February 2015
TABLE OF CONTENTS

COMMISSION DECISIONS
02-06-15

BIG RIDGE, INC.

LAKE 2008-436

Page 213

02-12-15

SOLAR SOURCES, INC.

LAKE 2010-774

Page 218

COMMISSION ORDERS
02-04-15

FREEPORT-MCMORAN TYRONE,
INC.

CENT 2013-533-M

Page 225

02-04-15

BRIAN ENGLISH, employed by
BARNES PAVING COMPANY, INC.

SE 2013-233-M

Page 227

02-04-15

PENINSULA TOPSOIL

WEST 2012-1395-M

Page 229

02-04-15

DRUMLUMMON GOLD
CORPORATION

WEST 2013-767-M

Page 231

02-10-15

MEDINA CRUSHED STONE, INC.

CENT 2010-1205-M

Page 233

02-10-15

PETE LIEN & SONS, INC.

CENT 2013-472-M

Page 236

02-10-15

KINGSTOWN CORPORATION

YORK 2013-170-M

Page 238

02-11-15

BOB BAK CONSTRUCTION

CENT 2011-159-M

Page 240

ADMINISTRATIVE LAW JUDGE DECISIONS
02-04-15

HECLA LIMITED

WEST 2012-466-CM

Page 243

02-05-15

SALLY ANN COAL COMPANY,
INC.

WEVA 2011-1028

Page 246

i

02-06-15

TRI COUNTY COAL, LLC

LAKE 2011-0309

Page 268

02-09-15

JANNEY PAINTING

VA 2014-28-M

Page 297

02-12-15

LAWRENCE PENDLEY v.
HIGHLAND MINING CO. AND
JAMES CREIGHTON

KENT 2013-606-D

Page 301

02-23-15

MANALAPAN MINING CO., INC.

KENT 2008-737

Page 318

02-23-15

NATIONAL CEMENT CO. OF
ALABAMA

SE 2014-71-M

Page 325

02-25-15

SEC. OF LABOR O/B/O RALPH
KEELE v. ENERGY WEST MINING
COMPANY

WEST 2013-0877-D

Page 343

02-26-15

NORTHSHORE MINING COMPANY LAKE 2013-458-M

Page 372

02-26-15

REMINGTON, LLC

WEVA 2014-315

Page 400

02-27-15

JUSTICE ENERGY COMPANY,
INCORPORATED

WEVA 2012-940

Page 410

ADMINISTRATIVE LAW JUDGE ORDERS
02-03-15

SEC. OF LABOR O/B/O GARY
KITTELSON v. NORTHERN
AGGREGATE, INC.

LAKE 2015-80-DM

Page 431

02-04-15

OAK GROVE RESOURCES, LLC

SE 2013-301

Page 434

02-09-15

FRANK SICA v. JACOBS FIELD
SERVICES

WEST 2014-615-DM

Page 442

02-17-15

CLARKSON CONSTRUCTION
COMPANY, INC.

CENT 2014-588-RM

Page 450

02-23-15

SCOTT MCGLOTHLIN v.
DOMINION COAL CORPORATION

VA 2014-233-D

Page 456

ii

Review was granted in the following case during the month of February 2015:
Secretary of Labor, MSHA, v. ICG Illinois, LLC, Docket No. LAKE 2013-160 (Judge Andrews,
January 13, 2015)

Review was denied in the following cases during the month of February 2015:
Secretary of Labor, MSHA, v. Marfork Coal Company, Docket No. WEVA 2014-269 (Judge
Miller, January 7, 2015)
Secretary of Labor, MSHA, v. Pocahontas Coal Company, Inc., Docket No. WEVA 2014-1112,
et al (Judge Miller, January 21, 2015)

iii

COMMISSION DECISIONS

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

February 6, 2015
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. LAKE 2008-436
LAKE 2009-057
LAKE 2009-058
LAKE 2009-059
LAKE 2009-378

v.
BIG RIDGE, INC.

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
DECISION
BY THE COMMISSION:
These civil penalty proceedings, which arise under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”), involve, in part, a citation issued to
Big Ridge, Inc., by the Secretary of Labor’s Mine Safety and Health Administration (“MSHA”)
for an alleged violation of a notice of safeguard. The safeguard notice was previously issued to
Big Ridge by MSHA pursuant to section 314(b) of the Mine Act.1
On September 8, 2011, an Administrative Law Judge issued a decision vacating the
citation at issue here. 33 FMSHRC 2238, 2250 (Sept. 2011) (ALJ). He concluded that the
underlying safeguard was invalid because it did not provide the operator with sufficient notice of
a hazard with respect to the transportation of men or materials. Id. The Secretary subsequently
filed a petition for discretionary review, which the Commission granted.
For the reasons that follow, we reverse the Judge, find that the safeguard is valid, and
remand the case to the Chief Administrative Law Judge for further proceedings consistent with
this decision.2

Section 314(b) provides that “[o]ther safeguards adequate, in the judgment of an
authorized representative of the Secretary, to minimize hazards with respect to transportation of
men and materials shall be provided.” 30 U.S.C. § 874(b).
1

The Administrative Law Judge who authored the September 2011 decision has since
retired from the Commission.
2

37 FMSHRC Page 213

I.
Factual and Procedural Background
On August 11, 2008, an MSHA inspector visited Big Ridge’s Willow Lake Portal, a large
coal mine in southeastern Illinois. Tr. 30-33. As a result of his observations at the mine, the
inspector issued Citation No. 66746183 for an alleged violation of Safeguard No. 7583088. Gov.
Exs. 16, 17.4
Safeguard No. 7583088, which had been issued by another MSHA inspector on July 12,
2006, states:
DT 15-160 [a mantrip] was observed coming out of the mine with
a ram car bed jack adjacent the driver unsecured in the vehicle.
This is a notice to provide safeguards requiring that supplies or
tools, except small hand tools or instruments, should not be
transported with men at this mine.
Gov. Ex. 17 (restating the criteria at 30 C.F.R. § 75.1403-7(k), which provides that “[s]upplies or
tools, except small hand tools or instruments, should not be transported with men”).
Big Ridge contested the citation. At the hearing, Big Ridge contended that the
underlying safeguard was invalid. 33 FMSHRC at 2250. Specifically, the operator argued that
the safeguard failed to meet the Commission’s requirement that a safeguard identify with

3

The citation states:
Two mantraps [sic] were observed transporting roof bolting
materials in the mantrip with the miner. DT-18 had 12 bundles of
4 foot roof bolts (5 bolts to the bundle) standing up in the seat.
DT-04 had 7 bundles of 4 foot roof bolts (5 bolts to the bundle)
standing up in the seat, 28 chain hangers in the floor board under
the passengers feet, a bucket of chain in the passenger seat behind
the driver.

Gov. Ex. 16.
While other mandatory safety and health standards are adopted through notice and
comment rulemaking, section 314(b) of the Mine Act provides the Secretary authority to create
safeguards, which are in effect, mandatory safety standards issued on a mine-by-mine basis.
Southern Ohio Coal Co., 10 FMSHRC 963, 966 (Aug. 1988) (citation omitted). The broad
language of the provision “manifests a legislative purpose to guard against all hazards attendant
upon haulage and transport in coal mining. Jim Walter Res., Inc., 7 FMSHRC 493, 496 (Apr.
1985). An MSHA inspector issues a written safeguard notice to an operator specifying the
safeguard the operator must provide. If compliance does not occur, the inspector issues a
citation pursuant to section 104 of the Mine Act. 30 C.F.R. § 75.1403-1(b).
4

37 FMSHRC Page 214

specificity the nature of the hazard at which it is directed. The Secretary maintained that the
safeguard was valid because it provided notice of a specific hazard and the remedy required.
The Judge concluded that the safeguard was invalid because it failed to “identify with
specificity the nature of the hazard.” 33 FMSHRC at 2250 (citing Southern Ohio Coal Co., 7
FMSHRC 509, 512 (Apr. 1985) (“SOCCO I”)). The Judge categorically rejected the Secretary’s
argument that adequate notice of a hazard is provided when the safeguard specifically describes
the hazardous condition observed by the inspector. Id. (citing MSHA’s Program Policy Manual
(“PPM”), Vol. 5 Subpart O). The Judge vacated the citation.
II.
Disposition
We conclude that the Judge erred in his analysis. Section 314(b) of the Mine Act
requires that the issuing inspector provide notice of a hazardous condition or practice in the
safeguard. The American Coal Co., 34 FMSHRC 1963, 1969 (Aug. 2012); see also Oak Grove
Res., LLC, 35 FMSHRC 2009, 2014 (Jul. 2013). For the reasons that follow, the safeguard is
valid.
In American Coal, the Commission stated that it has consistently held that “safeguards
that specify hazardous conditions and specify a remedy [are] valid safeguards.” 34 FMSHRC at
1969, 1972-80 (emphasis in original). See also SOCCO I, 7 FMSHRC at 512 (“a safeguard
notice must identify with specificity the nature of the hazard at which it is directed and the
conduct required of the operator to remedy such hazard”); Southern Ohio Coal Co., 14 FMSHRC
1 (Jan. 1992); Southern Ohio Coal Co., 14 FMSHRC 748 (May 1992); Green River Coal Co.,
14 FMSHRC 43 (Jan. 1992).
The Commission, however, has expressly rejected the argument that a safeguard must
include a description of the types of risks or harms that may be associated with the cited
hazardous condition. American Coal, 34 FMSHRC at 1969-1971. A valid safeguard must be
drafted with the specificity required to provide an operator adequate notice of the condition
covered and the conduct that is required, but it need not foreshadow the events that may occur in
its absence. Id. at 1967; see also Oak Grove Res., 35 FMSHRC at 2014.
For example, the valid safeguard at issue in SOCCO I stated:
A clear travelway at least 24 inches along the No. 1 conveyor belt
was not provided at three (3) locations, in that there was fallen
rock and cement blocks.
All conveyor belts in this mine shall have at least 24 inches of
clearance on both sides of the conveyor belts.
This is a notice to provide safeguards.

37 FMSHRC Page 215

7 FMSHRC at 510. Notably, the safeguard specified a hazardous condition, i.e., fallen rocks and
cement blocks obstructing a travelway at three locations, and a remedy, i.e., all conveyor belts
shall have at least 24 inches of clearance on both sides.
Similarly, the safeguard at issue in the case before us describes a hazardous condition,
i.e., a mantrip traveling with an unsecured ram car bed jack adjacent to the driver, and a remedy,
i.e., supplies or tools, except for small hand tools or instruments, should not be transported with
men. 5 Therefore, we conclude that the safeguard complies with the Commission’s test for
validity.6 See American Coal, 34 FMSHRC at 1969. The safeguard is valid, and a reasonably
prudent person familiar with the mining industry would understand its requirements.
We also conclude that the Judge erred in suggesting that the Secretary’s PPM establishes
the test for safeguard validity. 33 FMSHRC at 2250. The PPM does not prescribe binding rules
of law. American Coal, 34 FMSHRC at 1970-71; D.H. Blattner & Sons, Inc., 18 FMSHRC
1580, 1586 (Sept. 1996); King Knob Coal Co., 3 FMSHRC 1417, 1420 (June 1981). While the
Secretary’s PPM may encourage the issuing inspector to identify the types of injuries that the
safeguard is intended to prevent, the Commission has never held that the Secretary is bound by
the recommendations in a PPM.

Tellingly, Big Ridge does not contend that an unsecured ram car bed jack that is located
adjacent to a driver in a mantrip is not a hazardous condition.
5

To the extent the Judge relied on the testimony of the inspector in determining the
validity of the safeguard, he erred. At the hearing, the inspector testified that he did not believe
that the safeguard described a “hazard.” See 33 FMSHRC at 2250 (citing Tr. 401, 426-27).
However, the legal conclusions of an inspector are neither binding nor dispositive. See Penn
Allegh Coal Co., 4 FMSHRC 1224, 1227 n.2 (July 1982).
6

37 FMSHRC Page 216

III.
Conclusion
Accordingly, we reverse the Judge and hold that the safeguard is valid. The civil penalty
contest of Citation No. 6674618 is hereby remanded to the Chief Administrative Law Judge for
further proceedings consistent with this decision.7

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

In his opening brief, the Secretary requests that the Commission affirm a finding of a
violation for Citation No. 6674618. However, this issue is not properly before the Commission;
it was not raised in the Secretary’s petition for review. See 30 U.S.C. § 823(d)(2)(A)(iii); 29
C.F.R. § 2700.70(d).
7

37 FMSHRC Page 217

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

February 12, 2015
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. LAKE 2010-774
LAKE 2010-902

v.
SOLAR SOURCES, INC.
BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
DECISION
BY THE COMMISSION:
These civil penalty proceedings arise under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”) and involve two citations issued to Solar
Sources, Inc. (“Solar”) by the Department of Labor’s Mine Safety and Health Administration
(“MSHA”).1 Both citations allege a violation of 30 C.F.R. § 77.1109(c)(1), which requires
“mobile equipment” to be equipped with at least one portable fire extinguisher.2 In each instance,
the inspector found a violation because a wheeled water pump was not equipped with a portable
fire extinguisher.
The Administrative Law Judge affirmed both citations, finding that wheeled water pumps
constitute “mobile equipment” under the clear meaning of section 77.1109(c)(1) and are thus
required to be equipped with portable fire extinguishers. Solar Sources, Inc., 34 FMSHRC 2826,
2834-37 (Oct. 2012) (ALJ). Solar filed a petition for discretionary review of the Judge’s
decision, which we granted.
For the reasons that follow, we affirm in result the Judge’s decision regarding both
citations. We conclude that the Judge erred in finding that the term “mobile equipment” had a
clear meaning under section 77.1109(c)(1) and instead find the term “mobile equipment” to be
ambiguous. However, we conclude that the Secretary’s interpretation, that wheeled water pumps
1

The Judge had consolidated the two dockets at issue in these proceedings with a third
docket, Docket No. LAKE 2009-373. However, the operator does not appeal the Judge’s
decision in Docket No. LAKE 2009-373. PDR at 1 n.1.
2

30 C.F.R. § 77.1109(c)(1) provides: “Mobile equipment, including trucks, front-end
loaders, bulldozers, portable welding units, and augers shall be equipped with at least one
portable fire extinguisher.”

37 FMSHRC Page 218

constitute “mobile equipment” under the standard, is reasonable and thus must be accorded
deference.
I.
Factual and Procedural Background
On March 23, 2010, Inspector William Faulkner inspected the Solar Sources No. 2 mine,
a coal surface mine in Pike County, Indiana. During his inspection, Faulkner observed a wheeled
water pump that was not equipped with a fire extinguisher, and subsequently issued Citation No.
8425618 to the mine operator. The citation alleged a violation of 30 C.F.R.
§ 77.1109(c)(1).
34 FMSHRC at 2828-29. The inspector believed that the water pumps were “mobile equipment”
due to the fact that they have wheels. Sec’y Mot. For Summ. Dec., Ex. D, Inspection Notes, at 9
of 15.
On June 7, 2010, Inspector Faulkner inspected another Solar Mine, the Craney mine, a
coal surface mine in Daviess County, Indiana. During his inspection, Faulkner observed a
wheeled water pump that was not equipped with a fire extinguisher and subsequently issued
Citation No. 8425664 to Solar. This citation also alleged a violation of 30 C.F.R.
§
77.1109(c)(1). 34 FMSHRC at 2828-30.
Solar contested both citations. Before the Administrative Law Judge, the parties agreed
that no material facts regarding either citation were in dispute. The parties agreed that the water
pumps were not self-propelled but that their wheels allowed them to be towed. The parties filed
cross-motions for summary decision. 34 FMSHRC at 2826-27, 2830.
In his summary decision, the Judge concluded that the language of the regulation was
clear and that the water pumps at issue constituted “mobile equipment.” 34 FMSHRC at 283536. The Judge noted that 30 C.F.R. § 56.2, a regulation that applies to metal and non-metal mines
(as opposed to the coal mines at issue), defined “mobile equipment” in part as any wheeled
equipment. On this basis, the Judge found that the two water pumps were clearly “mobile
equipment” under section 77.1109(c)(1) since their wheels allowed them to be moved from place
to place. 34 FMSHRC at 2834-35. Accordingly, the Judge affirmed both citations.
In reaching this result, the Judge rejected Solar’s argument that water pumps instead
constitute “auxiliary equipment” under 30 C.F.R. § 77.1109(c)(3), and must be considered only
under that section.3 The Judge “declin[ed] [the operator’s] invitation to second guess the
Secretary’s choice of regulations to enforce.” 34 FMSHRC at 2836. Instead, the Judge upheld the
Secretary’s decision to apply section 77.1109(c)(1) rather than section 77.1109(c)(3). Id. (citing
Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879 (June 1996), citing Heckler v. Chaney, 470
U.S. 821, 831-32 (1985)).
3

30 C.F.R. § 77.1109(c)(3) states that “[a]uxiliary equipment such as portable drills,
sweepers, and scrapers, when operated more than 600 feet from equipment required to have
portable fire extinguishers, shall be equipped with at least one fire extinguisher.”

37 FMSHRC Page 219

II.
Disposition
On review, Solar argues that section 77.1109(c)(1) is ambiguous because it fails to define
“mobile equipment,” and that the Secretary’s interpretation of the regulation is unreasonable. In
this regard, the operator claims that water pumps are “auxiliary equipment” subject to section
77.1109(c)(3) rather than “mobile equipment” subject to section 77.1109(c)(1). This contention
is based upon the claim that water pumps are not directly involved in the extraction of coal.
Rather, they are used to remove water that impedes mining and to fill water trucks which control
dust on mine roads. However, as the operator concedes, this argument is undercut by the fact that
portable welding units, which would fall under such a definition of “auxiliary,” are specifically
listed as “mobile equipment” under section 77.1109(c)(1).
The Secretary argues that the clear meaning of the term “mobile equipment” includes
wheeled water pumps as such pumps undoubtedly are mobile. Alternatively, even if the term is
ambiguous, the Secretary claims that his interpretation that wheeled water pumps constitute
“mobile equipment” is reasonable and thus should be accorded deference.
A. The standard is ambiguous with regard to the definition of “mobile equipment.”
Where the language of a regulatory provision is clear, the terms of that provision must be
enforced as they are written unless the regulator clearly intended the words to have a different
meaning or unless such a meaning would lead to absurd results. See Dyer v. United States, 832
F.2d 1062, 1066 (9th Cir. 1987); Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989);
Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993).
We conclude that the Judge erred in finding that the term “mobile equipment,” as used in
the standard, had a clear meaning. Section 77.1109(c)(1) does not define “mobile equipment” or
include “water pumps” in the listed examples of “mobile equipment.”4 Likewise, section
77.1109(c)(3) does not define “auxiliary equipment,” and does not identify “water pumps” in
listed examples of auxiliary equipment. Thus, neither standard defines the term “mobile
equipment” or directly addresses whether water pumps are “mobile equipment” within the
meaning of section 77.1109(c)(1) or “auxiliary equipment” under section 77.1109(c)(3).5
4

As mentioned above, section 77.1109(c)(1) states that “[m]obile equipment, including
trucks, front-end loaders, bulldozers, portable welding units, and augers, shall be equipped with
at least one portable fire extinguisher” (emphasis added). The word “including” indicates that the
subsequent list of “mobile equipment” is not exhaustive.
5

The Commission has previously found ambiguity regarding the scope of a standard
under similar circumstances. See Alcoa Alumina & Chemicals, LLC, 23 FMSHRC 911, 914-15
(Sept. 2001) (in the context of 30 C.F.R. § 48.21, which applied to “surface mines,” the
Commission found ambiguity as to whether “surface mines” included “mills” because the
standard did not define “surface mines” or specifically include “mills” within its scope).

37 FMSHRC Page 220

The Secretary argues that the term “mobile equipment” plainly encompasses a wheeled
water pump because the water pump is capable of being moved from place to place. However,
certain equipment categorized as “auxiliary equipment” pursuant to section 77.1109(c)(3), e.g.
“scrapers,” are also capable of being moved from place to place. Scrapers are described by the
Dictionary of Mining, Minerals and Related Terms 485 (2d ed. 1997) (“DMMRT”) as “rubbertired device[s].”6 Therefore, the ability to move from one place to another does not plainly
distinguish “mobile equipment” from “auxiliary equipment.”
We conclude, after reading section 77.1109(c) in its entirety, that the term “mobile
equipment” in section 77.1109(c)(1) does not have a plain meaning. Instead, the term is
ambiguous.
B. The Secretary’s proffered interpretation is reasonable.
Where a mandatory standard is ambiguous, courts and the Commission defer to the
Secretary’s reasonable interpretation of the regulation. See Energy West Mining Co. v. FMSHRC,
40 F.3d 457, 463 (D.C. Cir. 1994); accord Sec’y of Labor v. Western Fuels-Utah, Inc., 900 F.2d
318, 321 (D.C. Cir. 1990) (“agency’s interpretation . . . is ‘of controlling weight unless it is
plainly erroneous or inconsistent with the regulation’”) (quoting Bowles v. Seminole Rock &
Sand Co., 325 U.S. 410, 414 (1945)). The Commission’s review similarly involves an
examination of whether the Secretary’s interpretation is reasonable. See Consolidation Coal Co.,
14 FMSHRC 956, 969 (June 1992); Rochester & Pittsburgh Coal Corp., 12 FMSHRC 189, 193
(Feb. 1990); Missouri Rock, Inc., 11 FMSHRC 136, 139 (Feb. 1989).
The Secretary’s interpretation, that wheeled water pumps constitute “mobile equipment”
because they are capable of traversing roadways, is reasonable. Considering wheeled water
pumps as “mobile equipment” is consistent with the examples contained in section
77.1109(c)(1), which include other wheeled equipment, such as portable welding units that can
be towed along roadways. Such an interpretation of “mobile equipment” is not overly broad, as it
does not include all types of equipment that can be picked up and carried.
Furthermore, the reasonableness of the Secretary’s interpretation is demonstrated by the
definitions of “mobile equipment” in both the DMMRT and 30 C.F.R. § 56.2. The DMMRT
defines “mobile equipment” as “equipment that is self-propelled or that can be towed on its own
wheels, tracks, or skids.” DMMRT at 352. Section 56.2 defines “mobile equipment” as
“wheeled, skid-mounted, track-mounted, or rail-mounted equipment capable of moving or being
moved.” 30 C.F.R. § 56.2. While section 56.2 applies to metal and non-metal mines, and the
mines at issue are coal mines, we have previously recognized that “[t]here is no logical reason
why . . . coal mines would be subject to a regulation designed to be less protective . . . than the
regulation governing other mines, and it would make little sense for MSHA or its predecessor
agency to have intended such a result.” Wolf Run, 32 FMSHRC at 1681-82.
6

We have previously recognized that the definitions in the DMMRT, while not always
dispositive, are a “recognized authority for [technical] usage.” Wolf Run Mining Co., 32
FMSHRC 1669, 1685 (Dec. 2010).

37 FMSHRC Page 221

We are persuaded by these definitions that it is reasonable to interpret the term “mobile
equipment” as any type of wheeled equipment that can traverse roadways.7 The Secretary’s
interpretation, that wheeled water pumps are “mobile equipment” as they are capable of
traversing roadways, is clearly consistent with these concepts. Consequently, we uphold the
Secretary’s interpretation of the term “mobile equipment” as reasonable in this instance.8
Under the Secretary’s interpretation, both water pumps at issue constituted “mobile
equipment” under section 77.1109(c)(1). As a result, the operator was required to equip both
water pumps with fire extinguishers, and its failure to do so violated the standard.

7

The question as to whether auxiliary equipment listed in section 77.1109(c)(3) may also
be considered mobile equipment under section 77.1109(c)(1) is not raised by the facts of this
case. Consequently, we leave this issue for a future case.
8

We note that, as section 77.1109(c) is currently written, some types of equipment could
fit both the definition of “mobile” within the Secretary’s interpretation and “auxiliary” within a
reasonable interpretation of that term. When a regulation does not provide unambiguous notice
of its coverage, the Commission’s test is whether a reasonably prudent person familiar with the
mining industry and the protective purposes of the standard would have recognized the
requirement of the standard. Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). Although
the operator did not raise an issue of “fair notice” in this case, it may arise in other cases. For
example, scrapers often have wheels, but they are explicitly included in section 77.1109(c)(3) as
“auxiliary” equipment. Therefore, without in any way forecasting an outcome, we note that an
operator might claim a lack of fair notice if it receives a citation under (c)(1) on a piece of
demonstrably auxiliary equipment.

37 FMSHRC Page 222

III.
Conclusion
For the foregoing reasons, we find that the Secretary proved violations of 30 C.F.R. §
77.1109(c)(1) with regard to Citation Nos. 8425618 and 8425664. Therefore, we affirm in result
the Judge’s decision with respect to both citations.

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

37 FMSHRC Page 223

COMMISSION ORDERS

37 FMSHRC Page 224

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

February 4, 2015
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No.
A.C. No.

v.

CENT 2013-533-M
29-00159-320274

FREEPORT-MCMORAN TYRONE,
INC.
BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On December 11, 2013, the Commission received from
Freeport-McMoRan Tyrone, Inc., (“Freeport”) a motion seeking to reopen a penalty assessment
proceeding and relieve it from the Default Order entered against it.
On August 6, 2013, the Chief Administrative Law Judge had issued an Order to Show
Cause in response to Freeport’s failure to answer the Secretary of Labor’s June 18, 2013 Petition
for Assessment of Civil Penalty. By its terms, the Order to Show Cause became a Default Order
on September 6, 2013, when Freeport did not seem to file an answer within 30 days.
Freeport asserts that it failed to send a timely answer due to a miscommunication or
misunderstanding of the Commission’s procedures. Freeport maintains that when the Order to
Show Cause was issued it had been in engaged in ongoing discussions with the Secretary, which
have resulted in a proposed settlement agreement. The Secretary does not oppose the request,
but notes that the Order to Show Cause clearly alerted the operator that it needed to respond to
the order within 30 days.
The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R.
§ 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s
decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not
direct review within 40 days of a decision’s issuance, it becomes a final decision of the
Commission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final
decision of the Commission.
In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party
from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or

37 FMSHRC Page 225

other reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall
be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy
and that, if the defaulting party can make a showing of good cause for a failure to timely
respond, the case may be reopened and appropriate proceedings on the merits will be permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Freeport’s request and the Secretary’s response, in the interest of
justice, we hereby reopen the proceeding and vacate the Default Order. Accordingly, this case is
remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine
Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

37 FMSHRC Page 226

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

February 4, 2015
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No.
A.C. No.

v.

SE 2013-233-M
31-02233-312147A

BRIAN ENGLISH, employed by
BARNES PAVING COMPANY, INC.
BEFORE:

Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
' 801 et seq. (2012) (AMine Act@). On April 1, 2014, the Commission received from Brian
English (AEnglish@) a motion seeking to reopen a penalty assessment proceeding and relieve him
from the Default Order entered against him.
On June 27, 2013, the Chief Administrative Law Judge issued an Order to Show Cause in
response to English=s failure to answer the Secretary of Labor=s April 12, 2013 Petition for
Assessment of Civil Penalty. By its terms, the Order to Show Cause became a Default Order on
July 29, 2013, when the operator did not file an answer within 30 days.
English asserts that he had sent his notice of contest on February 6, 2013, in response to
the Secretary=s proposed assessment, and that he never received any more correspondence
regarding the case until he was notified by the collection agency of the outstanding penalties.
The Secretary does not oppose the request, and confirms that the Petition for Assessment of Civil
Penalty was mailed to a different address then the one provided by English on the contest form.
The Judge=s jurisdiction in this matter terminated when the default occurred. 29 C.F.R.
' 2700.69(b). Under the Mine Act and the Commission=s procedural rules, relief from a
judge=s decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. ' 823(d)(2)(A)(i); 29 C.F.R. ' 2700.70(a). If the Commission does not
direct review within 40 days of a decision=s issuance, it becomes a final decision of the
Commission. 30 U.S.C. ' 823(d)(1). Consequently, the Judge=s order here has become a final
decision of the Commission.
In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party
from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or

37 FMSHRC Page 227

other reason justifying relief. See 29 C.F.R. ' 2700.1(b) (Athe Commission and its Judges shall
be guided so far as practicable by the Federal Rules of Civil Procedure@); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy
and that, if the defaulting party can make a showing of good cause for a failure to timely
respond, the case may be reopened and appropriate proceedings on the merits will be permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed English=s request and the Secretary=s response, in the interest of justice,
we hereby reopen the proceeding and vacate the Default Order. Accordingly, this case is
remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine
Act and the Commission=s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

37 FMSHRC Page 228

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

February 4, 2015
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No.
A.C. No.

v.

WEST 2012-1395-M
45-03599-296395

PENINSULA TOPSOIL
BEFORE:

Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
' 801 et seq. (2012) (AMine Act@). On January 8, 2014, the Commission received from
Peninsula Topsoil (APeninsula@) a motion seeking to reopen a penalty assessment proceeding and
relieve it from the Default Order entered against it.
On February 5, 2013, the Chief Administrative Law Judge issued an Order to Show
Cause in response to Peninsula=s failure to answer the Secretary of Labor=s October 10, 2012
Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause became a
Default Order on March 8, 2013, when the operator did not file an answer within 30 days.
Peninsula asserts that it failed to send a timely answer due to a miscommunication or
misunderstanding of the Commission=s procedures. The Secretary does not oppose the request,
but notes that the Order to Show Cause clearly alerted the operator that it needed to respond to
the order within 30 days. The Secretary cautions that he may oppose future motions to reopen
penalty assessments.
The Judge=s jurisdiction in this matter terminated when the default occurred. 29 C.F.R.
' 2700.69(b). Under the Mine Act and the Commission=s procedural rules, relief from a
judge=s decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. ' 823(d)(2)(A)(i); 29 C.F.R. ' 2700.70(a). If the Commission does not
direct review within 40 days of a decision=s issuance, it becomes a final decision of the
Commission. 30 U.S.C. ' 823(d)(1). Consequently, the Judge=s order here has become a final
decision of the Commission.
In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party
from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or

37 FMSHRC Page 229

other reason justifying relief. See 29 C.F.R. ' 2700.1(b) (Athe Commission and its Judges shall
be guided so far as practicable by the Federal Rules of Civil Procedure@); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy
and that, if the defaulting party can make a showing of good cause for a failure to timely
respond, the case may be reopened and appropriate proceedings on the merits will be permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Peninsula=s request and the Secretary=s response, in the interest of
justice, we hereby reopen the proceeding and vacate the Default Order. Accordingly, this case
is remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine
Act and the Commission=s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

37 FMSHRC Page 230

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

February 4, 2015
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No.
A.C. No.

v.

WEST 2013-767-M
24-01079-318628

DRUMLUMMON GOLD
CORPORATION
BEFORE:

Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
' 801 et seq. (2012) (AMine Act@). On April 9, 2014, the Commission received from
Drumlummon Gold Corporation, (ADrumlummon@) a revised motion seeking to reopen a penalty
assessment proceeding and relieve it from the Default Order entered against it.
On August 8, 2013, the Chief Administrative Law Judge issued an Order to Show Cause
in response to Drumlummon=s failure to answer the Secretary of Labor=s June 17, 2013 Petition
for Assessment of Civil Penalty. By its terms, the Order to Show Cause became a Default Order
on September 9, 2013, when the operator did not file an answer within 30 days.
Drumlummon asserts that it failed to send a timely answer because it had closed its mine
facilities and had experienced confusion relating to an apparent settlement of the case.
Drumlummon contends that it had accepted the Secretary=s settlement offer but that the offer was
subsequently rescinded on August 21, 2013. At that time, MSHA=s Conference and Litigation
Representative told Drumlummon, AI will be contacting you shortly to advise you how MSHA
plans to proceed with this case.@
The Secretary opposes the request to reopen and argues that, despite any confusion on the
operator=s part, it still had 17 days after being notified that the District Manager had disapproved
the settlement in which it could have responded to the Judge=s Order to Show Cause. The fact
that the mine was closed did not relieve Drumlummon of its existing obligations under the Mine
Act to maintain an adequate and reliable internal processing system.
The Judge=s jurisdiction in this matter terminated when the default occurred. 29 C.F.R.
' 2700.69(b). Under the Mine Act and the Commission=s procedural rules, relief from a judge=s
decision may be sought by filing a petition for discretionary review within 30 days of its

37 FMSHRC Page 231

issuance. 30 U.S.C. ' 823(d)(2)(A)(i); 29 C.F.R. ' 2700.70(a). If the Commission does not direct
review within 40 days of a decision=s issuance, it becomes a final decision of the Commission.
30 U.S.C. ' 823(d)(1). Consequently, the Judge=s order here has become a final decision of the
Commission.
In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party
from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or
other reason justifying relief. See 29 C.F.R. ' 2700.1(b) (Athe Commission and its Judges shall
be guided so far as practicable by the Federal Rules of Civil Procedure@); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy
and that, if the defaulting party can make a showing of good cause for a failure to timely
respond, the case may be reopened and appropriate proceedings on the merits will be permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Drumlummon=s request and the Secretary=s response, we conclude that
good cause existed for Drumlummon=s failure to respond to the Order to Show Cause by virtue
of the settlement negotiations and the CLR=s statement that MSHA would be contacting
Drumlummon shortly about how the case would proceed. Hence, in the interest of justice, we
hereby reopen the proceeding and vacate the Default Order. Accordingly, this case is remanded
to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission=s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

37 FMSHRC Page 232

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

February 10, 2015
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
MEDINA CRUSHED STONE, INC.

Docket No.
A.C. No.

CENT 2010-1205-M
41-03594-228066

Docket No.
A.C. No.

CENT 2010-1206-M
41-03594-228066

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On August 20, 2013, the Commission received from Medina
Crushed Stone, Inc. (“Medina”) a motion seeking to reopen two penalty assessment proceedings
and relieve it from the Default Orders entered against it.1
In Docket No. CENT 2010-1205-M, the Chief Administrative Law Judge issued an Order
to Show Cause on March 9, 2012, which by its terms became a final order on April 9, 2012 when
the operator did not file an answer within 30 days. This Order to Show Cause was issued in
response to Medina’s failure to answer the Secretary of Labor’s January 25, 2011 Petition for
Assessment of Civil Penalty.
In Docket No. CENT 2010-1206-M, an Administrative Law Judge issued an Order to
Show Cause on November 19, 2012 in response to the Secretary’s repeated unsuccessful
attempts to contact Medina. On January 16, 2013, the Judge issued a Default Decision after
Medina failed to respond to the show cause order.
Medina asserts that it did not receive much of the paperwork associated with both cases
because it was sent to the addresses of a terminated employee and of Martin Marietta Materials
Southwest, Inc. (“Martin”), the company that Medina sold the portable rock crushing plant to in
2011. Regarding Docket No. CENT 2010-1205-M, the record indicates that Show Cause Orders
were issued on February 9, 2012 and March 9, 2012, to the terminated employee and Martin,

1

A.C. No. 000228066 was divided into the two docket numbers captioned above. The
Motion to Reopen and the enclosed documents referred to both docket numbers. Pursuant to
Commission Procedural Rule 12, on our own motion, we hereby consolidate docket numbers
CENT 2010-1205-M and CENT 2010-1206-M, both captioned Medina Crushed Stone, Inc., and
involving similar procedural issues. 29 C.F.R. § 2700.12.

37 FMSHRC Page 233

respectively. The first Show Cause Order was returned as undeliverable, but the second order
was delivered to Martin on March 15, 2012.
Medina further asserts that it paid $3,300 in response to a properly addressed
delinquency notice, dated July 23, 2012. Despite the payment, Medina notes that it received a
collection notice, dated September 19, 2012, and promptly notified MSHA. Medina states in its
response to the Secretary’s opposition that, in its communications with MSHA, it was told that
the payment of $3,300 for Docket No. CENT 2010-1205-M would terminate all its debts.
Therefore, Medina believed that it had satisfied all its responsibilities and was not notified
otherwise.
The Secretary confirms that MSHA received a payment of $3,300 by check, dated
August 17, 2012, which was later applied to CENT 2010-1205-M after Medina contacted
MSHA. The Secretary considers Docket No. CENT 2010-1205-M to be paid in full and thus
ineligible for reopening.
Although payment of contested citations may be a grounds for finding a motion to reopen
moot, we have made limited exceptions where there exists clear evidence that an operator made
the payment by mistake or inadvertence. See, e.g., McCoy Elkhorn Coal Corp., 33 FMSHRC 1,
2 (Jan. 2011). Based on the record, it is uncontradicted that Medina was under the mistaken
belief that a payment of $3,300 would satisfy all penalties relating to A.C. No. 000228066.
Medina was never served with any document stating that the contested citations had been split
into two dockets, and the delinquency and collection notices that prompted the payment only
refer to the A.C. Number, not the docket with which the penalty is associated.
Regarding Docket No. CENT 2010-1206-M, in a letter dated January 30, 2012, Medina
asserted that it did not receive any paperwork after contesting the proposed assessment. The
Show Cause Order and the Default Decision were delivered to the new owner of the portable
plant on November 26, 2012 and January 23, 2013, respectively. A copy of the Show Cause
Order was also sent to the address of the terminated employee but was returned undelivered.
The Secretary opposes the request to reopen, asserting that the operator identifies no
exceptional circumstances warranting reopening. The Secretary claims that, following Medina’s
sale of the plant, there was inadequate monitoring of MSHA citations, outstanding penalties, and
active Commission cases. The Secretary does not explain why service was not attempted on the
correct address, which was a part of the record and was known to both MSHA’s Office of
Assessments and a MSHA Conference Litigation Representative in Dallas, Texas.2
Medina responded to the Secretary’s opposition, explaining that it did not part with
Martin on good terms and never received the Show Cause Orders or Default Decisions.

2

We note that the proposed penalties, motions requesting extension to file the petition for
assessment of civil penalty, delinquency notices, and collection notice were sent to Medina’s
correct address. It is unclear why there was an abrupt change in service upon the filing of the
Secretary’s petition whereby documents were served to different addresses.

37 FMSHRC Page 234

Moreover, Medina asserts that after it sold the portable rock crushing plant and notified MSHA
of the sale, it was unreasonable to expect that the plant’s former supervisor, whose employment
had been terminated, would forward mail to Medina.
Pursuant to Commission Procedural Rule 66, an order to show cause shall be mailed to the
party by registered or certified mail, return receipt requested, before the entry of any order of
default or dismissal. 29 C.F.R. § 2700.66. Having reviewed Medina’s request and the
Secretary’s response, we conclude that the operator did not receive the Show Cause Orders, and
therefore the Default Orders have not been effectively entered. Accordingly, Docket Nos. CENT
2010-1205-M and CENT 2010-1206-M are remanded to the Chief Administrative Law Judge and
Administrative Law Judge, respectively, for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

37 FMSHRC Page 235

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

February 10, 2015
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No.
A.C. No.

v.

CENT 2013-472-M
39-00020-318697

PETE LIEN & SONS, INC.
BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On February 3, 2014, the Commission received from Pete
Lien & Sons, Inc., (“Pete Lien”) a motion seeking to reopen a penalty assessment proceeding
and relieve it from the Default Order entered against it.
On August 8, 2013, the Chief Administrative Law Judge issued an Order to Show Cause
in response to Pete Lien’s failure to answer the Secretary of Labor’s June 24, 2013 Petition for
Assessment of Civil Penalty. By its terms, the Order to Show Cause became a Default Order on
September 9, 2013, when the operator did not file an answer within 30 days.
Pete Lien asserts that on August 29, 2013, it submitted an answer to the Secretary’s
Petition for Assessment of Civil Penalty, but that, due to a typographical error, the operator had
incorrectly listed the docket number and case number in its answer, which is why the
Commission never received it. The Secretary does not oppose the request, but notes that the
safety coordinator at Pete Lien is a former MSHA inspector who is aware of MSHA’s contest
procedures. The Secretary cautions that he may oppose future motions to reopen penalty
assessments where proper procedures are not followed.
The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R.
§ 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s
decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not
direct review within 40 days of a decision’s issuance, it becomes a final decision of the
Commission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final
decision of the Commission.
In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party

37 FMSHRC Page 236

from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or
other reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall
be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy
and that, if the defaulting party can make a showing of good cause for a failure to timely
respond, the case may be reopened and appropriate proceedings on the merits will be permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Pete Lien’s request and the Secretary’s response, in the interest of
justice, we hereby reopen the proceeding and vacate the Default Order. Accordingly, this case is
remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine
Act and the Commission's Procedural Rules, 29 C.F.R. part 2700.

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

37 FMSHRC Page 237

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

February 10, 2015
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No.
A.C. No.

v.

YORK 2013-170-M
19-01082-324542

KINGSTOWN CORPORATION
BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On February 20, 2014, the Commission received from the
Secretary a motion seeking to reopen a penalty assessment proceeding to relieve Kingstown
Corporation (“Kingstown”) from the Default Order entered against it.
On September 16, 2013, the Chief Administrative Law Judge issued an Order to Show
Cause in response to Kingstown’s failure to answer the Secretary of Labor’s July 25, 2013
Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause became a
Default Order on October 17, 2013, when the operator did not file an answer within 30 days.
The Secretary asserts that Kingstown was engaged in ongoing negotiations with the
Secretary for a global settlement for a number of consolidated cases. Because Judge Andrews,
the presiding Judge, was aware of the negotiations, Kingstown apparently believed that it was
not required to file an answer to the Judge’s Order to Show Cause and that this constitutes
excusable neglect. The Secretary adds that the parties eventually entered into a settlement of all
pending matters, except for the case in question. The Secretary requests that the Commission
reopen this case and re-assign it to Judge Andrews so that he can assess the adequacy of the
proposed settlement in this matter.
The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R.
§ 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s
decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not
direct review within 40 days of a decision’s issuance, it becomes a final decision of the
Commission. 30 U.S.C. § 823(d)(1). Consequently, the Chief Administrative Law Judge’s
Order to Show Cause here has become a final decision of the Commission.

37 FMSHRC Page 238

In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party
from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or
other reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall
be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy
and that, if the defaulting party can make a showing of good cause for a failure to timely
respond, the case may be reopened and appropriate proceedings on the merits will be permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the Secretary’s request, in the interest of justice, we hereby reopen the
proceeding and vacate the Default Order. Accordingly, this case is remanded to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

37 FMSHRC Page 239

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

February 11, 2015
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No.
A.C. No.

v.

CENT 2011-159-M
39-01313-236458

BOB BAK CONSTRUCTION
BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On August 5, 2013, the Commission received from Bob Bak
Construction (“Bak”) a motion seeking to reopen a penalty assessment proceeding and relieve it
from the Default Order entered against it.
On May 2, 2011, Chief Administrative Law Judge Lesnick issued an Order to Show
Cause which by its terms would become a Default Order if the operator did not file an answer
within 30 days. This Order to Show Cause was issued in response to Bak’s failure to answer the
Secretary’s December 20, 2010 Petition for Assessment of Civil Penalty.
Bak’s owner asserts that he did not answer the penalty petition because he misunderstood
the procedures and thought he had fulfilled his responsibilities by timely contesting the proposed
assessment. Bak further states that it had never received any other notification regarding this
case. Bak’s recently-hired counsel discovered this delinquency while researching other matters.
Bak recognizes that a significant amount of time had passed since it contested the proposed
assessment, but maintains that in the interest of equity, this small operator should be permitted to
defend the case on the merits, and present its inability to pay the $86,400 assessed amount in
addition to interest and penalty fees.
The Secretary of Labor opposes the request to reopen because it was filed two years after
the Show Cause Order was issued. The Secretary states that MSHA mailed a delinquency notice
on October 6, 2011, which was returned undelivered, and referred the case to the Department of
Treasury for collection on January 2, 2012.
In reviewing Bak’s request, we are given pause by an apparent inconsistency in the
record before us. Our internal records seem to indicate that the Show Cause Order may not have

37 FMSHRC Page 240

been delivered to Bak, but was returned to the Commission as undelivered on May 12, 2011.1
However, Bak’s Motion to Reopen and supporting affidavit suggest that the Show Cause Order
was received, but that Bak did not respond because it “did not understand the legal procedures
and thought [it] did everything required when [it] contested the Proposed Assessment.” Bak Aff.
2, ¶9; see also Bak Mot. to Reopen 2.
The issues raised by this inconsistency in the record require findings of fact that are the
province of an administrative law judge in the first instance. See, e.g., Pinnacle Mining Co., 29
FMSHRC 56, 57 (Jan. 2007). Thus, in the interests of justice, we hereby remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for Bak’s
failure to answer the Show Cause Order 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.

1

Internal Commission records include two receipts for certified mail which contain U.S.
Postal Service tracking numbers. When the petition for reopening was received, Commission
staff checked Postal Service records and discovered that one envelope was delivered to Denver,
Colorado on May 6, 2011, and that the other envelope was returned to Washington, D.C. on May
12, 2011. Since Chief Judge Lesnick’s Order to Show Cause was issued on May 2, 2011 and
sent to the MSHA Solicitor’s Office in Denver as well as to Bak, we surmise that the delivery on
May 6 was the Show Cause Order to the Solicitor’s Office. It appears that the envelope which
was returned to Washington, D.C. on May 12 may have been an envelope containing the Show
Cause Order which was intended for delivery to Bak, but returned undelivered.

37 FMSHRC Page 241

In determining whether to reopen this case, the Chief Administrative Law Judge should
consider if the operator actually received a copy of the Show Cause Order and whether the
operator made a good faith attempt to receive mail at its address of record, particularly in light of
the fact that mail appears to have been returned due to a lack of a mail receptacle.2

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

2

We note that it is the operator’s responsibility to contact MSHA and the Commission to
update its address of record. Gudelsky Materials, 35 FMSHRC 3258 (Oct. 2013).

37 FMSHRC Page 242

ADMINISTRATIVE LAW JUDGE DECISIONS

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

February 4, 2015
UNITED STEELWORKERS LOCAL NO.
5114, ON BEHALF OF MINERS,
Applicant

COMPENSATION PROCEEDING
Docket No. WEST 2012-466-CM

v.
HECLA LIMITED,
Respondent

Lucky Friday Mine
Mine ID 10-00088

FINAL DECISION AND ORDER ON APPLICATION FOR COMPENSATION
Appearances:

Susan J. Eckert, Esq., Santarella & Eckert, LLC, Littleton, Colorado, for
Applicant;
Laura Beverage, Esq., and Karen Johnston, Esq., Jackson Kelly PLLC,
Denver, Colorado, for Respondent.

Before:

Judge Manning

This Compensation Proceeding is before me pursuant to section 111 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the “Act”), upon an application for
compensation filed by the United Steel Workers, Local 5114 on behalf of miners (“USW”)
against Hecla Limited. On November 14, 2014, Hecla and USW filed simultaneous motions for
partial summary decision in this matter. On December 23, 2014, I issued an order granting, in
part, Hecla’s motion for partial summary decision.1 Steelworkers Local 5114 v. Hecla Limited,
36 FMSHRC ____, No. WEST 2012-466-CM, 2014 WL 7464233 (Dec. 2014), amended at 37
FMSHRC ____, 2015 WL 226135 (Jan 5, 2015). That order, as amended, is incorporated herein
by reference. In that order, I encouraged the parties to stipulate to the specific miners due
compensation in accordance with my order and the amount of compensation due each miner.
On February 3, 2015, the parties filed a joint stipulation “Regarding Specific Miners Due
Compensation and the Amount of Compensation” (the “Joint Stipulation”). The parties identified
19 miners who are entitled to compensation under section 111 of the Act based on my December
23, 2014 order. The name of each miner and the amount owed to each miner are identified in
Joint Exhibit A, which is incorporated herein by reference. The amount of compensation was
calculated by Hecla using “the miners’ regular rates of pay for

My order was based upon the record developed at the hearing on two orders of
withdrawal issued under section 103(k) of the Act that directly relate to this compensation
proceeding. On October 29, 2014, I issued a decision in the contest cases for these withdrawal
orders, Hecla Limited, 36 FMSHRC 2749 (Oct. 2014). With the parties’ agreement, the record
from that hearing was incorporated by reference in this proceeding.
1

37 FMSHRC Page 243

hours worked between December 6 and 14, 2011.” Joint Stipulation at 1. The total amount of
compensation due excluding interest is $13,150.48.
The parties stipulated that “[i]nterest on the total compensation amounts set forth in Joint
Exhibit A will be calculated using the OPM guidelines for back pay annual interest rates by
quarter based on IRS official rates pursuant to 5 U.S.C. § 5596 and 5 C.F.R. §§ 550.801-808. See
also Local 2274 v. Clinchfield Coal Co., 10 FMSHRC 1493, 1504-06 (Nov. 1988). The interest
is to accrue up to the date of the Court’s entry of a decision and order in this matter.” Joint
Stipulation at 2.
The parties further stipulated that “[u]pon entry of the Court’s decision and order, the
operator will calculate the interest due as of that date and compensate the miners accordingly.
Such compensation, which shall be subject to standard withholdings for taxes and shall be
reported on a W2 Form, will be processed and paid to the miners in the first full pay period
immediately following the date of the Court’s decision and order is entered and in a time period
not to exceed fourteen days.” Id.
As stated above, the amount of compensation due under section 111 of the Act was
calculated based on my order of December 23, 2014. Upon issuance of that order, I advised the
parties not to file a petition for interlocutory review with the Commission if they disagreed with
my order. I advised them that once I issued my final decision, the issues of fact and law
discussed in my December 23, 2014, order would be ripe for review should either party wish to
petition the Commission for review.
ORDER
I find that the terms of the Joint Stipulation comply with the requirements of section 111
of the Act. Hecla Limited is hereby ORDERED to pay $13,150.48 plus interest to the miners
listed in Joint Exhibit A in accordance with the parties’ Joint Stipulation. The parties SHALL
COMPLY with all the terms and conditions set forth in the Joint Stipulation. Upon compliance
with these terms, this proceeding is DISMISSED.

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

37 FMSHRC Page 244

Distribution:
Susan J. Eckert, Esq., Santarella & Eckert, LLC, 7050 Puma Trail, Littleton, CO 80125
(Certified Mail)
Laura E. Beverage, Esq., and Karen Johnston, Jackson Kelly PLLC, 1099 18th St., Suite 2150,
Denver, CO 80202 (Certified Mail)
RWM

37 FMSHRC Page 245

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

February 5, 2015
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 2011-1028
A.C. No. 46-06843-244332
Docket No. WEVA 2012-481
A.C. No. 46-06843-272825-01

v.

Docket No. WEVA 2012-559
A.C. No. 46-06843-275658-01
SALLY ANN COAL COMPANY, INC.,
Respondent

Mine: No. 2 Mine

DECISION
Appearances:

Michele A. Horn, Esq., U.S. Department of Labor, Office of the Solicitor,
Denver, Colorado, for the Secretary
James F. Bowman, Litigation Representative, Midway, West Virginia, for
Respondent.

Before:

Judge Harner

These cases are before me upon petitions for assessment of civil penalty filed by the
Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration
(“MSHA”), against Sally Ann Coal Company, Inc. (“Sally Ann” or “Respondent”) at its No. 2
Mine, pursuant to Sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. §§ 815 and 820 (the “Act”). These cases included three separate dockets containing
twelve violations assessed at $38,126.00. On December 9, 2013, I issued a Decision Approving
Partial Settlement resolving seven of the eight violations in Docket No. WEVA 2011-1028. The
parties presented testimony and documentary evidence for the remaining five violations at a
hearing held in Charleston, West Virginia on November 14 and15, 2013. Both parties filed posthearing briefs which have been duly considered.

37 FMSHRC Page 246

STIPULATIONS1
1. Sally Ann Coal Company, Inc., (“Sally Ann”) at all times relevant to these
proceedings, engaged in mining activities and operations at the No. 2 Mine in
McDowell County, WV.
2. Sally Ann’s mining operations affect interstate commerce.
3. Sally Ann is subject to the jurisdiction of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §§ et. seq. (the “Mine Act”).
4. Sally Ann is an “operator” as defined in §3(d) of the Mine Act, 30 U.S.C. §803(d), at
the Mine where the contested citations in these proceedings were issued.
5. The Administrative Law Judge has jurisdiction over these proceedings pursuant to
§105 of the Act.
6. The individuals whose signatures appear in Block 22 of the contested citations at
issue in these proceedings were at the times the citations were issued authorized
representatives of the United States of America’s Secretary of Labor, assigned to
MSHA, and were acting in their official capacities when issuing the citations at issue
in these proceedings.
7. The citations at issue in these proceedings were properly served upon Sally Ann as
required by the Mine Act.
8. The citations at issue in these proceedings may be admitted into evidence for the
purpose of establishing their issuance but not for the truthfulness or relevancy of any
statements asserted therein.
9. The certified copy of the MSHA Assessed Violations History reflects the history of
the citation issuances at the Mine for 15 months prior to the date of the citations at
issue and may be admitted into evidence without objection by Sally Ann.
10. Sally Ann demonstrated good faith in abating the violations.
11. Sally Ann may be considered a medium size mine operator for the purposes of 30
U.S.C. §820(i).

1

Except for Stipulation 13, the Stipulations consist of the stipulations contained in the
parties pre-hearing statements submitted prior to the hearing. Their substance is not at issue in
this proceeding.

37 FMSHRC Page 247

12. The assessed penalties will not affect the ability of Respondent to remain in business.
13. All of the miners in Order No. 8098519 were “experienced” miners. Tr. 96-97.2
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The findings of fact are based on the record as a whole and my careful observation of the
witnesses during their testimony. In resolving any conflicts in the testimony, I have taken into
consideration the interests of the witnesses, or lack thereof, and consistencies, or inconsistencies,
in each witness’s testimony and between the testimonies of the witnesses. In evaluating the
testimony of each witness, I have also relied on his or her demeanor. Any failure to provide
detail as to each witness’s testimony is not to be deemed a failure on my part to have fully
considered it. The fact that some evidence is not discussed does not indicate that it was not
considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000) (administrative law judge is not
required to discuss all evidence and failure to cite specific evidence does not mean it was not
considered).
I. BASIC LEGAL PRINCIPLES
A. Significant and Substantial
The Orders in dispute and discussed below have been designated by the Secretary as
significant and substantial and unwarrantable failures to comply with mandatory safety
standards. A significant and substantial (“S&S”) violation is described in section 104(d)(1) 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.” 30 U.S.C. § 814(d)(1). A violation is
properly designated S&S “if, based upon the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:
[i]n 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.

2

Hereinafter, the Secretary’s exhibits will be designated as GX followed by a number;
and Respondent’s exhibits will be designated as RX followed by a number. Pages of the official
hearing transcript are designated “Tr.” followed by the appropriate page reference(s).
Respondent’s Post-Hearing Brief is designated as RPHB followed by the page number.

37 FMSHRC Page 248

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, 861 F.2d 99,
103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving
Mathies criteria).
The difficulty with finding a violation S&S normally comes with the third element of the
Mathies formula. 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(d)(1), 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 (July 1984). The Secretary “need
not prove a reasonable likelihood that the violation itself will cause injury.” Cumberland Coal
Resources, LP, 33 FMSHRC 2357, 2365 (Oct. 2011) (citing Musser Engineering, Inc. and PBS
Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010).
This evaluation is made in consideration of the length of time that the violative condition
existed prior to the citation and the time it would have existed if normal mining operations had
continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc.,
6 FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
B. Negligence and Unwarrantable Failure
Negligence “is conduct, either by commission or omission, which falls below a standard
of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. §
100.3(d). “A mine operator is required to be on the alert for conditions and practices in the mine
that affect the safety or health of miners and to take steps necessary to correct or prevent
hazardous conditions or practices.” Id. MSHA considers mitigating circumstances which may
include, but are not limited to, actions taken by the operator to prevent or correct hazardous
conditions or practices. Id. Low negligence exists when “[t]he operator knew or should have
known of the violative condition or practice, but there are considerable mitigating
circumstances.” Id. Moderate negligence is when “[t]he operator knew or should have known of
the violative condition or practice, but there are mitigating circumstances.” Id. High negligence
exists when “[t]he operator knew or should have known of the violative condition or practice,
and there are no mitigating circumstances.” Id. See also Brody Mining, LLC, 33 FMSHRC 1329
(2011) (ALJ). Finally, the operator is guilty of reckless disregard where it “displayed conduct
which exhibits the absence of the slightest degree of care.” 30 C.F.R. § 100.3(d).
The Commission has defined an unwarrantable failure as aggravated conduct constituting
more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987).
Unwarrantable failure is defined by such conduct as “reckless disregard”, “intentional

37 FMSHRC Page 249

misconduct”, “indifference”, or a “serious lack of reasonable care”. Emery Mining Corp., 9
FMSHRC at 2003; see also Buck Creek Coal, Inc., 52 F.3d 133, 136 (7th Cir. 1995).
The Commission has recognized that whether conduct is “aggravated” in the context of
unwarrantable failure is determined by considering all the facts and circumstances of each case
to determine if any aggravating factors exist, or if any mitigating circumstances exist.
Aggravating factors include the length of time that the violation has existed, the extent of the
violative condition, whether the operator has been placed on notice that greater efforts were
necessary for compliance, the operator's efforts in abating the violative condition, whether the
violation was obvious or posed a high degree of danger, and the operator's knowledge of the
existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000).
Repeated similar violations are relevant to an unwarrantable failure determination to the extent
that they serve to put an operator on notice that greater efforts are necessary for compliance with
a standard. Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).
The Commission has made clear that it is necessary for a judge to consider all relevant
factors, rather than relying on one to the exclusion of others. Windsor Coal Co., 21 FMSHRC at
1001; San Juan Coal Co., 29 FMSHRC 125, 129-36 (Mar. 2007) (remanding unwarrantable
determination for further analysis and findings when judge failed to analyze all factors). While
an administrative law judge may determine, in his or her discretion, that some factors are not
relevant, or may determine that some factors are much less important than other factors under the
circumstances, all of the factors must be taken into consideration and at least noted by the judge.
IO Coal Company, 31 FMSHRC 1346, 1351(Dec. 2009).
I rely on the state of the law as discussed herein in considering each issue addressed
below and whether the Orders which are alleged to be S&S and unwarrantable failure to meet the
above noted criteria.
II. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A. WEVA 2011-1028 – Order No. 8098519
On December 1, 2010, Inspector Bransom Williams (“Williams”) wrote Order No.
8098519 (Exhibit GX-2) citing a 104(g)(1) violation of 30 C.F.R. § 48.6(b) stating:
Eight miners3 working in the mine have not received experienced miner training
prior to beginning work duties inside the mine. The operator is hereby ordered to
withdraw the eight miners from the mine until they have received the required
training. The Federal Mine Safety and Health Act of 1977 declares that an
untrained miner is a hazard to himself and to others.
The Order was designated as S&S and highly likely to cause injuries that could reasonably be
expected to be fatal for eight miners. Id. The inspector designated the operator’s negligence as
3

The eight miners were Carl Johnson, Rick Sizemore, Earl Click, Charles Allen Jr.,
James Rose, Jesse Milam, Garnie Estep and Mike Turner.

37 FMSHRC Page 250

high, and a penalty of $14,743.00 was assessed. Id. The Order was terminated the next day and
the miners were allowed to return to work when they all received the required experienced miner
training. Id.
The order was issued pursuant to section 104(g)(1) of the Mine Act, which states that an
inspector who finds “a miner who has not received the requisite safety training … shall issue an
order under this section which declares such miner to be a hazard to himself and to others, and
requiring that such miner be immediately withdrawn from … the mine, and be prohibited from
entering such mine until … such miner has received the training required by … the Act.” 30
U.S.C. § 814.
30 C.F.R. §48.6 entitled “Experienced miner training” applies, in pertinent part, to
experienced miners newly employed by the operator. Section (b) states: “Experienced miners
must complete the training prescribed in this section before beginning work duties….”
(emphasis supplied). The section continues by specifying in some detail all the areas that must be
covered in this training. In brief, the training must include: (1) Introduction to work environment;
(2) Mandatory health and safety standards; (3) Authority and responsibility of supervisors and
miners’ representatives; (4) Entering and leaving the mine and communications; (5) Mine map,
escapeways, emergency evacuation and barricading; (6) Roof or ground control and ventilation
plans; (7) Hazard recognition; (8) Prevention of accidents; (9) Emergency medical problems;
(10) Health; (11) Health and safety aspects of the tasks to which the experienced miner is
assigned; (12) Self-rescue and respiratory devices, including hands-on training; and (13) Such
other courses required by the District Manager based on circumstances and conditions at the
mine.
At the time of the hearing, Inspector Williams has approximately sixteen years of
experience in the mining industry, where he began as a mechanic in 1998. Tr. 15. He began
working for MSHA as an underground inspector in 2007. Tr. 15-16. On December 1, 2010,
Williams was at Respondent’s No. 2 Mine for a general inspection. Tr. 16. As part of this
inspection, he regularly inspects training records. Tr. 18. The day prior, Williams had issued a
citation after witnessing a miner exit the mine without a multi-gas detector. Tr. 34. This further
prompted Williams to check the training records at the Mine. According to Respondent’s
records, Mine Foreman Charley Allen (“Allen”) had conducted the training for the eight newly
hired, but experienced miners. Tr. 17-18; Exhibit GX-2.
When he was inspecting the training records, Williams did not know that Allen was not a
certified instructor; however, when he contacted Educational Field Services, he was informed of
this fact. Tr. 18, 35. Williams wrote Order No. 8098519 for a violation of 30 C.F.R. § 48.6(b)
because he knew from previous contact that the miners in question were experienced rather than
new to the industry. Tr. 16, 20; Exhibit GX-2. However, given that the miners were newly hired
at this mine, his concern was whether the miners had received training in all the various areas
required by the standard, as the amount of information is quite broad in scope. According to
Williams, the training covers, inter alia, methane issues, the location of self-contained selfrescuers (“SCSRs”),4 the location of escapeways, roof condition issues and information about
ventilation controls. Tr. 21-23. In addition, he was concerned that the records reflected that the
4

SCSRs provide oxygen for miners in the event that escape is necessary. Tr. 22-23.

37 FMSHRC Page 251

training that had been provided was conducted in a single day, which he asserted would be
“impossible.” Tr. 19-20. Williams testified that, when Allen was questioned, he admitted that he
did not follow the approved training plan; rather, he only “went over hazards…at the mine”. Tr.
21. Finally, Williams testified that if the required newly hired experienced training was
conducted and the MSHA form completed correctly, only Section 2 of the form would be
completed and there would be no writing in Section 5 of the form. Tr. 68.
Williams designated the Order as S&S and highly likely to result in fatal injuries to eight
miners. Tr. 24-25. He testified that the Act states that an untrained miner is a hazard to himself as
well as other miners. Tr. 24. If a fire were caused by methane gas, miners could suffer from
smoke inhalation. Tr. 24. In the past, Williams testified that untrained miners have gotten lost
because they did not know where the escapeways were located. Tr. 24, 59. Further, they have
been injured because they did not know where SCSR caches were located or how to operate
them. Tr. 24, 60. Williams found that the operator was highly negligent because it did not follow
its required training plan even though certified trainers were available. Tr. 27. In fact, one such
trainer, a mine foreman, worked at the mine adjacent to the No. 2 Mine. Tr. 27. Williams further
stated that Allen’s belief that he was a certified instructor was not a mitigating factor because
Allen should have known that he was not a certified trainer. Tr. 62.
At the time of the hearing, Charles Allen, Sr., has more than thirty-seven years in the
mining industry, thirty-five years of which has been spent in underground coal mines. Tr. 88.
During this time, he has held various jobs and has been a certified foreman since 1982. Tr. 88. At
the time of the violation, he was the mine foreman; however, he resigned his position a few days
before the hearing. Tr. 88-89. As mine foreman, his duties included examining the areas prior to
the start of the shift and assisting in production. Tr. 89. Respondent operates another mine in
very close proximity to the instant mine, and Mine Superintendent Ratliff oversaw both of these
mines and had more authority than Allen. Tr. 90-91.
Allen testified that he realized that newly employed, experienced miner training had not
been completed for the eight miners listed in the instant citation after the citation had been issued
for the multi-gas detector on the previous day. Tr. 100. At that point, he made the decision to
train the men “the best [he] could” by instructing the miners on rescuers, lifelines, rescue
chambers, intakes, primary escapeways, secondary escapeways, returns and the general layout of
the mine. Tr. 100-101. Compared to other mines in the area, he stated that the ventilation plan,
roof control plan and rescue procedures were basically similar; and, they were adopted from the
plans developed by the former owner of the Mine. Tr. 97-99. Allen did admit that although
similar, the location of SCSR caches and escapeways would obviously vary depending upon the
mine. Tr. 126-127. He also acknowledged that conditions in a mine can vary greatly depending
upon the mining progression, the weather conditions, the particular miners working the shift, the
materials being used and the equipment being used. Tr. 129. Although he testified that he did not
know of any methane ever being found, there was a section of the mine that was sealed off and
the air and gases could only be measured at the seals. Tr. 123, 136.
Allen also testified that because he had not yet been certified, he was confused as to the
procedure for filling out the training forms. Tr. 101-102, 107. (Allen subsequently became
certified in March 2011. Tr. 92.) Although Allen had only given task training, he also checked

37 FMSHRC Page 252

the box for experienced miner training because the miners were experienced. Tr. 101. Allen
maintained throughout his testimony that he believed that he was doing the right thing. Tr. 102.
At the time, he testified that he did not know that the instructor had to be certified to conduct the
eight hour refresher training. Tr. 103. James Rose (“Rose”) was the miner who was cited for not
carrying a multi-gas detector. Tr. 79-80. He opined that Allen’s training was probably the best
that he had ever received because of Allen’s strict adherence to safety standards. Tr. 87.
Although there were eight newly employed, experienced miners at the Mine, Allen
testified that on November 30, he trained the four day shift miners and that the night shift mine
foreman, Woodrow Williamson (“Williamson”), who was a certified instructor, trained the other
four night shift miners. Tr. 38-39, 104-105. However, Allen confirmed that there were roughly
ten miners working on each shift. Tr. 125-126. Allen stated that he had completed the 5000-23
form5 before, but it had only been for task and equipment training. Tr. 109.
Respondent submitted various training records for the eight employees into evidence.
However, none of these records demonstrate that Respondent fulfilled its obligation to train
newly hired experienced miners. It is evident from looking at most of these exhibits, namely
Exhibit RX-1 (James Rose), Exhibit RX-3 (Charles Allen, Jr.) Exhibit RX-5 (Jesse Milam),
Exhibit RX-6 (Earl Click), Exhibit RX-7 (Ricky Sizemore), Exhibit RX-9 (Carl Johnson) and
Exhibit RX-10 (Garnie Estep), that the training all occurred on November 30, 2010, and that the
training given on that date only concerned mine gases and the use of multi-gas detectors.6 This
training was given as a result of the citation written on that date when miner Rose was observed
exiting the mine without a multi-gas detector. Respondent also introduced into evidence three
additional training forms for Rose (Exhibit RX-2), Allen Jr. (Exhibit RX-4) and Turner (Exhibit
RX-8) to show that these miners received training. However these forms show that the miners
received training in specific tasks on June 15, 2010 (Rose and Allen Jr) and on February 24,
2010 (Turner). And for two of the three miners this training was given by Allen Sr. who was not
a certified instructor at the time and the record for Turner is training at another mine. Tr. 44. The
record does not reflect any further training received by the eight named miners nor does it reflect
when the eight miners were hired. Needless to say, Respondent has not demonstrated, either by
documentation or by testimony, that the eight named miners ever received the newly employed,
experienced miner training required by 30 C.F.R. §48.6(b).
I find that there has very clearly been a violation of 30 C.F.R. §48.6(b). To be in
compliance, Respondent must be able to provide training forms showing that each of the newly
employed, experienced miners received the required training. Not only could these not be
provided, but the documentation provided totally fails to demonstrate the type of training
required by30 C.F.R. §48.6(b). The training that was given was either in response to a citation
issued for a miner not having a multi-gas detector on November 30, 2010, or for specific tasks.
Further, most training was undertaken by an individual who was not an MSHA certified trainer.
Allen stated at hearing that while he knew that he was not certified, he believed that he was
doing the right thing and since the incident has become certified.
5

This is the MSHA form filled out when training is complete.

6

Allen Sr. signed the MSHA training forms for Rose, Allen Jr., Milam and Click while
Williamson signed the forms for Sizemore, Johnson and Estep.

37 FMSHRC Page 253

I also find that this violation was S&S in nature. A violation of a mandatory standard has
clearly been established. Having untrained miners in a particular mine, regardless of their
experience in other mines, is a safety hazard to the untrained miners as well as those miners
working with them. This significantly contributes to numerous hazardous situations that could be
created by the untrained miners. None of these men had ever been previously employed at the
Respondent’s Mine. As no two mines are exactly alike, each must have its own emergency plans,
roof and rib control plans and ventilation plans, among a variety of other things which each
miner working within the mine must have knowledge of. Over the course of time, the absence of
training could lead to injury or death to each of the miners working with the one or few who
remains untrained. In light of this, I find that Order No. 8098519 is S&S. See e.g. Boart
Longyear Company, 35 FMSHRC 3680, 3699-3700 (Oct. 2013) (ALJ Barbour); Lehigh
Southwest Cement, 33 FMSHRC 3229, 3243 (Dec. 2011) (ALJ Paez); Cannelton Industries,
Incorporated, 24 FMSHRC 840, 853(Aug. 2002) (ALJ Barbour). Section 2(a) of the Mine Act
states that “the first priority and concern of all in the coal…industry must be the health and
safety of its most precious resource – the miner.” To not properly train miners, whether new or
experienced, clearly runs afoul of this basic principle.
Respondent contends that the gravity should be reduced to a non S & S violation. By
requiring an untrained miner to be immediately withdrawn on grounds that the miner constitutes
“a hazard to himself and to others,” section 104(g) of the Act essentially defines the failure to
properly train a miner as a significant and substantial violation; the untrained miner constitutes a
hazard sufficiently likely to contribute to a serious injury to himself or others as to require his
immediate removal. Boart Longyear, 35 FMSHRC at 3699-3700. I find that Respondent’s
argument that the involved miners were experienced in mining hazards from working at other
similar mines in the same area to be ungrounded and fallacious since every mine has its own
specific conditions of which miners must be aware. The best way to ensure that accidents
resulting from insufficient training do not occur is to ensure that all new hires receive the
MSHA-required training. Accordingly, the S&S designation for the Order is affirmed.
I further agree with the Secretary that this violation was the result of Respondent’s high
negligence. Allen admitted at hearing that he was not certified at the time of the violation, and in
fact, was confused as to what was required. Instead of finding out what was required or calling in
Williamson to ensure that the training was properly conducted, Allen had the men sign their
forms and continue working. Further, there is absolutely no evidence that the eight affected
miners ever received the required newly employed, experienced miner training contemplated by
30 C.F.R. §48.6(b). As such, I find that no mitigating circumstances exist and affirm the
Secretary’s high negligence designation. In light of the foregoing, Order No. 8098519 and the
assessed penalty of $14,743.00 are AFFIRMED.

