublished Order
dated July 11, 2008). In the Order of Dismissal, the judge noted that late filing of notices of
contest of citations is not permissible under the Mine Act, but that the operator might still be able
to contest both the citations and penalties if its motion to reopen the penalty assessments were
granted by the Commission.
30 FMSHRC 930

Having reviewed DBS's motion to reopen and the Secretary's response, in the interests of
justice, we remand this matter to the Chief Administrative Law Judge for a determination of
whether good cause exists for DBS' s failure to timely contest the penalty proposals and whether
relief from the final orders should be granted. Ifit is determinated that such relief is appropriate,
this case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29
C.F.R. Part 2700.

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 931

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

30 FMSHRC 932

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

WASHINGTON, DC 20001

October 22, 2008

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

v.

Docket No. SE 2008-774-M
A.C. No. 01-02948-143820

DIXIE SAND AND GRAVEL, LLC
BEFORE: Duffy, Chairman; Jordan, Young, and Coh~ Commissioners

ORDER
BY TIIE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On June 17, 2008, the Commission received from Dixie Sand
and Gravel, LLC ("Dixie'') a letter seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On March 13, 2008, the Department of Labor's Mine Safety and Health Administration
(''MSHA") issued Proposed Assessment No. 000143820 to Dixie, proposing civil penalties for
six citations that had been issued to Dixie on January 17, 2008. Dixie states that it received the
proposed assessment, but due to sudden and drastic personnel reductions the assessment was not
acted upon until April 22, 2008. Dixie, mistakenly believing that it had 30 business days, rather
than calendar days, to contest the assessment, submitted the contest form to MSHA at that point.
According to Dixie, MSHA informed it that its contest could not be accepted because it was two
days late. The Secretary states that she does not oppose Dixie's request to reopen the proposed

30 FMSHRC 933

assessment. However, she urges the operator to take all steps necessary to ensure that, in the
future, any penalty assessments are contested in a timely manner.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission·on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.1(b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc. , 17 FMSHRC 1529, 1530 (Sept 1995).
Having reViewed Dixie's request and the Secretary's response, in the interests ofjustice,
we remand this matter to the Chief Administrative Law Judge for a determination of whether
good cause exists for Dixie's failure to timely contest the penalty proposal and whether relief
from the final order should be granted. If it is determined that such relief is appropriate, this case
shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700.

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 934

Distribution:
Jeremy Gillentine
Dixie Sand and Gravel
P.O. Box 8236
Montgomery, AL 36110
W. Christian Schumann, Esq.

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

30 FMSHRC 935

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

WASHINGTON. DC 20001

October 28, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA)
Docket No. VA 2008-278-M
A.C. No. 44-00167-114297

v.

JESSEE STONE COMPANY
BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act''). On May 5, 2008, the Commission received from Jessee Stone
Company ("Jessee Stone") a letter seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On April 3, 2007, the Departme~t of Labor's Mine Safety and Health Administration
issued Proposed Assessment No. 000114297 to Jessee Stone, proposing a civil penalty for
Citation No. 6040139. Jessee Stone alleges that the citation is part of an ongoing settlement, and
that it was "somehow left out or misplaced." It further states that it has reached a settlement with
MSHA on other citations except Citation No. 6040139.

The Secretary responds that she does not oppose the motion to reopen. She notes,
however, that this case was never part of the litigation and settlement agreement in Docket Nos.
VA 2007-44-M and VA 2007-14-M. The Secretary further submits that this case was never
contested, and that MSHA sent the operator a delinquency notice on July 11, 2007.

30 FMSHRC 936

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR'"). In evaluating requests to
reopen final section l 05(a) orders, the Commission has f01md guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. Under Rule 60(b), any motion for relief
from a final order must be made within a reasonable ti.me, and in the case of mistake,
inadvertence, or excusable neglect not more than one year after the order was entered. Fed. R.
Civ. P. 60(b).
According to documents submitted by the Secretary, the proposed assessment became a
final order on May 18, 2007. Jessee Stone's request for relief from that final order was received
by the Commission on May 5, 2008. We have determined, therefore, that the request is not
barred by the one year time frame set forth in Rule 60(b).
Although the Secretary does not oppose Jessee Stone's request for relief, the Secretary's
response makes reference to a delinquency notice dated July 11, 2007, that was sent to Jessee
Stone. Jessee Stone's request makes no reference to the delinquency notice.

30 FMSHRC 937

Accordingly, having reviewed Jessee Stone's request and the Secretary's response, in the
interests ofjustice, we remand this matter to the Chief Administrative Law Judge for a
determination of whether good cause exists for Jessee Stone's failure to timely contest the
penalty proposal and whether relief from the final order should be granted. In considering
whether good cause exists, the administrative law judge should consider whether Jessee Stone
received MSHA's delinquency notice dated July 11, 2007, and, if so, what action the operator
took upon receiving it. If it is determined that relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Mich

Robert F. Cohen, Jr., Commissioner

30 FMSHRC 938

Distribution:
David Jessee, President
Jessee Stone Co.
P.0.Box307
Pennington Gap, VA 24277
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296

Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 939

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

WASHINGTON, DC 20001

October 30, 2008
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2008-595-M
A.C. No. 03-00479-143012

v.
STRATCOR, INC.

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act''). On June 10, 2008, the Commission received from Stratcor,
Inc. ("Stratcor") a letter seeking to reopen a penalty assessment that had become a final order of
the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On March 6, 2008, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000143012 to Stratcor, proposing civil penalties for
13 citations that had been issued to the company during January 2008. Stratcor states that it did
not contest the assessment until after 30 days had passed because it spent the intervening time
dealing with, and waiting to hear back from, various MSHA offices on questions Stratcor had
regarding the basis for the amounts of the proposed penalties and a review of the proposed
penalties in light of the information it had received. The Secretary states that she does not
oppose Stratcor's request to reopen the proposed assessment. However, she emphasizes that
every proposed assessment states that the operator must contest or pay it within 30 days of its
receipt, and that such requirement, having been imposed by statute, is not suspended while the
operator is discussing the proposed assessment with MSHA personnel.

30 FMSHRC 940

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) (".!WR''). Jn evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l (b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respon~ the case may be re0pened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Statcor's request and the Secretary's response, in the interests ofjustice,
we remand this matter to the Chief Administrative Law Judge for a determination of whether
good cause exists for Stratcor's failure to timely contest the penalty proposals and whether relief
from the final orders should be granted. If it is determined that such relief is appropriate, this
case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part2700.

Robert F. Cohen, Jr., Commissioner

30FMSHRC941

Distribution:
Shane Weatherford, Safety Officer
Stractor, Inc.
4343 Malvern Rd.
Hot Springs, AK 71901-8802
W. Christian Schumann, Esq.
Office ofthe Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2226
Arlington, VA 22209-2296
Myra James, Chief
Civil Penalty Compliance Office
MSHA
U.S. Department ofLabor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

30 FMSHRC 942

ADMINISTRATIVE LAW JUDGE DECISIONS

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

September 8, 2008
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 2007-384
A. C. No. 46-08751-112972

v.
KINGWOOD MINING COMPANY, LLC,
Respondent

Mine: Whitetail Kittanning

DECISION

Appearances: Paul A. Marone, Esq., Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, on behalf of the Secretary of Labor;
Carol Ann Marunich, Esq., Justin A. Rubenstein, Esq., Dinsmore & Shohl, LLP,
Morgantown, West Virginia, on behalf of Kingwood Mining Company, LLC.
Before: .

Judge Zielinski

This case is before me on a Petition for Assessment of Civil Penalties filed by the
Secretary of Labor pursuant to section 105 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815. The petition alleges that Kingwood Mining Company, LLC, is liable for twelve
violations of the Secretary's Mandatory Safety Standards for Underground Coal Mines, and
proposes the imposition of civil penalties totaling $14,976.00. The parties reached an agreement
to settle eleven of the alleged violations, and filed a motion seeking approval of the settlement.
That motion will be granted. A hearing was held on the remaining violation in Morgantown,
West Virginia, and the parties filed briefs after receipt ofthe transcript. For the reasons set forth
below, I find that Kingwood committed the violation, and impose a civil penalty in the amount of
$500.00.

Findings of Fact - Conclusions of Law
Kingwood Mining Company, a subsidiary of Alpha Natural Resources, LLC, operates the
Whitetail Kittanning Mine near Newburg in Preston County, West Virginia. The underground
mine produces 12,000 tons of coal daily and employs about 255 persons for two production shifts
and one maintenance shift, six days a week. On July 17, 2006, at 8:00 a.m., Gray<ten Wolfe, an

MSHA inspector, visited the Whitetail Mine to conduct a spot methane inspection and collect
respirable dust samples. Tr. 26-27. While traveling from the power center through the cross cut
on the right side of the East Mains Section, Wolfe noticed a large steel plate leaning against the
right rib of the intersection at block 18. Tr. 31 . The plate, which Wolfe described as a ''very,
30 FMSHRC 943

very heavy piece of steel," measured 76 inches long. It was 10 inches wide, with rectangular
pieces measuring 20 inches by 21 inches on each end . Tr. 45, 73. Wolfe continued with his
inspection and proceeded to an Oldenburg Stamler Belt Feeder to conduct an intake dust reading.
Coal is dumped onto the feeder, which runs it through a crusher to break up oversized
pieces before depositing it onto a conveyor belt that transports it out of the mine. The bed of the
feeder, upon which the coal is dumped, is approximately eight feet wide and twelve feet long. It
is elevated off the mine floor about one foot, and is open on three sides, so that it can be accessed
by shuttle cars and scoops from three directions. Tr. 157. The bed consists of a steel pan,
approximately six feet wide. Metal flights, approximately six inches wide by three inches high
and spaced at two-foot intervals, move along the pan to push the coal into the crusher. The
flights are mounted on chains that run on sprockets1 located at the ends of the pan. The drive
sprockets are at the crusher end. Idler sprockets rotate on a stationery shaft at the open end of the
feeder bed. There are several inches of space between the shaft and the flights. Tr. 56. The
flights are about two inches above the pan when they reach the top of the idler sprockets. They
settle onto and slide along the pan as they move toward the crusher. Tr. 43. The area where the
idler sprockets rotate, moving the flights from under the pan to the top of the pan, is covered by a
steel plate, i.e., the plate found by Wolfe. The wings of the plate were designed to cover the idler
sprockets and the ten-inch-wide section covers the area where the flights rotate toward the top of
the pan.
The inspection was conducted at the beginning of the day shift on a Monday morning
and, when Wolfe approached the feeder, it was not yet operating. Coal was piled on it to a height
of about six feet, and was spilling over the edges. Tr. 32. There were two sets of footprints on
the pile, over the place where the cover plate should have been. Tr. 32-33. Wolfe was unable to
determine whether there was a cover plate in place over the idler sprockets. Tr. 32-33. He
observed Richard Kelly, the left side section day-shift foreman, walk directly past the feeder and
the detached cover plate. Tr. 35. Wolfe expressed concern to Kelly about the plate leaning
against the rib, and inquired whether there was a plate on the feeder. Tr. 53. Kelly indicated that
he did not know, and Wolfe instructed him to have the coal removed. Tr. 53. Once the coal was
removed, Wolfe could see that there was no cover plate on the feeder, and it was apparent that
the steel plate leaning against the rib was the missing cover plate. Tr. 44-45, 56; ex. G-3.
At 9:40 a.m., Wolfe issued Order No. 7143320 to Kingwood pursuant to section
104(d)(l) of the Act, alleging a violation of30 C.F.R §75.1722(a), for failure to guard the "tail
roller and sprocket" on the open end of the feeder. Tr. 56; ex. G-1. During the course of the
inspection, Wolf learned that there had been previous incidents at the mine in which cover plates
had been dislodged from feeders as a result of being struck by shuttle cars. Tr. 168-69, 207. The
company's maintenance report indicated that the cover plate in question had become dislodged
just days before, and had been replaced during the morning of Saturday, July 15. Tr. 61~62.
1

A "sprocket" or "sprocket gear" is a gear that meshes with a roller or silent chain.
Am. Geological Inst., Dictionary ofMining, Mineral, and Related Terms 531 (2d ed. 1997).
30 FMSHRC 944

Following issuance of the Order, Robert Maxwell, the section coordinator of the East
Mains, along with four other miners, repositioned the plate on the feeder and bolted it down.
Tr. 54, 56-57. Maxwell stated that he was unaware that the cover plate had come off until Wolfe
brought it to his attention. Tr. 196-97. According to Wolfe, the plate appeared to have been
intentionally placed against the rib. Tr. 73, 82. He concluded that it was unlikely that such
action would have been taken without the direction of a supervisor. After running the feeder to
ensure that the flights were not catching, Wolfe lifted the Order at 10:35 a.m. Tr. 57-58.
At approximately 8:20 a.m., with two miners standing eleven feet away and a shuttle car
parked twenty inches from the end of the feeder, the feeder and the belt line were energized.
Tr. 34-35, 46-47; ex. G-3. Wolfe did not witness anyone physically energize the feeder, and he is
unsure whether the feeder was energized automatically or manually. Tr. 119-20. Feeders may be
energized manually or may be set to energize automatically at specific times. Tr. 118.
According to Maxwell, the feeder in question is energized manually by hitting a reset button and
a switch located on the side of the feeder. Tr. 173. It is mainly operated during the two
production shifts, and is typically energized for the entire shift. Tr. 132. Maxwell stated that,
although it is not uncommon for the feeder to be operated during the midnight maintenance shift,
it is usually only operated to clean spillage or to conduct a maintenance check of the equipment.
Tr. 112, 167-68.
The feeder was last operated before the inspection during the day shift on Saturday,
July 15. Tr. 76-78, 200. The next shift to work was the midnight shift at the beginning of
July 17, during which the feeder was not operated. At 12:00 am. on July 17, scoop operator,
Dixie Sutton dwnped a bucket of coal onto the bed of the feeder, where it remained until Wolfs
inspection. Tr. 164-65. Consequently, the plate was likely dislodged at some point prior to the
end of the day shift on July 15.
On a normal day, there could be up to two hundred shuttle car loads dwnped onto the
feeder in an eight to nine hour peri~ and a scoop would clean around it one to three times daily.
Tr. 157. Occasionally, miners clean coal from the dump area by shoveling it onto the end of the
feeder. Tr. 101. Maxwell described the feeder as "dirty, black looking, rusty looking." Tr. 160,
178. He also testified that the area was not well lit, and was primarily lit with "cap lights or
lights on the equipment." Tr. 201. Sutton described the area as having "a lot of spillage, a lot of
debris," including pieces that tear off of"machinery'' and are usually left at the feeder. Tr. 14951.