37 FMSHRC Page 254

B. WEVA 2012-481
1. Order No. 8136396
On October 12, 2011, Inspector Matilda Collins (“Collins”) wrote Order No. 8136396
(Exhibit GX-4) citing a Section 104(d)(2) violation of 30 C.F.R. §75.220(a) stating:
The operator is failing to follow the approved roof control plan. As specified on
page 7 paragraph 4 the lengthwise spacing shall not exceed 4 feet. The following
entries have not been support [sic] adequately: entry #4 – 1 cut; entry #5 – 2 cuts;
entry #6 – 2 cuts; entry #7 – 2 cuts and entry #8 – 2 cuts, all exceeds the
lengthwise bolt spacing of 4 feet in distance.
This is an unwarrantable failure to comply with a mandatory standard. The
operator or his agent engaged in aggravating conduct constituting more than
ordinary negligence by not recognizing the hazard of the roof supports not being
installed according to the approved roof control plan.
This Order was designated as S&S and reasonably likely to result in fatal injuries to eight
miners. Id. The inspector designated the operator’s negligence as high, and a penalty of
$7,774.00 was assessed. Id. The Order was terminated on October 14, 2011 when affected area
was spot bolted. Id.
30 C.F.R. §75.220(a) entitled “Roof control plan” states, in pertinent part, “Each mine
operator shall develop and follow a roof control plan, approved by the District Manager, that is
suitable to the prevailing geological conditions, and the mining system to be used at the mine.”
30 C.F.R. §75.220(a)(1).
Collins graduated from Virginia Polytechnic Institute and State University in 1980 with a
degree in Mining Engineering. Tr. 143. She worked at a mine owned by her father where she
roof bolted and assisted with plan submissions. Tr. 144-145. After twenty years out of the
industry, she began working for MSHA in 2008 as a coal mine inspector. Tr. 146. She is
currently the supervisor of Roof Control and Impalements. Tr. 147.
On October 12, 2011, Collins was at the Mine for an E01 regular inspection. Tr. 147.
While conducting a danger run, she noticed that the roof bolts were irregularly spaced without a
pattern. Tr. 149. According to Respondent’s roof control plan, roof bolts were to be inserted in a
pattern of five feet wide and four feet deep. Tr. 149,151; Exhibit GX-12. While she and Section
Boss Josh Collis did not measure every single bolt in the entries, they found several bolts that
were not only inserted without a pattern but also exceeded the maximum spacing in the roof
control plan. Tr. 189-191. Her notes taken at the time of the inspection, at Exhibit GX-5, indicate
that the bolt spacing was five feet by five feet (instead of the plan required four feet by five feet)
in entries 4 and 5. Her notes also reflect problems in entries 6, 7 and 8, where instead of the
required four foot spacing, the spacing was 52-60 inches. This irregular pattern existed in Entries
4-8. Tr. 152-153. The pattern was so irregular that Collins could not determine the number of
rows that existed. Tr. 205.

37 FMSHRC Page 255

Inspector Collins explained that the purpose of roof bolting in a sandstone top7 was to
form a beam that distributes the weight of the roof onto the pillars, preventing collapse. Tr. 157158. Stress and water could cause the roof to collapse, and the irregular pattern could contribute
to this by creating an insufficient beam. Tr. 158. If the roof collapsed on the miners working
below, Collins testified that it would be fatal considering that a cubic foot of sandstone weighs
approximately 165 pounds. Tr. 163. She believed that all eight miners working at the face would
be affected because the crews often congregate to receive instructions. Tr. 159. She designated
Order No. 8136396 as high negligence because she believed it was extensive and had lasted for
about nine cuts, which constituted more than one shift. Tr. 159, 222. Collins testified that the
obvious lack of pattern should have been noticed during a preshift or onshift examination. Tr.
159-160. The Order was terminated by spot bolting to bring the spacing into compliance. Tr.
164.
Respondent presented two witnesses to testify about this Order: Jeff Bennett and Charles
Allen Sr. It did not call Josh Collis, the evening shift section foreman who accompanied the
inspector, or offer any reason why he was not presented.
Jeff Bennett (“Bennett”) has been a miner for more than six years and testified for
Respondent at the hearing. Tr. 265. After the issuance of the Order on the evening shift, Bennett
was assigned on the following day shift to measure the bolts indicated. Tr. 272. He admitted that
there were a few bolts beyond the required measurements, but not many according to the method
he used for measuring. Tr. 273. He assumed a grid and measured distances according to this
artificial line, rather than measuring on an angle. Tr. 273, 285. This is how he was trained to
measure by Respondent. Tr. 286. He testified that the bolts along the rib line were “pretty
straight” but “the ones that were wide – longwise was mainly in the middle.” Tr. 274. He further
admitted that the first row of bolts in front of the face should be straight, and a pattern should be
discernable even if misaligned. Tr. 291-292.
Allen testified that he conducted the preshift and onshift examinations after the bolting
was complete. Tr. 304. While he did not measure every single bolt, the bolts that were measured
were within the range of compliance. Tr. 306. He further explained that fully grouted resin bolts
are used in the Mine. Tr. 307. The bolts bond layers of the strata together. Tr. 211. If cracks
exist, the resin seeps in, fills them, and keeps everything bonded. Tr. 211, 307-308. If glue does
not seep out of the bolt hole, it indicates that the resin has seeped into a crack. Tr. 309. In those
situations, Allen testified that a test hole will be drilled adjacent to the original hole to investigate
the top. Tr. 309.
As noted above Respondent did not call Josh Collis, the foreman who accompanied the
inspector and helped her measure the distances between the irregularly spaced bolts. It is well
established that if a witness has knowledge of a material issue and is within a party’s control, an
inference may be drawn that the witness’ testimony would have been adverse to the party failing
to call him. 75B Am Jur 2d § 1315; Wilson v. Merrell Dow Pharmaceuticals, Inc., 893 F.2d
1149, 1150 (10th Cir. 1990). The Commission has long approved of its judges utilizing this rule.
Eagle Energy, Inc., 23 FMSHRC 1107, 1120 (2001). In the instant case, the Respondent failed to
call the witness who made the measurements with the inspector and who therefore was in the
7

When compared to other forms of top, sandstone is considered to be good top. Tr. 211.

37 FMSHRC Page 256

best position to support or contradict the inspector’s testimony, despite that witness being in the
Respondent’s control. Consequently I draw the inference that if Collis had testified, his
testimony would have been unfavorable to Respondent and would have supported inspector
Collins’ testimony that the roof bolts were not in the pattern or spacing required by the roof
control plan.
I find that Respondent violated 30 C.F.R. § 75.220(a) when it failed to bolt within four
feet of the last bolt as contemplated and approved in its roof control plan. Collins credibly
testified that most of the bolts that she and Collis measured were beyond the requirement, some
by as much as 12 inches. Respondent essentially argues that a violation did not exist according to
its own measurements. The inherent flaw in its method, however, is that it measured to where the
bolt should be, not to where it was. If this were an accepted method of measurement, it would
create the absurd result of operators essentially bolting anywhere and measuring to where the
bolt should be to maintain compliance. It is also significant that no witness testified that the
bolting met the pattern established by the roof control plan.
I further conclude that the violation is S&S. Although Collins and Bennett did not see any
adverse roof or rib conditions at that time, such conditions could reasonably occur over the
course of continued mining as weight was insufficiently distributed over long distances. This is
especially the case where the deficient spacing of the bolts -- leaving longer bolt spacing than
required by the roof control plan -- is in the middle of the entry and not along the ribs, as testified
to by Respondent witness Bennett. Tr. 274. At hearing, the testimony established that some areas
of the mine do have roof problems. Tr. 260. The irregular bolting contributes to the hazard of a
roof collapse. Given that this is a working section of the mine, it is reasonably likely that miners
would be in the area. Collins testified that the miners also congregate in the entries to receive
directions for the day. If a portion of the roof were to collapse, miners could suffer fatal injuries
from being crushed or struck by falling rock. Based on the evidence and testimony at hearing, I
affirm the Secretary’s S&S designation.
I further find that the violation was the result of Respondent’s high negligence. Based on
Collins’ testimony that she immediately noticed it, the violation was obvious. Further, it existed
in five entries. Although Respondent offers evidence that a single-headed roof bolter makes it
difficult to produce straight lines, its roof control plan was specifically created with the use of a
single headed bolter in mind. Tr. 258. Moreover, the entries cited in the Order were the only
entries affected by the unusual bolt pattern. Clearly, Respondent did not have trouble following
the roof control plan in other areas of the mine. In light of the foregoing, Order No. 8136396 and
its assessed penalty of $7,774.00 are AFFIRMED.
2. Order No. 8136397
Also on October 12, 2011, Collins wrote Order No. 8136397 (Exhibit GX-6) citing a
Section 104(d)(2) violation of 30 C.F.R. §75.211(c) stating:
The operator has created a hazardous condition when the boom hole was put in
for the belt drive. The operator failed to recognize the hazardous roof condition
and correct the condition before persons were assigned to work in this area. The

37 FMSHRC Page 257

boom hole which is located in the adjacent intersection from spad #637 in #6
entry has a transition of up to 36 inches, consisting of fractured sandstone with
open spaces of up to 2 inches between the layers. The operator used 42 inch resin
bolts to hold the top. This left only 6 inches to be installed in the solid roof.
This is an unwarrantable failure to comply with a mandatory standard. The
operator or this agent engaged in aggravating conduct constituting more than
ordinary negligence by not recognizing the hazards of transition areas where
persons work or travel.
The Order was designated as S&S and reasonably likely to result in fatal injuries to six miners.
Id. The inspector designated the operator’s negligence as high, and a penalty of $5,645.00 was
assessed. Id. The Order was terminated on October 14, 2012, when the area was rebolted with 72
inch super bolts. Id.
30 C.F.R. §75.211(c) entitled “Roof testing and scaling” provides:
When a hazardous roof, face, or rib condition is detected, the condition shall be
corrected before there is any other work or travel in the affected area. If the
affected area is left unattended, each entrance to the area shall be posted with a
readily visible warning, or a physical barrier shall be installed to impede travel
into the area.
A boom hole in a mine is a hole shot out with explosives to create a hole in the roof,
which provides more room for an operator to install a new belt line. Tr. 166. It is dome shaped at
the top where it has been blasted out and is square at the bottom where it intersects the roof. Tr.
172. When Collins arrived at the location of the boom hole in question, she testified that a crew
of five men8 was working under it, and that one side of the hole had multiple fractures in the
brow9, the largest of which was approximately two inches wide and at least two inches deep. Tr.
167-168, 178. She further testified that the brow was separating from the permanent roof in one
approach. Tr. 167-168, 238. It was supported by 42 inch roof bolts, but Collins was concerned
that the existence of the rock only allowed for about six inches of the bolt to be inserted into the
permanent roof. Tr. 171; Exhibit GX-6. Although Respondent had scoped10 the area around the
crack, it could not view the specific location and that was what concerned Collins. Tr. 246. In the
end, Collins was not convinced that the roof was adequately supported. Tr. 248-249. In her
8

Collins admitted that although she listed six miners as being affected, all six of them
could not fit in the boom hole at the same time. Tr. 257.
9

There is some dispute as to whether this was actually a brow. Allen testified that it was
not; rather, it was simply a rock that could not be scaled down. Tr. 318. Therefore, the miners
bolted it. Tr. 317-318. For the purpose of this decision, the distinction is not important.
10

A scope is entered into a hole so that any cracks or abnormalities in the layers of the
roof can be viewed on a TV monitor. Tr. 247. The scope showed that there were two hairline
cracks. Tr. 247-248.

37 FMSHRC Page 258

opinion, she believed that the only effective way to secure the area was to install six to eight foot
super bolts through the cracks or fractures in the rock so that the rock would be better attached to
the roof. Tr. 176.
Collins’ concern was that if the rock fell, miners could be crushed. Tr. 174, 255. Further,
she feared that the loose rock would make equipment operators nervous, resulting in other
accidents. Tr. 174, 257. In her opinion, any of these scenarios could result in a fatality. Tr. 174.
The danger did not end with the belt installation either. Tr. 180. Belt men would have to maintain
it, and miners would have to clean around it directly under the brow. Tr. 180, 238-239. Collins
felt sure that the brow would eventually fall, and the water that existed in the mine would
exacerbate the separation. Tr. 181. She believed that Respondent knew about the condition
because additional roof bolts has been inserted and, in her opinion, loose top would be the only
reason to do this. Tr. 173-174, 237.
Bennett testified for Respondent and stated that he helped bolt the boom hole about two
weeks before the citation was written and at that time of the citation was being trained by
Respondent as an underground mine foreman. Tr. 265, 267, 282. Bennett testified that timbers
are set prior to blasting. Tr. 267-268. After blasting, the timbers are removed and the roof is
bolted prior to cleaning. Tr. 267-268. After cleaning, extra bolts are set. Tr. 267. According to
Bennett, a few sixty inch bolts were used, and he did notice at least one crack in the roof, but he
could not judge how big the crack was.11 Tr. 268-269, 281. Further, because some rock was
hanging that could not be scaled, he inserted extra bolts in the area of the crack. Tr. 283. All of
the bolts used in all four entrances around the boom hole were fully grouted, resin glue bolts. Tr.
269. The glue could be seen in the gaps of the brow. Tr. 270. Bennett testified that he believed
the boom hole was in good condition when work was finished on it and at the time of the citation
two weeks later. He stressed that eight foot super bolts were only inserted to abate the Order. Tr.
282, 287-288, 290, 325. He was assisted by scoop operator James Rose, who largely confirmed
all of Bennett’s observations. Tr. 297-299.
I find that the condition violated 30 C.F.R. § 75.211(c). After blasting the boom hole, a
large rock was left hanging from the roof. Instead of finding a way to scale it, Respondent
instead put up extra roof bolts. According to the regulation, Respondent either should have
corrected the condition prior to allowing miners to work in the area or barricaded the area and
posted warning signs to prevent access to the area. Because Respondent’s attempt at putting up
roof bolts did not fully correct the condition and allowed miners to work under the roof, I find
that a violation existed.
Moreover, I find that the violation was S&S. As noted, Respondent did not fully comply
with the cited regulation. Inspector Collins credibly testified that on one approach to the boom
hole she observed that the brow was separating from the roof and she also observed multiple
fractures in the brow, the largest of which was two inches wide and at least two inches deep.
Respondent witness Bennett was uncertain as to large the crack was. These cracks or separations
from the roof contributed to the hazard of a rock fall, which would be reasonably like to cause a
11

Bennett testified that when a crack is hit, the roof bolt will “jump” when being pushed.
Tr. 269. If, by contrast, the top is only soft, the roof bolt will move more quickly than it does in
regular top. Tr. 269.

37 FMSHRC Page 259

serious if not fatal injury to any employees working under the boom hole. This is an area where
miners work for extended periods of time performing cleaning and maintenance tasks. There is
also water in the mine which could exacerbate the possibility of a roof collapse. The boom hole
area should have been bolted with the longer super bolts to assure that the brow or area around
the boom hole was stable and did not show visible cracks or separations.
Although the Secretary asserts that the Respondent’s negligence is high, I find that its
negligence is low. Thus, the record reveals that Respondent inserted additional bolts immediately
after blasting to ensure that the rock separating from the roof did occur. Bennett testified that a
few sixty inch bolts were used, but most of the bolts were forty-two inches. He also testified that
extra bolts were used because to insure that the area was safe. Respondent also “scoped” the area
to see if it could determine the extent of the crack or separation. Collins also testified that
Respondent would only have inserted extra bolts if loose top existed. Respondent realized that
the rock could not be scaled down by the measures it took, so it took some additional steps in an
effort to prevent injury. Therefore, I find that there are mitigating circumstances and reduce the
negligence to low. I also find that the violation was not an unwarrantable failure under Section
104(d) of the Act as Respondent’s conduct was not “aggravated” or reckless. Respondent did
recognize the hazard and took steps to remedy the danger. Although the inspector believed that
further steps (longer super bolts) were necessary to abate the violation, the record shows that
Respondent did act.
Based on the above, Order No. 8136397 is MODIFIED from a 104(d) order to a 104(a)
S&S, low negligence citation. I assess a penalty of $1,500.00 for this violation.
3. WEVA 2012-559
1. Order No. 8143332
On September 26, 2012, Inspector John Stone (“Stone”) wrote Order No. 8143332
(Exhibit GX-8) citing a Section 104(d)(2) violation of 30 C.F.R. §75.360(a)(1) stating:
A preshift exam was not performed in the intake airway were [sic] miners were
working at the mine. Miners were found rock dusting and operating equipment
from the section (life chamber location four breaks outby the LOCC) to the
surface in this airway. These miners were not certified and the certified foreman
at the mine had not traveled this area. The [sic] is an unwarrantable failure to
comply with a mandatory standard.
Standard 75.36(a)(1) was cited 1 time in two years at mine 4606843 (1 to the
operator, 0 to a contractor).
The Order was designated as S&S and reasonably likely to result in permanently disabling
injuries to three miners. Id. The inspector designated the operator’s negligence as high, and a
penalty of $4,000.00 was assessed. Id. The Order was terminated the next day when all members
of management were instructed on the importance of conducting examinations where miners
would be working. Id.

37 FMSHRC Page 260

30 C.F.R. §75.360(a)(1) entitled “Preshift examination at fixed intervals” provides:
Except as provided in paragraph (a)(2) of this section, a certified person
designated by the operator must make a preshift examination within 3 hours
preceding the beginning of any 8-hour interval during which any person is
scheduled to work underground. No person other than certified examiners may
enter or remain in any underground area unless a preshift examination has been
completed for the established 8-hour interval. The operator must establish 8-hour
intervals of time subject to the required preshift examinations.
Inspector Stone has worked in the mining industry for more than thirty years and has
done various jobs in underground mines and cleaning plants throughout that time. Tr. 333. He
began with MSHA in March 2007, and his current position is a CMI, or electrical specialist, as
well as a collateral Conference Litigation Representative. Tr. 334. He was at the Mine on
September 26, 2011, for a regular E01 inspection. Tr. 334-335. While entering the Mine with
Foreman Mike Turner, Stone noticed a scoop operator exiting the intake. Tr. 335, 337. Stone did
not recall seeing anything in the preshift examination book concerning the intake, so he asked
foreman Allen about the situation and Allen admitted that a preshift examination had not been
conducted in the intake. Tr. 335-336, 390, 492, Exhibit 9. Stone observed other miners rock
dusting in the intake. Tr. 337. One of the miners from the intake explained to Stone that they
were directed to continue doing what had been started either that day or a few days prior, and
there was rock dust located in the intake, not at the belt line. Tr. 338, 379. Therefore, Stone
concluded that management knew that the men would be in that location. Tr. 338.
Stone testified that the purpose of a preshift examination is to check an area of a mine for
hazards, proper air quality and quantity, and proper air flow anywhere that miners travel or are
scheduled to work. Tr. 339, 367, 371. If miners need to work outside of the initial area, a
supplemental exam can be conducted. Tr. 369. In the absence of the examinations, miners could
be exposed “to all sorts of different hazards.” Tr. 340. Therefore, Stone presumed that the three
miners in the intake at the time of issuance would be exposed to permanently disabling injuries.
Tr. 340, 342. He further designated the Order as a violation of Section 104(d) of the Act and high
negligence because there were no mitigating circumstances. Tr. 343. Stone believed that
management, specifically Allen, knew what work was being done in the intake and knew that the
miners would continue rock dusting once they finished their work at the belt. Tr. 390-391.
Allen testified that one miner usually works on the belt, but three had been assigned on
this particular day because Allen was concerned that Respondent would be cited for
accumulations if one miner got behind on the work. Tr. 484-485. If the miners had been needed
on a different section, Allen stated that he would have conducted a supplemental examination.
Tr. 487. However, he testified that the miners proceeded to the intake without management’s
knowledge, and he was not aware that there was rock dust in the intake. Tr. 489, 494, 515-516.
Further, the scoop should have come out of the mine through the secondary escapeway rather
than the intake. Tr. 489. Because a violation was issued, Allen talked to the men “harshly”
concerning their behavior. Tr. 494-495.

37 FMSHRC Page 261

I find that Respondent violated 30 C.F.R. § 75.360(a)(1) by allowing miners to work in
an area of the mine where no preshift examination had been conducted. Stone found three miners
working and the scoop operator exiting the intake, which Respondent admits had not been
examined prior to the start of the shift. It argues that the men were not scheduled to work in the
area and took it upon themselves to enter the intake to rock dust. However, Stone credibly
testified that the miners’ instructions were to continue the work that they had been doing in the
prior days. This would have included rock dusting the intake. Further, it is telling that no rock
dust was located at the belt. When the men were finished cleaning the belt, they would have
logically progressed to an area of the Mine where they were previously working and contained
the materials that were needed. If Respondent wanted the men to clean the belt and wait for
further instruction, it should have made this clear. In light of this, I find that Respondent violated
30 C.F.R. § 75.360(a)(1) when it did not conduct a preshift examination in the intake.
I further find that the violation was S&S. The requirement of a preshift examination “is of
fundamental importance in assuring a safe working environment underground.” Buck Creek
Coal, 17 FMSHRC 8, 15 (Jan. 1995). Preshift examinations are intended to “prevent hazardous
conditions from developing.” Enlow Fork Mining Company, 19 FMSHRC 5, 15 (Jan. 1997).
Failing to conduct the preshift examination contributes to an assortment of hazards ranging from
the reasonable likelihood of minor injuries to death. In its brief, Respondent argues that the
intake is not a normal working area and, therefore, is not required to be examined daily if work is
not scheduled; rather, it is subject to a weekly examination. RPHB, page 14. This exacerbates the
violation in that it increases the likelihood that the intake had not been examined for several
shifts. The miners working on that day could have walked into any number of hazards. This
could have reasonably led to the serious injury or death of any of the three miners working there.
Finally, I find that the violation was the result of Respondent’s high negligence.
Respondent argues that no miners were scheduled to work in the intake and, therefore,
management had no knowledge that they would take matters into their own hands and work in an
unexamined area of the mine. However, I find that Respondent did schedule miners to work in
the intake. The miners’ instructions were to “continue what work they had started either the day
or couple shifts before in the intake airway.” Tr. 338. The miners continued to tell Stone that
they were to rock dust and clean the belt and finish rock dusting the intake. Tr. 338. Regardless
of whether Respondent specifically meant for the workers to work in the intake, it gave them
directions in such a way as to suggest that this was part of their tasks. Moreover, Respondent
supplied the necessary materials in the intake, not on the belt. That rock dust was not to arrive
until later in the day. Tr. 515-516. While Allen testified that he was unaware that there was rock
dust in the intake, I find this unlikely because work was being conducted in the intake, at the
very least, a few days prior. Given the evidence and testimony at hearing, I find that Respondent
knew the miners would eventually progress to the intake and, nonetheless failed to conduct a
preshift examination. I affirm the Secretary’s high negligence designation. In light of all of the
foregoing, Order No. 8143332 and its assessed penalty of $4,000.00 are AFFIRMED.

37 FMSHRC Page 262

2. Order No. 814333312
Also on September 26, 2012, Inspector Stone wrote Order No. 8143333 (Exhibit GX-10)
citing a Section 104(d)(2) violation of 30 C.F.R. §75.364(a) stating:
There was no weekly exam performed at the #1 and #2 seals located in the return
airway at the mine. When these two seals were checked there were no dates, times
or initials on the date board at these locations to indicate that an exam had been
performed in the last 7 days. These two seals (out of nine in this set) were
examined with the weekly examiner. Upon arriving at the seal locations the
examiner was instructed by the authorized representative not to remove DTI’s13
before inspection. The examiner removed DTI’s on the date board placed at these
two seals before it could be determined that a weekly examination had been
performed. No other DTI’s were found and evidence indicated than [sic] no
weekly exam was performed. This is an unwarrantable failure to comply with a
mandatory standard.
This Order was designated S&S and reasonably likely to result in permanently disabling injuries
to one miner. Id. The inspector designated the operator’s negligence as high, and a penalty of
$4,000.00 was assessed. Id. The Order was terminated the same day when an examination was
performed and DTIs were placed on the date boards. Id. Management was further placed on
notice that increased enforcement would result for future violations. Id.
30 C.F.R. §75.364(a) entitled “Weekly examination,” and subtitled “Worked-out areas,”
states:
At least every 7 days, a certified person shall examine unsealed worked-out areas
where no pillars have been recovered by traveling to the area of deepest
penetration; measuring methane and oxygen concentrations and air quantities and
making tests to determine if the area is moving in the proper direction in the area.
The locations of measurement points where tests and measurements will be
performed shall be in included in the mine ventilation plan and shall be adequate
in number and location to assure ventilation and air quality in the area. Air
quantity measurements shall also be made where the air enters and leaves the
worked-out area. An alternative method of evaluating the ventilation in the area
may be approved in the ventilation plan.

12

On November 12, 2013, I granted the Secretary’s Motion to amend this Order and to
plead in the alternative on the basis that the facts also support a violation of mandatory standard
30 C.F.R. §75.364(g), which provides that “The person making the weekly examination shall
certify by initials , date, and the time that the examination was made.”
13

DTI’s refers to dates, time and initials. This information provides inspectors with a
history of operator examinations.

37 FMSHRC Page 263

During the same regular inspection, Stone and foreman Mike Turner traveled to two
seals, which were remotely located from the others and were the most outby seals at the Mine.14
Tr. 343. The purpose of these two seals was to seal the newer section of the Mine from an older,
worked-out section. Tr. 345. These two seals were accessed by crawling several hundred feet in
muddy wet conditions to the seals; crawling was necessary as the top of the Mine at that point is
only 26-28 inches with bad roof making access difficult. Tr. 347, Exhibit GX-11. As they
approached the first seal, Turner, who was ahead of Stone, used his glove and hand to wipe the
DTIs off the chalk board located near the seal before Stone could read it. Tr. 344, 355. At that
point, Stone told Turner that the DTIs needed to be confirmed and when they got to the second
seal, Turner should not remove the dates.15 Tr. 344, 358, Exhibit GX-11. However, when they
arrived at the second seal, Turner again erased the DTIs. Tr. 344. In Stone’s opinion, Turner’s
erasures were done to conceal evidence that the seals had not been examined in the last seven
days as required by the regulation. Tr. 344, Exhibit GX-11.
Stone designated the Order as reasonably likely because the seals were constructed from
Omega blocks, similar to foam insulation.16 Tr. 353. Although operators will often add strength
to the seals using plaster, they can be penetrated by a pen or screwdriver. Tr. 353-354. Because
dangerous gases accumulate behind the seals, Stone was concerned that these gases would
migrate into the working section if the seal was damaged. Tr. 360. This could lead to an ignition
or explosion, or it could expose miners to low oxygen levels. Tr. 360-361. Because the area is
only subject to a weekly examination, the only miner affected would be the examiner. Tr. 361.
Stone designated Respondent’s negligence as high because Turner erased the second DTI
board after being instructed not to erase the DTIs as the dates needed to be confirmed. Tr. 344,
358. Turner never asked Stone to repeat or clarify what had been said. Tr. 359. He further
testified that Turner was behaving in a nervous manner, and the area itself did not appear to be
well traveled. Tr. 344, 350. Although the path was well worn, there was nothing to suggest that
the requirement was actually being met, such as fresh boot or knee pad marks in the return. Tr.
350-351. Although the examinations were recorded in the books, Stone discounted them based
on Turner’s conduct and because there was no other evidence that the examination had, in fact,
been conducted. Tr. 451-452, 456; Exhibits. RX-13-15.
To defend this Order, Respondent presented the testimony of foreman Allen and miner
Bennett. Mr. Turner did not testify. Bennett testified that on September 14 and 21 he
accompanied foreman Allen to examine the #1 and #2 seals as part of his training as a foreman.
Tr. 477, 479, 481. Bennett stated that he observed Allen putting the date, time and his initials on
14

Stone testified that the other seals were inspected without issue. Tr. 346.

15

Stone testified that he believes he told Turner twice not to remove the DTIs. Tr. 344,

358.
16

The State of West Virginia considers these seals to be high risk and requires operators
to inspect them daily. Tr. 350. Although Stone was unclear of the exact circumstances, he
testified that this is required due to an explosion in a worked-out area in which the Omega seals
did not hold. Tr. 354, 497, 501.

37 FMSHRC Page 264

the date board and that Allen instructed him on how to examine seals. Tr. 478. He said further
that Allen told him it was a felony to sign the examination forms if the examination had not been
performed. Tr. 479, 482. Finally, he testified that he did not pay any attention to the DTIs that
were on the date board. Tr. 480-481.
In his testimony, Allen confirmed that he and foreman trainee Bennett had gone to the #1
and #2 seals on September 14 and 21 to examine the seals and that he recorded the DTIs on those
dates. Tr.499-504. Allen testified that after the Order was written, he asked Mike Turner why he
erased the DTIs. Turner’s only reply was “he couldn’t hear good.” Tr. 510-511. On crossexamination, Allen stated that during his deposition about the Order, when he questioned Turner,
Turner admitted erasing the DTIs and that Stone had told him not to erase the date board. Allen
also admitted that during the deposition he did not say anything about Turner’s poor hearing. Tr.
523.
I find that Respondent violated 30 C.F.R. § 75.364(a) as set forth in the Order inasmuch
as Respondent could not establish it examined Seals #1 and #2. This was because foreman
Turner erased the DTIs on the date board before the inspector could verify their presence, despite
being admonished by the inspector in a timely manner to not erase the DTIs at the second seal. I
do not credit Allen’s assertion that Turner told him he did not hear well or was hard of hearing.17
Further, Allen testified that Turner admitted to erasing the boards and had no further explanation
for doing so. Tr. 511, 523. It is also significant that Respondent failed to call Turner as a witness
since he was the person charged with erasing the DTIs. As with Josh Collis, noted about, I draw
an adverse inference that had Turner been called to testify his testimony would have been
unfavorable to Respondent. Since Turner was a certified examiner and foreman, he should have
known that failing to keep records at the seals was a violation. Further, I agree with Stone’s
credible testimony that there would have been no reason to erase the boards unless Respondent
was attempting to hide the fact that the examinations had not been conducted. Turner’s
unexplained conduct certainly supports this conclusion. Likewise, Turner’s nervous behavior and
failure to ask for clarification are telling and support Stone’s testimony. Respondent argues that
regardless of the erasure of the DTI boards, the examination books clearly show that the seals
were examined daily and, therefore, weekly. Allen and Bennett testified that they had, in fact,
examined the seals on September 14 and 21, 2011 and put the DTIs on the date board. Tr. 477478, 480-481.18 If this were the case, it begs the question of why Turner would erase the boards.
Further, the examination book records (Respondent Exhibits 13, 14 and 15) are only a record of
the examination, and do not establish by themselves that the examination was in fact conducted.
In light of all the facts and evidence, I find that Respondent violated 30 C.F.R. § 75.364(a).
I also find that this violation is S&S. Respondent’s conduct here, through its agent
Turner, prevented the inspector from determining if the required examinations of Seals #1 and #2
17

In this regard I note that the hard of hearing “defense” was not raised during the
Secretary’s deposition of Allen.
18

Respondent apparently argues that there was no violation here since foreman Allen had
correctly examined the two seals on September 21, so that the next weekly examination was not
due until September 28. This argument fails as the violation here is the concealment by erasure
of all DTIs on the date of inspection (September 26).

37 FMSHRC Page 265

had been completed. If there was not compliance with the regulation, this would have
contributed to the likelihood of a serious injury. Because the seals are constructed of Omega
blocks, they are more easily damaged or penetrated over time. Although MSHA does not so
require, the State of West Virginia has labeled them high risk and requires them to be examined
daily. This is particularly important because the worked-out areas behind the seals can contain
dangerous gases, as well as low quality air. Any damage to the seals contributes to the hazard of
noxious or flammable gases entering the working section. If this were to occur, at the very least,
the examiner risks serious injury or death resulting from an ignition, an explosion or breathing
poor quality air. As such, I conclude that the violation is S&S.
I further find that the violation was the result of Respondent’s high negligence. Stone
testified that the area was quiet, Turner was crawling in close proximity to him and Stone speaks
loudly due to some loss of hearing. Tr. 357-358. Therefore, I conclude that Turner heard Stone
and deleted the DTIs in direct defiance of the instructions that he had been given. In this regard,
Stone’s testimony that he instructed Turner not to erase the second date board is uncontradicted,
and therefore fully supported by the record. Moreover, Turner was a certified foreman who
should have known the examination requirements. Because Respondent cannot present any
mitigating evidence, I affirm the Secretary’s high negligence designation. Based on the
foregoing, Order No. 8143333 is AFFIRMED and a $4,000.00 penalty is assessed.19
III. THE APPROPRIATE CIVIL PENALTIES
It is well established that Section 110(i) of the Act grants to the Commission and its
judges the authority to assess all civil penalties provided under the Act. 30 U.S.C. § 820(i). It
further directs that:
[i]n assessing civil monetary penalties, the Commission shall consider the
operator’s history of previous violations, the appropriateness of such penalty to
the size of the business of the operator charged, whether the operator was
negligent, the effect on the operator’s ability to continue in business, the gravity
of the violation, and the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of a violation.
30 U.S.C. § 820(i).
The Secretary submitted the operator’s history of past violations with no objection from
Respondent. Exhibit GX-1. There is no dispute concerning the appropriateness of the penalty to
19

As noted, the Secretary alleged an additional and/or alternative violation of 30 C.F.R. §
73.364(g) with respect to Turner’s actions in erasing the DTIs on the date board. Although the
argument is made in the Secretary’s post-hearing brief that this was an additional violation, the
Secretary does not urge any additional remedial relief. It would appear from the evidence
adduced at the hearing would support a violation of § 73.364(g) apart from the violation of
§73.364(a) found herein. However, inasmuch as no additional remedy is sought and the violation
is essentially encompassed within the violation in the original Order, I decline to make a specific
finding in this regard.

37 FMSHRC Page 266

the size of the business. Further, the parties have stipulated to the fact that the penalties as
assessed will not affect Respondent’s ability to continue in business and Respondent’s good faith
in abating the violations. As stated above, the gravity for each violation except Order No.
8136397 was affirmed as issued. Therefore, a reduction in penalty was warranted for the
reduction in gravity as to that Order. The same logic applies to the reduction in Respondent’s
negligence in Order No. 8136397. Based on the six civil penalty factors, I find that a total
penalty of $32,017.00 is warranted as follows:
Order No. 8098519 -- $14,743.00
Order No. 8136396 -- $7,774.00
Citation No. 8136397 -- $1,500.00
Order No. 8143332 -- $4,000.00
Order No. 8143333 --- $4,000.00
IV. ORDER
It is ORDERED that Order Nos.8098519, 8136396, 8143332 and 8143333 are
AFFIRMED. It is further ORDERED that Order No. 8136397 is MODIFIED from a 104(d)
order to a 104(a) citation, and that the operator’s negligence be reduced from high to low.
Respondent is ORDERED to pay the Secretary of Labor the sum of $32.017.00 within 30 days
of the date of this Decision.20 Upon receipt of payment, this case is hereby DISMISSED.

/s/ Janet G. Harner
Janet G. Harner
Administrative Law Judge

Distribution:
Michele A. Horn, Esq., Office of the Solicitor, U.S. Department of Labor, Cesar E. Chavez
Memorial Building, 1244 Speer Blvd., Denver, CO 80204
James F. Bowman, Litigation Representative, Sally Ann Coal Company, Inc., P.O. Box 99,
Midway, WV 25878

20

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

37 FMSHRC Page 267

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

February 6, 2015
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2011-0309
A.C. No. 11-02632-241358

v.

Docket No. LAKE 2011-0377
A.C. No. 11-02632-243991

TRI COUNTY COAL, LLC,
Respondent

Docket No. LAKE 2011-0937
A.C. No. 11-02632-260765
Docket No. LAKE 2011-1051
A.C. No. 11-02632-263794
Mine: Crown III Mine
DECISION AND ORDER

Appearances:

Emily L. B. Hays, Esq., Department of Labor, Office of the Solicitor,
Denver, CO, for Petitioner;
Wesley T. Campbell, Manager of Safety and Training, Farmersville, IL,
for Respondent.

Before:

Judge L. Zane Gill

This proceeding arising under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (1994) (“Mine Act” or “Act”) involves seven section 104(a) citations, 30
U.S.C. § 814(a), issued by the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) to Tri County Coal, LLC (“Tri County” or “Respondent”) at its Crown III Mine. The
parties presented testimony on April 2, 2013, in St. Louis, MO.
During the hearing parties came to an agreement on one citation.1 Additionally, the day
before the hearing, Respondent withdrew its contest on Citation No. 8433712 for Docket LAKE
2011-0937. (Tr. 8:2-5) Citations No. 8429578, 8429598, 8429536, 8419112, 8419546, 8419577,
8419579 were litigated.
1

I have approved the Secretary’s Motion in a Partial Settlement Decision dated
December 23, 2014 for Citation No. 8419329, Docket No. LAKE 2011-0309, which was placed
on stay in 2013, and Citation No. 8419572, Docket Lake 2011-1051, which was settled at the
hearing.

37 FMSHRC Page 268

Decision Summary
Citation No. 8429578 – Tri County violated § 75.630(b) of the Mine Act; its negligence
was moderate; it was reasonably likely that an injury would occur and result in permanently
disabling illness; and, the violation did not justify being designated as significant and substantial
(“S&S”). I assess a penalty of $300.00.
Citation No. 8429598 – Tri County violated § 75.630(b) of the Mine Act; its negligence
was moderate; it was reasonably likely that an injury would occur and result in permanently
disabling illness; and, the violation did not justify being designated as S&S. I assess a penalty of
$300.00.
Citation No. 8429536 – Tri County violated § 75.75.1505(b) of the Mine Act; its
negligence was high; it was reasonably likely that an injury would occur and result in a fatality;
and, the violation was properly designated as S&S. I assess a penalty of $3,144.00.
Citation No. 8419112 – Tri County violated § 75.220(a)(1) of the Mine Act; its
negligence was moderate; it was reasonably likely that an injury would occur and result in a
fatality; and, the violation was properly designated as S&S. I assess a penalty of $1,944.00.
Citation No. 8419546 – Tri County violated § 75.403 of the Mine Act; its negligence
was moderate; and, it was reasonably likely that an injury would occur and result in a fatality. I
assess a penalty of $634.00.
Citation No. 8419577 – Tri County violated § 75.604(b) of the Mine Act; its negligence
was moderate; and, it was reasonably likely that an injury would occur and result in a fatality. I
assess a penalty of $425.00.
Citation No. 8419579 – Tri County violated § 75.604(b) of the Mine Act; its negligence
was moderate; it was reasonably likely that an injury would occur and result in a fatality; and, it
was properly designated as S&S. I assess a penalty of $2,106.00.
Stipulations:
The parties submitted the following stipulations at the hearing: (Tr. 452:10 – 453:1)
1.

These dockets involve an underground coal mine known as Crown III Mine,
which is owned by Springfield Coal Company and operated by Tri County Coal,
LLC;

2.

The mine, located in Macoupin County, Illinois, MSHA ID 11-02632, is subject
to the jurisdiction of the Federal Mine Safety and Health Act of 1977, the Mine
Act, 30 U.S.C. § 801 through 965;

3.

The administrative law judge has jurisdiction over these proceedings pursuant to
Section 105 of the Mine Act. 30 U.S.C. § 815;

37 FMSHRC Page 269

4.

Respondent is an operator as defined in 3(d) of the Mine Act, 30 U.S.C. §
803(d);

5.

Respondent is engaged in mining operations in the United States and its mining
operations affect interstate commerce;

6.

Dennis Baum, Henry Trutter, Matthew Lemons, and Marsha Price are authorized
representatives of the United States Secretary of Labor and were acting in an
official capacity when the citations were issued;

7.

Respondent demonstrated good faith in abating the violations at issue in these
dockets;

8.

The proposed penalties will not affect respondent's ability to remain in business;

9.

The certified copies of the MSHA assessed violations history reflect the history
of the mine for 15 months prior to the date of issuance of the citations at issue
and may be admitted into evidence without objection by Tri County;

10.

The Secretary modifies citation 8429536 in docket LAKE-2011-377 from
unlikely to reasonably likely and from non-significant and substantial to
significant and substantial.

Basic Legal Principals
Significant and Substantial
The Secretary bears the burden of proving all elements of a citation by a preponderance
of the evidence. In re: Contests of Respirable Dust Sample Alteration Citations: Keystone
Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d 151 F.3d 1096 (D.C. Cir. 1998); Jim
Walter Resources, Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ Zielinski) (“The Secretary’s
burden is to prove the violations and related allegations, e.g., gravity and negligence, by a
preponderance of the evidence.”) Some of the citations in dispute and discussed below have
been designated by the Secretary as S&S. A violation is properly designated S&S “if, based
upon the particular facts surrounding that violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement
Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). The question of whether a particular
violation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc.,
10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
S&S enhanced enforcement is applicable only to violations of mandatory health and safety
standards. Cyprus Emerald Res. Corp. v. FMSHRC, 195 F.3d 42, 45 (D.C. Cir. 1999).

37 FMSHRC Page 270

In Mathies Coal Co., the Commission established the standard for determining whether
a violation was S&S:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard – that is, a measure of
danger to safety – contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.
6 FMSHRC 1, 3-4 (Jan. 1984).
The third element of the Mathies test presents the most difficulty when determining
whether a violation is S&S. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985),
the Commission provided additional guidance: [T]he third element of the Mathies formula
“requires that the Secretary establish a reasonable likelihood that the hazard contributed to will
result in an event in which there is an injury.” (citing U.S. Steel Mining Co., Inc., 6 FMSHRC
1834, 1836 (August 1984)). The Secretary, however, “need not prove a reasonable likelihood
that the violation itself will cause injury.” Cumberland Coal Res., 33 FMSHRC 2357, 2365
(Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1281
(Oct. 2010). Further, the Commission has found that “the absence of an injury-producing event
when a cited practice has occurred does not preclude a determination of S&S.” Id. (citing Elk
Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18
FMSHRC 853, 857 (June 1996)). This evaluation is also made in consideration of the length of
time that the violative condition existed prior to the citation and the time it would have existed if
normal mining operations had continued. Elk Run Coal Co., 27 FMSHRC at 905; U.S. Steel
Mining Co., Inc., 6 FMSHRC at 1574.
There is additional case law regarding evacuation standards for S&S designations. The
Commission found that “[e]vacuation standards are different from other mine safety standards.
They are intended to apply meaningfully only when an emergency actually occurs. When the
citation for a violation of an evacuation standard is issued, presumably no emergency exists at
that moment.” Cumberland Coal Res., 33 FMSHRC at 2367. The Court also laid out the
application of the second and third elements of the Mathies test to evacuation standards as
follows:
Regarding the second Mathies element, the judge found that the
hazard contributed to by the violations was “miners not escaping
quickly in an emergency with attendant increased risk of injuries
due to a delay in escape.” We conclude that this statement is an
accurate description of the relevant hazard contributed to by the
violations […] [I]n addressing the third Mathies element, the next

37 FMSHRC Page 271

question before the judge was whether there was a reasonable
likelihood that this identified hazard would result in injury.
Id.at 2364-65. (internal citations omitted)
Negligence
Negligence “is conduct, either by commission or omission, which falls below a standard
of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. §
100.3(d). “A mine operator is required […] to take steps necessary to correct or prevent
hazardous conditions or practices.” Id. “MSHA considers mitigating circumstances which may
include, but are not limited to, actions taken by the operator to prevent or correct hazardous
conditions or practices.” Id. Reckless negligence is present when “[t]he operator displayed
conduct which exhibits the absence of the slightest degree of care.” Id. High negligence is when
“[t]he operator knew or should have known of the violative condition or practice, and there are
no mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew or should
have known of the violative condition or practice, but there are mitigating circumstances.” Id.
Low negligence is when “[t]he operator knew or should have known of the violative condition
or practice, but there are considerable mitigating circumstances.” Id. No negligence is when
“[t]he operator exercised diligence and could not have known of the violative condition or
practice.” Id.
The Commission has provided guidance for making the negligence determination in A.
H. Smith Stone Co., stating that:
Each mandatory standard thus carries with it an accompanying
duty of care to avoid violations of the standard, and an operator’s
failure to satisfy the appropriate duty can lead to a finding of
negligence... In this type of case, we look to such considerations as
the foreseeability of the miner’s conduct, the risks involved, and
the operator’s supervising, training, and disciplining of its
employees to prevent violations of the standard in issue.
5 FMSHRC 13, 15 (Jan. 1983)(citations omitted).
Mitigation is something the operator does affirmatively, with knowledge of the potential
hazard being mitigated, that tends to reduce the likelihood of an injury to a miner. This includes
actions taken by the operator to prevent or correct hazardous conditions.
Gravity
The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i),
“is often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18
FMSHRC 1541, 1549 (Sep. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95
(March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984) and Youghiogheny & Ohio Coal Co., 9
FMSHRC 673, 681 (April 1987)). The seriousness of a violation can be examined by looking at

37 FMSHRC Page 272

the importance of the standard which was violated and the operator’s conduct with respect to
that standard, in the context of the Mine Act’s purpose of limiting violations and protecting the
safety and health of miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan.
1990)(ALJ Fauver). The gravity analysis focuses on factors such as the likelihood of an injury,
the severity of an injury, and the number of miners potentially injured. The Commission has
recognized that the likelihood of injury is to be made assuming continued normal mining
operations without abatement of the violation. U.S. Steel Mining Co., 7 FMSHRC at 1130.
Penalty
The principles governing the authority of Commission administrative law judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i)
of the Mine Act delegates to the Commission and its judges the “authority to assess all civil
penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing
penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess
said penalty. 29 C.F.R. § 2700.28.
Under Section 110(i) of the Mine Act, the Commission is to consider the following
when assessing a civil penalty: (1) the operator’s history of previous violations; (2) the
appropriateness of such penalty to the size of the business of the operator charged; (3) whether
the operator was negligent; (4) the effect on the operator's ability to continue in business; (5) the
gravity of the violation; and (6) the demonstrated good faith in abatement of the violative
condition. 30 U.S.C § 820(i). Thus, the Commission alone is responsible for assessing final
penalties. See Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984)
(“[N]either the ALJ nor the Commission is bound by the Secretary's proposed penalties … we
find no basis upon which to conclude that [MSHA's Part 100 penalty regulations] also govern
the Commission.”); See American Coal Co., 35 FMSHRC 1774, 1819 (July 2013)(ALJ
Zielinski).
The Commission has repeatedly held that substantial deviations from the Secretary's
proposed assessments must be adequately explained using the section 110(i) criteria. E.g., 293
Sellersburg Stone Co., 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May 2000);
Cantera Green, 22 FMSHRC 616, 620-21 (May 2000) (citations omitted). A judge need not
make exhaustive findings but must provide an adequate explanation of how the findings
contributed to his or her penalty assessments. Cantera Green, 22 FMSHRC at 622.
Although all of the statutory penalty criteria must be considered, they need not be
assigned equal weight. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).
Generally speaking, the magnitude of the gravity of a violation and the degree of operator
negligence are important factors, especially for more serious violations for which substantial
penalties may be imposed. Musser Engineering, 32 FMSHRC at 1289 (judge justified in relying
on utmost gravity and gross negligence in imposing substantial penalty); Spartan Mining Co.,
30 FMSHRC 699, 725 (Aug. 2008) (appropriate for judge to raise a penalty significantly based
upon findings of extreme gravity and unwarrantable failure); Lopke Quarries, Inc., 23
FMSHRC 705, 713 (July 2001) (judge did not abuse discretion by weighing the factors of

37 FMSHRC Page 273

negligence and gravity more heavily than the other four statutory criteria). For example,
violations involving “extreme gravity” and/or “gross negligence,” or, as stated in the former
section of 105(a), “an extraordinarily high degree of negligence or gravity, or other unique
aggravating circumstances,” may dictate higher penalty assessments. See 30 C.F.R. Part 100
Final Rule, 72 Fed. Reg. at 13,621.
In addition, Commission ALJs are obligated to explain any substantial divergence
between a penalty imposed and that proposed by the Secretary. As explained in Sellersburg
Stone Co., 5 FMSHRC at 293:
When … it is determined that penalties are appropriate which
substantially diverge from those originally proposed, it behooves
that Commission and its judges to provide a sufficient explanation
of the bases underlying the penalties assessed by the Commission.
If a sufficient explanation for the divergence is not provided, the
credibility of the administrative scheme providing for the increase
or lowering of penalties after contest may be jeopardized by an
appearance of arbitrariness.
Citation No. 8429578 (LAKE 2011-0937) and Citation No. 8429598 (LAKE 2011-0937)
On May 2, 2011, at 11:30am MSHA Inspector Marsha Price2 (“Price”) issued Citation
No. 8429578 to Tri County Coal’s Crown III Mine alleging a violation of 30 C.F.R. § 72.630(b)
pursuant to Section 104(a)3 of the Mine Act. The relevant section of the regulation states that
“[d]ust collectors shall be maintained in permissible and operating condition.” 30 C.F.R. §
72.630(b). Section 72.630(b) regulates a mandatory safety standard. The Citation alleges:
The dust collection system on the Fletcher Double Boom Bolter
company number 30, serial number 91010/2005348, operating on
the number 1 Unit (MMU 010-0) is not being maintained in
permissible and operating condition. The following conditions
were found: (1) The left drill pod has a bolt missing on the bottom
of the pod. (2) Fine dust has accumulated on the clean side of the
2

At the time of the trial, Marsha Price had been working at MSHA since 2005 as a
health specialist, mine inspector, and had been a CLR since October, 2011. (Tr. 11:23 – 12:17)
As a health specialist, Price reviewed ventilation plans, dust parameters, and ran respirable dust
sampling at different mines. (Tr. 12:18-22) Price is a member of the “dust busters,” a team of
health specialists that perform health analysis of respirable dust in mines. (Tr. 13:1-9) Price is a
regular certified mine inspector as well. (Tr. 13:10-12) Prince has CMI training, health specialty
training, training from the National Dust Lab in Pittsburgh, CLR training, special investigation
training, and the annual refresher trainings. (Tr. 13:21 – 14:12) Price also worked for American
Coal and Kerr-McGee for over 15 years before joining MSHA. (Tr. 14:21)
3

All citations are 104(a) citations, and therefore, no analysis is necessary to determine if
unwarrantable failures existed.

37 FMSHRC Page 274

filter media of the left side collection box. (3) The dust collection
approval tag is not on the machine.
Ex. S-5.
On June 8, 2011, at 5:10pm Inspector Price issued Citation No. 8429598 to Tri County
Coal’s Crown III Mine also alleging a violation of 30 C.F.R. § 72.630(b) pursuant to Section
104(a) of the Mine Act. The Citation alleges:
The dust collection system on the Fletcher double boom bolter,
company number 58, being used on MMU 013-0 active miner unit,
is not being maintained in permissible and operating condition in
that the following conditions were found: (1) The suction hose
connector is leaking on the right side of the drill arm. (2) Three
bolts are missing on the bottom of the left side drill pod. (3) The
suction hose under the left side drill pod has a hole in it. (4) Fine
dust has accumulated on the clean side of the filter media in the
right side dust collection box.
Ex. S-9.
Violations
Respondent does not dispute that the conditions Inspector Price observed were
violations. (Tr.73:17-19) Inspector Price determined that the dust collection systems for both
citations were not being maintained in permissible or operating condition, in violation of the
standard. “Permissible, as applied to a dust collector, means that it conforms to the requirements
of this part, and that a certificate of approval to that effect has been issued.” 30 C.F.R. § 33.2(a).
Manufacturers of dust collection systems for use on roof bolters in
mines must submit them for testing by MSHA, which entails
measuring the net concentration of airborne dust at each drill
operator's position while a series of test holes are drilled. See, gen.
[sic.] 30 C.F.R. Part 33. Additionally, dust concentrations may not
exceed 10 million particles (5 microns or less in diameter) per
cubic foot of air. 30 C.F.R. § 33.33(b). Systems that pass the test
are issued a certificate of approval, which must be reproduced as
an approval plate. The plate must be stamped or affixed to the unit,
which identifies it as permissible. Id. § 33.11. Without an approval
plate, no unit has the status of “permissible.” Id. § 33.11(d). Use of
the approval plate is not authorized except on units that conform
strictly with the drawings and specifications upon which the
certificate of approval was based. Id. § 33.11(e).
Tri County Coal, LLC, 34 FMSHRC 3255, 3274 (Dec. 2012) (ALJ Zielinski).

37 FMSHRC Page 275

Citation No. 8429578 deals with the left side dust collection system. It alleges an injury
was reasonably likely to occur, the injury could reasonably be expected to result in permanently
disabling injury, the violation was S&S, two people could be affected, and the negligence level
was moderate. (Ex. S-5) Citation No. 8429578 identifies three issues on a Fletcher roof bolter:
(1) the left drill pod was missing a bolt underneath the pod; (2) there was dust behind the clean
side of the filter media; and (3) the Respondent did not have a dust approval tag or plate on the
machine. (Tr. 16:19-22)
Inspector Price testified that to check if bolts on the Fletcher roof bolter are secure, she
one checked the vacuum pressure with a gauge and listened to hear if there were any leaks. (Tr.
25:3-20) Price testified that when she performed the vacuum test, she was alerted that there was
a bolt missing by what she heard. Id. She asked the operator raise the drill so she could see if a
bolt was missing. She visually confirmed that a bolt was missing on the left drill pod. (Id.; Tr.
23:16-17; Ex. S-5) Price testified that a missing bolt can cause the cap to loosen, which causes a
leak in the vacuum system, and if left unfixed, causes the other bolts to loosen, resulting in a
drop in vacuum below the 12 inches-of-mercury minimum. (Tr. 25:22-25)
Price also determined that an MSHA-issued approval tag or plate was missing. (Tr.
27:14-19) The MSHA tag assigns the machine an identification number and designates the
approved suction level in inches-of-mercury. Id. Price concluded that the dust collection unit
was not being maintained in a permissible and operating condition because of the missing bolt
and the missing MSHA plate. (Tr. 26:8-22; Tr. 28:19-20)
Price asked the operator to remove the dust filter for inspection. (Tr. 21:10-14) She
could see and feel dust behind the clean side of the filter on the left side dust box. Id. If
functioning properly, the filter media prevents respirable dust from entering into the exhaust
system and the mine atmosphere. (Tr. 19:11-19) Price considers dust on the clean side of the
filter evidence that the dust collector is not in proper operating condition and thus not
permissible. (Tr. 23:8-13)
Citation No. 8429598 deals with the right side dust collection system. It alleges that an
injury was reasonably likely to occur, the injury could reasonably be expected to result in
permanently disabling injury, the violation was significant and substantial, two people could be
affected, and the negligence standard level was moderate. (Ex. S-9) Citation No. 8429598
identifies four violating conditions: (1) the suction hose connector on the right side of the drill
arm was leaking; (2) three bolts were missing on the bottom of the left side drill pod; (3) the
suction hose under the left side drill pod had a hole in it; and, (4) fine dust had accumulated on
the clean side of the filter media in the right side dust collection box. Id.
First, Price observed and found that the right side drill arm’s suction hose was leaking.
(Tr. 47:13-25) The suction hose connects on the bottom side of the drill pod and runs to a
collection box. Id. Price testified that she observed a hole and air leakage on the drill-arm
connector. (Tr. 48:20-22) Price testified that she used a vacuum gauge on the drill pod and
heard a leak. (Tr. 49:10-11) The leaking suction hose connector causes a bypass in the suction
system. (Tr. 49:12-14) Price concluded that the suction hose was not being maintained in a

37 FMSHRC Page 276

permissible condition per the MSHA approval plate and it was not in operating condition
because it was not functioning correctly. (Tr. 50:9-17; Tr. 50:4-8)
Second, Price discovered a hole in the suction hose on the left side of the drill pod. (Tr.
51:4-6) She testified that she used the same method as before and could hear sound coming
from the hole in the hose. (Tr. 52:6-8) She measured the vacuum level; on the left side it was 12
inches, and on the right it measured 18 inches. (Tr. 52:9-16) Price testified that because of the
hole in the hose, the vacuum level on the left side was near the low end of the allowable vacuum
range − 12 inches. (Tr. 53:3-7) Price concluded that the hole in the left side hose was not
permissible. (Tr. 53:19-24)
Third, three bolts were missing on the left side drill pod. (Tr. 53:10-13; Tr.54:4-10)
Price testified that, as above, she saw that three bolts were missing (Tr. 54:15-18) and
concluded that the dust collector was not in permissible or operating condition because of the
missing bolts. (Tr. 54:19-24)
Fourth, dust had accumulated on the clean side of the filter media in the right-side dust
collection box. (Tr. 55:2-7) At Price’s request, the operator opened the dust collection boxes and
removed the filter for her to inspect. (Tr. 55:4-7) She concluded that the dust collection box was
not being maintained in permissible condition and was not in operating condition because of the
dust behind the filter. (Tr. 56:1-8)
Tri County argues that, under the Secretary’s regulations, dust collection systems must
be evaluated as a whole, and that without evidence of dust sampling showing non-compliance
with applicable performance standards, the citation must be vacated. “It is well-settled,
however, that section 72.630, upon which the citation was based, is a workplace standard
designed to protect, not only drill operators, but other miners in the immediate area, and that
enforcement of the standard does not require dust sampling.” Tri County Coal, LLC, 34
FMSHRC at 3274-75; Jim Walter Resources, Inc., 17 FMSHRC 1423, 1444-45 (Aug. 1995)
(ALJ Barbour); aff'd Jim Walter Resources, Inc. v. Sec'y of Labor, 103 F.3d 1020, 1024 (D.C.
Cir. 1997), cited in Genwal Resources, Inc., 27 FMSHRC 580, 588 (Aug. 2005) (ALJ
Manning); White Buck Coal Co., 30 FMSHRC 535, 541-42 (June 2008) (ALJ Hodgdon).
Although it can be argued that a vacuum level of 12 inches of mercury did not render the
system inoperable, MSHA would not have issued a certificate of approval for a system with a
hole in the suction hose, a leak in the hose connector, or a component with missing bolts.
Additionally, the presence of visible dust on the clean side of the filters is credible evidence that
the dust collection systems were not maintained in a permissible or operating condition. If the
systems were working properly, there should not have been any dust on the clean side of the
filters. If visible dust can bypass the filters, invisible respirable dust can also bypass them and
be exhausted into the mine atmosphere. I find that the left-side dust collection system for
Citation No. 8429578 and the right-side dust collection system for Citation No. 8429598 were
not maintained in permissible condition. Tri County violated Section 72.630(b) of the Mine Act
for Citation Nos. 8429578 and 8429598.

37 FMSHRC Page 277

Negligence
Inspector Price assessed both violations at the level of moderate negligence. As stated
above, moderate negligence is when “[t]he operator knew or should have known of the violative
condition or practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3(d). Price
designated Citation No. 8429578 as moderate negligence because the mine requires a pre-shift
examination of the roof bolters in its ventilation plan. (Tr. 44:18 – 45:5; Tr. 70:10-18) The
section foremen and/or the roof bolters should have known of the condition because the section
foreman approves the pre-shift examination. Id. Similarly, Price designated Citation No.
8429598 as moderate negligence, because the operator should have known of the condition due
to the pre-shift examination requirement. (Tr. 57:1-4) Based on the above, I agree and find
Respondent’s negligence to be moderate for both Citation Nos. 8429578 and 8429598.
Gravity
The gravity analysis focuses on factors such as the likelihood of an injury, the severity
of an injury, and the number of miners potentially injured. These Citations were marked as
reasonably likely to result in permanently disabling illness or injury, namely black lung or lung
disease, from miners breathing contaminated atmosphere. (Tr. 29:1-11; Tr. 44:4-12; Tr. 56:1113) Price testified that when she designates something as reasonably likely, she looks to the
condition at the time of the inspection and factors in what could be anticipated if the condition
were allowed to continue. (Tr. 56:14-19)
Price testified that breathing even a small amount of respirable dust can cause an
eventual deterioration of lung capacity and overall health, and further, the more exposure one
has, the more potential there is for black lung to develop over time. (Tr. 30:16-19; Tr. 32:12-17)
Price also testified that she is aware of studies showing that even a small amount of exposure to
respirable dust over time can lead to lung disease. (Tr.104:22 – 105:3)4 Price also testified that
she marked the citations as permanently disabling because exposure to respirable dust can
restrict lung capacity and breathing and can be fatal, if the illness is serious enough. (Tr. 31:312; 44:4-12)5 I agree that it is reasonably likely that breathing respirable dust could result in
serious injury, i.e. permanently disabling lung disease. Therefore, I find that it is reasonably
likely that the illness would be serious in nature.

4

Price testified that the studies she was referring to are publically available from NIOSH
and MSHA. (Tr. 105:4-9)
5

In the Secretary’s Brief, he emphasized the fact that the mine had repeated violations
of Section 72.630(b), which he claimed is evidence of multiple or repeated exposure to
respirable dust. The fact that a citation was issued in and of itself is not proof that there is actual
exposure to respirable dust, nor is it proof that an S&S designation should be upheld for the
Citations at issue in this case.

37 FMSHRC Page 278

Significant and Substantial
There was a violation of a mandatory safety standard for both citations. The improperly
maintained dust collection systems contributed to a discrete safety hazard, i.e., respirable dust
expelled into the mine’s atmosphere subjected miners to the risk of developing lung disease.
Any such illness would be serious. What is left to be determined is whether it was reasonably
likely that the hazard identified here would contribute to an illness.
“There is no doubt that a violation of the respirable dust standards, sections 70.1006 or
70.101, 30 C.F.R. §§ 70.100 or 70.101, is presumed to be ‘significant and substantial.’” White
Buck Coal Co., 30 FMSHRC at 541-42; U.S. Steel Mining Co., Inc., 8 FMSHRC 1274, 1281
(Sept. 1986); Consolidation Coal Co., 8 FMSHRC 890, 899 (June 1986). However, the dust
collector violations in this case do not arise from respirable dust standards. They involve a
workplace practice standard which does not require a showing of dust sampling results above a
minimum concentration (as the respirable dust standards do) and the related presumption of
disease causation built into the sampling criteria. Every element of an S&S allegation must be
proved by a preponderance of evidence unless there is an applicable presumption that can
substitute for actual provable facts. The Secretary asks the court to graft the same presumption
of causation from the respirable dust standards onto the workplace standards involved in these
citations, and therein lies the rub.
Commission judges have been divided about how to apply Section 72.630(b). Some
appear to have interpreted the legislative history to support an S&S designation based on a
presumption of disease causation. See, e.g., White Buck Coal Co., 30 FMSHRC 535, 541-42;
Genwal Resources, Inc., 27 FMSHRC 580, 588-89.7 Specifically, the legislative introduction to
6

Respirable dust standards: “(a) Each operator shall continuously maintain the average
concentration of respirable dust in the mine atmosphere during each shift to which each miner in
the active workings of each mine is exposed, as measured with an approved sampling device
and expressed in terms of an equivalent concentration, at or below: (1) 2.0 milligrams of
respirable dust per cubic meter of air (mg/m3). (2) 1.5 mg/m3 as of August 1, 2016. (b) Each
operator shall continuously maintain the average concentration of respirable dust within 200
feet outby the working faces of each section in the intake airways as measured with an approved
sampling device and expressed in terms of an equivalent concentration at or below: (1) 1.0
mg/m3. (2) 0.5 mg/m3 as of August 1, 2016.” 30 C.F.R. § 70.100.
7

In both White Buck and Genwal there is considerable evidence of visible dust in the
mine atmosphere, significant duration of the dust in the atmosphere, and miners being
immediately exposed to the dust escaping the filtration system. These conditions can
legitimately be presumed to persist as part of continuing normal mining operations. U.S. Steel
Mining Co., Inc., 6 FMSHRC at 1574. As such the reference to the language about the dangers
of dust in the mine environment in the legislative history is dicta. On their facts, these cases
align themselves with Tri-County Coal and Banner Blue Coal, which reject the notion that
disease causation can be presumed merely from the legislative history. All four decisions can be
harmonized with the idea that disease causation must be proved by preponderant evidence when
(continued…)

37 FMSHRC Page 279

Section 72.630(b) notes that during drilling, “there is the potential for extremely high exposures
in short periods of time to both miners doing the […] drilling and to other miners in the
immediate areas.” Air Quality Standards for Abrasive Blasting and Drill Dust Control, 59 Fed.
Reg. 8318 (February 18, 1994). Further, “[t]he development of silicosis and pneumoconiosis
among underground coal miners has been well documented, particularly among roof bolters and
transportation workers”8 Id. at 8322, and that “§ 72.630 is a work practice standard that does not
require sampling.” Id.
Others have resisted applying a presumption of disease causation derived from the
legislative language. Within this camp, the Secretary still bears the burden of proving disease
causation despite the concern for lung disease mentioned in the legislative history. Thus, the
finding that a violation deserves an S&S designation must be based on preponderant facts rather
than a presumption of causation. See, e.g., Tri County Coal, 34 FMSHRC at 3274-75; Banner
Blue Coal Co., 34 FMSHRC 1321, 1342 (June 2012)(ALJ Koutras). My decision follows this
line of cases. I cannot find a rationale from the cited legislative language to dispense with the
requirement that disease causation must be proved directly by preponderant evidence.
Without a presumption that the mere presence of respirable dust in the mine atmosphere
(the hazard) causes lung disease, irrespective of its concentration, its constituent makeup, its
duration, and without the benefits of actual dust sampling data, I must limit my review to the
evidence in the record to determine whether the S&S requirement -- that the hazard contributes
to a serious disease or injury -- is satisfied.
As always, the Secretary carries the burden to prove, based on a preponderance of
evidence, that there was respirable dust in the mine atmosphere, that the amount of dust in the
atmosphere, its makeup, duration, and presence near the miners, if any, created a reasonable
likelihood that a serious illness would result.
The Secretary suggests two reasons for the S&S designation: (1) a suction disruption due
to the holes and missing bolts will cause respirable dust to enter the mine atmosphere, which
causes serious illness; and (2) it can be inferred that dust on the clean side of the filter means
that respirable dust is entering the mine atmosphere, which causes serious illness. Indeed, Price
testified that the only time MSHA issues an S&S citation for a violation of this standard is when
dust is on the clean side of the filter or the vacuum level is less than 12 inches of mercury. (Tr.
57:22-58:7) She testified that both or either of these scenarios apply in this case. (Tr. 58:18-21)
7

(…continued)
the violation is for a workplace practice standard rather than a respirable dust standard.
Violation of the latter follows from proof of extant atmospheric dust determined by dust
sampling. As such, the causation element needed for an S&S determination is subsumed in an
empirical maximum allowable dust measurement, which is another way of saying that disease
causation is presumed for the respirable dust standards, but not for general workplace standards.
8

At the hearing I stated that: “I’m more interested in having this causation tied to this
citation, not just general. I can take judicial notice that exposure - some exposure to respirable
dust can cause black lung, that’s not really a question.” (Tr. 105:16-17)

37 FMSHRC Page 280

The evidence is clear that there was a hole in the right side suction hose, a leak in the hose
connectors, missing bolts, and dust on the clean side of the filters.
The filter element is designed to prevent respirable dust from entering the miner’s
atmosphere after passing through the dust control system. (Tr. 19:11-19) Price testified that dust
on the clean side of the filter shows that dust has entered the mine atmosphere (Tr. 55:20-25),
and that it takes a significant amount of dust to become visible on the filter. (Tr. 89:10-13)
Further, Price testified that the visible dust on the clean side of the filter represents large dust
particles that have escaped the filter unit. She inferred from this that invisible and respirable
dust particles also bypassed the filter and went into the mine atmosphere. (Tr. 90:1-5) Price
testified that dust behind the filter contributes to lung disease. (Tr. 76:5-6)
Price testified that she could not take air samples on the days she wrote these citations
because on both of the days, the mine was operating below the minimum production threshold
necessary to make dust samples relevant under MSHA’s respirable dust sampling regimen. (Tr.
66:3-7)9 Additionally and importantly, she did not observe airborne dust coming out of the
exhaust system at any time. (Tr. 88:22-23)
According to Price, when the bolter is being moved, one operator is in back of the
machine handling the cables, behind the exhaust system. (Tr. 33:23 – 34:5)10 Anyone downwind
of the roof bolter could be exposed to respirable dust, including the roof bolter operators. (Tr.
33:15-20) The exhaust systems of the roof bolters in question are powered when the roof bolter
is being moved. (Tr. 36:7-9) When the machine moves from place to place, the vacuum system
is not operating but the exhaust system is. (Tr. 86:8-15) On the day of the inspection, the roof
bolter operators were not wearing respirators. (Tr. 40:15-17)
The fact remains that despite Price’s testimony regarding a bypass in the vacuum
system, both roof bolters were measured for suction and were within the 12 inches-of-mercury
requirement. (Tr. 68:14-17) Although the suction might not have been functioning optimally
due to bypasses in the system, it was still within the parameters set by MSHA. While the roof
bolter noted in Citation No. 8429578 did not have an MSHA approval tag outlining the
appropriate inches-of-mercury parameters, Price testified that as a general rule, the allowable
range of vacuum is 12 to 22 inches. (Tr. 53:1-2)
In summary, the weight of evidence does not support a conclusion that these violations
were S&S. The only evidence tending to show that respirable dust could have entered the mine
atmosphere is the presence of dust behind the filter elements. The evidence showing
permissibility problems and lack of operational condition must be balanced against the fact that
the vacuum levels for both systems were within MSHA guidelines. Although it could be
inferred from this that some respirable dust might have entered the mine atmosphere, there is
9

Prince testified that she was at Crow III to work on EO1s and to run respirable dust
sampling for the quarter. (Tr. 16:1-3)
10

Prince testified that it takes anywhere from five to thirty minutes to move a roof bolter
and it is moved approximately two to six times a shift. (Tr. 36:10-14)

37 FMSHRC Page 281

nothing to show duration, concentration, makeup, or anything else relevant to establish that the
violating conditions were reasonably likely to contribute to the development of lung disease. I
conclude that the Secretary has failed to carry his burden to prove that the violations warrant an
S&S designation.
Price designated both citations as potentially affecting two people. However, in light of
my findings above and of the testimony that only one roof bolter would be downstream from the
exhaust at the time the roof bolter was being moved, it is necessary to modify both citations
from two persons affected to one person affected.
Penalty
For Citations No. 8429578 and 8429598, the Secretary suggests a penalty of $1,026.00
each. Tri County’s mine produces 1,310,941 tons annually. Tri County was moderately
negligent. Tri County’s business will not be significantly affected by the penalty sought by the
Secretary. The violations are not S&S. According to the parties’ stipulations, Tri County
demonstrated good faith in abatement of the violating conditions. Considering the factors
itemized in section 110(i), and guided by the Secretary's penalty assessment regulations, I
impose a penalty of $300.00 for each violation − a total of $600.00.
Citation No. 8429536 (LAKE 2011-0377)
On December 7, 2010, at 8:35am MSHA Inspector Price issued Citation No. 8429536 to
Tri County Coal’s Crown III Mine alleging a violation of 30 C.F.R. § 75.1505(b) pursuant to
Section 104(a) of the Mine Act. The regulation states that “[a]ll maps shall be kept up-to-date
and any change in route of travel, location of doors, location of refuge alternatives, or direction
of airflow shall be shown on the maps by the end of the shift on which the change is made. ” 30
C.F.R. § 75.1505(b). Section 75.1505(b) is a mandatory safety standard. The Citation alleges:
All maps shall be kept up-to-date and any change in route of travel,
location of doors, location of refuge alternatives, or direction of
airflow shall be shown on the maps by the end of the shift on
which the change is made. The Refuge Chamber located at
crosscut 10 between entry 7 and entry 8, the Refuge Chamber
located at crosscut 10 and the lifelines in the primary and
secondary escapeways are not noted on the active Number One
Unit, the Third West, MMU 011-0.
Ex. S-2.
Violation
The Citation alleges that an injury is unlikely; an injury could reasonably be expected to
be fatal; the violation was not S&S; one person could be affected; and high negligence. Id.
However, the parties stipulated to modify Citation No. 8429536 from unlikely to reasonably

37 FMSHRC Page 282

likely and from non-S&S to S&S.11 (Tr. 9:23 – 10:1; Tr. 144:16 – 145:24) Respondent
presented no evidence at trial to contradict Price’s testimony, and did not dispute the fact of the
violation in its brief. (Resp. Br. at 13)
Price testified that the regulation generally requires that all mine maps be kept up to
date, and any changes in the mine must be added to the maps. (Tr. 112:22 – 113:3) Price
testified that the correct locations of two refuge chambers were not shown on three different
mine maps. (Tr. 114:7-20; Tr. 113:19-21)12 Price also testified that the lifelines for the alternate
and primary escapeways were not marked on the three escapeway maps. (Tr. 113:7-13; Tr.
116:6-20) The three incorrect maps were located at the two refuge chambers and at the end of
the primary escapeway, or the first point at which a miner would access a lifeline to exit the
mine in case of an emergency. (Tr. 116:15-20)
I find that Tri County failed to show the correct locations of the refuge chambers and
escapeway lifelines on the three maps mentioned above. This violated Section 75.1505(b) of the
Mine Act.
Negligence
Inspector Price assessed both violations as arising from high negligence. As stated
above, high negligence is when “[t]he operator knew or should have known of the violative
condition or practice, and there are no mitigating circumstances.” 30 C.F.R. § 100.3(d). Price
testified that the mine conducts a pre-shift examination of the alternative escapeway and the
refuge chambers for each shift. Therefore, an examiner had been at the chamber several times
and never noticed that the map was inaccurate. (Tr. 125:8-16) Additionally, miners are required
to perform periodic escapeway drills. Generally, there is one person in charge of maps during
such drills. (Tr. 126:11-20; Tr. 130:14-16) The inaccurate maps existed long enough for miners
to make 14 crosscuts, which Price testified could be anywhere from several days to weeks. (Tr.
125:17-22) Additionally, the examination records on the outside of the refuge chambers did not
reflect that the maps were inaccurate. (Tr. 141:21-22)
Price designated the citation as high negligence because mine management knew or
should have known about the defective maps, and there were no mitigating circumstances. (Tr.
124:23 – 125:5) I agree and conclude that Respondent’s negligence for Citation No. 8429536
was high.
Gravity
The citation’s gravity was classified as unlikely to cause injury or illness, but Price
11

The Secretary made a formal motion at the hearing to amend the pleading to mark the
Citation as reasonably likely and S&S (Tr.144:17-19), however, since the Respondent stipulated
and agreed to the change, a formal ruling on the record was not necessary. (Tr. 145:8-23)
12

The refuge chambers were actually located at crosscut 10 between entry seven and
eight, and at crosscut 10 between entry six and seven. (Tr. 114:7-20; Tr. 113:19-21)

37 FMSHRC Page 283

testified that in hindsight she should have raised the gravity designation to reasonably likely and
S&S. (Tr. 122:10-25) Price stated that she should have evaluated the condition in the context of
an emergency, stating that it would be reasonably likely in an emergency that this condition
would result in a fatal injury if a miner couldn’t find a refuge chamber or if he followed the
wrong escapeway out of the mine. (Tr. 122:10-16)
Price designated this citation as fatal because in an emergency situation the confusion
caused by inaccurate map information could cause a miner to panic, thus increasing the
likelihood he would die from lack of oxygen or not be able to find his way out of the mine. (Tr.
123:123:4-7) One of the inaccurate maps was located at the first point a miner would access if
he were trying to escape. Panic and confusion could cause a miner to travel in the wrong
direction, and the resulting delay could cost the miner valuable breathing time on his selfrescuer. (Tr. 118:2 – 119:13) An inaccurate map increases the likelihood of panic, particularly if
a miner is running out of oxygen and cannot find a refuge chamber or escapeway lifeline. (Tr.
121:7-13; Tr. 118:13-23)
Price added that when a miner enters a refuge chamber, he takes the mine map in with
him so he can give the rescue team at the surface his location. (Tr. 121:4-6; Tr. 123:17 – 124:4)
If the miner gives rescuers the wrong location because the map is not accurate, he might not be
rescued. (Tr. 123:17 – 124:4)
Price designated the citation as affecting one person, but she testified she should have
marked it for the whole crew, perhaps 10 to14 persons. (Tr. 124:7-20) I find it reasonably likely
that in an emergency a crew would be affected, but the Secretary did not prove by a
preponderance of evidence how many persons would be in the crew. Therefore, I asses the
number of persons affected as three – the continuous miner operator, his helper, and the
foreman.
Based on these facts and inferences, I conclude that the injury possible from the scenario
of miners not being able to escape the mine quickly because of inaccurate maps could be serious
and potentially fatal.
Significant and Substantial
I have determined that there was a violation of a mandatory safety standard and there
was a reasonable likelihood that a reasonably serious injury would ensue. The three inaccurate
maps gave incorrect locations for two refuge chambers, the lifeline for the alternate escapeway,
and the lifeline for the primary escapeway. This contributed to a discrete safety hazard which
had the potential of resulting in injuries to miners who might not be able to quickly escape the
mine. I must yet determine whether there was a reasonable likelihood that the hazard was
reasonably likely to result in an injury. Mathies, 6 FMSHRC at 3-4.
A miner must know where to go in an emergency. (Tr. 118:2-4) Updated and current
escapeway maps are crucial in an emergency. (Tr. 128:20-22) Price testified that the impact of
not showing refuge chambers on the mine map depends on the timing of events. (Tr. 119:7-13)
Self-rescuers only have a certain amount of oxygen which must last until a refuge chamber is

37 FMSHRC Page 284

found. Id. If a miner runs out of oxygen, he might not make it out of the mine. (Tr. 118:13-23) If
a miner actually makes it to a refuge chamber, he is trained to take the map into the chamber
with him so he can communicate his location. (Tr. 120:24 – 121:3) However, as explained
above, if a miner gives rescuers the wrong location, the chances increase that rescuers will not
reach him in time.
Lifelines are a backup escape measure. A miner could follow a lifeline out of the mine
without a map, however the potential for confusion increases in the dark and panic without an
accurate map. (Tr. 117:16-20) Indeed, a miner might follow a lifeline to the place on an out-ofdate map where a refuge is supposed to be only to realize it is not there. The inverse is also
possible. A miner might follow a lifeline and be close to a refuge not shown on the map but not
know it. (Tr. 119:14-19)
Respondent argued that the hazard was not reasonably likely to result in an injury
because its miners participated in previous escapeway drills. (Tr. 130:1-131:24) However,
previous training is not a substitute for accurate maps. Training cannot guarantee that in a realtime emergency situation where miners are more likely to be panicked and relying on
escapeway maps to guide them safely out of the mine or to refuge chambers that their drill
experience will lead them to safety. Furthermore, “[e]scapeway maps are the primary source of
information needed by miners as they are evacuating the mine. Locations of refuge alternatives
are critical to decisions made during evacuation efforts and must be kept current on the
escapeway map.” Refuge Alternatives for Underground Coal Mines, 73 Fed. Reg. 80656, 80681
(Dec. 31, 2008).
Respondent also argued that the presence of lifelines should mitigate the likelihood of
injury. This argument is unavailing, however, because the Mine Act requires both lifelines and
accurate maps. 30 C.F.R §§ 75.1505(b); 75.380(d)(7). Additionally, there is well established
Commission and D.C. Circuit case law holding that the presence of redundant safety systems is
irrelevant to the designation of a violation as S&S. Cumberland Coal Res., LP, v. FMSHRC,
717 F.3d 1020, 1029 (D.C. Cir. 2013). Something that is required to be on hand is not properly
considered a mitigating factor in this context.
In an emergency, the out-of-date maps would show an incorrect location for the lifelines
in the primary and secondary escapeways and the two refuge chambers. Importantly, it is
incorrect to assume a lifeline would always be present during an emergency. The emergency
itself could obliterate it, increasing a miner’s need for and reliance on the mine map to exit the
mine or find a refuge chamber. Even assuming a miner did find a refuge chamber; incorrect
information on the map located at the refuge chamber itself would still be reasonably likely to
result in an injury because the miner might not be able to give an accurate location to a rescue
team. In this case, both refuge chambers had inaccurate maps. In an emergency two separate
rescue crews could have been misled by the inaccurate maps.
I conclude there was a reasonable likelihood that the inaccurate maps would result in
injury, i.e. the inability of a miner or miners to escape quickly, or at all, in an emergency. Thus,
the Secretary proved by a preponderance of the evidence that an S&S designation was
warranted for Citation No. 8429536.

37 FMSHRC Page 285

Penalty
The Secretary proposed a penalty of $2,107.00 for this violation. Tri County’s mine
produces 1,310,941 tons annually. Tri County’s negligence was high. Its business will not be
significantly affected by the penalty sought by the Secretary. The violation is S&S. According
to the parties’ stipulations, Tri County demonstrated good faith in abatement of the violating
conditions. Considering the factors itemized in section 110(i), and guided by the Secretary's
penalty assessment regulations, I impose a penalty of $3,144.00.
Citation No. 8419112 (LAKE 2011-0309)
On October 30, 2010, at 1:50am MSHA Inspector Dennis Baum13 (“Baum”) issued
Citation No. 8419112 to Tri County Coal’s Crown III Mine alleging a violation of 30 C.F.R. §
75.220(a)(1) pursuant to Section 104(a) of the Mine Act. The regulation states that “[e]ach mine
operator shall develop and follow a roof control plan, approved by the District Manager, that is
suitable to the prevailing geological conditions, and the mining system to be used at the mine.
Additional measures shall be taken to protect persons if unusual hazards are encountered. ” 30
C.F.R. § 75.220(a)(1). Section 75.220(a)(1) regulates a mandatory safety standard. The citation
alleges:
A violation of the operator’s approved roof control plan is present
in the unit 1, 3W/2S panel. Two areas have been mined in excess
of the 18’ wide maximum that is allowed by the plan. Location 1 is
in the number 3 entry from the inby rib line of the intersection at
survey station 490 inby toward the face. This wide place measured
approximately 18’6” to 20” wide for a distance of approximately
27’. Location 2 is in the last open crosscut between entries 2 and 3
at survey station 420. This place was mined 19’1” to 20’ wide for a
distance of approximately 37’. Standard 75.220(a)(1) was cited 41
times in two years at mine 1102632 (41 to the operator, 0 to a
contractor).
Ex. S-14.

13

At the time of the hearing, Dennis Baum had worked for MSHA since 2007. (Tr.
147:14-15) From March, 2012 until June, 2012, Baum was a Certified Mine Inspector for
MSHA (Tr. 147:11-15), and he was a roof control specialist since June, 2012. (Tr. 147:3-10)
Inspector Baum completed the mine academy training and had refresher training. (Tr. 148:7-14)
He worked in mines for over 25 years and for part of that he worked at Crown III. (Tr. 149:2124) He was also a UMWA safety committee chairman for about 15 years. Id. When he worked
at Crown III it was operated by Freeman United Coal Mining Company (Tr. 150:3-6)

37 FMSHRC Page 286

Violation
The Citation alleges that the violating condition is reasonably likely to result in an
injury, the injury could reasonably be expected to be fatal, the violation was significant and
substantial, two persons could be affected, and the negligence level was moderate. Id.
Inspector Baum was at the mine as part of an EO1 inspection. (Tr. 151:2-6) He testified
that he found a violation of the roof control plan, viz. two locations had been mined in excess of
the maximum width allowed by the plan. (Tr. 152:16-23) Respondent does not dispute the fact
that the area was mined in excess of the approved roof control plan. (Resp. Br. at 17)
The maximum entry width at the Crown II mine is 18 feet per the roof control plan. (Tr.
153:20-23; Tr. 154:17-18; Ex. S-16, pg. 2) Page 11 of the roof control plan provides that if
miners inadvertently mine the entries too wide, or if the ribs weather and slough off, the mine
must take additional measures to install supplemental support. (Tr.154:19 − 155:6; Ex. S-16, pg.
11) According to the roof control plan, in those instances: “a bolt, no less than 2 foot long, will
be installed between the rows of bolts and the rib to compensate for the wider entry.” (Ex. S-16,
pg. 2) Respondent had not installed supplemental support at the two cited locations as required
by the roof control plan. (Tr. 155:7-16)
The first location was in entry number three at the last open crosscut toward the face; it
extended approximately 27 feet and was approximately 20 feet wide. (Tr. 153:2-12) Baum
measured the roof with a tape measure. (Tr. 153:12-13) There was no additional support
installed at this location. (Tr. 155:7-10)
The second location was in crosscut entries two and three, where examiners and the
foreman take air readings. (Tr. 156:3-9) The width at this location ranged from 19 feet 1 inch to
20 feet for approximately 37 feet, which is almost the entire length of the coal pillar. (Tr.
156:13-15) Baum measured the width with a tape measure. (Tr. 156:16-17)
Baum testified that Respondent abated the violation by installing 19 fully grouted bolts
between the two locations and putting a bolt at least two feet long between the existing rows of
bolts in the wide area. (Tr. 164:17-22) He also testified that the violating conditions were not
the result of sloughage; they had been mined too wide. (Tr. 165:24-25) The roof control plan
specified a maximum width of 18 feet. However, in two locations, the width was more – as
much as 20 feet. There was also no additional support, as required under the roof control plan.
I find that the width of the entries at the two locations just discussed exceeded the
maximum set by the roof control plan. I conclude that the Respondent violated Section
75.220(a)(1) of the Act.
Negligence
Inspector Baum assessed the violation at moderate negligence. Moderate negligence is
when “[t]he operator knew or should have known of the violative condition or practice, but

37 FMSHRC Page 287

there are mitigating circumstances.” 30 C.F.R. § 100.3(d). Respondent did not object to Baum’s
negligence designation. (Tr. 171:25 – 172:3)
Baum chose moderate negligence because the pre-shift mine examiner and the foreman
knew or should have known about the roof condition from being in the area while taking air
readings. (Tr. 162:8-16) Additionally, Baum testified that the mine has a policy that the roof
must be measured after it is cut and bolted. Id. Inspector Baum testified that he could have
issued the citation as high negligence. (Tr. 162:22-24) Baum further testified that in the entry
itself, the excess cut width was obvious enough that somebody should have seen it, especially
since there were people in that area regularly. (Tr. 162:17-19)
I conclude that Respondent was moderately negligent for Citation No. 8419112.
Gravity
Inspector Baum testified that the violating conditions must have existed for a shift or
more based on when the areas would have been mined. (Tr. 164:2-5) The first location extended
approximately 27 feet with a width of approximately 20 feet. The second location was
approximately 37 feet long – almost the entire length of the coal pillar – and was approximately
19 feet 1 inch to 20 feet wide. The danger to miners was proportionately greater because the
excess cutting occurred in two locations.
It is clear that a miner could be injured by a roof fall. (Tr. 158:2-4) It is obvious that if a
roof slab fell on a miner, the injury could be fatal. Baum testified that such a roof slab could be
more than 18 feet wide and 6 feet thick. (Tr. 159:18-24) I conclude that if a roof fall were to
occur under these circumstances, it could result in a fatality. Two persons could be affected −
the continuous miner operator and his helper. (Tr. 160:10-16)
This failure to comply with the roof control plan posed a discrete safety hazard. Miners
were subjected to the danger of falling rock from an unstable and inadequately supported roof.
“[P]ractices that compromise the integrity of the mine roof or are permitted to exist in an area of
compromised integrity are per se of a ‘reasonably serious nature.’” Excel Mining, LLC, 34
FMSHRC 99, 116 (ALJ Gill). I conclude that there was a reasonable likelihood of serious injury
to two persons.
Significant and Substantial
Roof control plans are tailored for the specific conditions in each mine. MSHA set the
maximum cut width for this mine at 18 feet. (Tr. 158:13-17) Inspector Baum designated this
citation as S&S because, consistent with Mathies, there was a violation of a mandatory safety
standard giving rise to a reasonable likelihood of serious injury and involving at least moderate
negligence. (Tr. 160:19 – 161:2) Baum designated the citation as reasonably likely to cause an
injury because of poor roof conditions and the mine’s history of roof falls. (Tr. 157:10-23)
In the last open crosscut, the roof had “potted out,” (part of the roof had fallen out) prior
to being bolted, indicating to Baum that the roof was susceptible of falling. Id. Baum testified

37 FMSHRC Page 288

that he observed a visible slip running toward the face, parallel with the entry. (Tr. 159:5-8) A
slip is an anomaly in the roof caused by a change in rock strata, which according to Baum,
increases the chance of a roof fall. (Tr. 159:9-13) Additionally, the fact that there were roof falls
despite changes made to the roof control plan to deal with them, indicates that the quality of the
mine roof in general was poor. (Tr. 176:17-22)
Miners were regularly exposed to the poor roof conditions. In the first location, the over
cut was found at the last open crosscut inby the face, which meant that people were regularly
going to and coming from the face throughout the shift. (Tr. 155:20 – 156:1) Baum also testified
that the second location was used for haulage and ventilation, and mine examiners and foreman
did their examinations regularly throughout the shift at that location. (Tr. 156:22 – 157:5)
Respondent argued that there had been no fatalities from previous roof falls at the mine.
(Tr. 169:18-24) But, it conceded in its brief that if the roof were to fail as Inspector Baum
opined, and if miners were under it, “a fatal injury would likely result.” (Resp. Br. at 18)
Respondent also argued that it was not reasonably likely that an injury would occur because
there was no evidence in the record that roof failure was imminent. Id. However, this is not the
correct standard to apply. The Court evaluates the citation in the context of continued mining
operations. Miners would be exposed to the hazards of a roof fall in the two cited unsupported
roof areas if a roof fall occurred.
Respondent also argued that the unit was idle. (Resp. Br. at 18; Tr. 173:5-6) The unit
may have been idle at the time of the citation, but there were still people working in that section,
namely, the section foreman and a couple of miners who were bolting and cleaning the face.
(Tr. 175:10-21) Additionally, the condition had lasted for more than one shift, and in the context
of continued mining operations, would have continued to exist unabated. Finally, exposure to
the hazard was particularly high at the first location because of the greater width of the cut and
the fact that miners worked there on a regular basis.
The Secretary has proved by preponderance of evidence that the excess cut width
contributed to the hazard of a roof fall which was reasonably likely to result in serious injury.
Therefore, I find that the S&S designation was warranted for Citation No. 8419112.
Penalty
The Secretary proposed a penalty of $1,944.00 for this violation. Tri County’s mine
produces 1,310,941 tons annually. Tri County’s negligence was moderate. Its business will not
be significantly affected by the penalty sought by the Secretary. The violation is S&S.
According to the parties’ stipulations, Tri County demonstrated good faith in abatement of the
violating conditions. Considering the factors itemized in section 110(i), and guided by the
Secretary's penalty assessment regulations, I impose a penalty of $1,944.00.
Citation No. 8419546 (LAKE 2011-0937)
On May 23, 2011, at 9:45am, MSHA Inspector Baum issued Citation No. 8419546 to
Tri County Coal’s Crown III Mine alleging a violation of 30 C.F.R. § 75.403 pursuant to

37 FMSHRC Page 289

Section 104(a) of the Mine Act. The regulation states that “[w]here rock dust is required to be
applied, it shall be distributed upon the top, floor, and sides of all underground areas of a coal
mine and maintained in such quantities that the incombustible content of the combined coal
dust, rock dust, and other dust shall be not less than 80 percent. Where methane is present in any
ventilating current, the percent of incombustible content of such combined dust shall be
increased 0.4 percent for each 0.1 percent of methane.” 30 C.F.R. § 75.403. Section 75.403
regulates a mandatory safety standard. The citation alleges:
No dry rock dust has been applied over previously wet dusted
surfaces of the roof, ribs and floor in the 9 Right/2 West SubMains, 002/013 MMU. This condition is present in the following
locations. 1. Entry number 1 from survey station 680 to survey
station 890. 2. Entry number 2 from survey station 590 to survey
station 890. 3. Entry number 3 from survey station 680 to survey
station 890. 4. Entry number 4 from survey station 680 to survey
station 890. 5. Entry number 5 from survey station 750 to survey
station 890. 6. Entry number 6 from survey station 680 to survey
station 960. 7. Entries number 7-10 from survey station 820 to
survey station 960. These areas also include the adjoining
crosscuts.
Ex. S-18.
Violation
The Citation alleges that injury is unlikely; the injury could reasonably be expected to be
fatal; the violation was not S&S; four persons could be affected; and, the negligence level was
moderate. Id. Inspector Baum testified that under Section 75.403, rock dust must be applied to
roof, ribs, and the floor of the coal mine and be maintained at least at 80 percent incombustible
content. (Tr. 183:3-10) Rock dust is used to neutralize the danger of an explosion. (Tr. 196:7-9)
Baum testified that the areas in question were in the working section, and there were a number
of locations where he observed that no dry dust had been applied to the ribs and roof. (Tr.
183:11-15)
The areas in question were dry. (Tr. 189:22-24) Baum used his fingers to test areas to
determine if they were wet and needed dusting. (Tr. 190:10-13) Dry rock dust had not been
applied in seven places across the whole section from entries 1 through 20, ranging from 200 to
300 feet in length, including the adjoining crosscuts between entries. (Tr. 190:18-25) In total,
approximately 1,900 linear feet were not properly dry or wet dusted. (Sec’y Br. at 29)
Baum testified that the area in question had been wet dusted. (Tr. 183:18-19)
Respondent may wet dust initially, but when the wet dust dries, it must go back and apply dry
dust. (Tr. 184:16-23) The Program Policy Manual dated February, 2003 states: “After the wet
rock dust dries, additional dry rock dust shall be applied to all surfaces to meet applicable
standards.” (Tr. 188:4-11; Ex. S-36) Inspector Baum testified that even the wet dusting in the
violating areas was rather poor. (Tr. 184:25) He testified that the wet dust covered about 50

37 FMSHRC Page 290

percent of the area and looked speckled (Tr. 185:8-08; 194:1-3). He could determine visually
that there was not 80 percent coverage. (Tr. 204:19-21) Baum also testified that at the time he
issued the citation, the Respondent’s representative voiced no objection. (Tr. 205:5-7)
Respondent argued that they were not in violation of Section 75.403 because they had
wet dusted and because the area was not dry but was in fact damp. Inspector Baum did testify
that the roof and rib were damp, but he testified that they were not wet. (Tr. 201:1-3) The
dampness of the rock dusting relates to likelihood of an accident or injury occurring (Tr.
222:16-17), not whether the Respondent violated Section 75.403. And as Inspector Baum noted,
there is moisture everywhere underground in a coal mine. (Tr. 221:19-22)
Respondent’s “damp” argument is unconvincing because irrespective of whether the
area was damp and not dry, the Respondent’s dust application was insufficient to meet the
standard.
I find that Respondent did not adequately dry dust the areas in question. I also find that
in the areas that were wet dusted, the surfaces had dried sufficiently to require dry dusting. The
combined coverage was insufficient to satisfy the standard. Therefore, for the reasons stated
above, I conclude that Respondent violated Section 75.403.
Negligence
Inspector Baum determined that the violation resulted from moderate negligence.
Moderate negligence is when “[t]he operator knew or should have known of the violative
condition or practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3(d). Baum
testified that he chose moderate negligence because the working section is examined before and
during each shift by a foreman. (Tr. 198:14-25) Additionally, Baum had conversations with
management before the Citation was issued regarding the requirement that dry dust be applied
after wet dusting. (Tr. 186:12-20)
Baum testified that the areas were dry dusted after the citation was issued. (Tr. 200:4)
Baum cited this as the reason he listed moderate negligence; management was aware of this
requirement and had made some effort to comply. (Tr. 191:1-5)
I find moderate negligence for Citation No. 8419546.
Gravity
The gravity analysis focuses on factors such as the likelihood of an injury, the severity
of an injury, and the number of miners potentially injured. Baum designated the Citation as
unlikely because ignition conditions were not present at the time. (Tr. 198:9-10; Ex. S-18)
Baum testified that the areas in question were not dry dusted for more than one shift
based on the location relative to the face. (Tr. 192:22 – 193:8) He also testified an ignition is
more likely to occur at the face because that is where the methane is liberated during the mining

37 FMSHRC Page 291

cycle. (Tr. 193:9-13) Here, however, he did not detect methane at the face nor did the mine have
a history of face ignitions. Baum marked the Citation as unlikely to result in an injury. (Tr.
195:6-18)
Baum testified that if there were an injury, it would involve at least lost work days or
restricted duty. However, he designated the gravity as fatal because if an ignition occurred at the
face it would likely result in severe burns. (Tr. 196:10-25; 197:12-21) Baum determined that
four people would be affected, namely the four ram car operators that were in the area. (Tr.
197:2-4)
I find that the injury was serious in nature, was unlikely to occur, but if it did occur
could reasonably be expected to be fatal.
Penalty
The Secretary proposed a penalty of $634.00. Tri County’s mine produces 1,310,941
tons annually. Tri County’s negligence was moderate. Its business will not be significantly
affected by the penalty sought by the Secretary. The citation was not designated as S&S.
According to the parties’ stipulations, Tri County demonstrated good faith in abatement of the
violating conditions. Considering the factors itemized in section 110(i), and guided by the
Secretary's penalty assessment regulations, I impose a penalty of $634.00.
Citation No. 8419577 (LAKE 2011-1051) and Citation No. 8419579 (LAKE 2011-1051)
On July 6, 2011, at 11:10 am, MSHA Inspector Baum issued Citation No. 8419577 to
Tri County Coal’s Crown III Mine alleging a violation of 30 C.F.R. § 75.604(b) pursuant to
Section 104(a) of the Mine Act. The regulation states “[w]hen permanent splices in trailing
cables are made, they shall be: […] (b) Effectively insulated and sealed so as to exclude
moisture […]” 30 C.F.R. § 75.604(b). Citation No. 8419577 alleges:
The number 2, 3 conductor trailing cable supplying 480 VAC
power to the number 57 roof bolter, contains two defective
permanent type splices that are no longer effectively insulated and
sealed so as to exclude moisture. The outer jacket of both of these
splices is split open around the splice nearly to the inner insulated
conductors.
Ex. S-24.
On July 7, 2011, at 10:05 am, Inspector Baum issued Citation No. 8419579 to Tri
County Coal’s Crown III Mine alleging a violation of 30 C.F.R. § 75.604(b) pursuant to Section
104(a) of the Mine Act. Citation No. 8419579 alleges:
The number 2, 3 conductor trailing cable, supplying 480 VAC power to
the number 58 roof bolter, contains one defective permanent type splice
that is no longer effectively insulated and sealed so as to exclude moisture.

37 FMSHRC Page 292

The outer jacket material is split open exposing the insulated inner
conductors. This bolter is in service in the 9 North/2 West Sub-Mains,
002/013 MMU.
Ex. S-27.
Violations
Respondent does not contest the violations, but disputes the “fatal” designation for both
citations and the S&S designation for Citation No. 8419579. (Resp. Br. at 22) Baum described
the process he used to inspect the cables: He started at the power center, required the mine to
turn off the power, and performed a hand-over-hand evaluation of the entire cable, except for
areas he could not reach because they were hung too high. (Tr. 238:10-19) To inspect the
splices, Baum flexed the cable to see if it was sealed. (Tr. 239:3-6) For the hanging cables,
Baum observed the splices with his naked eye. (Tr. 239:21-23) A hand-to-hand examination
was not needed for the splices that were cited because they were visible. (Tr. 240:12-16)
Citation No. 8419577 alleges that an injury was unlikely; the injury could reasonably be
expected to be fatal; the violation was not S&S; one person could be affected; and, negligence
was cited as moderate. (Ex. S-24) Inspector Baum found two defective permanent splices on
roof bolter cable No. 57. (Tr. 226:10-13) He testified that the outer jacket material was split and
the only thing that was left underneath was some tape. (Tr. 226:15-19)
The tough rubber outer jacket on these cables is there to protect the inner conductors and
to keep moisture out. (Tr. 226:22-25) The opening Baum found would have allowed dirt, debris,
and moisture to reach the inner conductors. (Tr. 227:3-6) Baum stated that if moisture gets in
and a person makes contact, he could be electrocuted. (Tr. 227:8-18)
Citation No. 8419579 alleges that injury is reasonably likely; the injury could reasonably
be expected to be fatal; the violation was S&S; one person could be affected; and, negligence
was listed as moderate. (Ex. S-27) On roof bolter No. 58, Baum found one splice. The inner
insulated conductors were exposed. (Tr. 231:11-18) Baum testified that the cable was not
adequately insulated and sealed to exclude moisture. (Tr. 245:19-20)
I conclude that Respondent violated Section 75.604(b) for Citation Nos. 8419577 and
8419579.
Negligence
Inspector Baum assessed moderate negligence for both violations. Moderate negligence
is when “[t]he operator knew or should have known of the violative condition or practice, but
there are mitigating circumstances.” 30 C.F.R. § 100.3(d).
For Citation No. 8419577, Baum chose moderate negligence because this condition
should have been found during a weekly electrical examination. (Tr. 229:13-21) Baum testified
that the operator had told MSHA on numerous occasions that they had a policy requiring miners

37 FMSHRC Page 293

to walk their machine cables to look for violating conditions. Id. Baum stated that this condition
would have been obvious to anybody checking the cable. Id.
Baum designated Citation No. 8419579 as arising from moderate negligence because if
miners had checked their cables as the operator indicated was their practice, someone should
have seen the violation and fixed the problem. (Tr. 234:13-20) Additionally, this condition
should have been found during the weekly bolter examination. (Tr. 234:1-20) Baum testified
that the condition was obvious. (Tr. 234:6-7)
I conclude that Respondent was moderately negligent for both Citation Nos. 8419577
and 9419579.
Gravity
Citation No. 8419577 was designated as unlikely because the tear did not extend all the
way through to the inner conductors, the cable was hanging up on the rib and somewhat out of
the way, and the tear was in an area that would not generally be handled by anybody during the
shift. (Tr. 227:19-228:3) Baum testified that if someone were to come into contact with
defective cable splice, the 480-volt load could cause a fatal electrical shock. (Tr. 228:4-9) The
condition existed for at least a shift. (Tr. 229:22-24) Baum designated the citation as affecting
one person because generally only one person handles the cable at a time. (Tr. 229:7-12)
In contrast, Citation No. 8419579 was designated as reasonably likely. (Ex. S-27) The
splice was in an area near the bolter where it would have been handled throughout the shift on a
regular basis. (Tr. 232:7-9) Additionally, the cable would be energized when in use. (Tr.
231:22-24) When the roof bolter is moved, miners have to hang the cable, take the cable down,
reel it up, deploy it along the ribs, and keep it out of the way. (Tr. 232:14-19) Baum testified
that a fatal electric shock could happen. (Tr. 233:10-12) He determined that one person would
affected because only one person handles the cable at a time. (Tr. 233:15-19) Baum testified
that the condition lasted at least one shift. (Tr. 234:23-25)
Respondent argued that the citations should be limited to “lost workdays” because a
NIOSH study shows that only 3.3% of all reportable coal mine electrical injuries were fatal,
whereas 90% of the injuries resulted in lost workdays or restricted duty. (Resp. Br. at 21)
Respondent also stated that according to the MSHA website, there were only three electrical
fatalities between 2001 and 2007. Id. Respondent used a risk management analysis to determine
that the likelihood of injury would not be fatal. Id. at 22. This is not the proper analysis when
the court makes a determination of gravity.
The seriousness of a violation can be examined by looking at the importance of the
standard which was violated and the operator’s conduct with respect to that standard, in the
context of the Mine Act’s purpose of limiting violations and protecting the safety and health of
miners. Harlan Cumberland Coal Co., 12 FMSHRC at 140. Additionally, the Commission has
recognized that the likelihood of injury is to be made assuming continued normal mining
operations without abatement of the violation. U.S. Steel Mining Co., 7 FMSHRC at 1130.
Citing statistics of fatalities at other mines over a period of time does not adequately account for

37 FMSHRC Page 294

the presumption of continued mining operations at the mine in question and under the
circumstances at the mine when the citation was issued. Thus, I find Respondent’s argument to
be less convincing than the Secretary’s.
I find that for Citation No. 8419577 an injury was unlikely and for Citation No. 8419579
was reasonably likely to occur, but for both citations, the injury would be reasonably serious in
nature, i.e., electrocution.
Significant and Substantial
Citation No. 8419579 described a violation of a mandatory safety standard. There was a
reasonable likelihood that the injury in question will be reasonably serious. The defective cable
splice created an electrocution hazard. The S&S allegation requires that I determine whether
there was a reasonable likelihood that the hazard would result in an injury.14
Baum testified that the splice was in an area near the bolter where it would have been
handled throughout the shift on a regular basis. He also testified that the cable was on the
ground, and it would only take a pinhole in the insulation on the conductor for the electricity to
get out if the conditions were right. (Tr. 233:1-6) Additionally, in this case the tear extended
through to the inner conductors, creating a greater chance of shock. (Tr. 233:20-234:6) In
addition, because the splice had opened all the way to the inner conductor, the cable was more
likely to sustain additional damage during continued mining operations. (Tr. 232:2-9)
Respondent’s witness Randy Aymer (“Aymer”)15 testified that, as the cable is being moved
along the mine floor, rocks and debris could get inside the outer jacket and cause further
damage to the inner conductor. (Tr. 252:22 – 253:16)
Respondent argued that Citation No. 8419579 should not be designated as S&S because
the bolter was not in use at the time of inspection, no work was scheduled for the machine for
the remainder of the vacation period, and the roof bolter cable would have been checked as part
of the required electrical permissibility prior to the roof bolter being placed back into service.
(Resp. Br. at 22) Baum testified that even though the mine was idle for a vacation break,
maintenance and repair crews were still working in the mine. (Tr. 241:18-20) Baum also
testified that if the damaged cable was not found, it would have existed when mining resumed
after the vacation. (Tr. 242:4-10) Respondent presented no evidence, other than conclusory
statements in its brief, that no work was scheduled for the roof bolter during the vacation period
and that the machine had been tagged out, which would require a permissibility inspection if
returned into service. As such, Respondent’s argument is unconvincing.

14

Citation No. 8419577 was not designated as S&S, and therefore, no analysis is
necessary.
15

At the time of the hearing, Randy Aymer was the chief underground maintenance
person for Tri County Coal. (Tr. 247:25 – 248:1) He has worked in the mine since 1973 and
been chief electrician for a majority of the time. (Tr. 248:4-10)

37 FMSHRC Page 295

Aymer testified that if a fault occurs in the system, a ground check device would prevent
electrocution, unless the inner insulation was damaged. (Tr. 250:9-23) For Citation No.
8419579, the inner insulation was damaged. (Tr. 250:9-23). Aymer confirmed that 480 volts
could kill a person. (Tr. 257:1-2) On rebuttal, Inspector Baum testified that a defect in the cable
covering does not always trip the ground fault protector as Aymer suggested. Baum has
witnessed machines running with cuts in the cable. (Tr. 259:2-7) He testified that minor damage
to the inner conductors does not necessarily cause the power to turn off. (Tr. 259:9-10)
I conclude that it was reasonably likely that the defective cable splice could contribute to
an injury because of its location and the fact that the tear went all the way to the inner
conductors. The Secretary proved by a preponderance of the evidence that the S&S designation
was warranted for Citation No. 8419579.
Penalty
For Citation No. 8419577, the Secretary proposed a penalty of $425.00. Tri County’s
mine produces 1,310,941 tons annually. Tri County’s negligence was moderate. Its business
will not be significantly affected by the penalty sought by the Secretary. The citation was not
designated as S&S. According to the parties’ stipulations, Tri County demonstrated good faith
in abatement of the violating conditions. Considering the factors itemized in section 110(i), and
guided by the Secretary's penalty assessment regulations, I impose a penalty of $425.00.
For Citation No. 8419579, the Secretary proposed a penalty of $2,106.00. Tri County’s
mine produces 1,310,941 tons annually. Tri County’s negligence was moderate. Its business
will not be significantly affected by the penalty sought by the Secretary. The citation is S&S.
According to the stipulations agreed to by the parties, Tri County demonstrated good faith in
abatement of the violative condition. Considering the factors itemized in section 110(i), and
guided by the Secretary's penalty assessment regulations, I impose a penalty of $2,106.00.
WHEREFORE, it is ORDERED that Tri County pay a penalty of $8,853.00 within
thirty (30) days of the filing of this decision.

/s/ L. Zane Gill
L. Zane Gill
Administrative Law Judge
Distribution:
Emily L. B. Hays, Esq., Department of Labor, Office of the Solicitor, 1999 Broadway, Suite
800, Denver, Colorado 80202
Gary Ronald, Managing Partner, P.O. Box 259, 2 Mine Ave., Farmersville, IL 62533

37 FMSHRC Page 296

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9933 / FAX: 202-434-9949

February 9, 2015
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS

v.

Docket No. VA 2014-50-M
A.C. No. 44-00022-337048-UXY

JANNEY PAINTING,
Respondent.

Docket No. VA 2014-28-M
A.C. No. 44-00022-333864-UXY

Mine: Burkesville Plant

DECISION REJECTING SETTLEMENT MOTION
Before:

Judge Moran

This case is before the Court upon a petition for assessment of civil penalties in these
consolidated cases under section 105(d) of the Federal Mine Safety and Health Act of 1977. The
parties have filed a joint motion to approve settlement. The original, proposed, assessment for
the citations at issue in these consolidated cases was $600.00, representing six section 104(a)
citations, each with a proposed assessment of $100.00. The $100.00 per citation figure
represents a 10% lopping off of the $112.00 penalty amount, derived upon application of the
Part 100 penalty point computation, per 30 C.F.R. § 100.3(f), which provides a 10% discount in
the penalty “where the operator abates the violation within the time set by the inspector.”
Concerning the four remaining (i.e. non-vacated) citations that are the subject of the
settlement motion, only one presents a problem. Three of the four are proposed to be settled for
the full proposed penalty of $100.00 each, with no changes, that is to say, as the Secretary
describes it, with “no modifications” to the citations. However, for one of the citations, while
proposed to be settled for the same $100.00 proposed amount, the motion seeks to modify the
negligence from “moderate” to “low.”
While the Commission evaluates the degree of negligence associated with a given
violation independent of Part 100’s provisions, it is noted that, per section 100.3(d),
“Negligence,” moderate negligence is distinguished from low negligence. Both categories of
negligence refer to a mine operator who knew or should have known of the violative condition
or practice, but whereas moderate negligence allows that mitigating circumstances were present,
“low negligence” involves “considerable mitigating circumstances.” 30 C.F.R. § 100.3(d)
(emphasis added).
Although, in the broader scheme, the Court recognizes that, monetarily, these dockets are
small affairs, the Commission’s responsibilities under section 110(k) operate irrespective of the
dollar value involved. The problem with the Secretary’s motion is language that it inserted which

37 FMSHRC Page 297

is plainly yet another gambit in its effort to erode the Commission’s statutory review authority
under that section. See, Sec’y of Labor v. Am. Coal Co., 35 FMSHRC 515 (Feb. 2013) (ALJ) (on
interlocutory review before the Commission, as granted in the Order dated July 11, 2014). To
that end, the Secretary asserts that “[i]n light of the fact that there are no reductions in penalty
and in light of the fact that the Secretary has unreviewable authority to modify or to vacate
citations or orders, [the Commission has] no discretion to reject the proposed disposition of
these cases.” Secretary’s Draft Order Approving Settlement at 1 (emphasis added).
The Court does not agree, as the Secretary contends here, that the Commission’s
authority under section 110(k) is limited to passing on the proposed dollar amount.
Consequently, while for now1 the Mine Act does not prevent the Secretary from vacating
citations and orders, the modification of those enforcement tools is subject to the Commission’s
review.
The applicable Mine Act language provides that “[n]o proposed penalty which has been
contested before the Commission under section 105(a) shall be compromised, mitigated, or
settled except with the approval of the Commission.” 30 U.S.C. § 820(k). The reduction of the
category of negligence from moderate to low negligence falls within the Commission’s
approval of contested penalties. Here, the Secretary’s Motion fails to provide essential and
required information to explain the basis for its diminished characterization of the negligence.
The motion therefore needs to identify both the mitigating circumstances originally
listed and then identify the “considerable mitigating circumstances” that brought about the
proposed change. The Joint Motion also misleads, in its summary portion, the true state of
affairs for Citation No. 8725394, in that it speaks only in terms of the basis of compromise of
the penalty, which it describes as “none,” and merely notes that the proposed amount of the
penalty from the Office of Assessments and the settled amount are the same.2 Joint Motion at 3.
Although the requirement to present sufficient information for the Commission to
appreciate the basis for compromising a citation applies in each instance, it is also noted that in
this instance the violation was not merely a relatively harmless paperwork oversight. Involved
was a 105 gallon diesel fuel tank in the back of flatbed truck which tank lacked “the required
haz-com label to display the appropriate hazard warnings.” The citation went on to allege that
the absent label “exposes miners to a hazard of contacting a chemical and not knowing the
physical hazards of that chemical. Permanently disabling injuries would be expected if miner[s]
were to get the chemical in their eyes and not know the appropriate medical treatment. [The]
Diesel fuel tank is available for use on a daily basis.” Citation No. 8725394.
1

Whether the Secretary should continue to have unreviewable authority to vacate
citations is not presently in issue. Perhaps the time for reconsideration of that unfettered
authority has arrived.
2

A table, at page 2 of the Joint Motion, does note for Citation No. 8725394 under “other
modifications to citations,” the change from “Moderate to Low Negligence.” The table, as with
the entirety of the Motion, offers no explanation of the basis for this reduction in the negligence
level.

37 FMSHRC Page 298

Regrettably, this Motion evidences that the Secretary continues to miss the larger point.
Recall that in the Secretary’s April 30, 2014 Motion for Reconsideration of this Court’s denial of
the Secretary’s settlement motion in American Coal, it had to be pointed out that its Motion for
Reconsideration contained not a single word about the safety and health of miners, the Secretary
apparently forgetting that its client is the Mine Safety and Health Administration and that its
ultimate clients are the men and woman who work in the Nation’s Coal and other mines.3 Order
Denying Motion for Reconsideration of Settlement, May 13, 2014. Here, the Secretary, again
unwilling to comply with the Commission’s mandate under section 110(k) of the Mine Act,
apparently continues to think that it is only about money, not miner safety.
As evidenced by the stock language it now inserts in nearly every settlement motion, the
Secretary deigns to only tell the Commission that it “has evaluated the value of the compromise,
the likelihood of obtaining a still better settlement, the prospects of coming out better, or worse,
after a full trial, and the resources that would need to be expended in the attempt.” See, e.g., the
motion in this case, Janney Painting Settlement Motion at 2.
By this incantation, empty of any useful information, the Secretary believes that is all
that the Commission, the public, and miners are entitled to know. But if this were accepted, the
Commission’s role in reviewing proposed penalties, which have been contested before it, would
become a perfunctory and hollow process. As this Court has previously noted, the words of
section 110(k) of the Mine Act, 30 U.S.C. § 820(k), the legislative history for that provision, and
the decisions of the Federal Mine Safety and Health Review Commission each refute such a
construction.
ACCORDINGLY, on the basis of the foregoing, the Joint Motion to Approve
Settlement is DENIED. The Secretary is directed to resubmit its motion with the appropriate
information included, justifying its proposed reduction in the negligence attendant to this
citation, or to prepare for hearing.

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

3

It was not until after the Court pointed out that Secretary said not a word about the
Nation’s miners in its Motion for Reconsideration that subsequent filings remembered to
mention it.

37 FMSHRC Page 299

Distribution:
Thomas A. Grooms, Esquire, United States Department of Labor, 618 Church St., Suite 230,
Nashville, TN 37219
Joshua Schultz, Esquire, Law Office of Adele Abrams, P.C., 4740 Corridor Place, Suite D,
Beltsville, MD 20705

37 FMSHRC Page 300

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

February 12, 2015
DISCRIMINATION PROCEEDING

LAWRENCE PENDLEY,
Complainant,

Docket No. KENT 2013-606-D
MSHA Case No.: MADI-CD 2010-07 & 11

v.
HIGHLAND MINING CO. AND JAMES
CREIGHTON,
Respondent.

Mine: Highland 9 Mine
Mine ID: 15-02709
DECISION

Appearances:

Tony Oppegard, Esq., Lexington, KY, Representing the Complainant
Wes Addington, Esq., Appalachian Citizens Law Center, Representing the
Complainant
Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True
PLLC, Lexington, KY, Representing the Respondent

Before:

Judge Andrews

This case is before me upon a complaint of discrimination brought by Lawrence Pendley
(“Complainant”), a miner, against Highland Mining Co. and James Creighton, (“Respondents”),
pursuant to § 105(c)(3) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30
U.S.C. § 815(c)(3).
Pendley filed his original discrimination complaints with the Mine Safety and Health
Administration (MSHA) on February 25, 2010 and March 25, 2010. RX-2; RX-3.1 Pendley
alleged that he was being interfered with in performing his duties as a miners’ representative by
Jack Creighton. CX-1; CX-2. After conducting an investigation, MSHA filed a §105(c)(2)

1

Complainant’s exhibits will hereinafter be designated CX followed by a number. The
Respondent’s exhibits will be designated as RX followed by a number. Dep-CX or Dep-RX
followed by a number refers to the Complainant’s or Respondent’s exhibits that were attached to
the deposition submitted into the record.

37 FMSHRC Page 301

complaint on Pendley’s behalf on December 2, 2010.2 On February 3, 2011, the case was stayed
pending the outcome of remand ordered by the Sixth Circuit Court of Appeals and the
Commission in Docket No. KENT 2007-383. On December 27, 2012, Judge Barbour’s Decision
on Remand dismissed all claims of discrimination pending in Docket No. KENT 2007-383.
Based on Judge Barbour’s decision, the Secretary filed a Motion to Dismiss Docket No. KENT
2011-337-DM on February 21, 2013, stating that the “pattern of discrimination that served as a
basis for the Complaint filed in this matter no longer exists.” An Order dismissing KENT 2011337-DM was issued on February 26, 2013.
Pendley, through counsel, filed the instant complaint of discrimination under §105(c)(3)
of the Act on March 22, 2013. A hearing was held in Henderson, Kentucky, on April 17, 2014, at
which the parties presented testimony and documentary evidence. After the hearing, the parties
submitted Post Hearing Briefs, which have been fully considered.
STIPULATIONS
The Complainant stipulated to the following: At the time that Lawrence Pendley filed his
complaint to MSHA in this matter, February 25, 2010 and March 25, 2010, he was designated as
a miners’ representative at Highland’s No. 9 Mine. Complainant Pre-Hearing Report, 2.
The Respondent stipulated to the following:
1.

Highland is subject to the Federal Mine Safety & Health Act of 1977.

2.

Highland mines and produces coal at the Highland No. 9 Mine that enters into and
has an effect upon interstate commerce within the meaning of the Federal Mine
Safety & Health Act of 1977.

3.

Highland is subject to the jurisdiction of the Federal Mine Safety & Health
Review Commission and the Administrative Law Judge has the authority to hear
this case and issue a decision.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
The findings of fact are based on the record as a whole and my careful observation of the
witnesses during their testimony. In resolving any conflicts in the testimony, I have taken into
consideration the interests of the witnesses, or lack thereof, and consistencies, or inconsistencies,
in each witness’s testimony and between the testimonies of the witnesses. In evaluating the
testimony of each witness, I have also relied on his demeanor. Any failure to provide detail as to
each witness’s testimony is not to be deemed a failure on my part to have fully considered it. The
fact that some evidence is not discussed does not indicate that it was not considered. See Craig v.

2

This Complaint was docketed as KENT 2011-337-D, with MSHA Case No. MADI CD

2010-11.

37 FMSHRC Page 302

Apfel, 212 F.3d 433, 436 (8th Cir. 2000)(administrative law judge is not required to discuss all
evidence and failure to cite specific evidence does not mean it was not considered).
Lawrence Pendley had been a coal miner for 31 years at the time of hearing. Tr. 14.3 He
worked at Highland No. 9 as a parts runner, until he was suspended and discharged in 2007 after
an altercation with Jack Creighton. Tr. 14, 55-57; RX-7. Pendley filed several discrimination
complaints associated with the discharge and predicate suspension, and Judge Barbour found that
the suspension was discriminatory, but the discharge was not.4 Tr. 15.
Pendley became a miners’ representative in 2009 after several miners requested that he
serve in that role. Tr. 15-16. He remained a miners’ representative at the time of hearing. Tr. 52.
As a miners’ representative, Pendley was entitled to review examination books; however, on two
occasions, people interfered with him doing so. Tr. 17. In the first instance, a Highland manager
named Jack Willingham took the books from Pendley in the recording office because he did not
think that Pendley had a right to view them. Tr. 17; Dep. 56. In the second instance, Scott
Maynard, who worked in safety for Highland, took materials from Pendley as he was viewing
them. Tr. 17-18, 28. Pendley complained to MSHA about these incidents in August 2009. Tr. 18.
MSHA subsequently had a meeting with Highland and sent letters stating that if any more
interference took place, action would be taken. Tr. 18. The August 18, 2009 letter from MSHA
informed Highland that neither Highland nor any of its agents may interfere with Pendley’s
viewing of examination books. Dep. 56; CX-4. Larry Millburg, the superintendent of operations
at Highland No. 9 mine, testified in deposition that he agreed that not allowing a miners’
representative to view examination books would constitute interference.5 Dep. 57.

3

Pages of the official hearing transcript are designated “Tr.” followed by the appropriate
page reference(s).
4

34 FMSHRC 3406 (December 27, 2012) (ALJ Barbour); 30 FMSHRC 459 (May 19,
2008) (ALJ Barbour).
5

Millburg’s deposition of April 8, 2014, was submitted as testimony at hearing. At the
time of deposition, Millburg was employed as the General Manager by Cliff’s Natural Resources
in Hueytown, Alabama. Dep. 8-9. Millburg had a high school degree, a hoist engineer’s
certificate, a mine examiner’s certificate, a mine manager’s certificate, Kentucky mining papers,
and Illinois and Kentucky mine manager and examiner certificates. Dep. 9. He had worked in the
mines since 1973, as a utility man, maintenance foreman, assistant mine manager, shift manager,
general manager, operations manager, superintendent, and vice president of operations. Dep. 911. When Millburg became vice president of operations in February 2011, he had jurisdiction
over Highland 9, the surface mine, Freedom underground mine outside Henderson, and the
underground mine at Dodge Hill. Millburg began at Highland in April, 2006. Dep. 44. Therefore,
Millburg’s jurisdiction included Highland 9 mine from 2006 through August 2012. Dep. 12-13.
During the 2009-2010 timeframe, Millburg’s duties included him being in charge of operations
at Highland 9 mine, including production, safety, maintenance, and employee discipline. Dep.
13-14.

37 FMSHRC Page 303

Furthermore, Pendley testified that Creighton interfered with his duties on several
occasions, often by standing close to him and trying to intimidate him. Tr. 16-17. Pendley felt
that mine management was permitting Creighton to behave in this way. Tr. 17. Millburg testified
that neither he nor anyone else encouraged interference with Pendley’s rights. Dep. 26-27.
The first incident with Creighton occurred in February, 2010, when Pendley and MSHA
inspector Jeff Winter came out of the records book room and into the common area. Tr. 19. At
the time, Creighton was working as a supply man, and part of his duties was to clean the
common area.6 Tr. 21. Creighton was in an area in the back of the room when he yelled out, “hey
there,” which Pendley believed was directed at him. Tr. 19, 36. Pendley believed Creighton’s
statement was a provocation, rather than a greeting. Tr. 19-20.
According to Creighton, he was sitting in the last table in the commons area when the
phone rang. Tr. 76. Creighton answered the phone and someone told him that there were parts
for him to pick up. Tr. 76. Creighton admitted that he may have yelled out “hey there,” but
testified that it would have been part of him yelling, “hey I got me a nibble,” in reference to
getting a call from the supply house. Tr. 79. He testified that the comment was not directed at
anyone. Tr. 79.
After this incident, Pendley and Winter walked over to the edge of the room and stopped
for a moment. Tr. 20. Creighton walked over and stood in close proximity to them for
approximately 15-40 seconds before moving on. 7 Tr. 20, 25, 77. Creighton grew up with Winter
and had been friends with him for a long time. Dep. 27-29. Creighton said to Winter, “How’s it
going Jeff? Where did you go today?” Winter told Creighton where he went and Creighton asked
how it looked in that area. Tr. 77. Creighton testified that he was three to four feet from Winter
when he stopped to talk to him. Tr. 86. He also said that he was facing Winter. Tr. 86. Creighton
described the conversation he had with Winter as “chit chat.” Tr. 116-118. Pendley testified that
he did not believe that Creighton had a reason to stand where he was. Tr. 20.
Creighton testified that he did not say anything to Pendley when he spoke with Winter.
Tr. 79. Pendley did not say anything to Creighton because he had been advised by mine
management and Carolyn James at MSHA not to be around Creighton. Tr. 21. Creighton
testified that he did nothing to harass Pendley or interfere with his activities as a miners’
6

Jack Creighton was employed at Highland No. 9 mine in February and March 2010. Tr.
72. Creighton began in the mining industry at Highland No. 9 mine since 1972, and retired on
September 21, 2013. Tr. 72-74. He had worked as an underground supply man, a timber man, a
ventilation man, a hoist man, a scoop man, and a bathhouse/supply/surface utility man. Tr. 73.
Creighton’s duties at the time of hearing included running the hoist, cleaning up the bathhouse,
loading and unloading supplies, and working in utilities. Tr. 74. Most of his duties were on the
mine surface. Tr. 74-75.
7

Creighton testified that he ran into Winter and Pendley right outside the commons area.

Tr. 77.

37 FMSHRC Page 304

representative. Tr. 87. Creighton had been shown a letter from the District Manager that
articulated Pendley’s walk-around rights, and was told to avoid Pendley when possible. Tr. 120124; CX-4.
Pendley brought this incident to Winter’s attention, and Winter told Pendley to ignore
Creighton. Tr. 22. Pendley proceeded to file a complaint with MSHA over this incident. Tr. 22.
After hearing that Pendley filed a complaint against him, Creighton asked Inspector Winter what
he did wrong. Tr. 88. According to Creighton, Winter replied, “Jack I didn’t say you did
anything wrong.” Tr. 90.
Creighton also talked about the complaint with Larry Millburg, Highland’s
superintendent of operations at the mine at the time. Tr. 90. Millburg had been aware of the
conflict between Creighton and Pendley. Dep. 44. Millburg testified that he received the May 5,
2009 letter from MSHA making him aware that Pendley was a miners’ representative. Dep. 1617; RX-1. At that time, a notice that Pendley was a miners’ representative was posted on a
bulletin board in the hallway. Dep. 24. Millburg had previously talked to Creighton about
Pendley being a miners’ representative. Dep. 25. Millburg testified that prior to receiving the
August 18, 2009 letter from MSHA, he was not aware that anyone from Highland was
interfering with Pendley’s rights as a miners’ representative. Dep. 26; RX-4.
After talking with Creighton, Millburg did not believe that Creighton had interfered with
Pendley’s rights as a miners’ representative. Dep. 29. Millburg discussed the events with
Creighton and Winter to see if Creighton’s account was accurate. Dep. 27. Millburg did not
believe that the letters to Pendley and Creighton prohibited contact. Dep. 36-37; RX-6, 7.
Millburg never told Creighton or Pendley that they could not be in the same room or have any
contact. Dep. 37. Millburg testified that he told Creighton that if it was at all possible he should
stay away from Pendley while Pendley was on the mine property. Dep. 37-38.
Creighton asked Millburg if he could retrieve the security camera footage from the time
of the incident on February 22, 2010. Tr. 90-91; RX-8. There had been cameras set up in the
hallways, so Millburg had Ronnie Weiss find the video.8 Dep. 30-31. After viewing the video,
Millburg determined that it corroborated Creighton’s account. Dep. 32. He stated that Creighton
was beside Pendley, standing approximately three feet away. Dep. 32-33. Creighton testified that
after reviewing the video, Millburg told him that “I saw nothing going on. I saw no harassment,
no cause for a case to be filed.” Tr. 96.
Millburg testified that he could not have prevented Creighton from speaking to Winter
because it was Creighton’s right as a miner to speak to an MSHA inspector. Dep. 33-34.
Millburg did not see any problem with Creighton’s conduct. Dep. 34.
In Creighton’s deposition, which took place 21 days before hearing, he stated that after
the February complaint, no one from Highland management talked to him about the incident. Tr.
8

Weiss did all the mine maps and computer work at the mine at the time. Dep. 31. He
passed away prior to the hearing. Dep. 31-32.

37 FMSHRC Page 305

110, 113. At hearing, Creighton stated that the reason he said this, despite the fact that he
testified that he spoke with Millburg after the February incident, is because he went to talk with
Millburg, rather than Millburg coming and talking with him. Tr. 110-111. Creighton then stated
that during the deposition, he could not recall talking with Millburg or watching the video with
him. Tr. 113.
The second incident with Creighton occurred in March, 2010, in approximately the same
location as the February 2010 incident. Tr. 22, 102. It occurred when Pendley was traveling with
MSHA Inspector Archie Coburn during a quarterly closeout. 9 Tr. 22. When Pendley and Coburn
entered the common room, Creighton yelled across the room to Pendley, “I’m going to file a
harassment case against you.” Tr. 23. At hearing, Creighton testified that he was approximately
20-25 feet from Pendley when he yelled to Fenwick. Tr. 129. However, in the deposition,
Creighton stated that he was approximately 5-10 feet from Pendley. Tr. 131.
Then, a little later, Creighton walked over to within a foot of Pendley and stood there for
approximately 30 seconds to one minute. Tr. 23-25. Pendley testified that there was no reason for
Creighton to walk up to him, and that he understood the move to be a form of intimidation and
harassment. Tr. 24-25. Pendley mentioned his concern to Coburn and Coburn told him not to pay
any attention to it. Tr. 25. Pendley subsequently filed a discrimination complaint with MSHA
over the incident. Tr. 26.
Creighton testified that he arrived at the mine at 6:30 or 7:00 am on the day of the second
incident, and soon after a miner named Chad Fenwick became upset with him because Creighton
had not yet made any sweet tea. Tr. 102. Creighton told Fenwick “to get the hell out of there
before I filed a case on him.”10 Tr. 102. Then Creighton proceeded to make Fenwick the sweet
tea, and Fenwick left. Tr. 102-103. Creighton never filed a harassment charge against Fenwick.
Tr. 127-128, 133. Creighton denied that he said anything to Pendley, stared at Pendley, touched
Pendley, or made any gestures at Pendley on March 25. Tr. 106-107.
On April 14, 2010, Creighton filed a harassment charge against Pendley. Tr. 26, 127-128,
133. In his statement to MSHA, Creighton said he felt that he was being harassed, threatened,
and discriminated against. Tr. 136. Creighton accused Pendley of positioning himself so that he
would have contact with Creighton, and said that he felt threatened and feared for his safety
while Pendley was on mine property. Tr. 137-139. Further, he demanded that Pendley be
removed as a miners’ representative. Tr. 136.
After Creighton received Pendley’s March complaint, he discussed it with superintendent
Millburg. Tr. 107-108. Millburg did not witness the events that Pendley described in his March
2014 complaint, but Millburg did not believe that Creighton’s conduct constituted harassment or
9

In quarterly closeouts, there is a review of the mine violations during the quarter, and
miners’ representatives have an opportunity to be present. Tr. 22-23.
10

Creighton alternately described his comment as, “I’m going to file a harassment case
against you.” Tr. 126-127.

37 FMSHRC Page 306

interference. Dep. 38-39. Millburg talked to Creighton after the March incident. Dep. 40.
Creighton told Millburg that he was doing his job and then walking past Pendley. Dep. 40-41.
Millburg told Creighton to stay away from Pendley if possible. Dep. 40-41.
In addition to the encounters with Creighton, Pendley also alleged discrimination by
Highland management concerning a belief that he was making complaints to MSHA and in
regards to sharing information with him. On September 9, 2009, Safety Manager James Allen
sent an email to a group of Highland management stating that Pendley was making §103(g)
complaints. Dep. 62. The recipients to the email included Frank Foster (corporate safety), Scott
Maynard (superintendent of Highland 9), Randy Duncan (Safety Supervisor at Highland 9),
Travis Little (Safety Supervisor), Jack Willingham (Safety Supervisor), and J.R. Wolfe (Training
Supervisor). Dep. 59-61.
In another email, David West asked James Allen how changes in the Emergency
Response Plan (ERP) were being communicated to the miners’ representatives at Highland. Dep.
64. At deposition, Millburg agreed that changes to the ERP must be communicated to the
miners’ representatives. Dep. 65. Allen responded that they would not post a complete ERP plan
for Pendley to review, and followed up the statement with three exclamation points. Dep. 66;
Dep-CX-6.
CONTENTIONS OF THE PARTIES
Following the hearing, the Complainant and Respondent submitted briefs and reply briefs
in support of their respective positions. The Respondent argued that no Commission case has
addressed the issue of co-worker harassment, rather than harassment by management, and that
the Commission should use other federal anti-discrimination laws as guides. Accordingly,
Respondent suggested that this Court follow a five-step analysis to determine if such
discrimination is actionable: (1) that the individual engaged in protected activity; (2) that he was
subject to harassment; (3) that the harassment was based on the protected activity; (4) that the
harassment unreasonably interfered with his performance as a miners’ representative and
objectively created a hostile environment; and (5) that the operator knew or should have known
of the alleged harassment and failed to implement prompt and appropriate corrective action.
Respondent argued that Complainant should prevail only if he can meet each of these elements.
Resp. Post-Hearing Br. 4.
The Respondent conceded that Pendley engaged in protected activity in the past, but
argued that Pendley’s claim fails on all other elements of the prima facie test that it suggested the
Commission adopt. Resp. Post-Hearing Br. 5. The Respondent argued that Pendley failed to
establish that the harassment rose to a level that was both subjectively and objectively hostile and
abusive. Respondent next argued that Pendley failed to prove that Creighton’s harassment was
based on activity protected under the Act, specifically Pendley’s rights as a miners’
representative. Resp. Post-Hearing Br. 7. Respondent contended that it was more likely that
Creighton’s actions towards Pendley were based on their history of mutual animosity rather than
on Pendley’s protected activity. Resp. Post-Hearing Br. 8-9.

37 FMSHRC Page 307

Respondent further argued that even if Creighton harassed Pendley, there was no
actionable discrimination because Highland responded appropriately and reasonably to Pendley’s
complaints. Resp. Post-Hearing Br. 9-11. Millburg told Creighton not to interfere with Pendley’s
duties as a miners’ representative and to avoid him when possible. Millburg determined that
Creighton had not violated company rules in his interactions with Pendley, so it was proper not
to discipline Creighton. Furthermore, the Respondent argued that Highland was not permitted to
limit Creighton’s abilities to speak to an MSHA inspector, so it could not instruct him against
approaching the inspector while Pendley was around. Resp. Post-Hearing Br. 13-14.
Furthermore, the Respondent argued that §103(f) provides that a miners’ representative
has the right to accompany an inspector only during the physical inspection of the mine or
participate in a pre- or post-inspection conference. To the extent that Pendley was not
accompanying the inspector at the time of the alleged harassment, the Respondent argued that he
was not engaged in protected activity. Resp. Post-Hearing Br. 3.
In its Post-Hearing Brief, the Complainant argued that the Commission has established a
different framework from the standard Pasula-Robinette analysis for determining whether
conduct constitutes interference under §105(c). Sec’y of Labor on behalf of Mark Gray v. North
Star Mining, Inc., 27 FMSHRC 1 (Jan. 2005). Rather than having to find protected activity,
adverse action, and a nexus between the two using various indicia, the interference analysis is
based on §8(a)(1) of the National Labor Relations Act. The Complainant argued that under this
analysis, the judge must only find that the Complainant engaged in protected activity and that the
operator engaged in conduct that would tend to interfere with such protected rights. Comp. PostHearing Br. 14-16.
The Complainant argued that the following actions performed by Pendley constituted
protected activities under §105(c): Pendley performing his duties as a miners’ representative
from June 2009 through April 2010; Pendley’s complaints to MSHA regarding Creighton’s and
the Highland’s alleged harassment that led to the August 18, 2009 letter; Pendley’s review of
mine examination books; and Pendley’s §105(c) complaints in February and March 2010, which
led to the instant proceeding. Furthermore, Highland’s belief that Pendley was making §103(g)
complaints to MSHA after reviewing the mine examination books was protected activity that
was imputed to Pendley, regardless of whether he actually made the complaints. The
Complainant further argued that Creighton’s harassment of Pendley, and the company’s tacit
approval of Creighton’s conduct, tended to interfere with Pendley’s rights as a representative of
miners. Comp. Post-Hearing Br. 16-19.
In response to this position, the Respondent contended that the cases cited by
Complainant involved a supervisor’s conduct, rather than a coworker’s, and that there was
nothing in the instant case to impute Creighton’s actions to management. Resp. Response Brief at
5-7. Furthermore, as opposed to the cases cited by Complainant, Pendley was neither fired nor
threatened with economic repercussions. Id. The Respondent also argued that the Commission’s
concerns over chilling speech are inapplicable here because Pendley did not receive any
remuneration for his position as a miners’ representative. Id. at 8. Finally, the Respondent

37 FMSHRC Page 308

argued that insofar as Creighton’s conduct was based on personal animosity or on any other
response to non-protected activity, Pendley’s interference claim must fail.
The Complainant responded that Pendley’s argument is not as atypical or unique as
Respondent asserted. Numerous cases have considered complaints by non-employee miners’
representatives, which are specifically protected under 105(c), and numerous cases have been
directed toward an individual respondent. Pendley Reply Brief, 4-6. Furthermore, Complainant
argues that the Respondent’s argument that Pendley and the investigator were not engaged in an
inspection or in a pre- or post-inspection conference at the precise moment of the alleged
conduct is an absurd and unsupported reading of the Mine Act. Id. At 6-7.
ANALYSIS
This case is before me on allegations that the Respondent interfered with Pendley’s rights
as a miners’ representative in violation of §105(c). The provision states:
No person shall discharge or in any manner discriminate against or cause to be
discharged or cause discrimination against or otherwise interfere with the exercise
of the statutory rights of any miner, representative of miners or applicant for
employment in any coal or other mine subject to this Act because such miner,
representative of miners or applicant for employment has filed or made a
complaint under or related to this Act, including a complaint notifying the
operator or the operator’s agent, or the representative of the miners at the coal or
other mine of an alleged danger or safety or health violation in a coal or other
mine, or because such miner, representative of miners or applicant for
employment is the subject of medical evaluations and potential transfer under a
standard published pursuant to section 101 or because such miner, representative
of miners or applicant for employment has instituted or caused to be instituted any
proceeding under or related to this Act or has testified or is about to testify in any
such proceeding, or because of the exercise by such miner, representative of
miners or applicant for employment on behalf of himself or others of any
statutory right afforded by this Act.
30 U.S.C. 815(c)(1).
The Act prohibits both discrimination because of protected activity and interference with
the exercise of statutory rights. Most cases before the Commission are of the former, and follow
the Pasula-Robinette framework, wherein the Claimant presents a prima facie case by showing
that he or she engaged in protected activity, that there was an adverse action, and that the adverse
action was motivated in any part by that activity. See Turner v. Nat 7 Cement Co. of
California, 33 FMSHRC 1059, 1064 (May 2011); Sec'y of Labor on behalf of Pasula v. Consol
Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds 663 F.2d 1211 (3d Cir.
1981); Sec'y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18
(Apr. 1981).