It is not unusual for miners to travel past the feeder at the beginning of their shifts to
reach their work areas, and during breaks to retrieve their lunch buckets. Tr. 70. Sutton testified
that miners are trained not to waJk across the feeder. Tr. 138. There are pipes wrapped in blue
reflective tape hanging at each com~ of the feeder to alert miners to its presence. Tr. 155-56,
187. Should a miner get caught in the flights, there is a "dead-man's switch," activated by a
cable strung above the pan, which a miner could use to cut power to the machine. Tr. 120-21,
193-94.
30 FMSHRC 945

Qrder No. 7143320
Order No. 7143320 alleges a violation of30 C.F.R. § 75.1722(a), which provides, in
pertinent part:
(a) Gears; sprockets; chains; drive, head, tail, and takeup pulleys; flywheels;
couplings, shafts; sawblades; fan inlets; and similar exposed moving machine
parts which may be contacted by persons, and which may cause injury to
persons shall be guarded.
The "Condition and Practice" section of the Order stated:
The Operator failed to guard the Oldenburg Stamler Feeder, tail roller and
sprocket. This feeder serves the East Mains number 2 Belt, (MMU-007 and
MMU-008). The exposed area was covered over with coal, and the cover plate
was laying on the comer of 18 Block. The plate measures 76 inches x 10 inches,
with 20 inch x 21 inch wings on the ends. The feeder was started at 8:20 A.M.
with 2 employees standing in close pro[ximity]. A company mechanical report
stated that the cover plate was replaced on 07-15-2006, on day shift. The fireboss
report for this East Mains Section, on 07-17-2006 (day shift) 5:50 A.M. - 6:18
A.M. did not state that the cover plate was missing. This uncovered area exposes
workers to a turning sprocket and gear, and crusher. This violation is an
unwarrantable failure on the Operator's part to comply with a mandatory standard.
Wolfe determined that it was highly likely that the violation would result in a fatal injury,
that the violation was significant and substantial ("S&S"), that one person was affected, and that
the operator's negligence was high. The Order was issued pursuant to section 104(d)(l) ofthe
Act, and alleges that the violation was the result of Kingwood's unwarrantable failure to comply
with the safety standard. A civil penalty in the amount of $6,600.00 has been proposed for this
violation.
The Violation
Kingwood does not dispute the fact that, at the time of Wolfe's inspection, the feeder's
cover plate was not in place. Instead, it argues that there was no violation of section 75.l 722(a)
because the cover plate or "apron" is designed to protect the feeder from scoop and shuttle cars
dumping coal, not to guard moving machine parts or protect miners from the moving flights,
chains or idler gears and shaft. Kingwood argues that the shaft positioned beneath the cover
plate is stationary, it does not rotate, and the design provides for exposed chains and flights that
are necessary for the feeder to perform its function. Resp. Br. at 5. It argues that because those
moving parts are equally exposed along the length ofthe machine, the cover plate would have to

30 FMSHRC 946

cover the entire feeder to function as a "guar~" which would eliminate the machine's function by
preventing the dumping of coal onto the feeder.2
The Secretary argues that, while the feeder is in operation, the absent cover plate exposes
the turning steel shaft and gears that interlock with the chains, to which the metal flights are
attached, and that those ''moving machine parts" would likely cause injury to miners coming into
contact with them. The Secretary maintains that these facts prove a clear violation of the
standard.
Gears, sprockets, and chains are moving machine parts that are specifically enumerated in
section 75.1722(a). When the feeder in question is operational, the idler sprockets rotate on the
stationary shaft, guiding the chains on which the flights are mounted. Respondent's assertion
that the chains are exposed by design is incorrect. Pictures of a similar feeder clearly show that
the moving chains are covered by protective plates at all locations. Ex. R-1, R-2. Although
Respondent is correct in its claim that the flights pose a danger with or without the cover plate in
place, the danger is increased when the rotating sprockets and chains are exposed and the flights
are moving into place on the top of the feeder bed. The cover appears to serve a dual purpose of
protecting the machine parts from damage, as well as preventing contact by miners with these
particular moving machine parts.
There is also evidence that miners come in close proximity to the exposed end of the
feeder. Miners travel past the feeder at the beginning of their shifts to reach their work stations
and during their breaks to retrieve their lunches. A scoop operator cleans the SUITOunding area
one to three times daily, and miners occasionally shovel coal onto the end of the feeder. On the
day in question, Wolf observed two miners standing several feet from the end of the feeder, as
well as footprints in the coal piled on top of the feeder. The absence of the cover plate exposed
miners working near the feeder to additional hazards. I find that the regulation was violated.
Significant and Substantial
An S&S violation is described in section 104(d)(l) of the Act as a violation "of such
nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard." A violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature." Cement Div.,
Nat '/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).

2

Kingwood relies on Rochester & Pittsburgh Coal Co., 10 FMSHR.C 1576 (Nov. 1988)
(AU) for support. Its reliance is misplaced because, unlike the present case, the issue in
Rochester was whether a conveyor belt fell within the definition of "similar exposed moving
machine part," as stated in section 75.1722(a).
30 FMSHRC 947

The Commission has explained that:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard-that is, a measure of danger to safety-contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861F.2d99,
103-04 (5th Cir. 1988), ajfg Austin Power, Inc., 9 FMSHRC 2015, 2021(Dec.1987) (approving
Mathies criteria).
In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission
provided additional guidance:

We have explained further that the third element of the Mathies fonnula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." U.S. Steel Mining Co., Inc.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(dXl), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U.S. Steel
Mining Co., Inc., 6 FMSHRC 1866, 1868(August1984); U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574-75(July1984).
This evaluation is made in terms of "continued nonnal mining operations." U.S. Steel
Mining Co., Inc. , 6 FMSHRC at 1574. The question of whether a particular violation is
significant and substantial must be based on the particular facts surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC
2007 (Dec. 1987).
The fact of the violation has been established. The measure of danger to safety was
contributed to by the exposed sprockets, chains and rotating flights, and any resulting injury
would have been of a serious nature. The focus of the S&S analysis, therefore, is whether the
violation was reasonably likely to result in an injury. I find that the Secretary has failed to carry
her burden as to this issue.
The Secretary argues that miners frequently come in contact with the end of the feeder,
and that the twelve-inch gap between the flights and the idle shaft, around which the flights rotate
to the top of the pan, increased the measure of danger. The absent cover plate, which would
normally protect miners from contact with the sprockets, chains and rotating flights, made it
30 FMSHRC 948

reasonably likely that a fatal injury would result from a miner's foot, leg, hand or ann becoming
caught between the shaft and rotating flights, or wedged between a flight and the feeder bed,
which could result in the miner being dragged into the crusher. The Secretary goes on to assert
that the frequency with which miners encountered the feeder made it reasonably likely that an
injury would occur. Kingwood argues that the measure of danger posed by the feeder remained
the same with or without the cover plate in place.
The feeder, by design, is an inherently dangerous machine. The flights travel the full
length of the feeder bed, from the open end to the crusher. The feeder can be approached on
three of its four sides, presenting three opportunities to contact the dangerous parts of the
machine. The feeder's dangerous moving parts are not confined to the sprockets, chains, and
flights beneath the cover plate. A miner would be at similar risk of serious injury if contact were
made with a flight that had already passed from under the cover plate. As asserted by
Respondent, to truly prevent hannfu1 or fatal contact with the feeder would require that the entire
machine be covered, which would render it useless.
I accept that miners travel the area around the feeder, but I am not persuaded that miners
frequent the immediate vicinity of the feeder when it is operating. Sutton testified that miners
generally do not walk in the area of the feeder during the work day, because they risk being nm
over by the numerous shuttle cars that approach the feeder to dump loads of coal. Wolfe agreed
that any miners in the area would nonnally be in shuttle cars or scoops. Tr. 97. In addition, most
of the miners traveling to their work stations at the beginning of the morning shift would have
already passed the feeder by the time the feeder and belts were activated. Tr.131.
Although there were two sets of footprints across the pile of coal, it appears that they
were made by a miner or miners who, rather than traveling the longer distance around the shuttle
car, which was parked nearly up against the feeder, took an easier and quicker route across the
pile of coal on the idle feeder. The shuttle car was parked there only because it was not being
used on the midnight shift. It would not have been there if mining were ongoing and the feeder
were energized, because it would have been used to transport coal. In addition, given that a
person has to manually hit a reset button and then a switch on the side of the feeder to energize it,
it is unlikely that the feeder would be energized while a miner was walking across it or otherwise
on top of the machine. Kingwood's miners are trained not to walk across the feeder, and Wolfe
confirmed that such conduct is not condoned or permitted by operators. Ifa miner were to be
caught in the flights, he could activate the dead-man's switch to shut off the machine.
In summation, while the absence of the cover plate exposed moving machine parts that

could cause injury, the exposure only marginally increased the dangerousness of the feeder itself,
and while miners were occasionally in the area of the feeder, they were not there frequently
enough to justify a finding that there was a reasonable likelihood of an injury occurring due to the
missing cover plate. I find that the violation was unlikely to result in an injury, but if an injury
were to occur, it would have been permanently disabling, and that the violation was not S&S.
Unwarrantable Failure - Negligence
30 FMSHRC 949

Order No. 7143320 was issued pursuant to section 104(d)(l) of the Ac~ which requires
that the alleged violation be both S&S and "caused by an unwarrantable failure of such operator
to comply with such mandatory health or safety standards." 30 U.S.C. § 814(d)(l). The finding
that the violation was not S&S obviates the need to decide whether the violation was the result of
the operator's unwarrantable failure.3 However, the issue of negligence must be addressed.
·
The Secretary argues that th~ violation was the result of Kingwood's high negligence and
unwarrantable failure because the condition was obvious and existed for parts of three shifts, that
a foreman was seen walking directly-past the displaced cover plate, that the company failed to
record the condition in a pre-shift examination report, and that the cover plate appeared to have
been intentionally placed against the rib, which was likely done at the direction of a supervisor.
The Secretary has failed to prove that Kingwood's conduct rose to the level ofreckless
disregard or a serious lack ofreasonable care. Although the cover plate is large and heavy and
was leaning against the no, the condition was not as obvious as the Secretary urges. The feeder
was located in a dimly lit area, and was rusty, dirty, and black due to the constant dumping of
coal. The cover plate, which was also rusty and dirty, did not stand out or easily catch the
attention of persons in the area. Sutton testified that he worked around the feeder during the
previous midnight shift and did not notice the cover. Tr. 149-55. It is plausible and probable
that the cover went unnoticed by Kelly, as well as the preshift examiner.
Further, the condition was completely obscured by the large pile of coal. As Wolfe
stated, there was ''so much coal there I could not tell if there was a cover plate in place or not.,,
Tr. 47. The plate leaning against the rib would only have served as an indicator, leading
someone to question whether a cover plate was in place on the feeder. Additionally, while the
condition existed for parts of three shifts, it is unclear just how long it posed an actual danger.
At most, the danger existed for part of the day shift on July 15. The feeder was not operational
during the one full shift that the plate was unattached, and the condition was abated two and ont>-half hours after the start of the following shift.
There is insufficient evidence to prove that the cover plate was moved at the direction of
a supervisor, or that a supervisor was aware ofthe hazardous condition. Maxwell testified that
he was unaware of the condition until he was informed by Wolfe during the inspection. He went
on to explain that a supervisor would need to make the decision to reattach a cover plate, but not
to move it if it had become dislodged. Sutton testified that no foreman was involved the one
3

As noted inLopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the
unwarrantable fai_lure terminology is taken from section 104(d) of the A~ 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. Unwarrantable failure
is characterized by such conduct as "reckless disregard," "intentional misconduct,"
"indifference," or a "serious lack of reasonable care." Id. at 2003-04.
30 FMSHRC 950

time he assisted in moving and replacing a cover plate. Tr. 171. Wolfe, admittedly, bad no
evidentiary support for his conclusion. Tr. 94.
Based on the foregoing, and considering the fact that the Secretary has the burden of
proof on all elements of a violation, I find Kingwood's negligence with respect to this violation
to have been moderate.4
The Appropriate Civil Penalty
The parties stipulated to many of the factors that are to be considered in establishing the
amount of a civil penalty. Kingwood Mining Company is a large mine operator that produced
18,314,945 tons of coal in 2005. The Whitetail Kittanning Mine produced 1,509,283 tons ofcoal
in the same year. Jn the 24 month period immediately preceding the issuance of the Order,
Kingwood was assessed a total of 519 citations, based on 539 inspection days. Payment of the
proposed penalty will not affect Respondent's ability to continue in business. Kingwood
demonstrated good faith in promptly abating the violation. The gravity and negligence
associated with the violation have been discussed above.
Order No. 7143320 is modified to a non-S&S citation, issued pursuant to section 104(a)
of the Act. Kingwood's negligence was moderate. The violation was unlikely to result in an
injury, and any injury would have been permanently disabling. A civil penalty of $6,600.00 was
proposed by the Secretary. The lowering of the levels of gravity and negligence justify a
significant reduction in the proposed penalty. I impose a penalty in the amount of $500.00, upon
consideration of the above and the factors enumerated in section 11 O(i) of the Act.
The Settlement
Prior to the hearing, the parties reached an agreement to settle eleven of the violations at
issue. The Secretary filed a Motion for Decision and Order Approving Partial Settlement,
seeking approval of the settlement agreement. The Secretary has agreed to modify eight of the
citations and orders that are the subject of the agreement, and it is proposed that the total penalty
for those violations be reduced from $8,376.00 to $5,381.00. I have considered the
representations and evidence submitted and conclude that the proffered settlement is appropriate
under the criteria set forth in section 11 O(i) of the Act.

4

Jn an enforcement proceeding under the Act, the Secretary has the burden of proving
all elements of an alleged violation by a preponderance of the evidence. Jn re: Contests of

Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), ajf'd, Secy
ofLabor v. Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998);ASARCO Mining Co.,
15 FMSHRC 1303, 1307 (July 1993); Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152
(Nov. 1989); Jim Walter Resources, Inc., 9 FMSHRC 903, 907 (May 1987).
30 FMSHRC 951

ORDER
Order No. 7143320 is modified to a citation issued pursuant to section 104(a) of the Act
and is AFFIRMED, as modified. Respondent is ORDERED to pay a civil penalty in the
amount of $500.00 for that violation. The Motion for Decision and Order Approving Partial
Settlement is GRANTED, and the citations are hereby amended as proposed in the Motion.
Respondent is ORDERED to pay civil penalties in the amount of $5,381.00 for the settled
violations. The payments are to be made within 30 days of this decision.

Distribution (Certified Mail):
Paul A. Marone, Esq. Office of the Solicitor, U.S. Department of Labor, The Curtis Center,
Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306

Justin A. Rubenstein, Esq., Carol Ann Marunich, Esq., Dinsmore & Shohl, LLP, 215 Don Knotts
Blvd., Suite 310, Morgantown. WV 26501

30 FMSHRC 952

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
202-434-9981/ TELE FAX: 202-434-9949

September 30, 2008
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. PENN 2007-325
A.C. No. 36-05018-122224

v.
CUMBERLAND COAL RESOURCES, LP.,
Respondent

Mine: Cumberland

DECISION
Appearances: ·-Jessica R Brown, Esq., Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, on behalf of the Secretary of Labor;
Ralph Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania,
on behalf of Cumberland Coal Resources, LP.
Before:

Judge Zielinski

This case is before me on a Petition for Assessment of a Civil Penalty filed by the

Secretary ofLabor pursuant to section 105 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815. The petition alleges that Cumberland Coal Resources, LP, is liable for one
significant and substantial ("S&S'') violation of the Secretary's Mandatory Safety Standards for
Underground Coal Mines, and proposes the imposition of a civil penalty in the amount of
$5,800.00. A hearing was held in Pittsburgh, Pennsylvania, and the parties filed briefs after
receipt ofthe transcript. For the reasons set forth below, I find that Cumberland committed the
violation, but that it
not S&S, and impose a civil penalty in the amount of $1,000.00.

was

Findings ofFact- Conclusions of Law
On September 22, 2006, MSHA coal mine safety and health inspector, Barry Radolec,
was conducting a quarterly inspection of Respondent's Cumberland mine. In the No. 2 entry of
the East Mains section, also referred to as the 54 tailgate section, he observed that the roof of the
mine had been raised to allow for the future installation of a conveyor belt system. Normal
mining height was approximately eight feet. The "high spot" extended some 200 feet, from the
section loading point near the No. 84 crosscut inby to the No. 1 crosscut. Its maximum height
was approximately 21 feet in the area of the No. 85 crosscut, and it tapered down to a height of
14-15 feet near the feeder and at its inby end near the No. 1 crosscut.