37 FMSHRC Page 309

The five-step analysis proposed by Respondent is unnecessary, as the Commission has
already developed various tests to determine whether unlawful discrimination or interference has
taken place, noting that “in addition to the broad protections offered against adverse actions, the
scope of miner rights protected by the Act is equally broad.” Gray v. North Star Mining, Inc., 27
FMSHRC 1, 7 (Jan. 2005). The Act’s legislative history makes clear that it protects miners
against “not only the common forms of discrimination, such as discharge, suspension,
demotion…, but also against the more subtle forms of interference, such as promises of benefits
or threats of reprisals.” S. Rep. 95-191, 95th Cong., 1st Sess. 36 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 624 (1978). In Moses v. Whitley
Development Corp., the Commission found that “more subtle forms of interference” includes
“coercive interrogation and harassment over the exercise of protected rights.” 4 FMSHRC 1475,
1478 (Aug. 1982). The Commission explained,
A natural result of such practices may be to instill in the minds of employees fear
of reprisal or discrimination. Such actions may not only chill the exercise of
protected rights by the directly affected miners, but may also cause other miners,
who wish to avoid similar treatment, to refrain from asserting their rights. This
result is at odds with the goal of encouraging miner participation in enforcement
of the Mine Act. We therefore conclude that coercive interrogation and
harassment over the exercise of protected rights is prohibited by section 105(c)(1)
of the Mine Act.
Id. at 1479.
The Commission developed the test for interference by looking to Section 8(a)(1) of the
National Labor Relations Act, 29 U.S.C. §158(a)(1), “which makes it unlawful for an employer
to ‘interfere with, restrain, or coerce’ an employee’s protected rights. Gray, 27 FMSHRC at 9.
The Commission quoted approvingly from NLRB caselaw, which holds that the issue “does not
turn on the employer’s motive or on whether the coercion succeeded or failed. The test is
whether the employer engaged in conduct which, it may reasonably be said, tends to interfere
with the free exercise of employee rights under the [NLRA].” Id., quoting American Freightways
Co., 124 NLRB 146, 147 (1959). The Commission made clear that the judge should take into
consideration the totality of the circumstances in determining whether there was unlawful
interference. Id. at 10-12. In Gray, the Commission considered such factors as “the persistence
with which the subject of the miner’s protected activity was raised and “the accusatory manner in
which it was done.” Id. at 11 (quoting trial court judge). Furthermore, it stated that other factors
must be taken into account, such as “where the statements were made,” “the nature of [the]
relationship,” and the manner in which statements were made. Id.
Building upon its prior precedent in Gray and Moses, the Commission recently provided
a helpful clarification of the elements of an interference violation. According to this test, an
interference violation occurs if:

37 FMSHRC Page 310

1)
2)

A person’s action can be reasonably viewed, from the perspective of
members of the protected class and under the totality of the circumstances,
as tending to interfere with the exercise of protected rights, and
The person fails to justify the action with a legitimate and substantial
reason whose importance outweighs the harm caused to the exercise of
protected rights.

United Mine Workers of America obo Mark A. Franks and Ronald M. Hoy v. Emerald Coal
Resources, LP, 36 FMSHRC 2088, 2108 (Aug. 2014). The Commission stated in no uncertain
terms that “for the miners to prevail on their interference claim, proof of the operator’s intent to
interfere with the miner’s statutory rights is not required.” Id. at 2112-2113. Viewing the totality
of the circumstances in the instant case, I find that Pendley’s rights as a miners’ representative
were interfered with in violation of Section 105(c).
Section 103(f) of the Mine Act provides miners’ representatives the “opportunity to
accompany the Secretary or his authorized representative during the physical inspection of any
coal or other mine made pursuant to the provisions of subsection (a) of this section, for the
purpose of aiding such inspection and to participate in pre- or post-inspection conferences held at
the mine.”11 30 U.S.C.A. § 813(f). In addition to these walk-around rights and pre- and postinspection conference rights, miners’ representatives are also provided notice rights and the right
to make safety complaints. The legislative history of the Mine Act viewed the miners’
representative as serving an important function in ensuring the safety and accountability at
mines.12
In the instant case, Pendley faced interference with his walk-around rights, his right to
examine books, and his right to make safety complaints. Each of these will be examined
11

The regulations define “representative of miners” as:

(1) Any person or organization which represents two or more miners at a
coal or other mine for the purposes of the Act, and
(2) Representatives authorized by the miners, miners or their
representative, authorized miner representative, and other similar terms as they
appear in the Act.
30 C.F.R. § 40.1.
12

The Senate Report accompanying the Mine Act states, “Presence of a representative of
miners at opening conference helps miners to know what the concerns and focus of the inspector
will be, and attendance at closing conference will enable miners to be fully apprised of the
results of the inspection. It is the Committee's view that such participation will enable miners to
understand the safety and health requirements of the Act and will enhance miner safety and
health awareness.” S. Rep. 95-191.

37 FMSHRC Page 311

separately. However, taken together, these actions constituted interference of Pendley’s rights as
a miners’ representative in violation of the Mine Act.
The Respondent Creighton interfered with Pendley’s walk-around rights when he
repeatedly conducted himself in a manner that Pendley understood as intimidation. The
Commission’s test requires that the action be “reasonably viewed…under the totality of the
circumstances.” In this instance, Pendley and Creighton’s multi-year feud, which resulted in
numerous judicial decisions and Pendley’s termination, is important to contextualizing the
conduct.
In his December 27, 2012 Decision, Judge Barbour began by noting that “this
discrimination proceeding has a long and tortured history.”13 Sec'y on behalf of Pendley v.
Highland Mining Co., 34 FMSHRC 3406 (Dec. 27, 2012) (ALJ).14 Allegations of discrimination
and conflicts with Creighton go as far back as 2005. Sec'y on behalf of Pendley v. Highland
Mining Co., 30 FMSHRC 459 (May 19, 2008) (ALJ).15 In May 2005, Pendley complained to his
supervisor after Creighton used “foul language” in response to Pendley’s request for a delivery
of food. Id. at 462. During that same month, Pendley accused Creighton of opening his
bathhouse locker and pouring bleach on his clothing. Id. at 463. Creighton denied the charge, but
according to Pendley, he told fellow miners that Pendley was “crying,” and “I’ll give you
something to cry about.” Id. Subsequently, dirt was swept intentionally in front of Pendley’s
locker, and Pendley similarly suspected Creighton of being the culprit. Id. 463-464.

13

Judge Barbour recounted this history in his decision:

It is before me on remand from the Commission (Sec'y of Labor on behalf of
Pendley v. Highland Mining Co., 34 FMSHRC___, KENT 2007-383-D (August 30,
2012) (hereinafter Pendley, slip op.), which in turn received the case from the United
States Court of Appeals for the Sixth Circuit. Pendley v. FMSHRC, 601 F. 3d 417 (6th
Cir. 2010). The Sixth Circuit reversed the prior decision of the Commission (Sec'y on
behalf of Pendley v. Highland Mining Co., LLC, 31 FMSHRC 61 (Jan. 2009)), a decision
affirming my underlying decision on the merits. Sec'y on behalf of Pendley v. Highland
Mining Co, LLC, 30 FMSHRC 459 (May 2008) (ALJ). Pursuant to its reading of the
Sixth Circuit's opinion, the Commission returned the case to me to determine whether
Highland Mining Co. (“Highland”) discriminated against Lawrence Pendley (“Pendley”)
in violation of the Mine Act when it: (1) fired him in March 2007, and (2) changed his
work assignments and conditions when he returned to work upon an order of
reinstatement.1 Pendley, slip op. at 15.
34 FMSHRC at 3406.
14

This decision is also in the Record as RX-7.

15

This decision is also in the Record as RX-6.

37 FMSHRC Page 312

Next, as Judge Barbour found, came the “gun” incident. Creighton testified he knew
Pendley had gone to Creighton's supervisor and complained. “So” said Creighton, one day in the
bathhouse “after I heard [about] him complaining, I walked halfway back [to Pendley's locker]
… thr[ew] a piece of paper towel on the floor and told him there is something to cry about …
[and] that's when he reached up in his locker in his hard hat and pulled out what I perceived to be
a weapon.” Creighton continued, “I told him … I [will] shove it down … [your] throat or make
… [you] eat it, something on that order.” Creighton maintained Pendley “started mouthing” at
him, but Creighton walked away. Id. at 464 (citations omitted). Throughout 2005, matters
continued to deteriorate between Pendley and Creighton, with accusations that Creighton was
inspiring harassment against him. In one instance, Pendley accused Creighton of suddenly
stopping the cars while he was traveling into the mine, which resulted in Pendley going to the
hospital. Id. at 468-471.
The final incident occurred in 2007, when a physical altercation occurred between
Pendley and his “long-time nemesis, Jack Creighton.” 34 FMSHRC at 3407. As a result of this
altercation, as well as a loud argument that Pendley had concerning his overtime pay, Millburg
made the decision to suspend and then terminate Pendley’s employment. Id. Judge Barbour
found that the suspension was discriminatory, but that Respondent had a legitimate
nondiscriminatory reason for firing Pendley. Id.
Pendley became a non-employee representative of miners in 2009, and it was in this
capacity that he experienced the instant discrimination. Tr. 15-16.
With regards to the February and March 2010 incidents where Creighton stood beside
Pendley or yelled out threats to bring discrimination claims against him, I found much of
Creighton’s testimony to be incredible. Creighton’s testimony was filled with ad hoc
explanations that sounded more clever than true. A prime example of such incredible testimony
was Creighton’s attempt to reconcile his hearing testimony with his deposition testimony, which
took place three weeks prior, concerning whether he talked with anyone in mine management
about the February encounter with Pendley. Tr. 110-113. At deposition, Creighton answered in
the negative when asked if anyone in mine management had talked to him about the incident,
however at hearing he testified that he spoke with Millburg. Id. Creighton’s explanation for this
contradictory testimony was that in deposition he understood the question to be whether anyone
from mine management talked to him about the incident, not whether he talked to anyone from
mine management about the incident. Id. This tortured parsing of the parts of a conversation to
explain contradictory testimony defies credibility, and constitutes but one instance of Creighton
providing seemingly made up and self-serving excuses to explain away his actions.
Pendley and Creighton had been told to stay away from each other when possible. Tr.
120-124; CX-4. There may have been instances where run-ins between Pendley and Creighton
were necessary or unavoidable, but what occurred in February and March 2010 were not such
instances. According to Pendley’s credible testimony, Pendley was exercising his walk-around
rights by accompanying inspectors before, during, and after an inspection. Tr. 19-20, 22-25.

37 FMSHRC Page 313

During the February inspection, Creighton yelled out “hey there” to Pendley as a
provocation. Tr. 19-20, 36. Creighton’s testimony that he was not yelling at Pendley, but was
instead yelling “hey there I got me a nibble” to no one in particular in response to a phone call,
defies belief and was not credible. Tr. 79. Following this outburst at Pendley, Creighton walked
over to the edge of the room where Pendley and the inspector were standing and stood in close
proximity to them for a period of 15-40 seconds in order to “chit chat” with the inspector. Tr. 20,
25, 77, 116-118. Based on their long history of conflict, it was reasonable for Pendley to see
these actions as a provocation and an attempt to interfere with his rights as a miners’
representative. Pendley proceeded to complain to the inspector and filed a complaint with MSHA
over the incident; however, mine management did nothing. Tr. 22.
Approximately one month later, a similar encounter occurred. Pendley was
accompanying an inspector, and Creighton yelled at him from across the room, “I’m going to file
a harassment case against you.” Tr. 22-23. Creighton’s testimony that he was not yelling at
Pendley, but rather was yelling at another miner who was upset with Creighton for not making
sweet tea was not credible, especially in light of the fact that Creighton filed a discrimination
complaint against Pendley a few weeks after the incident. Tr. 102, 26, 127-128. Creighton then
proceeded to walk over to within a foot of Pendley and stand there for approximately 30 seconds
to one minute. Tr. 23-25. Pendley viewed Creighton’s conduct to be a form of harassment meant
to intimidate him. Tr. 24-25. Based on the history of conflict that existed between Creighton and
Pendley, along with the fact that Pendley had just filed a complaint based on similar conduct, this
view was indeed reasonable.
Creighton has a right under the Act to bring a discrimination complaint for actions that he
believes constitute discrimination. However, his yelling across the room that he would be filing a
complaint against Pendley appears more like a threat than an exercise of his rights. This is
further bolstered by the fact that in his complaint Creighton demanded the removal of Pendley as
a miners’ representative, which is a remedy beyond MSHA’s authority. Tr. 136. Despite the long
history of actual conflicts between these miners, it is quite telling that at the time pertinent to this
proceeding there is no credible evidence that Pendley acted in any aggressive manner. He was
not alone, but in the company of an MSHA inspector while on mine property.
Despite Millburg, who was a member of mine management, knowing about the
problematic history between Pendley and Creighton, he chose to do nothing. Tr. 110-111, Dep.
40-41. Millburg testified at deposition that after talking with Creighton, he did not believe that
any interference had taken place. Dep. 29. Millburg only viewed the videotape footage of the
incident because Creighton asked him to retrieve it. Tr. 90-91. Millburg testified that the footage
corroborated Creighton’s account, so there was no need for an investigation. Dep. 32-33. Upon
viewing the video footage submitted, I find that the footage has little evidentiary value in proving
or disproving interference on Creighton’s part. The video, which has no sound and is shot from a
high vantage point in the hallway, merely shows Creighton walking up to two obscured figures
who are largely beyond view and talking at them for a period close to a minute. RX-8, at minute
11:33-11:34. One cannot hear what was said, or see how Pendley reacted. The video simply
corroborates that the event happened—a fact not in dispute—but does not help in determining

37 FMSHRC Page 314

the nature of the event. Id. Millburg’s lack of action based on a conversation with Creighton and
a viewing of this video served as an allowance for Creighton to repeat his conduct.
Indeed, that the event occurred reveals mine management’s failure to restrain Creighton’s
aggressive verbal and non-verbal behaviors. Creighton was only advised that he “should” stay
away from Pendley “if at all possible.” Considering Millburg’s knowledge of the history of
conflicts, this advice was a woefully inadequate exercise of supervisory responsibility. Millburg
did not tell Creighton and Pendley they could not have contact. Hence, Creighton’s actions can
be imputed to Highland.
Respondent cites Thurman v. Queen Anne Coal Co., 9 FMSHRC 526 (March 9, 1987)
(ALJ) for the proposition that the employer is not liable for acts of co-worker harassment.
However, Thurman is inapposite to the instant case. Thurman was not an interference case, but
rather a discrimination case. The judge employed the Pasula-Robinette framework for analyzing
the case, and found that it failed on the adverse action prong. Id. at 529-531. Furthermore, the
judge found that the instances of harassment by Thurman’s coworker, were not in any way
related to the miner’s protected activity.
In the instant case, Creighton’s conduct tended to interfere directly with Pendley’s walkaround rights, which, as discussed supra, is a protected activity. Respondent’s argument that the
Act only protects miners’ representatives during the actual inspection and during the exact
moments of pre- or post-inspection conferences is an unnecessarily narrow reading of the Act,
which the Commission has rejected previously. See Secretary of Labor, on behalf of Truex v.
Consolidation Coal Co., 8 FMSHRC 1293, 1299 (Sept. 25, 1986) (“Consol's argument that the
miners' section 103(f) rights, if any, arose when the inspector arrived on mine property is not
well taken on this record.”). Pendley was accompanying the inspector during the general period
of an inspection, and as such was exercising his walk-around rights. If the Act permitted
interference immediately before or after an inspection, then the purpose of §§103(f) and 105(c)
would be nullified by providing legally sanctioned windows when interference was allowable.
I need not find that Creighton’s conduct alone constituted interference in this case,
because there were other acts or omissions by mine management, which combined with
Creighton’s conduct, constituted interference.
In addition to Creighton’s conduct, mine management illustrated a pattern of attempting
to hide information from Pendley that, as a miners’ representative, he was permitted to access.
Pendley complained to MSHA in August, 2009 about two incidents where materials he was
viewing were taken from him. Tr. 18. In the first incident, a manager named Jack Willingham
took examination books from Pendley while he was reading them in the recording office, an act
which Millburg admitted constituted interference with Pendley’s rights. Tr. 17; Dep. 57. In the
second incident, an individual from safety named Scott Maynard took materials from Pendley as
he was viewing them. Tr. 17-18, 28.
Furthermore, Highland was required to inform miners’ representatives of any changes to
the emergency response plan (ERP); however, safety manager James Allen refused to provide a

37 FMSHRC Page 315

copy of the ERP to Pendley. Dep. 83-84. Evidence submitted at hearing shows that Carl Boone
emailed Allen informing him that Pendley was a miners’ representative and should receive a
copy of the ERP. Dep-CX-6. Following this email, Frank Foster of Magnum Coal emailed Allen
that “there should be a copy [of the ERP] posted for Pendley to review if he wishes, correct?”
Dep. 65-66; Dep-CX-6. Allen responded, “We will not post a complete ERP plan!!!” Such
refusal to share required materials with Pendley constituted interference with Pendley’s rights as
a miners’ representative.
Additionally, there are indications beyond these events that Highland’s actions were
conducted with animus towards Pendley’s rights. For instance, emails introduced into evidence
indicate that Allen was trying to determine who was making confidential 103(g) complaints to
MSHA. Dep. 62. “Section 103(g) of the Mine Act provides for an immediate inspection of a
mine upon the complaint of a miner or representative of miners. 30 U.S.C. § 813(g). The section
further provides that the name of the complaining miner should not be disclosed.” Highland
Mining Co., 31 FMSHRC 61, n. 8 (Jan. 2009). On September 9, 2009, Allen sent an email to
Foster detailing a few recent 103(g) inspections. Dep-CX-5. In response, Allen asked Foster,
“Are we still getting a lot of 103 G’s (sic) there?” Id. Foster responds to this email, by blind
copying a group of Highland managers, and indicating that he believed Pendley was responsible
for the 103(g) complaints to MSHA. Id.
As you know, Lawrence Pendley (X-employee) is on the “Miner’s Rep” listing
for this group of miners. He shows up at different times to travel with the
inspectors. When he is on the property, he will review our belt books, then at a
later date call in a 103 G on specific belts that he seen “Corrections needed”
entered in the belt books. MSHA comes out to the mine and inspects these areas.
The no. 3 and 4 belts have been inspected during this regular as a result of 103 G
call In’s.
Id. (grammatical mistakes in original). This email sent among Highland management shows that
they suspected him of making 103(g) complaints and labeled him as a troublemaker.
CONCLUSION ON LIABILITY
Based on the above, I find that Highland Mining Company and James Creighton violated
Section 105(c) of the Act by interfering with Lawrence Pendley’s rights as a Miner’s
Representative.
DAMAGES
When a discrimination complainant’s claim is granted, Section 105 (c)(3) of the Act
provides that the Administrative Law Judge may grant “such relief as it deems appropriate.” The
Complainant has requested no specific relief in these proceedings. The record, therefore, must be
further developed for consideration of any affirmative relief, including but not limited to, for
example, costs and expenses, posting notice and/or training.

37 FMSHRC Page 316

Accordingly, the parties are ORDERED TO CONFER within 21 days of the date of
this decision for the purpose of arriving at an agreement on the specific actions and monetary
amounts that will constitute the complete relief to be ordered in this case. If an agreement is
reached, it shall be submitted within 30 days of the date of this decision.
If an agreement cannot be reached, the parties are FURTHER ORDERED to submit
their respective positions, concerning those issues on which they cannot agree, with supporting
arguments, case citations and references to the record, within 30 days of the date of this decision.
For those areas involving monetary damages and relief on which the parties disagree, they shall
submit specific proposed dollar amounts for each category of relief. In the rare event of factual
disputes requiring an evidentiary hearing, the parties should submit a joint request.
The undersigned judge retains jurisdiction of this matter until the specific remedies to
which Lawrence Pendley is entitled are resolved and finalized. Accordingly, this decision will
not become final until an order granting any specific relief and awarding any monetary damages
has been entered.
Pursuant to Commission Rule 44(b), 29 C.F.R. §2700.44(b), a copy of this decision will
be sent to the office of the Regional Solicitor having responsibility for the area in which the
Highland 9 Mine is located so that the Secretary may take the actions required by the rule.

/s/ Kenneth R. Andrews
Kenneth R. Andrews
Administrative Law Judge
Distribution:
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522
Wes Addington, Esq., Appalachian Citizens’ Law Center, 317 Main St., Whitesburg, KY 41858
Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont
Centre Circle, Suite 375, Lexington, KY 40513
Jack Creighton, 324 Bell Hite Drive, Morganfield, KY 42437
Douglas N. White, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 1100
Wilson Boulevard, 22nd Floor West, Arlington, VA 22209-2247
/mzm

37 FMSHRC Page 317

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

February 23, 2015
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 2008-737
A.C. No. 15-18267-144079

v.
MANALAPAN MINING CO., INC.,
Respondent

Mine: RB No. 10 Mine

DECISION ON REMAND
Before: Judge Feldman
Procedural History1

I.

This proceeding initially concerned four alleged violations of 30 C.F.R. § 75.400, which
prohibits the accumulation of combustible coal dust materials, three of which have been
resolved. The remaining alleged violation, which was previously remanded by the Commission
for further consideration in Manalapan I, 35 FMSHRC 289 (Feb. 2013), has once again been
remanded for resolution of whether the cited violation of section 75.400 in Order No. 7511478
(Belt No. 2) was attributable to an unwarrantable failure. Manalapan II, 36 FMSHRC 849 (Apr.
2014).

1

−
−
−
−

There have been several decisions issued in this matter:

My initial decision, 32 FMSHRC 690 (June 2010) (ALJ), will be referred to as the
“initial decision.”
The Commission’s initial remand, 35 FMSHRC 289 (Feb. 2013), will be referred to as
“Manalapan I.”
My first decision on remand, 35 FMSHRC 1377 (May 2013) (ALJ), will be referred to as
the “previous remand decision.”
The Commission’s second remand, 36 FMSHRC 849 (Apr. 2014), will be referred to as
“Manalapan II.”

37 FMSHRC Page 318

The Commission succinctly summarized the material facts in this case in its current
remand in Manalapan II:
Manalapan operated an underground coal mine in Pathfork, Kentucky. Coal was
extracted from the working face by a continuous miner and transported out of the
mine by a series of conveyor belts that were approximately 2,300 feet in total
length. The extracted material was transferred in turn from the No. 4 belt at the
face to the No. 3 and No. 2 belts and ultimately to the No. 1 belt nearest the
surface. The conditions in the mine were constantly wet because of percolation of
water through old works and the mine floor and ribs, and by the use of water for
dust control at the face. Despite the presence of water pumps, water was never
completely removed, and the mine floor remained muddy at all times.
36 FMSHRC at 850-51.
As noted in my initial decision in this matter:
The [Secretary] initially sought to impose a total civil penalty of $833,600.00 for
four alleged “flagrant” violations of the mandatory safety standard contained in
section 75.400, 30 C.F.R. § 75.400, of the Secretary’s regulations. . . .
On November 3, 2009, the Secretary filed . . . an amendment to the May 15, 2008,
civil penalty petition removing the “flagrant or reckless disregard” charge for the
104(d) citation and three 104(d) orders that are the subject of this proceeding. In
addition, the Secretary reduced the total proposed penalty from $833,600.00 to
$240,000.00 to conform with the maximum civil penalty of $60,000.00 [in effect
at that time] for each of the four alleged combustible accumulation violations that
the Secretary asserts is attributable to Manalapan’s unwarrantable failure.
Initial Decision, 32 FMSHRC 690, 690-91 (June 2010) (ALJ).
My initial decision affirmed 104(d)(1) Citation No. 7511467 (Belt No. 4) as a significant
and substantial (S&S) violation attributable to an unwarrantable failure, and imposed a civil
penalty of $20,000.00. Id. at 697-99. With respect to 104(d)(1) Order No. 7511472 (Belt No. 3),
my initial decision also affirmed the cited violation and its S&S nature, but modified the order to
a section 104(a) citation, thus reflecting that the cited condition was not attributable to an
unwarrantable failure. A $12,000.00 civil penalty was imposed for 104(a) Citation No. 7511472
(Belt No. 3). Id. at 700-02. With regard to 104(d)(1) Order No. 7511478 (Belt No. 2), the subject
of this Remand Decision, my initial decision affirmed the violation, deleted the S&S designation,
and modified the order to a 104(a) citation, thus deleting the unwarrantable failure designation. A
$4,000.00 civil penalty was imposed for 104(a) Citation No. 7511478 (Belt No. 2). Id. at 702-04.
Finally, my initial decision vacated 104(d)(1) Order No. 7511479 (Belt No. 1) as the facts
surrounding the cited condition did not support the alleged section 75.400 violation. Id. at 70405.

37 FMSHRC Page 319

The Secretary appealed the removal of the unwarrantable failure designations with
respect to the cited conditions in 104(a) Citation Nos. 7511478 (Belt No. 2) and 7511472 (Belt
No. 3).2 In response to the Secretary’s appeal, in Manalapan I, the Commission remanded this
matter for reconsideration of these unwarrantable failure deletions. 35 FMSHRC at 298. My
previous remand decision reinstated Order No. 7511472 (Belt No. 3), reflecting that the cited
condition was attributable to an unwarrantable failure, and raised the civil penalty from
$12,000.00 to $16,000.00. Previous Remand Decision, 35 FMSHRC 1377, 1381 (May 2013)
(ALJ). Upon revisiting the circumstances surrounding the unwarrantable designation in Order
No. 7511478 (Belt No. 2), I concluded, in essence, that the issuing inspector’s testimony
characterizing the cited condition as a “borderline” violation failed, as a matter of law, to satisfy
the Secretary’s preponderance of evidence burden of demonstrating that a violation occurred. Id.
at 1383-85. Thus, my previous remand decision vacated Order No. 7511478 (Belt No. 2).
This brings us to the Commission’s current remand, in Manalapan II, in which the
Commission vacated and reversed my previous remand decision that vacated Order No. 7511478
(Belt No. 2) because the Secretary had not proven that the cited violation had in fact occurred. In
so doing, the Commission credited the Secretary’s assertion that my initial unappealed finding
that the accumulations along the Belt No. 2 constituted a violation of section 75.400 became the
law of the case and could not be revisited on remand.3 36 FMSHRC at 852. Thus, the
Commission has concluded that I am precluded from vacating Order No. 7511478 (Belt No. 2)
based on the law of the case doctrine. Id.
As stated by the Commission, the law of the case “doctrine provides that when a decision
is made at one stage of litigation and not challenged on appeal, it continues to govern.” Id.
(citations omitted). However, the Commission further noted that this doctrine allows for a
“modicum of residual flexibility in exceptional circumstances.” Id. at 853 (citations and
quotations omitted). These exceptions include “a showing that the prior decision was clearly
erroneous and would work a manifest injustice.” Id. (citations and quotations omitted).
2

A flagrant violation reflects that a violative condition is extremely dangerous in that it
has been, or can reasonably expected to be, the proximate cause of death or serious bodily injury.
30 U.S.C. § 820(b)(2). Despite initially designating the cited accumulations at Belt Nos. 1 and 2
as flagrant, the Secretary did not contest my initial decision that the alleged accumulation
violation at Belt No. 1 did not occur, and that the cited accumulation at Belt No. 2 was not
reasonably likely to contribute to a serious injury.
3

At trial, the Secretary’s sole witness, the issuing inspector, agreed that the
accumulations at Belt No. 1 were “too wet to propagate an explosion.” 35 FMSHRC at 1382
(citing trial transcript, at 150-52 (incorporating Resp. Ex. 13 deposition testimony, at 110-12)).
Although the inspector testified that the accumulations at Belt No. 3 constituted a violation, he
opined that the accumulation at “[Belt] Number 2 was on the borderline.” Id. It is regrettable that
the Secretary’s appeal is based on the law of the case doctrine, rather than on his assertion that
the alleged accumulation violation at Belt No. 2 in fact occurred. Consequently, the Secretary
seeks to impose a civil penalty regardless of whether the cited accumulations constituted a
violation of section 75.400. Our Government should be held to a higher standard.

37 FMSHRC Page 320

II.

Discussion

In addressing the Commission’s remand in Manalapan II, it is particularly essential that
this matter be viewed in context.4 The Secretary has retreated from his original desire to impose
a total civil penalty of $833,600.00 for the four subject cited conditions. In this regard, the
Secretary has failed to contest not only the fact that the accumulation conditions cited in Order
No. 7511479 (Belt No.1) were neither S&S nor unwarrantable, but also the fact that the evidence
does not support that the violation in fact occurred. On this point, the issuing inspector testified
that the cited coal dust accumulations at Belt No. 1 were not combustible as they were so
liquefied that they were “incapable of being handled because the material ran through the
fingers.” 32 FMSHRC at 704. With respect to Order No. 7511478 (Belt No. 2), as previously
noted, the Secretary has not appealed the initial decision deleting the S&S designation, thus
reflecting that the cited condition was not reasonably likely to contribute to injuries of a
reasonably serious nature. It is obvious that, despite his best intentions, even the Secretary’s
proposed reduced total $240,000.00 civil penalty grossly overstates the monetary sanction that
should be imposed in this matter.
It is in this context that I turn to consideration of Order No. 7511478 (Belt No. 2), the
only order subject to this Remand Decision. It is true that my previous remand decision did not
explicitly characterize my affirmance of Order No. 7511478 in my initial decision as “a mistake”
despite the Secretary’s “borderline situation” characterization. 32 FMSHRC at 702 (citing Tr.
150-52). I readily admit that I did not consider the law of the case doctrine in vacating Order No.
7511478. Nevertheless, my decision to vacate Order No. 7511478 in my previous remand
decision was based on my belief that the characterization of the alleged violation as “borderline,”
consistent with the undisputed extremely wet conditions along Belt No. 2, failed to satisfy the
Secretary’s preponderance of the evidence burden.5 Rag Cumberland Res. Corp., 22 FMSHRC
1066, 1070 (Sept. 2000) (quoting Concrete Pipe and Prod. of Cal., Inc. v. Constr. Laborers
Pension Trust for S. Cal., 508 U.S. 602, 622 (1993)) (holding that satisfying the preponderance
of the evidence standard requires the proponent to demonstrate “that the existence of a fact is
more probable than its nonexistence”). As such, I continue to believe that my affirmance of the
violation in my initial decision was, implicitly, and as a matter of law, an unjust mistake that
should not be perpetuated to the benefit of the Secretary through application of the law of the
case doctrine.6 In the final analysis, a “borderline” violation is a non-event unworthy of
recognition.
4

I believe it is appropriate to clarify the record with respect to my decision vacating
Order No. 7511478 (Belt No. 2), which has been reversed by the Commission, in the event this
matter is appealed.
5

As noted in my previous remand decision, synonyms for the term “borderline” include
“dubious,” “questionable,” “ambiguous,” “doubtful,” and “inconclusive.” 35 FMSHRC at 1383
(citing Webster’s Third New Int’l Dictionary 255 (1993); Roget’s II: The New Thesaurus, 52, 17
(3rd ed. 1996)).
6

I am cognizant of the Commission’s decision in Douglas R. Rushford Trucking, 23
FMSHRC 790 (Aug. 2001). In Rushford, the judge affirmed an unwarrantable violation that
(continued…)

37 FMSHRC Page 321

However, the Commission does not share my view that a “borderline” characterization is
inadequate, as a matter of law, to establish a violation. Rather, in Manalapan II, the Commission
concluded, in essence, that the inspector’s testimony that the Belt No. 2 violation was a
“borderline situation” is “susceptible to different interpretations.” 36 FMHSRC at 853; see Tr.
150-52. Thus, the Commission concluded that affirming the violation in Order No. 7511478 in
my initial decision was not so “clearly erroneous” as to justify an exception to the law of the case
doctrine. Id. Consequently, the Commission has reinstated the violation in Order No. 7511478
and directed me to consider whether the violation was properly attributable to an unwarrantable
failure. Id. at 855.
Accordingly, I will now turn to an evaluation of whether the cited accumulation
conditions in Order No. 7511478 were attributable to an unwarrantable failure. The criteria for
an unwarrantable failure finding are addressed in my initial decision:
The elements of unwarrantable conduct are well settled. The Commission has
determined that unwarrantable failure is aggravated conduct constituting more
than ordinary negligence. Emery Mining, 9 FMSHRC at 2001. Unwarrantable
failure is characterized by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 200304; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-194 (Feb. 1991); see
also Buck Creek Coal, 52 F.3d 133, 135-36 (7th Cir. 1995) (approving the
Commission’s unwarrantable failure test).
The Commission examines various factors in determining whether a violation is
unwarrantable, including the magnitude of a violative condition, the length of
time that it has existed, whether the violation is obvious, whether the violation
poses a high degree of danger, whether the operator has been placed on notice that
greater efforts are necessary for compliance, and the operator's compliance efforts
made prior to the issuance of the citation or order. Enlow Fork Mining Co., 19
FMSHRC at 11-12, 17; Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb.
1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland
Coals, Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC
1596, 1603 (July 1984). Repeated similar violations may be relevant to an
unwarrantable failure determination to the extent that they serve to put an operator
6

(…continued)
contributed to a fatality. However, the judge reduced the proposed $25,000.00 civil penalty to
$3,000.00. The case was remanded for an explanation of the penalty reduction in light of the
judge’s unwarrantable failure findings. On remand, the judge reevaluated the evidence with
respect to his initial finding of gross negligence and imposed a $4,000.00 civil penalty. On
appeal, the Commission concluded that “the law of the case with respect to negligence is
controlled by the judge’s finding from his original decision that the violation was a result of
‘high and gross negligence.’” 32 FMSHRC at 791. However, in the present case, I have not
reevaluated the factual evidence. Rather, I simply concluded that, assuming everything the
Secretary alleges is true, his characterization of the violation as “borderline” fails, as a matter of
law, to establish that the violation in fact occurred.

37 FMSHRC Page 322

on notice that greater efforts are necessary for compliance with a standard.
Peabody, 14 FMSHRC at 1263-64.
32 FMSHRC at 694-95.
Significantly, it is not necessary to find that all factors are relevant or deserving of equal
weight in order to determine that a violation is unwarrantable. IO Coal, 31 FMSHRC 1346, 1351
(Dec. 2009); Eastern Associated Coal Corp., 32 FMSHRC 1189 (Oct. 2010). Although the cited
accumulations were extensive, obvious, and apparently existed for a significant period of time,
there are significant mitigating circumstances that markedly reduced the degree of hazard posed
by the violation. Namely, as noted in Manalapan II, the mine floor remained muddy at all times
because of water percolation through old works, the mine floor, and ribs. 36 FMSHRC at 85051. It is undisputed that the conveyer belt conditions became progressively wetter as water used
for dust suppression at the face accumulated as the coal was transported on the conveyer system
from Belt No. 4 nearest the face to Belt No. 1 nearest the surface. Id.; 32 FMSHRC at 691. To
wax poetically, suffice it to say, there was “water, water, every where.”7
Thus, indicia of an unwarrantable failure, such as extensiveness, obviousness, and
duration, which are normally significant factors in an unwarrantable failure finding, are entitled
to less weight given the circumstances in this case. With respect to the degree of danger posed by
the cited violation, it is significant that my initial decision to delete the S&S designation has not
been appealed by the Secretary. Consequently, as previously noted, the Secretary has, in effect,
conceded that the cited accumulations are not reasonably likely to contribute to a fire or
explosion. Thus, Manalapan’s failure to timely remove the accumulations, given the violation’s
lack of serious gravity, may not be viewed as a significant aggravating factor. Hence, the
circumstances surrounding the violation are indicative of no more than moderate negligence and
do not support the Secretary’s assertion that the violation was attributable to inexcusable
conduct. The remaining unwarrantable failure indicia are not aggravating factors. Accordingly,
the 104(d)(1) Order No. 7511478 (Belt No. 2), designated as non-S&S in nature, shall be
modified to a 104(a) citation to reflect that the cited violation was attributable to moderate
negligence, rather than an unwarrantable failure.
The Secretary initially proposed a penalty of $60,000.00 for Order No. 7511478. The
civil penalty analysis in my initial decision is incorporated by reference. See 32 FMSHRC at
695, 704. Given the modification of the 104(d)(1) order to reflect that the conditions along Belt
No. 2 were neither S&S in nature nor attributable to Manalapan’s unwarrantable failure, a civil
penalty of $4,000.00 shall be assessed for 104(a) Citation No. 7511478.

7

Samuel Taylor Coleridge, The Rime of the Ancient Mariner, in Lyrical Ballads (1st ed.

1798).

37 FMSHRC Page 323

ORDER
The fact of the violation and its non-S&S nature having been reinstated by the
Commission in Manalapan II, IT IS ORDERED that Order No. 7511478 be modified to a
section 104(a) citation to reflect that the cited violative accumulations were not attributable to
Manalapan’s unwarrantable failure. IT IS FURTHER ORDERED that Manalapan Mining
Company, Inc., pay, within 40 days of the date of this Remand Decision, a total civil penalty of
$4,000.00 in satisfaction of 104(a) Citation No. 7511478 (Belt No. 2).8 9
IT IS FURTHER ORDERED that upon timely receipt of the total $40,000.00 payment,
the civil penalty proceeding in KENT 2008-737 IS DISMISSED.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge

Distribution:
Uche Egemonye, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street SW,
Suite 7T10, Atlanta, GA 30303
W. Christian Schumann, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson
Blvd., Room 2220, Arlington, VA 22209
John M. Williams, Esq., Rajkovich Williams Kilpatrick & True PLLC, 3151 Beaumont Centre
Circle, Suite 375, Lexington, KY 40513
/acp

8

Payment should be addressed to the Mine Safety and Health Administration, U.S.
Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please
include the Docket No. and A.C. No. noted in the above caption on the check.
9

Thus, Manalapan’s total liability in Docket No. KENT 2008-737 is $40,000.00:
$20,000.00 for 104(d)(1) Citation No. 7511467 (Belt No. 4), $16,000.00 for 104(d)(1) Order No.
7511472 (Belt No. 3), and $4,000.00 for 104(a) Citation No. 7511478 (Belt No. 2).

37 FMSHRC Page 324

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

February 23, 2015
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING:
Docket No. SE 2014-71-M
A.C. No. 01-00027-335066

v.
NATIONAL CEMENT CO. OF
ALABAMA
Respondent

Mine: National Cement Co.

DECISION
Appearances:

Daniel Brechhuhl, Esq., U.S. Department of Labor, Office of the Solicitor,
Denver, Colorado for Petitioner
Jay St. Clair, Littler Mendelson, Birmingham, Alabama for Respondent

Before:

Judge Barbour

In this civil penalty case, arising under sections 105(d) and 110(i) of the Federal Mine
Safety and Health Act of 1977 (“Mine Act”), as amended (30 U.S.C. §§ 815(d), 820(i)), the
Secretary of Labor (“Secretary”) on behalf of his Mine Safety and Health Administration
(“MSHA”) seeks the assessment of civil penalties for 24 alleged violations of various mandatory
safety standards for the nation’s metal and non-metal mines. The standards are set forth at 30
C.F.R. Part 56. In citing the alleged violations MSHA’s inspectors made findings as to whether
the violations were significant and substantial contributions to mine safety hazards (“S&S”
violations). They also made findings regarding the violations’ gravity and the negligence of
National Cement Company of Alabama, Inc. (“National Cement”). The violations purportedly
occurred at a cement plant owned and operated by National Cement. The plant is located in
Ragland, Alabama.
Following issuance of the citations, the Secretary proposed civil penalties. When the
company contested the Secretary’s assessments, the Secretary filed the subject petition
requesting the Commission assess the penalties as proposed. The company answered, admitting
it was subject to the Mine Act, but denying the violations occurred, or, if they did, that the
proposed penalties were appropriate. The Commission’s Chief Judge assigned the case to the
court, which directed the parties to engage in discussions to determine if any of the alleged
violations could be settled. The court advised the parties that it would receive evidence and
arguments concerning all of the allegations the parties could not settle. The parties ultimately
agreed to settle 20 of the violations. The rest were tried on December 2, 2014, in Birmingham,
Alabama.

37 FMSHRC Page 325

THE MINE and THE INSPECTIONS
At its Ragland facility the company mines, crushes, grinds, and processes limestone to
make powdered cement. Tr. 184. The cement is stored at the facility and is then shipped by truck
and rail to customers throughout the southeastern United States. Id. Jeffery Golden, the
company’s human resources manager, testified that of the five similar cement plants in Alabama,
National Cement’s plant is fourth in size. Tr. 186-187. One hundred and twenty workers are
employed at the plant, which operates three shifts around-the-clock. Tr. 47, 185, 187. Although
Golden described National Cement as “one of the very small companies in the cement
industry”(Tr. 186), when calculating proposed penalties, the Secretary regarded the plant as a
medium sized operation, and given the number of miners who work at the facility and the annual
hours worked, the court concludes the Secretary is correct. See Petition for the Assessment of
Civil Penalty, Exhibit A.
On September 3, 2013, MSHA Inspector Rayford Stan Fendley, who at the time had been
an inspector for seven plus years, traveled to the plant to conduct a four day inspection. Tr. 4547. Fendley was accompanied by MSHA Inspector Michael S. Cohen and another inspector, both
of whom participated in the inspection. The inspection resulted in the alleged violations, each of
which was set forth in a citation issued pursuant to section 104(a) of the Mine Act. 30 U.S.C.
§814(a).
THE ALLEGED VIOLATIONS
CITATION NO.
8723970

DATE
9/3/13

30 C.F.R. §
56.14100(c)

PROPOSED PENALTY
$1795

The citation states:
No safety chains or wire ropes were installed on the
portable pressure washer trailer. The trailer was not
tagged or placed in a designated area posted for that
purpose, or a tag or other effective method of marking
the defective items used to prohibit further use until the
defects are corrected [sic.]. Serious injury could result
should the trailer become disengaged from the tow vehicle.
Standard 56.14100(c) was cited 4 times in two years at
[the] mine . . . (2 to the operator, 2 to a contractor).
Gov’t Exh. 3 at 1.
Section 56.14100(c) states,
When defects make continued operation
hazardous to persons, the defective items
including self-propelled mobile equipment,
shall be taken out of service and placed in
a designated area posted for that purpose,

37 FMSHRC Page 326

or a tag or other effective method of
marking the defective items shall be
used to prohibit further use until the
defects are corrected.
Fendley testified that on September 3 he inspected the trailer used to transport the mine’s
pressure washer. The trailer was not in service. Tr. 54. Rather, it was parked in the plant’s shop
area, but not in an area specially designated for equipment in need of repair. Tr. 54-55; Gov’t
Exh. 3 at 2. The inspector noticed that although the tongue on the trailer’s hitch was stable and in
excellent condition (Tr. 50), there were no safety chairs or wire ropes in the area of the hitch.1 Tr.
49. See Gov’t Exh. 3 at 3. He further testified that safety chains or wire ropes are almost always
provided by the trailer manufacturer and are standard safety equipment on a trailer. Tr. 51-52. In
fact, Fendley never had seen a trailer without safety chains. Tr. 72.
The purpose of the chains or wire ropes is to secure the trailer to the equipment pulling it
in case the trailer “accidentally disengage[s] from its towing apparatus.” Tr. 49. A moving,
uncontrolled, and unhitched trailer poses a danger to miners working or traveling near it. In the
inspector’s opinion, the lack of the chains or ropes made the trailer a “defective item” within the
meaning of section 56.14100(c). Despite this, there was nothing to alert miners that the trailer
was defective and could not be used until the chains or ropes were provided. 2 Tr. 55. In
Fendley’s view, the trailer should have been removed to a designated area that was specifically
set aside for defective equipment, or it should have been tagged and thus have been prevented
from being used until the chains or ropes were installed. Id. The Inspector believed that the
failure to take the trailer out of service or mark the trailer as defective violated section
56.14100(c).3
Fendley saw no other defects on the trailer, and he thought it unlikely that the missing
chains or ropes would result in an accident. Tr. 58. Still, an accident was possible. Even properly
1

The hitch mechanism is comprised of a triangular shaped tow bar that is attached to the
trailer. A metal tongue projects from the tow bar and couples onto a ball that is mounted to the
vehicle towing the trailer. Safety chains or wire ropes are usually attached to the hitch
mechanism at the tow bar or on the tongue. See Gov’t Exh. 3 at 4.
2

Section 56.14209(b) states, “Unless steering and braking are under the control of the
equipment operator on the towed equipment, a safety chain or wire rope capable of withstanding
the loads to which it could be subjected shall be used[.]”
3

Fendley testified that the company could have simply taken the trailer out of service by
removing a tire or wheel or by letting air out of one of the tires. Tr. 57, 74-75. If a tire or wheel
had been removed or if the tires had been flat, Fendley would not have regarded the lack of
safety chains or wire ropes as a violation because further use of the trailer would have been
prohibited by the missing wheel or flat tire(s). Id. However, the tires were inflated and on the
trailer. Tr. 75. In contrast to Fendley, Scott White, the company’s mobile equipment supervisor,
testified of the trailer’s four tires, the two on the left were flat and that he and Fendley walked
around the trailer and looked at all of the tires. Tr. 83.

37 FMSHRC Page 327

hitched trailers can disengage and move in an out-of-control manner. A person who is struck by
an unhitched, moving trailer can be injured fatally. Tr. 58-59. However, because the trailer’s
hitch mechanism was in good condition and because when it was used at the plant the trailer was
towed at low speeds, Fendely found that an accident due to the violations was “unlikely.” Gov’t
Exh. 3 at 1.
The fact that the missing safety equipment was obvious indicated to Fendley that
someone from mine management should have been aware of the condition. More to the point, he
maintained that Tom Hayes, the production manager, told him that mobile equipment supervisor,
White, whose job it was to maintain and repair all equipment at the mine, knew of the cited
condition. Tr. 59, 67-69. 4
The alleged violation was terminated by placing a lock and a tag reading, “danger
equipment locked out,” on the tongue of the hitch. Gov’t Exh. 3 at 5; Tr. 59.
Scott White testified that the trailer was not in service because the pressure washer’s
generator and one of its control valves were defective. Tr. 80. He stated that the washer had been
out of service for three or four weeks. According to White, the two left tires on the trailer “went
flat from sitting there.” Id. White, who was with Fendley during the inspection (Tr. 82),
maintained that the inspector asked if the trailer had chains. Tr. 81. Because “you could clearly
see that it didn’t,” White told Fendley that the trailer was out of service and why. Id. White did
not recall if the trailer came from the manufacturer with safety chains or wire ropes. Id. Because
he knew that a contractor was coming to do the necessary repairs on the washer, White stated
that he had not “inspected . . . and [gone] over” the trailer. Tr. 84.
THE VIOLATION
The violation occurred as charged. The court finds that as testified to by Fendley and as
admitted by White, the trailer, which is “equipment” within the meaning of the standard and
whose steering and braking is not controlled by the equipment operator or by the trailer itself,
was not provided with safety chains or wire ropes as is required by section 56.14209(b) and
therefore was “defective” within the meaning of section 56.14100(c). The court agrees with
Fendley’s common sense testimony that even though the hitch was in excellent condition, it
could fail when it was in use and endanger miners working or traveling in the vicinity. Tr. 50-51,
58-59. Therefore, the court finds that the lack of safety chains or wire ropes made “continued
operation [of the trailer] hazardous to persons.” 30 C.F.R. §56.14100(c). The trailer should have
been taken out of service and kept in a designated area, or it should have been tagged or
otherwise removed from service. Because it was not, the company violated section 56.14100(c).5
4

When Fendley was cross examined, it became clear that Fendley may have been told
by Hayes that Scott White knew the trailer was “in for repairs” not because White knew that the
chairs or ropes were missing but because the pressure washer needed to be fixed. Tr. 69-70.
5

The court does not credit White’s testimony that the trailer’s two left tires were flat. It
is clear to the court that if they had been flat, Fendley would not have issued the citation. Tr. 57.
Fendley specifically stated that he looked at the tires and they were not flat. Tr. 74-75. The court
believes him.

37 FMSHRC Page 328

GRAVITY and NEGLIGENCE
The court finds Fendley’s analysis of the gravity of the violation persuasive. His
testimony confirmed that while it was unlikely the trailer would unhitch and move unrestrained
and out of control (Tr. 58), it could have happened, and if it happened the result could have been
fatal to a miner traveling or working in the vicinity of the uncontrolled and uncontrollable trailer.
The company did not dispute that it was possible, and the court finds that the violation was
serious.
Fendley also found that the company was highly negligent in allowing the violation. Gov.
Exh. 1 at 1. The court concludes that the company was moderately negligent. While it is true, as
Fendley noted, that the lack of chains or ropes was obvious and thus compliance with section
56.14100(c) was required, the record also supports finding, as White testified, that use of the
trailer, while not impossible, was unlikely because of the broken pressure washer and the fact
that the contractor had not yet come to repair it. Thus, White understandably lacked a sense of
urgency to observe the defect and either take the trailer out of service or tag it. Tr. 84. This was
ordinary negligence.
DATE
9/4/13

CITATION NO.
8723974

30 C.F.R. §
56.11001

PROPOSED PENALTY
$807

The citation states:
Safe access was not being maintained to the bed of
the . . . service truck. Cable slings, pipes, scrap iron
and plastic buckets located on the bed of the truck
created a slip, trip, and/or fall hazard and prevented
safe access to the equipment located in the back of the
truck. Serious injury could result from a slip, trip, and/or
fall. Standard 56.11001 was cited 2 times in two years
at [the]mine . . (2 to the operator, 0 to a
contractor.)
Gov’t Exh. 5 at 1.
Section 56.1101 states, “Safe means of access shall be provided and maintained to all
working places.”
On September 4 Fendley inspected a flatbed pickup truck that was used at the mine by
repairmen. The truck’s bed was littered with various pieces of equipment, among which were
cable slings, scrap iron, plastic buckets, drop cords, a welder and a ladder. Tr. 98, 103; see Gov’t
Exh. 5 at 4. Based on his experience working at other mines, Fendley believed miners regularly
accessed the truck’s bed during the course of their work day. Tr. 98. He testified that trucks such
as the one he cited were routinely used at the plant to transport people, tools, equipment, and
materials. Id. The bed of the cited truck was typical in size, approximately 4 feet wide by 8 feet
long. Tr. 100. The tailgate had been removed (Tr. 113), and Fendley believed miners usually

37 FMSHRC Page 329

accessed the bed from its open tailgate end. Tr. 101. Because of the height of the bed and of the
bed’s side panels, Fendley doubted miners always accessed the truck’s bed by climbing over its
sides, nor did he believe they often reached over the sides to load and unload equipment. Id. He
thought that in most instances they climbed onto the bed from the tailgate end and then moved
around the bed as they loaded or retrieved items. Tr. 102. In Fendley’s opinion, when miners
climbed onto the bed and moved around, they subjected themselves to the hazard of tripping or
slipping on the equipment and being injured. Fendley stated, “If they need something . . . they’re
going to go across this material without clearing it out of the way.” Tr. 104.
Fendley testified that because miners needed to go up and onto the truck bed to load and
retrieve equipment and materials, the bed was a “working place” within the meaning of section
56.110016. The inspector believed a slip or fall accident was reasonably likely because of the
truck bed’s littered state and because miners had to “go through [the] stuff” to do their jobs. Id.
He also testified that he believed a fall would likely result in a sprain or a strain and/or cuts,
“nothing that would be permanently disabling, but it would cause [a] person to not be able to
fully perform [his] job.” Tr. 107-108. Finally, he thought that one person would be affected
because normally one person at a time would be on the truck bed. Tr. 108.
Fendley found the condition to be S&S. The discrete safety hazard about which he was
concerned was a tripping hazard. Tr. 111. There was, he stated, a “good likelihood” someone
“could get their feet tangled up” and fall. Id. Adding to the likelihood of a fall was the fact that a
metal bar was positioned approximately four feet over the truck bed toward the cab end of the
bed. Gov’t Exh. 5 at 4; Tr. 111-112. A miner trying to retrieve something from the back of the
bed would have to bend over to pass under the bar, and this added to the chance the miner would
lose his balance. Tr. 111. Fendley testified that the only way to avoid the hazard was to keep the
bed clean and orderly. Tr. 112. If miners had left “a clean path up the middle of [the] bed to
access . . . equipment,” Fendley would not have issued the citation. Tr. 118.
Fendley could not say that a management person had “direct knowledge” of the
condition, but in his opinion someone from management should have known about it. The
conditions was obvious. Tr. 108. It was, he stated, “readily visible to the casual observer.” Tr.
109.
Company welder and repairman, Ray Silvey, testified that he used to truck for welding
and repairs. Tr. 120. Silvey was on the job when the citation was issued, but he did not recall
what he was doing. Silvey maintained that when things were loaded onto the truck bed he stood
on the ground at the rear of the truck and hand loaded the equipment and materials. He did not
get up on the bed. Tr. 122. He could not “recall a time” when he got on the truck bed to load
materials. Id. According to Silvey, the only time he was on the bed was when he fueled the
welding machine, which was once a week, at most. Id. Usually, when he or another miner was on
the bed, loose items were not present. He stated, “We clean [the bed] regularly . . . . [W]e don’t
6

30 C.F.R. §56.2 defines a working place as, “any place in or about a mine where work
is being performed.” When asked why the bed of the truck met the definition, Fendley stated,
“Because miners have to go [on the bed] in performance of their job. That’s part of the areas
[(sic.)] they have to access to do their job.” Tr. 107.

37 FMSHRC Page 330

get to it every single day, but I’m not going to climb over anything to fuel the welder.” Tr. 123.
Silvey stated that he never had to climb over anything “substantial” when he was on the bed of
the truck. Id. Otherwise, he stayed on the ground and dragged equipment off the bed as he
needed it. Large items like the acetylene tanks were loaded and unloaded from a loading dock,
where access to the bed was not required. Tr. 123. Further, the ladder and all of the welding tools
could be retrieved from the side of the truck. Tr. 124-125.
THE VIOLATION
The court finds that the violation occurred as charged. There is no doubt that the truck
bed was cluttered with equipment. A photograph taken of the bed when the violation was issued
confirms, as Fendley testified, that numerous items were scattered about the bed. Gov’t Exh. 5 at
3; Id. at 4. There was no path, clear or otherwise, to travel from the tailgate area of the bed to the
area closest to the cab. Gov’t Exh. 5 at 3.
The court also finds that the bed was in fact a “working place,” that is, a “place in or
about the mine where work is being performed,” the work being loading and unloading
equipment. 30 C.F.R. §56.2. The court does not credit Silvey’s testimony that he only got on the
bed of the truck when it was necessary to refuel the welding machine. Clearly, it was much
easier to access the truck bed from its open end than from over its sides, and human nature, being
what it is, the court concludes that in most instances, most miners, including Silvey, accessed
and left the truck bed the easiest way possible. In so doing, miners, including Silvey, subjected
themselves to possible slips and falls and resulting injuries due to the equipment cluttering the
bed. The court fully agrees with the inspector that the lack of a clear path on the truck bed means
that safe access was not provided on the bed and that this violated section 56.11001.
S&S and GRAVITY
The court does not agree with the inspector’s S&S and gravity findings.7 See Tr. 127-126.
Rather, the court finds that it was unlikely the violation would result in an injury. Given the fact
7

A violation is S&S, “if, based upon the particular facts surrounding the violations there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature.” Cement Div., National Gypsum Co., 3 FMSHRC 822, 825 (April
1981). The Commission explained:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum,
the Secretary . . . must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard – that
is a measure of danger to safety – contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed
to will result in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious nature.
Mathies Coal Co. 1, 3-4 (Jan. 1984).

37 FMSHRC Page 331

that the obstacles on the bed were obvious, the possibility of a miner stumbling or tripping on the
disorderly equipment was significantly reduced. The obvious clutter means that a miner was
more likely to watch where he was stepping. Moreover, the crossbar under which a miner had to
bend to reach the cab end of the bed was just as likely to serve as a brace to steady the miner as a
cause for the miner to lose his footing. Further, given the confined space of the bed and the short
distance a miner would fall, the court finds that should a slip or stumble occur, it was unlikely
the force generated by the mishap would be enough to result in a broken bone or a cut. Rather, in
the court’s opinion, the most likely result would be a bruise and/or a sore spot, if that. It might
make a miner uncomfortable but no more than that, and it would be a stretch to find a slip or fall
would be likely to result in an injury of a reasonably serious nature. For these reasons, the court
also finds that in addition to the violation not being S&S, it was not serious.
NEGLIGENCE
As Inspector Fendley noted, the condition of the flat bed was open and obvious. The
violation should have been observed and corrected. It was not, and the court finds that the
violation was due to National Cement’s moderate negligence.
CITATION NO.
8725985

DATE
9/4/13

30 C.F.R. §
56.12032

PROPOSED PENALTY
$1,304

The citation states:
The appx. 9”x 9” junction box cover, for the East and West
Hydrophobe Pumps, was not secured in place. Primary
voltage inside the electrical box is 120 volts which exposed
miners to a shock. Standard 56.12032 was cited 10 times in two
years at [the] mine . . . (10 to the operator, 0 to a contractor).
Gov’t Exh. 7
Section 56.12032 states, “Inspection and cover plates on electrical equipment and
junction boxes shall be kept in place at all times except during testing and repairs.”
On September 3 MSHA Inspector Michael S. Cohen conducted an inspection at the plant.
Tr. 131. Cohen testified that during the course of the inspection he saw “at least 100” junction
boxes. Id. One of those was located next to the chemical storage facility. Tr. 132. The box
formed a metal (steel) enclosure in which 120 volt electrical wires were connected 8. Tr. 1348

The company offered the actual box as an exhibit. Co. Exh. A. Examination of the
exhibit allows the court to provide a more complete description of the box than that offered by
Inspector Cohen. The box measures approximately 8 1/4 inches wide by 10 1/4 inches long by 4
inches deep. The cover of the box is hinged at the top. Half inch flanges on the sides and bottom
of the cover overlap the sides and bottom of the box, effectively preventing access to the inside
of the box unless the cover is raised. At the bottom of the box is a draw latch. The latch part of
the mechanism is soldered to the bottom of the box and the keep part of the mechanism is
(continued…)

37 FMSHRC Page 332

135, 139. Cohen noticed that the steel cover of the junction box was down but that the cover was
not latched. Tr. 137, 145. Cohen believed the unlatched cover was a violation of section
56.12032, which requires cover plates on junction boxes to be “kept in place.” 30 CFR §
56.12032. Although Cohen agreed that gravity helped keep the cover in place (Tr. 145) and that
once closed, there was some resistance or friction that made the cover harder to open (Tr. 146),
Cohen explained that the manufacturer of the particular box included a latch at the bottom of the
box, and if the latch was not closed an explosion or arc inside the box could “blow the door open
and . . . somebody could get burned or seriously injured.”9 Tr. 138, see also Tr. 139. On the other
hand, if the latch was closed and there was an explosion or an arc he believed the resulting
fireball or blast would be contained inside the box. Id.; see also Tr. 140. There was nothing that
Cohen noticed that indicated repairs or testing were underway and therefore the exception in the
standard that allows the cover plate to be open, did not apply. Id. According to Cohen, there are
many “different kind[s] of junction boxes on the market [and e]very one of them has a similar
type of either latch or mechanical fastener that holds the cover plate in place.” Id.. During his
training as an inspector, Cohen was taught that if the latch or fastener is not employed on a
junction box, section 56.12032 is violated. Tr. 152.
Cohen did not try to lift the cover. Rather, the company had its electrician come to the
box, lift the cover, and verify the voltage. Tr. 150. Cohen assumed everything inside the box was
as it should be because “all [the electrician] did was verify the voltage and latch the cover and . .
. [the inspection party] moved on from there.” Tr. 150. Latching the cover abated the alleged
violation. Id.
Cohen also noted that the standard had been cited 10 times between September 3, 2011,
and September 3, 2013. He termed this a “significant history.” Tr. 141. Based on the 10 prior
citations, the inspector believed the company was highly negligent. Tr. 144.

8

(…continued)
soldered to the flange at the bottom of the cover. See Co. Exh. A. All that is necessary to close
the cover is for a person or for gravity to pull down on the cover. When this is done, the flanges
of the cover easily fall over the sides and the bottom of the box preventing all but purposeful or
accidental access to the inside of the box. To latch the cover, the bail of the latch mechanism
must be intentionally slipped over the keep of the latch and the tongue of the latch must be
pushed toward the back of the box. Once latched, the cover can only be opened by the deliberate
action of a person pulling the tongue toward the front of the mechanism which loosens the bail,
and which then falls from the hook. After this happens, the cover can be lifted. Cohen agreed that
even if the box cover is not latched, gravity helps keep the cover in place and that the effort to
open the latched cover is only minimally different from the effort to raise the unlatched cover.
Tr. 147-148.
9

When asked how there could be an explosion inside the box, Cohen stated it would
require, “somebody taking a wire, a loose wire, [and] ground[ing] it out internally” or “it could
just be a broken wire.” Tr. 148-149.

37 FMSHRC Page 333

THE VIOLATION
The court concludes that the Secretary did not prove the violation. The standard requires
that the cover be “kept in place at all times except during testing and repairs.” There is no dispute
that testing and repair of the pump starters or of the electrical connections inside the box were
not underway when the violation was cited. Tr. 135. There also is no dispute that when the
violation was cited only gravity held the cover in place and only friction offered some resistance
to opening the cover. Tr. 145-146. Finally, there is no dispute that the latch at the bottom of the
box was open, not closed. Tr. 137, 145.
The court has struggled with whether the failure to close the latch is essentially a per se
violation of the standard. As counsel for the operator pointed out, there is no specific regulatory
requirement that the cover be latched or locked. Tr. 180. On the other hand, as counsel for the
Secretary pointed out, the box was manufactured with a latch presumably to “protect people that
would be subject to [the] area [where the box is located.]” Tr. 176. (The court interprets counsel
for Secretary’s argument as being that the court should above all effectuate what counsel deems
the purpose of the standard by finding that an unlatched or unpinned box is in and of itself a
violation of section 56.12032.) However, the court has concluded that rather than read into the
standard something that is facially missing in order to effectuate what the Secretary presumes to
be the standard’s purpose, the court should resolve the issue of the existence of the violation in a
more elementary and prosaic manner – by applying the words of the standard to the facts.
“In place” refers to the position of the cover, and here all agree that the cover was
properly positioned. “Kept” is the past tense of “ to keep,” a transitive verb connoting “restraint.”
Mirriam-Webster, Inc., Webster’s New International Dictionary (1993) at 1236. The force of
gravity restrained the cover plate from moving from its closed position and friction offered some
resistance to it opening. Tr. 145-146. If analysis of the words of the standard ended here, the
court might find that the conditions cited by the inspector did not violate section 56.12032.10
However, the standard contains other words that require further analysis. The words, “at all
times,” form an inclusive phrase encompassing both when the alleged violation is cited and the
coming time as mining continues. The court accepts Inspector Cohen’s testimony that as mining
continued if wires inside the box became loose or broken and touched one another, an electrical
explosion or arc could occur. Tr. 139. There is no testimony to the contrary, and the inspector’s
opinion is entitled to considerable weight. The critical question, therefore, is whether the
Secretary established that such an explosion or arc would produce forces sufficient to lift the
cover and allow flames to escape the box and enter the mine atmosphere, and it is here that the
Secretary’s case comes a cropper.
The Inspector’s testimony is conflicted and inconsistent. Early in his testimony, Inspector
Cohen stated, “If you have an electrical arc, flash or explosion inside this box, the fireball or
10

The court recognizes circumstances can arise in which a cover is technically “kept in
place,” that is, it is in a closed position, but defects in the plate (e.g. holes due to corrosion or
other causes) render the cover functionally equivalent to an open cover and hence result in a
violation of the standard. See e.g., (TM Incorporated – Knife River Materials, 33 FMSHRC
1210, 1238-1240 (ALJ Zielinski)). However, such circumstances are not before the court.

37 FMSHRC Page 334

pressure can blow the door open, and therefore, somebody could get burned or seriously
injured.” Tr. 137-139. However, on cross examination he admitted that he did not know if this
was so. The admission is contained in a colloquy between counsel for the company and the
inspector in which counsel pursued a line of questions probing the basis for the inspector’s belief
that an electrical malfunction inside the box could result in the cover being raised. Tr. 149.
Counsel: So how could there be and explosion inside [the box?]
Inspector: Have somebody taking a wire, a loose wire, ground it out internally.
Counsel: You mean, if they were working inside?
Inspector: It could be just a broken wire.
Counsel: Oh, so you’re talking about just a short?
Inspector: Yes, sir. Yes.
Counsel: Of 120 volts?
Inspector: Yes, sir.
Counsel: You think that’d blow the cover off?
Inspector: I don’t know.
The court concludes that to prevail, the Secretary had to offer other testimony or
documentary evidence as to the force produced by an electrical malfunction inside the cited box
and the effect of the force on the box’s unlatched cover. He did not.
DATE
9/4/13

CITATION NO.
8725995

30 C.F.R. §
56.12032

PROPOSED PENALTY
$1,304

The citation states:
The Kiln Shell Fan disconnect box cover, located next to
the auxiliary fans, was not secured in place. The primary
voltage inside the box was 480 volts which exposed miners
to a shock or electrocution. Standard 56.12032 was cited 14
times in two years at [the] . . . mine (14 to the operator, 0 to
a contractor).
Gov. Exh. 9 at 1.

37 FMSHRC Page 335

As previously noted, Section 56.12032 states “Inspection and cover plates on electrical
equipment and junction boxes shall be kept in place at all times except during testing and
repairs.”
Inspector Cohen testified that on September 4 he observed another junction box whose
cover was not kept in place. Wires carrying 480 volts of electricity passed through the box. Tr.
154. The electricity was “on” and flowing into and out of the box. Tr. 155, 158, 164. Although
the inspector testified that the box was partly opened, the evidence is in conflict.11 However, it is
clear that the box was not fastened shut. Tr. 155. The box was manufactured with a hasp, but
there was no pin or lock through the hasp, securing the cover against opening. According to
Inspector Cohen, if the cover had been pinned or locked, there would have been no safety issue
and no violation. Tr. 156; See also Tr. 168. Cohen agreed that the force of gravity closed the
cover. He stated, “If you flipped [the cover] open and let it go, it would close down[.]” Tr. 158.
Although he could not recall for certain, the inspector acknowledged that there also might have
been a “dimple” on the lower edge of the cover and if the dimple lodged in a corresponding
depression in the lower body of the box, the two would have helped to keep the cover closed.
163. Cohen thought it improbable that the condition would injure a miner. Id. However, if an
injury occurred, it would likely be fatal to the miner involved. Tr. 155. Because of the previous
violations of section 56.12032 cited at the mine in the two years between June 4, 2011, and June
4, 2013, Cohen found that the condition was due to the company’s “high” negligence. 12 Tr. 157;
Gov’t Exh. 8.
To abate the violation the company took a piece of wire or welding rod and inserted it
through the hasp preventing the cover from opening without removing the fastener. Tr. 160, 167;
See similarly configured Co. Exh. B. In Cohen’s opinion, the wire served the same purpose as a
lock in preventing the cover from opening accidentally. Tr. 161.
THE VIOLATION
The court concludes that the Secretary did not prove the violation. Had the Secretary
established the cover of the box was partly open, the violation would have been established
because a partly open cover is clearly one that is not kept in place at all times and testing or
repairs were not underway. But the evidence is in conflict on this point. On one hand, the
11

Cohen stated, “The door was partially open. That’s why I issued the citation.” Tr. 158.
However, in his contemporaneous notes he stated that the “front cover [was] down and not
secured or locked in place.” Tr. 165; Gov’t Exh. 9 at 2. Earlier in his testimony when asked why
he thought it was unlikely the condition he cited would result in a fatal accident, he stated,
“[T]he cover was down, but it was not fastened or latched.” Tr. 154. Cohen acknowledged that
nowhere in his notes did he mention that the door was partially open, but he excused himself by
stating that, “Nobody’s perfect.” Tr. 166. However, shortly thereafter, he again stated, “The
cover was found down.” Id. Moreover, Cohen’s supervisor understood that the cover was not
partially opened. Cohen agreed that the supervisor subsequently modified Cohen’s negligence
finding from “high” to “moderate” to reflect that “the box was closed.” Tr. 157.
12

As previously mentioned, the finding was modified to” moderate” negligence by
Inspector Cohen’s supervisor “to reflect that the box was closed.” Tr. 157.

37 FMSHRC Page 336

inspector described the cover as “partially open.” Tr. 158; 166. On the other, in his written notes
and in other testimony he described the cover as “down” and as being “found down. Gov’t Exh 9
at 3; Tr. 166. Moreover, in a photograph of the junction box that purports to show the box as
cited, the cover appears to in fact be down. Gov’t Exh 9 at 4. Further, Inspector Cohen agreed
that his supervisor modified the inspector’s negligence finding because the cover was closed. Tr.
157. Given the conflicts in the evidence and the lack of corroboration that the cover was partly
open, the court cannot find that the cover was in fact partly open and hence that the standard was
violated.
None-the-less, it is undisputed that the cover was not locked or pinned and the Secretary
still could have proven the violation if he offered testimony that an internal explosion or arc
would have been forceful enough to blow open the cover. He did not present any oral or written
evidence on the effect on the cover of the forces produced by an internal explosion, arc, or other
electrical malfunction of conductors carrying 440 volts of electricity. Despite this deficiency, had
the Secretary established that forces produced by a malfunction of the 120 volt conductors in the
junction box for the Hydrophobe Pumps produced forces sufficient to blow open that box’s
unlatched cover, the court might have been able to conclude that the presumably greater forces
produced by a malfunction of the 440 volt conductors would have blown open the cover of the
smaller Kiln Shell Fan disconnect box, but the record does not allow the court to find the premise
necessary to reach the conclusion. Therefore, based on the record before it, the court holds that
the Secretary failed to establish that the cover of the Kiln Shell Fan disconnect box was not “kept
in place at all times.”
OTHER CIVIL PENALTY CRITERIA
The parties stipulated that the company exhibited good faith in abating the violations.
Tr. 25. They further agreed that the amount of any civil penalties assessed will not affect the
company’s ability to continue in business. Tr. 25-26. The Secretary maintains that the company
has a “very large” history of prior violations. Tr. 27. The Secretary submitted a computer
printout purporting to show all violations cited and assessed at the mine that became final
between June 3, 2012 and September 2, 2103. Gov’t Exh. 2. There are 84 such final violations.
The court finds that the company has a large history of prior violations. See Tr. 26-34
(discussion between the court and counsels). Finally, the parties did not stipulate as to the size
of the company. However, given the points assigned by the Secretary for the size of the mine
and the mine’s controlling entity, points the company did not dispute, the court finds the
company is of a medium size. See Petition for Assessment of Civil Penalty, Exh. A; “The Mine
and The Inspection” discussion supra.
ASSESSMENT OF CIVIL PENALTIES
CITATION NO. DATE
8723970
9/3/13

30 C.F.R. §
56.14100(c)

PROPOSED PENALTY
ASSESSMENT
$1,795
$1,000

The court finds that the violation was serious and the company’s negligence was
moderate. Given these findings and the other civil penalty criteria, the court assesses a
penalty of $1,000 for the violation.