Cumberland is a "gassy'' mine, liberating over one million cubic feet of methane per day,
30 FMSHRC 953

and is subject to spot inspections under the Act. 30 U.S.C. § 30l(i). Methane, an explosive gas
at concentrations of 5-15%, is lighter than air, and can accumulate in high spots. Methane in a
high spot can be drawn down by the passage of mobile equipment, where it can mix with air in
the entry and possibly encounter an ignition source. The Secretary's regulations require that the
atmosphere in high spots, in intake air courses where equipment is likely to operate, be tested
during preshift examinations. 30 C.F .R. § 75.360(b)(8). Testing is requir~ to be made no closer
than 12 inches from the root: and industry practice is to test about one foot from the roof. Tr. 8688, 150.
Persons conducting preshift examinations of areas where miners are expected to work or
travel are required to make notations ofthe date and time of the examination, and initial the
entries, at enough locations to show that the entire work area bas been examined. 30 C.F.R. §
75.360(e). Notations are typically made on a post, timber or bo~ often referred to as a "date
board." Examinations of high spots are done with a probe, an instrument to which an
atmospheric monitor can be attached and extended to the required testing height Radolec was
aware that date boards and extendable probes had been maintained at other high spots in the
mine. Tr. 46-47. There was no probe or date board at the high spot in the No. 2 entry. The
nearest probe was about 50 feet away, near the feeder. However, that probe was only 7.5 feet
long, too short for a proper test of the atmosphere in the high spot.
Radolec was concerned that the atmosphere in the high spot was not being monitored for
methane content. He related his concerns to Fred Evans, a Cumberland safety representative,
who accompanied him on the inspection. Radolec tested the atmosphere, using an extendable
probe from a continuous mining machine, and found that there was very little methane in the
high spot. 1 He decided not to issue a citation because he had some doubt about whether the tests
were being conducted.
Radolec returned to the mine on September 25, to conduct a fivtHiay spot inspection for
methane. He decided to visit the East Mains section to see if Cumberland had taken any steps to
assure that the atmosphere in the high spot was being tested for methane. He traveled with
Michael Konosky, a Cumberland senior safety representative. As on his earlier visit, there was
no date board or extendable probe at the location. He spoke with Harry Casteel, the section
foreman, who had conducted the preshift examination on September 22, and asked him if he had
an extendable probe. Casteel responded that he would call outside to get one.2 Radolec asked
Casteel to get a probe from a continuous miner so that he could test the high spot. Casteel
retrieved a probe, and Radolec •s test showed a methane concentration of 0.1%, well ~low its
explosive range. Tr. 46. Radolec also tested the atmosphere at the working faces and found 0.01

Methane tests must be made at faces every 20 minutes when mining is being done.
30 C.F.R. § 75.362(d). Consequently, probes that can be extended into areas where th~ roof is
unsupported are kept on continuous mining machines.
2

There are substantial conflicts between Radolec's and Casteel's recollections of their
conversation. They are discussed below.
30 FMSHRC 954

0.4% methane. Tr. 25-26. No active mining was taking place because equipment was being
moved from the No. 4 face to the No. 2 face.
Radolec issued Citation No. 7076359, alleging that Cumberland failed to test the
atmosphere in the high spot. Cumberland timely contested the citation and proposed penalty.
Citation No. 7076359
Citation No. 7076359 alleges a violation of30 C.F.R. § 75.360(b)(8), which requires that
persons conducting preshift examinations test for methane in "[h]igh spots along intake air
courses where methane is likely to accumulate, if equipment will be operated in the area during
the shift."
The "Condition and Practice" section of the Citation stated:

The person conducting the pre-shift examination for hazardous conditions
and testing for methane and oxygen deficiency failed to examine in high spots
along intake air courses where methane is likely to accumulate. This condition
existed on the active coal producing section of East Mains, 026-0 (M.M.U.)
development mining section of mine, in the number 2 entry, inby the section
loading point, at number 85 cross-cut to number l cross-cut (as viewed on section
working mine map). This area is from 15 feet to 21 feet above the mine floor, in
an area where immediate mine roof has been elevated to provide for future mining
conveyor systems. [grammatical and punctuation errors corrected]
Ex. G-1 .
Radolec determined that it was highly likely that the violation would result in a
permanently disabling injury, that the violation was S&S, that six persons were affected, and that
the operator's negligence was high. A specially assessed civil penalty in the amount of
$5,800.00 has been proposed for this violation.
The Violation
Cumberland contends that the high spot was not located in an ''intake air course," and that
testing was not required by the regulation, but was done as a matter of good practice. Under
Cumberland's approved ventilation pl~ air was supplied to the East Mains section through the
No. 3 and No. 4 entries. At the No. 84 crosscut, the air flow was split, such that in the No. 2
entry part of it flowed inby, past the feeder toward the face, and part flowed outby along the belt.
The No. 1 entry was the return entry. Cumberland contends that only entries which carry the
main flow of intake air are "intake air courses" within the meaning of the regulation and, since
the No. 2 entry carried only a split of intake air, it was not an "intake air course."

30 FMSHRC 955

Cumberland's argument is based upon the testimony of Robert Bohach, its manager of
safety, who was accepted as an expert in the field ofmine ventilation.3 Tr. 154. While Bohach
described the No. 2 entry as an "intake entry," he declined to classify it as an "intake air course,''
because it was not one of the main entries supplying air to the section. Tr. 155. Dennis
Swentosky, an MSHA supervisory mine safety and health specialist, who has been a ventilation
specialist for over twenty years, was also accepted as an expert witness in the field ofmine
ventilation. Tr. 78-82; ex. G-4. He referred to the Secretary's regulations which define intake
air, in pertinent part, as "[a]ir that has not yet ventilated the last working place on any split of any
working section." 30 C.F.R. § 75.301. Conversely, return air is air that "has" ventilated the last
working place on any split of any working section. Id. An air course is defined as "[a]n entry or
a set of entries separated from other entries by stoppings, overcasts, other ventilation control
devices, or by solid blocks of coal or rock so that any mixing of air currents between each is
limited to leakage." Id. The No. 2 entry inby the feeder met the definition of an air course. As
Swentosky explained, entries through which intake air is coursed to working places are intake air
courses. Tr. 92-93.
The area of the high spot in the No. 2 entry was to become part of the belt entry. Tr. 58.
The Secretary's regulations provide that a belt air course must not be used as a return air course,
and must be separated from return air courses "and from other intake air courses!' 30 C.F.R.
§ 75.350(a)(l) (emphasis added). Cumberland's overly restrictive interpretation of the term
"intake air course" is unsupported by the regulations, and is inconsistent with the use of the term
in the regulatory scheme. Bohach agreed that his narrow definition of an intake air course is not
found in the regulations. Tr. 156. Cumberland section foreman, Charles Fisher, also referred to
the No. 2 entry as an intake entry, and agreed that it was an intake air course, ''but not the main
intake air course." Tr. 148-50. I accept Swentosky and Radolec's testimony, and find that the
high spot was located in an intake air course. There was considerable mobile equipment traffic
in the area and, under the regulation, the atmosphere in the high spot was required to be tested for
methane content during preshift examinations.
Radolec was concerned that testing was not being done because, unlike other high spots
in the Cumberland mine, there was no probe at that location sufficient to reach to the required
testing height, and there was no date board to indicate that a preshift examiner had visited the
location and, presumably, taken the test. He was guided by a provision in MSHA's Program
Policy Manual, stating that the lack of some method to safely make such tests, e.g., ladders,
tubes, or methane detectors with probes, ''would be a good indication that tests were not being
made or not properly being made." Ex. G-5. His concerns were heightened by the fact that the
situation had not changed since his September 22 inspection, when he specifically discussed the
problem with Evans.
There are.several significant conflicts in the testimony regarding conversations that
Radolec had with Casteel. Radolec testified that Casteel told him that he was not conducting the
3

Bohach has served as ventilation coordinator for Cumberland, and holds a degree in
mining engineering and a masters degree in safety management.
30 FMSHRC 956

tests because he did not have anything to test with. Tr. 41-42. Casteel denied making that
statement. Tr. 122. Casteel's alleged response, which would have been a critical admission, is
not reflected in Radolec's field notes. 4 Tr. 42-43; ex. G-2 at 6. The notes reflect that Radolec
asked for a probe, and that Casteel responded that he did not have one, but would call outside to
get one. Radolec testified that he interpreted Casteel's reply as a "suggestion" that he did not
know that there was an extendable probe on the continuous miner, or that he did not want to take
a probe from a continuous miner. Tr. 52-53. Radolec also contradicted Casteel's testimony that
he stated that he used a probe from a continuous miner to conduct tests. Tr. 45.
I place no weight on Radolec's testimony regarding his conversations with Casteel. I find
that Casteel, most likely aware that Radolec wanted a probe left at the high spot, responded to his
inquiry by stating that he would call outside for one. That would have been a reasonable reaction
and, most likely, ·the only way to procure a probe that could have been left permanently at the
high spot. Radolec's testimony indicates that he substantially misinterpreted Casteel' s
communication.
Nevertheless, while it is possible, ifnot likely, that some of Cumberland's preshift
examiners properly tested the high spot, I find that it was not properly tested during preshift
examinations at the time the citation was issued. Cumberland had an established procedure for
testing high spots. An extendable probe and a date board were placed at the location. The
absence of a readily available extendable probe is evidence that tests were not being performed,
or were not being performed properly. Cumberland's witnesses described two methods of
conducting the test, both of which were cumbersome and time consuming. Casteel stated that he
retrieved an extendable probe from a continuous miner, brought it back to the high spot,
performed the test, and returned it to the miner. When the miner was in the No. 4 face, which it
had been on the day that the citation was issued, it was some 320 feet away from the high spot.
While Casteel claimed that it took only five minutes to retrieve the probe, perform the test, and
return it, it most likely would have taken longer, especially if the miner were operating.
Fisher and Thomas Illar, a section supervisor, did not use a probe from the miner to
examine the atmosphere in the high spot. Rather, they testified that they used the shorter, more
readily available probe near the feeder, and were able to reach the required height by climbing
onto the operator' s canopy of a shuttle car, approximately six feet high. Miners typically took a
dinner break about 4:00 am., and they instructed a shuttle car operator to position the car under
the high spot where a test could be made. Tr. 130, 147. Fisher, who conducted the preshift
examination for the day shift on September 23, was a reasonably convincing witness as he
described how he walked up the inby end of the shuttle car and onto the canopy. Tr. 147, 150.

4

Radolec's field notes were either made, or edited, after the citation was issued, i.e.,
after Radolec had exited the mine and typed the citation into his computer, which generated the
citation number. Tr. 66. Radolec explained that he wrote the notes after issuing the citation, in
order to justify the gravity of the alleged violation, and that he "cleans them up," and may add to
them as he gets further infonnation. Tr. 65-66.
30 FMSHRC 957

He may well have conducted tests in that fashion and would have been able to reach the required
height.
Illar conducted the preshift examination for the day shift on September 25. Tr. 127-28;
ex. R-1 at 69. Unlike Fisher, his description of his test methodology was unconvincing. He
hesitated when asked to explain how he mounted the canopy, and then explained that he used an
opening near a light to start his accent. Tr. 132. His demeanor conveyed the distinct impression
that he had never taken the test in the manner he described.
The high spot had existed for approximately one month, and preshift examinations had to
be performed more than once each day. Tr. 124. I find it incredible that experienced miners
would repeatedly perform the tests in the manners described, when a much better alternative was
readily available, i.e., obtaining an extendable probe to be kept at that location. Retrieving a
probe from a continuous miner would have required a considerable expenditure of time and
effort. Climbing up onto the canopy of a shuttle car, which may have had to be re-positioned,
would have been dangerous. Neither Fisher, nor liar deenergized the shuttle car before climbing
onto it. The area was admittedly dark, and the shuttle cars were typically dirty and slippery.
Tr. 136. Neither ofthem described using fall protection. Not surprisingly, Bohach, who was not
aware that preshift examiners were climbing onto the canopies of shuttle cars, would have
directed them to obtain and use an extendable probe. Tr. 157.
Illar testified that he used the shorter probe at the feeder, because it had been used for
testing the high spot "when it wasn't so high," and that it was '~still there." Tr. 129. I find that
presbift examiners routinely continued to use the shorter probe. They did not climb onto shuttle
car canopies, but tested the atmosphere at the maximum height they could reach, approximately
15-16 feet. Readings for methane in that intake entry, in the area ofthe high spot, had always
been very low, and testing at the lower height was most likely deemed sufficient. Tr. 147.
I find that the Secretary has proven, by a preponderance of the evidence, that Cumberland
violated the regulation, by not conducting a proper test of the atmosphere in the high spot during
preshift examinations. I concur with Radolec 's assessment that Cumberland's negligence was
high and that six persons were affected by the violation.
Significant and Substantial
An S&S violation is described in section 104(d)(l) of the Act as a violation "of such

nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard." A violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature." Cement Div.,
Nat '/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).

30 FMSHRC 958

The Commission has explained that:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard-that is, a measure of danger to safety-contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861F.2d99,
103-04 (5th Cir. 1988), ajfg Austin Power, Inc., 9 FMSHRC 2015, 2021(Dec. 1987) (approving
Mathies criteria).
In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission
provided additional guidance:

We have explained further that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." U.S. Steel Mining Co., Inc.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(dXl ), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U.S. Steel
Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574-75(July1984).
This evaluation is made in terms of "continued normal mining operations." U.S. Steel
Mining Co., Inc., 6 FMSHRC at 1574. The question of whether a particular violation is
significant and substantial must be based on the particular facts surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co. , 9 FMSHRC
2007 (Dec. 1987).
The fact of the violation has been established The measure of danger to safety was
contributed to by the failure to properly test the atmosphere in the high spot, and any injury
resulting from an ignition of methane would have been of a serious nature. The focus of the S&S
analysis, therefore, is whether the violation was reasonably likely to result in an injury. I find
that the Secretary has failed to carry her burden ofproof on this issue.
The preamble to the latest amendments to the regulation notes that methane liberation is
highly unpredictable, and that "the potential for a dangerous accumulation of methane in a high
spot is influenced by mine ventilation, particularly the air velocity in the entry." Ex. G-6. There
was no evidence of insufficient air flow in the entry, and there is no evidence of the existence of
methane, in other than trace concentrations, in the entry or the high spot. Radolec had tested the
30 FMSHRC 959

air in the No. 2 entry, and found no methane. Tr. 60. At the apex of the high spot, he found only
0.1% methane, and Fisher testified that he had never found more than 0.2% methane in that area,
although bis measurements may not have been taken at the proper height. Tr. 147.