37 FMSHRC Page 337

CITATION NO. DATE
8723974
9/4/13

30 C.F.R. §
56.11001

PROPOSED PENALTY
$807

ASSESSMENT
$500

The court finds that the violation was not serious and the company’s negligence was
moderate. Given these findings and the other civil penalty criteria, the court assesses a penalty of
$500 for the violation.
CITATION NO. DATE
8725985
9/4/13

30 C.F.R. §
56.12032

PROPOSED PENALTY
$1,304

The court finds that the Secretary did not prove the violation. The citation will be
vacated.
CITATION NO. DATE
8725995
9/4/13

30 C.F.R. §
56.12032

PROPOSED PENALTY
$1,304

The court finds that the Secretary did not prove the violation. The citation will be
vacated.
SETTLED VIOLATIONS
The parties agreed to settle 20 alleged violations. At the close of the hearing counsel for
the Secretary read the details of the settlements into the record. Tr. 188-194. The settlements are
as follows:
CITATION NO. DATE 30 C.F.R.§ PROPOSED PENALTY SETTLEMENT AMOUNT
8723972
9/4/13 56.141323(a) $1,795
$1,795
There are no modifications to the citation and the penalty assessed is the penalty
proposed. Tr. 188.
CITATION NO. DATE 30 C.F.R.§ PROPOSED PENALTY
8725990
9/4/13 56.12032
$1,304

SETTLEMENT AMOUNT
$1,304

There are no modifications to the citation. The penalty assessed is the penalty proposed.
Tr. 188.
CITATION NO. DATE 30 C.F.R.§ PROPOSED PENALTY
8725991
9/4/13 56.12004 $1,304

SETTLEMENT AMOUNT
$1,000

The inspector’s negligence finding will be modified from “high” to “moderate.” Tr. 188.

37 FMSHRC Page 338

CITATION NO. DATE 30 C.F.R.§ PROPOSED PENALTY SETTLEMENT AMOUNT
8723973
9/4/13 56.4104(a) $807
$807
There are no modifications to the citation. The penalty assessed is the penalty proposed.
Tr. 188.
CITATION NO. DATE 30 C.F.R.§ PROPOSED PENALTY
8725992
9/4/13 56.20003(b) $807

SETTLEMENT AMOUNT
$100

The inspector’s gravity finding will be modified from an injury being “reasonably likely”
due to the violation, to an injury being “unlikely.” The inspector’s S&S finding will be deleted.
Tr. 189-190.
CITATION NO. DATE 30 C.F.R.§ PROPOSED PENALTY
8730407
9/4/13 56.14107(a) $3,143

SETTLEMENT AMOUNT
$2,000

The inspector’s negligence finding will be modified from “high” to “moderate,” Tr. 190.
CITATION NO. DATE 30 C.F.R.§ PROPOSED PENALTY SETTLEMENT AMOUNT
8723976
9/4/13 56.14100(c) $807
$807
The inspector’s negligence finding will be modified from “high” to “moderate,” but the
penalty assessed will remain as proposed Tr. 190-191.
CITATION NO. DATE 30 C.F.R.§ PROPOSED PENALTY SETTLEMENT AMOUNT
8725994
9/4/13 56.12032 $392
$392
There are no modifications to the citation. The penalty assessed is the penalty proposed
Tr. 191.
CITATION NO. DATE 30 C.F.R.§ PROPOSED PENALTY SETTLEMENT AMOUNT
8725996
9/4/13 56.14132(b)(1) $2,678
$2,678
There are no modifications to the citation. The penalty assessed is the penalty proposed
Tr. 191.
CITATION NO. DATE 30 C.F.R.§ PROPOSED PENALTY
8725998
9/4/13 56.12032 $1,304

SETTLEMENT AMOUNT
$1,304

There are no modifications to the citation. The penalty assessed is the penalty proposed
Tr. 191.

37 FMSHRC Page 339

CITATION NO. DATE 30 C.F.R.§ PROPOSED PENALTY SETTLEMENT AMOUNT
8723979
9/5/13 56.12032 $3,143
$3,143
The inspector’s negligence finding will be modified from “high” to “moderate.” The
penalty assessed will remain as proposed. Tr. 191.
CITATION NO. DATE 30 C.F.R.§ PROPOSED PENALTY
8723981
9/5/13 56.12034 $425

SETTLEMENT AMOUNT
$100

The inspector’s negligence finding will be modified from “high” to “moderate.” Tr. 191.
CITATION NO. DATE 30 C.F.R.§ PROPOSED PENALTY
8730415
9/5/13 56.12032 $946

SETTLEMENT AMOUNT
$946

The inspector’s negligence finding will be modified from “high” to “moderate.” The
penalty assessed will remain as proposed. Tr. 192.
CITATION NO. DATE 30 C.F.R.§ PROPOSED PENALTY
8730416
9/5/13 56.12019 $425

SETTLEMENT AMOUNT
$100

The inspector’s gravity finding will be modified from the violation being unlikely to
result in a “fatality” to the violation being unlikely to result in “lost workdays or restricted duty.”
Tr. 192.
CITATION NO. DATE 30 C.F.R.§ PROPOSED PENALTY
8726005
9/6/13 56.20003(b) $362

SETTLEMENT AMOUNT
$362

There are no modifications to the citation. The penalty assessed is the penalty proposed
Tr. 192.
CITATION NO. DATE 30 C.F.R.§ PROPOSED PENALTY
8726006
9/6/13 56.20003(b) $362

SETTLEMENT AMOUNT
$362

There are no modifications to the citation. The penalty assessed is the penalty proposed
Tr. 192.
CITATION NO. DATE 30 C.F.R.§ PROPOSED PENALTY SETTLEMENT AMOUNT
8730418
9/6/13 56.12004 $745
$100
The inspector’s negligence finding will be modified from “high” to “moderate.” Tr. 192.
CITATION NO. DATE 30 C.F.R.§ PROPOSED PENALTY SETTLEMENT AMOUNT
8730420
9/7/13 56.12004 $634
$634
There are no modifications to the citation. The penalty assessed is the penalty proposed
Tr. 192.

37 FMSHRC Page 340

CITATION NO. DATE 30 C.F.R.§ PROPOSED PENALTY
8726007
9/7/13 56.14107(a) $7,578

SETTLEMENT AMOUNT
$4,735

The inspector’s negligence finding will be modified from “high” to “moderate.” Tr. 192.
CITATION NO. DATE 30 C.F.R. § PROPOSED PENALTY
8726008
9/7/13 56.16012 $138

SETTLEMENT AMOUNT
$138

There are no modifications to the citation. The penalty assessed is the penalty proposed.
Tr. 192.
After the settlements were explained by counsel, they were approved on the record by the
court. Tr. 194.
ORDER
In view of the conclusions, findings, and approval set forth above, within 30 days of the
date of this decision the Secretary IS ORDERED to:
Modify Citation No. 8723970 by changing the inspector’s negligence finding from
“high” to “moderate;” and modify Citation No. 8723974 by changing the inspector’s gravity
finding from “reasonably likely” to “unlikely” and from “lost workdays or restricted duty” to “no
lost workdays” and by deleting the inspector’s S&S finding.
Further, if he has not already done so, within 30 days of the date of this decision, the
Secretary SHALL modify Citation No. 8725991 by modifying the inspector’s negligence finding
from “high” to “moderate;” modify Citation No. 8725992 by changing the inspector’s gravity
finding from “reasonably likely” to “unlikely” and by deleting the inspector’s “S&S” finding;
modify Citation No. 8730407 by changing the inspector’s negligence finding from “high” to
“moderate;” modify Citation No. 8723976 by modifying the inspector’s negligence finding from
“high” to “moderate;” modify Citation No. 8723979 by changing the inspector’s negligence
finding from “high” to “moderate;” modify Citation No. 8723981 by changing the inspector’s
negligence finding from “high” to “moderate;” modify Citation No. 8730415 by changing the
inspector’s negligence finding from “high” to” moderate;” modify Citation No. 8730416 by
changing the inspector’s gravity finding from “unlikely” to result in a “fatality” to “unlikely” to
result in “lost workdays or restricted duty;” modify Citation No. 8730418 by changing the
inspector’s negligence finding from “high” to “moderate;” and modify Citation No. 8726007 by
changing the inspector’s negligence finding from “high” to “moderate.”
Citations No. 8725985 and No. 8725995 ARE VACATED.

37 FMSHRC Page 341

Finally, within 30 days of the date of this decision, the company SHALL PAY civil
penalties in the amount of $24,307 ($1,500 for the contested violations and $22,807 for the
settled violations).13 Upon MODIFICATION of the citations and PAYMENT of the penalties,
this proceeding IS DISMISSED.

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

Distribution: (Certified Mail)
Daniel Brechbuhl, Esq., U.S. Department of Labor, Office of the Solicitor, MSHA Backlog,
1244 Speer Blvd., Suite 216, Denver, CO 80204
Jay St. Clair, Esq., Littler Mendelson, 420 20th Street North, Suite 2300, Birmingham, AL
35203
/db

13

Payment shall be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S.
DEPARTMENT OF LABOR, PAYMENT OFFICE, BOX 790390, ST. LOUIS, MO 631790390.

37 FMSHRC Page 342

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

February 25, 2015
SECRETARY OF LABOR, MSHA on
behalf of RALPH KEELE,
Complainants,

DISCRIMINATION PROCEEDING
Docket No. WEST 2013-0877-D
DENV-CD 2013-13

v.
ENERGY WEST MINING COMPANY,
Respondent.

Mine: Deer Creek Mine
Mine ID: 42-00121

DECISION AND ORDER
Appearances:

Tyler P. McLeod, Esq., U.S. Department of Labor, Office of the Solicitor,
Denver, CO, for Complainants;
Willa B. Perlmutter, Esq., Crowell & Moring, Washington, D.C., for
Respondent.

Before:

Judge L. Zane Gill

This proceeding arises under Section 105(c) of the Federal Mine Safety and Health Act of
1977 (“Mine Act” or “Act”), 30 U.S.C. § 815(c) (1994). The parties presented testimony and
documentary evidence at the hearing held in Price, Utah on April 8, 9, and 10, 2014.
By agreement, Ralph Keele (“Keele”) was temporarily economically reinstated from
March 7, 2013, the date he was suspended without pay with intent to terminate, under the same
terms as if he had not been suspended. (Tr.1 at 127:18-20) 1 This agreement was approved by the
Court on June 26, 2013. The temporary reinstatement will expire when Keele is no longer
entitled to temporary reinstatement under Section 105(c) of the Act. 30 U.S.C. § 815(c).
Keele argues here that Energy West terminated his employment because he engaged in
protected activity. The Respondent admits that Keele engaged in many instances of protected
activity, but claims as an affirmative defense that Keele was terminated because he made a false
statement against the mine manager which violated Respondent’s Business Code and justified
termination. Keele also claims that the Respondent failed to make full payment under the terms
of the economic reinstatement agreement. The parties agreed that if the Respondent is found
1

Tr.1 refers to the transcript for the first day of the hearing, Tr.2 for the second day, and
Tr.3 for the third day.

37 FMSHRC Page 343

liable for violating Section 105(c), they would submit additional evidence regarding Keele’s
economic reinstatement claim.
For the reasons that follow, I find that Keele engaged in protected activity and conclude
that Energy West violated Section 105(c) of the Act by terminating him. I also conclude that
Energy West’s stated reasons for terminating Keele are pretextual. Therefore, Keele is entitled to
reinstatement at the Deer Creek Mine, and in addition to any amount determined later to be due
to Keele under the terms of the economic reinstatement, the Respondent shall pay a civil money
penalty in the amount of $20,000.00.
I.

Stipulations

The Parties’ Pre-Hearing Report dated April 1, 2014, included fourteen stipulations:
1. The Administrative Law Judge has jurisdiction over this action pursuant to § 113 of the
Mine Act, 30 U.S.C. § 823;
2. This action is brought by the Secretary pursuant to the authority granted by § 105(c)(2) of
the Mine Act, 30 U.S.C. § 815(c)(2);
3. Energy West is the operator of Deer Creek Mine, Mine ID No. 42-00121, an underground
coal mine located in Emery County, Utah;
4. At all relevant times, Energy West was an operator as the term is defined by § 3(d) of the
Mine Act, 30 U.S.C. § 802(d);
5. Energy West produces products that enter commerce or has operations or products that
affect commerce, all within the meaning of §§ 3(b), 3(h), and 4 of the Mine Act, 30
U.S.C. §§ 802(b), 802(h), 803;
6. At all relevant times, Energy West employed Complainant, Ralph Keele, as a diesel
mechanic at the Deer Creek Mine;
7. At all relevant times, Mr. Keele was a miner within the meaning of § 3(g) of the Mine
Act, 30 U.S.C. § 802(g);
8. Energy West is an operating division of Interwest Mining, which is a wholly owned
subsidiary of PacifiCorp;
9. PacifiCorp is a wholly owned subsidiary of MidAmerican Energy Holdings Company;
10. Energy West employees are subject to the MidAmerican Energy Holdings Company’s
Code of Business Conduct;

37 FMSHRC Page 344

11. On March 7, 2013, Mr. Keele was suspended from his employment at the Deer Creek
Mine with intent to discharge. The reasons for Mr. Keele’s suspension were included in a
letter to Mr. Keele from Human Resources Manager, Don Childs, dated March 7, 2013;
12. As of March 7, 2013, Mr. Keele was rotating between day and afternoon shifts every two
weeks. On the day shift he earned $25.65 per hour and on the afternoon shift he earned
$26.05 per hour;
13. The proposed penalty will not affect Energy West’s ability to remain in business;
14. The parties stipulate to the authenticity of those documentary exhibits that have been
exchanged by the parties in discovery up to the date of the Pre-Hearing Report, but not to
the relevance or truth of the matters asserted therein. The parties do not stipulate to the
authenticity of any video footage that may be presented at hearing, but reserve the right to
review such video footage prior to stipulating to authenticity.
II.

Legal Principles

Section 105(c)(1) of the Mine Act provides that a miner cannot be discharged,
discriminated against, or interfered with in the exercise of his statutory rights because he “has
filed or made a complaint under or related to this Act, including a complaint notifying the
operator […] of an alleged danger or safety or health violation.” 30 U.S.C. § 815(c).
In order to establish a prima facie case of discrimination under Section 105 (c)(1), Keele
must show: (1) that he engaged in protected activity; and (2) that the adverse action he complains
of was motivated, at least in part, by that activity. Drissen v. Nevada Goldfields, Inc., 20
FMSHRC 324, 328 (Apr. 1998); Sec’y of Labor on behalf of Robinette v. United Castle Coal,
Co., 3 FMSHRC 803 (Apr. 1981); Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786 (Oct. 1980), rev'd on other grounds sub nom.; Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3d. Cir. 1981).
The Commission recently sharpened the focus on the appropriate quantum of proof
needed to establish the prima facie case. Turner v. National Cement Co. of California reiterated
the clear difference in the quantum of proof a claimant must provide to ultimately prevail in a
discrimination case as opposed to the minimal showing required to establish the prima facie
case. 33 FMSHRC 1059 (May 2011). “[T]o make out a prima facie case of discrimination, the
[discriminatee] need only submit enough evidence so that the record could support an inference”
that the termination resulted, at least in part, from protected safety complaints. Id. at 1066
(internal citations omitted) (emphasis in original).
The Commission has noted that “direct evidence of motivation is rarely encountered;
more typically, the only available evidence is indirect.” Sec’y of Labor ex rel. Chacon v. Phelps
Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981) rev'd on other grounds, 709 F.2d 86 (D.C.
Cir. 1983). Circumstantial evidence may include: 1) coincidence in time between the protected
activity and the adverse action; 2) knowledge of the protected activity; 3) hostility or animus
toward the protected activity; and 4) disparate treatment. Id. The more that hostility or animus is

37 FMSHRC Page 345

specifically directed toward the protected activity, the more probative it is of discriminatory
intent. Id. In Bradley v. Belva Coal Co., with regard to the issue of motivation, the Commission
found that “circumstantial evidence […] and reasonable inferences drawn therefrom may be used
to sustain a prima facie case.” 4 FMSHRC 982, 992 (June 1982) (citing Chacon, 3 FMSHRC at
2510-12). “Furthermore, inferences drawn by judges are ‘permissible provided they are
inherently reasonable and there is a logical and rational connection between the evidentiary facts
and the ultimate fact inferred.’” Colorado Lava, Inc., 24 FMSHRC 350, 354 (Apr. 2002) (citing
Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 (May 1984)).
Under Section 105(c), 30 U.S.C. § 815(c), the operator may rebut the miner’s prima facie
case by showing either that no protected activity occurred or that the adverse action was in no
part motivated by the protected activity. Pasula, 2 FMSHRC at 2799-800. If the operator cannot
rebut the prima facie case, it may nevertheless defend affirmatively by proving that it was
motivated by the miner’s unprotected activity. It is not enough under Section 105 (c) for the
operator to show that the miner deserved to be fired for engaging in the unprotected activity. The
operator must show that it did, in fact, consider the miner deserving of discipline for engaging in
the unprotected activity alone and that it would have disciplined him in any event. Id. at 2800;
Robinette, 3 FMSHRC at 817-18; see also E. Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642
(4th Cir. 1987).
In analyzing a mine operator’s asserted justification for taking adverse action under the
Pasula-Robinette framework, the inquiry is limited to whether the reasons are plausible, whether
they actually motivated the operator’s actions, and whether they would have led the operator to
act even if the miner had not engaged in protected activity. The ALJ may not impose his own
business judgment as to an operator's actions, Chacon, 3 FMSHRC at 2516-517, and he may not
substitute his own justification for disciplining a miner over that offered by the operator. Sec’y of
Labor on behalf of McGill v. U.S. Steel Mining Co., 23 FMSHRC 981, 989 (Sep. 2001).
The Commission has explained, however, that “pretext may be found, for example, where
the asserted justification is weak, implausible, or out of line with the operator’s normal business
practices.” Sec’y of Labor ex rel. Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug.
1990). Further, “[a] plaintiff may establish that an employer's explanation is not credible by
demonstrating ‘either (1) that the proffered reasons had no basis in fact, (2) that the proffered
reasons did not actually motivate his discharge, or (3) that they were insufficient to motivate
discharge.”’ Turner 33 FMSHRC at 1073 (emphasis in original) (citations omitted).
Additionally, “[a] company's failure to follow its own policies can be evidence of pretext.”
Garza v. Hanson Aggregates, LLC, 36 FMSHRC 974, 992 (Apr. 2014) (ALJ Gilbert); See Rudin
v. Lincoln Land Cmty. Coll., 420 F.3d 712, 727 (7th Cir. 2005) (failure to follow company's own
procedures may be evidence of pretext); see Giacoletto v. Amax Zinc Co., 954 F.2d 424, 427 (7th
Cir. 1992) (determining that employer's proffered justification was pretextual when company
failed to follow its own procedures.)
III.

Prima Facie Discrimination

As part of his burden to make a prima facie showing of discriminatory intent, Keele must
show that his termination was motivated, at least partially, by his making safety complaints. I

37 FMSHRC Page 346

must determine whether the evidence in total, including the inferential evidence, has sufficient
circumstantial weight to satisfy his prima facie burden to show discrimination.
A. Keele Engaged In Protected Activity
To satisfy the first prong of the Pasula-Robinette test for a prima facie case of
discrimination, Keele must show that he engaged in protected activity. Drissen, 20 FMSHRC at
328; Robinette 3 FMSHRC at 803; Pasula, 2 FMSHRC at 2786. Counsel for the Respondent
conceded this point, by stating in her opening statement: “There is no doubt that Mr. Keele
engaged in protected activity and lots of it […]” (Tr.1 at 22:12-14) Thus, the primary issue is the
“motivational nexus” between Keele’s protected activity and the adverse actions. See Pero v.
Cyprus Plateau Mining Corp., 22 FMSHRC 1361, 1365 (Dec. 2000).
Protected activity under the Act has been found to include tagging out equipment because
it may be unsafe, see Consolidation Coal Co., 8 FMSHRC 1568 (Oct. 1986) (ALJ Lasher),
making a complaint to an operator or its agent of “an alleged danger or safety or health
violation,” see Sec’y of Labor ex rel. Davis v. Smasal Aggregates, LLC, 28 FMSHRC 172, 175
(Mar.2006)(ALJ Lietinski), and reporting potential safety or health hazards to MSHA or an
MSHA inspector, see Sec’y of Labor ex rel. Chaparro v. Comunidad Agricola Bianchi, Inc.,
2010 WL 1145197 at *4 (Feb. 2010)(ALJ Barbour). The language of the statute prohibits
discrimination against a miner for filing complaints under §§ 105(c) or 103(g), which in and of
itself qualifies as protected activity. 30 U.S.C. § 815(c)(1).
I find that between December 17, 2012, and March 6, 2013, the day he was terminated,
Keele engaged in protected activity of which company management was aware at least ten times.
1. Background Facts2
At the time of trial, Keele had been employed at the Deer Creek Mine since 1981,
approximately 33 years. (Tr.1 at 33:3) During that time, Keele had been the Vice President of the
local union, Chairman of the Mine Committee, and was serving as the union’s Safety Committee

2

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

37 FMSHRC Page 347

Chairman when he was terminated. (Tr.1 at 36:17-23) Keele was on the Safety Committee from
approximately 1983 until 1994, and then again in 2013. (Tr.1 at 37:10-16)3
During his mining career at Deer Creek, Keele worked mostly as a mechanic electrician
until January, 2012, when he bid for and won a surface diesel mechanic position. (Tr.1 at 33:311; Tr.1 at 34:7-8) The new position required that Keele master new skills. (Tr.1 at 34:11-21)
Keele’s predominant duty as a diesel mechanic was to perform permissibility inspections
– weekly inspections that must be completed for every piece of diesel equipment at the mine.
(Tr.1 at 35:16-23) Ordinarily, the mechanic shop superintendent would give the diesel mechanics
work orders at the beginning of every shift. (Tr.1 at 39:5-7) Two mechanics would then inspect
each piece of equipment for permissibility. (Tr.1 at 48:12-21) The mechanics were expected to
complete a form describing any problems with equipment they inspected. (Tr.1 at 50:14-23)
Diesel mechanics also performed repairs on mantrips, small trucks, and haulage equipment. Id.
As a practice, if a problem with a piece of diesel equipment was easy to fix, the mechanics fixed
it right away, if not, they tagged the equipment out of service. (Tr.1 at 50:3-7) There were two
lifts or hoists in the shop where mechanics did routine equipment maintenance. (Tr.1 at 93:5-8)
2. Events Related to The Tagging Out Incident on December 17, 2012
Keele and Brian Lea4 (“Lea”) testified that Rudy Madrigal5 instructed them to do
permissibility inspections of the diesel mantrips on December 17, 2012. (Tr.1 at 47:7-14; Tr.1 at
46:8-12; Tr.2 at 34:21 – 35:2; Tr.2 at 36:6-12) Keele and Lea went to the diesel garage where all
of the mantrips were parked along the wall. They went down the line, and did their permissibility
inspections. (Tr.1 at 47:14-20) They ultimately found problems with and tagged out of service
seven of the mantrips and one duster. (Tr.1 at 49:10-25; Tr.2 at 40:5-8; Ex. S-21)6
Keele and Lea began their inspection between 9:00-9:30am. (Tr.1 at 49:1-9) They tagged
out four mantrips before their lunch break, which began around 11:00am and lasted about one
hour. (Tr.1 at 165:10-16) After returning to work, they inspected the rest of the mantrips and
tagged out an additional three, plus the duster. (Tr.1 at 166:1-3) Around 1:30-2:00pm, while

3

The Safety Committee is an elected position. The committee consists of 12-13 people
who conduct monthly or bimonthly inspections of the mine to address safety issues. (Tr.11 at
36:25 – 37:3)
4

At the time of the hearing, Brian Lea had been working at the Deer Creek Mine for
approximately 17 years and had been a diesel mechanic for nine months. (Tr.2 at 33:11-22)
5

Rudy Madrigal was the diesel mechanic supervisor at the time of the incident. (Tr.1 at

46:8-12)
6

Ex. S-21 contains Keele’s handwritten notes on the mantrips they inspected, which were
submitted to management. (Tr.1 at 52:4-9)

37 FMSHRC Page 348

Keele and Lea were finishing the duster examination, Darrel Bagley7 came into the garage and
told them to fix the mantrips that did not require a lot of work first so that they could be placed
back into service. (Tr.1 at 53:4-16) Keele and Lea took two mantrips into the shop to start
working on them. (Tr.1 at 54:3-7) Within minutes, Clayton Cox (“Cox”), the assistant mine
manager, a position directly under mine manager, Rick Poulson (“Poulson”),8 came into the shop
to find out what was going on with the mantrips. (Tr.1 at 55:7-15) Keele told Cox that there were
problems with some of the mantrips, and because of that, they tagged them out. (Tr.1 at 55:2025) Keele testified that Cox was “quite upset” that the mantrips were tagged out. (Tr.1 at 56:5)
Lea also testified that Cox was irritated and upset. (Tr.2 at 41:19)
Both Keele and Lea testified that after Cox asked what was going on, he said he was
going to conduct an investigation, that he was going to get to the bottom of what happened, and
that he was going to make sure something was done about it. (Tr.1 at 56:8-13; Tr.2 41:8-17) Cox
left the garage and called Don Childs9 to inquire whether any disciplinary action could be taken
against Keele and Lea for tagging out the mantrips. (Tr.2 at 225:4-7) Because of Cox’s
comments, both Keele and Lea believed they were going to get fired for tagging out the
mantrips. (Tr.1 at 57:21-25; Tr.1 at 58:2-6; Tr.2 at 41:22 – 42:2) Lea felt the working
environment was hostile after speaking with Cox. (Tr.2 at 43:2-7)10
Approximately ten minutes after Cox left, mine manager Rick Poulson came into the
shop. (Tr.1 at 59:1-8) He came up to Keele while he was standing on a stool on one side of a
mantrip and asked him what the issue was with the mantrip he was working on. Id. Keele told
Poulson that he was working to try to figure it out and fix the problem. (Tr.1 at 59:8-11) Keele
testified that Poulson then approached Lea and asked him the same question. (Tr.1 at 59:15-19)
As Poulson was talking to Lea, Keele walked around to the other side of the mantrip to spray
degreaser on the engine so that he could find leaks. Id. At this point, Keele was facing the

7

At the time of the hearing, Darrel Bagley was Keele’s immediate supervisor during the
afternoon shifts. (Tr.1 at 38:17-19)
8

Rick Poulson is the general manager at Energy West and Bridger Coal. (Tr.2 at 163:1012) Rick Poulson worked for Energy West for 23 years, then went to work at three other coal
companies for eight years, and then went back to Energy West in 2007 to the present and was
promoted to general manager over Energy West’s two operations two months before trial. (Tr.2
at 163:14-20) Before that, he was the general manager at Deer Creek only. (Tr.2 at 163:21-23)
Prior to being the general manager at Deer Creek for three years, he was maintenance
superintendent for about four years. (Tr.2 at 164:7-11)
9

At the time of the hearing, Don Childs was the Director of Human Resources with
Energy West Mining Company. (Tr.2 at 206:18-25)
10

There was, in fact, an investigation performed two days later, on December 19, 2012.
This is discussed further below.

37 FMSHRC Page 349

surveillance camera and was partially blocked from the camera’s view by the mantrip. (Ex. S-22;
Ex. S-23)11
A short time later, Poulson came back to where Keele was working on the mantrip. Id.
According to Keele, Poulson came up to him from behind, inserted his finger or an object into
his buttocks, and said, “Good job, buddy. Way to go. Good Job.” (Tr.1 at 59:20 – 60:3)12 Keele
testified that he told Poulson that he was just trying to do his job, and Poulson said, “Yeah, I bet
you are.” Id. Poulson then walked out of the garage. Id. Keele testified that Poulson’s statements
towards him were sarcastic. (Tr.1 at 60:10) Lea corroborated Keele’s testimony by stating that as
Poulson was walking away, he said, “Good job,” sarcastically. (Tr.2 at 42:16-19) Poulson
testified, however, that his “Good job” statements were not sarcastic, but in fact were intended to
praise Keele for a job well done. (Tr.2 at 194:7-12) I find Poulson’s testimony not credible and
inconsistent with the evidence before me on this point.
It became apparent at trial that Cox and Poulson (management) were upset that Keele and
Lea did not notify them earlier that so many mantrips had been tagged out because someone
could have begun to work on the mantrips, and thus, returned them to service more quickly. (See
Tr.1 at 165: 17-20; Tr. at 166:4-6; Tr.2 197:18 – 198:7) As a result of the way the equipment was
tagged out of service, the mine was left with fewer mantrips than was needed to perform the shift
change at 3:00pm. (Tr.2 at 198:1-3) This caused a disruption in production. (Tr.2 at 195:1-12)
However, Keele testified that the standard practice when performing permissibility inspections
was that at the end of the shift, mechanics submitted their paperwork outlining work performed
to their supervisor. (Tr.1 at 58:10-15) Lea testified that as a rule they did not notify the
supervisors about tagging out mantrips until the end of the shift when they turned the paperwork
in. (Tr.1 at 45:17-20) Keele also testified that he was never told that he had to notify his
supervisor when something was tagged out. (Tr.1 at 58:18-21) Poulson admitted at the hearing
that there was no written policy requiring mechanics to inform management when equipment
was tagged out during the shift. (Tr.2 at 104:22-24) Poulson also stated that Keele and Lea did
not break any rules by failing to notify management about the tagged out equipment prior to their
shift change. (Tr.2 at 105:16-18)
The surveillance video footage and the snapshot excerpts from it (Ex. S-22; Ex. S-23)
show Poulson approaching Keele from behind, Poulson’s left arm (away from the camera)
extending from his side towards Keele as he approached, Poulson stepping forward toward
Keele, Poulson’s body is blocked from camera view by Keele and the mantrip, and Keele’s head
turning to the side in apparent recognition of something happening, before Keele turned back to
the task he was performing. Id. The video and the snapshots were taken from an angle that does
11

Everyone who worked in the shop and all of the relevant management people knew
there were cameras capturing everything that happened there. (Tr.1 at 60:13-20)
12

Normally, a claim of sexual assault would not be central to a discrimination claim
under 105(c), however, Respondent claims as an affirmative defense that Keele lied about the
sexual assault, and because of his false statement, he was in violation of Respondent’s Business
Code, which justified his termination.

37 FMSHRC Page 350

not explicitly confirm that Poulson pushed anything into Keele’s buttocks, but I find it
reasonable to conclude by a preponderance of the video and testimonial evidence that Rick
Poulson made physical contact with Keele by physically prodding him from behind. This
determination is based upon the context in which these events took place, the credibility of
Keele’s and Poulson’s testimony, the video footage and the snapshots from the footage, and
Keele’s actions in response to the contact, which are discussed below.13
Within minutes of the contact, Keele told Lea about the incident, and that he was going to
file a complaint about it and the mantrip issue. (Tr.1 at 75:1-9; Tr.2 at 43:11-14)14 Lea agreed
with Keele and thought they should both make a complaint based on Cox’s and Poulson’s
actions before they were fired. (Tr.2 at 46:6-11) Keele also told several people around the shop
that Poulson assaulted him, namely, Kevin Wilson, Gordon Manchester, Kip Allred, Forest
Addison, Kenny Rhodes, Monte Fillmore, Merrill Fillmore, Merrill Jukes, Don Larson, and
Steve McNee. (Id.; Ex. S-30, at 27:9-17) Keele also told two union representatives, Lou Shelly
and Sheldon Oviett. (Ex. S-30, at 28:1-5)
Keele testified that when he got home from work, he immediately called the Emery
County Sherriff’s office to initiate a complaint against Poulson for sexual assault. The Sherriff’s
office informed him that he would have to come in in person to file a complaint. (Tr.1 at 75:1822)15 Keele testified that he knew the shop had around-the-clock surveillance cameras in the
garage, and that this did not dissuade him from filing a complaint with the Sheriff’s office. (Tr.1
at 78:6-13)
The next day, December 18, 2012, Keele filed a complaint via the company’s ethics
hotline alleging that his job had been threatened by Cox, and that Poulson had assaulted him for
tagging out the mantrips. (Tr. Tr.1 at 44:22 – 45:2) Later that day, Keele also filed a complaint
with MSHA. (Id.; Tr.1 at 75:25 – 76:1) Paul Priest16 received Keele’s hotline complaint on

13

Respondent made the argument that because Keele did not react more obviously to the
contact, the contact did not occur. I find this argument unconvincing. It takes a split second to
make a decision and to react to an action of another. It is reasonable to infer that Keele did not
react more obviously because he was already apprehensive that he might lose his job and he was
able to hold back any further reaction.
14

Lea did not observe the physical contact. (Tr.2 at 44:1)

15

Lea knew Keele was going to call the Sheriff’s office. (Tr.2 at 46:15-17)

16

At the time of the trial, Paul Priest was Vice President of Safety and Labor Relations at
MidAmerican Energy Holdings Company. (Tr.2 at 246:13-14)

37 FMSHRC Page 351

December 18, 2012, and Rick Poulson, Don Childs, and Cindy Crane17 were informed of it the
same day. (Tr.2 at 213:17-25; Tr.2 at 252:12-17; Tr. At 256:1-6; Tr.3 at 16:22-25)18
On December 19, 2012, Keele spoke with two Sheriff’s officers at the Deer Creek Mine
and filled out the paperwork to initiate a criminal sexual assault complaint. (Tr.1 at 78:24 – 79:9)
Keele provided a written sworn statement to the Sheriff, under penalty of perjury, that among
other things, Rick Poulson had sexually assaulted him. (Tr.1 at 77:1-9; Ex. S-25)
That same day, as Keele was working in the shop, Carl Beckstead19 told him that he
needed to go to the mine office for a meeting because Keele had called the “1-800-squeal-pig
number.” (Tr.1 at 80:1-4) Keele challenged Beckstead about his knowledge that Keele had
phoned in a complaint, since by company policy, all such matters were to be kept confidential.
(Tr.1 at 79:24 – 80:10) Beckstead deflected this inquiry and told Keele that this statement was
made by management. Id.
Keele and his union representative, Sheldon Oviett, went to the mine office. (Tr.1 at
80:12-21) Debra Stone (“Stone”),20 Don Childs, and another union representative, Lou Shelley,
also attended the meeting. (Tr.1 at 80:12-21) Stone had been hired by Paul Priest to investigate
Keele’s hotline complaint, and Priest had directed Stone to determine whether Keele’s complaint
was accurate. (Tr.1 at 79:15-18; Tr. 2 at 255:16-22; Tr. 2 at 274:20-23; Tr.2 at 257:2-6)
During this meeting, Keele told Stone about tagging out the mantrips and the assault that
occurred on December 17, 2012. (Tr.1 at 81:1-15) Keele also informed Stone that there were at
least three other miners he knew of who had been physically assaulted by Rick Poulson in the
past: Gary Olson, Kenny Rhodes,21 and Kelly Duke.22 (Tr.1 at 81:1-15; Tr.1 at 86:19 − 90:8)

17

At the time of the hearing, Cindy Crane was Vice President of PacifiCorp for nine
years. (Tr.3 at 6:14-15)
18

Lea also filed a complaint which stated that his job was threatened for engaging in a
protected activity. (Tr.2 at 46:13-14) Lea also called the Berkshire Hathaway toll-free number
and the MSHA hotline on December 17, 2012. (Tr.2 at 46:1-4)
19

At the time of the hearing, Carl Beckstead was the foreman over the in-service shop.
(Tr.1 at 105:9-25) Beckstead’s nickname is “Bummer.” (Tr.2 at 86:16-19) He had been the
surface foreman over all of the surface and the diesel for about six years. (Tr.2 at 87:15-15) He
did not have hiring or firing authority at the mine. (Tr.2 at 89:15-17)
20

At the time of the hearing, Debra Stone worked for Evolutionary HR and was hired to
conduct an investigation into Keele’s hotline complaint. (Tr.2 at 255:9-10; Tr.2 at 274:20-23)
21

Kenny Rhodes testified at the hearing and confirmed that Poulson threatened him and
stated: “Get out of here before I shove that windshield wiper up your ass."(Tr.2 at 78:1-25)
Rhodes testified that Beckstead and two other miners were present during this exchange. Id.

37 FMSHRC Page 352

Stone noted these incidents in her investigation report, but did not contact any of the miners to
determine the accuracy of the allegations or whether Poulson had committed multiple prior
assaults on miners. (Ex. S-31, p. 2) Don Childs and Paul Priest both testified that they did not
follow up on these allegations, nor was Cindy Crane told of them. (Tr.2 at 225:14-21; Tr.2 at
275:11-18) Cindy Crane was responsible for making the ultimate decision to terminate Keele.
(Tr.2 at 178:18 – 179:1)
On December 28, 2012, Keele prepared a narrative to be used with the §105(c) complaint
he filed with MSHA on January 8, 2013. In it he alleged discrimination by Cox and Poulson
related to tagging out the mantrips. (Tr.2 at 279:1-6; Tr.3 at 45:3-7; Ex. S-42, p. 3) He also stated
that Poulson “belly bumped” and pushed him from behind against the mantrip he was working
on, and “shoved something in my butt a couple of times and kept saying over and over ‘Good
job, Ralph. Way to go.’” (Ex. S-42, p. 3)
On January 8, 2013, Keele filed a §105(c) complaint with MSHA alleging discrimination
by Cox and Rick Poulson for tagging out the mantrips. MSHA conducted an investigation,
interviewing mine management and miners. Priest and Cindy Crane knew of the §105(c)
complaint and the MSHA investigation. (Ex. S-42, p. 1-2; Tr.2 at 279:4-6; Tr.3 at 45:3-7)
On February 25, 2013, around 5:30pm, Keele’s supervisor Darrel Bagely told him to go
to the mine office for a meeting. (Tr.1 at 106:17-25) When Keele arrived at the mine office, Don
Childs told him that he needed to speak with an attorney who was following up on the complaint
that Stone had investigated. (Tr.1 at 106:17-25) Russ Archibald, Keele’s union representative,
Steve Ortiz (“Ortiz”), an attorney hired by the Respondent, and a court reporter were also in the
room. (Tr.1 at 107:3-6) Keele declined to take an oath because he did not have his notes with
him and he had not been given notice of an interrogation. (Ex. S-30, pgs. 4−5)23
Attorney Ortiz told Keele he was following up on Stone’s investigation and asked Keele
questions about the incident on December 17, 2012. (Tr.1 at 107:19-25; Tr.2 at 11:14-21; Tr.2 at
12:7-13) Ortiz and Keele watched the surveillance video. Id. During the course of the
interrogation, Keele gave Ortiz the same list of names of the other miners who allegedly had
been physically assaulted by Poulson in the past.24 (Tr.1 at 108:1-3) Again, management did not
follow up on the allegations against Poulson. At the hearing, Russ Archibald testified that while
viewing the surveillance video, one could see Rick Poulson’s hand open up as he pressed into
Keele from behind. (Tr.2 at 29:23-24)

22

These past and arguably similar incidents are listed as examples of the inadequacy of
Stone’s investigation, which will be discussed further below.
23

At the hearing, Keele confirmed under oath that he did not make any false statements
during this interrogation. (Tr.1 at 45:6-16)
24

These incidents are not used as evidence that Rick Poulson engaged in bullying
behavior with other miners. They are, however, evidence of the inadequacy of Ortiz’s
investigation.

37 FMSHRC Page 353

The decision to terminate Keele was made on March 5, 2013. (Tr.3 at 39:20-22) Poulson
testified that he participated in the discussion to fire Keele, but the ultimate decision was made
by the Vice President of Operations, Cindy Crane. (Tr.2 at 178:18 – 179:1)
On March 7, 2013, Keele worked the day shift. As he was walking to the bathhouse, he
noticed people standing at Kelly Mann’s office window and in the hallway office window
looking down at him. (Tr.1 at 40:5-19) When Keele walked into the bathhouse, Cox and Kevin
Poulson asked him to come upstairs with them. (Tr.1 at 40:20- 24) When Keele went upstairs to
Rick Poulson’s office, Don Childs, Kelly Mann, and Sheldon Oviett, Keele’s union
representative, were there. (Tr.1 at 41:4-8) Keele asked for a second union rep, Tom Kay. Id.
Don Childs read Keele the letter of suspension with the intent to discharge. (Tr.1 at
41:24-25; Ex. S-20) Keele received no other reason for his suspension than Don Childs reading
the letter. (Tr.1 at 42:17-20) The letter states, in pertinent part:






On or about December 18, 2012, you called the company’s ethics
hotline and the Emery County Sheriff’s office and reported you
have been physically assaulted by the mine manager.
You stated the mine manager pushed you against the man trip
equipment and inserted something in your buttocks.
On February 25, 2013, you were interviewed and asked to explain
the above described incident. At this time you were shown a video
of the event you described; however, this video shows your
statements were false. When questioned, you offered no reasonable
explanation for why the video is inconsistent with your statement.
Making false statements to the company, and making false
accusations that an employee committed a sexual assault is a very
serious violation of company rules of conduct and will not be
tolerated.

Ex. S-20
On March 11, 2013, Keele refiled his §105(c) complaint with MSHA, adding information
about his termination. (Tr.1 at 123:13; Ex. S-42, p. 4-5)
3. Other Protected Activity
Keele was terminated because he accused mine manager Rick Poulson of assaulting him
on December 17, 2012. Energy West does not contest that Keele engaged in protected activity on
that date and on several other occasions. The following facts pertain to the events of December
17, 2012, summarized above, and other incidents of protected activity for which evidence was
admitted at the hearing.

37 FMSHRC Page 354

On February 6, 2013, Jason Marietti25 asked Keele to examine a piece of Sandvik
equipment. (Tr.1 at 100:5-6) Keele asked for the manufacturer’s recommendations on how to fix
the equipment. (Tr.1 at 100:3-6) As Keele read through the manufacturer’s document, he found
that in order to check the flame arrester, he needed a pin gauge. (Tr.1 at 100:22-25) Neither
Keele nor anyone else at the mine had a pin gauge. (Tr. 1 at 101:1-18) Keele asked foreman
Marietti what he should do. Id. Marietti spoke to management, and as a result, all five of the
Sandviks were put out of service until the right pin gauges arrived. (Tr.1 at 101; Tr.2 at 108:22109:15; Tr.2 at 151:19-25; Ex. S-40, pgs. 7, 25-26) The pin gauges took a week to arrive. (Tr.1 at
102:12-21) Marietti and Beckstead were aware of this report. (Tr.1 at 100:22-23; Tr.2 at 151:1923).
On, February 6, 2013, some of the other mechanics told Keele, in his capacity as a
member of the union’s Safety Committee, of another problem on the Eimco 922 underground
forklifts. (Tr.1. at 103:3-19) They reported that none of the swan piping on the Eimco 922s had
been checked. Keele asked Beckstead about this and Beckstead told Keele that all of the Eimcos
would be tagged out until they were inspected. Keele asked for the paperwork regarding the
Eimcos, and Beckstead refused to give it to him. (Tr.1 at 102:22-25; Tr.1 at 103:33-25; Tr.1 at
104:1-7; Tr.2 at 111:20-22; Tr.2 at 153:2-23; Tr.3 at 67:6-8; Ex. S-40, pgs. 8, 27) Marietti and
Beckstead were aware of this report as well. (Tr.1 at 103:16-19; Tr.2 at 111:20-22; Tr.2 at
153:15-18)
On February 6, 2013, Keele submitted a §103(g) complaint to MSHA alleging that the
mine failed to maintain records of required quarterly examination of the swan piping on the 922
Eimco scoops. Keele’s complaint resulted in an MSHA investigation and the issuance of two
citations. (Tr. 1 at 104:11-19; Tr.2 at 113:16-20; Tr.2 at 154:6-12; Ex. S-40; Ex. S-29) Marietti
and Beckstead were aware of this report and the MSHA investigation. (Tr.1 at 103:16-19; Tr.2 at
113:17-18; Tr.2 at 153:10-23; Tr.3 at 67:4-5; Ex. S-40, p.8). Beckstead later approached Keele
and said, “What the company ought to do is fire you for making safety complaints and other
complaints and that way everybody else would be scared to file complaints.” (Tr.1 at 105:9-25)
On March 5, 2013, Keele was scheduled to do an escapeway walk (similar to a fire drill)
intended to impress on everyone how to escape in the event of an emergency. (Tr.1 at 115:3-24)
Keele and the group he was with did not complete the escapeway walk because one of the miners
got sick. (Tr.1 at 117:4-9) If the escapeway walk is completed, the workers are expected to sign a
log book confirming completion of the walk. Keele refused to sign the log book despite
insistence by Marietti. (Tr.1 at 117:12-25) Keele also told Marietti that he should not turn in the
sheet of paper confirming that the escapeway walk was completed when it was not. (Tr.1 at
116:11 – 118:4; Tr.2 at 157:5-25; Ex. S-40, p. 8) Keele reported to Marietti that the secondary
escapeway was less than six feet in width and needed to be corrected. Id. Marietti reported this to
Kevin Poulson, who ordered that the area be brought into compliance. Id.
On March 6, 2013, Keele reported a safety concern regarding the proper grooving of
some eight inch pipes to Gary Christensen, a safety engineer at the Deer Creek Mine. (Tr.
25

At the time of the hearing, Jason Marietti was Keele’s immediate supervisor on the day
shift. (Tr.1 at 38:15-16)

37 FMSHRC Page 355

118:13-20) Keele believed the pipe had not been properly grooved on the ends. (Tr.1 at 114:512) Gordon Manchester brought this safety concern to Keele’s attention on the morning of
March 5, 2013. (Tr.1 at 113:24 – 114:14) Gary Christensen did not know the proper grooving
needed for the eight-inch pipes, so Keele and Christensen went across the hall to speak to Lou
Tonc, an engineer. (Tr.1 at 119:1-8) Lou Tonc agreed that the pipe needed to be grooved, as
Keele pointed out. Id. At some point Kevin Poulson26 came into Lou Tonc’s office and they all
talked about the issue. (Tr.1 at 119:9-22) As they all went out into the hall, Keele testified that
Rick Poulson came out of his office and started yelling at Keele. (Tr.1 at 120:1-16) Keele felt
that Poulson’s demeanor and tone were very abrasive and created a hostile working environment.
(Tr.1 at 120:15-18) A couple of hours after the confrontation with Rick Poulson, Keele went to
his boss, Marietti, and told him that he wanted to file a hostile work environment complaint with
Don Childs. (Tr.1 at 120:20-25) Keele told Childs he wanted to complain that Rick Poulson had
chastised him for raising a safety concern. (Tr.1 at 121:21-25) Later that day, Keele submitted a
complaint over the company hotline that Rick Poulson had harassed him for raising a safety
complaint about the eight-inch pipe. (Tr.1 at 121:21-24; Ex. S-35) Priest received the hotline
complaint. He later drafted Keele’s termination letter. (Tr. 2 at 254:4-5) Keele was terminated
the next day, March 7, 2013. (Tr.1 at 123:8)
I find that beginning on December 17, 2012, and continuing until March 7, 2013, the day
Keele was terminated, Keele repeatedly engaged in protected activity. As summarized below,
and described in detail above, Keele engaged in ten instances of protected activity:
1. December 17, 2012 - Keele tagged out seven mantrips and one duster for safety reasons;
2. December 18, 2012 - Keele filed a complaint over the company’s hotline alleging that his
job had been threatened by Cox, and that Poulson had physically assaulted him for
tagging out the mantrips;
3. January 8, 2013 - Keele filed a §105(c) complaint with MSHA alleging discrimination by
Cox and Poulson for tagging out the mantrips. MSHA conducted an investigation,
interviewing mine management and miners;
4. February 6, 2013 - Keele reported to his superiors that the mine was not using the proper
pin gauge to check the flame path on the Sandvik equipment, which resulted in the
equipment being tagged out;
5. February 6, 2013 - Keele reported to his superiors that the swan piping on the Eimco 922
scoops was not checked;
6. February 6, 2013 - Keele submitted a §103(g) complaint to MSHA alleging that the mine
failed to maintain records of required quarterly examination of the swan piping on the
922 Eimco scoops, which resulted in an MSHA investigation and the issuance of two
citations (Tr. 1 at 104:11-19);
26

At the time of the hearing, Kevin Poulson had been the general mine foreman for
approximately three years. (Tr.3 at 51:4-9)

37 FMSHRC Page 356

7. March 5, 2013 - Keele reported to Marietti that the secondary escapeway was less than
six feet in width and needed to be corrected;
8. March 5, 2013 - Keele refused to sign a log book indicating that he had completed the
quarterly escapeway walk and told Marietti he should not turn in the log book with
signatures of those who did not complete the walk;
9. March 6, 2013 - Keele reported a safety concern regarding the proper grooving of eight
inch pipes to Christensen. The discussion ultimately included Christensen, Rick Poulson,
Kevin Poulson, Lou Tonc, and Marietti; and
10. March 6, 2013 - Keele submitted a complaint to the company hotline that Rick Poulson
had harassed him because he raised the eight inch pipe safety concern.
B. Keele’s Employment Was Terminated Because He Engaged In Protected
Activity
The Commission has noted that “direct evidence of motivation [for termination] is rarely
encountered; more typically, the only available evidence is indirect.” Chancon, 3 FMSHRC at
2510. Circumstantial evidence may include: 1) coincidence in time between the protected
activity and the adverse action; 2) knowledge of the protected activity; 3) hostility or animus
toward the protected activity; and 4) disparate treatment. Id. The more that hostility or animus is
specifically directed toward the protected activity, the more probative it is of discriminatory
intent. Id.
1. Hostility or Animus – Prima Facie Case
The Commission has held that “[h]ostility towards protected activity – sometimes
referred to as ‘animus’ – is another circumstantial factor pointing to discriminatory motivation.
The more that the animus is specifically directed towards the alleged discriminatee’s protected
activity, the more probative weight it carrie[s].” Chacon, 3 FMSHRC at 2511. The Respondent
argues that management at the Deer Creek mine welcomed safety complaints. (Tr.2 at 174:13 –
176:22; Tr.2 at 273:4-20; Tr.2 at 135:1-24; Tr.2 at 158:8-12; Tr.2 at 90:2) However, the events in
this case occurred against a contentious labor/management backdrop. The Respondent’s
witnesses’ testimony evidenced a perceptible animus towards the Union and its members,
including Keele. As discussed in more detail below, I have taken the Respondent’s animus and
hostility towards Keele into consideration when evaluating pretext.
2. Adverse Employment Action
The Commission has defined “adverse action” as:
“[A]n action of commission or omission by the operator subjecting
the affected miner to discipline or a detriment in his employment
relationship.” 601 F.3d at 428 (quoting Sec'y on behalf of Jenkins
v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847-48 (Aug.

37 FMSHRC Page 357

1984)). […] [T]he Commission has recognized that, while
“discrimination may manifest itself in subtle or indirect forms of
adverse action,” at the same time “an adverse action ‘does not
mean any action which an employee does not like.”’ Hecla-Day
Mines Corp., 6 FMSHRC at 1848 n.2 (quoting Fucik v. United
States, 655 F.2d 1089, 1096 (Ct. Cl. 1981)). Consequently, where
the action alleged to be adverse against the miner is not selfevidently so -- such as a discharge or suspension would be -- the
Commission will closely examine the surrounding circumstances
to determine the nature of the action. Id. at 1848. “Determinations
as to whether an adverse action was taken must be made on a caseby-case basis.” Id. at 1848 n.2.
Sec’y of Labor ex rel. Pendley v. Highland Mining Co., 34 FMSHRC 1919, 1930 (Aug. 2012)
The Commission has found that a discharge, demotion, or termination is an adverse
employment action. Pretty Good Sand Co., Inc., 36 FMSHRC 1177, 1186 (May 2014)(citing 30
USC § 815(c)(1); see also Moses v. Whitley Dev. Corp., 4 FMSHRC 1475, 1478 (Aug. 1982),
aff'd, 770 F.2d 168 (6th Cir. 1985). Additionally, the United States Supreme Court has held such
action must be “material[ly] adverse action” and broadened the scope of the “adverse action” to
include Title VII retaliation provisions such as actions by an employer that “could well dissuade
a reasonable worker from making or supporting a charge of discrimination.” Burlington
Northern & Santa Fe Railway Co. v. White, 584 U.S. 53, 68 (2006).27 Here, the correct analysis
would be whether the alleged adverse action would have a chilling effect on a miner’s desire to
raise safety complaints.
In Pendley, the Commission discussed the fact that reassignment of job duties, even
within the same job classification, can constitute an adverse employment action when such
change is less desirable, arduous, or otherwise detrimental to the miner. 34 FMSHRC at 1931.
Keele’s job duties changed after December 17, 2012, when he was assigned to the lift and
worked on changing oil, changing starters, and changing bearings on the diesel equipment. (Tr.1
at 91:23-25; Tr.1 at 92:9-11; Tr.1 at 93:5-8) Keele was not allowed to go underground or learn to
work on more difficult equipment. (Tr.1 at 196:1 – 198:23)28
The weekly equipment examination master list shows Keele’s initials in connection with
approximately 400 examinations of equipment from May 27, 2012, to January 26, 2013. (Ex. S27; Tr.1 at 94:6 –96:25; Tr.1 at 99:19-22) The number of exams performed by Keele diminished
significantly after December 17, 2013, when his permissibility examination duties were
curtailed. (Tr.1 at 196:9-25) From January 20, 2013, until his termination on March 7, 2013,
Keele only performed examinations on two pieces of equipment. (Ex. S-28; Tr.1 at 95:18-19;
27

The Commission acknowledged the Burlington Northern concept of adverse action is
applicable in § 105(c) cases in Pendley, 34 FMSHRC at 1932.
28

After December 17, 2012, Lea was also assigned to the lifts and went underground
only one more time. (Tr.2 at 50:6-7; Tr.2 at 48:11-16)

37 FMSHRC Page 358

Tr.1 at 96:1-3)29 Compared to the documented incidents when Keele performed equipment
examinations prior to his demotion, this shows a dramatic curtailment of an essential component
of Keele’s job duties after December 17, 2012.
Not being allowed to go underground meant that Keele was no longer able to learn new
skills while he was working on the lifts in the shop. (Tr.1 at 93:15) This also prevented him from
working on the heavy underground equipment or learning finer points of the trade from more
experienced mechanics. (Tr.1 at 194:1-25; Tr.2 at 160:10-14) The change of duties occurred
despite the fact that Beckstead, Marietti, and Poulson all agreed that the reasons for tagging out
the mantrips on December, 17, 2012, were legitimate. (Tr.1 at 195:20-21; Tr.2 at 105:16-18; Tr.2
at 140:4-5; Tr.2 at 144:20-21; Tr.2 at 195:7-9) Further, there is no written policy that states when
a mechanic is supposed to inform management that a piece of equipment is tagged out. (Tr.2 at
141:3-6)
Don Larson, a fellow diesel mechanic, testified that when he complained about the
change in job assignments, the foreman stated that his hands were tied and apologized that the
job assignments were not fair. (Tr.1 at 197:5-24) Marietti told Larson that he could not assign
Keele underground work because management did not want Keele causing problems
underground, and assigning Keele to underground duty would put Marietti’s job in jeopardy. Id.
Marietti agreed that new mechanics such as Keele would not gain job-related knowledge unless
they were assigned to tasks they had not completed before. (Tr.2 at 160:10-14).
The foregoing convinces me that management bore animus against Keele which extended
beyond the tagging out incident on December 17, 2012. I conclude that the reassignment of job
duties was an adverse act. Management took steps to minimize Keele’s opportunities to make
safety complaints, which adversely impacted his chances to improve his job skills. Even though
Keele continued to work as a diesel mechanic, the restriction in his job duties interfered with and
disrupted his ability to develop skills in his position as a diesel mechanic.
It also appears that management was willing to put pressure on lower-level foremen and
supervisors (Marietti) to keep Keele in a position where he could not make more safety
complaints. It is a matter of reasonable inference to conclude that the company took adverse
action against Keele due, at least in part, to the frequency, number, and significance of Keele’s
safety complaints and due to his union status. As discussed further below, these adverse actions
were animated by management’s desire to punish Keele for engaging in protected activity and to
dissuade him from engaging in further protected activity.
3. Coincidence In Time Between The Protected Activity And The
Adverse Action
The Commission has accepted substantial gaps between the last protected activity and
adverse employment action. Pretty Good Sand Co., Inc., 36 FMSHRC at 1186 (citing Cam
29

Lea filed a discrimination case with MSHA when he felt his job was threatened. (Tr.2
at 56:16-17) Lea was not fired after December 17, 2012, and was not disciplined (other than
being demoted). (Tr.2 at 63:7-11)

37 FMSHRC Page 359

Mining, LLC, 31 FMSHRC at 1090 (three weeks); Sec’y of Labor ex rel. Hyles v. All American
Asphalt, 21 FMSHRC 34 (Jan. 1999). Indeed, the Commission has stated “We ‘appl[y] no hard
and fast criteria in determining coincidence in time between protected activity and subsequent
adverse action when assessing an illegal motive. Surrounding factors and circumstances may
influence the effect to be given to such coincidence in time.’” All American Asphalt, 21
FMSHRC at 47 (quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 531 (Apr. 1991)). Here,
there is a close proximity between Keele’s protected activities and the adverse action taken
against him, namely the change in job duties and his ultimate termination. As discussed above,
the first relevant instance of protected activity began on December 17, 2012, and continued until
March 6, 2013, the day before Keele was terminated. The series of events meets the time
requirements to establish a temporal nexus.
For the foregoing reasons, I find that Keele presented a prima facie case of discrimination
in that he proved by a preponderance of evidence that he engaged in protected activity and the
record supports a reasonable inference that Keele was terminated for engaging in such activity.
Indeed, there is a logical and rational connection between the evidentiary facts here and the
inference that Keele was terminated for engaging in protected activity.
IV.

Energy West’s Affirmative Defense

The operator may rebut a prima facie case of discrimination by showing that the adverse
action for which the miner seeks relief was not at all motivated by the miner’s protected activity.
Pasula, 2 FMSHRC at 2799-800. In analyzing a mine operator's asserted justification for taking
adverse action under the Pasula-Robinette framework, the inquiry is limited to whether the
reasons are plausible, whether they actually motivated the operator's actions, and whether they
would have led the operator to act even if the miner had not engaged in protected activity. The
ALJ may not impose his own business judgment as to an operator's actions, Chacon, 3 FMSHRC
at 2516-517, and he may not substitute his own justification for disciplining a miner over that
offered by the operator. McGill, 23 FMSHRC at 989. Respondent claims as an affirmative
defense that Keele made a false statement that Rick Poulson sexually assaulted him, and because
of his false statement, Keele violated Respondent’s Business Code, which justified his
termination.
Respondent offers two grounds for Keele’s termination in the March 7, 2013 letter: (1)
Keele made false statements to the hotline and the Sheriff that Poulson sexually assaulted him;
and, (2) On February 25, 2013, Keele offered no reasonable explanation to attorney Ortiz as to
why the surveillance video footage was inconsistent with Keele’s statement. (Ex. S-20)
Respondent argues that Keele was terminated because he violated its Code of Business Conduct.
The company’s EEOC Policy states that “[i]f the company determines an individual has misused
the process by intentionally filing a false charge of discrimination or harassment, he or she may
be subject to discipline, up to and including termination of employment.” (Ex. S-33, pg. 508)
Don Childs testified that Keele violated the company’s rules of conduct because he felt
Keele made a false accusation against Poulson pertaining to sexual assault. (Tr.2 at 217:13-19)
Paul Priest testified that he also believed Keele intentionally fabricated his accusation that Rick
Poulson sexually assaulted him based on the Ortiz transcript and the video. (Tr.2 at 265:8-13)

37 FMSHRC Page 360

Priest felt that Keele’s accusations against Poulson amounted to a violation of Mid American’s
Business Code. (Tr.2 at 271:5-12) Cindy Crane testified that she believed Keele filed a false
complaint with the intent of harming Rick Poulson. (Tr. 47:11-12)
V.

Pretext

The Commission has explained that “pretext may be found, for example, where the
asserted justification is weak, implausible, or out of line with the operator’s normal business
practices.” Price, 12 FMSHRC at 1534. Further, “[a] plaintiff may establish that an employer's
explanation is not credible by demonstrating ‘either (1) that the proffered reasons had no basis in
fact, (2) that the proffered reasons did not actually motivate his discharge, or (3) that they
were insufficient to motivate discharge.”’ Turner, 33 FMSHRC at 1073 (emphasis in original).
Additionally, “[a] company's failure to follow its own policies can be evidence of pretext.”
Garza, 36 FMSHRC at 992. Another useful test to determine whether an employer’s proffered
justification for taking adverse action is pretext is to determine whether it is plainly credible and
plausible. Quakenbush v. Kentucky-Tennessee Clay, 26 FMSHRC 913, 922-23 (Dec. 2004)(ALJ
Feldman). In applying these standards, I have considered the credibility of the witnesses from
both sides and the credibility of the process used to reach the decision to fire Keele.
A. Hostility or Animus Against Keele and the Union
Deer Creek is a United Mine Workers Union mine. (Tr.2 at 208:8-17) The labor contract
between Energy West and the union expired in January, 2013, and Respondent and the union had
been in negotiations over a new contract since November, 2012. (Id.; Tr.2 at 248:21 – 249:18) At
the time of the trial, the parties were still conducting contract negotiations, but were continuing
production under the old contract. (Tr.2 at 208:8-17)
Paul Priest testified that he observed an escalation in the tension between the union and
company representatives because of the contract negotiations. (Tr.2 at 249:7-13) Priest also
testified that there was an increased number of grievances, and an increase in the number of
unfair labor practice charges filed during the time of contract negotiations. (Tr.2 at 249:22-24)
Cindy Crane, the person who made the ultimate decision to terminate Keele, testified that there
was a contentious labor negotiation environment, and that she believed Keele exploited that
environment to help the union’s cause. (Tr.3 at 26:10-22) 30
When Keele and Lea tagged out the seven mantrips on December 17, 2012, it was
obvious to management (Clayton Cox and Rick Poulson) that they were not going to be able to
accomplish the next shift change in time to avoid a disruption in coal production which,
according to Rick Poulson, would cost the company upwards of $400.00 per minute. (Tr. 2 at
202:22 – 203:6) Although both Cox and Poulson claimed in their testimony that their angry
encounters with Keele had nothing to do with the fact that Keele and Lea had tagged the
mantrips out of service as they did, I am persuaded that their claims are false. Their angry and
aggressive actions and language toward Keele and Lea were consistent with their being upset at
the prospect of a costly disruption at the next shift change. Further, contrary to the evidence in
30

It is notable that at no point during Keele’s testimony did he refer to the tension
between the union and the company.

37 FMSHRC Page 361

the record, Cox and Poulson (as well as other management personnel) were convinced that Keele
and Lea had staged the tagging out incident with the knowledge and intent that doing so, when
and how they did, would cause a disruption at the shift change, and that this was somehow done
as part of a concerted larger union plot to cause the company trouble during the rancorous labor
contract negotiations. As tenuous as this sounds, it is apparent from the testimony of
management witnesses that management acted towards Keele with this as their operating
assumption.
From this I conclude that the company harbored animus towards the union in general, and
Keele in particular. I find also that this animus permeated the investigation of Keele’s allegation
of assault, management’s deliberations, and the ultimate decision to terminate Keele’s
employment. “Animus” is used in the broad sense to mean either a motivation to do something,
or the presence of hostility or ill feeling. Animus is evident in the way the company investigated
Keele’s assault complaint against mine manager Rick Poulson and in the process used to reach
the decision to fire Keele, in particular with regard to the way management applied the
company’s code of business conduct and equal employment opportunity, discrimination, and
harassment policies. This animus calls into question the bona fides of the company’s reaction to
Keele’s protected activity and related complaints. As discussed further below, I have taken the
Respondent’s animus into consideration in evaluating whether its claimed business justification
for terminating Keele is credible and plausible.
B. Energy West’s Code of Business Conduct and Equal Employment
Opportunity, Discrimination and Harassment Policy
An evaluation of the credibility of Energy West’s claim that it would have taken adverse
action against Keele irrespective of the protected nature of his workplace complaints must
include an analysis of its Code of Business Conduct and EEO, discrimination, and harassment
policies and an assessment of the integrity of the company’s interpretation and application of
those policies. Respondent argued that the decision to terminate Keele was reached by applying
the substance of the company’s policy statements to the facts available to it. In doing so, it
argued, its decision makers were careful to assess the evidence available to them and to apply the
applicable policy statements in an even-handed manner. The company obligated itself through its
policies to use good faith in applying its policies to the facts. The presence of animus justifies a
careful evaluation of the good faith and credibility of the process the company applied to justify
Keele’s termination.
The court is keenly aware that it must not merely substitute its own sense of fairness for
Energy West’s business decision to terminate Keele. In order to keep the decisional analysis
within the limits set by the legal principles outlined above, it helps to compare what Energy West
actually did to what its policy statements lead Keele, other employees, and now this court by
extension, to expect it to do. Identifying the deviations between what was promised and what
was actually done helps the court assess whether Resondent’s actions vis-à-vis Keele are credible
and deserve to be left alone, or otherwise. Such a comparison is also an established method for
evaluating whether the company’s proffered justification for adverse action is a credible and
allowable response to the employee’s actions, or is more accurately seen as a pretext contrived
by the company to cloak prohibited retaliation. It is important to consider not only the individual

37 FMSHRC Page 362

credibility of the decision makers and other players in this case, but also to weigh the
believability of the process used by the decision makers to reach the decision to terminate Keele.
I call this aspect of the analysis “process credibility.” My conclusion is that the process used to
fire Keele lacks credibility and was not applied in good faith. This conclusion is the result of
weighing credibility, not just substituting judgment.
MidAmerican Energy Holdings Company’s Code of Business Conduct and its Equal
Employment Opportunity, Discrimination and Harassment Policy govern Energy West as well as
its holding company.31 (Ex. S-32; Ex. S-33) Among other things, these policies prohibit
unwanted physical contact and actions that are intimidating or threatening. (Ex. S-32, pgs. 1112). They also prohibit physical conduct that is sexual in nature, including same sex harassment,
which creates an intimidating, hostile, or offensive work environment. (Ex. S-33, pgs. 3, 6) The
EEO Policy also states that “[i]f the company determines an individual has misused the process
by intentionally filing a false charge of discrimination or harassment, he or she may be subject to
discipline, up to an including termination of employment.” (Ex. S-33, p. 508)
Employees are also promised protection from retaliation for good faith reporting of
ethical violations and violations of the code of business conduct. (Ex. S-32, p. 4; Ex. S-33, p. 9;
Ex. S-34, p. 3) The Business Code states:
You may report ethical violations in confidence without fear of
retaliation. No retaliatory action of any kind will be permitted
against anyone making such a report in good faith. In many
instances, retaliation is against the law. Good faith reporting of
violations or possible violations will not result in adverse
consequences to the person reporting them, even if perceived
violations are ultimately proven not to have occurred […]
However, if a report is made in bad faith – for instance, if a false
or misleading report is made in a deliberate effort to get someone
in trouble (as opposed to an honest mistake) – the person making
the report may be subject to disciplinary action.
Ex. S-32, p. 4 (emphasis added)
The EEO Policy states:
Retaliation against any person who complains of or participated in
the investigation of a harassment or discrimination complaint is
prohibited. Where the company finds retaliation has occurred,
individuals who engage in the retaliatory behavior may be subject

31

Energy West is an operating division of Interwest Mining, a wholly owned subsidiary
of PacifiCorp. PacifiCorp is a wholly owned subsidiary of MidAmerican Energy Holdings
Company. Energy West employees are subject to the MidAmerican Energy Holdings Company’s
Code of Business Conduct. (Stipulations 8, 9, and 10)

37 FMSHRC Page 363

to discipline, up to and including termination of employment,
regardless of whether the original complaint is substantiated.
Ex. S-33, p. 9 (emphasis added)
MidAmerican’s Ethical Standards and Performance Expectation’s policy states:
You may report violations of the company codes of business
conduct, policies and the law without fear of retaliation. Good faith
reporting of violations or possible violations will not result in
adverse consequences to the person reporting them, even if the
perceived violations are ultimately proved not to have occurred.
Ex. S-34, p. 3 (emphasis added)
The highlighted text in the Business Code above makes it clear that Energy West created
a self-imposed obligation to determine if Keele’s allegations of assault against Rick Poulson
were made in bad faith, not merely whether they should be believed. If it had hewn to its own
policies, Energy West would have taken steps to assure that the evidence it evaluated supported a
conclusion that Keele’s complaint was made in bad faith. However, it appears that it stopped far
short of doing so, which along with the evidence of animus makes its retaliatory intent very
clear.
The company’s policies are clear; making an allegation such as Keele’s in a manner that
is merely unconvincing is specifically and unequivocally protected. “Good faith reporting of
violations or possible violations will not result in adverse consequences to the person reporting
them, even if perceived violations are ultimately proven not to have occurred […].” Id.
Moreover, the policy statement is internally consistent when it places the focus on the
complaining party’s perception of whether his complaint is factually accurate, not on the ultimate
believability of the report. Energy West promised to evaluate Keele’s assault allegations on the
basis of his perception and intent, not on whether his version is ultimately provable or even
believable.
Only when the complainer deliberately makes a false report with the intent to mislead,
such as with intent to get someone in trouble, will the report be deemed to have been made in
bad faith. Even then, whether a person who makes a bad faith report is subject to disciplinary
action is equivocal, adverse action may or may not be taken in response. However whether a
person who makes a subjectively good faith report is protected from disciplinary action is clear
and unequivocal. Missing this distinction can be the result of either an honest misreading and
misinterpretation of the policy or the deliberate misapplication of the policy. The former is an
issue the court should not touch; the latter is consistent with, and proof of the larger issue of
animus and is an important indicator of pretext.
The company’s policy statements repeatedly promise to protect Keele against adverse
action and retaliation if he makes a complaint that he subjectively believes to be true, even a
complaint with criminal or sexual implications. This promise is guaranteed by a second

37 FMSHRC Page 364

commitment, i.e., that no adverse action will result even if his complaint cannot be determined to
be factually true or cannot be believed, unless it is shown that he made the complaint knowing its
substance to be false and with the intent to harm someone else. Here, the Respondent argues that
Keele made the complaint with the knowledge that it was false and for the purpose of getting
Poulson in trouble. Stone’s investigative report concludes that Keele’s “allegation of assault was
not substantiated,” (Ex. S-31, p. 5) but she did not find that Keele made his allegation in bad
faith.
It is not for the court to decide whether it is prudent for an employer to make such
promises to its employees, but when it does, and when it appears, as it does in this case, that it
acted against the employee and against its published policies under the cloud of animus, the court
must evaluate that action by weighing the evidence and concluding whether the company acted
in good faith. The ultimate determination of pretext relies at least in part on an evaluation of the
company’s good faith. I conclude for the reasons that follow that Keele made his allegations of
assault in good faith and that the way the company applied its policies in response was done in
bad faith.
The operative wording in Respondent’s Business Code is “intentionally filing a false
charge.” The company ignored all the consistent evidence that Keele made his complaint from a
good faith belief and perception that he had been sexually assaulted. Aside from Keele’s
personal conviction that his complaint was made in good faith, the weight of the evidence is that
the assault happened. The fact that the video does not show the sexual part of the claim or that
the County Sheriff declined to prosecute does not prove that Keele complained in bad faith.
Exhibit S-38, the letter from W. Brent Langston, Deputy Emery County Attorney, to Mr.
McLeod reflects the view of the prosecuting authorities that “something may have happened”
although, in their estimation, the video evidence they reviewed was not conclusive and would not
support their requirement to prove the alleged assault beyond a reasonable doubt to attain a
criminal conviction. 32 It appears that management seized on that information as being consistent
with a desire to retaliate against Keele.
C. Keele’s Accusation Did Not Violate Energy West’s Business and Ethics
Codes
The record contains several items that weigh heavily against the proposition that Keele
intentionally made a false claim of assault by Rick Poulson. Keele made consistent statements
about the assault:



To his coworkers within minutes of the event (December 17, 2012);
Over the company’s hotline (December 18, 2012, Ex. S-24);

32

Prosecution was declined on January 22, 2013, just 37 days after Keele made his
complaint. Keele was fired on March 7, 2013, forty-five days after Poulson was released from
any criminal exposure. Cindy Crane testified that management “never got anything definitive
saying, ‘We're not doing this’ or ‘We are doing this,’ but in verbal conversation Paul Priest was
able to obtain [. . .] information” that the County Attorney was not going to prosecute. (Tr.3 at
20:1 –21:4.)

37 FMSHRC Page 365










To the Emery County Sheriff’s Office over the telephone (December 17, 2012);
To the Sheriff’s Office in writing, under oath, and subject to criminal sanctions
under Utah law.33 (December 19, 2012, Ex. S-25) Importantly, Keele provided a
written sworn statement to the Sheriff under penalty of perjury that Rick Poulson
had sexually assaulted him;
To two interviewing Sheriff’s deputies (December 19, 2012);
To Debra Stone in an interview setting (December 19, 2012);
To MSHA (December 28, 2012, and March 11, 2013, Ex. S-42);
To Steven Ortiz (February 25, 2013, Ex. S-30); and
To Utah Workforce Services (Ex. S-37) for unemployment purposes.

The consistency among all of Keele’s statements about the circumstances of the assault:
(1) supports the credibility of his claim of assault; (2) was available to the company to consider
in reviewing whether Keele’s statements were made in bad faith; and, (3) undercuts the
credibility of the company’s claim that its review was done in good faith and without pretext.
Additionally, the fact that Keele made his complaint to the prosecuting authorities under
oath, subject to potential criminal penalties, and the fact that those prosecuting authorities did not
even mention that dimension of Keele’s complaint in the “no-prosecution” letter certainly does
not support management’s perception that the prosecutor’s declination to file criminal charges
against Poulson provided proof of Keele’s having made a false statement. Management’s
eagerness to characterize Keele’s allegations as false is weighty evidence of their intent to
retaliate. The weight of the evidence underscores the consistency of Keele’s various statements
about what happened. I do not find any evidence in this case to support a finding of bad faith on
Keele’s part, especially considering the fact that he filed a sworn statement, subject to the
penalties of perjury, with the Sheriff’s Department regarding the assault.
The second reason for termination, i.e., that Keele offered no reasonable explanation to
attorney Ortiz why the surveillance video footage was inconsistent with Keele’s statement, also
fails to show Keele acted in bad faith, which is purportedly the standard created by the company
against which to judge allegations such as Keele’s. First, Ortiz’s question does not square with
the good faith statement standard set out in the company’s policies. If the decision makers were
concerned about fairly applying the policy statements relating to reporting of alleged assaults and
the assurance of no reprisal in response to such reporting, they could have focused on whether
Keele’s allegations were made in good faith, not whether they were in agreement with their own
decidedly self-protective interest in making this very messy allegation go away.
Second, it is questionable whether Keele could have answered the question Ortiz posed in
a manner that would have satisfied the decision makers at all. Keele was fired for failing to
convince the decision makers – a group that included the accused, Rick Poulson – that his assault
33

Under § 76-8-504 of the Utah Code: “A person is guilty of a class B misdemeanor if
(1) He makes a written false statement which he does not believe to be true on or pursuant to a
form bearing a notification authorized by law to the effect that false statements made therein are
punishable […]” In Utah, a class B misdemeanor is punishable by up to six month in jail and up
at a $1,000.00 fine. See Utah Code §76-3-204 and §76-3-301.

37 FMSHRC Page 366

accusation was consistent with their prior interpretation of the surveillance video. The structure
of this inquiry (loaded question or complex question fallacy) is the equivalent of the famous joke
question: “When did you stop beating your wife?” It presupposes a conclusion that is at least
arguably at odds with most of the evidence, including the video itself. It is also posed in such a
way that any response could be seen as a condemnation. The question attempts to limit any direct
reply to be one that serves the questioner’s agenda.34 Since management had already reached the
desired conclusion that Keele’s story was inconsistent with the video evidence (Tr.3 37:14-25),
Keele could not have provided any clarity to the inquiry without either agreeing with the predetermined interpretation that the video did not show an assault or agreeing that his allegation of
assault was false in the first place.
This is not merely a curious conundrum. It is evidence of pretext. It is evident that a
decision had already been made to twist away from the company’s policy statements about
encouraging free reporting of prohibited behaviors and freedom from reprisal for making even an
erroneous report in good faith. The process offered in evidence to show the bona fides of
management’s response to and handling of Keele’s accusation was distorted and misapplied. Not
only was the process unconvincing, it was used as a tactic to defend against Keele’s accusation.
It must be noted that Respondent’s entire argument rests on the surveillance video
footage. Respondent claims that based on this alone, Keele was lying about his assault claim.
This is simply not true. Respondent cannot base its argument solely on the fact that the video
does not explicitly show a sexual assault. The angle of the camera does not allow viewers to
explicitly see Poulson’s actions because he was partially blocked by the mantrip. Thus,
Respondent cannot claim with certainty that Rick Poulson did not assault Keele. I have,
however, as discussed above, concluded that based upon a preponderance of evidence Rick
Poulson did assault Keele.
The company failed to consider any alternative interpretation of the video. There is no
discussion of what other elements bear on their assessment of Keele’s good faith in making his
complaints. This “rush to judgment” seriously undercuts the credibility of the company’s
decision making process, which in turn supports a finding of pretext. Furthermore, the fact that
the company consulted with Rick Poulson in deciding to fire Keele further erodes the process
credibility. The company ignored its policy promise not to take action against an employee who
lodges a good faith complaint by allowing Poulson to participate in the decision-making process.
The other pieces of evidence relating to the alleged assault are independently sufficient to
at least give the Respondent reason to carefully evaluate and weigh Keele’s allegations against
the surrounding contextual facts, which they appear not to have done. Even independent of the
context of the company’s policy statements regarding freedom from assault and protection
against retaliation for anyone making a good faith claim of assault in the workplace, Keele’s
unwavering adherence to his claim of assault and the evidence corroborating its elements
strongly support a finding that an assault did happen and even more strongly support Keele’s
good faith in making the claim.
34

Douglas N. Walton, Informal logic: a handbook for critical argumentation 36–37

(1989).

37 FMSHRC Page 367

I conclude that the company’s actions against Keele were not taken in good faith. They
were a pretext. Management chose to ignore the company’s policy promises and to ignore the
preponderant evidence that Keele was telling the truth. This supports the further conclusion that
the company’s proffered justification for termination and the process by which it was done were
neither credible nor plausible.
D. Inadequate Investigation into Keele’s Complaint
An employer’s insufficient investigation into an employee’s complaint may be evidence
of discriminatory motive or intent. Sec’y of Labor ex rel. Lopez v. Sherwin Alumina, 36
FMSHRC 730 (Mar. 2014)(ALJ Bulluck)(the investigation was a “sham” that amounted to a
“witch hunt” designed to fire the miner, in particular where the employer had already decided to
fire the miner before meeting with him as part of the investigation). I conclude that the decision
to discipline Keele was the result of such an insufficient and questionable investigation.
Stone only interviewed Keele, Lea, and Cox. (Ex. S-31) She did not interview Rick
Poulson because she was not permitted to speak to him because the company had hired him a
criminal defense attorney (Tr.2 at 182:21 – 183:5), and he had been advised not to participate.
(Tr.2 at 183:1-3; Tr.2 at 254:23-25; Tr.3 at 19:5-6) It is troubling that the company hired Poulson
a criminal defense attorney before conducting an investigation into the events of December 17,
2012. It calls into question the company’s bona fides in carrying out its published policies of
soliciting good faith complaints from employees and honestly and competently investigating
such complaints. It is astounding that, in addition to hiring Rick Poulson a criminal attorney,
which had the effect of shielding him from an internal investigation, the company allowed
Poulson to participate in the decision to fire Keele. Including Rick Poulson in the decision to
terminate Keele severely impugns Respondent’s process credibility.
The February 25, 2013 interrogation by Ortiz provided no additional information, as
Keele’s testimony was essentially the same as the report from Stone. Again, Keele gave Ortiz
details about other alleged incidents of bullying behavior on the part of Rick Poulson, however,
Ortiz did not follow up on Keele’s allegations. (Ex.S-30 at 45:2-47:17) Keele even told Ortiz that
this incident was not the first time Poulson had threatened him. (Ex. S-30, at 47:1-22) Around
the end of July or beginning of August, 2012, Poulson allegedly threatened Keele for making
grievance complaints. Id. Surprisingly, no one from management, nor anyone hired by
management to investigate the incident on December 17, 2012, looked into this. Russell
Archibald, Keele’s union representative was present during the Ortiz interview, and he
corroborated the information about Poulson’s past assault on at least one miner. (Ex. S-30, at
47:16-25) Additionally, both Don Childs and Paul Priest reviewed the Ortiz investigation
transcript and failed to react to the additional allegations made against Rick Poulson. (Tr.2 at
220:17-19; Tr.2 at 263:3-11; Tr.2 265:8-13)
Cindy Crane made the ultimate decision to terminate Keele. However, she did not review
anything other than the video footage. (Tr. 3 at 37:14-15) She did not review the hotline
complaint, (Tr.3 at 38:15-23) or any reports or information from Stone or Ortiz, (Tr.3 at 33:1120), or any of Keele’s statements, including the sworn statement provided to the Sheriff. Id.
Additionally, Crane had input and recommendations from Paul Priest, Don Childs, and Rick

37 FMSHRC Page 368

Poulson as to whether Keele should be terminated. (Resp. Brief at 17; Tr.2 at 263:1-16; Tr.3 at
15:5-8; Ex. S-40, p. 10)
I find that the insufficiency of the investigation is evidence of discriminatory intent
against Keele. This lack of process credibility is proof of pretext.
VI.

Conclusions of Law

From December 17, 2012, until March 7, 2013, the day Keele was terminated, he
engaged in ten instances of protected activity. Respondent made an unconvincing “business
judgment” argument for Keele’s termination, namely that Keele falsely accused Poulson of
sexually assaulted him, and thus violated the company’s Business Code. Based on the weight of
evidence submitted at the hearing, I am convinced that mine management had already made a
determination to fire Keele, and they used Keele’s assault allegation as a means to their preferred
end. The weight of evidence and reasonable inferences drawn from it support the conclusion that
Keele engaged in protected activity and that Respondent terminated him in response.
Respondent’s proffered reasons for Keele’s termination are unpersuasive. Management’s
claim that Keele fabricated the assault story to retaliate against management because of contract
negotiations is unconvincing and far-fetched. Other than mine management’s notably uniform
opinion that Keele’s tagging out the mantrips was an intentional attempt to disrupt mining
operations motivated by his loyalty to the union, there is no evidence to support the idea that
Keele had any motive related to the tensions surrounding the contract negotiations. It is
noteworthy that all of the company’s witnesses candidly expressed markedly similar suspicions
that Keele and Lea were out to sabotage production, while at the same time uniformly denying
any intent on their own part to retaliate in response. Management’s perception that Keele’s
actions were related to increased tension is mere speculation. However, due to the lack of
connection between Keele’s complaint about the assault and the apparent degree to which
management seems to have been motivated to act against him, it is reasonable to infer that
management’s failure to competently, fairly, or thoroughly investigate all of the pertinent and
obvious evidence Keele suggested in his various statements about the assault was consistent
with: (1) an intent to retaliate against Keele; (2) their perception of union chicanery; and (3) their
purpose to push back against it.
I can detect no modicum of honest effort by the Respondent to fully develop the facts and
evaluate what happened here. The overriding impression I get from reviewing the evidence is
that the Respondent used its business processes as a pretext to avoid fairly evaluating Keele’s
allegations. This is particularly significant because Keele’s termination for engaging in protected
activity has the potential of discouraging other minors from making safety complaints for fear of
retaliation.
This is not a situation where the court disagrees with the company’s decision.
Management’s decision results from a self-protective and perhaps vindictive interest in
discrediting Keele. Objectively, the only thing that supports the company’s assessment of
Keele’s lack of good faith is its interpretation of the video evidence. The failure to conduct a
credible investigation and to credibly weigh all the evidence, and the immediate decision

37 FMSHRC Page 369

(ignoring preponderant and consistent evidence to the contrary) that Keele was lying justify the
court’s conclusion that management used the internal investigation process as a pretext to fire
Keele.
In light of the evidence of discriminatory animus and the deviation from established
company policy, I conclude that Keele has shown by a preponderance of the evidence that the
proffered reason for the termination was a pretext.
VII.

Penalty Amount

The principles governing the authority of Commission administrative law judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i)
of the Mine Act delegates to the Commission and its judges the “authority to assess all civil
penalties provided in [the] Act.” 30 U.S.C. § 820(i). Under Section 110(i) of the Mine Act, the
Commission is to consider the following when assessing a civil penalty: (1) the operator’s
history of previous violations; (2) the appropriateness of such penalty to the size of the business
of the operator charged; (3) whether the operator was negligent; (4) the effect on the operator's
ability to continue in business; (5) the gravity of the violation; and (6) the demonstrated good
faith in abatement of the violative condition. 30 U.S.C § 820(i). Thus, the Commission alone is
responsible for assessing final penalties. See Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147,
1151-52 (7th Cir. 1984) (“[N]either the ALJ nor the Commission is bound by the Secretary's
proposed penalties … we find no basis upon which to conclude that [MSHA's Part 100 penalty
regulations] also govern the Commission.”); see American Coal Co., 35 FMSHRC 1774, 1819
(July 2013)(ALJ).
The Commission has repeatedly held that substantial deviations from the Secretary's
proposed assessments must be adequately explained using the section 110(i) criteria. E.g.,
Sellersburg Stone Co., 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May
2000); Cantera Green, 22 FMSHRC 616, 620-21 (May 2000) (citations omitted). A judge need
not make exhaustive findings but must provide an adequate explanation of how the findings
contributed to his or her penalty assessments. Cantera Green, 22 FMSHRC at 622.
Although all of the statutory penalty criteria must be considered, they need not be
assigned equal weight. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).
Generally speaking, the magnitude of the gravity of a violation and the degree of operator
negligence are important factors, especially for more serious violations for which substantial
penalties may be imposed. Musser Engineering, 32 FMSHRC at 1289 (judge justified in relying
on utmost gravity and gross negligence in imposing substantial penalty); Spartan Mining Co., 30
FMSHRC 699, 725 (Aug. 2008) (appropriate for judge to raise a penalty significantly based
upon findings of extreme gravity and unwarrantable failure); Lopke Quarries, Inc., 23 FMSHRC
705, 713 (July 2001) (judge did not abuse discretion by weighing the factors of negligence and
gravity more heavily than the other four statutory criteria.). In addition, Commission ALJs are
obligated to explain any substantial divergence between a penalty imposed and that proposed by
the Secretary. See Sellersburg Stone Co., 5 FMSHRC at 293.

37 FMSHRC Page 370

The size of this operator and the controlling entity as of 2012 was 3,294,734 in annual
tonnage. The number of violations per inspection day was 0.28. There was no history of 105(c)
violations. Respondent stipulated that the proposed penalty will not affect Energy West’s ability
to remain in business.
As to gravity and negligence, Respondent’s response and investigation into Keele’s
December 17, 2012, complaint was inadequate and motivated by animus. Keele’s work duties
were curtailed in response to his tagging out the mantrips. Management’s actions could have a
chilling effect on miners who wish to raise legitimate safety and health concerns. This is
unacceptable when the Mine Act is written to protect miners who wish to alert mine management
and MSHA of health and safety violations. Therefore, I conclude that the Respondent violated
Sec. 105(c), and its negligence was high. Accordingly, the Secretary’s penalty recommendation
of $20,000.00 is reasonable and appropriate.
WHEREFORE, it is ORDERED that:
1. Keele is REINSTATED at the Deer Creek Mine to the same or equivalent position he
held at the time of his suspension;
2. The Respondent must expunge Keele’s employment record of any negative reference to
these discrimination proceedings, and any negative statements or inferences regarding the
Respondent’s claim that Keele fabricated false statements;
3. Energy West must pay $20,000.00 in civil penalties;
4. Keele’s temporary economic reinstatement is hereby DISSOLVED; and
5. Within 30 days of this Decision, the parties must send their post decision briefs regarding
the narrow issue of Keele’s claim that the Respondent failed to pay all that he was
entitled to under the economic reinstatement agreement.

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

Distribution:
Tyler P. McLeod, Esq., United States Department of Labor, Office of the Solicitor, 1244 Speer
Boulevard, Suite 515, Denver, CO 80204
Willa B. Perlmutter, Crowell & Moring, 1001 Pennsylvania Avenue, NW, Washington, DC
20004

37 FMSHRC Page 371

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

February 26, 2015
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 2013-458-M
A.C. No. 21-00831-319425
Docket No. LAKE 2013-596-M
A.C. No. 21-00831-327651

v.
Docket No. LAKE 2013-674-M
A.C. No. 21-00831-330143
NORTHSHORE MINING COMPANY,
Respondent

Mine: Northshore Mining Company

DECISION AND ORDER
Appearances:

Carol Liang, Esq., Ryan L. Pardue, Esq., U.S. Department of Labor,
Office of the Solicitor, Denver, CO for Petitioner
Arthur M. Wolfson, Esq., Jackson Kelly, PLLC, Pittsburgh, PA for
Respondent

Before:

Judge Barbour

This consolidated case is before me on petitions for assessment of civil penalty filed by
the Secretary of Labor on behalf of the Mine Safety and Health Administration (MSHA) against
Northshore Mining Company (“Northshore”), pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977. 30 U.S.C. § 815(d). The Secretary alleges that Northshore is
liable for 34 violations of various mandatory safety standards for the nation’s metal and
nonmetal mines.1 The Secretary proposed a total assessment of $79,023.00 for the alleged
violations. The parties presented testimony and documentary evidence at a hearing in Duluth,
Minnesota. They also filed post-hearing briefs.2
Twenty-five violations were settled before the conclusion of the hearing. Details of the
settlement are discussed at the end of this decision. The Secretary asserts that a total penalty of
$35,983.00 is appropriate for the nine remaining violations, which are alleged in Citation Nos.
8672113, 8672114, 8672460, 8672461, 8672520, 8672522, 8672527, 8672530, and 8672537.
1

The standards are set forth at 30 C.F.R. Part 56 (safety).

2

In this opinion, the Secretary’s post-hearing brief is abbreviated as “Sec’y Br.”
Northshore’s post-hearing brief is abbreviated as “Resp. Br.”

37 FMSHRC Page 372

These citations were issued pursuant to section 104(a) of the Mine Act. 30 U.S.C. § 814(a). The
Secretary further asserts that five of the violations were significant and substantial contributions
to mine safety hazards (“S&S”),3 that each of the violations affected one person, and that all of
the violations were a result of negligence by the operator ranging from “low” to “high.”
STIPULATIONS
1. At all times relevant to this matter, Northshore was the operator of Northshore Mining
Co. 4 (“Mine” or “Northshore Mine”).
2. Northshore’s operation at the Mine involved products which entered commerce or
products which affected commerce.
3. Between January 9, 2013 and April 8, 2013; and between June 10, 2013 and August
21, 2013; the Mine Safety and Health Administration (“MSHA”) inspected the Mine.
4. The individuals whose signatures appear in Block 22 of the citations at issue were
acting in their official capacities and as authorized representatives of the Secretary of
Labor when the citations were issued.
5. True copies of the citations at issue were served on Northshore as required by the Mine
Act.
6. The certified copy of the MSHA Assessed Violations History reflects the history of the
citation issuances at the Mine for the 15 months preceding the citations at issue, and may
be admitted into evidence without objection by Northshore.
3

An S&S violation is a violation “of such nature as could significantly and substantially
contribute to the cause and effect of a … mine safety or health hazard.” 30 U.S.C. § 814(d). A
violation is properly designated S&S “if, based upon the particular facts surrounding the
violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat'l Gypsum Co. 3 FMSHRC
822, 825 (Apr. 1981). In order to establish the S&S nature of a violation, the Secretary must
prove:
(1) the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard - that is a measure of danger to safety - contributed to by the violation; (3)
a reasonable likelihood that the hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury will be of a reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc. 52
F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F. 2d 99, 103 (5th Cir.
1988) (approving the Mathies criteria).
4

The facility to which the term refers is Northshore’s taconite pellet processing plant,
although it also shares its name with the operator of the mine.

37 FMSHRC Page 373

7. The parties stipulate to the authenticity of their exhibits but not the relevance or truth
of the matters asserted therein.
8. Northshore demonstrated good faith in the abatement of the citations.
9. The proposed penalties will not affect Northshore's ability to continue in business.
Sec’y Prehearing Report 1-2; Resp. Prehearing Statement 1-2, 23; Tr. 14-15.5
BACKGROUND
Northshore Mine, which is located in Silver Bay, Minnesota, is a surface processing and
shipping facility for taconite ore, a form of iron. Tr. 21-22, 46, 48. The raw material is originally
mined in Babbitt, Minnesota, and delivered by rail to the Northshore Mine, where it is crushed,
separated, concentrated, and “pelletized” before being shipped to steel mills. Tr. 21, 48-50.6
Northshore contracts out a portion of its maintenance work at the Mine to various independent
contractors, including Northern Belt & Conveyor, Inc. (“NBC”) and C.R. Meyer & Sons, Co.
(“CR Meyer”). See Tr. 98, 258-59.
Annually, during what Northshore refers to as “the summer outage,” the Mine is “offline
completely” and “not producing any pellets” in order to allow for maintenance. Tr. 269, 304.
Northshore employees and the employees of independent contractors both perform cleaning and
maintenance work during this period. See Tr. 269-70. Several of the contested citations in this
case were issued during the summer outage.
Between January 9, 2013, and April 8, 2013, and June 10, 2013, and August 21, 2013,
MSHA Inspectors, including William Soderlind, primarily, and Richard Allen King, secondarily,
conducted regular inspections at the Northshore Mine. Tr. 23-24.7 Northshore’s plant safety
5

In this opinion, the abbreviation “Tr.” refers to the hearing transcript.

6

The iron ore is concentrated into powder form through a series of mills and separators in
the concentrator plant, mixed with binding agents and turned into rounded pellets in the pellet
plant, and sent into a load-out facility or to the yard to await shipment. A number of conveyor
belts carry the material in its various states to each facility. The pump house allows the company
to pump water used to process the ore back into the system instead of into Lake Superior. The
contested citations in this matter were issued in the concentrator, pellet plant, pump house
entrance, and the yards and dock area. Tr. 49-50, 203-04.
7

Soderlind testified that he “probably inspected 80 percent of the mine,” while “King
came up to help with the inspection to try to get it done faster.” Id. At the time of the hearing,
Soderlind was an MSHA field office supervisor. He had worked as an MSHA inspector for five
and a half years. Tr. 18. He had experience with “[n]umerous different types of mines” and had
inspected the Northshore Mine “at least four times,” each inspection lasting about “three to four”
months. Tr. 20-21. King was an MSHA inspector who had worked in various capacities for the
agency since 2005. Tr. 112.

37 FMSHRC Page 374

inspector, Jared Conboy, and its safety representative, Scott Alan Blood, accompanied Soderlind
and King respectively during the Mine inspections that give rise to this dispute. Tr. 48, 153.
HOUSEKEEPING VIOLATIONS
Citation No. 8672460
Inspector Soderlind testified that he issued the citation after observing a “loose mud-like”
mixture of “fines material” and “standing water” on the floor of the concentrator basement
alongside a conveyor belt. Tr 28-30. Soderlind tested the material with one foot and found that
his foot “would slide.” Tr. 31. Conboy, on the other hand, walked through the material while
abating the condition and found the mixture “thick, cake-like, dense, and walkable” rather than
slippery. Tr. 52-54. However, he agreed that the area of the material that Soderlind tested would
have had more of a mixture of fines and water than the area he walked through. Tr 78.8
Soderlind found the condition to be S&S. GX-2 at 1. He testified that the material was
located along “the side of the conveyer [one] would typically walk on to travel through,” that the
area was traveled “daily” by “people that work in the concentrator,” and that he observed
footprints traveling through the walkway. Tr. 29-30. A photograph taken by Soderlind confirms
the presence of footprints. See GX-2 at 3. Soderlind also testified that the area was dark. Tr. 28.
Conboy disagreed, but admitted that “a low-hanging pipe . . . does block a little bit of the light
out in [the] area.” Tr. 60. Soderlind found it reasonably likely that a miner would walk through
the area, slip, and suffer an injury, resulting in lost work days or restricted duty. GX-2 at 1; Tr.
30-32.
Soderlind believed that “somebody” at Northshore “had reason to know that…there was
a . . . condition that needed attending.” Tr. 33. He testified that he was told that “miners that
work in the area conduct their own work area inspections and then report that back to
management.” Id. The issue was “obvious” and did not look as though it had “just happen[ed].”
Tr. 33-34. As a result, Soderlind found Northshore to be moderately negligent. Id. During cross
examination, Soderlind admitted that he did not see anyone working “in the immediate area” at
the time of the inspection, and that contractors were working in the concentrator that day. Tr. 4041, 44. The company contends that the Secretary did not provide any evidence that the area had
been visited during the timeframe of the violation by anyone other than a contractor or a rankand-file miner, neither of whose negligence can be imputed onto the operator. Resp. Br. 9-10.
Further, the company argues that if no Northshore employee was working in the area, it would
not have been required, under 30 C.F.R. § 56.18002, to conduct workplace inspections there. Id.;
Tr. 38-39.

8

Conboy also testified that six months earlier a “slip-test” conducted in the same area
found a similar type of mixture to be “not slippery.” But the court chooses to disregard this
testimony because the test was conducted too far in the past to offer a reliable comparison, and
Conboy himself admitted that the consistency of spills could be different on different days. Tr.
62-70, 76.

37 FMSHRC Page 375

Citation No. 8672461
Soderlind issued this S&S citation after observing a slick oil, water, and grease spill “up
to half an inch deep” across the walkway of the concentrator sub-basement area. Tr. 83; GX-3 at
1. He felt that the spill posed a slip and fall hazard, particularly if a miner were to “step on a
slippery spot in the oil.” Tr. 86. He observed “several footprints” and “cart” tracks running
through the spill, and “more than two or three” miners working in the area. Tr. 84-85. According
to Soderlind, in order to bypass the hazard, a miner would need to go up a level and come back
down around from the other side of the walkway. Tr. 86. As with the previous citation, Soderlind
believed that it was reasonably likely that a miner would suffer an injury in a fall, resulting in
lost workdays or restricted duty. Id.
Conboy testified that he was able to step over the spill without difficulty to avoid walking
through it (Tr. 101), and that even were a miner to walk through the spill, the solid concrete floor
and “ANSI certified boot[s]” that miners wear would provide traction on the floor. Tr. 101-102.9
Further, Conboy believed that the spill was “more water” than oil (Tr. 104), which the company
argues is supported by photographs depicting all of the oil being swept up and cleared through
the use of a limited number of thin absorbent pads. See Resp. Br. 16; RX-14(b).
Soderlind found Northshore to be moderately negligent because in his opinion the spill
was obvious and “people [were] working” in the area. Tr. 88-89. He concluded that the extent of
the spill and the absence of any ongoing leak indicated that the spill had been present for “a good
amount of time.” Tr. 89. Soderlind reiterated that Northshore miners are expected to conduct
their own workplace examinations and report safety violations to management, and that this
practice applies in this area as well. Tr. 88. His understanding, based on discussions with
Northshore, was that management would also try to inspect an area such as this once a week. Id.
Conboy testified that electrical contractors and CR Meyer’s employees worked in the
area from which the oil spill originated and that the footprints observed in the spill were “more
likely” from one of them. Tr. 98, 109. The company disputes that any Northshore employees
were working in the area and, once again, argues that there is no clear evidence that any
Northshore employee encountered the spill or had reason to know about it. See Resp. Br. 18-19.
Rather, there is more reason to think that contractors were primarily negligent in this situation.
Id.
Citation No. 8672522
Soderlind observed a mix of pellets and standing water on the ground of the pellet plant,
near the tail pulley. Tr. 250, 252-53. According to Soderlind, the pellets—which were
approximately 1/4 to 3/8 of an inch in diameter—were scattered across inclined walkways on
either side of the No. 46 conveyer belt. Tr. 250, 252-53. Additionally, guards, planks, and a hose
were submerged under two feet of water in the area. Id.

9

Presumably, Conboy was referring to standards for safe footwear set by the American
National Standards Institute (“ANSI”).

37 FMSHRC Page 376

Soderlind saw a miner slipping on the pellets on the floor, although Conboy clarified that
this did not result in a fall. Tr. 255, 276-77. Soderlind also observed other miners working in the
area, and he testified that the area provided passage between different parts of the pellet plant.
Tr. 257. When asked directly, Soderlind answered that the miners in the area were “Northshore
employees[].” Tr. 266. Conboy testified that, because it was summer, the individuals in the area
would have been a contractor’s employees, as he was not aware of any “Northshore employees
[being] given any tasks with respect to the [No.] 46 conveyor,” during the summer outage. Tr.
269-70. The nearest Northshore workers Conboy recalled seeing “were working on [a separate]
conveyor . . . on the opposite side of the wall from the [No.] 46 conveyer, . . . somewhere around
100 feet from the tail pulley.” Tr. 270.
According to Conboy, independent contractor NBC had contracted with Northshore to
replace a conveyor. Tr. 269. NBC’s employees had been on the job “for quite some time.” Tr.
286. NBC had a foreman and safety representative on site during the timeframe in which the
violation occurred. Tr. 259, 263. Additionally, NBC’s Master Service Agreement with
Northshore specified that NBC would “remove all debris and trash daily.” RX-73 at 2, 15.
However, the Agreement also allowed Northshore to implement corrective measures at its
contractor’s expense for housekeeping violations if the contractor neglected to correct those
problems immediately upon request. RX-73 at 15.
The Secretary argues that Northshore should be held responsible for its contractors’
conduct because the company failed to implement additional training for contractors on
housekeeping and orderliness, outside of the single paragraph instructions in the 18-page
“Master Services Agreement” that all of Northshore’s contractors must sign. See Sec’y Br. 16;
RX-73 at 2, 15.10 Conboy did however testify that Northshore requires its contractors to “receive
the same training” that it requires of its own employees through MSHA and that contractors are
“not allowed on the property without their 5000-23 [inspection certificates].” Tr. 287-8811
10

The full “Housekeeping and Orderliness” paragraph of the Master Service Agreement

states:
In additional [sic] to any requirements in the Agreement, Provider agrees
that all equipment, tools, materials and other apparatus will be stored, stacked,
placed, temporarily spotted or setup [sic] in such a manner as to maintain safe
egress and a clean and orderly workplace. Provider agrees to remove all debris
and trash daily. Should Company or its representative deem the Provider in
nonconformance with these requirements, Company or its representative will
direct Provider to take immediate corrective action. Should the Provider neglect to
take such corrective measures, Company may terminate the Agreement or
implement the corrective measures at the expense of Provider and may also
deduct the cost thereof from any payments due or to become due to Provider.
RX-73 at 15.
11

Form 5000-23 “provides a means for mine operators to record and certify Part 48
mandatory training received by miners.” MSHA - Forms and Online Filings – Form 5000-23
Certificate of Training, Mine Safety and Health Administration,
http://www.msha.gov/forms/elawsforms/5000-23.htm (last visited Feb. 24, 2015)

37 FMSHRC Page 377

Further, contractors have to “watch [a] site-specific safety video in which [Northshore] cover[s]
[b]riefly” housekeeping protocol. Id.
THE VIOLATIONS, THEIR S&S NATURE, THEIR GRAVITY, AND THE COMPANY’S
NEGLIGENCE
The Violations
Section 56.20003(b) requires that, “The floor of every workplace shall be maintained in a
clean and, so far as possible, dry condition . . . .” The floors of the three cited areas were not
maintained in such a condition. Both Soderlind’s and Conboy’s photos indicate extensive spills
in violation of the mandatory standard. See GX-2 at 3-4, GX-3 at 3-6, GX-10 at 6-16; RX-3, RX14, RX-72. The court finds that the conditions of the cited areas were as depicted in these
photographs and in Soderlind’s testimony (see Tr. 30-32, 86, 252-53) and that the housekeeping
violations existed as charged.
The Gravity and S&S Nature of the Violations
Soderlind found that all three violations were S&S and reasonably likely to result in lost
workdays or restricted duty. GX-2 at 1, GX-3 at 1, GX-10 at 1. The court agrees. The discrete
safety hazard contributed to by each of the violations was a slip and fall accident, and the
conditions in each area made it reasonably likely that an injury would result from this hazard. Tr.
30-32, 86, 252-53. Citation No. 8672522 presented an additional hazard of tripping over
submerged items, with the same likelihood of resulting injury. Tr. 252-53.
For Citation No. 8672460, the court credits Soderlind’s testimony on the slipperiness of
the material and the diminished visibility in the area. Tr. 28, 31. Conboy’s testimony does not
refute these assessments. While he did not find the area slippery, he admittedly walked through a
different portion of the material with a different consistency than Soderlind. Tr. 52-54, 78.
Regarding the lighting, he agreed that a low hanging pipe in the area blocked some of the light,
and his own photographs appear to confirm the inadequacy of the area lighting. Tr. 60; see also
RX-3(d). Furthermore, a miner attempting to avoid a low hanging pipe in a dimly lit area would
be at an increased risk of slipping and falling after failing to observe the hazard.
Regarding Citation No. 8672461, the court finds that the extent of oil and grease in the
mixture was sufficient to create a discrete slip and fall safety hazard. Neither work boots nor
solid concrete can sufficiently counteract this risk. This hazard would be reasonably likely to
lead to injury as well. There was extensive evidence of work being conducted in the area,
including right through the spill itself, increasing the chances of a miner contacting the spill and
losing his or her footing. See Tr. 84-85.
Citation No. 8672522 presents an even clearer case of reasonably likely injury, given that
an individual actually slipped on the pellets in the middle of the inspection. Tr. 255. The
submerged debris in the area presented miners with additional slip and fall hazards as well. Tr.
252-53. With miners working in the area at that time and others potentially accessing the area to
perform maintenance on the belts or pumps or to travel to other parts of the pellet plant,

37 FMSHRC Page 378

continued normal mining operations would make further slips, and consequent injuries,
reasonably likely. Tr. 257.
The court is convinced that the resulting injury from each violation would likely be
reasonably serious. While the S&S nature of a violation and the gravity of a violation are not
synonymous, (see Consolidation Coal Co., 18 FMSHRC 1541, 1550) (explaining the “focus of
the seriousness of the violation is not necessarily on the reasonable likelihood of serious injury,
which is the focus of the S&S inquiry, but rather on the effect of the hazard if it occurs”), the
facts in these citations justify findings of both S&S and serious gravity. Soderlind detailed
various injuries that could occur from a slip and fall accident in either area, including joint or
muscle strains or sprains, all of which strike the court as entirely plausible and likely to result in
lost workdays or restricted duties. Tr. 30-32, 86, 255-56.
The Company’s Negligence
Soderlind found Northshore moderately negligent for Citation Nos. 8672460, 8672461,
and 8672522. GX-2 at 1, GX-3 at 1, GX-10 at 1. Moderate negligence reflects the Secretary’s
determination that “[t]he operator knew or should have known of the violative condition or
practice, but there are mitigating circumstances.” 30 C.F.R. §100.3(d). Northshore contends that
the court should reduce the negligence finding for Citation No. 8672460 and find no negligence
for Citations Nos. 8672461 and 8672522. See Resp. Br. 9, 19, 45. “Low negligence” is
appropriate when “[t]he operator knew or should have known of the violative condition or
practice, but there are considerable mitigating circumstances.” 30 C.F.R. § 100.3(d). A finding of
“no negligence” indicates that “[t]he operator exercised diligence and could not have known of
the violative condition of practice.” Id.
Northshore cites the holding in Fort Scott Fertilizer-Cullor, 17 FMSHRC 1112, 1115-16
(citing Southern Ohio Coal, 4 FMSHRC at 1464), that “conduct of a rank-and-file miner is not
imputable to the operator in determining negligence for penalty purposes” and argues that the
Secretary has not proven by a preponderance of the evidence that anyone other than a contractor
or a rank-and-file miner knew or should have known about the violations. Resp. Br. 9, 18, 45.
However, the Commission has also stated that “[t]he fact that a violation was committed by a
non-supervisory employee does not necessarily shield an operator from being deemed
negligent.” A.H. Smith Stone, Co. 5 FMSHRC 13 at 15. In assessing an operator’s negligence in
such cases, the Commission takes into account “such considerations as the foreseeability of the
miner's conduct, the risks involved, and the operator's supervising, training, and disciplining of
its employees to prevent violations of the standard in issue.” Id. Finally, the Commission has
explained that “a history of similar violations at a mine may put an operator on notice that it has
a recurring safety problem in need of correction and thus, this history may be relevant in
determining the degree of the operator's negligence.” Peabody Coal Co., 14 FMSHRC 1258,
1264.
The court finds that Northshore was minimally negligent in all three citations. The
company had a significant history of housekeeping violations over the prior 15 month period, as
well as a history of slip and fall injuries. See GX-1 at 5-6; Tr. 87. This history put the company
on notice that it had a recurring safety problem in need of correction and gave rise to a
heightened duty to carefully inspect for housekeeping violations. The court credits Soderlind’s

37 FMSHRC Page 379

testimony that the spills were obvious and likely occurred over an extended period of time, as
these conclusions are supported by both parties’ photographic evidence. See Tr. 33-34, 89, 257;
see also GX-2 at 3-4, GX-3 at 3-6, GX-10 at 6-16; RX-3, RX-14, RX-72. Given these
conditions, Northshore should have discovered all three of these violations before the citations
were issued.
There is however insufficient evidence to support Soderlind’s finding of moderate
negligence for any of the three citations. The court finds that there was no work being conducted
in the cited area in Citation No. 8672460 at the time of the violation, consistent with Soderlind’s
own testimony (see Tr. 44), and that only contractors were working in the cited areas in Citation
Nos. 8672461 and 8672522. The Secretary failed to present testimony that any Northshore
employees had worked in the cited area in Citation No. 8672461, while Conboy testified that
contractors worked in the vicinity. See Tr. 110. There is conflicting testimony from Soderlind
and Conboy regarding whether Northshore employees were working in the area in Citation No.
8672522 (see Tr. 266, 269-70), however the court credits Conboy’s testimony that they were not.
He provided greater detail on the specific location of the closest Northshore employees -- around
100 feet from the tail pulley -- and adequately explained why no Northshore employee would
have been near the cited area. See Tr. 269-70. As the mandatory safety standards for surface
metal and nonmetal mines only require an operator to conduct shift examinations of working
places, Northshore would not have discovered the violations through such means. 30 C.F.R. §
56.18002
Finally, the court does not find that Northshore’s selection, training, or supervision of its
contractors elevated its level of negligence. Its contractors assumed some responsibility over the
areas in which they worked through their Master Service Agreement with the company and took
considerable steps to assure Northshore that they could meet this responsibility, including
appointing experienced foremen and safety representatives and completing safety training. Tr.
259, 263. The Secretary’s argument that Northshore should have provided further training or
instruction to its contractors is unpersuasive given the absence of any evidence that MSHA cited
Northshore for inadequate training of its contractors. See Sec’y Br. 16. Accordingly, the court
finds low negligence on Northshore’s part for Citation Nos. 8672460, 8672461, and 8672522.
Citation No. 8672530
Soderlind issued this citation for a violation of 30 C.F.R. § 56.20003(a) after observing
pellets on the “dark,” “inclined” walkways on each side of conveyer belt H, at a landing at the
top of a set of stairs. Tr. 293-94, 296, 298. He designated the violation non-S&S because the
conveyer belt in the area was not running, and “there [were] not a lot of people working in the
area at the time.” Tr. 297. The injury reasonably expected was a “sprain and strain” from a slip
and fall, leading to “lost work days or restricted duty.” Tr. 298. Soderlind found low negligence
because Northshore employees were not working in the area at the time. Tr. 299. Conboy
clarified that this was during the two weeks summer outage (Tr. 304-05), that the closest miners
in the area were “250 to 300 feet” away (Tr. 309), and that during the summer outage he could
not conceive of any reason why miners would have to go the H belt area. Tr. 310. Moreover, the
pellets were cited on a “U-shaped walkway” that only provides “roundabout” access around the
H conveyer belt. Tr. 306. An individual who traveled on the walkway would end up “back to
where [he] started” and nowhere else. Tr. 310.

37 FMSHRC Page 380

THE VIOLATION, ITS GRAVITY, AND THE COMPANY’S NEGLIGENCE
Section 56.20003(a) states that, “Workplaces, passageways, storerooms, and service
rooms shall be kept clean and orderly.” The cited walkway was clearly not kept clean or orderly
due to the extensive presence of pellets scattered about the floor. See Tr. 293-94; see also GX-12
at 3-4. Neither party contends that the walkway was a workplace, and due to the absence of any
work being performed in the area during the summer outage, the court agrees that the cited area
was not a workplace. The key area of dispute between the parties is whether the cited area was a
“passageway” under the terms of the standard. See Sec’y. Br. 23; Resp. Br. 52. The Mine Act
and mandatory safety standards do not define the term, and the Commission has not addressed
the issue. The company relies on Spencer Quarries, Inc., 32 FMSHRC 644 (June 2010) (ALJ) to
argue in its brief, “Whether an area is considered to be [a] passageway that requires cleaning is
determined, in part, by whether it is an active area at the time at issue.” Resp. Br. 51. In Spencer
Quarries, Commission Administrative Law Judge Richard Manning vacated a citation alleging a
violation of Section 56.11016 due to inactivity on the cited walkway. But Section 56.11016,
unlike Section 56.20003(a), makes no mention of the term “passageway” and therefore the court
finds that Spencer Quarries fails to provide meaningful guidance in defining the term.
The Secretary cites U.S. Silica Co., 32 FMSHRC 1699 (Nov. 2010) (ALJ) in which
Commission Administrative Law Judge Margaret Miller directly dealt with the question with
which this court is now confronted. Judge Miller first noted that the standard does not use the
term “travelway,” which is defined in Part 56 as a “passage, walk or way regularly used and
designated for persons to go from one place to another.” Id. at 1706 (quoting 30 C.F.R. § 56.2).
She then contrasted the regulatory definition of “travelway” with the dictionary definitions of
“passageway” (“a way that allows passage”) and “passage” (“a way of exit or entrance: a road,
path, channel, or course by which something passes”). Id. (quoting Webster’s New Collegiate
Dictionary 830 (1979)). Judge Miller concluded that the cited area was both a passageway and a
workplace, as “people access it, pass through it, and perform work there.” Id. at 1707. She
further concluded that work did not have to be ongoing and an individual did not have to be
traveling through the area for it to qualify as such. Id.
The court agrees with Judge Miller’s analysis and finds that the cited area qualifies as a
“passageway” under the Webster’s New Collegiate definitions of “passageway” and “passage.”
The area may not have been regularly used or designated for persons to go from one place to
another, but those factors are primarily relevant in determining whether or not an area is a
“travelway.” The cited area satisfies the much more limited requirement of allowing passage, or
a path by which miners may pass. Because the cited area was a passageway that was not kept
clean and orderly, the court finds the violation existed as charged.
Finally, the court agrees with Soderlind’s determination that injury was unlikely and
negligence was low due to the summer outage and lack of activity in the area, but that if an
injury did occur it would result in lost workdays or restricted duty, from sprains or strains. Tr.
297-98; GX-12 at 1. The court finds that the violation’s gravity was serious, while the
company’s negligence was low.

37 FMSHRC Page 381

THE SAFE ACCESS VIOLATION
Citation No. 8672113
Inspector King issued this citation after observing “icicles hanging down in front of doors
at the pump house.” Tr. 181. He found that the violation was reasonably likely to cause a fatal
injury, and that it was S&S. GX-6 at 1. He believed that the icicles could fall on and seriously
injure or kill a miner passing underneath them. Tr. 182. His belief was supported by his
recollection of a “fatality in Kentucky in [19]95” caused by falling icicles. Tr. 182, 200-01. King
testified that the icicles at Northshore’s mine were between 6 and 24 inches in length and “an
inch to an inch and a quarter” in diameter. Tr. 186. Blood testified that they were “a couple
inches . . . to about a foot and a half long.” Tr. 206. King also testified that the icicles were
twelve feet above the ground and that they were “big enough to cause damage if they hit you
right.” Tr. 187, 189.
Northshore argues that “[t]he Secretary did not produce any . . . evidence to detail the
nature of the event in Kentucky . . . [including] the size of the icicles or how far away they were
from the miner,” presumably suggesting that the icicle fatality King was relying on in his gravity
assessment may have involved much bigger icicles falling from a much greater height. Resp. Br.
24; Tr. 193. The Secretary, however, points out that both King and Blood testified that due to the
rapid freezing and thawing cycle in the region at that time of the year, icicles could grow
considerably overnight. Sec’y Br. 33; Tr. 198, 214. Any gravity determination would have to
account for the likelihood of the icicles developing and growing more dangerous, assuming
continued mining operation.
King’s notes suggest that the area was accessed daily (GX-6 at 2; Tr. 185), but he also
testified that the pump house was “out by itself,” and that he could not remember if there was a
lot of traffic in the area. Tr. 190, 196. Blood clarified that the area was not an access point for
anything other than the sump pump (Tr. 204) and that employees had “no need to go in there”
unless the red light above the door indicated that the room needed maintenance. Tr. 205.
Furthermore, the area was not known to “require . . . a lot of maintenance.” Id.
Blood also spelled out a number of protections that minimized the risk of injury to miners
from falling icicles. First, overhangs on the buildings above the doors ensured that icicles would
not fall on miners while they were opening or closing a door (Tr. 206), which is one scenario that
King speculated could “cause [the icicles] to jar loose.” Tr. 189. Second, the icicles were “tiny”
and “fragile.” Tr. 206. Last, all miners were also provided hard hats and winter coats with collars
that icicles would be unable to pierce. Tr. 207-08.
King designated Northshore’s negligence as “high” due to the “open and obvious” nature
of the violation, the expectation that the violation should have been found and abated by the time
of the inspection, and the fact that the area was not flagged or barricaded off for the benefit of
other miners. Tr. 189-90. The company argues that King’s negligence assessment was based on
the false premise that Northshore employees had been in the area all morning. Resp. Br. 30.
Blood testified that, as far as he was aware, no one had been at the pump house since the icicles
developed the previous day. Tr. 209.

37 FMSHRC Page 382

Blood also testified that Northshore places signs and barricades for “very large” icicles in
“high areas,” or simply takes them down, but that these icicles were not deemed hazardous. Tr.
209, 220. According to Blood, after they were cited, the icicles were knocked down with a
broom handle to abate the violation, and they “shattered into many pieces and . . . little chunks.”
Tr. 220. Further, Blood testified that Northshore had never previously been cited for icicles
hanging off of overhangs, nor, to the best of his knowledge, had a company employee ever
suffered an icicle-related injury, in spite of icicles developing every spring at the mine. Tr. 20809.
THE VIOLATION, ITS S&S NATURE, ITS GRAVITY, AND THE COMPANY’S
NEGLIGENCE
Section 56.11001 states that, “Safe means of access shall be provided and maintained to
all working places.” The court concludes that the Secretary has narrowly established the fact of a
violation by a preponderance of the evidence. Based on the photographic evidence and areas of
agreement in King’s and Blood’s testimony, the court finds that the icicles were up to a foot and
a half in length, roughly an inch in diameter, and twelve feet above ground. See GX-6 at 3-4; Tr.
187, 206. The specific icicles in this case rendered access to the pump house minimally unsafe.
However, the court finds the gravity and negligence to be considerably lower than the Secretary
has alleged. While the court accepts that the violation contributed to a discrete safety hazard, it
was unlikely that an injury would result, and such an injury could not reasonably be expected to
have been fatal or even permanently disabling. Therefore, the S&S designation cannot stand.
The court credits Blood’s testimony on the infrequency with which the area was
accessed. See Tr. 204-05. His testimony that the pump house was not an access point for any
other area, that operators would only enter if maintenance was required, and that maintenance
was not often required went unrefuted and leads most naturally to the conclusion that the
entrance was not frequently accessed. Id. King’s own testimony about the area being out by itself
and his lack of recollection of traffic in the area support this conclusion. Tr. 190, 196. The court
also agrees with Conboy that the precautions taken by Northshore significantly decreased the
likelihood of an icicle directly contacting a miner. See Tr. 207-08. For an injury to occur, an
icicle would have to fall while a miner was looking up or was positioned in such a way to expose
an unprotected part of his or her face or body to the falling icicle. And the miner would have to
stop far enough away from the door to avoid the shelter of the overhang when the icicle fell. In
every other conceivable scenario, the combination of a hard hat, winter coat, and the overhang
was sufficient to prevent or to significantly minimize injury.
Given that the icicles shattered harmlessly upon contact during the violation’s abatement,
the court finds it likely that the only injury that could reasonably be expected would at most
involve lost workdays or restricted duty, although this injury still renders the violation
reasonably serious. See Tr. 206.
The Secretary did not demonstrate that the cited icicles bore any resemblance to those
that may have proven fatal in the case King recalled (Tr. 193), and although the Secretary is
correct to point out that, assuming continued mining operations, the rapid thawing and cooling
cycle could have caused the icicles to grow to dangerous proportions overnight, (Sec’y Br. 33;

37 FMSHRC Page 383

Tr. 198, 214), the fluctuating temperature could just as easily have caused the icicles to shrink to
entirely harmless proportions. Moreover, Northshore’s stated practice of dealing with more
hazardous icicles and the company’s absence of any history of injuries from such icicles indicate
that, in the event of continued mining operations, Northshore likely would have knocked down
the icicles before they harmed anyone. See Tr. 208-09, 220.
Finally, the court finds that Northshore’s negligence was low. It is unlikely anyone had
encountered the icicles between their prior night’s formation and the afternoon inspection, given
the remoteness of the pump house and the absence of any need to visit it that day. See Tr. 190,
196, 204-05. Further, had anyone visited the area, he or she might well have failed to recognize a
safety hazard. The court accepts Blood’s testimony that icicles are common in the area and that
the cited icicles were not especially hazardous. See Tr. 208-09, 220. The court further notes that
Northshore’s lack of a history of icicle-related injuries and icicle-related violations would not
necessarily alert the company to the potential safety hazards of otherwise routine icicles. See Tr.
208-09.
THE ICY WALKWAY VIOLATION
Citation No. 8672114
King cited Northshore for failing to sand or salt what he deemed to be a “slick ice”
walkway, approximately “six [feet] wide and 40 inches deep,” in front of the pump house
entrance. Tr. 223, 226.12 The icy walkway created a slip and fall hazard, which King designated
as S&S. GX-7 at 1. King testified that the ice was “slicker” than normal because it was “starting
to melt.” Tr. 223. He also believed that Northshore employees contributed to this hazard by
“tromp[ing] down” or “walking over the snow” that later became ice in front of the entrance. Tr.
227-28. Footprints near the entrance indicated to King that miners traveled through the area at
some point between the buildup of snow and the formation of ice without clearing the snow. See
Sec’y. Br. 37; Tr. 227.
King thought that an injury was reasonably likely because the area was, from what the
operator had told him, “accessed daily.” Tr. 227. The injury, whether it be “a sprain, a bone
bruise, [or] a broken arm,” could reasonably be expected to cause lost workdays or restricted
duty. Tr. 228. King viewed Northshore’s negligence as high because the hazard was “open” and
could have been dealt with simply by placing a “bucket of sand…by the entrance.” Tr. 229.
Additionally, the area was not flagged or barricaded for the protection of miners. Tr. 230.
Blood testified that the ice was not in fact slippery. Tr. 238. Instead, it was “uneven
and . . . hard to walk on.” Id. Blood also disagreed with King’s contention that the area was
“accessed daily.” Tr. 228. Being that this was the same area cited in Citation No. 8672113,
Northshore notes that Blood’s testimony for that violation regarding the infrequency of access
applies equally here. See Resp. Br. 36. Northshore also argues that infrequent access mitigates
against a high negligence finding by making it less likely that any agent of Northshore knew or
should have known about the hazard. See Resp. Br. 38. Additionally, Northshore notes that the
company provided buckets of sand and tailings “inside [all Northshore] doorways,” so that
12

This was the same structure discussed in Citation No. 8672113. Tr. 241.

37 FMSHRC Page 384

miners could deal with this problem when it arose, and the company provided training to all
employees to ensure compliance. Resp. Br. 38, Tr. 237-38. The Secretary responds that these
measures are inadequate because, as Blood admitted, a miner would still have to traverse the
unsalted icy terrain to get to the bucket and take care of the hazard. See Sec’y. Br. 39, Tr. 242.
THE VIOLATION, ITS S&S NATURE, ITS GRAVITY, AND THE COMPANY’S
NEGLIGENCE
Section 56.11016 requires regularly used walkways and travelways to be “sanded, salted,
or cleared of snow and ice as soon as practicable.” There is no dispute that there was snow or ice
leading up to the pump house entrance, and that the cited area had not been sanded, salted, or
cleared. See Tr. 223, 238. The preponderance of evidence further suggests that Northshore failed
to clear the snow that later became ice when it would have been practicable to do so. This should
have occurred when someone walked through the snow earlier, causing the footprints that can be
seen in the inspector’s photograph of the cited entrance. See GX-7 at 4; Tr. 227. Therefore, the
court finds that Northshore violated the standard.
There is, however, insufficient evidence to support an S&S designation and a high
negligence finding. As with the prior citation, and for the same reasons, the court credits Blood’s
testimony that the area was infrequently accessed. See Tr. 204-05. 13 And given both Blood’s
testimony that he did not find the ice to be slippery when he walked on top of it and the
indeterminate amount of ice in the Government’s photographs, the court is not convinced that the
ice was slippery or extensive enough to injure the rare individual that might walk through there.
See GX-7 at 3-8; Tr. 238. The chance of injury was unlikely. Therefore, the inspector’s S&S
finding must be vacated. However, were a slip and fall injury to occur on the ice, it was
reasonable to expect lost workdays or restricted duty to result, just as King determined. Tr. 228.
Although the violation was not S&S, it was nonetheless serious.
As for negligence, the court finds that the remoteness of the area and Northshore’s
institution of a policy to address icy entrances when miners encounter them slightly mitigate the
company’s negligence. See Tr. 237-38. The court concludes that the company’s negligence was
“moderate” rather than “high.”
THE ELECTRICAL JUNCTION BOX VIOLATIONS
Citation Nos. 8672520 and 8672527
Both of these citations deal with closely related facts and issues. Citation No. 8672520
involved an electrical junction box with its door ajar and holes exposing live, energized 120 volt
wiring inside. Tr. 327-28. The cover plate door was “rusted through.” Tr. 335. Citation No.
8672527 involved an electrical junction box near the No. 161 conveyer belt with the cover plate
13

While neither party has raised the issue, the court understands that its finding that the
area was infrequently accessed could be viewed as inconsistent with its finding of a violation,
since the standard only applies to regularly used walkways and travelways. However, the court
accepts that the walkway was “regularly” used, as the term is used in the standard, even if it was
not traveled frequently enough to sustain an S&S designation.

37 FMSHRC Page 385

and the box itself “corroded through,” according to Soderlind, exposing the same type of wiring,
although the wires were not energized. Tr. 373-74, 386. There was no evidence in either case that
the wires lacked insulation (see Tr. 335, 382), but Soderlind noted that both areas were wet and
therefore water could get inside the boxes through the exposed areas and damage the inner
conductors. Tr. 327, 339, 375-76. Soderlind concluded that rust had formed on the first box as a
result of “water [being] sprayed in the area to clear the area and . . . splash[ing] up” onto the box.
Tr. 333. He did not know how the second box came to be in the condition he cited. Tr. 379
Soderlind designated each alleged violation as Non-S&S. GX-9 at 1, GX-11 at 1. The
first did not occur in a regularly accessed area; the second was “behind a handrail” and the “belt
[in the area] was shut down” for the summer outage, making contact with the box unlikely. Tr.
328, 374-75. But, Soderlind determined that were a miner to experience an electrical shock from
either box, a fatal injury could be reasonably expected. Tr. 328, 375. Soderlind stated that “120
volts has been known to kill people . . . on mine sites.” Tr. 329. However, Northshore points out
that Soderlind also acknowledged that individuals “get shocked by 120 volts, probably every
day,” without injury, (Resp. Br. 57, Tr. 329), and that Soderlind had actually written “lost
workdays or restricted duties” as the injury that could reasonably be expected when he wrote a
citation for a similar violation. Tr. 332. Soderlind maintained that he “didn’t evaluate [the cited
condition] correctly” when he wrote the citation to which Northshore refers. Id.
The primary dispute over Soderlind’s “fatal” designation in both citations concerns the
circumstances under which a fatal shock could plausibly occur. Chris Goerdt, an electrical
supervisor for Northshore, testified that for a fatality to occur, “a person would have to
have . . . one hand in the box . . . making contact with the live wires” and the other hand either
“on steel” or also in the box. Tr. 364.14 The company argues that this would not be reasonably
likely to occur with either box, in part because both boxes had fully insulated wires. See Resp.
Br. 56-57, 63-64. Goerdt also felt this would not happen in the cited area in Citation No.
8672520 because of the inability to “fit [one’s] hand in the box without it being open” and
because of the difficulty of even reaching the box in the first place. Tr. 364. Goerdt and Conboy
testified that this box is located “underneath [a] conveyer” belt, past support beams, and that
there was no reason to cross the beams except “to do work on that electrical [junction] box”
itself, in which case “the power [would be] locked out.” Tr. 364, 345-46. The Secretary argues
that someone might have to enter the area and cross the beams in order to replace the tail pulley
guards from the No. 44 conveyor next to the box, and Conboy agreed that this was a possibility.
Sec’y Br. 26-27; Tr. 356. Soderlind testified that a miner could contact the second box while
“sweeping[,] shoveling[,] or changing a...belt.” Tr. 376-77.
The Secretary also does not agree that a miner would need to reach inside the box itself to
be shocked. See Sec’y Br. 27, 30. Soderlind and Goerdt both agreed that the insulation for the
wires could be damaged as a result of water being sprayed on them and because of the conditions

14

This is apparently because electricity is more likely to flow through an individual if he
is contacting another conductor, such as steel.

37 FMSHRC Page 386

outside of the box. See Tr. 339, 368, 384. 15 Goerdt also agreed that if an exposed wire were to
contact the inside of the box and the grounding failed, “it could energize the metal around the
box” and “any other metal component that the box might be touching.” Tr. 367-68. The
Secretary argues, in such a circumstance, that the entire box and metal framework around it
would become an electrocution hazard. Sec’y Br. 27-28. Additionally, Soderlind testified that
there was “a lot of chance to make contact with metal or water [in the area] and complete the
circuit.” Tr. 329. He clarified later that since “water is a conductor,” the combination of water
and metal was “just increasing the likelihood that electricity would flow through” an individual,
from either box into a conductor. Tr. 376.
Regarding Citation 8672520, Soderlind designated Northshore’s negligence as high,
because the violation was obvious and he had written “the same citation for the same box under
the same condition on an inspection that was two years prior.” Tr. 329-31. The only difference
this time was “there [were] holes that actually had rusted through.” Tr. 332. The company
addressed that problem at the time of the original citation by re-attaching a loose cover. Tr. 336.
Conboy did not believe that two years was an inordinate amount of time between maintenance
efforts when dealing with “thousands of boxes” along “hundreds of miles of conduit.” Tr. 352.
But Soderlind’s concern was that the company did not appear to have done anything to address
the problem of corrosion from splashing water since he first observed it two years prior. Tr. 33839. Soderlind concluded that the rusting must have been occurring for “a long time” to generate
these types of “holes that show . . . through.” Tr. 330. Conboy responded that no mention was
ever made of the need to alleviate a problem of water splashing in the original citation that was
issued two years prior. Tr. 351. But Conboy did not accompany Soderlind during the issuance of
that prior citation and was not privy to Soderlind’s conversations regarding abatement of the
citation at the time. Tr. 358.
As for Citation 8672527, Soderlind found Northshore’s negligence to be moderate
because the violation was “open and obvious,” it was his understanding the area was inspected
“at least once per shift,” he was told that supervisors “try to get to every area at least [once a]
week,” and his experience led him to conclude that the rusting he observed happened over the
course of “at least a year, [or] longer.” Tr. 377-78.
Northshore argues that the normal mining conditions in the area undercut Soderlind’s
negligence analysis. See Resp. Br. 65. According to Conboy, Soderlind observed the area during
the company’s summer outage when the hazard was “easy to see.” Tr. 390-92. Conboy testified
that no work was planned in the area during the two week summer outage, so no employees
passed by the belt when the box was easier to see. Tr. 393, 396. When the belt was actually
running and employees were present, Conboy felt that the violation would not be open and
obvious due to “heavy steam” in the area clouding visibility and the box’s obscured “location,
next to . . . guarding, behind a handrail.” Tr. 391-92.

15

The Secretary’s questions during direct and cross-examination made reference to
damage to both the “inner conductors” and “insulation” of the wires. The court assumes that the
Secretary was primarily concerned with damage to the insulation.

37 FMSHRC Page 387

THE VIOLATIONS, THEIR GRAVITY, AND THE COMPANY’S NEGLIGENCE
The Violations
Standard 56.12032 mandates that inspection and cover plates shall be kept in place at all
times on electrical equipment and junction boxes. Neither party expressly disputes that
Northshore violated this section by having an open cover plate on one box and a cover plate with
holes on each box, and the court agrees. In the first citation, the cover was partially open and was
therefore not kept in place. In addition, both the first and second violations deal with covers that
had rusted through, conditions that have been held to be functionally equivalent to open covers.
See, e.g., LTM Inc. – Knife River Materials, 33 FMSHRC 1210, 1238 (May 2011) (ALJ) (finding
a violation of the standard for holes in electrical panel boxes and noting that “the regulation has
been applied to require that there be no openings in electrical control boxes”). The court finds
that these conditions violated the standard.
The Gravity of the Violations
The court finds that it was unlikely an injury would result from either violation for the
very reasons the Secretary has offered. Both boxes were in remote or, at the time, empty areas,
and miners were unlikely to make contact with the boxes and their contents. Tr. 328, 374-75.
However, the court finds that the injury that could reasonably be expected in each case
would have been fatal. The Secretary presented a more than plausible scenario where outside
conditions and the water that potentially damaged the boxes could also damage the insulation,
exposing the conductor wiring, and those wires could energize the boxes themselves if the
grounding failed. A miner cleaning or replacing a guard or belt could very well contact the box
and “complete the circuit,” with the amount of metal and water in each room serving as a
conductor. See Sec’y Br. 27-28; see also Tr. 329, 339, 367-68. The court finds that both
violations were very serious.
The Company’s Negligence
The court finds “high” negligence on the company’s part with regard to Citation No.
8672520. Northshore was cited for a violation of the same standard involving the same box two
years prior and had not made any attempt to address the issue of rusting which left the inner
wires exposed. Tr. 329-31. Regardless of whether Soderlind expressed concern over the rusting
or splashing issues two years prior or allowed Northshore to abate the violation without
addressing them, the court credits Soderlinds testimony that the issues existed at the time. Tr.
339. The initial citation should have alerted Northshore to the need to address any and all issues
with this box that were present at the time and to closely monitor the situation as mining
continued.
The court finds Northshore to be moderately negligent with regard to Citation No.
8672527. The court accepts as reasonable Northshore’s contention that it did not have an
opportunity to identify the violation during the two week summer outage, and that conditions
significantly impaired visibility in the area prior to the outage. Tr. 391-93. In the court’s view,

37 FMSHRC Page 388

both factors serve to mitigate the company’s negligence. This stated, the court agrees with the
Secretary that the company should have discovered the very large holes in the junction box
during the year or more that the Secretary credibly maintains the rusting occurred. See Tr. 37778. The poor visibility only increased Northshore’s duty to inspect the area carefully, which the
court finds it failed to do.
THE GUARDING VIOLATION
Citation No. 8672537
Soderlind issued this citation for a violation of Section 56.14107(a) on July 1, 2013, after
determining that adequate guarding needed to be installed at the head of the No. 163 conveyer
belt to protect miners from the shaft and head pulley. Tr. 397, 399. The head pulley was
“partially guarded” by a “plate steel” (Tr. 400, 414-15), but the existing guard left “a square
opening over the shaft,” a smaller opening to the right of the shaft, and a larger opening in the
“top right-hand corner” exposing the pulley itself. Tr. 402, 405; see also GX-13 at 7. Soderlind
was concerned about the risk of a miner getting an arm entangled with the rotating pulley or
shaft through the unguarded areas. Tr. 403. Soderlind’s main focus was on the “center piece that
was cut out,” (see GX-13 at 7) (labeled “unguarded area”), because the “bolted coupling on the
inside” of that area would “tend to grab [one’s] clothing” if it got caught inside. Tr. 430-31. That
particular opening to the shaft was located behind a pillow block (Tr. 422) and was “four to five
feet” above the ground, while the larger opening to the right was, according to Soderlind’s
unmeasured estimation, “six to seven feet up” above the ground. Tr. 433-34.
Soderlind designated the violation non-S&S and unlikely to lead to injury due to the
remoteness of the area. Tr. 403, GX-13 at 1. But by that same token, Soderlind concluded that
the injury that could reasonably be expected would be “fatal,” since Northshore might not
“discover somebody missing an arm or a hand” in such a remote location until after a miner had
already “[bled] out.” Tr. 404. Additionally, Soderlind deemed Northshore to be moderately
negligent because, he testified, he had already “made a strong recommendation” to the company
“a week prior” that it “need[ed] to get this [area] guarded better.” Tr. 406. According to
Soderlind, he did not cite Northshore at the time because the conveyor belt was not running. Tr.
411. But when he returned to the area a week later and found that the belt was running and the
head pulley was still inadequately guarded, Soderlind decided to issue a citation for a violation of
section 56.14107(a) along with a finding that the company was moderately negligent. Tr. 401.
Conboy’s recollection was quite different. Conboy recalled Soderlind telling him during
the previous week’s inspection that the head pulley was “primarily guarded by location” and
therefore did not need further guarding. Tr. 421. In other words, “based on [the hazard’s]
location, a miner would not be able to make contact with the moving machine parts.” Tr. 407.
Soderlind’s inspection notes from the prior week’s walk through of the area do not reference this
conversation near the head of the No. 163 conveyor belt, neither corroborating his own account
nor Conboy’s. See Resp. Br. 75, see also RX-107. Conboy’s notes from that week are similarly
silent on this point. See RX-103. But, Conboy recalled a conversation on June 26, 2013, almost a
week prior, about “the tail of the [No.] 63” conveyer belt, which “run[s] parallel” to the No. 163
belt, albeit “a thousand feet…or more” from the cited area. Tr. 419. According to Conboy,

37 FMSHRC Page 389

Soderlind made guarding recommendations for the No. 63 belt, and Northshore promptly
complied. Tr. 420. Conboy’s June 26 notes are fully consistent with this account. See RX-103.
Soderlind’s June 26 notes also reference this recommendation shortly after mentioning his
inspection of the No. 63 conveyer belt tail. See RX-107 at 15.
Conboy also testified that the cited area of the head pulley had to his knowledge
remained in its partially guarded state going back to the structure’s creation in 1956, yet had
never been cited despite regular MSHA inspections of that area. Tr. 417.
The Violation
Section 56.14107(a) requires, in relevant part, “Moving machine parts shall be guarded to
protect persons from contacting….pulleys,…shafts,…and similar moving parts that can cause
injury.” Section 56.14107(b) further states, “Guards shall not be required where the exposed
moving parts are at least seven feet away from walking or working surfaces.” The company
raises two arguments for why Northshore should not be held liable – first pleading adequate
guarding, second pleading inadequate notice. See Resp. Br. 70-77. The court finds that second
argument to be persuasive and dispositive in this citation. Effectively, Northshore is arguing that
the citation should be vacated for lack of notice of the Secretary’s interpretation of the standard
as applied to the cited area, regardless of whether this court agrees with that interpretation and
application.16 See Resp. Br. 73-77.
The Commission has held that a “broad [mandatory standard] must afford reasonable
notice of what is required or proscribed.” U.S. Steel Corp., 5 FMSHRC 3, 4 (Jan. 1983). The test
for whether an operator has had fair notice is “whether a reasonably prudent person familiar with
the mining industry and the protective purposes of the standard would have recognized the
specific prohibition or requirement of the standard.” Ideal Cement Co., 12 FMSHRC 2409, 2416
(Nov. 1990). In applying this standard, the Commission has taken into account a wide variety of
factors, including the text of the regulation, its placement in the overall regulatory scheme, its
regulatory history, the consistency of the agency’s enforcement, and whether MSHA has
published notices informing the regulated community with “ascertainable certainty” of its
interpretation of the standard in question. Lodestar Energy, Inc., 24 FMSHRC 689, 694–95 (July
2002).
16

The court recognizes that other courts and judges have come to different conclusions
on questions of notice involving this standard. For cases rejecting inadequate notice arguments
for guarding violations, see Mainline Rock & Ballast, Inc. v. Sec'y of Labor, 693 F.3d 1181 (10th
Cir. 2012); Crimson Stone v. FMSHRC, 198 F. App'x 846 (11th Cir. 2006); Highland
Enterprises, LLC, 34 FMSHRC 1633 (July 2012) (ALJ); and D. Holcomb & Co., 33 FMSHRC
1435 (June 2011) (ALJ). Unlike the present matter before the court, however, none of the above
cases involved allegations of prior explicit assurance from MSHA that the cited areas were
adequately guarded. For decisions vacating a guarding violation due to inadequate notice, see
Blue Mountain Production Co., 32 FMSHRC 1464 (Oct. 2010) (ALJ); Sangravl Company, Inc.,
30 FMSHRC 1111 (Nov. 2008) (ALJ); Weirich Brothers Inc., 28 FMSHRC 66 (Feb. 2006)
(ALJ); and Higman Sand & Gravel, Inc., 24 FMSHRC 87 (Jan. 2002) (ALJ).