As evidenced by the requirement for frequent tests at working faces, the greatest volume
of methane is generally liberated where coal is being cut. Radolee was concerned about methane
accumulating in the high spot because of an interruption in mine ventilation, including the
moving of line curtains. Tr. 61. However, he did not explain how the moving of a line curtain,
downstream in the air flow from the high spot, could affect air flow, or produce an accumulation
of methane in that area. As Swentosky stated, me~e liberated in the working section would be
swept out the return, not back to the feeder. Tr. 95-96. In addition, I have found that
Cumberland conducted tests of the atmosphere in the high spot, but did not do so at the proper
height. Consequently, the hazard contributed to by the violation was a potential accumulation of
methane in the relatively smaller area above 15 feet. While passing mobile equipment might
draw down an accumulation of methane immediately above the normal mining height, there is no
evidence that methane in the upper reaches of the high spot would be drawn down by passing
equipment. Certainly, passing equipment would have considerably less tendency to disturb
atmosphere nine feet above it.
I find that the Secretary has failed to prove, by a preponderance of the evidence, that the
violation was S&S.

The Am>ropriate Civil Penalties
The parties stipulated to many of the factors that are to be considered in establishing the
amount of a civil penalty. The Cumberland mine has an annual coal production of approximately
7,515 ,984 tons, and Cumberland Coal Resources, LP, is a large operator that produces
approximately 71,492,892 tons of coal annually. In the 24 month period immediately preceding
the issuance of the Citation, Cumberland was assessed a total of 472 violations, over 827
inspection days. Payment of the proposed penalty will not affect its ability to continue in
business. Cumberland demonstrated good faith in promptly abating the violation. The gravity
and negligence associated with the violation have been discussed above.
Citation No. 7076359 is affirmed. However, the violation is found to be non-S&S.
A civil penalty of $5,800.00 is proposed by the Secretary. The lowering of the level of gravity
justifies a significant reduction in the proposed penalty. I impose a penalty in the amount of
$1,000.00, upon consideration ofthe above and the factors enumerated in section 1lO(i) of the
Act.

30 FMSHRC 960

ORDER
Citation No. 7076359 is AFFIRMED, as modified, and Respondent is ORDERED to
pay a civil penalty in the amolUlt ofSl,000.00, within 30 days of this decision.

Distribution (Certified Mail):
Jessica R. Brown, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center,
Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
. R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty
Avenue, Pittsburgh, PA 15222

30 FMSHRC 961

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON. DC 20001-2021
TELEPHONE: 202-434-9900 I FAX: 202-434-9949

October 10, 2008

BLUE DIAMOND COAL COMPANY,
Contestant
v.

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

CONTEST PROCEEDINGS
Docket No. KENT 2004-220-R
Citation No. 7542869; 05/07/2004
Docket No. KENT 2004-221-R
Citation No. 7542870; 05/07/2004
Calvery No. 80
Mine ID 15-16349

CIVlLPENALTYPROCEEDING
Docket No. KENT 2005-31
A.C. No. 15-16349-39259

v.
BLUE DIAMOND COAL COMPANY
Respondent

MINE: Calvary No. 80

ORDER GRANTING MOTION FOR SUMMARY DECISION

Before: Judge Weisberger
This case arises out of a fatal accident that occurred on February S, 2004, and the two
resulting citations that were issued as a result ofthe fatality. 1 On July 11, 2008, Blue Diamond
Coal Company (''Blue Diamond") filed a Motion for Summary Decision (''Motion II") in the
above-captioned case. The Secretary of Labor ("Secretary") filed her Response to Motion for
Summary Decision on August 5, 2008.
Citation Number 7542869 alleges a violation of 30 C.F.R § 77.171 O(g), which requires
that "[e]ach employee working in a surface coal mine or in the surface work areas of an
underground coal mine shall be required to wear protective clothing and devices as indicated
below: (g) Safety belts and lines where there is a danger of falling." The citation states as
follows:

1

The balance of the facts are not relevant to the disposition of this motion, and are set forth in an order issued on
August 10, 2007, denying Respondent's Motion for Summary Decision ("Motion I") filed January 4, 2006.

30 FMSHRC 962

The maintenance supervisor, an employee ofChas Coal, Inc., failed to wear a safety
belt or harness when on February 3, 2004, he was in the Simon Telelect aerial bucket
.... The maintenance supervisor was thrown from the bucket from approximately
22 feet in height when the concrete imbedded wooden post he was pulling suddenly
came out of the concrete floor releasing the deflected aerial boom. As a result the
victim fell to his death ....
Citation Number 7542870 alleges a violation of30 C.F.R § 77.404(a), which provides
that "[m]obile and stationarymachinery·and equipment shall be maintained in safe operating
condition and machinery or equipment in unsafe condition shall be removed from service
immediately." The citation states as follows:
The Simon Telelect aerial bucket .. . was used improperly and for a purpose for
which it was not designed. The maintenance supervisor, an employee ofChas Coal,
Inc., while riding in the aerial bucket, attempted to use the upper boom on which the
bucket is attached to pull a wooden post out of the concrete floor wherein it was
embedded. The maintenance supervisor was pulling up and rotating the boom le.ft
and right to loosen and remove the post when the post came loose causing the boom
to move violently throwing him out of the bucket. As a result the victim fell to his
death . . . .
Under Commission Rule 67, 29 C.F.R. § 2700.67, summary decision may be granted if
the entire record, including the pleadings, depositions, answers to interrogatories, admissions,
and declarations, shows: (1) that there is no genuine issue as to any material fact; and (2) that the
moving party is entitled to summary decision as a matter of law. I find that Blue Diamond is
entitled to sununary decision in this case for the reasons set forth below.
Citation Number 7542870 I 30 C.F.R. § 77.404(a)

It is Blue Diamond's position that there was not any violation of section 77.404(a) and,
therefore, summary decision is appropriate, because MSHA has stipulated that the truck was in

safe operating condition. The victim may have used the truck improperly, argues Blue Diamond,
but improper use of equipment that was properly maintained does not constitute a violation of the
section.
The Secretary counters that argument by asserting that the standard for finding a violation
of section 77.404(a) is whether a reasonably prudent person, familiar with any facts peculiar to
the mining industry, would recognize a hazard warranting corrective measures. The Secretary
argues that under this standard, the facts demonstrate that the accident was the direct result of the
victim's use of the truck as a hoist - which is not the purpose for which the truck was designed and that any reasonably prudent person with knowledge of the truck's operation and design
would know that this usage was potentially hazardous. As such, it is the Secretary's contention
that the issue is not whether the truck was safe for use as an elevated platform, the use for which
30 FMSHRC 963

it was designed, but rather whether it was safe for use as a hoist, the use for which it was actually
used.
Section 77.404(a) provides that machinery must be ''maintained" in safe operating
condition. This language is clear and unambiguous in its meaning, and as such, "effect must be
given, if possible, to every word, clause, and sentence." Cannelton Industries, Inc., 26 FMSHRC
146, 149-50 (Mar. 2004) (quoting 2A Norman J. Singer, Sutherland Statutory Construction,§
46.06, at 181 (6th ed. 2000)).
''Maintain" is defined as "to keep in a state of repair, efficiency, or validity: preserve from
failure or decline." WEBSTER'S THIRD NEW lNTBRNATIONAL DICTIONARY (Unabridged), 1362
(2002 ed.). Given this clear definition, it is evident that the concept of"maintenance" is plainly
distinct from the concept of''usage." Therefore, the Secretary's argument that ''usage" should be
implied into the meaning of section 77.404(a) is without merit. In addition, because the language
and meaning of section 77.404(a) is clear and unambiguous, there is no need to apply the
reasonably prudent person test. Therefore, because it is stipulated that the vehicle was in safe
operating condition, it was in compliance with section 77.404(a). As such, Blue Diamond's
Motion for Summary Decision (Motion II) with regard to Citation Number 7542870 is granted.
Citation Number 7542869 / 30 C.F.R. § 77.1710(e)

Blue Diamond argues that summary decision is appropriate for disposition of Citation
Number 7542869 because the language of section 77.1710(g) requires that the individual in
question be an "employee" of the cited entity, and in the case at bar it is undisputed that the
victim was not an employee of Blue Diamond. Blue Diamond advances the rule of expressio
unius est exclusion alterius to support its position.
The principle of expressio unius est exclusio alterius dictates that "the enumeration of
specific exclusions from the operation of a statute is an indication that the statute should apply to
all cases not specifically excluded." Cannelton Industries, Inc., 26 FMSHRC at 158 (quoting
United States v. Newman, 982 F.2d 665, 673 (1st Cir. 1992)). Applying this principle to the case
at bar, the classification of"employee," as contained in 77.l 710(g), is a specific classification
pertaining to individuals who are employed at Blue Diamond. The usage of this specific
classification precludes any implication that the statute intended to encompass any broader
classification, and the Secretary has not asserted any contrary facts. Therefore, it must be found
that there was no violation of section 77.1710(g), and Blue Diamond's Motion for Summary
Decision (Motion II) must be granted.

30 FMSHRC 964

ORDER
It is ORDERED that Blue Diamond's Motion for Summary Decision (Motion II) is

GRANTED. As such, Citation Number 7542869 and Citation Number 7542870 are vacated.
The case is accordingly DISMISSED.

..cZAi. L-

Avram Weis~r
Administrative Liw Judge

Distribution:
Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 2333 Alumni Park
Plaza, Suite 310, Lexington, KY 40517
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Road, Suite B-201, Nashville, TN 37215
· /eb .

30 FMSHRC 965

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 Speer Boulevard, #280
DENVER, CO 80204-3582

303-844-35n/FAX 303-844-5268

October 27, 2008
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MJNE SAFETY AND HEALTlI
ADMINISTRATION (MSHA),
Petitioner

Docket No. LAKE 2007-156
A.C. No. 12-02010-120893

v.

Air Quality #1 Mine

BLACK BEAUTY COAL COMPANY,
Respondent
DECISION

Appearances:

Travis W. Gosselin, Esq., Office ofthe Solicitor, U.S. Department ofLabor,
Chicago, Illinois, for Petitioner;
·
R. Henry Moore, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvani~
for Respondent.

Before:

Judge Manning

This case is before me on a petition for assessment of civil penalty filed by the Secretary of
Labor, acting through the Mine Safety and Health Administration ("MSHA''), against Black Beauty
Coal Company (''Black Beauty''), pursuant to sections 105 and 110 ofthe Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the ''Mine Act'l An evidentiaryhearingwas held
in Evansville, Indiana. The parties introduced testimony and documentary evidence and filed posthearing briefs.
I. BACKGROUND AND SUMMARY OF THE EVIDENCE

Black Beauty is an underground coal mine in Knox County, Indiana. This case involves
Citation No. 6666262, issued on January 17, 2007 under section 104(d)(l ). 1 The citation was issued
by MSHA Inspector David Cox and alleges a violation of section 75.360(b). The citation states, in
part:

An adequate preshift examination of the #63 crosscut between the
4MNA belt and travelway (approach to 2IAN seal construction area)
was not performed. An area of roof in this crosscut is loose and

1

This citation was originally issued as a section 104(d)(2) order. This order was
modified to a section 104(d)(l) citation byorderoflaw. (Stips. ~ 11and~12).
30 FMSHRC 966

broken (approximately 4 feet by 8 feet by 2 inches to 6 inches thick).
Miners are required to travel through this area to the seal construction
area.
Inspector Cox determined that an injury was reasonably likely and that any injury could reasonably
be expected to be fatal. He determined that the violation was of a significant and substantial nature
(''S&S'') and that the negligence was high. The safety standard provides that the person conducting
a preshift examination "shall examine for hazardous conditions, test for methane and oxygen
deficiency, and determine ifthe air is moving in the proper direction at the following locations: (1)
roadways, travelways and track haulage ways where persons are scheduled, prior to the beginning
ofthe preshift examination, to work or travel during the oncoming shift." The Secretary proposes
a penalty of$10,300.00 for the violation.
Inspector Cox inspected the mine with David Wininger, a safetytechnician in Black Beauty's
safety department. Inspector Cox testified that during his inspection on January 17, he observed a
large rock banging offtwo straps that were ''bowed down." (Tr. 19). The inspector determined that
the rock was loose and it posed a hazard to anyone who had to travel through the #63 crosscut. He
observed the condition as the inspection party traveled in a vehicle after having been in the seal area.
He did not observe the condition when they traveled under the rock to the seals. He is not sure why
he did not see the cited condition as he traveled inby toward the seals. (Tr. 44-45). When the
inspection party traveled away from the seals, Inspector Cox observed the rock ''hanging there off
these two 16 inch straps." (Tr. 20). The straps were covered in rust and they were about six inches
wide. The straps were bent down.
Any miners traveling to the seal area would have to travel through this crosscut. The
inspector testified that the condition was obvious and it presented a hazard. The inspection party had
already driven past the rock on the way out ofthe area when the inspector told Wininger to stop the
vehicle. After walking back to the area, the inspector determined that he would issue a citation for
failing to adequately support the roof. He also stated that he would look at the preshift examination
books to see if the condition had been noted.
Inspector Cox testified that the rock was easy to see when traveling out ofthe seal area. (Tr.
22). The rock was not ''supported or controlled." The inspector believes that the crosscut was not
required to be preshifted until miners began working on the seals because miners would otherwise
not travel through the crosscut. Once work began on the seals, the preshift examiner should have
regularly traveled through the crosscut and preshifted the area. The straps under the rock were
supplemental support and they were not part ofthe roof control plan. (Tr. 25, 38; Ex. S-4). These
straps are designed to control the thinner overlying strata that may break loose. The roof support
used in the area were five feet long, fully grouted resin bolts. (Tr. 39). The loose rock was about
four feet wide and eight feet long. It was six inches thick at one end and tapered down to about two
inches thick. (Tr. 25). The straps were six inches wide and a sixteenth of an inch thick. He
estimates that the rock weighed several hundred pounds. Inspector Cox determined that the straps
were very distorted because they had been ''pulled down" by the rock. (Tr. 26, Ex. S-4). He was
30 FMSHRC 967

concerned that the rock could fall if the strap pulled through any of the roof bolt heads used to
support the strap. A miner would likely suffer a fatal injury if the rock were to fall on him. Even
if a small portion of the rock were to fall, it could seriously injure a miner.
Inspector Cox testified that the preshift examination book did not contain any notations about
the cited rock. Miners rely on these books to assure themselves that everything in a given area is
safe. If a hazard is noted, the condition can be corrected. There were two miners working at the
seals at the time of this inspection. The inspector determined that the company's negligence was
high because the condition was obvious and extensive. The preshift examiner should have noted the
condition ofthe roofand reported it in the preshift book. (Tr. 31, 58). The inspector did not talk to
the preshift examiner about the condition. (Tr. 47). Inspector Cox testified that he has issued
numerous citations to Black Beauty for inadequate preshift examinations and he has talked to mine
management about it. The inspector also believes that the cited condition must have existed for at
least five shifts because there was ''roadway dust" on the rock. (Tr. 33). Exposure to the mine
environment increases the likelihood that the rock and straps will deteriorate and the rock will fall.
(Tr. 34).
Inspector Cox also testified that the cited condition was a result the operator's unwarrantable
failure to comply with the safety standard because this mine had been issued numerous citations by
several inspectors for violations of section 75.360. The inspector has personally counseled
management about improving preshift examinations at _the mine. (Tr. 34-35). Inspector Cox
testified that the condition was extensive and obvious. He said that the preshift examiner must have
been "dreaming" when he conducted his examination in this area. The failure to report the cited
condition in the record book constituted aggravated conduct.
David Wininger testified that one of his duties is to travel with MSHA inspectors during
their inspections. He has been a preshift examiner for about 18 years and he is a certified mine
examiner. (Tr. 60-61). He was also a roof bolter for about five years. On the day of Cox's
inspection, he was driving an open-topped, three-passenger diesel vehicle. (Tr. 62; Ex. BB-5). The
mine roofis clearly visible from the vehicle. The inspection party traveled through crosscut #63 on
their way to the seals. (Tr. 63, Ex. BB-1). The inspector did not make any comments about the cited
rock on the way to inspect the seal project. Crosscut #63 is about two miles from the active areas
of the mine. (Tr. 77).
On the way back out from the seals, Wininger drove past the cited rock into the main
travelway when the inspector asked him to stop because he wanted to go back and look at something.
(Tr. 65-66). Inspector Cox walked back into the crosscut to observe the rock. Wininger tried to pry
the rock down with a bar for about five minutes but he could not get it to move. Wininger testified
that there were two straps across the rock plus at least one roofbolt through the rock. After he could
not get any of the rock down, Wininger was convinced that the rock was secure. (Tr. 67-69, 71).
A roofbolting machine was subsequently brought into the area to get the rock down. Wininger does
not believe that the rock presented a hazard. (Tr. 68). He also believes that the straps were still
viable despite any rust. He was not able to get the straps to break with his pry bar. Wininger does
30 FMSHRC 968

not believe that the rock needed to be recorded in the company's book because it did not create a
safety hazard. (Tr. 76).
Thomas Burnett also testified for Black Beauty. At the time that citation was issued, he was
on the outby crew building the seals. (Tr. 79). The seal construction project was scheduled to last
a couple ofweeks. He could not recall how long he had been constructing these seals but it would
have been at least a couple of days. (Tr. 81). After Inspector Cox ordered that the rock be taken
down, Burnett and his coworker at the seals, Emery Caine, tried to take it down with pry bars. They
also tried to break the straps apart with the pry bars but ''we couldn't do that either." (Tr. 84). It
"didn't take long to figure out that we were not going to do anything with two pry bars," so a rock
bolting machine was brought into the area. (Tr. 82-83). They used the bolting machine to break the
rock into smaller pieces by slamming drill steel into the rock with the hydraulic boom. It took them
about 45 minutes to an hour ofactual work time to get all of the rock down. (Tr. 83). He believes
that the rock would still be in the roof ifit had not been taken down on January 17, 2007. (Tr. 86).
Roof bolts and the straps were adequately supporting the rock. (Tr. 90). He does not believe that
the effectiveness of the bolts and straps had been compromised. {Tr. 91-92). The rock had only
separated from the top a small amount. (Tr. 94). He believes that the plates that were installed with
the roofbolts to secure the straps were flush with the roofbut he does not know how tight they were.
(Tr. 95-96).
Craig House is the mine examiner who performed the preshift examination in the area ofthe
seals on January 17, 2007, including crosscut #63. (Tr. 100; Ex. BB-3 p.20). House testified that
he performs his examinations along roadways using a small, open-top vehicle. He did not see any
hazards in crosscut #63 that day. {Tr. 103). He did note other hazards during his examination on
the January 17, including loose roof bolts in other areas. (Tr. 104). House would have looked at the
subject rock because he is constantly scanning the roof during his examinations, but he did not see
any loose roof. (Tr. 110). House does not believe that the cited rock presented a hazard to miners.
(Tr. 108, 111 ). The rock was held up by straps that were not loose. The rock was pushed up tight
against the roof by the straps. (Tr. 112). He did not notice any changes in the rock or the straps over
the period oftime that he had been performing preshift examinations along crosscut #63. (Tr. 115).
Roland Madlem was a safety manager for Black Beauty in January 2007. He has held many
jobs at the mine since he started working there in 1993. Wlien he was a roof bolter, he developed
a good feel for ''what's actually in the root:" (Tr. 120). There have been no injuries from roof falls
in outby areas ofthe mine in the past five years. Madlem testified that straps are used to help support
the skin of the roof, but that straps are not the primary means to control the roof. The skin of a roof
tends to weather and wants to fall away from the roof. The straps are designed to hold the
deteriorating skin up against the roof. By examining the root: a preshift examiner can determine
whether a rock is weathering. (Tr. 128). He looks for rocks separating from the roof and folding
around the straps. The roof control plan did not require straps but they were permitted in the plan.
(Tr. 121). Straps were used when the mine opened in 1993. Since 2003, wire mesh has been used
because it provides increased coverage. The straps bend to conform to the shape of the rock as the
30 FMSHRC 969

roof bolts and plates used to install the straps are tightened against the roof. (Tr. 122). Mr. Madlem
took photographs ofthe roofafter the rock had been removed and additional bolts had been installed.
(Tr. 123; Exs. G-3, G-4). The straps were significantly damaged during the process oftaking down
the rock.
Madlem also testified that Mr. House is a very competent examiner. (Tr. 124). He notices
when bolts have been installed too far from the rib and when bolts are loose. Madlem testified that
House did an adequate examination of crosscut #63 on January 17, 2007. The straps were doing
their job in keeping the skin against the roof so it would not fall. Id. Rocks at the mine are
frequently supported by straps. Mr. House did not see the rock in question as creating a hazard
because the rock was not putting so much s1ress on the straps that it was actually "folding down
away from the roof between the s1raps." (Tr. 125). The fact that the rock was difficult to take down
shows that it was not a hazard to miners. (Tr. 129). It is unlikely that a rock the size of the one at
issue would fall without first putting heavy s1ress on the straps and separating away from the roof.
In addition, the rock was not located in an active area ofthe n;tine. He does not believe that it was
reasonably likely that the rock would fall or that anyone would be injured. It is extremely rare for
s1raps to fail. Indeed, they usually only fail when they are struck by a piece ofmachinery. (Tr. 127).

II. BRIEF SUMMARY OF THE PARTIES' ARGUMENTS

The Secretary argues that Black Beauty violated section 75.360(b) because it failed to
conduct an adequate preshift examination of the #63 crosscut on January 17, 2007. Inspector Cox
clearly testified that he observed a large rock hanging on two metal straps that were attached to the
mine roof. The straps were about I /16th of an inch and about 6 inches wide. The s1raps appeared
to be distorted, bent, bowed down, and covered with rust. Although these straps are designed to
bend, their integrity is compromised ifthey are twisted, bent, and distorted. The straps are designed
to hold up the skin of the roof where needed but not to hold up large rocks.
Drawing on his 40 years ofunderground mining experience and his experience as a preshift
examiner, Inspector Cox determined that the rock posed a hazard to miners and should have been
noted on the mine's preshift examination books. At least two miners were working at the seal
cons1ruction site on the day ofthe inspection and they would have traveled through the #63 crosscut.
Preshift examinations are offundamental importance in assuring a safe working environment.
Preshift examiners must identify conditions that could pose a hazard to miners and record these
conditions in the preshift book so that the condition can be eliminated. The Secretary contends that
the preshift examiner's failure to note the dangerous condition in the record book created a
significant and substantial hazard and demonstrated aggravated conduct that is imputable to Black
Beauty.

Black Beauty states that Craig House was an experienced miner who had been conducting
30 FMSHRC 970

examinations for several years. He was also an experienced roofbolter, which increased his ability
to understand and evaluate roof conditions. The evidence establishes that his examination that day
had been thorough and complete. House did not believe that the conditions identified by the
inspector created a hazard to miners. He observed the rock supported by roof-bolted straps and,
based on his experience, determined that the rock did not present a hazard. He had examined the #63
crosscut over several weeks and he had not observed any·changes in the roof.
Mr. House's judgment is confirmed by the amount of effort it took to take down the rock.
The miners tried to bring down the rock using pry bars. These miners were unab~e to bring down
the rock, break the rock apart, or tear open the straps. The rock was only brought down when a roof
bolting machine was brought in. The boom was used to break the rock and bring it down. It took
45 minutes ofcontinuous effort by the operator of the roof bolting machine to bring down the rock.
The effort required to bring down the rock demonstrates not only that no hazard was present but that
Mr. House's evaluation of the rock during his preshift examination was correct.
III. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW

It is well recognized that roof falls pose one ofthe most serious hazards in underground coal
mines. United Mine Workers ofAmerica v. Dole, 810 F.2d 662, 669 (D.C. Cir. 1989). The roof in
underground coal mines is inherently dangerous and rooffalls have historically been a leading causes
offatal accidents. A mine examiner must be unceasingly vigilant when inspecting the roofto protect
miners who work or travel in the area. It is critical that preshift examiners conduct thorough and
detailed examinations ofthe mine and that they pay particular attention to the condition ofthe roof.
The #63 crosscut where the rock was located was a roadway or travelway through which
miners were scheduled to pass during the shift. Thus, the crosscut was required to be preshifted.
There is also no question that Craig House conducted an examination in the #63 crosscut. The issue
is whether the rock in question was a "hazardous condition" that was required to be recorded in the
mine's record book.
Both Mr. House and Inspector Cox are experienced underground coal miners. In addition,
they are both experienced mine examiners. Inspector Cox testified as to why he believes that the
rock presented a hazard and Mr. House testified as to why he did not believe that the rock was
hazardous. A review of the evidence is necessary to resolve this issue.
The rock in question was made up of laminated shale material. {Tr. 129, 133). It was
supported by at least one roof bolt and two metal straps that had been installed when the area was
developed. The rock was being held against the roof by these straps. Three different miners,
together and individually, tried to pry down the rock without success. They also tried to break up
the rock and tear open the straps. The rock was eventually brought down using a diesel roof bolter.
The operator of the roof bolter fractured one end of the rock and then used the boom of the bolter
to push the rock offthe other straps. It took about 45 minutes ofcontinuous work to bring down the
30 FMSHRC 971

rock. (Tr. 83-84).
Mr. House testified that he had inspected the crosscut several times in the week prior to
January 17, 2007, and he did not notice any changes in the roof. During his examination, House
reported a rib roll and a loose roof bolt in other areas that he examined. (Tr. 104, Ex. BB-3, p. 20).
On other days, Mr. House reported roof bolts that were too far from the rib. (Tr. 105, Ex. BB-3, p.
14). The evidence shows that Mr. House pays attention to detail when he conducts his examinations
and the testimony of Mr. Madlem confirms this fact.
·
I find that the Secretary failed to establish a violation of section 75.360(b). I credit the
testimony ofWininger, Burnett, House, and Madlem as to the condition of the rock and the efforts
that the company took to bring down the rock. There was only a small gap between the rock and the
roof because the roof-bolted straps were holding the rock against the roof. Witnesses for Black
Beauty credibly testified that, when the straps were installed, they were bent to conform to the shape
of the rock. Four rock bolts with plates were installed evenly along each of the 16 foot long straps.
(Tr. 134). The straps bend to conform to the shape ofthe rock as the roof bolts are installed. I credit
the testimony ofBlack Beauty's witnesses that the effectiveness ofthe roof bolts and the straps had
not been compromised. Consequently, it does not appear that the straps had been "pulled down" by
the weight ofthe rock. Although there was some rust on the straps, miners using pry bars could not
get to straps to break. In addition, the rock in question was about two miles from the active areas
of the mine. There is no evidence that the top in or around crosscut #63 was working or otherwise
sloughing off. Mr. House credibly testified that the roof in the crosscut had not changed over the
week or so that he had been conducting examinations in the area.
I find that the rock did not create a hazard to miners on January 17, 2007. It took a
significant effort to remove the rock. As stated above, a rock bolting machine was brought in and
the boom on the machine was used to thrust drill steel into the rock to break it. I credit the testimony
ofthe company's witnesses that it was unlikely that the entire rock or pieces of the rock would have
fallen on January 17 or at anytime soon thereafter. It may well be that at some time in the future the
rock would have pressed down against the straps and presented a hazard that was required to be
reported. I find, however, that the preponderance ofthe evidence establishes that on January 17, the
rock did not present a hazardous condition. As a consequence, Mr. House was not required to report
it in the mine's outby preshift record book.
I recognize that Inspector Cox has been a mine examiner and has worked in several
underground coal mines, including the subject mine, but his inspection of crosscut #63 was, by
necessity, short. He reached his conclusion that the rock posed a hazard after a brieflook at the rock.
I do not doubt that he genuinely believed that the rock posed a hazard to miners that should have
been recorded. The evidence shows, however, that the rock was stable, was sufficiently supported,
and did not present a hazard. The evidence also shows that Mr. House was a competent mine
examiner and that he takes his responsibility seriously. It is crucial that preshift examinations at the
mine be conducted in a thorough and competent manner so that hazardous roof conditions are
promptly corrected.

30 FMSHRC 972

IV.ORDER

For the reasons discussed above, Citation No. 6666262, issued on January 17, 2007, is
VACATED and this proceeding is DISMISSED.

Richard W. Manning
Administrative Law Judge
. . ... ..........

Distribution:
Travis W. Gosselin, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St.,
Room 844, Chicago, IL 60604-1502 (Certified Mail)
R. Henry Moore, Jackson Kelly PLLC, Three Gateway Center, Suite 1340, 401 Liberty Avenue,
Pittsburgh, PA 15222 (Certified Mail)

RWM

30 FMSHRC 973

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

October 29, 2008
CONTESTPROCEEDJNGS

JIM WALTER RESOURCES, lNC.,
Contestant

Docket No. SE 2008-389-R
Citation No. 7691158; 03/04/2008

v.

Mine ID 01-01401
Mine: No. 7

SECRETARY OF LABOR
l\.1INE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Docket No. SE 2008-521-R
Citation No. 7691159; 03/04/2008
Mine ID 01-01247
Mine: No. 4
SUMMARY DECISION

Before: Judge Bulluck
These cases are before me on Notices of Contest filed by Jim Walter Resources,
Incorporated ("JWR"), against the Secretary of Labor, acting through her Mine Safety and Health
Administration (''MSHA"), pursuant to section 105(d) of the Federal Mine Safety and Health Act
of 1977 ("the Acf'), 30 U.S.C. § 815(d). JWR challenges citations issued by MSHA under
section 104(a) of the Act, alleging violations of the Secretary's mandatory safety standard found
at 30 C.F.R. § 75.507.
The parties have filed cross Motions for Summary Decision.1 The Commission rule
governing summary decisions, Rule 67(b), provides as follows:

1

The parties' Motions for Summary Decision reference Docket No. SE 2008-389-R and
Citation No. 7691158 in JWR's No. 7 Mine only. However, JWR filed, unopposed, a Motion for
Consolidation of Docket Nos. SE 2008-521-R and SE 2008-389-R, asserting that the citations in
the dockets are "i4entical, other than the fact that the pump at issue in [SE 2008-521-R) is
located at JWR Mine No. 4 and the pump at issue in Docket No. SE 2008-389-R is located at
JWR Mine No. 7. The issues of fact and law will be the same in both contests." JWR's Motion
is hereby GRANTED, and the cases are CONSOLIDATED. Notwithstanding the limited focus
of the Motions, the arguments made therein also pertain to Citation No. 7691159 in Docket No.
SE 2008-521-R, and this Decision disposes of both dockets.
30 FMSHRC 974

A motion for summary decision shall be granted only if the entire record ...
shows: (1) That there is no genuine issue as to any material fact; and (2) That the
moving party is entitled to summary decision as a matter of law.
29 C.F.R. § 2700.67(b). Based upon the stipulations and uncontested facts represented by the
parties, I find that there is no genuine issue as to any material fact. Having reviewed the parties
Motions, I conclude that, for the reasons stated below, JWR is entitled to summary decision as a
matter oflaw.
I. Stipulations

The parties stipulated as follows:
1. The Administrative Law Judge and the Federal Mine Safety and Health Review
Commission have jurisdiction to hear and decide this [contest] proceeding pursuant to section
105 of the Federal Mine Safety and Health Act of 1977;

2. JWR is a mine operator subject to the jurisdiction of the Federal Mine Safety and
Health Administration;
3. JWR is the owner and operator of the No. 7 Mine located in Tuscaloosa County,
Alabama;
4. Operations at the No. 7 Mine are subject to the requirements of the [Federal] Mine
Safety and Health Act;
5. MSHA Inspector John M. Church was acting in his official capacity as an authorized

representative of the Secretary of Labor when he issued Citation No. 7691158; and
6. Citation No. 7691158 was served on JWR or its agent as required by the Act.
JWR Mot. at 1.