37 FMSHRC Page 390

In Alan Lee Good, an individual doing business as Good Construction, 23 FMSHRC 995
(Sept. 2001), the Commission applied these principles to the Secretary’s enforcement of Section
56.14107(a), the standard at issue here. In that case, Commissioners Jordan and Beatty
concluded the judge erred in applying the “reasonably prudent person test” and believed the case
should be remanded for that reason. Id. at 1004-07. Chairman Verheggen and Commissioner
Riley concluded the operator did not have notice of the Secretary’s interpretation of the standard
and would have reversed his decision and vacated the subject guarding violations. However, to
avoid an evenly split decision that would have left standing the judge’s affirmance of the
citations, the Chairman and Commissioner Riley joined Commissioner Jordan and Beatty in
agreeing to remand the case. Id. at 1009-10. Although the Commissioners produced a split
decision, all agreed that the standard was ambiguous as applied, and all focused heavily on the
inconsistency of prior enforcement as a key factor in determining whether the “reasonably
prudent person” test had been satisfied.
This court does the same. The standard does not clearly specify the extent of guarding
necessary in cases such as this where significant guarding efforts are already in place.
Accordingly, this court finds the standard to be broad and ambiguous as applied to these facts.
MSHA agrees hazards that are seven feet or more above the ground are guarded by location. 30
C.F.R. § 56.14107(b), Tr. 430. Soderlind testified that at least one of the exposed moving parts in
this citation may have been up to seven feet high, although he did not measure the distance. Tr.
434. The Secretary therefore did not meet his burden to demonstrate inadequate guarding for that
particular hazard. The other exposed area of primary concern required an individual to reach
over a pillow block to access it. Tr. 433. Conboy testified that he believed the specific exposure
to be adequately guarded due to the pillow block in front of it. Tr. 422. A reasonably prudent
person familiar with the mining industry and the protective purposes of the standard could have
easily agreed and failed to recognize this as a hazard that required guarding.
Further, the court finds that the inconsistency of the Secretary’s prior enforcement at this
mine is serious enough to outweigh all other notice considerations in a “reasonably prudent
person” test. Conboy’s testimony is credible and raises serious doubts about whether Soderlind
ever warned Northshore about the potential violation, instead of suggesting that it was
adequately guarded. See Tr. 419-21. Soderlind lacks any documentation supporting his claim that
he had warned Northshore; indeed, his own notes, as well as Conboy’s, from a week prior to the
citation reinforce Conboy’s claim that Soderlind had only warned the company about a different
unguarded area. See RX-103, 107. Consequently, this court finds Conboy’s version of events
more credible than Soderlind’s, including his testimony that Soderlind had informed him the
cited area was adequately guarded within the past week. In the face of this explicit reassurance
from Soderlind and a long history of non-enforcement from MSHA, Citation No. 8672537
indeed “amounts to a grossly inconsistent enforcement practice” just as Northshore contends.
Resp. Br. 77. Accordingly the citation will be vacated for a lack of notice.

37 FMSHRC Page 391

OTHER CIVIL PENALTY CRITERIA
The court has found violations and it must assess civil penalties taking into account the statutory
civil penalty criteria. 30 U.S.C. § 820(i).
History of Previous Violations
The mine’s history of violations is reflected in a report from MSHA's database. GX-1. The report
lists violations issued at the mine and indicates that 234 violations became final between
December 2011 and June 2013. The court accepts the figures in the report as accurate and finds
that the exhibit reflects a large history.
Size of the Operator
The parties did not stipulate to the size of the operator, however on Exhibit A of the civil penalty
petitions, the Secretary recorded 2,410,235 controller hours worked for the operator and 812,741
hours worked for the mine, and assigned 7 out of a possible 10 points for the size of the operator
and 10 out of a possible 15 points for the size of the mine. Based on this record, I find that
Northshore is a moderately large operator.
Ability to Continue in Business
The parties stipulated that the proposed penalties will not affect Northshore’s ability to continue
in business, and the court finds that the same is true for the penalties assessed below. Tr. 15; Stip
9.
Good Faith Abatement
The parties stipulated that Northshore terminated the conditions giving rise to the violations in a
good faith manner. Tr. 15; Stip. 8.
CIVIL PENALTY ASSESSMENTS
Citation No. 8672460
The court has found that the violation was serious, that an accident was reasonably likely,
and that the violation was due to the company’s low negligence. The Secretary proposed a civil
penalty of $1,304.00, but given these findings and the civil penalty criteria discussed above, the
court finds that a penalty of $586.00 is appropriate. The court has departed from the proposed
penalty because it has found the company’s negligence to be lower than the Secretary alleged.
Citation No. 8672461
The court has found that the violation was serious, that an accident was reasonably likely,
and that the violation was due to the company’s low negligence. The Secretary proposed a civil
penalty of $1,304.00, but given these findings and the civil penalty criteria discussed above, the

37 FMSHRC Page 392

court finds that a penalty of $586.00 is appropriate. The court has departed from the proposed
penalty because it has found the company’s negligence to be lower than the Secretary alleged.
Citation No. 8672113
The court has found that the violation was serious although an accident was unlikely and
that the violation was due to the company’s low negligence. The Secretary proposed a civil
penalty of $8,209.00, but given these findings and the civil penalty criteria discussed above, the
court finds that a penalty of $250.00 is appropriate. The court has departed from the proposed
penalty because it has found the negligence, likelihood of injury, and severity of injury that could
reasonably be expected to be lower than the Secretary alleged.
Citation No. 8672114
The court has found that the violation was serious although an accident was unlikely and
that the violation was due to the company’s moderate negligence. The Secretary proposed a civil
penalty of $2,473.00, but given these findings and the civil penalty criteria discussed above, the
court finds that a penalty of $300.00 is appropriate. The court has departed from the proposed
penalty because it has found the negligence and likelihood of injury to be lower than the
Secretary alleged.
Citation No. 8672520
The court has found that the violation was very serious although an accident was unlikely
and that the violation was due to the company’s high negligence. The Secretary proposed a civil
penalty of $11,306, and given these findings and the civil penalty criteria discussed above, the
court finds that a penalty of $11,306 is appropriate.
Citation No. 8672522
The court has found that the violation was serious, that an accident was reasonably likely,
and that the violation was due to the company’s low negligence. The Secretary has proposed a
penalty of $3,405.00, but given these findings and the civil penalty criteria discussed above, the
court finds that a penalty of $1,400.00 is appropriate. The court has departed from the proposed
penalty because it has found the company’s negligence to be lower than the Secretary alleged.
Citation No. 8672527
The court has found that the violation was very serious although an accident was unlikely
and that the violation was due to the company’s moderate negligence. The Secretary has
proposed a penalty of $4,689.00, and given these findings and the civil penalty criteria discussed
above, the court finds that a penalty of $4,689.00 is appropriate.

37 FMSHRC Page 393

Citation No. 8672530
The court has found that the violation was serious although an accident was unlikely and
that the violation was due to the company’s low negligence. The Secretary has proposed a
penalty of $329, and given these findings and the civil penalty criteria discussed above, the court
finds that a penalty of $392 is appropriate.
Citation No. 8672537
The court has found that the Secretary did not prove the alleged violation. Therefore, a
penalty cannot be assessed.
SETTLED VIOLATIONS
The parties have agreed to the following settlements:
Docket No. LAKE 2013-458-M
Citation No.
8672441

Date
2/20/13

30 C.F.R. §
56.12004

Proposed Penalty Assessed Penalty
$499
$499

Northshore will accept the citation as written and pay the proposed penalty. Tr. 436.
Citation No.
8672446

Date
2/25/13

30 C.F.R. §
56.12004

Proposed Penalty Assessed Penalty
$392
$220

The Secretary will change the inspector’s finding of the injury that could reasonably be
expected from “fatal” to “permanently disabling.” Tr. 436.
Citation No.
8672447

Date
2/25/13

30 C.F.R. §
56.12032

Proposed Penalty Assessed Penalty
$425
$425

Northshore will accept the citation as written and pay the proposed penalty. Tr. 436.
Citation No.
8672451

Date
2/26/13

30 C.F.R. §
56.12004

Proposed Penalty Assessed Penalty
$392
$220

The Secretary will change the inspector’s finding of the injury that could reasonably be
expected from “fatal” to “permanently disabling.” Tr. 436.
Citation No.
8672452

Date
2/26/13

30 C.F.R. §
56.12032

Proposed Penalty Assessed Penalty
$425
$270

The Secretary will change the inspector’s finding of the injury that could reasonably be
expected from “fatal” to “permanently disabling.” Tr. 436.

37 FMSHRC Page 394

Citation No.
8672458

Date
3/5/13

30 C.F.R. §
56.12030

Proposed Penalty Assessed Penalty
$745
$500

The Secretary will change the inspector’s finding of the injury that could reasonably be
expected from “fatal” to “permanently disabling.” Tr. 436.
Citation No.
8672459

Date
3/5/13

30 C.F.R. §
56.12032

Proposed Penalty Assessed Penalty
$1,111
$800

The Secretary will change the inspector’s finding of the injury that could reasonably be
expected from “fatal” to “permanently disabling.” Tr. 437.
Citation No.
8672465

Date
3/6/13

30 C.F.R. §
56.12008

Proposed Penalty Assessed Penalty
$334
$200

The Secretary will change the inspector’s finding of the injury that could reasonably be expected
from “fatal” to “permanently disabling.” Tr. 437.
Citation No.
8672111

Date
3/12/13

30 C.F.R. §
56.20003(b)

Proposed Penalty Assessed Penalty
$4,329
$2,500

The Secretary will delete the inspector’s finding that the violation was S&S and will
change the inspector’s evaluation of the likelihood of injury from reasonably likely to unlikely.
Tr. 437.
Citation No.
8672112

Date
3/12/13

30 C.F.R. §
56.12032

Proposed Penalty Assessed Penalty
$5,961
$2,600

The Secretary will delete the inspector’s finding that the violation was S&S and will
change the inspector’s evaluation of the likelihood of injury from reasonably likely to unlikely.
Tr. 437.
Citation No.
8672116

Date
3/12/13

30 C.F.R. §
56.11016

Proposed Penalty Assessed Penalty
$2,473
$1,500

The Secretary will delete the inspector’s finding that the violation was S&S, will change
the inspector’s evaluation of the likelihood of injury from reasonably likely to unlikely, and will
change the negligence finding from high to moderate. Tr. 437.
Citation No.
8672117

Date
3/12/13

30 C.F.R. §
56.12004

Proposed Penalty Assessed Penalty
$1,111
$950

The Secretary will reduce the proposed penalty. Tr. 437.

37 FMSHRC Page 395

Citation No.
8672118

Date
3/12/13

30 C.F.R. §
56.20003(a)

Proposed Penalty Assessed Penalty
$362
$100

The Secretary will change the inspector’s negligence finding from moderate to low.17
Citation No.
8672120

Date
3/13/13

30 C.F.R. §
56.12004

Proposed Penalty Assessed Penalty
$1,111
$800

The Secretary will change the inspector’s negligence finding from moderate to low. Tr.
437.
Citation No.
8672121

Date
3/13/13

30 C.F.R. §
56.12032

Proposed Penalty Assessed Penalty
$1,203
$800

The Secretary will change the inspector’s finding of the injury that could reasonably be
expected from “fatal” to “permanently disabling” and will change the negligence finding from
“moderate” to “low.”
Citation No.
8735065

Date
3/18/13

30 C.F.R. §
56.12032

Proposed Penalty Assessed Penalty
$362
$362

Northshore will accept the citation as written and pay the proposed penalty. Tr. 437.
Docket No. LAKE 2013–596-M
Citation No.
8672119

Date
3/12/13

30 C.F.R. §
56.14100(b)

Proposed Penalty Assessed Penalty
$2,473
$722

The Secretary will delete the inspector’s finding that the violation was S&S and will
change the inspector’s evaluation of the likelihood of injury from reasonably likely to unlikely.
Tr. 437-38.
Citation No.
8672505

Date
6/11/13

30 C.F.R. §
56.20003(a)

Proposed Penalty Assessed Penalty
$7,578
$6,798

The Secretary will reduce the proposed penalty. Tr. 438.

17

In a series of emails following the hearing, representatives for the Secretary and
Northshore informed the court that Citation No. 8672118 had settled at the hearing but that the
settlement was missing from the transcript. The parties articulated the settlement terms for the
citation in those emails, and the court accepted those terms into the record.

37 FMSHRC Page 396

Docket No. LAKE 2013-674-M
Citation No.
8672525

Date
6/19/13

30 C.F.R. §
56.12018

Proposed Penalty Assessed Penalty
$2,901
$1,900

The Secretary will change the inspector’s finding of the injury that could reasonably be
expected from fatal to permanently disabling and will change the negligence from moderate to
low. Tr. 438.
Citation No.
8672528

Date
6/24/13

30 C.F.R. §
56.12008

Proposed Penalty Assessed Penalty
$1,203
$900

The Secretary will reduce the proposed penalty. Tr. 438.
Citation No.
8672533

Date
7/1/13

30 C.F.R. §
56.12032

Proposed Penalty Assessed Penalty
$1,530
$850

The Secretary will change the inspector’s finding of the injury that could reasonably be
expected from fatal to lost workdays or restricted duties. Tr. 438.
Citation No.
8672534

Date
7/1/13

30 C.F.R. §
56.12032

Proposed Penalty Assessed Penalty
$1,530
$500

The Secretary will change the inspector’s finding of the injury that could reasonably be
expected from fatal to lost workdays or restricted duties. Tr. 438.
Citation No.
8672536

Date
7/1/13

30 C.F.R. §
56.12032

Proposed Penalty Assessed Penalty
$1,530
$1,070

The Secretary will change the inspector’s finding of the injury that could reasonably be
expected from “fatal” to “permanently disabling.” Tr. 438.
Citation No.
8672547

Date
7/11/13

30 C.F.R. §
56.12032

Proposed Penalty Assessed Penalty
$1,530
$1,070

The Secretary will change the inspector’s finding of the injury that could reasonably be
expected from “fatal” to “permanently disabling.” Tr. 438.
Citation No.
8672549

Date
7/15/13

30 C.F.R. §
56.12032

Proposed Penalty Assessed Penalty
$1,530
$1,070

The Secretary will change the inspector’s finding of the injury that could reasonably be
expected from “fatal” to “permanently disabling.” Tr. 438.

37 FMSHRC Page 397

ORDER
In view of the above findings, conclusions, and settlement approvals, within 30 days of
the date of this decision the Secretary IS ORDERED to:
Modify Citation Nos. 8672460, 8672461, and 8672522 to reduce the level of negligence
from “moderate” to “low;” modify Citation No. 8672113 to reduce the likelihood of injury from
“reasonably likely” to “unlikely,” to reduce the level of injury that could reasonably be expected
from “fatal” to “lost workdays or restricted duty,” to delete the “significant and substantial”
designation, and to reduce the level of negligence from “high” to “low;” modify Citation No.
8672114 to reduce the likelihood of injury from “reasonably likely” to “unlikely,” to delete the
“significant and substantial” designation, and to reduce the level of negligence from “high” to
“moderate;” and vacate Citation No. 8672537.
Further, if he has not already done so, within 30 days of the date of this decision, the
Secretary SHALL modify Citation Nos. 8672446, 8672451, 8672452, 8672458, 8672459,
8672465, 8672536, 8672547, and 8672549 to reduce the level of injury that could reasonably be
expected from “fatal” to “permanently disabling;” modify Citation Nos. 8672111, 8672112, and
8672119 to reduce the likelihood of injury from “reasonably likely” to “unlikely” and to delete
the “significant and substantial” designation; modify Citation No. 8672116 to reduce the
likelihood of injury from “reasonably likely” to “unlikely,” to delete the “significant and
substantial” designation, and to reduce the level of negligence from “high” to “moderate;”
modify Citation Nos. 8672118 and 8672120 to reduce the level of negligence from “moderate”
to “low;” modify Citation Nos. 8672121 and 8672525 to reduce the level of injury that could
reasonably be expected from “fatal” to “permanently disabling” and to reduce the level of
negligence from “moderate” to “low;” and modify Citation Nos. 8672533 and 8672534 to reduce
the level of injury that could reasonably be expected from “fatal” to “lost workdays or restricted
duty.”
Finally, within 30 days of the date of this decision, the company SHALL PAY civil
penalties in the amount of $19,509.00 for the contested violations found above and pay
$27,626.00 for the settled violations. Upon payment of the civil penalties, modification of the
citations, and vacation of the citations, this proceeding IS DISMISSED.

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

37 FMSHRC Page 398

Distribution:
Carol Liang, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer Blvd., Suite
216, Denver, CO 802024
Ryan Pardue, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer Blvd., Suite
216, Denver, CO 802024
Arthur M. Wolfson, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1500, 401 Liberty
Ave., Pittsburgh, PA 15222
/rd

37 FMSHRC Page 399

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9933 / FAX: 202-434-9949

February 26, 2015
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2014-315
A.C. No. 46-09230-336310

v.
REMINGTON, LLC,
Respondent.

Mine: Winchester Mine

DECISION DENYING SETTLEMENT MOTION
Before:

Judge Moran

This case is before the Court upon a petition for assessment of a civil penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977. The Secretary has filed a
motion to approve settlement.1 The originally assessed amount was $15,794.00, and the
proposed settlement is for $9,500.00, a reduction of 40% overall. The Secretary requests that the
three alleged violations in this proceeding be modified. The support, such as it is, is noted in
bold print, below.
For Order No. 8156851, the entirety of the Secretary’s motion provides the following
reasoning:
Order No. 8156851 was issued to the Respondent on April 30, 2013, and
alleged a violation of 30 C.F.R. § 75.370(a)(1) and § 104(d)(1) of the Act, 30
U.S.C. § 814(d). The Secretary determined that the violation was reasonably
likely to cause an injury; that an injury from the cited condition could be
reasonably expected to be permanently disabling; that the violation was
significant and substantial; that seven persons were affected; and that the
operator’s conduct in the violation demonstrated a high degree of negligence.
The Secretary assessed a penalty of $10,705.00. The Respondent disputes the
alleged violation and contends that the alleged degree of negligence and the
allegation of unwarrantable failure are not supported by the evidence in that
there were circumstances present that mitigated the operator’s negligence in
1

In paragraphs 3 and 4 of the Motion to Approve Settlement, the Secretary continues to
stake out his position that he need not explain the basis for settlement, a position which is
immaterial and impertinent to the issues legitimately before the Commission. Those paragraphs
incorrectly cite and interpret the case law and misrepresent the statute, regulations, and
Congressional intent regarding settlements under the Mine Act.

37 FMSHRC Page 400

that the operator had taken two air readings prior to mining coal and the
second reading had shown an amount of air that complied with the approved
ventilation plan. And, the Respondent states they would present evidence to
that effect. In light of the contested evidence and the costs and uncertainties of
pursuing further litigation of this matter, the Secretary has agreed to reduce the
alleged negligence from High to Moderate, to modify the 104(d)(1)
unwarrantable-failure order to a 104(a) citation, and to reduce the penalty to
$6,500.00, and the Respondent has agreed to pay the reduced amount.2
For Order No. 8156865, the entirety of the Secretary’s motion provides the following
reasoning:
Order No. 8156865 was issued to the Respondent on May 8, 2013, and
alleged a violation of 30 C.F.R. § 75.503 and § 104(d)(1) of the Act, 30 U.S.C. §
814(d). The Secretary determined that the violation was unlikely to cause an
injury; that an injury from the cited condition could be reasonably expected to be
fatal; that the violation was not significant and substantial; that one person was
affected; and that the operator’s conduct in the violation demonstrated a high
degree of negligence. The Secretary assessed a penalty of $2,748.00. The
Respondent disputes the alleged violation and contends that the alleged
degree of negligence and the allegation of unwarrantable failure are not
supported by the evidence in that the two small wires found by the inspector
to be protruding from the scoop were not in plain sight or obvious as the
light was mounted in a recessed area between the frame and the battery and,
therefore, the failure to observe and address the wires did not constitute high
negligence or unwarrantable failure. And, the Respondent states they would
present evidence to that effect. In light of the contested evidence and the costs
and uncertainties of pursuing further litigation of this matter, the Secretary has
agreed to reduce the alleged negligence from High to Moderate, to modify the
104(d)(1) unwarrantable-failure order to a 104(a) citation, and to reduce the
penalty to $1,500.00, and the Respondent has agreed to pay the reduced amount.
For Order No. 8156866, the entirety of the Secretary’s motion provides the following
reasoning:
Order No. 8156866 was issued to the Respondent on May 8, 2013, and
alleged a violation of 30 C.F.R. § 75.512 and § 104(d)(1) of the Act, 30 U.S.C. §
814(d). The Secretary determined that the violation was unlikely to cause an
injury; that an injury from the cited condition could be reasonably expected to be
fatal; that the violation was not significant and substantial; that one person was
2

As reflected above, the putative grounds for each settlement ends with the same refrain
to the Secretary’s settlement song, with the chorus intoning, “In light of the contested evidence
and the costs and uncertainties of pursuing further litigation of this matter, the Secretary has
agreed to reduce the alleged negligence from High to Moderate, to modify the 104(d)(1)
unwarrantable-failure order to a 104(a) citation, and to reduce the penalty [with the vocalist
inserting the figure here.]”

37 FMSHRC Page 401

affected; and that the operator’s conduct in the violation demonstrated a high
degree of negligence. The Secretary assessed a penalty of $2,341.00. The
Respondent disputes the alleged violation and contends that the alleged
degree of negligence and the allegation of unwarrantable failure are not
supported by the evidence in that the two small wires found by the inspector
to be protruding from the scoop were not in plain sight or obvious as the
light was mounted in a recessed area between the frame and the battery and,
therefore, the Respondent’s examination, which missed these wires, did not
constitute high negligence or unwarrantable failure. And, the Respondent
states they would present evidence to that effect. In light of the contested
evidence and the costs and uncertainties of pursuing further litigation of this
matter, the Secretary has agreed to reduce the alleged negligence from High to
Moderate, to modify the 104(d)(1) unwarrantable-failure order to a 104(a)
citation, and to reduce the penalty to $1,500.00, and the Respondent has agreed to
pay the reduced amount.
Determination of the Court
For the reasons which follow, the settlement must be rejected. At the outset, it must be
noted that the Secretary, at the behest of some top level official, includes in virtually every one of
his motions for decision and order approving settlement his objection that he really need not be
bothered with the process of complying with Section 110(k) of the Mine Act and its relevant
provision that “no proposed penalty which has been contested before the Commission under
section 105(a) shall be compromised, mitigated, or settled except with the approval of the
Commission.”
Instead, it is the Secretary’s position that, notwithstanding Section 110(k), all he need do
is to advise, in the rote fashion he invokes with each settlement, that
the Secretary has evaluated the value of compromise, the likelihood of obtaining a
still better settlement, the prospects of coming out better, or worse, after a full
trial, and the resources that would need to be expended in the attempt
[and that t]he Secretary has determined that the public interest and the effective
enforcement and deterrent purposes of the Mine Act are best served by settling
the citations as indicated below.
Given his view that he need not provide more to the Commission than an unsupported
conclusion that a given settlement is sufficient, it should not be surprising that, when the
Secretary alternatively does provide some justification, usually, as here, it is a minimalist effort.
An examination of the grudging submission by the Secretary in this instance demonstrates its
inadequacy.
For the first matter, a section 104(d)(1) order, Order No. 8156851, dealing with an
alleged ventilation plan violation, for which a penalty of $10,705.00 was proposed, the Secretary

37 FMSHRC Page 402

seeks a 39% reduction from the proposal based on Respondent’s disputing the violation, but
more particularly, as noted above, because it
contends that the alleged degree of negligence and the allegation of unwarrantable
failure are not supported by the evidence in that there were circumstances present
that mitigated the operator’s negligence in that the operator had taken two air
readings prior to mining coal and the second reading had shown an amount of air
that complied with the approved ventilation plan. And, the Respondent states
they would present evidence to that effect.
Motion at 2 (emphasis added).
It is noted that the Secretary has not disclosed whether discovery has taken place, nor that
the Respondent has offered more than the claim that it would present evidence to the effect that
the negligence and the unwarrantable failure claims are not supported by the evidence. The only
mitigating factor articulated was that one of two air readings met the ventilation plan.
Accordingly, the Court notes that the Secretary’s Motion does not declare that the Respondent
has actually presented evidence in support of its claim.3
In contrast, when one examines the MSHA Mine Inspector’s (d)(1) Order, one learns that
document asserts:
Order # 8156851
The operator [has] failed [to] follow the Approved Section Specific Methane and
Dust Control Plan Page, FACE VENTILATION section, Item C 003-0 MMU.
Upon arriving at #3 entry Bk#14 on West #2 belt, the miner was cutting in #3
with the scrubber on. Accompanied with the Eve Shift Mine Foreman and with
the attendance of the Section Foreman found the Joy 14CM15 Continuous Miner
(Serial #JM6484) cutting in the #A cut. When asked to take air reading, the C/M
was pulled back to the intersection and the quantity behind the line curtain was
measured 3,024 CFM. Section Foreman took air reading and confirmed the
violation. After pulling the curtain further and putting rocks on it to keep it away
from the rib and tighten the curtain down, the reading was 4,410 CFM. 2 readings
were [taken] by the section foreman confirming the violation. There were 4
miners working in the West section at the time of citation. Black Lung[] is the
most lethal disease and hazard for coal miners. The operator is engaged in
aggravated conduct constituting more than ordinary negligence. Ventilation plan
requirements are of fundamental importance in assuring a safe working
environment underground. Serious lack of reasonable care exacerbates the
likelihood for accidents to occur. The operator has been made aware of the need
for greater effort toward compliance and the need of the ventilation plan
requirements through citations, discussions and notices. There are no
3

A vivid way to examine the Secretary’s submission is that, out of the 228 words
pertaining to the settlement for Order No. 8156851, only 67 relate to settlement information, but
when examined closer, only 17 of those words present actual settlement justification information.
Regardless of the word count, the few words offered are empty of useful supportive information.

37 FMSHRC Page 403

mitigating factors in the issuance of this citation observed by the inspector. The
line curtain was tight and the fly pad on all entries were tight and doubled.
The existence of these ventilation hazards have increased exponentially the
reasonable likelihood that a serious injury of a reasonably serious nature will
occur. Where safety standards are not complied with safety diminishes.
(emphasis added). The Order continues, noting that “Standard 75.370 (a) (1) was cited 31
times in two years at mine 4609230 (31 to the operator, 0 to a contractor). This violation is an
unwarrantable failure to comply with a mandatory standard[.]” (emphasis added).
Given the text of the Order, it was incumbent upon the Secretary to provide more
information, if any actually exists, to demonstrate the evidence actually presented for the first
and second readings, and beyond that, to explain how the second reading served to mitigate the
violation, especially in light of the Inspector’s remarks about continuing ventilation problems at
this mine. Further, the Inspector, in conference with the mine, already allowed for mitigating
circumstances with the effect that the injury was reduced to permanently disabling, instead of
fatal, and the number affected was reduced from 14 to 7.
Accordingly, the settlement motion for this Order is rejected. It should be obvious that
this rejection is not suggesting that any settlement would be insufficient. Rather, the Secretary is
directed to provide adequate information to support it or to prepare for hearing. This observation
applies equally to the other Orders.
For the second matter, Order No. 8156865, another section 104(d)(1) order, which was
proposed at $2,748.00 and for which the Secretary now seeks a 45% reduction, reducing the
penalty to $1,500.00, as noted, the Secretary offers up the following in support of its proposed
settlement amount and the revisions to the terms of the order:
The Respondent disputes the alleged violation and contends that the alleged
degree of negligence and the allegation of unwarrantable failure are not supported
by the evidence in that the two small wires found by the inspector to be
protruding from the scoop were not in plain sight or obvious as the light was
mounted in a recessed area between the frame and the battery and, therefore, the
failure to observe and address the wires did not constitute high negligence or
unwarrantable failure. And, the Respondent states they would present evidence
to that effect.
Motion at 3 (emphasis added).
The first observation is the echoing of much of the supporting rationale for this matter, as
with the previously discussed order, above. Both make the same claim that “[t]he Respondent
disputes the alleged violation and contends that the alleged degree of negligence and the

37 FMSHRC Page 404

allegation of unwarrantable failure are not supported by the evidence.”4 That, of course, tells the
Court precisely nothing.
When the motion finally comes around to providing specifics, it advises that
the two small wires found by the inspector to be protruding from the scoop were
not in plain sight or obvious as the light was mounted in a recessed area between
the frame and the battery and, therefore, the failure to observe and address the
wires did not constitute high negligence or unwarrantable failure. And, the
Respondent states they would present evidence to that effect.
Motion at 3 (emphasis added).
As with the discussion of the first Order, above, the Secretary’s Motion does not contend
that, in fact, through discovery or otherwise, that the Respondent actually provided such
evidence. Instead, the Secretary simply proceeds from the Respondent’s claims and returns to its
repeated phraseology that
[i]n light of the contested evidence and the costs and uncertainties of pursuing
further litigation of this matter, the Secretary has agreed to reduce the alleged
negligence from High to Moderate, to modify the 104(d)(1) unwarrantable-failure
order to a 104(a) citation, and to reduce the penalty to [ ] and the Respondent has
agreed to pay the reduced amount.”
Equally troubling is that, putting aside that the settlement does not declare that the
Respondent actually provided such evidence, as opposed to what it “would present,” the
mine inspector’s Order flatly contradicts the “not in plain site or obvious” assertion.
Order# 8156865 states:
The operator has failed to maintain the permissible electrician’s maintenance
scoop CO# 508, S/N 488-2111 in a permissible condition. When checked the
scoop outby the loading point, found the offside rear light’s explosion-proof
enclosure has 2 wires sticking out of it and connected together with a wires nut.
When asked to de-energize the scoop and open the enclosure, found that these 2
wires are the light bulb wires. When disconnected the wires the light bulb didn’t
work. This scoop is a maintenance scoop. Only electrician[s] are allowed to
perform electrical duties on it. The sticking out wires were very obvious to the
average observer. The electrician who change[d] the light bulb last was
supposed to check for flange openings to assure the enclosure permissibility.
4

It will not be surprising to learn that the same verbiage appears for the third matter, that
“[t]he Respondent disputes the alleged violation and contends that the alleged degree of
negligence and the allegation of unwarrantable failure are not supported by the evidence,” but at
least in this last matter, the repetition can be defended on the basis that both Order Nos. 8156865
and 8156866 arose out of the same electrical hazard on a maintenance scoop, with the former
involving face equipment not being maintained in permissible condition while the latter cites the
related violation for not properly examining and maintaining such equipment, per section 75.512.

37 FMSHRC Page 405

The enclosure lid was shut tight with 4 bolts and [its] washers mashing down
the sticking out wires. The wires nut had a burned spot from the light’s heat.
The operator’s Agent is engaged in aggravated conduct[] constituting more than
ordinary negligence.
Permissibility examination[s] are of fundamental
importance in assuring a safe working environment underground. Serious lack of
reasonable care exacerbates the likelihood for accidents to occur. The operator
has been made aware of the need for greater effort toward permissibility’s
compliance and the need of the adequate electrical examination through
citations, discussions and notices. There are no mitigating factors in the
issuance of this order observed by the inspector. There were 14 miners
working on the section at the time of the order. The scoop was examined by
agent of the operator on 5/8/2013. The condition was not detected, reported or
corrected.5
Further, it is noted in the Order that the alleged violation of the permissible equipment
requirement, “Standard 75.503[,] was cited 31 times in two years at mine 4609230 (31 to the
operator, 0 to a contractor. This violation is an unwarrantable failure to comply with a
mandatory standard.” To the Court, that seems like a high number of repeat violations, but the
subject is not addressed in the motion either.
Subsequently, the Inspector noted that the light was repaired, eliminating the openings in
the explosion proof enclosure. The Inspector, apparently displaying a reasonable posture,
subsequently recorded that due to mitigating factors, the order was modified to reduce the
number of persons affected from 14 to 1, but this reduction was already reflected in the
proposed penalty amount of $2,748.00. See Exhibit A.
Thus, the Secretary’s submission is deficient in that not only does it refer solely to what
the Respondent would provide but also it does not deal with the contradictory assertions in the
Inspector’s Order.6

5

In other words, the Order was issued on the same date that the exam had been made,
thereby eliminating any claim that the condition had recently arisen.
6

As the Court noted in its recent denial of the settlement motion in Janney Painting,
Docket Nos. VA 2014-28-M, VA 2014-50-M (Feb. 9, 2015), “Whether the Secretary should
continue to have unreviewable authority to vacate citations is not presently in issue. Perhaps the
time for reconsideration of that unfettered authority has arrived.” Given the paucity of
information so often provided by the Secretary in its settlement motions, and remembering that,
even the information which is reluctantly provided comes with an objection over its disclosure,
with that attitude, it is fair to inquire what protections there are for the safety and health of
miners when a matter is simply vacated. Presently, no explanation from the Secretary is required
at all. Perhaps the affected community will demand more.

37 FMSHRC Page 406

For the third matter, Order No. 8156866, the entirety of the Secretary’s motion
provides the following reasoning:
Order No. 8156866 was issued to the Respondent on May 8, 2013, and alleged a
violation of 30 C.F.R. § 75.512 and § 104(d)(1) of the Act, 30 U.S.C. § 814(d).
The Secretary determined that the violation was unlikely to cause an injury; that
an injury from the cited condition could be reasonably expected to be fatal; that
the violation was not significant and substantial; that one person was affected; and
that the operator’s conduct in the violation demonstrated a high degree of
negligence. The Secretary assessed a penalty of $2,341.00. The Respondent
disputes the alleged violation and contends that the alleged degree of
negligence and the allegation of unwarrantable failure are not supported by
the evidence in that the two small wires found by the inspector to be
protruding from the scoop were not in plain sight or obvious as the light was
mounted in a recessed area between the frame and the battery and,
therefore, the Respondent’s examination, which missed these wires, did not
constitute high negligence or unwarrantable failure. And, the Respondent
states they would present evidence to that effect. In light of the contested
evidence and the costs and uncertainties of pursuing further litigation of this
matter, the Secretary has agreed to reduce the alleged negligence from High to
Moderate, to modify the 104(d)(1) unwarrantable-failure order to a 104(a)
citation, and to reduce the penalty to $1,500.00, and the Respondent has agreed to
pay the reduced amount.
Motion at 3 (emphasis added).
The same infirmities identified for the previous Orders exist here as well, as the motion
offers the same platitudes about evidence that the Respondent would present, as opposed to
identifying information obtained through discovery or otherwise.
In this instance, it is possible to view this Order as graver, in a sense, than the related
Order, No. 8156865, addressing the scoop itself, because, more fundamentally, this Order
reflects a problem with the examination process itself. As the Inspector contended in his Order,
for No. 8156866, an
[i]nadequate examination has been conducted on CO# 508 S/N 488-2111
maintenance scoop on 5/8/2013. Order # 8156865 was issued on 5/8/2013 for
[an] obvious safety hazard. The condition was very obvious, extensive and
has . . . existed for [a] long time. The light bulb’s wires were sticking out [of] the
explosion-proof enclosure and the enclosure lid was closed tight[,] mashing the
wires. It’s [a] very serious part of the permissibility examination . . . to check for
flange openings. If the electrician would have checked for the flange openings
he would have found the hazard. The condition was not detected, reported or
corrected. The electrical examination records indicate[] no hazard for the scoop.
The condition had to exist for a period of time because there were
accumulation[s] of dirt inside the bolt holes and lubricants had to be used to

37 FMSHRC Page 407

loosen[] the bolts. The condition constitutes that the explosion-proof enclosure
has not been checked for flange openings for [a] long time because of the sticking
out wires. Permissibility[] and electrical examination[s] are considered [the] first
line of defense in assuring a safe working environment underground and safe
mobile equipment[] operation. Serious lack of reasonable care exacerbates the
likelihood for accidents to occur.
(emphasis added).
The Order went on to state that “Standard 75.512 was cited 21 times in two years at mine
4609230 (21 to the operator, 0 to a contractor).” The Order also continued, noting that a
certified electrician performed an examination on the same day the condition was
cited. The condition wasn’t detected, reported or corrected. . . . [and that upon]
reviewing the notes and previous citations, the operator was put on notice [by the
Inspector] for a greater effort toward electrical examinations and permissibility
requirements on citation# 8156863 and during an official meeting with the
company’s upper management representatives on 5/8/2013.
None of these issues of concern were addressed in the Motion and, as with the others,
mitigating factors were already taken into account in formulating the proposed penalty. The
point, of course, is that the settlement motion offers nothing in the way of identifying further
mitigating factors, nor does it address the serious deficiencies alleged in the Order.
Accordingly, the proposed settlement for this Order is also rejected.
Conclusion
Apart from the Commission’s statutory role in approving settlements, one is left to
wonder just exactly what the principled objection is that causes the Secretary, in its antitransparency manner, to balk at explaining the basis for its settlements. One would think that,
beyond Section 110(k), MSHA would be insisting that its lawyer, the Solicitor of Labor, show
the public and the miners who depend upon effective enforcement of the Mine Act for their
safety and health, the basis for its settlements. Instead, the Secretary offers the platitude that “the
Secretary has evaluated the value of compromise, the likelihood of obtaining a still better
settlement, the prospects of coming out better, or worse, after a full trial, and the resources that
would need to be expended in the attempt,” essentially telling the affected community, “Move
along, there’s nothing to see here.”
Settlement motions such as this, in the Court’s view, raise a question of whether there is
merely paper-pushing going on. This concern should not be interpreted as suggesting that the
Court is stating matters should not be settled. To the contrary, it is simply a matter of providing
the Court with real information to support the motion so that the Court can fulfill its statutory
responsibilities and, as a bonus which all should embrace, so that the Secretary can show the
Nation’s miners, with genuine transparency, that the Secretary’s motions comport with the
statutory aims of the Mine Act rather than simply asserting that they do.

37 FMSHRC Page 408

Accordingly, for the foregoing reasons, the Court has considered the representations
submitted in this case and concludes that the proffered settlement is not appropriate under the
criteria set forth in section 110(i) of the Act, and it is therefore DENIED.

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

Distribution:
Robert Alan Kelly, Office of the Regional Solicitor, U.S. Department of Labor, Two Pershing
Square Bldg., 2300 Main Street, Suite 1020, Kansas City, MO 64108
Jonathan R. Ellis, Steptoe & Johnson PLLC, Chase Tower, Eighth Floor, PO Box 1588,
Charleston, WV 25326

37 FMSHRC Page 409

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

February 27, 2015
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2012-940
A.C. No. 46-06578-282610

v.
JUSTICE ENERGY COMPANY,
INCORPORATED,
Respondent

Mine: Red Fox Surface Mine

DECISION
Appearances:

Emily O. Roberts, Esq., U.S. Dept. of Labor, Office of the Solicitor,
Nashville, Tennessee, for Petitioner;
James F. Bowman, Justice Energy Company, Incorporated, Midway, West
Virginia for Respondent.

Before:

Judge Bulluck

This case is before me upon a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”) on behalf of his Mine Safety and Health Administration
(“MSHA”), against Justice Energy Company, Incorporated (“Justice”), pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The Secretary
seeks a total civil penalty in the amount of $255,992.00 for nine alleged violations of his
mandatory safety standards.1
A hearing was held in South Charleston, West Virginia. The issues before me are: (1)
whether Respondent violated 30 C.F.R. §§ 77.1608(a), 77.1605(k), 77.404(a), and 77.1104; (2)
whether the violations were significant and substantial, where alleged; and (3) whether the
violations were a result of Justice’s high or moderate negligence, as alleged. The parties’ Posthearing Briefs are of record.
For the reasons set forth below, I AFFIRM the citations, as issued, assess penalties
against Respondent, and approve the parties’ Partial Settlement.

1

The parties reached a settlement on two of the nine contested citations. The total civil
penalty proposed for the seven remaining alleged violations is $220,008.00.

37 FMSHRC Page 410

I. Stipulations
The parties stipulated as follows:
1. Justice Energy, Incorporated, owns and operates Red Fox Surface Mine, I.D. No. 4606578. Red Fox Surface Mine is located in McDowell County, West Virginia;
2. Red Fox Surface Mine is a “mine” as that term is defined in Section 3(h) of the Mine
Act, 30 U.S.C. § 803;
3. Justice Energy, Incorporated, is subject to the Federal Mine Safety and Health Act of
1977;
4. Justice Energy, Incorporated, is subject to the jurisdiction of the Federal Mine Safety
and Health Review Commission, and the presiding Administrative Law Judge has the authority
to hear this case and issue a decision;
5. At all times relevant to this proceeding, Red Fox Surface Mine had an effect upon
interstate commerce within the meaning and scope of Section 4 of the Mine Act, 30 U.S.C. §
803;
6. Red Fox Surface Mine is large, producing 751,359 tons of coal in 2011;
7. Copies of the citations in contest are authentic and were served on the Respondent by
an Authorized Representative of the Secretary employed by the Mine Safety and Health
Administration;
8. The Respondent timely contested these violations;
9. MSHA’s Proposed Assessment Data Sheet and “Exhibit A-Docket Number WEVA
2012-940" accurately set forth: (a) the number of assessed penalty violations charged to the
Respondent for the period stated; and (b) the number of inspection days per month for the period
stated; and
10. The penalties proposed will not affect the Respondent’s ability to continue in
business.
Ex. P-1.
II. Factual Background
Justice Energy owns and operates the Red Fox surface mine (“Red Fox”), a highwall
surface coal mining operation, located in McDowell County, West Virginia. Stip. 1. On the
morning of January 11, 2012, MSHA Inspector Jeffrey Presley, prior to conducting a quarterly
E-01 inspection of Red Fox, participated in a safety meeting held by mine managers at the mine

37 FMSHRC Page 411

portal. Tr. 31-33. Presley was initially accompanied on the inspection by Justice’s dozer
operator, Todd Neely, and later joined by safety manager, Gilbert Witt. Tr. 34, 290, 297.
As Presley drove away from the mine portal, he observed rock trucks slipping on a
roadway covered with mud and standing water. Tr. 38-39. Therefore, he issued a citation for the
operator’s failure to keep the haul road reasonably free of debris, posing a collision hazard. Tr.
39; Ex. P-3. Also, having observed that a roadside berm was constructed of mud and failed to
reach the requisite mid-axle height of the trucks, Presley issued a citation for Justice’s failure to
maintain an adequate berm. Tr. 48-51; Ex. P-4.
On the second morning of Presley’s inspection, January 13, he observed a school bus,
being used by Justice as a mantrip, with motor oil accumulations on the engine, an inoperable
fire extinguisher, and four inoperable rear lights; he issued three citations for these conditions.
Tr. 59, 65-66, 71-72; Exs. P-5, P-6, P-7.
Presley also inspected highwall drill numbers 834 and 841. Tr. 76-77. On the 841
highwall drill, he observed a half inch of slack in the mast jack pin, and extensive oil leaks
covering the engine, hydraulics, and electrical components.2 Tr. 77-78, 89. Consequently, he
issued a citation for the operator’s failure to keep the drill in safe operating condition, and
another for allowing accumulations of hydraulic oil where they created a fire hazard. Tr. 77-78,
96; Exs. P-8, P-9. While inspecting the 834 highwall drill, Presley cited Justice for failure to
maintain the drill in safe operating condition, identifying nine defective conditions; he issued
another citation for allowing accumulations of hydraulic and motor oil where they created a fire
hazard. Tr. 100, 117; Exs. P-10, P-11.
III. Findings of Fact and Conclusions of Law
A. Citation 8144189
1. Fact of Violation
Presley issued 104(a) Citation No. 8144189, alleging a “significant and substantial”
violation of section 77.1608(a) that was “reasonably likely” to cause an injury that could
reasonably be expected to result in “lost workdays or restricted duty,” and was caused by
Justice’s “moderate” negligence.3 The “Condition or Practice” is described as follows:
When the haul roads were traveled they were covered in debris in the form of a
large amount of mud. The roads were very slick due to the condition and pick-up
trucks and large rock trucks were observed sliding and spinning tires for traction

2

The mast jack pin holds the jack in place; the jack raises and lowers the mast. Tr. 79.

3

30 C.F.R. § 77.1608(a) provides that “dumping locations and haulage roads shall be
kept reasonably free of water, debris, and spillage.”

37 FMSHRC Page 412

due to loss of traction. These are high traffic roads traveled all shift and these
conditions can result in a wreck.4
Ex. P-3. The citation was terminated after the haul road was cleared of debris.
In order to establish a violation of one of his mandatory safety standards, the Secretary
must prove that the violation occurred “by a preponderance of credible evidence.” Keystone Coal
Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11
FMSHRC 2148, 2152 (Nov. 1989)).
Presley had worked for MSHA since 2007, and had inspected Red Fox over 50 times
prior to 2012. Tr. 23-24, 27. He described the haul road as being covered with mud several
inches deep and standing water forming puddles 30 by 50 feet, which caused rock trucks to lose
traction. Tr. 38-39. In his opinion, given the heavy truck traffic, vehicles losing traction would
collide, resulting in drivers sustaining broken bones, paralysis, or even death. Tr. 42. Presley
concluded that Justice was moderately negligent because the muddy conditions had been
discussed that morning in the safety meeting but, from his observation, no graders were being
operated to clear the roadway. Tr. 33, 45.
Safety manager, Gilbert Witt, had worked at Red Fox since 2008. Tr. 282. Contrary to
Presley’s testimony, Witt testified that, while accompanying Presley on his inspection, he
observed graders working on the haul road, and that he did not see any conditions presenting a
challenge to maneuverability of the trucks. Tr. 296-97. Witt also testified that he took
photographs of the roadway, and he identified one photograph, showing a roadway free of mud
and debris, as depicting the conditions observed by the inspector. Tr. 291; Ex. R-14. Dozer
operator, Todd Neely, testified similarly, that the roadway was clear, and also attested to the
photograph being a fair depiction of it at the time of inspection. Tr. 467-74.
Mine superintendent, Gregory Browning, had been employed at Red Fox for three years.
Tr. 552-53. He explained that the mine’s normal practice is to run a 16G motor grader, unless it
is out of service, in which case a rubber-tired dozer is used to maintain the roads; he testified that
both were in use on the day of inspection. Tr. 557, 560. Nevertheless, Browning conceded that
some mud was present a quarter of the way out of the pit; he described it, however, as only a
light, tacky mud, which he would not consider to be debris. Tr. 554, 562. Michael Dale, 994
loader operator, essentially corroborated Browning’s testimony, explaining that, using the main
loader, it only took him approximately 10 to 15 minutes to scoop the mud off the road. Tr. 495.
The photograph upon which Justice relies to support its contention that only an
inconsequential amount of mud had accumulated on the roadway depicts pristine conditions that
do not comport with its witnesses’ cumulative testimony. Ex. R-14. Witt initially testified that he
had taken the collection of evidentiary photographs contemporaneous with Presley’s inspection.
Tr. 291, 301-02, 350-51, 368, 391-92, 403, 405. The Secretary’s challenge to their authenticity,
however, called into question the timing of the snapshots and who, in fact, had taken them.
Justice’s safety director, Raymond Simpson, substantiated the Secretary’s contention that Witt
4

Contrary to the wording in the narrative, the testimony makes clear that Presley cited
one roadway on which multiple trucks were traveling.

37 FMSHRC Page 413

was not the sole photographer, by pointing out that the snapshots were labeled either
“Contemporaneous by Gilbert Witt,” or “Non-contemporaneous, illustrative, Mark Huffman.”
Tr. 393, 397; Exs. P-15, P-16, R-14, R-15, R-16, R-17, R-18, R-19, R-20, R-21, R-22, R-23, R24, R-25, R-26, R-27, R-28, R-29, R-30, R-31, R-32, R-33, R-34, R-35, R-36. Furthermore,
neither Witt nor Simpson was able to identify who had labeled the photographs. Tr. 397, 460.
Indeed, Witt acknowledged that two photographs of the 834 highwall drill attributed to Huffman,
depict warm weather conditions, and he reluctantly admitted that he had no knowledge of when
they had been taken. Tr. 454-57; Exs. R-33, R-34. Finally, there is no evidence that establishes
any of the photographs as an accurate depiction of the roadway on the date and time that Presley
cited the alleged slippery conditions, nor are they authenticated as accurate depictions of other
conditions cited during the inspection. Consequently, I find Justice’s photographic evidence of
no probative value in establishing any of the conditions encountered by the inspector and, in so
finding, I also find Witt’s testimony of his observations unsupported, and his assertion that
graders were leveling the roadway at the time of inspection, largely unworthy of credence.
Presley, on the other hand, consistently testified that several of the alleged
contemporaneous photographs were not illustrative of the conditions which he observed, and I
fully credit his testimony that rock trucks were slipping on the muddy, debris-covered roadway,
where no grader was operating. Tr. 578-79, 624. I also find Witt’s, Browning’s, and Neely’s
depiction of a relatively mud-and-debris-free roadway completely fabricated, considering their
acknowledgement that they had attended the morning safety meeting addressing the hazardous
conditions resulting from the overnight rainfall. Tr. 286, 467-68, 554-62. Therefore, I find that
Justice violated section 77.1608(a) by failing to maintain the haul road reasonably free of mud
and standing water.
2. Significant and Substantial
To prove that a violation is “significant and substantial” (“S&S”) under National
Gypsum, 3 FMSHRC 822 (Apr. 1981), the Secretary must establish the four criteria set forth by
the Commission in Mathies Coal Company, 6 FMSHRC 1 (Jan. 1984). The Secretary bears the
burden of proving: 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, 6 FMSHRC
1, 3-4; see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133,135 (7th Cir. 1995); Austin
Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’g 9 FMSHRC 2015, 2021
(Dec. 1987) (approving Mathies criteria). Evaluation of the third criterion, the reasonable
likelihood of injury, should be made in the context of “continued normal mining operations.”
U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). Moreover, resolution of whether a
violation is S&S must be based “on the particular facts surrounding that violation.” Texasgulf,
Inc., 10 FMSHRC 498, 501 (Apr. 1998); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007,
2011-12 (Dec. 1987). The Secretary must prove that there is a reasonable likelihood that the
hazard contributed to by the violation will cause an injury, not a reasonable likelihood that the
violation, itself, will cause injury. Musser Eng’g, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010).

37 FMSHRC Page 414

The fact of the violation has been established. The second criterion of the Mathies test
has been met, in that rock trucks losing traction and slipping due to the muddy roadway surface
were likely to lose control and collide with other vehicles. Clearly, collisions between multi-ton
trucks are reasonably likely to result in serious musculoskeletal injuries such as strains, sprains
and broken bones, head trauma, paralysis, and even death. Therefore, I find that the violation was
S&S.
3. Negligence
The record establishes that Justice was aware of the muddy road conditions, as evidenced
by the morning safety meeting held to address the matter, attended by Browning, Witt, and
Neely. However, despite permitting commencement of mining operations prior to clearing the
roadway, Justice’s effort to alert its miners to the hazard mitigates its negligence. Therefore, I
conclude that Justice was moderately negligent in violating the standard.
B. Citation 8144190
1. Fact of Violation
Inspector Presley issued 104(a) Citation No. 8144190, alleging a “significant and
substantial” violation of section 77.1605(k) that was “reasonably likely” to cause an injury that
could reasonably be expected to be “fatal,” and was caused by Justice’s “moderate” negligence.5
The “Condition or Practice” is described as follows:
When checked the elevated haul road at the Cat 994 pit has berms that are not
adequate enough to prevent an accident. This pit is located over the active coal pit
and large Cat 789 and 793 rock trucks haul from this location and the berms were
not built up to the mid axle of these trucks. The partial berms that were there were
constructed of muddy material and not substantial enough to prevent the large
heavy trucks from running or sliding through the berms and falling 40 plus feet
below. The area at this location was muddy and trucks were observed slipping and
sliding. (See Citation No. 8144189).6
Ex. P-4. The citation was terminated after the berm was built up using overburden.
Presley explained that to provide protection against overtravel and overturning, the berm
was required to extend higher than mid-axle height of the trucks or, if at mid-axle height, be

5

30 C.F.R. § 77.1605(k) provides that “berms or guards shall be provided on the outer
bank of the elevated roadways.”
6

30 C.F.R. § 77.2(d) defines “berm” as a pile or mound of material capable of restraining
a vehicle. Contrary to the wording in the narrative, the testimony makes clear that Presley cited
only one berm.

37 FMSHRC Page 415

constructed of a substantial material.7 Tr. 48-49. He testified that he positioned himself where he
could see the truck axles passing the berm, and observed that the majority of the berm was
significantly lower than the trucks’ mid-axles, with some spots deficient by as much as two feet.
Tr. 50-53, 168-70. Presley was able to see that mud had sloughed off the berm to the coal pit
below. Tr. 51. He opined that given the slick roadway conditions, a truck could overtravel
through the berm and overturn, resulting in a 40 to 50 foot plunge down to the pit. Tr. 54-55.
Witt testified that the berm was approximately eight to nine feet tall and, at first, averred
that it was constructed of rock from the pit. Tr. 298-99. However, when viewing Justice’s
photographs, purportedly of the original berm and the berm that was constructed to abate the
violation, Witt identified the original berm as being composed of smaller, finer, and more
consolidated material than the one constructed later. Tr. 307-08; Exs. R-15, R-16. Witt also
identified a pile of mud atop the berm which, he speculated, could have been dumped on the
berm by the front-end loader; however, he added that this was not a normal practice. Tr. 309.
Neely testified that he had built the original berm the day before the inspection to a height
of 72 to 74 inches. Tr. 477-79. He admitted that the combination of the previous night’s rain and
work in the pit had caused some of the berm to “slip off.” Tr. 483. Ronald Starcher, loader
operator, testified that on the morning of January 11, he used a front-end loader to repair the
berm. Tr. 486-88. According to Starcher, the berm had “slagged off” in a couple of spots. Tr.
488. Viewing Justice’s photographs of the berm, he admitted that the area that Witt had
identified as the original berm was primarily composed of dirt with some rock, and that the rain
would have been able to wash it away. Tr. 489-91. Loader operator, Michael Dale, explained that
he was tasked with building the berm that terminated the citation, and he also admitted that the
original berm had eroded due to rainfall and mining in the pit. Tr. 496-500. Furthermore, Dale
testified that the original berm was constructed of rock with a little bit of dirt; however, after
examining Justice’s photograph, he stated that it looked like “a lot more dirt.” Tr. 501-02; Ex. R15.
I find that the original berm was constructed primarily of dirt rather than rock, and I
credit the Secretary’s contention that it did not rise to mid-axle height of the operating haul
trucks. Even Justice’s own photographs, although of dubious origin, show the berm to be
constructed of consolidated material, including substantial amounts of dirt and mud. Obviously,
inherent in the standard is a requirement that berms or guards be constructed of such material,
and in such fashion, as to constitute an effective barrier. A berm primarily constructed of dirt,
which does not rise, at least, to mid-axle height, is insufficient to stop multi-ton rock trucks from
overtraveling into the pit and overturning. Therefore, I find that the Secretary has proven that
Justice violated section 77.1605(k).
2. Significant and Substantial
The first two Mathies criteria have been met, in that the violation has been established,
and it is apparent that the construction material and height insufficiency of the berm contributed
7

See, for example, 30 C.F.R. § 77.1605(l) which provides that “berms, bumper blocks,
safety hooks, or similar means shall be provided to prevent overtavel and overturning at dumping
locations.”

37 FMSHRC Page 416

to the danger of rock trucks overtraveling and overturning. Here, again, the S&S analysis is
dependent upon the third and fourth Mathies criteria, i.e., whether the hazard was reasonably
likely to result in an injury, and whether the injury would be serious. Presley testified credibly
that a truck operator was reasonably likely to be killed were his truck to slip on the steep, muddy
roadway, overtravel through the berm, and likely overturn as a result of plunging 40 to 50 feet
down to the pit. Tr. 54-55. Therefore, I find that the violation was S&S.
3. Negligence
The Secretary contends that Justice was moderately negligent in its insubstantial
construction of the berm and failure to timely repair it after it had deteriorated, before permitting
miners to haul on the roadway. Sec’y Br. at 8. On the other hand, Justice contends that Starcher
timely repaired the berm. Resp’t Br. at 18. Crediting the evidence that Starcher had repaired the
berm on the morning of inspection, the evidence is also clear that Justice’s remediation was
short-lived or entirely missed its mark in the first place. Therefore, I find that Justice was
moderately negligent in violating the standard.
C. Citation No. 8144193
1. Fact of Violation
Presley issued 104(a) Citation No. 8144193, alleging a “significant and substantial”
violation of section 77.404(a) that was “reasonably likely” to cause an injury that could
reasonably be expected to result in “lost workdays or restricted duty,” and was caused by
Justice’s “moderate” negligence.8 The “Condition or Practice” is described as follows:
The company’s bus used as a mantrip is not being maintained in safe operating
condition. When checked none of the brake lights work and none of the backup
lights work. This machine is operated in low light, foggy, and rainy conditions on
high traffic haul roads in off road terrain.
Ex. P-7. The citation was terminated when the back-up lights and brake lights were repaired.
The Commission has found that section 77.404(a) requires an operator to maintain
machinery and equipment in safe operating condition, and to remove unsafe equipment from
service. Peabody Coal Co., 1 FMSHRC 1494, 1495 (Oct. 1979).
The Secretary argues that operating the bus with non-functional back-up and brake lights
was unsafe, because other vehicles or pedestrians traveling on mine roads would have no visual
warning of the bus stopping or reversing, in order to avoid collision. Sec’y Br. at 9-10. Justice
makes counter arguments that the bus was in safe operating condition, that it was examined prior
to commencement of the shift and found to have no defects, and that it could be operated safely
even with inoperative rear lights, since head lights, strobe lights, a back-up alarm, reflective tape,
and a CB radio alerted miners to the bus’ mode of operation. Resp’t Br. at 18-19.
8

30 C.F.R. § 77.404(a) provides that “mobile and stationary machinery and equipment
shall be maintained in safe operating condition and machinery or equipment in unsafe condition
shall be removed from service immediately.”

37 FMSHRC Page 417

Presley testified that none of the bus’ back-up or brake lights was working. Tr. 71-72. He
opined that while the bus’ headlights and strobe light were operational, a pedestrian or vehicle
following the bus could lose sight of its rear, especially in low-light or foggy conditions, likely
leading to a collision. Tr. 71-74. In the case of a collision, miners inside the bus could suffer
sprains, broken bones, or whiplash, and a miner run over by the bus operating in reverse could be
killed. Tr. 74-75. Presley testified that the bus was being operated in this hazardous condition
twice each shift, and that pickup trucks and large mechanic trucks were operating on the same
roads, at the same time that the bus was transporting miners to different work areas. Tr. 73, 21920.
Witt initially testified to being very confident that the rear lights were working when the
shift began, because the pre-operational examiner had not reported them as defective. Tr. 33233. However, he later admitted that the pre-operational examination was inadequate,
acknowledging that only one miner had been involved, while two are needed to check brake
lights, and that the lights were not working when Presley inspected the bus. Tr. 346, 432. John
Spencer, the bus driver but not the pre-operational examiner, testified that on the morning of
January 13, prior to issuance of the citation, the bus had become stuck in a mud hole, which he
offered as the cause of the lights failing; he admitted, however, that he had not checked the lights
after that incident or prior to beginning his shift. Tr. 540-46. Spencer acknowledged
encountering coal trucks, service trucks, and pickup trucks while running his route. Tr. 542-43.
Browning attested to the bus using the same haul roads as tractor-trailer coal trucks, pickup, and
mechanic trucks. Tr. 563-64.
While there is no evidence establishing that the bus’ back-up lights were inoperative
when the shift began, the unlikelihood of both lights failing simultaneously casts a shadow upon
the thoroughness of the pre-operational examination, especially considering that the examination
of the brake lights was shown to be inadequate - - if a check of the bus’ rear lights was conducted
at all. Operating the bus without functional rear lights, in close proximity to other multi-ton
trucks and pedestrians, was highly unsafe and likely to result in vehicular collisions or
pedestrians being struck. Therefore, I find that Justice violated section 77.404(a).
2. Significant and Substantial
The fact of the violation has been established. The second Mathies criterion has been
satisfied, i.e., inoperative brake and back-up lights contributed to a collision hazard involving
trucks or pedestrians. In analyzing the third and fourth Mathies criteria, I find that a collision
between the bus and a mine truck would be reasonably likely to cause miners to suffer
musculoskeletal injuries such as strains, sprains, and fractures and, if the bus were to strike a
miner on foot, severe crush injuries or even death. Therefore, I find that the violation was S&S.
3. Negligence
Presley noted the unlikelihood of all rear lights failing at the same time, and concluded
that the defective condition must have existed for quite some time and should have been
discovered during the pre-operational examination. Tr. 76. Justice’s argument, that an operator
should be afforded a fair opportunity to correct reported pre-operational hazards, need not be

37 FMSHRC Page 418

addressed here, since it has been established that the bus’ rear lights were not reported as
defective in the first place. See Resp’t Br. at 8. Because, at the very least, Justice failed to
conduct a thorough pre-operational exam of the bus’ rear lights, and also considering that the
Secretary failed to establish the duration of their inoperative state, I find that Justice was
moderately negligent in violating the standard.
D. Citation No. 8144194
1. Fact of Violation
Presley issued 104(a) Citation No. 8144194, alleging a “significant and substantial”
violation of section 77.404(a) that was “reasonably likely” to cause an injury that could
reasonably be expected to result in “lost workdays or restricted duty,” and was caused by
Justice’s “high” negligence. The “Condition or Practice” is described as follows:
The company’s number 841 high wall drill is not being maintained in safe
operating condition. When checked the operator side mast jack has almost ½" of
slack near the pin on the barrel end and there are numerous oil leaks. These oil
leaks are very excessive and can cause a function of the machine to malfunction
or total loss of control. The oil leaks also cause and contribute to citation number
8144195.
These oil leaks were very obvious and listed in the pre-operational check list for
this equipment. It’s obvious the equipment operator has done a good inspection
but the operator failed to fix the conditions or remove the machine from service.
These conditions have been cited numerous times in the past and violations issued
today are placing management on notice of high enforcement action.
Ex. P-8. The citation indicates that it was terminated by Justice’s repair or replacement of the
jack, and repair of the hydraulic hoses on the 841 highwall drill.
Arguing that excessive slack in the mast jack pin and leaking hydraulic hoses constituted
defects affecting safety, the Secretary contends that since the drill is manufactured to allow for
only an infinitesimal amount of slack in the pins, “no visible slack is safe.” Sec’y Br. at 12-13.
Justice seems to be arguing that Presley could not determine any amount of slack without taking
a measurement. Even if there were visible slack in the pin, Justice argues, Presley’s opinion that
any visible slack is prohibited, without reference to the manufacturer’s specifications for the
drill, is insufficient evidence for the Secretary to prove the violation. Resp’t Br. at 20-21.
Presley testified to two problems with the 841 highwall drill: visible slack in the pin on
the barrel end of the mast jack, and numerous oil leaks. Tr. 78. He explained that the highwall
drill mast is approximately thirty feet tall and supports a twenty-foot drill steel.9 Tr. 87. The mast
is propped up by jacks which hinge to the bottom of the drill and provide support as it vibrates,
changes heights, and cuts into the highwall. Tr. 78-79, 84-85. The jacks are secured to the mast
9

A “drill steel” is a round or hexagonal steel rod for boring in coal, ore, or rock. It
consists of a shank, a shaft, and a bit. Am. Geological Institute, Dictionary of Mining, Mineral,
and Related Terms 171 (2d. ed. 1997).

37 FMSHRC Page 419

by pins, which, according to Presley, are manufactured to fit snugly between the mast and the
jack, without any visible slack. Tr. 80-85. However, he testified, when the operator raised and
lowered the mast, he could see about a half inch of slack in the pin. Tr. 78-79, 230. He explained
that a pin with any visible slack would be unable to effectively brace the mast against the
pressure exerted by the continuously vibrating drill, and if the pin or the jack were to fail, the
mast could fall and strike the operator or a bystander, resulting in broken bones and/or sprains.
Tr. 80-81, 87, 101-02. On cross-examination, Presley stated that in determining that the drill was
unsafe to operate, he saw no need to consult the manufacturer’s specifications, because ¼ or ½
inch of slack is clearly out of compliance; according to him, the specifications allow, at most,
two or three thousandths of an inch of slack. Tr. 231-33.
Presley described the oil accumulated on the drill as “an area at least the size of this
booth (the witness stand), the court reporter’s and your (Judge’s) bench, plum covered in
hydraulic oil.” Tr. 94-96. By his account, while he could identify the location of one leak, the
drill was covered so extensively in hydraulic oil that he could not determine the other sources,
stating that “it’s like looking in a spider web of hydraulics and they’re all covered with oil.” Tr.
89-90. In his opinion, the leaks were likely to lead to loss of hydraulic pressure, which could
result in the machine suddenly stopping or jerking sideways, causing the operator to be thrown
about the cab. Tr. 90, 92-93. Additionally, if a hydraulic hose were to burst, it could strike a
miner or spray him with hot oil. Tr. 90-91.
Witt testified that there was no slack in the mast jack pin but, if there were, the pin would
have displayed obvious signs of wear. Tr. 348-52; Exs. R-22, R-23. Rodney Cox, the 841 drill
operator, testified that he did not check for slack in the mast jack pin as part of his preoperational examination, but that he had noted the oil leaks in his report, although he felt that the
drill was safe to operate. Tr. 506-07, 515.
As has previously been discussed, Justice’s photographs are of no probative value in
determining the condition of the drill at the time of inspection. I credit Presley’s testimony that
he observed slack in the pin. Where the Secretary goes out on an unsupported limb, however, is
by contending that no visible slack in the mast jack pin is permissible for safe operation of the
drill. The Secretary provided no evidence of the manufacturer’s specifications, which may be
dispositive in determining whether operating the drill with ½ inch of slack is unsafe. As pointed
out by the judge in a similar fact situation involving the same operator, the Secretary cannot
carry his burden by simply asserting that any visible slack is unsafe operationally, absent
objective evidence of manufacturer or industry specifications. Justice Energy Company, 36-37
FMSHRC __, slip op. at 18-23, No. WEVA 2012-375 (January 20, 2015) (ALJ). Consequently, I
find that the Secretary has not met his burden of proving that the visible slack in the mast jack
pin constituted an unsafe operating condition.
Presley’s observation of hydraulic oil leaks on the drill, however, was corroborated by
Justice’s own witness, and Cox’s reporting of the condition lends credence to the inspector’s
contention that it was extensive. A ruptured hydraulic hose would likely result in broken bones
from a miner being struck or thrown about the cab, or burns resulting from the miner’s contact
with hot oil. Consequently, I find that the Secretary has proven that Justice operated the 841
highwall drill in unsafe condition and, therefore, violated section 77.404(a).

37 FMSHRC Page 420

2. Significant and Substantial
The first two Mathies criteria have been met, in that the violation has been established,
and hydraulic oil leaks contributed to the hazards of sudden mast movement and hose failure.
The third and fourth Mathies criteria, the reasonable likelihood of injury and its seriousness, have
also been met. A miner being thrown about the operator’s compartment would be reasonably
likely to suffer musculoskeletal injuries such as strains, sprains, or fractures, and a ruptured hose
would likely result in burns or broken bones. Therefore, I find that the violation was S&S.
3. Negligence
The Secretary contends that Justice should have been aware of the unsafe condition of the
highwall drill, given the obviousness and extensiveness of the hydraulic oil leaks, and the
operator’s extensive history of section 77.404(a) violations. Sec’y Br. at 14. On the other hand,
Justice contends that it was unaware of the condition, since Cox proceeded to operate the drill
despite having reported the oil leaks, and the pre-operational report was not retrieved by
management until after the citation had been issued. Resp’t Br. at 10-12.
Presley testified that the oil leaks were obvious, considering that they were readily
apparent as soon as he stepped out of his vehicle. Tr. 94. He also noted Justice’s history of
section 77.404(a) violations at Red Fox, and that he has discussed these issues with management
officials during previous inspections. Tr. 95. Cox’s pre-operational report of oil leaks totally
discredits Superintendent Browning’s testimony that the leaks were not reported and that
management was not aware of the condition. Tr. 567-68. I find that the hydraulic oil leaks were
extensive and obvious and, given the history of discussions between Presley and Red Fox’s
management about recurrent violations of a similar nature, that Justice should have been aware
of the need to maintain the 841 highwall drill in safe operating condition, free of this defect.
Therefore, I find that Justice was highly negligent in violating the standard.
E. Citation 8144195
1. Fact of Violation
Presley issued 104(a) Citation No. 8144195 alleging a “significant and substantial”
violation of section 77.1104 that was “reasonably likely” to cause an injury that could reasonably
be expected to result in “lost workdays or restricted duty,” and was caused by Justice’s “high”
negligence.10 The “Condition or Practice” is described as follows:
The company’s number 841 high wall drill is not being maintained free of
accumulations of combustible materials. When checked the excessive oil leaks
cited in citation number 8144194 has caused oil to saturate the area under the
operator’s compartment, on and around the valve chests and area between the oil
tank and operator’s compartment, and all around the center section of the
machine.
10

30 C.F.R. § 77.1104 provides that “combustible materials, grease, lubricants, paints, or
flammable liquids shall not be allowed to accumulate where they can create a fire hazard.”