II. Factual Bacqround

These matters concern JWR's use of non-permissible deep well submersible pumps in
sealed areas of its No. 4 and No. 7 Mines. JWR's operation of these pumps in No. 7 was
challenged by MSHA in October of2004, under section 75.507-1.2 JWR duly contested the
2

30 C.F.R. § 75.507-1 provides, in pertinent part, that "[a]ll electric equipment, other

than power-connection points, used in return air outby the last open crosscut in any coal mine

shall be permissible ....,,
30 FMSHRC 975

citation, and the case was heard and adjudicated by me. See Jim Walter Resources, Inc.• 27
FMSHRC 968, 978 (Dec. 2005) (AU) ("JWR-l'). In its Motion for Summary Decision, JWR
asserts that the instant proceeding and JWR-1 involve the same parties and controlling facts.
JWR Mot. at 5. The Secretary does not challenge this assertion. As in JWR-1, here MSHA cited
the submersible "deep well" pump systems in No. 4 and No. 7 Mines, with both surface and
underground components, which JWR uses to remove vast accumulations of water from
permanently sealed. worked-out underground areas where coal was formerly mined. ·
The conditions in the areas being dewatered remain consistent with the description set
forth inJWR-1:
Once the permanent seals are erected, the sealed areas are totally isolated and
inaccessible; they cannot be traveled. examined, inspected or ventilated. The
water that collects in the sealed area at issue forms a large underground lake that
requires constant management. so as to prevent the water from compromising the
seals and inundating the active workings of the No. 7 Mine. The pumps,
therefore, are situated at the lowest elevations of the sealed areas in natural water
collection basins. In addition to the pumps, as part of its methane drainage
system, JWR has numerous degas wells situated at intervals throughout the sealed
area, which are the sole means of determining atmospheric conditions in the
otherwise inaccessible area.
27 FMSHRC at 969-70 (footnote and citations omitted).
The pumps at issue are active electric submersible pumps, utilized in the sealed area of
No. 7 since 1987, and are described inJWR-1 as follows:
All electric controls for the pump are housed above ground in a pump starter unit. From
the starter unit, a high voltage power conductor cable, encased in a steel pipe. runs some
2,000 feet underground to the original mine floor, and an additional 200 feet beneath that
surface, where the electric motor and pump assembly are situated in a sump. The steel
casing, at ground level on the surface, is capped by a metal well head. The motor sits at
the bottom of the sump and is 30 feet high, there is a 5-foot seal between the motor and
the pump, and the pump, itself, also 30 feet high, sits on top of the seal. According to. the
manufacturer's specifications, in order for the pump to operate, there must be at least 30
feet of water ("head") above the inlet of the pump, so that the motor and pump assembly
require 65 feet of water in which to operate. Inside the steel casing is also a metal
discharge pipe. The casing is slotted just below the water level, allowing water into the
casing where it is forced down a second set of slots at the bottom, where it cools the
electric motor. The pump, with a 500-gallon-per-minute capacity. then transports the
water up the discharge pipe to a surface settlement pond. A vacuum sensor, located on
the surface, automatically shuts off the power from the pump starter to the entire system,
if it detects that the water level had dropped below 30 feet of head above the pump.
30 FMSHRC 976

Additionally, JWR has installed a redundant safety system, undercwrent protection, that
will also disable the system.

Id. at 970 (citations omitted).

III. Procedural Backzround
The enforcement history associated with JWR's deep well submersible pumps is set forth
in JWR-l as well:
JWR's submersible pumps ... had always been inspected by MSHA under Part
77 regulations applicable to surface areas ofunderground mines, and the National
Electric Code ("NEC"). Under Part 77, the pumps were not required to be
permissible. Sometime in 2003, in response to inconsistent enforcement in the
districts, i.e., some were inspecting submersible pumps under Part 75 while others
were applying Part 77, MSHA' s Safety Division decided to impose unifotm,
nationwide compliance under Part 75. As a consequence, in order to continue use
of nonpermissible pumps behind the seals underground, operators who had been
inspected under Part 77 were required to file Petitions for Modification under
section 10 l (c) of the Act.
JWR opposed MSHA's application of Part 75 underground standards and when
extensive infotmal discussions about the safety of JWR's pumps proved
unfrui~ JWR filed a Petition for Modification with MSHA on July 22, 2003,
seeking approval to continue operation of its nonpermissible submersible pumps
in sealed areas of its Alabama mines, including No. 7 herein at issue. Jn the
meantime, before issuing its decision on the Petition, MSHA issued Program
Infonnation Bulletin No. P03-26 ("PIB''), clarifying compliance requirements for
nonpermissible electric submersible dewatering pumps installed in sealed areas,
return air courses or bleeder entries in underground coal mines. The PIB notified
the mine industry ofMSHA's application of section 75.507 to submersible
pumps, that the pumps are located in return air for purposes of the regulation, and
that they are required to be permissible, unless a modification is approved by
MSHA.
MSHA issued its Proposed Decision and Order (''PDO") on June 17, 2004,
authorizing JWR to continue use of its submersible pumps under specific detailed
conditions. JWR found the conditions unacceptable and appealed the PDO,
arguing, inter alia, that section 75.507 does not apply to the pumps at issue.

Id. at 970·71 (footnote and citations omitted).
On October 14, 2004, MSHA cited JWR for operating a nonpermissible deep well
30 FMSHRC 977

submersible pump in "return air" in violationof30 C.F.R. § 75.507-l. Id. at 971-72. JWR
contested this citation which, after an evidentiary hearing, was vacated. Pending the outcome of
that proceeding, JWR's appeal of the PDO was stayed by the Department of Labor's presiding
ALT. After the case was decided, on joint motion of the parties, the judge dismissed the appeal
as moot. JWR Mot. at 2, 4.
The instant consolidated proceeding arises from section 104(a) Citation Nos. 7691158
(No. 7 Mine) and 7691159 (No. 4 Mine), issued to JWR by MSHA Inspector John Church on
March 4, 2008. Both citations allege a violation of30 C.F.R. § 75. 507 and describe the
"Condition or Practice" as follows:
The mine operator utilizes deep well pumps with power connection points that are
outby the last open crosscut and are not in intake air and pennissible power
connection units are not being used.
JWR timely contested the citations and, in its Motion for Summary Decision, challenges
MSHA's application of section 75.507 to the company's non-permissible deep well submersible
pumps, arguing that the standard does not apply to the sealed areas of its mine. JWR Mot. at I 0.
In her Motion for Summary Decision, the Secretary argues that she is "entitled to judgment as a
matter of law [because the] pumps are indisputably outby the last open crosscut, are indisputably
not located in intake air and [are] indisputably not permissible.,, Sec'y Mot. at 3.
IV. Findines of Material Fact and Conclusions of Law
JWR and the Secretary essentially agree that the material facts upon which each is

entitled to judgment as a ~tter oflaw are as follows:
1. The deep well pumps installed behind the seals at the JWR Number 7 Mine have
power connection points that are not permissible;
2. The power connection points on the deep well pumps are located outby the last open
crosscut; and
3. The deep well pumps installed behind the seals at the JWR Number 7 Mine are not
located in intake air.

Sec'y Mot. at 2; JWR Mot at 2-7.3
3

Although JWR argues in its Reply to the Secretary's Motion for Summary Decision that
"[n]one of these facts ... are material to this contest," JWR.Reply at 1, these three facts, alone,
would establish the Secretary's allegation of a violation of section 75.507, were I to conclude that
the Secretary's interpretation of section 75.501 is correct. Thus, these facts are critical to
disposing of the issue before me.
30 FMSHRC 978

The cited regulation provides as follows:
Except where permissible power connection units are used, all power-connection
points out by the last open crosscut shall be in intake air.
30 C.F.R. § 75.507. This regulation codifies, with only a slight change in syntax, section 305(d)
of the Act, which provi~es:
All power-connection points, except where permissible power connection units
are used, outby the last open crosscut shall be in intake air.
30 u.s.c. § 865(d).
The issue upon which these cases tum is whether section 305(d) of the Act, codified in
the Secretary's regulations at 30 C.F.R. § 75.507, was intended to reach beyond areas of
underground coal mines that are ventilated to those areas permanently cut off from normal
ventilation. As there is a statutory provision at issue, the first inquiry is ''whether Congress has
directly spoken to the precise question at issue." Chevron U.S.A., Inc. v. Natural Res. Defense
Council, Inc., 461 U.S. 837, 842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr.
1996). If section 305(d) is clear and unambiguous, effect must be given to its language. See
Chevron, 467 U.S. at 842-43; accord Local Union 1261, UMWA v. FMSHRC, 911F.2d42, 44
(D.C. Cir. 1990). In determining whether Congress had an intention on the specific question at
issue, courts utilize traditional tools of construction, including an examination of the 'l>articular
statutory language at issue, as well as the language and design of the statute as a whole." K Mart
Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988); Local Union 1261, 917 F.2d at 44.
As mentioned previously, the material facts of these cases would seem to establish, at
first blush, the elements of a violation of section 75.507. The power connection points on JWR's
deep well submersible pumps are, contrary to the requirements of the regulation, not permissible,
outby the last open crosscut, and not in intake air. This result, however, can be achieved only by
formulaically applying section 75.507 out of context and in such a way that ignores the
Secretary's regulations "as a whole." K Mart Corp., 486 U.S. at 291. When viewed in their
entirety, the vast majority of the S_ecretary' s regulations can only be applied reasonably to
accessible areas of a mine that, of necessity, require ventilation. As pointed out in JWR-1, "[b]y
definition and operation, intake and return air circulate and work, consistent with the demands of
active mining in the accessible parts of the mine." 27 FMSHRC at 977 (emphasis added). Here,
however, the pumps are situated in inaccessible parts of the mines where, after the areas were
sealed, dramatic atmospheric changes occurred within a relatively short period of time due to
permanent separation from ventilation controls and circulated air systems. When seals were
erect~ the resultant stagnant environment behind the seals was entirely dissimilar to that in the
active areas of the mine. In answer to the question posed in Chevron, I conclude that Congress
did not speak to "the precise question at issue." 467 U.S. at 842. Section 305(d) was intended to
regulate use of equipment in an underground rnine's ventilated areas, where intake and return air
30 FMSHRC 979

systems circulate to provide miners with fresh breathable air, and prevent contaminated air, laden
with combustible byproducts of mining activities, from exposure to ignition sources. This
statutory provision was not intended to regulate permanently sealed areas of mines comprised of
atmospheres wholly dissimilar to that of the active working areas.
To further illustrate the misapplication of the cited standard, I point to another standard in
Subpart F of30 C.F.R. Part 75. JWR's pumps are electric equipment which, following the
formulaic logic of the Secretary, would be subject to the requirements of section 75.512. This
regulation is also the codification of a statutory provision, and provides that "[a]ll 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. Given that the submersible pumps are in
a "no man's land" that cannot be examined at all, much less frequently, compliance with section
75.512 is an impossibility.
I recognize that, as to sealed areas of underground coal mines, the Secretary has
legitimate safety concerns. These concerns, however, are subject to the proposition that "a
regulation cannot be construed to mean what an agency intended but did not adequately express.''
Phelps Dodge Corp. v. FMSHRC, 681F.2d1189, 1193 (9th Cir. 1982) (citations omitted).
When, in 2003, the Secretary issued Pm No. P03-26, notifying mine operators that MSHA would
henceforth apply section 75.507 to submersible pumps, she attempted to graft onto section
75.507 a new substantive requirement, i.e., she widened the ambit of section 75.507 to include
sealed areas, which imposed new obligations that significantly affected private interests. See
Drummond Co., 14 FMSHRC 661, 684-85 (May 1992) (distinguishing between substantive
rules, which require notice and comment rulemaking, and procedural rules, which do not). The
Secretary's continued attempt to do so is contrary to well established principles of administrative
law, as set forth in Drummond.
Even the Secretary's own regulations, however, both undercut her interpretation of
section 75.507 and illustrate the unreasonableness of attempting to fit the square peg of
regulating stagnant atmosphere in sealed areas into the round hole of provisions clearly intended
to regulate accessible, ventilated areas. The Secretary's ventilation regulations contained in
Subpart D of 30 C.F.R. Part 75 include a provision entitled "Construction and repair of seals,"
which states, in relevant part:
(a) The mine operator shall maintain and repair seals to protect miners from
hazards of sealed areas.
{b) Prior to sealing, the mine operator shall - (1) Remove insulated cables,

batteries, and other potential electric ignition sources from the area to be sealed
when constructing seals, unless it is not safe to do so. If ignition sources cannot
safely be removed, seals must be constructed to at least 120 psi[.]
30 C.F.R. § 75.337 (emphasis added). Here, when JWR sealed areas that required constant
30 FMSHRC 980

dewatering in its No. 4 and No. 7 Mines, it placed in those sealed areas pumps that were potential
electric ignition sources. Whether it was unsafe to do so is a question that is not before me, nor
is JWR cited in the instant matters for violating the requirements of section 75.337. The
Secretary would be well advised, it would seem, to reconsider the issue in light of section 75.337,
whic~ at least, recognizes the unique "hazards of sealed areas," and also contemplates utilizing
"electric ignition sources" within sealed areas, so long as they are isolated from the active mine
workings by seals cons~cted in accordance with the specification in the standard.
Because I find that the Secretary's interpretation of section 75.507, as applied to deep
well submersible pumps operating in sealed areas, impermissibly expands the scope of section
75.507, no violation has been committed by JWR, and Citation Nos. 7691158 and 7691159 are
hereby vacated.

ORPER
Accordingly, for the reasons set forth her~ JWR's Motion for Summary Decision is
GRANTED, the Secretary's Motion for Summary Decision is DENIED, and Citation Nos.
7691158 and 7691159 are VACATED.

~{~ .

Administrative Law Judge

Distribution: (Certified Mail)

Warren B. Lightfoot, Jr., Esq., Maynard, Cooper & Gale, P.C., 1901 Sixth Ave. North, 2400
AmSouth/Harbert Plaza, Binningham, AL 35203

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite·230, Nashville, TN 37219-2456
/mh

30 FMSHRC 981

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-35n/FAX 303-844-5268

September 12, 2008
CONTEST PROCEEDING

AGAPITO ASSOCIATES, INC.,
Contestant

Docket No. WEST 2008-1451-R
Citation No. 7697010; 7/24/2008

v.
Crandall Canyon Mine
Id. No. 42-01715

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

ORDER DENYING MOTION FOR STAY OF PROCEEDINGS
ORDER STAYING DISCOVERY

This case is before me on a notice of contest filed by Agapito Associates, Inc. ("Agapito'')
against the Secretary of Labor, acting through the Mine Safety and Health Administration
(''MSHA'') pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 815 (the "Mine Act").1 The Secretary filed a motion to stay this proceeding along with a
memorandum in support of the motion. This case involves a citation issued to Agapito following
the coal pillar failure at the Crandall Canyon Mine on August 6, 2007, that resulted in the deaths
of six miners. As grounds for the motion, the Secretary states that MSHA made a criminal
referral to the United States Attorney for the District of Utah ("U.S. Attorney'') and that the
criminal referral arises out of the same facts, events, and conditions that lead to MSHA's
issuance of the citation at issue in this case. On September 3, 2008, the U.S. Attorney requested
that the Secretary seek a stay of all civil proceedings, including discovery in all civil proceedings,
in response to this criminal referral. The Secretary represents that the stay is necessary to "avoid
interference with or infringement upon the criminal enforcement process which would arise from
a related civil enforcement proceeding, including a proceeding related to jurisdictional issues."
Agapito opposes the Secretary's motion for a stay primarily because it is not seeking an
adjudication on the merits. Instead, it is seeking a ruling that it was not subject to Mine Act
jurisdiction at the Crandall Canyon Mine.
The letter of the U.S. Attorney states that his office received a criminal referral from
Congress and MSHA regarding the Crandall Canyon Mine. "Given the pending criminal

1

Agapito entered a "special appearance for the purpose of contesting the Federal Mine
Safety and Health Review Commission's jurisdiction over the Contestant pursuant to section 3(d)
of the" Mine Act. It also filed a motion for expedited consideration subject to its special
appearance.
30 FMSHRC 982

referrals, we request that MSHA petition the designated Administrative Law Judge for a stay of
the pending civil actions pertaining to the Crandall Canyon mine until such criminal matters are
resolved." (Ex. A to Secretary's Motion). The letter goes on to state that Agapito is "currently a
subject in the pending criminal investigation as to their involvement in the potential criminal
activity at the Crandall Canyon mine." Id. The U.S. Attorney states that because the "evidence
gathered to determine criminal liability may significantly overlap with the evidence needed to
prove civil liability ... this office has an interest in ensuring that neither [Agapito] nor any other
entity obtain discovefy from a civil proceeding that would unduly circumvent the more limited
scope of discovery available in criminal matters." Id. The U.S. Attorney explains that he is
particularly concerned that Agapito will try to use this proceeding to conduct discovery which
"would provide potential criminal targets with access to witnesses and documents which they
would not otherwise be entitled to while the investigation in pending." Id.
In the motion, the Secretary relies on the five factors set forth in Buck Creek Coal, Inc.,
17 FMSHRC 500 (April 1995). She argues that all five factors support her motion for stay.

Agapito argues that these factors support its opposition to the motion for stay.
I. BRIEF SUMMARY OF THE PARTIES' ARGUMENTS

A. The Commonality of Evidence in the Civil and Criminal Matters.
The Secretary argues that the civil and criminal matters involve common evidence. She
also contends that the underlying civil jurisdictional issue raised by Agapito in this case is
intertwined with the merits of this case and with the criminal investigation. Agapito contends
that, because it is only seeking a determination on the issue ofjurisdictio~ there will not be
much common evidence. It maintains that the universe of facts applicable to the jurisdictional
analysis is already well known to both parties so the jurisdictional question will primarily be a
legal one. It argues that, if need be, the jurisdictional issue can be resolved by applying the facts
set forth in MSHA's investigation report on the accident that was issued on July 24, 2008.
B. The Timing of the Stay Reguest.
The Secretary contends that the timing of her motion favors a stay. The criminal referral
was made without undue delay following the issuance of the citation and the motion for stay was
filed immediately thereafter. In addition, the civil penalty case for the citation has not yet been
docketed. Agapito states that no indictments have been issued and no grand jury has been
empaneled. It maintains that its case could hang in limbo for the duration ofthe five-year statute
of limitations based on a mere referral to the Department of Justice. Agapito contends that the
timing of the request supports a denial of the motion.

30 FMSHRC 983

C. Prejudice to the Litig:ants.
The Secretary argues that the only prejudice to the litigants would come from a denial of
her motion. Allowing "a civil case and civil discovery to proceed at the same time as a parallel
criminal investigation may interfere with the criminal prosecution and may prejudice the parties."
(S. Motion at 8) (citations omitted). She contends that the strong potential for civil discovery to
interfere with the criminal proceedings by the U.S. Attorney weighs heavily in favor of a stay.
Agapito argues that resoi"ving the jurisdictional question simplifies litigation for all parties and
reduces significant prejudice against Agapito. Granting a stay will significantly prejudice
Agapito if it has to defend itself in a highly public criminal investigation especially if it is later
absolved of liability on jurisdictional grounds. It will have suffered irreparable harm to its
goodwill and it will have expended substantial resources on an unnecessary criminal defense.
D. The Efficient Use of Agency Resources.
The Secretary argues that, if her request for a stay is denied and the parties proceed with
discovery in preparation for a hearing, the Secretary would seek to depose Agapito's principals
and managers. With a criminal investigation underway, it can be expected that many if not all of
Agapito' s witnesses will assert their Fifth Amendment privilege at such depositions. Granting a
stay would conserve resources since all issues could be litigated in one setting rather than
piecemeal. Agapito argues that the Commission has a longstanding policy of encouraging the
resolution of threshold issues before reaching substantive detenninations on the facts. Resolving
the jurisdictional issue up front will result in the efficient use of the resources ofthe Commission
and the Secretary.
E. The Public Interest.

The Secretary argues that the public interest is served when the government is able to
criminally prosecute miner operators and their employees who willfully violate the Mine Act,
safety standards, or other federal statutes without interference or prejudice from related civil
proceedings. She maintains that the public interest is best served by the fair and orderly
adjudication of civil and criminal cases. Agapito argues that granting a stay would impede the
public's interest in the expeditious resolution of Commission cases. The only matter currently
pending is the resolution of the jurisdictional issue and that matter can proceed most swiftly to its
conclusion by denying the stay.
Il. DISCUSSION

A stay is not automatically granted when there is a potential that criminal proceedings
may be brought against a mine operator or its employees. Indeed, general civil litigation and
criminal litigation often proceed at the same time. The burden is on the Secretary to establish
that a stay is warranted. A Commission administrative law judge has the discretionary authority
to stay a civil proceeding pending the outcome of a parallel criminal case when the interests of
30 FMSHRC 984

justice so require. This authority allows a court to ''stay civil proceedings, postpone civil
discovery or impose protective orders and conditions when the interests ofjustice seem to require
such action." Securities & Exch. Comm'n v. Dresser Indus., Inc., 628 F.2d 1368, 1375 (D.C.
Cir.1980) (en bane). In detennining whether to stay the proceeding or impose a stay on
discovery, the court must balance the interests of the litigants, nonparties, the public and the
court. See, e.g., Bridgeport Harbor Place LLCv. Ganin, 269 F. Supp.2d 6, 8 (D. Conn. 2002).
The only issue on the table in this case at the present time is whether MSHA bas
. jurisdiction to enforce the citation it issued to Agapito. Agapito was not the "owner, lessee, or
other person" who operated, controlled or supervised the Crandall Canyon Mine at the time of
the subject accident. 30. U.S. C. § 802(d). The Secretary contends that Agapito was an
"independent contractor performing services or construction" at the mine. In her motion, the
Secretary states that she will argue that the "services provided by Agapito . .. in determining
mine design [at Crandall Canyon], no matter where Agapito personnel were located when they
perfonned the services, are sufficient to establish jurisdiction over Agapito as an operator." (S.
Motion at 4). The Secretary relies, in part, on Joy Technologies, Inc., v. Secretary ofLabor, 99
F.3d 991 (l lOth Cir. 1996) and Black Wolf Coal Co., Inc., 28 FMSHRC 699, 711-14 (July 2006)
(AU) in making this argument. Agapito, on the other hand, contends that it was not an
independent contractor who performed "services or construction" at the mine. It states that it is a
geological consulting company that provides "advice, analysis, and consultation to mine
operators" from its office in Grand Junction, Colorado. (A. Opposition at 2). As a consequence,
it contends that it was not a mine operator subject to the jurisdiction ofMSHA.2
Agapito is not seeking to adjudicate the merits of the citation it was issued but is only
seeking a ruling from the Commission that it was not subject to the jurisdiction of the Mine Act
at the Crandall Canyon Mine. The Secretary argues that Agapito' s status as in independent
contractor is unavoidably intertwined with the issue of its liability both under the Mine Act and
other relevant criminal statutes. "Discovery into the jurisdictional facts cannot be meaningfully
segregated from that necessary either for prosecution of the pending citation or involved in the
criminal proceeding." (S. Motion at 3).
The common thread in the Secretary's arguments is that, because civil discovery is
broader than the discovery available during a criminal investigation, denying the motion for a
stay would allow Agapito to unfairly obtain information about the government's criminal
investigation. On the other hand, the Secretary contends that she will need to conduct discovery
to determine what services were rendered by Agapito to support her claim ofjurisdiction. She
states that she needs this information in part because key Agapito personnel refused to cooperate
2

The citation at issue alleges a violation of 30 C.F. R § 75.203(a). It states that Agapito
"inaccurately evaluated the conditions and events at the mine when determining if areas of the
mine were safe for mining" and, based on its results, "recommended to the operator that mining
methods were safe and pillar and barrier dimensions were appropriate when in fact they were
not."
30 FMSHRC 985

with MSHA's accident investigation. She argues that this same information would be highly
relevant to a criminal inquiry.
A determination whether Agapito was subject to Mine Act jurisdiction at Crandall
Canyon is rather straight forward. Jurisdiction either existed or it did not; there can be no shades
of grey. Whether the company was an independent contractor at the mine is an important
preliminary issue that must be decided before the merits of the citation can be considered.
Agapito is entitled to a resolution of this issue as long as it does not unduly interfere with the
criminal investigation. Agapito is prepared to resolve this issue without discovery. Agapito
states the ''universe of facts applicable to the jurisdiction" issue is already known by both parties.
(A. Opposition at 6). The Secretary insists that discovery is necessary so that she can determine
the purpose of visits to the mine by Agapito personnel.
MSHA's accident investigation report discusses Agapito's work for the Crandall Canyon
Mine in great detail.3 Although Agapito does not "concede the substantive truthfulness or
accuracy of the report," it has consented to "arguing case law relevant to the jurisdictional
analysis based on the record as disclosed in the report." (A. Opposition at 6 n. 5).
Taking into consideration the factors set forth by the Commission in Buck Creek, I find
that the Secretary did not provide sufficient justification to stay this proceeding for the limited
purpose of determining whether Agapito was an independent contractor under the Mine Act. It is
clear that the Secretary carefully analyzed the services that were performed by Agapito and,
based on this analysis, determined that Agapito was subject to MSHAjurisdiction. This
information is set forth in her accident investigation report, which is available to the public. The
Secretary also describes in her report the trips that Agapito personnel made to the mine as part of
the services it provided. I hold that discovery is not necessary to resolve the jurisdictional issue
and, as a consequence, all discovery is suspended until further notice. The facts related to the
merits of the citation are not so intertwined with the jurisdictional facts as to merit delaying the
resolution of the issue.
The U.S. Attorney's investigation of Agapito has only just begun. When Commission
judges stay cases because of a criminal referral, the criminal issues typically do not get resolved
for many years. In such instances, Commission cases are significantly delayed. Such a lengthy
delay in resolving the jurisdictional issue in this case is unnecessary and would unfairly penalize
Agapito. Resolving the jurisdictional issue now will not unduly interfere with the criminal
investigation, especially since all discovery is suspended. In addition, deciding the jurisdictional
issue at the present time is an efficient use of agency resources and is in the public interest. This
Commission was created in large part to "secure the just, speedy, and inexpensive detennination
of all proceedings." -29 C.F.R. § 2700.l(c).

3

http:l/www.msha.gov/Fatals/2007/Crandal1Canyon!FTL07Crandal1Canyon.pdf
30 FMSHRC 986

The Secretary's accident investigation report is an official record ofMSHA and I can take
official notice of its contents. I am amenable to resolving the jurisdictional issue based on this
report and briefs filed by the parties. In the alternative, one or both parties may wish to request a
hearing on this issue. If the Secretary believes that she needs to further develop the record as to
the nature of the services were rendered to the mine operator, she is free to do so at a hearing.

IlL ORDER
The Secretary's motion to stay this proceeding is DENIED. For the reasons set forth
above, all pending and proposed discovery in this case is STAYED until further notice. The
parties shall confer and counsel shall schedule and initiate a conference call with me to discuss
suggested methods for proceeding in this case.

Richard W. Manning
Administrative Law Judge
. •.

Distribution:

Timothy S. Williams, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202 (Facsimile and U.S. Mail)
Derek J. Baxter, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 2200
Floor, Arlington, VA 22209-2296 (Facsimile and U.S. Mail)
Mark N. Savit, Esq., Patton Boggs, 1801 California St, Suite 4900, Denver, CO 80202
(Facsimile and U.S. Mail)

RWM

30 FMSHRC 987

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

September 19, 2008
ROCK.HOUSE ENERGY MINING CO.,
Contestant

CONTEST PROCEEDINGS
Docket No. KENT 2008-1483-R
Citation No. 8216019; 7/23/2008
Docket No. KENT 2008-1484-R
Citation No. 8216020; 7/23/2008
Docket No. KENT 2008-1485-R
Citation No. 8216024; 7/24/2008
Docket No. KENT 2008-1486-R
Citation No. 8216025; 7/24/2008

v.

Docket No. KENT 2008-1487-R
Citation No. 8216033; 7/25/2008
Docket No. KENT 2008-1488-R
Citation No. 8216034; 7/25/2008
Docket No. KENT 2008-1489-R
Citation No. 6660866; 7/31/2008
Docket No. KENT 2008-1496-R
Citation No. 6660752; 7/2/2008
Docket No. KENT 2008-1497-R
Citation No. 6660753; 7/2/2008

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

Docket No. KENT 2008-1498-R
Citation No. 6657617; 7/1112008

Respondent.

Docket No. KENT 2008-1499-R
Citation No. 6657618; 7/ 1112008
Docket No. KENT 2008-1500-R
Citation No. 6657619; 7/ 11/2008

30 FMSHRC 988

Docket No. KENT 2008-1501-R
Citation No. 8216001; 7/11/2008
Docket No. KENT 2008-1552-R
Citation No. 8216067; 8/25/2008
Docket No. KENT 2008-1553-R
Citation No. 8216068; 8/25/2008
Docket No. KENT 2008-1554-R
Citation No. 8216072; 8/25/2008
Docket No. KENT 2008-1555-R
Citation No. 8216073; 8/25/2008
Docket No. KENT 2008-1556-R
Citation No. 8216075; 8/25/2008
Docket No. KENT 2008-1557-R
Citation No. 8216082; 9/02/2008
Docket No. KENT 2008-1558-R
Citation No. 8216083; 9/02/2008
Docket No. KENf 2008-1559-R
Citation No. 8216084; 9/03/2008
Mine ID 15-17651
ORDER CONSOLIDATING PROCEEDINGS
ORDER GRANTING MOTION TO FILE OUT OF TIME
ORDER DENYING MOTION TO EXPEDITE
AND
NOTICE OF HEARING
In these contest proceedings filed pursuant to section 105(d) of the Federal Mine Safety
and Health Act of 1977 (the Act) (30 U.S.C. § 815(d)) Rockhouse Energy Mining Co. contests
the validity of21 citations issued pursuantto section 104(a) of the Act. 30 U.S.C. § 814(a).
The citations were issued at the company's Mine No. 1, an underground bituminous coal mine,
located in Pike County, Kentucky. In addition to alleging violations of the Secretary of Labor's
(Secretary's) mandatory safety standards for underground coal mines, the citations allege the
violations were significant and substantial contributions to a mine safety hazard (S&S).

30 FMSHRC 989

CONSOLIDATION OF THE PROCEEDINGS

The cases initially were docketed in three groups: KENT 2008-1496-R through KENTt
2008-1501-R; KENT 2008-1552-R through KENT 2008-1559-R; and KENT 2008-1483-R
through KENT 2008-1489-R. The cases present similar issues. Counsels and I agree the cases
should be consolidated for hearing and decision.
MOTIONS

The contests have been filed with two attendant motions: (1) a motion to file the contests
of the citations in Docket Nos. KENT 2008-1496-R through Kent 2008-1501-R out of time,
and; (2) a motion to expedite all of the proceedings pursuant to Commission Rule 52. 29 C.F.R.
§ 2700.52. 1
MOTION TO FILE OUT OF TIME

The contested citations in Docket Nos. KENT 2008-1496-R through KENT 2008-1501R were issued on July 2, 2008 (KENT 2008-1469-R and KENT 2008-1497-R), and on July 11,
2008 (KENT 2008-1498-R through KENT 2008-1501-R). The notices of contest were received
by the Commission on August 22, 2008. Under Section 105(d) of the Act, upon issuance of the
citations, Rockhouse had 30 days in which to file its contests. The contests were filed lllltimely
by 20 and 12 days respectively. Rockhouse asserts its mine is cUITently being evaluated by the
Secretary's Mine Safety and Health Administration (MSHA) for designation as having a pattern
of violations (POV) status pursuant to section 104(e) of the Act.2 Rockhouse states it is subject
"to initial screening pursuant to 30 C.F.R. [§] 104.2 and[§] 104.3, and MSHA will base its final
determination of the POV in part on the validity of these citations, as well as the findings of . . .

1

Because Rockhouse moved to expedite all of the proceedings, the contests were not
automatically stayed pending the filing of the related civil penalty proceedings. See Order of
Assignment (September 10, 2008) (no indication of automatic stay). Therefore, I need not act on
counsel for Roc.khouse's Motion to Lift Stay.
2

Section 104(e) states in part:
If an operator has a pattern of violations of

mandatory health or safety standards in the
. . . mine which are of such nature as could
have significantly and substantially contributed
to the cause and effect of coal ... mine health
or safety hazards, he shall be given written
notice that such pattern exists.
30 FMSHRC 990

S&S.3 Rockhouse also states the company's safety director discussed the validity of the
citations and the inspector's gravity, negligence and S&S findings during a July 18 conference
with MSHA. On July 21, Rockhouse was advised MSHA would not modify the citations.
Because Rockhouse's representative did ''not understand the POV determination would occur
before penalties on these citations [were] assessed and [the] citations were set for hearing in the
normal ... litigation process," Rockhouse did not contest the citations. Timeliness Motion 2.
Therefore, Rockhouse should be permitted to late file. Id.
Counsel for Rockhouse, counsel for the Secretary, and I discussed the motion. Counsel
for the Secretary orally questioned its propriety, but chose not to formally object to it. Given the
fact the contests were untimely by only a few days, given the lack of prejudice to the Secretary,
and given the new and complex nature of the Secretary's POV procedures and resulting
understandable lack of knowledge of them by Rockhouse's safety director, I conclude the
3

The agency's procedures for determining whether an operator has established a POV are
set forth at 30 C.F.R. § 104.1 et seq. Section 104.2 specifies the information MSHA will review
in its annual initial screening process, including information regarding ''The mine's history of . . .
[S&S] violations." 30 C.F.R. § 104.2(1). Section 104.3 specifies the information MSHA will
use to identify mines with a potential pattern of violations. It states:
(a) The criteria of this section shall be used to
identify those mines with a potential pattern
of violations. These criteria shall be applied
only after initial screening conducted in accordance with § 104.2 . .. reveals that the operator
may habitually allow the recurrence of
violations of mandatory safety or health
standards which ... [are S&S]. These criteria
are:
( 1) A history of repeated [S&S] violations of a
particular standard;
(2) A history ofrepeated [S&S] violations of
standards related to the same hazard; or

(3) A history of repeated [S&S] violations

caused by unwarrantable failure to comply.
(b) Only citations and orders issued after
October 1, 1990, and that have become final

shall be used to identify mines with a potential
[POV].
30 FMSHRC 991

motion to allow the untimely filing should be granted.4
4

While MSHA has had the statutory authority to put mines under a POV designation since
the passage of the Act, the agency only recently has begun to exercise that authority by
promulgating and by starting to enforce 30 C.F.R. § 104 et seq. It is fair to say the policy and
procedures that ultimately may lead the agency to determine a mine should be given a POV
designation are little understood by many in industry and the bar, and I include myself among
those who have difficulty deciphering the process.
30 C.F.R. §104 establishes a four-step procedure: (1) initial screening (section 104.2);
(2) identification by MSHA of mines with a potential POV through application of the regulatory

criteria (section 104.3); (3) designation of POV status and issuance of the designation to the
operator (section 104.4); and (4) termination of POV status (section 104.5). For operators the
critical steps in the process are 1, initial screening; 2, identification as having a potential POV;
and 3, designation of POV status.
With regard to S&S violations, in steps 1 and 2, MSHA's Office ofAssessments reviews
the 24-month violation history of a mine to determine if it exhibits a potential POV. Among the
criteria are all alleged S&S violations cited at the mine in the previous 24 months. According to
section 104.3(b) "[On]ly citations and orders ... that have become final shall be used to
identify mines with a potential pattern of violations." Thus, an operator may be notified its mine
exhibits a potential POV only on the basis of final S&S allegations. If an operator is issued a
notification its mine exhibits a potential POV, the operator has not more than 20 days within
which to do the following: (1) Review all documents on which it has been evaluated for the
designation and provide additional information to MSHA; (2) Submit a written request for a
conference with the MSHA District Manager; and/or (3) Provide a written corrective action plan
to institute a program to avoid repeated S&S violations. See Pattern of Violations Procedures
Summary, www.MSHA.~ov/POVIPOVprocedures. If an operator chooses not to submit an
improvement plan to MSHA, within 60 days of the operator's receipt ofnotification of a
potential POV designation MSHA will conduct a complete inspection of the mine and the
District Manager will analyze the results of the inspection to determine whether the operator has
reduced the frequency rate of S&S violations by 30% or has achieved a frequency rate for S&S
violations that is at or below the industry average. (If the operator chooses to submit an
improvement plan, MSHA will conduct the complete inspection no later than 90 days from the
date the operator submitted the plan, and the District Manager will analyze the results of the
inspection to determine whether the operator has reduced the frequency rate of S&S violations by
30% or has achieved a frequency rate for S&S violations that is at or below the industry average.)
The frequency rates for S&S violations will based on the S&S designation in all citations and
orders issued since the receipt of notification or since the receipt of the improvement plan. The
citations and orders need not be final orders of the Commission. Id. Based on a report he or
she receives from the District Manager concerning the results of the complete inspection,
MSHA's Administrator will decide whether to issue a Notice of Pattern of Violations to the
operator. Id.
30 FMSHRC 992

MOTION TO EXPEDITE PROCEEDINGS 5

The motion to expedite is based on the fact that Rockhouse ''is CWTently being evaluated
for a ... POV pursuant to Section 104(e) of the .. . Act" and that "MSHA will base its final
determination of the POV in part on the validity of [the contested] citations as well as the
findings of .. . S&S . . . ." Rockhouse contends MSHA will ''make its POV determination
before a hearing on the merits of the citations can be held in the normal course." Notice and
Motion at 13.
Counsel for the Secretary responds an expedited hearing requires an operator to show
"extraordinary or unique circ\llllStances resulting in continuing harm or hardship." Sec.' s
Response 3, citing Consolidation Coal Co., 16 FMSHRC 495 (February 1994) (ALJ Feldman)
(the contestant bears the burden of "showing extraordinary or unique circumstances resulting in
continuing harm or hardship." 16 FMSHRC at 496.) Counsel maintains Rockhouse has not
given any reason why being evaluated by MSHA for a ''POV" designation constitutes
extraordinary harm or hardship. See's Resp. 4. According to counsel, if the mine is given a
POV designatio~ it can result in Rockhouse being required to immediately abate any
subsequent S&S violations issue at the mine.6 However, like the possibility an operator may be
5

The written motion was submitted as part of Rockhouse's notices of contest. The
motion did not state the view of the Secretary's counsel. As properly noted by counsel, the
motion, therefore, is procedurally flawed. Commission Rule 52 states a motion to expedite must
be made in writing pursuant to Commission Rule 10 (30 C.F.R. § 2700.10), and Commission
Rule l O(b) states a written motion "shall be set forth in a document separate from other
pleadings.'' In addition, Commission Rule l 0(c) states a motion other than a dispositive motion ·
"shall state ... whether any other party opposes or does not oppose the motion." However, the
motion's defects do not warrant its defeat. Counsel for Rockhouse's failure to observe the letter
of the rules has not prejudiced the Secretary. Therefore, the motion is accepted as filed, but
Counsel is reminded to fully observe the requirements of Rule 10 in future filings before the
Commission.
6

In explaining the consequences of a Notice of POV, MHSA's Procedures Summary

states:
Following notification to the operator of the
issuance of a Notice of [POV], the District
shall initiate appropriate inspection activities
to ensure that the operation is inspected in
it's entirety during the following 90-day period
and each succeeding inspection cycle until the
[POV] order is terminated.
If an ... [inspector] finds any [S&S] violation

30 FMSHRC 993

subject to an order issued pursuant to section 104(d) of the Act, 30 U.S.C. § 814(d), the
possibility an operator may be subject to a POV notice does not warrant an expedited
proceeding.
As I understand Rockhouse's situation, Mine No. 1 has been identified by MSHA as
having a potential POV, and the company has been given written notification to this effect. In
response, Rock:house has submitted a corrective action plan to avoid repeated S&S violations.
MSHA has conducted a-complete inspection of the mine to determine whether or not pursuant
to its plan Rockhouse has achieved a 30% reduction in its S&S rate or whether its S&S rate is at
or below the industry average. The 21 contested citations are all of the S&S citations issued by
MSHA during the complete inspection. The company has not achieved a 30 % reduction, and
its average rate ofS&S violations is above the industry's rate. However, if three of the 21 S&S
allegations are found to be invalid, the mine will meet the 30% reduction goal.

According to MSHA's procedures summary, once the inspection has been completed
and the calculation is made, the District Manager will report to the Administrator, and the
calculation will be one of the bases upon which the A~tor will decide whether to issue a
Notice of POV to Rockhouse. According to counsel for the Secretary, in this instance, the
District Manager's report must be sent to the Administrator by September 25, 2008. The
Administrator must decide whether or not to issue a Notice of POV within 30 days of his receipt
of the Report. Pattern of Violations Procedures Summary3-4; www.M$HA.rov/POVIPOV
procedures. It seems reasonable to expect the decision to be made on or shortly after October
27, 2008 (October 26 is a Saturday).
I agree with Rockhouse that it is entitled to a speedy review of the validity of the
citations and the S&S findings therein. As the Commission noted in Energy Fuels Corp., 1
FMSHRC 299, 307 (May 1979), an operator may have legitimate interests in seeking a
determination of the validity of a citation and its findings prior to a penalty being proposed.
Abatement may be expensive. More than that, ''The citation may ... contain special findings . .
. that may start a series of events culminating in an order that miners be withdrawn from some
areas of the mine.'' Energy Fuels at 307. (The Commission was referring to section 104(d) of
the Act, but it just as easily could have been referring to section 104(e)).
. . . during the inspection conducted while an
operator is subject to a Notice of [POV], the
inspector shall issue an order requiring the
operator to withdraw all persons in the area
. affected by the violation except those listed
in [section] 104(c) of the .. . Act. All
persons except as listed in [section] 104(c)
.. . shall also be prohibited from entering
that area until the inspector detennines ...
such violation has been abated.
30 FMSHRC 994

In addition, I agree with the Secretary that an expedited hearing is not required. Because
the District Manager has not yet sent his report to the Administrator, a decision as to whether to
issue a Notice of POV is not imminent. There is no need to convene a hearing within the next
five days or even within the next two weeks. Nonetheless, Commission Administrative Law
Judge Jerold Feldman once.noted that some cases that might not require an expedited hearing
still should be heard on an expeditious basis. Consolidation Coal Co., 16 FMSHRC 495, 496.
In my opinion, Rockhouse's interest in avoiding the effects of a Notice of POV and the
likelihood of a POVaecision on or shortly after October 27 warrant accelerating the trial
schedule so the cases can be heard and decided before the time within which the Administrator
must act on the District Manager's POV recommendation expires.
ORDER AND NOTICE OF HEARING

For the foregoing reasons, the captioned cases ARE CONSOLIDATED for hearing and
decision. Rockhouse's motion to file its contests out of time IS GRANTED. Its motion for an
expedited hearing IS DENIED. The parties are advised these contest proceedings will be called
for hearing on October 7, 2008, in Pikeville, Kentucky at 8:30 a.m. (A specific hearing site
will be designated later.) At issue will be whether the violations alleged in the citations
occurred and, if so, the validity of the inspector's allegations regarding gravity, negligence and
S&S. In preparing for the hearing, counsels are directed to confer regarding limiting discovery.
It appears depositions are unnecessary. If the Secretary provides Rockhouse with all relevant
inspectors' notes and photographs (assuming such exist) and Rockhouse provides the Secretary
with all relevant pre- and on-shift inspection reports and photographs (assuming such exist), no
further discovery will be required. Counsels are also directed to provide by facsimile and first
class mail copies of intended exhibits and a witness list to one another and to me one week prior
to the hearing.

_Dw1df: ~vfZDavid F. BarbQur
Administrative Law Judge
Distribution: (Certified Mail)
Brian W. Dougherty, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church
Street, Suite 230, Nashville, 1N 37219-2456
Carol Ann Marunich, Esq., Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Suite 310,
Morgantown, WV 26501
/ej

30 FMSHRC 995

30 FMSHRC 996
G:.0- U.S. GOVERNMENT PRINTING OFFICE : ~62705