37 FMSHRC Page 421

These oil leaks were very obvious and listed in the pre-operational check list for
this equipment. It’s obvious the equipment operator has done a good inspection
but the operator failed to fix the conditions or remove the machine from service.
These conditions have been cited numerous times in the past and violations issued
today are placing management on notice of high enforcement action. This mine
has had fires on equipment in the recent past.
Ex. P-9. The citation was terminated when the oil leaks were repaired and the drill was washed.
In establishing a violation of section 77.1104, the Secretary must demonstrate: (1) the
presence of combustible material; (2) that the combustible material was allowed to accumulate;
and (3) that the accumulations is located in an area where it can create a fire hazard. See Maxxim
Rebuild Co., LLC, 35 FMSHRC 3261, 3268 (Oct. 2013) (ALJ); Northwestern Resources, 21
FMSHRC 431, 438 (Apr. 1999) (ALJ).
The Secretary argues that hydraulic oil is a “combustible liquid,” as defined by MSHA’s
regulations, because it is a liquid mixture with a flashpoint of 374 degrees Fahrenheit.11 Sec’y
Br. at 20. Justice makes the counter-argument that the hydraulic oil on the drill was not
combustible, and that the motor did not reach sufficient temperatures to cause an ignition. Resp’t
Br. at 23. In support of its argument, Justice asserts that hydraulic oil is classified by OSHA as
“not combustible,” and that the Material Safety Data Sheet (“MSDS”) for hydraulic oil states
that it is not a fire hazard.12 Resp’t Br. at 23; Ex. R-11 at 3, 6.
Presley testified that MSHA classifies hydraulic oil as combustible, and that it had
accumulated in close proximity to the motor near the exhaust, and around electrical components
near the operator’s cab. Tr. 96-98. He opined that the motor and electrical components were hot
surfaces and that, if a hydraulic hose were to burst, it could squirt 3,000 pounds per square inch
of oil onto the motor and turbo.13 Tr. 273. According to him, if the oil were to contact the turbo,
which can reach temperatures over 1,000 degrees, a fire would occur. Tr. 267.
Witt testified that Justice used Chevron hydraulic oil in the 841 highwall drill and,
according to the MSDS, it has a flashpoint of 374 degrees. Tr. 373-75; Ex. R-11 at 3. He stated
that he took the temperature of the turbo and the engine block on the day of inspection, and
observed that the turbo started out at about 800 degrees; when he excited the engine, the turbo
11

The term “flashpoint” is defined as “the minimum temperature at which sufficient
vapor is released by a liquid or solid to form a flammable vapor-air mixture at atmospheric
pressure.” 30 C.F.R. § 77.2(r).
12

The MSDS, required for each hazardous chemical used by mine operators, lists
flashpoints and autoignition temperatures. 30 C.F.R. § 47.51. There is no evidence in the record
that the cited oil accumulations were exposed to temperatures sufficient for autoignition.
13

Testifying respecting the 834 drill, Presley explained that the turbo is housed in the
exhaust. Tr. 264. A “turbocharger,” also known as a “turbo,” is a device that supplies air to an
engine at a higher pressure than normal to increase the engine’s power. Merriam-Webster Online
Dictionary. 2015. www.merriam-webster.com. (2 Feb. 2015).

37 FMSHRC Page 422

temperature increased to 1200 degrees, and the temperature of the engine block was 295 degrees.
Tr. 373. He added that no more than a light film of oil was visible, that it was at least two feet
away from the turbo, and that there was no oil under the operator’s compartment. Tr. 367-69,
372; Exs. R-18, R-19, R-20, R-21.
The Commission has recognized the definition of “combustible” as “capable of being
ignited and consumed by fire.” FMC Corporation, 6 FMSHRC 1566, 1567 (July 1984). Several
judges have applied this or a similar definition in addressing underground coal violations.
Garden Creek Pocahontas Company, 15 FMSHRC 2126, 2140 (Oct. 1993) (ALJ); Shamrock
Coal Company, 12 FMSHRC 2098, 2102 (Oct. 1990) (ALJ); Eastern Associated Coal
Corporation, 12 FMSHRC 239, 244 (Feb. 1990) (ALJ).
The Secretary’s position that hydraulic oil is combustible is supported by the MSDS,
which states that “[t]his material will burn although it is not easily ignited.” Ex. R-11 at 3.
Although Justice argues that there was no possibility of an ignition given that the engine
temperature did not reach the flashpoint of hydraulic oil, it fails to rebut the evidence that a burst
hydraulic hose could spew oil onto the turbo, which, according to Witt’s measurement, reached
1200 degrees, a temperature far exceeding the oil’s flashpoint. As noted in Justice Energy
Company, affirming similar violations of section 77.1104 for accumulations of hydraulic oil on
highwall drills at the Red Fox mine, a failure of a hydraulic hose is reasonably likely to atomize
the oil and spray it onto hot engine surfaces, including the exhaust and the turbo. 36-37
FMSHRC __, slip op. at 9-12, 17. Accordingly, I find that, given continued drilling, hydraulic oil
would be reasonably likely to spew onto the exhaust and turbo, resulting in an ignition.
Therefore, I find that section 77.1104 was violated.
2. Significant and Substantial
The fact of violation has been established, and the violation contributed to the hazard of
an engine fire. Again, the focus here is the likelihood and seriousness of injury. I find that
ignition of the hydraulic oil is reasonably likely to cause burns or smoke inhalation of a serious
nature, which would be reasonably likely to result in, at least, lost workdays or restricted duty.
Therefore, I find that the violation was S&S.
3. Negligence
The Secretary reiterates that the extensiveness of the accumulations indicates that they
had developed over an extended period of time and were obvious, and that Justice’s history of
highwall drill violations should have put the operator on notice of the need to maintain them free
of combustible accumulations. Sec’y Br. at 14. Justice, again, argues that that Cox operated the
drill despite noting the oil leaks in his pre-operational report, and that management was not made
aware of the report until after the citation was issued. Resp’t Br. at 12. The volume of oil that
Presley observed indicates that the accumulations developed over multiple shifts, and Justice’s
management, having been put on notice of drill maintenance issues, should have had a
heightened awareness of this condition. Therefore, I find that Justice was highly negligent in
violating the standard.

37 FMSHRC Page 423

F. Citation No. 8144196
1. Fact of Violation
Inspector Presley issued 104(a) Citation No. 8144196, alleging a “significant and
substantial” violation of section 77.404(a) that was “reasonably likely” to cause an injury that
could reasonably be expected to result in “lost workdays or restricted duty,” and was caused by
Justice’s “high” negligence. The Condition or Practice” is described as follows:
The company’s number 834 high wall drill is not being maintained in safe
operating condition. When checked the following conditions exist: 1. There is
better than ¼" of slack in the fits at the mast jack on the off side. 2. There is ¼" or
more of slack in the fit at the hinge pin for the mast on the off side. 3. The frame
work for the mast has too many cracks and breaks to list all the locations. 4. Both
pull down chains are so loose they have cut into the gussets for the framework on
the mast. 5. There is no cab filter. 6. The mat on the floor of the cab has the tread
wore out causing a slip, trip, or fall hazard. 7. The machine has numerous oil
leaks that affect the function ability of the machine. 8. The mast pin lights do not
work. 9. The framework for the elevated walkway has several cracks and breaks.
The oil leaks were very obvious and listed in the pre-operational checklist for this
equipment. It’s obvious the equipment operator has done a good inspection but
the mine operator failed to fix the conditions or remove the machine from service.
These conditions have been cited numerous times in the past and violations issued
today are placing management on notice of high enforcement action.
Ex. P-10. The citation was terminated after the conditions were addressed.
Presley described for the record the nine defects that he observed on the highwall drill
and cited. Tr. 100-12. He testified that slack in the mast jack pin and hinge pin contributed to the
hazard of a mast failure, and that a falling mast could strike the drill operator or a pedestrian, or
jar the machine, throwing the drill operator around the cab. Tr. 102. Addressing the mast, Presley
stated that it had at least 30 cracks and breaks in the supports, and that it was in “horrible shape.”
Tr. 104-05. He described the pull-down chains as having so much slack that they were sawing
into the framework of the mast. Tr. 106. Addressing the absence of a cab filter, he stated that
operation of the drill generates dust. Tr. 107. He recalled slipping when he entered the cab and
noticing a hole in the mat exposing the metal underneath; he opined that since the machine was
covered in oil, a miner moving about the cab in rubber-soled boots could slip, trip, or fall,
causing a broken ankle or wrist, or head injuries. Tr. 108-09. Focusing on the oil leaks, he
testified that hydraulic and motor oil leaks were so numerous that he could not determine their
origin. Tr. 110, 117. Addressing the mast pin light, he pointed out that the light indicates that the
mast is locked in place for drilling and, without that indicator, the operator could be unaware that
the mast has become unlocked. Tr. 111-12. Finally, Presley testified that there were more broken
than unbroken cross-braces in the framework of the elevated walkway, and that he could lightly
“bounce up and down the catwalk and sit there and watch the cracks separate.” Tr. 112-13. He
opined that should the walkway collapse, a miner could fall to the rocky ground below. Tr. 11314. On rebuttal, Presley testified that Justice’s photographs, purporting to show the condition of

37 FMSHRC Page 424

the 834 drill at the time of his inspection, did not depict the violative conditions that he had
observed. Tr. 603-620; Exs. R-24, R-26, R-28, R-29, R-30, R-31, R-32, R-35, R-36.
Witt testified that Presley visually inspected the mast jack pin, and told him that the pin
was moving. Tr. 377. While he admitted that there were some cracks in the webbing of the mast,
he stated that none had broken all of the way through the metal, and that they did not pose a
hazard. Tr. 382-83, 390. Witt also opined that the amount of slack in the pull-down chains was
the machine’s regular operational state. Tr. 402-03. According to him, the cab had an air filter,
and no metal was showing through the floor mat, as evidenced by a photograph, taken three and
a half or four hours after the citation was issued, showing wear, but no hole in the floor mat. Tr.
404-06; Ex. R-36. Addressing the inoperative mast pin light, Witt stated that more experienced
drill operators can use alternative methods to ensure that the mast is locked, and that these lights
were only developed several years ago. Tr. 408-09. Finally, Witt acknowledged that there was a
crack in the metal frame of the walkway, but stated that it was “rigid and still . . . we was all up
there walking around on it.” Tr. 409.
John Spencer, operator of the 834 drill, essentially corroborated Witt’s testimony, and
disagreed with nearly all of Presley’s contentions. Tr. 529-45, 548-50. He testified that during his
inspection of the drill, Presley became angry after he stepped into the cab and slipped. Tr. 526.
Spencer admitted that the floor mat was worn, but opined that the mat would prevent him from
slipping and falling. Tr. 529, 538-39. He also admitted that the drill had oil leaks, but contended
that it was safe to operate. Tr. 529. Spencer added that the mast pin light consists of two bulbs:
green indicating that the mast is locked, and red indicating that it is unlocked.
Tr. 530-31.
According to him, one of the bulbs was not functioning, although he could not remember which
one, but he was able to determine whether the mast was locked based on whether the functional
bulb was illuminated. Tr. 530-31.
The evidence establishes that the cited defects, with the exception of slack in the mast
jack and hinge pins, rendered the drill unsafe to operate. As discussed previously respecting the
841 highwall drill, the Secretary has not established that ¼ inch of slack in the pins renders the
drill unsafe to operate, absent evidence of manufacturer or industry specifications. Regarding the
other defects, however, Justice does not dispute that there were cracks in the framework of the
mast and walkway, slack in the pull-down chains, hydraulic and motor oil leaks, and a defective
mast pin light. Justice’s photograph, purporting to depict the cited mat, is of no probative value,
as has been previously discussed. Moreover, with the exception of the pins, the evidence as a
whole establishes the defects that Presley cited, and I find that the drill was unsafe to operate in
that condition. Therefore, based on the fact that the 834 highwall drill was operating with a
combination of numerous defects, I find that section 77.404(a) was violated.
2. Significant and Substantial
The first two Mathies criteria have been met, in that the violation has been established,
and the violation heightened the danger of sudden mast movement, mast failure, and walkway
failure. The third and fourth Mathies criteria, the reasonable likelihood of injury and the
seriousness of injury, have also been met. Sudden mast movement and hose rupture would likely
result in the operator being thrown about the cab, struck by a hydraulic hose, or sprayed by hot

37 FMSHRC Page 425

oil. Mast failure would likely result in the mast toppling onto a miner, and walkway failure
would likely result in a miner falling to the ground. Any of these hazards would cause serious
injuries ranging from broken bones and sprains to potentially fatal crush injuries. Consequently, I
find that the violation was S&S.
3. Negligence
At the very least, loose pull-down chains and oil leaks were defects noted in the preoperational report. Indeed, Presley’s contention, that the drill was in such poor shape that the
operator should have known of its defective condition just by driving around on-site, is
supported by the record. Tr. 117. Therefore, due to Justice’s operation of the 834 highwall drill
with numerous, obvious and extensive serious defects, I find that it was highly negligent in
violating the standard.
G. Citation 8144197
1. Fact of Violation
Presley issued 104(a) citation No. 8144197 alleging a “significant and substantial”
violation of section 77.1104 that was “reasonably likely” to cause an injury that could reasonably
be expected to result in “lost workdays or restricted duty,” and was caused by Justice’s “high”
negligence. The “Condition or Practice” is described as follows:
The company’s number 834 high wall drill is not being maintained free of
combustible materials. When checked there is a leak at one of the pumps, and
there is a leak on the off side of the hot running motor behind the hot running
exhaust. The company has been cited for this condition before and removed the
heat shield and factory equipment that was designed for the location around the
exhaust.
These oil leaks were very obvious and listed in the pre-operational check list for
this equipment. It’s obvious the equipment operator has done a good inspection
but the operator failed to fix the conditions or remove the machine from service.
These conditions have been cited numerous times in the past and violations issued
today are placing management on notice of high enforcement actions. This mine
has had fires on equipment in the recent past.
Ex. P-11. This citation was terminated when the leaks were repaired and the drill was washed.
Presley described the oil accumulations on the 834 drill as twice as bad as the
accumulations on the 841 drill, explaining that the drill had strings of hydraulic oil running down
the machine and motor oil leaking directly behind the turbo. Tr. 117-19, 264. Presley observed a
hydraulic hose leaking oil, and opined that it could have burst at any time and sprayed oil onto
the turbo, causing an ignition. Tr. 266, 274. He testified that motor oil is also combustible and
given its proximity to the turbo, it was reasonably likely to catch fire. Tr. 119, 264-67, 274. In his
opinion, were oil to contact the turbo, “we’d have been fighting a fire, not citing the conditions
that could have caused a fire.” Tr. 267. He also noted that Justice had removed the heat shield, a

37 FMSHRC Page 426

manufacturer’s safety feature designed to protect the motor from the extreme heat of the turbo.
Tr. 119-120, 274.
Justice’s witnesses, Witt and Spencer, did not dispute that some hydraulic and motor oil
had leaked on the 834 drill. Witt testified that there was no oil on the turbo, but that there was a
film of motor oil ten inches from the top of it, and oil residue behind the exhaust. Tr. 412. He
measured the temperature of the engine block at 195 degrees, and the exhaust at 295 degrees. Tr.
412. Spencer characterized the drill as only having “normal” oil leaks. Tr. 529.
The MSDS for Chevron motor oil states that it will burn, and that it has a flashpoint of
399 to 446 degrees. Ex. R-9 at 3. To reiterate, according to the MSDS for hydraulic oil, it will
burn and has a flashpoint of 374 degrees. Justice applies the same defenses to the citations on the
834 drill that it argued for the 841. Resp’t Br. at 23-24. According to the evidence, the
temperature of the turbo was not taken during the inspection of the 834 drill. By analogy, then,
given that Justice has made no distinction between the model of the drills, it is reasonable to
conclude that they are similar and that the turbo on the 834 drill also reaches the temperature
extremes measured by Witt on the 841 drill, which far exceed the flashpoints of hydraulic and
motor oil. The evidence demonstrates that Justice permitted combustible oils to accumulate in
close proximity to the hot turbo and, were either oil to make contact, an ignition would have
occurred. Therefore, I find that Justice violated section 77.1104.
2. Significant and Substantial
The S&S analysis respecting the 834 highwall drill follows the same reasoning applied to
the 841 drill. I find that this hazardous condition was very dangerous, and that a miner would be
reasonably likely to suffer serious burns and smoke inhalation were an ignition to occur.
Therefore, I find that this violation was S&S.
3. Negligence
Considering that oil accumulations on the 834 highwall drill were twice that of the
accumulations on the 841, it is readily apparent that this condition had existed over an extended
period of time and was extensive. Moreover, Justice’s negligence was heightened by its removal
of the manufacturer’s protective heat shield. Consequently, I find that Justice was highly
negligent in operating the drill with significant oil accumulations in close proximity to the turbo,
posing a serious fire hazard.
IV. Penalties
While the Secretary has proposed civil penalties totaling $220,008.00, the Judge must
independently determine the appropriate assessment by proper consideration of the six penalty
criteria set forth in section 110(i) of the Act, 30 U.S.C. § 820(i). See Sellersburg Co., 5
FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d 1147 (7th Cir. 1984).
I find, and the parties have stipulated, that Red Fox is a large mine, and that the proposed
penalties will not affect the operator’s ability to continue in business. Stips. 6, 10. In reviewing

37 FMSHRC Page 427

Justice’s Assessed Violation History Report for the fifteen-month period preceding the subject
inspection, twenty-six violations of section 77.404(a) had become final orders of the
Commission; eight violations of section 77.1104 had become final; and one violation of section
77.1608(a) had become final. Ex. P-14. Presley testified that Justice has consistently received
section 77.404(a) violations for inadequate highwall drill maintenance, and that he has personally
discussed this problem with the operator on numerous occasions. Tr. 95, 99. Justice makes no
argument respecting its violations history, and I find it to be a significant aggravating factor in
assessing appropriate penalties. I also find that Justice demonstrated good faith in achieving
rapid compliance after notice of the violations.
The remaining criteria involve consideration of the gravity of the violations, and Justice’s
negligence in committing them. These factors have been discussed fully, respecting each
violation. Therefore, considering my findings as to the six penalty criteria, the penalties are set
forth below.
A. Citation No. 8144189
It has been established that this S&S violation of section 77.1608(a) was reasonably
likely to cause an injury that could reasonably be expected to result in lost workdays or restricted
duty, that Justice was moderately negligent, and that it was timely abated. Therefore, I find that a
penalty of $3,143.00, as proposed by the Secretary, is appropriate.
B. Citation No. 8144190
It has been established that this S&S violation of section 77.1605(k) was reasonably
likely to cause an injury that could reasonably be expected to be fatal, that Justice was
moderately negligent, and that it was timely abated. Therefore, I find that a penalty of
$10,437.00, as proposed by the Secretary, is appropriate.
C. Citation 8144193
It has been established that this S&S violation of section 77.404(a) was reasonably likely
to cause an injury that could reasonably be expected to result in lost workdays or restricted duty,
that Justice was moderately negligent, and that it was timely abated. Therefore, I find that a
penalty of $40,180.00, as proposed by the Secretary, is appropriate.
D. Citation No. 8144194
It has been established that this S&S violation of section 77.404(a) was reasonably likely
to cause an injury that could reasonably be expected to result in lost workdays or restricted duty,
that Justice was highly negligent, and that it was timely abated. Therefore, in consideration of the
hazardous condition of the drill, but the Secretary’s failure to establish visible slack in the mast
jack pin as inherently hazardous, I find that a penalty of $35,000.00 is appropriate.

37 FMSHRC Page 428

E. Citation No. 8144195
It has been established that this S&S violation of section 77.1104 was reasonably likely
to cause an injury that could reasonably be expected to result in lost workdays or restricted duty,
that Justice was highly negligent, and that it was timely abated. Therefore, I find that a penalty of
$37,416.00, as proposed by the Secretary, is appropriate.
F. Citation No. 8144196
It has been established that this S&S violation of section 77.404(a) was reasonably likely
to cause an injury that could reasonably be expected to result in lost workdays or restricted duty,
that Justice was highly negligent, and that it was timely abated. Therefore, in consideration of the
hazardous condition of the drill, but the Secretary’s failure to establish visible slack in the mast
jack and hinge pins as inherently hazardous, I find that a penalty of $35,000.00 is appropriate.
G. Citation No. 8144197
It has been established that this S&S violation of section 77.1104 was reasonably likely
to cause an injury that could reasonably be expected to result in lost workdays or restricted duty,
that Justice was highly negligent, and that it was timely abated. Therefore, I find that a penalty of
$37,416.00, as proposed by the Secretary, is appropriate.
V. Approval of Settlement
The parties have filed a Joint Motion to Approve Partial Settlement respecting two of the
nine citations involved in this docket. A reduction in penalty from $35,984.00 to $25,189.00 is
proposed. The citations, initial assessments, and proposed settlement amounts are as follows:
Citation No.
8144191
8144192
TOTAL:

Initial
Assessment
$31,988.00
$ 3,996.00
$35,984.00

Proposed
Settlement
$23,000.00
$ 2,189.00
$25,189.00

I have considered the representations and documentation submitted in these matters under
section 110(k) of the Act. Specifically, regarding Citation No. 8144191, the Secretary has
credited Respondent’s contentions that the motor oil accumulated on the engine of the bus would
not likely rise to a temperature that would cause combustion during short periods of operation
and, in the event of an ignition, fewer than eight persons would likely be affected. Regarding
Citation No. 8144192, the Secretary has credited Respondent’s contentions that the fire
extinguisher on the bus was full and, in the event of an ignition, fewer than eight persons would
likely be affected. I conclude that the proffered settlement is appropriate under section 110(i) of
the Act.

37 FMSHRC Page 429

ORDER
WHEREFORE, it is ORDERED that Citation Nos. 8144189, 8144190, 8144193,
8144194, 8144195, 8144196 and 8144197 are AFFIRMED, as issued; that the Secretary
MODIFY Citation Nos. 8144191 and 8144192 to reduce the level of gravity to “unlikely,” “nonsignificant and substantial” and “two persons affected;” and that Justice Energy Company,
Incorporated, PAY a civil penalty of $223,781.00 within 30 days of the date of this Decision. 14

/s/ Jacqueline R. Bulluck
Jacqueline R. Bulluck
Administrative Law Judge
Distribution:
Emily O. Roberts, Esq. U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue North,
Suite 420, Nashville, TN 37219
James F. Bowman, Representative, Justice Energy Company, Incorporated, P.O. Box 99,
Midway, WV 25878
/ss

14

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

37 FMSHRC Page 430

ADMINISTRATIVE LAW JUDGE ORDERS

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

February 3, 2015
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on behalf
of GARY KITTELSON
Petitioner

TEMPORARY REINSTATEMENT
PROCEEDINGS
Docket No. LAKE 2015-80-DM
MSHA CASE NO. RM-MD-15-01

v.

NORTHERN AGGREGATE, INC.,
Respondent

Mine: Portable Crusher
Mine ID: 21-02623

ORDER DENYING MOTION TO AMEND TEMPORARY REINSTATEMENT AND
REQUEST FOR EXPEDITED HEARING ON MERITS
This case is before me pursuant to an Application for Temporary Reinstatement brought
under Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §815(c),
et. seq. (the “Mine Act”). On November 5, 2014, this court issued an Order Approving
Temporary Reinstatement. On December 30, 2014, this court issued an Order to Correct and
Enforce the Temporary Economic Reinstatement. Before this court now is Respondent’s January
14, 2015 motion to partially toll the temporary economic reinstatement and move the hearing
date forward.1 On January 27, 2015, the Secretary filed objections to the Respondent’s motion.
For the reasons that follow, the Respondent’s motion is DENIED.
In its motion, the Respondent requests that the court reduce the ordered amount of
economic reinstatement from $1,716.00 per week to $600.00 per week.2 Respondent states that it
runs “a seasonal operation that switches to ‘winter season’ or ‘shop hours’ during the freeze
up/winter season while mining activities are not feasible.” During the winter season, Respondent
alleges that its employees receive lower pay, work limited hours, and rarely work overtime
hours. The Respondent states that “similarly situated employees to Petitioner Kittelson (i.e. those
with the same or similar experience, training, and longevity with the company), receive an
1

The Respondent’s motion is captioned “Motion to Amend Order of Temporary
Financial Reinstatement and Request for Expedited Hearing on Merits.” However, the motion is
in essence a motion requesting partial tolling of the temporary economic reinstatement order.
2

At one point in its motion, Respondent requests a reduction to $600.00 per week, and at
another asks for a reduction to $640.00 per week. Presumably, one of these figures is in error.

37 FMSHRC Page 431

hourly rate of $16.00 per hour and work 40 hour weeks or less on average during the winter
season.” Resp. Motion, 2. Furthermore, Respondent requests that this reduction be made
retroactive to December 1, 2014, and that Respondent be given credit for payments made in
excess of this amount.
With regards to the retroactive repayment of backwages, the the Commission has held
that miners are not liable for repayments of funds paid during the period of temporary
reinstatement. N. Fork Coal Corp., 33 FMSHRC 589, 597 (Mar. 2011), rev'd on other
grounds, 691 F. 3d 735, 744 (6th Cir. 2012); see also Shemwell v. Armstrong Coal Co., Inc.,
2012 WL 10906743, *4 (ALJ) (Sept. 12, 2012).
The Commission has held that an order of temporary reinstatement may be tolled or
modified based upon layoffs for economic reasons, or similar conditions. Ratliff v. Cobra
Natural Resources, LLC, 35 FMSHRC 394, 396-397 (Feb. 28, 2013). However, the mine
operator must affirmatively prove that the miner on temporary reinstatement was properly
included in the reduction or layoff by either a preponderance of the evidence or under the “not
frivolously brought standard,” depending on whether the objectivity of the layoff as applied to
the miner is called into question. Id. at 397. In the instant case, Respondent has provided pay
stubs for one miner from 10/26/2014-12/13/2014. This evidence does not come close to meeting
either standard. In order to show that all miners are working fewer hours due to seasonal
conditions, Respondent would have to submit evidence that all miners are working less due to
seasonal conditions. One possible method of doing so would have been to attach pay stubs for all
miners, along with historical data showing the seasonality of this trend.
The Respondent further requests that the hearing for the merits case, currently scheduled
for July 2-3, 2015, be heard sooner. Though the undersigned sympathizes with any economic
hardship on Respondent that has resulted from the temporary economic reinstatement, this
request must be denied. Moreover, this case will involve several discrimination complaints and,
as the Secretary notes in her brief, regardless of the outcome of LAKE 2014-705-DM, Kittelson
would remain on temporary reinstatement in the instant case. It would be inefficient, and result
in no appreciable difference for the Respondent, to have two hearings here. Therefore, all matters
relating to Kittelson will be heard on July 2-3, 2015 in Bemidji, MN.
Wherefore it is ORDERED that the Respondent’s motion is DENIED.

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

37 FMSHRC Page 432

Distribution:
Gary Kittelson, 4192 Town Road 98, Loman, MN 56654
Francesca Cheroutes, Esq., Office of the Solicitor, U.S. Department of Labor, Cesar E. Chavez
Memorial Building, 1244 Speer Blvd, Denver, CO 80204
Ben Wangberg, Esq., Fuller, Wallner, Cayko, Pederson, & Huseby, Ltd., P.O. Box 880, Bemidji,
MN 56619-0880
/mzm

37 FMSHRC Page 433

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

February 4, 2015
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. SE 2013-301
A.C. No. 01-00851-315187-01
Docket No. SE 2013-352
A.C. No. 01-00851-317727

v.
Docket No. SE 2013-368
A.C. No. 01-00851-319550
OAK GROVE RESOURCES, LLC,
Respondent

Docket No. SE 2013-399
A.C. No. 01-00851-320606-01
Mine: Oak Grove Mine

ORDER SCHEDULING ORAL ARGUMENT
Order No. 8520664, issued on October 3, 2012, concerns an alleged flagrant violation of
the mandatory safety standard in 30 C.F.R. § 75.400. This mandatory standard prohibits the
accumulation of coal dust and coal fines in active workings. Assuming the significant and
substantial (S&S) violation of section 75.400 in fact occurred, and that it was properly
characterized as unwarrantable, the central issue in this proceeding is whether the hard packed
coal fines and float coal dust accumulations, as cited by the Secretary, can constitute a “flagrant
violation” under section 110(b)(2). Section 110(b)(2) of the Act provides:
Violations under this section that are deemed to be flagrant may be assessed a
civil penalty of not more than $220,000 [adjusted for inflation]. For purposes of
the preceding sentence, the term “flagrant” with respect to a violation means a
reckless or repeated failure to make reasonable efforts to eliminate a known
violation of a mandatory health or safety standard that substantially and
proximately caused, or reasonably could have been expected to cause, death or
serious bodily injury.
Federal Mine Safety and Health Act of 1977, as amended by the Mine Improvement and New
Emergency Response Act of 2006 (“Mine Act” or “the Act”), 30 U.S.C. § 820(b)(2) (emphasis
added).

37 FMSHRC Page 434

Specifically, Order No. 8520664 in Docket No. SE 2013-368 states:
Combustible material in the form of float coal dust and dry hard packed coal fines
were allowed to accumulate on the roof, ribs, footwall, and belt structure of the
Main North 3 belt entry. The hard packed coal fines were in contact with moving
roller[s] on the belt line in multiple locations along the belt entry. The float coal
dust existed on the roof, ribs, footwall, and belt structure from the Main North 3
Tail Piece extending outby to crosscut 27. This is an approximate distance of
2100 feet. Due to the extensive amount of accumulations and that this belt is
examined every shift this constitutes more than ordinary negligence and is an
unwarrantable failure to comply with a mandatory health and safety standard.
Standard 75.400 was cited 92 times in two years at mine 0100851 (91 to the
operator, 1 to a contractor). This violation is an unwarrantable failure to comply
with a mandatory standard.
(Emphasis added).
The Secretary seeks to designate the cited condition in Order No. 8520664 as a repeated
flagrant violation based on two prior violations of section 75.400.1 Obviously, all flagrant
violations are S&S in nature. However, the overwhelming majority of S&S violations do not rise
to the level of a flagrant violation. In this regard, the threshold for an S&S violation is whether
there is a reasonable likelihood that the hazard contributed to by the violation will result in a
reasonably serious injury. In contrast, to demonstrate a flagrant violation, it must be shown that it
is reasonably expected that the violation has, or will, directly and proximately cause serious
injury or death.
The Commission has concluded that past violative conduct may be considered in
determining whether to cite a condition as a repeated flagrant violation. Wolf Run Mining
Company, 35 FMSHRC 536, 541 (Mar. 2013) (remanding for reconsideration of whether a
violation was properly designated as flagrant). Clearly, a history of violations may affect the
appropriate civil penalty to be assessed. However, the Commission has not articulated under
what circumstances, if any, a history of violations can elevate a violation, not otherwise meeting
the statutory criteria for a flagrant designation, to a repeated flagrant violation.2
1

The predicate citations identified by the Secretary are Order Nos. 4694424 and
8519255. Order No. 4694424 was issued on September 25, 2012, and is part of captioned Docket
No. SE 2013-399. Order No. 8519255, in Docket No. SE 2012-537, issued on December 22,
2012, was settled without modification. Judge Zielinski approved Oak Grove’s agreement to pay
the $70,000.00 civil penalty proposed by the Secretary. Unpublished Decision Approving Partial
Settlement, dated Feb. 18, 2014.
2

The Secretary now asserts that a relevant history of violations also meeting the
requirements for a flagrant violation with respect to gravity and negligence can serve as the basis
for a repeated flagrant violation. Sec’y Resp. to Order Scheduling Briefing, at 11 (Apr. 22, 2014).
The gravity penalty criterion under section 110(i) of the Mine Act is often viewed in terms of the
(continued…)

37 FMSHRC Page 435

Consequently, the parties were ordered to brief the question of the circumstances, if any,
under which an S&S violation that will contribute to, rather than proximately cause, serious
bodily injury or death, could be elevated to a flagrant violation. See Order Scheduling Briefing,
36 FMSHRC 815 (Mar. 2014) (ALJ). Notably, the Secretary conceded in his response brief that
“[b]oth reckless and repeated flagrant designations require violations that substantially and
proximately caused, or reasonably could have been expected to cause, death or serious bodily
injury.” Sec’y of Labor’s Response to Order Scheduling Briefing, at 6 (Apr. 22, 2014). In other
words, a violative condition that cannot reasonably be expected to be the proximate cause of
serious injury or death cannot be elevated to a flagrant violation simply based on previous
violations.
Following consideration of the parties’ briefs, an Order Requiring Secretary’s Prehearing
Statement (“Oak Grove Order”) was issued that identified the requisite criteria for establishing a
repeated flagrant violation under section 110(b)(2) of the Mine Act. Specifically, the requisite
criteria are as follows:
1. A repeated flagrant violation is a flagrant violation that is demonstrated by
either:
a. A repeated failure to eliminate the violation properly designated as
flagrant, or
b. A relevant history of violations that also meet the requirements for
a flagrant violation with respect to knowledge, causation and
gravity, as enumerated below.
2. A flagrant violation must be a known violation that is conspicuously
dangerous, in that it cannot reasonably escape notice.
3. A flagrant violation must be the substantial and proximate cause of death
or serious bodily injury that has occurred or can reasonably be expected to
occur.
a. A substantial and proximate cause is a dominant cause without
which death or serious bodily injury would not occur.
2

(…continued)
seriousness of the violation. Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March 1983),
aff’d, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681
(April 1987). Obviously, the gravity of a flagrant violation, which requires the violation to be the
substantial and proximate cause of death or serious bodily injury that had occurred, or could be
reasonably expected to occur, is greater than the gravity associated with the vast majority of
violations.

37 FMSHRC Page 436

b. A serious bodily injury is a grave injury that results in significant
debilitating and/or permanent impairment.
c. Such injury is reasonably expected to occur if there is a significant
probability of its occurrence.
36 FMSHRC 1777, 1789-90 (Jun. 2014) (ALJ).3 The Oak Grove Order required the Secretary to
file a prehearing brief addressing whether the cited violative condition in Order No. 8520664
satisfied the above criteria for repeated flagrant violation. The Secretary responded:
Because the accumulations included float coal dust and coal dust, they constituted
a significant and immediate source of fuel for a mine fire or an immediate source
of fuel for a coal dust explosion. An operating conveyor belt system in an
underground coal mine is an obvious and significant source of sparking and
burning hazards because of the presence of the belt conveyor, belt rollers and
other proximate sources of friction heat and ignition. In the present case, hard
packed coal fines were in contact with moving rollers on the belt line in multiple
locations along the belt entry. Given these ignition sources, it is reasonably
expected that, as normal operations continued, serious and/or deadly injures from
burns and smoke inhalation would result from a fire or explosion. These injuries
would be the proximate and direct result of the fire or explosion because the
accumulations would be the necessary fuel source that, when combined with
oxygen and an ignition source, would cause the fire or explosion. Because the
accumulations existed over a number of shifts and were known to multiple agents
of the operator, this violation standing alone constitutes a repeated flagrant
violation.
Sec’y Pre-Hearing Statement, at 2 (Aug. 7, 2014) (emphasis added). The Secretary’s response
did not directly address the central question in this proceeding in that it conflates the current
presence of ignition sources with the potential for future ignition sources, as well as the concepts
of contributory and proximate causes of injury. In essence, the Secretary’s response supports the
conclusion that virtually all prohibited coal dust accumulations in proximity to conveyer belts
can be properly designated as flagrant violations given potential ignition sources that may arise
during the course of continued mining operations.
3

In his response brief, the Secretary asserted that violations that expose miners to only
“lost workdays or restricted duty” can be designated as flagrant. Oak Grove Order, 36 FMSHRC
at 1787 (citing Sec’y of Labor’s Response to Order Scheduling Briefing, at 3). The Secretary also
argued that whether a violation itself will proximately cause serious injury or death, or whether a
violation will contribute to a hazard that will cause serious injury or death, is a distinction
without a difference that only shifts the burden of proof. Id. at 1785 (citing Sec’y of Labor’s
Response to Order Scheduling Briefing, at 4). The Oak Grove Order declined to afford the
Secretary Chevron deference because the Secretary’s statutory interpretation regarding the
degree of causation and gravity necessary to designate a violation as flagrant was determined to
be unreasonable. Id. at 1786-88. The Secretary did not seek interlocutory appeal of the denial of
Chevron deference.

37 FMSHRC Page 437

The Commission has been precluded from addressing the necessary criteria for
demonstrating a flagrant violation on several occasions. For example, in Conshor, the
Commission unanimously granted interlocutory review of the criteria for demonstrating a
repeated flagrant violation under section 110(b)(2). See Conshor Mining LLC, 34 FMSHRC 349
(Feb. 2012). However, the Commission subsequently granted the Secretary’s motion to vacate
the order granting interlocutory review after the Secretary deleted the subject flagrant
designations. 34 FMSHRC 571 (Mar. 2012). Similarly, in Wolf Run, the Commission was
prevented from ultimately addressing the requirements for a repeated flagrant violation after the
Secretary agreed in settlement to modify the subject order by removing the flagrant designation.
Unpublished Decision on Remand Approving Settlement in Wolf Run Mining Company, Docket
No. WEVA 2008-1565, dated Apr. 14, 2014; see also Wolf Run, 35 FMSHRC 536 (Mar. 2013).
Given the Secretary’s repeated failure in this proceeding to meaningfully address the
controlling question of law concerning the threshold requirements for a flagrant designation in
his briefing and prehearing statements, I certified to the Commission for interlocutory review the
order requiring briefing with respect to the Secretary’s burden of proof for demonstrating a
repeated flagrant violation. Cert. for Interloc. Rev., 36 FMSHRC 2397 (Aug. 2014) (ALJ); 29
C.F.R. § 2700.76(a)(1)(i). On September 9, 2014, the Commission denied interlocutory review
because the request for review concerned the propriety of ordering the Secretary to submit a
prehearing statement, rather than a controlling question of law. 36 FMSHRC 2412 (Sept. 2014).
Thus, the Commission concluded that granting review at that time would amount to “an advisory
opinion on an abstract legal principle.” Id. at 2411.
Consequently, the threshold issue remains whether the accumulation conditions, as cited
in Order No. 8520664, satisfy the above-enumerated criteria necessary to demonstrate a repeated
flagrant violation under section 110(b)(2). A further delay of a binding appellate resolution of
this important question is neither in the Secretary’s nor the mining industry’s best interest. This
issue, which concerns a controlling question of law that will materially advance the ultimate
disposition of these proceedings, can best be resolved through oral argument. As such, this issue
IS HEREBY SCHEDULED for oral argument on Wednesday, March 4, 2015, at 10:00 a.m.
The oral argument will be held at the Commission’s headquarters in Washington, DC, at the
following address:
Federal Mine Safety and Health Review Commission
Richard V. Backley Hearing Room
Fifth Floor, Room 511N
1331 Pennsylvania Avenue, NW
Washington, DC 20004

37 FMSHRC Page 438

In preparing for oral argument, the parties should assume that the facts are viewed in a
light most favorable to the Secretary with regard to the nature and extent of the cited
accumulations in Order No. 8520664. In this regard, the issue is whether the cited accumulations
in Order No. 8520664 state a cause of action for a flagrant violation under the aforementioned
criteria. In particular, the parties should be prepared to discuss the following:
1) A proximate cause is “a cause that directly produces an event and without which the
event would not have occurred.” Black’s Law Dictionary 213 (7th ed. 1999). As such, can
the coal dust accumulations in proximity to properly-functioning conveyer belts, as cited
in Order No. 8520664, be the proximate cause of a fire or explosion? In answering this
question, the parties should address:
a. The distinction, if any, between “sources of ignition” and “potential sources of
ignition.” See Oak Grove Order, 35 FMSHRC at 1790;
b. Whether the cited coal dust accumulations themselves, rather than the ignition and
resultant combustion of such accumulations, can be properly considered to be the
proximate cause of a fire or explosion;
i. In addressing (b), the parties should consider the distinction, if any,
between a violation that contributes to a hazard, as required to support an
S&S designation, from a violation that, in and of itself, is a substantial,
proximate, and dominant cause of potential death or serious bodily harm.
Musser Eng’g, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (holding that
the test for S&S is whether there is a reasonably likelihood that the hazard
contributed to by the violation will cause injury, and that the Secretary
need not prove a reasonable likelihood that the violation itself will cause
injury);
c. Whether propagation of the cited coal dust accumulations can be the proximate
cause of an explosion, or whether such propagation would be a post-explosion
event;
d. Given the absence of a present ignition source due to a conveyer belt malfunction,
as reflected by Order No. 8520664, whether potential ignition sources (such as
defective heat-producing rollers or misaligned friction-producing belts) that occur
during the course of continued mining operations are sufficient to satisfy the
proximate cause criteria in section 110(b)(2);
e. Violations of Section 75.400 are the most frequently cited violations of mandatory
safety standards in underground coal mines.4 Therefore, if the answer to (d) is
4

Citations concerning section 75.400 violations constituted approximately 10 percent of
all citations issued in 2013 and 11 percent of all citations issued in 2014. MSHA, Most
Frequently Cited Standards, www.msha.gov/stats/top20viols/top20viols.asp (accessed January
28, 2015).

37 FMSHRC Page 439

“yes,” the parties should address whether the vast majority of section 75.400
violations satisfy the flagrant criteria in section 110(b)(2);
2) It is not uncommon for accumulations to contact rollers given the rollers’ close proximity
to the ground. As such, do “[t]he hard packed coal fines [that] were in contact with
[properly-functioning] moving roller[s] on the belt line in multiple locations along the
belt entry,” as cited in Order No. 8520664, provide an adequate basis for a flagrant
designation?
a. If the answer is “no,” under what circumstances can accumulations along and
under conveyer belt structures be properly designated as flagrant violations?
b. In addressing this question, the parties should be mindful of section 75.1731(a),
which provides that damaged rollers or conveyer belt components that pose a fire
hazard must be immediately repaired or replaced;
3) The parties should endeavor to stipulate to the location of the cited accumulations in
Order No. 8520664 with respect to their distance from the working face. In this regard,
the parties should submit a pertinent mine map;
4) Assuming the accumulations cited in Order No. 8520664 are conspicuously dangerous
because they can proximately cause substantial bodily injury or death, the Secretary
should address why the violation was attributed to high negligence, rather than reckless
conduct. And;
5) In the final analysis, the parties should address whether designating the coal dust
accumulations cited in Order No. 8520664 as flagrant, conflates the requirements for
S&S and unwarrantable conduct with the requirements for flagrant designations.
The parties may present any additional facts, arguments, or case law that they deem
appropriate.
Any person who plans to attend this oral argument and requires special accessibility
features and/or any auxiliary aids, such as sign language interpreters, must request them in
advance (subject to the limitations set forth in § 2706.160(d)).

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge

37 FMSHRC Page 440

Distribution:
Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street,
Suite 230, Nashville, TN 37219
W. Christian Schumann, Esq., U.S. Department of Labor, Office of the Solicitor,
1100 Wilson Blvd., Room 2220, Arlington, VA 22209
R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500,
401 Liberty Avenue, Pittsburgh, PA 15222
/acp

37 FMSHRC Page 441

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

February 9, 2015
DISCRIMINATION PROCEEDING

FRANK SICA,
Complainant,

Docket No. WEST 2014-615-DM
RM MD 2014-07

v.
JACOBS FIELD SERVICES,
Respondent.

Mine: Freeport-McMoRan Morenci Inc.
Mine ID 02-00024 1PL

ORDER DISMISSING DISCRIMINATION COMPLAINT
Before:

Judge Simonton

This matter is before me pursuant to section 105(c)(3) of the Federal Mine Safety and
Health Act of 1977 (“Act”). 30 U.S.C. § 815 (c)(3). The Complainant, Frank Sica, filed a section
105(c)(3) complaint with the Commission on May 6, 2014. Compl. The Respondent filed an
Answer and Motion to Dismiss with the court on November 7, 2014. Resp. Ans. The
Complainant submitted a response with additional documents on December 1, 2014.1 The
Respondent subsequently filed a reply brief along with several additional affidavits on December
31, 2014. After carefully reviewing Mr. Sica’s complaint and subsequent filings, the
Respondent’s Motion to Dismiss is GRANTED and this matter is DISMISSED.
I.

PROCEDURAL BACKGROUND

Mr. Sica worked for the Respondent from approximately February 3, 2014 to February
14, 2014 at the Morenci Mine in Greenlee County, Arizona.2 Compl., 1; Resp. Ans., 2. The
Respondent terminated Sica’s employment on February 15, 2014.3 Compl., 1; Resp. Ans., 2. Sica
filed a discrimination complaint with the Mine Safety and Health Administration (MSHA) on
February 19, 2014. February 2014 MSHA Complaint, 1. On March 27, 2014 MSHA notified
Complainant Sica that it had determined there was not sufficient evidence to establish that a
violation of section 105(c) occurred. Compl., 2-3. Complainant subsequently filed a section
105(c)(3) complaint with the Commission on May 6, 2014. Compl., 1. He sent a copy of his
1

The court did not receive the Complainant’s filings until December 18, 2014 due to
internal technical difficulties. December 22, 2014 Order to Disregard.
2

It appears that Mr. Sica participated in workplace orientation, safety training and a
medical evaluation with Jacobs Field Services from January 27, 2014 to February 3, 2014 prior
to beginning work at the Metcalf Mill project at the Morenci Mine. Resp. Ans., 2-3.
3

Respondent’s management escorted Sica from mine premises on February 14, 2014.
February 2014 MSHA Compl., 3-4; Resp. Ans. 4. Respondent’s management made the final
decision to terminate Sica’s employment on February 15, 2014. Resp. Ans. 4: Ex. I.

37 FMSHRC Page 442

Complaint by certified mail to the Respondent at an address of 4949 Essen Lane, Baton Rouge,
LA 70809. Response to Deficiency Letter. On June 26, 2014, the Chief Judge ordered the
Respondent to answer the complaint within 30 days and distributed this order to the Louisiana
address provided by the Complainant. Order to Respondent to Answer.
On October 7, 2014 the Chief Judge assigned this docket to the undersigned judge. Order
of Assignment. After noting that Jacobs Field Services MSHA Contractor ID number listed an
Arizona address, the court contacted Respondent’s Tuscon, Arizona office. The court was
informed by Jacob’s Safety Manager, Dan Warter, that the Respondent had no knowledge of
Sica’s 105(c)(3) complaint. The court then forwarded Sica’s complaint to Respondent’s counsel
and ordered the Respondent to submit an answer by November 7, 2014. The Respondent filed an
Answer and Motion to Dismiss on November 7, 2014. Resp. Ans.
II.

105(C)(3) COMPLAINT

Mr. Sica’s May 6, 2014 Complaint states that he was “a member of a protected class as a
new miner” with Jacobs Field Services. Compl., 1. Complainant alleges that Respondent’s
company policies state that new miners were to be treated with tolerance for the first 30 days of
employment regarding mining rules and guidelines. Id. Sica alleged that he was fired after 9 days
on the job and given no leniency whatsoever. Id. He also stated that he sought re-instatement and
monetary compensation from February 15, 2014 to February 29, 2014. Id.
Complainant attached a copy of his original February 19, 2014 complaint to MSHA
within his filing. This filing states as follows:
On February, 14, 2014 at approximately 1:00 am I was told by
safety hand named MAUCKE? of Jacobs Field Services that I had
to be tied off on a scaffold walk way.
I tried to explain to him that 2 days prior- another safety hand told
both me and my working partner that we didn’t have to be tied off
on the 100% complete-scaffold walkway and that we only had to
be tied off on the unguarded decking which was midway between
the ground floor and the scaffolding walkway- where we were
working each night.
After a long discussion between safety hand- MAUCKE and me,
my working partner my temporary foreman- Ozzie- my general
foreman- Mickey- the safety hand that told both of us days priorthat we didn’t have to be tied off – the scaffold foreman- Sergiowho was responsible for tagging the scaffold
Maucke said it was up to my General Foreman to decide what to
do about the situation and then Maucke left …
February 2014 MSHA Complaint, 1.

37 FMSHRC Page 443

Complainant then alleges that he was escorted to the general foreman’s office where he
was informed that he was being “run off.” February 2014 MSHA Complaint, 2. He states that he
was not given an explanation for his dismissal or any termination paperwork. Id. Sica states that
he was escorted from the mine site in a rushed fashion. Id. at 3. He further alleges that safety
hand Maucke never issued any correction to the other safety hand for previously providing
incorrect tie-off instruction to Sica and his partner. Id. at 4. Sica similarly states that Maucke
failed to reprimand the scaffold foreman Sergio for not properly marking the scaffold walkway
as a 100% tie off area. Id.
In the Complainant’s December 1, 2014 filing, he alleges that his temporary foreman
Ozzie fired him to protect himself from disciplinary action from Respondent’s management. Sica
states that Ozzie had violated company policy by assigning him to work alone on the scaffold.
Sica Response, 3-4. Sica states that he applied to work for other contractors at the Morenci mine
but was informed that that he was banned from the site for three years. Complainant states that
Respondent’s personnel informed him that he had been banned from the site for calling people
“peons.” He later alleges that Respondent has a,
commitment to fire people on a daily basis – to use as a fear tacticto keep people job-scared and to install fear in all its employeesmost of which are Mexicans and Navaho Indians- who do not have
a thorough understanding of the English language or any idea
whatsoever about their legal rights- OSHA-MSHA-EEOCNLRB…
Sica Response, 12.
Complainant disputes the Respondent’s description of his interaction with scaffold
foreman Tavarez but states that “I explained to Tavarez that I was already told by Safety that we
didn’t have to tie off!” Id. at 13. He also denies running away from Respondent’s Safety
personnel and claims that he could have slipped away if he had wanted but remained on the
scaffold because “I was convinced I was in the right!” Id. at 14. Sica disputes that there were
multiple 100% tie off signs and contends that only 1 or 2 100 % tie off signs were in place on
that area of the scaffold. Id. at 15.
Complainant also submitted copies of statements he had previously submitted to MSHA
in support of his discrimination complaint. In addition to detailing the claims listed above, Sica
alleges that Respondent ordered mass layoffs and cursory terminations on a routine basis in order
to instill fear in the workforce. Sica Additional Comments March 8, 2014, 4. Sica also states that
vandalism occurred at the Morenci mine on a daily basis during his employment there. Sica
Additional Comments March 14, 2014, 6.

37 FMSHRC Page 444

Referencing the vandalism, Complainant stated that following his termination
“I must say- I understand completely now- what would drive a
person to commit these acts!”
Id. at 7.
III. RESPONDENT’S ANSWER AND MOTION TO DISMISS
The Respondent filed an answer and motion to dismiss on November 7, 2010. Resp. Ans.
Within, the Respondent submitted a statement of facts which is summarized as follows. Resp.
Ans., 2-4. The Respondent stated that Complainant completed his medical evaluation and new
miner training from January 27, 2014 to February 3, 2014. Resp. Ans., 2. This new miner
training included fall protection and scaffold training. Id.; Resp. Ans.: Ex. E. The Respondent
stated that on February 14, 2014, Safety Supervisor Michael Mauck received a radio call from a
scaffold foreman reporting that an employee was refusing to properly tie-off on a fifteen foot
high scaffold. Id. at 3.: Ex. F. Mauck directed other safety team members to the area. Id. When
those safety personnel arrived at the scaffold, Complainant ran away without tying off. Resp.
Ans., 3: Ex. G. Eventually, the safety team was able to corner Sica and waited for Mauck to
arrive. Id. According to Respondent’s employees, Complainant directed abusive and
insubordinate language towards the scaffold crew while waiting for Mauck. Id.
Once he arrived, Mauck questioned Complainant on why he was not tied off. Resp. Ans.,
3. Sica responded that he was previously told that tie off was not necessary in that area and that
he did not have to listen to the scaffold foreman because they were “peons.” Id. at 3-4. Mauck
pointed out to Complainant that there were multiple 100% tie off signs on the scaffold. Id. at 3.
Other Respondent supervisors then arrived on the scene who escorted Sica away from the
scaffold. Id. at 4. On February 15, 2014, Respondent’s management then decided to terminate
Complainant for his failure to tie off, running without fall protection, and insubordinate behavior.
Id. The Respondent provided signed statements, work training logs, and termination records to
support their statement of facts. Resp. Ans.: Ex. A-N.
The Respondent moved at the end of their answer to dismiss this matter pursuant to
Federal Rule of Civil Procedure 12(b)(6). Resp. Ans., 7. The Respondent asserts that as Sica has
not alleged or described any protected activity, “it is beyond doubt that Complainant can prove
no set of facts in support of his claim which would entitle him to relief.” Id. at 7-8; Perry v.
Phelps Dodge Morenci, Inc., 18 FMSHRC 1918, 1920 (Nov. 1996).
IV. ANALYSIS
A. Commission Standard for Motions to Dismiss Section 105(c) Actions
The Commission's procedural rules do not provide formal guidance on a motion to
dismiss for failure to state a claim. However, Commission judges addressing similar motions
have been guided by Federal Rules of Civil Procedure 12(b)(6) and 12(c) and treated those
filings as motions for summary decision. See e.g., Mona Kerlock v. ASARCO, 2014 WL 4387693,

37 FMSHRC Page 445

(ALJ Miller)(Aug. 2014); Sec'y of Labor o/b/o Chaparro v. Comunidad Argricola Bianci, Inc.,
32 FMSHRC 1517 (Oct. 2010) (ALJ Barbour). I have likewise addressed the Respondent's
motion to dismiss as I would a motion for summary decision under Commission Procedural Rule
67, which requires the moving party to show:
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 CFR § 2700.67.
Additionally, it is well established that a “motion to dismiss for failure to state a claim
(for section 105(c) proceedings) is viewed with disfavor and is rarely granted.” Phelps Dodge, 18
FMSHRC 1920. Furthermore, the pleadings of pro se complainants are held “to less stringent
standards than pleadings drafted by attorneys.” Id. Indeed, it is clear that 105(c) complainants are
not required to submit extensive offers of proof or demonstrate a likelihood of ultimate success
at the pleading stage. Mona Kerlock v. Asarco, LLC, 36 FMSHRC 2404, 2405 (ALJ
Miller)(August 2014); Secretary of Labor obo Jennifer Morreale v. Veris Gold, _ slip opinion
(ALJ Simonton)(November 2014).
Instead, Commission Rule § 2700.42 only requires a Complainant to submit a “short and
plain statement of the facts, setting forth the alleged discharge, discrimination or interference,
and a statement of the relief requested.” 29 CFR § 2700.42. The Commission has also long held
that in order to establish a prima facie case under Section 105(c)(1), a complaining miner must
show that,
1) He engaged in protected activity; and,
2) That the adverse action he complains of was motivated at least partially by that
activity.
Sec’y of Labor o/b/o Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980); Sec’y of
Labor o/b/o Robinette v United Castle Coal Co., 3 FMSHRC 803, 817 (Apr. 1981)).
As stated earlier, it is not necessary for a Complainant to establish a prima facie case of
discrimination through extensive offers of proof at the pleading stage. Mona Kerlock v. Asarco,
LLC, 36 FMSHRC 2405 Secretary of Labor obo Jennifer Morreale v. Veris Gold, _ slip opinion.
However, an ALJ has granted a motion to dismiss for failure to state a claim when a pro se
complainant failed to allege or describe any protected activity. Jason Sheperd v. Black Hills
Bentonite, 25 FMSHRC 129,133 (ALJ Manning)(March 2003) (holding that suffering a
workplace injury during the normal work activities did not constitute a protected activity).

37 FMSHRC Page 446

B. The Complainant Has Not Submitted a Supportable Claim of Protected Activity
After reviewing all of the parties’ submissions, I find that there are no material disputes
of fact in this matter as the parties have submitted filings indicating that:
1. Complainant worked for Respondent from approximately Feb 3, 2014 to February 14,
2014. Compl., 1; Resp. Ans. 3.
2. Complainant had received employee safety training and orientation, including fall
protection training during his workplace orientation with Respondent. Sica Response,
11; Sica Feb. 21, 2014 MSHA Statement; Resp. Ans.: Ex. E.
3. Complainant was not tied off on a scaffold on the morning of February 14, 2014.
February 2014 MSHA Compl., 1; Resp. Ans. 3.
4. Respondent directed Complainant to leave the mine site on February 14, 2014.
February 2014 MSHA Compl., 2-4; Resp. Ans. 4.
5. Complainant had not filed any safety complaints with Respondent, the Morenci Mine,
or MSHA prior to his termination on February 15, 2014. Compl.; February 2014
MSHA Compl.; Resp. Ans., 1.
6. Respondent officially terminated Complainant’s employment on February 15, 2014.
Resp. Ans: Ex. I.
Furthermore, after evaluating all submissions in the light most favorable to the
Complainant, I find that he has not described any actions that could be construed as protected
activity. Instead, Complainant initially contended that as a newly hired employee, he was a
member of a protected class. Compl., 1. However, newly hired miners do not receive any special
treatment under the Act, as section 105(c)(1) only protects those miners or applicants who have
exercised their statutory rights under the Mine Act. 30 USC 815(c)1. Indeed,
(The) Commission does not sit as a super grievance board to judge
the industrial merits, fairness, reasonableness, or wisdom of an
operator's employment policies except insofar as those policies
may conflict with rights granted under section 105(c) of the Mine
Act.
Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 2544 (December 1990).
The only specific work activity described by Mr. Sica within his complaint and
subsequent filing is his decision not to tie off while on a scaffold platform. February 2014
MSHA Complaint, 1. This court cannot conceive of a set of circumstances in which a refusal to
use an available safety measure would constitute protected activity.
At the end of his original complaint to MSHA, Complainant also contends that
Respondent’s management failed to reprimand other employees for allegedly incorrect tie-off
instruction and failure to post tie-off signs. Id. at 4. However, Sica does not allege that he raised
any safety concerns regarding the conduct of these other employees to the Respondent or MSHA
prior to his reprimand for not tying off. Furthermore, Complainant’s own filings indicate that
after being confronted by Respondent’s safety team, he continued to insist he did not have to tie

37 FMSHRC Page 447

off on that scaffold level. February 2014 MSHA Compl., 1. Thus, even when accepted as true,
Complainant’s allegations regarding other employee’s conduct would not indicate that Mr. Sica
himself undertook any protected activity.
Similarly, Complainant’s claim that his foreman improperly instructed him to work on
the scaffold by himself, even if accepted as true, does not stand as protected activity.4
Complainant did not submit any complaints to the Respondent or MSHA regarding this
assignment. More critically, Mr. Sica himself has repeatedly confirmed that the confrontation
that occurred on the scaffold revolved exclusively around his continued insistence that he did not
have to tie off on that scaffold level. February 2014 MSHA Complaint, 1; Sica Response, 13-14.
Therefore, although this case involves the enforcement of Respondent’s safety plan,
Complainant has not claimed that he attempted to exercise any statutory rights under the Mine
Act. In fact, he has repeatedly stated that he chose not to tie off while working on a scaffold and
that this action led to his confrontation with the Respondent’s safety team. February 2014
Complaint, 1-2; Feb 3. 2014 Statement 7-11; Sica Response, 13-16. By filing a discrimination
claim on that basis, Complainant appears to contend that section 105(c) provides miners the right
not to comply with Mine Act regulations and industry safety standards. The Commission could
not validly uphold such a claim as it would contradict the very purpose of encouraging individual
miners to report and correct safety concerns. 30 USC 815 (c)(1).
Put simply, section 105(c)(1) does not shield workers who refuse to use available safety
measures from resulting disciplinary action. For these reasons, I find that the Complainant has
not submitted a supportable claim of protected activity. Accordingly, the Respondent is entitled
to summary judgment as a matter of law and the Motion to Dismiss is GRANTED.
C. The Complainant’s Filings Do Not Meet the Less Stringent Pro Se Pleading
Standard
As stated above, the pleadings of pro se complainants are held “to less stringent standards
than pleadings drafted by attorneys.” Phelps Dodge, 18 FMSHRC 1920. With this standard in
mind, the court provided the Complainant every opportunity to support his claim. The court
issued a prehearing order to both parties that stated in plain terms the standards by which the
Complainant’s 105(c)(3) claim would be evaluated. October 15, 2014 Prehearing Order. At the
Complainant’s request, all case files, correspondence, and subsequent filings were e-mailed
directly to him. After the Respondent filed a Motion to Dismiss, the court’s clerk sent
Complainant an e-mail outlining summary judgment standards and procedures. The court
reviewed Mr. Sica’s complaint and filings only to determine whether or not the Complainant has
alleged facts that could be interpreted to describe any “discrimination or interference” as
required by Commission Rule 30 CFR § 2700.42.
4

While not relied upon in my ultimate ruling, Complainant’s own filing indicates that he
was not in fact working by himself at the time of the incident as he clearly states that he was
working only 12 feet above the group of eight scaffold builders and a foreman who initially
asked him to tie off. Sica Statement February, 21, 2014, 8. He also emphasizes the fact that there
was not a problem communicating with this group of workers. Id.

37 FMSHRC Page 448

When viewing the record in the light most favorable to the Complainant, as is required by
the summary judgment standard, I find no circumstances whereby a violation of section 105(c) 1
of the Mine Act could be established absent an allegation of protected activity. Since
Complainant’s filings cannot be considered to describe any protected activity, discrimination or
interference, the Commission is not an appropriate venue for Complainant to contest his
termination.
V.

ORDER

For the reasons stated above, this matter is DISMISSED. The Complainant may appeal
this decision with the Commission within 30 days of the Order. 30 USC 815(c)(3).

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge
Distribution: (U.S. First Class Mail)
Frank Sica, 1380 North U.S. HWY 95-A, Building 2, Suite 136 Fernley, NV 89408
Robert Hamilton, Key Harrington Barnes, P.C., 3710 Rawlins Street, Suite 950 Dallas, TX
75219

37 FMSHRC Page 449

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

February 17, 2015
CLARKSON CONSTRUCTION
COMPANY, INC.,
Contestant

CONTEST PROCEEDINGS
Docket No. CENT 2014-588-RM
Order No. 8760683; 08/05/2014

v.

Docket No. CENT 2014-589-RM
Citation No. 8760684; 08/05/2014

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

Docket No. CENT 2014-590-RM
Order No. 8760685; 08/05/2014
Docket No. CENT 2014-591-RM
Order No. 8760686; 08/05/2014
Bonner Springs Quarry
Mine ID 14-01578 KTL

ORDER GRANTING CONTESTANT CLARKSON CONSTRUCTION’S MOTION FOR
SUMMARY DECISION
These cases are before me upon notices of contest filed by Clarkson Construction
Company, Inc. (“Clarkson”) pursuant to section 105 of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 815 (the “Mine Act” or “Act”). The parties agreed to file cross-motions for
summary decision on the sole issue of whether MSHA had jurisdiction to issue the subject
citation and orders. The parties agreed to 13 stipulated facts to use in conjunction with their
cross-motions. The parties both assert that no material facts are in dispute and that jurisdiction
should be decided based upon the stipulations before me.
I.

STIPULATED FACTS

1. Clarkson Construction has not performed any services or construction at a mine site for
approximately five years.
2. Clarkson Construction has a cement batch plant that is located on property owned by
APAC-Kansas, Inc.
3. The batch plant is located at the Bonner Springs Quarry, approximately 200 feet from
the office/scale house.
4. APAC-Kansas, Inc., supplies material for the batch plant from its Bonner Springs
Quarry to a stockpile near the batch plant.

37 FMSHRC Page 450

5. Clarkson Construction is a customer of APAC-Kansas, Inc.
6. APAC-Kansas, Inc.’s employees or contractors deliver material from Bonner Springs
Quarry to a stockpile near the batch plant.
7. Clarkson Construction does not have a contract with APAC-Kansas, Inc. to perform
services or construction at the Bonner Springs Quarry.
8. Clarkson Construction’s employees who operate the batch plant have received sitespecific hazard training.
9. On August 5, 2014, two Clarkson Construction trucks pulled into the Bonner Springs
Quarry to tarp truck beds.
10. The tarping area of the mine is approximately 200 yards from the entrance to the
mine property.
11. The Clarkson Construction employees driving the trucks did not perform any services
or construction at the Bonner Springs Quarry on August 5, 2014.
12. Steve Gilbreath has not worked at any mine site while employed by Clarkson
Construction.
13. It is the responsibility of the operator of a mine to enforce mandatory safety standards
on all vehicles entering the mine property.
II.

BACKGROUND

MSHA Inspector Sidney Garay issued the citation and orders contested in these cases to
Clarkson on August 5, 2014, as a result of a single incident at the tarping station near the
entrance to the Bonner Springs Quarry, which is owned and operated by APAC-Kansas, Inc.
(“APAC”). Clarkson operates a batch plant located on quarry property. The batch plant is subject
to inspection by the Department of Labor’s Occupational Safety and Health Administration.
Under the Interagency Agreement, MSHA does not have jurisdiction over the batch plant. 44 Fed
Reg 22827 (Apr. 17, 1979) amended by 48 Fed Reg 7,521 (Feb. 22 1983).
On August 5, 2014, Inspector Garay issued one citation, Citation No. 8760684, and two
orders, Order Nos. 8760685 and 8760686, to Clarkson under section 104(a) of the Mine Act. He
also issued Order No. 8760683 under section 107(a) of the Act. Citation No. 8760684 and Order
No. 8760683 both state, in part:
The two truck drivers were not wearing fall protection (Safety Belts and Lines)
while climbing on the side of the dump bed, in the dump bed and on top of the
headache rack of the Freightliner dump truck, Co#8212, DOT#087210. In
addition the truck[’]s engine was running and the wheels were not chocked
against motion. The freightliner dump truck was parked in the tarping area of the

37 FMSHRC Page 451

mine. The two truck drivers and the truck foreman were exposed to a fall off the
dump truck bed, blunt force, impact fatal injury.
(Ex. G-A at 1, 3). Order No. 8760685 states, in part:
The Freightliner Dump Truck, Co. #8212, DOT#087210 was left unattended with
the engine running and wheels not chocked against motion, two truck drivers
were working in the dump truck bed area, one in the bed, one hanging on the side
of the bed and the truck supervisor standing on the tarping catwalk next to the
dump truck.
(Ex. G-A 5). Order No. 8760686 states, in part, that “[t]here were persons working near the
unattended dump truck[.]” (Ex. G-A at 7).
III.

DISCUSSION AND ANALYSIS

I find that there are no disputed material facts and Clarkson is entitled to summary
decision as a matter of law because MSHA lacked jurisdiction over Clarkson; I therefore vacate
Citation No. 8760684 and Order Nos. 87606843, 8760685, and 8760686.
Under the Mine Act, the term “operator” is defined as “any owner, lessee, or other person
who operates, controls, or supervises a coal or other mine or any independent contractor
performing services or construction at such mine.” 30 U.S.C. § 802(d). Although the Act does
not provide a definition for independent contractor, MSHA regulations do, asserting that the term
“means any person, partnership, and corporation, subsidiary of a corporation, firm, association or
other organization that contracts to perform services or construction at a mine.” 30 CFR §
45.2(c). The Commission has held that any independent contractor that performs “more than de
minimus services at a mine” is an operator under § 802(d). Musser Engineering Inc., and PBS
Coal Inc., 32 FMSHRC 1257, 1268 (Oct. 2010); See Northern Illinois Steel Co. v. Sec'y of
Labor, 294 F.3d 844, 848 (7th Cir. 2002); Joy Technologies Inc., Coal Field Operations v. Sec'y
of Labor, 99 F.3d 991, 999-1000 (10th Cir. 2002); Otis Elevator Co. v. Sec'y of Labor, 921 F.2d
1285, 1290 (D.C. Cir. 1990). Although jurisdiction is a legal question, it is highly influenced by
factual considerations; the “totality of work” performed upon the pertinent project, not just the
work relating to the underlying citations, “must be considered on the jurisdiction issue.” Musser,
32 FMSHRC at 1269.
I must consider the above law and the undisputed facts before me in the context of a
summary decision. Commission Procedural Rule 67 sets forth the grounds for granting summary
decision, as follows:
A motion for summary decision shall be granted only if the entire
record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows:
(1) That there is no genuine issue as to any material fact; and
(2) That the moving party is entitled to summary decision as a
matter of law.

37 FMSHRC Page 452

29 C.F.R. § 2700.67(b). The Commission has long recognized that “summary decision is an
extraordinary procedure.”’ Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994)
(quoting Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981)). The Commission has also
analogized Commission Procedural Rule 67 to Federal Rule of Civil Procedure 56. Hanson
Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007); See Also Energy West, 16 FMSHRC
at 1419 (citing Celotex Corp v. Cartrett, 477 U.S. 317, 237 (1986)).
When the Commission reviews a summary decision under Comm. P. R. 67, it looks “ ‘at
the record on summary judgment in the light most favorable to … the party opposing the
motion,’ and that ‘the inferences to be drawn from the underlying facts contained in [the]
materials [supporting the motion] must be viewed in the light most favorable to the party
opposing the motion.’ ” Hanson Aggregates New York Inc., 29 FMSHRC at 9 (quoting Poller v.
Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962); United States v. Diebold, Inc., 369
U.S. 654, 655 (1962)).
I find that Clarkson did not perform more than de minimus services at the Bonner Springs
Quarry, was not an independent contractor or operator under the Mine Act, and not subject to
MSHA’s jurisdiction. The first of the 13 facts stipulated to by the parties is “Clarkson
Construction has not performed any services or construction at a mine site for approximately five
years.” Joint Stip. at 1. The parties stipulate, furthermore, that “[t]he Clarkson Construction
employees driving the trucks did not perform any services or construction at the Bonner Springs
Quarry on August 5, 2014.” Joint Stip. at 11. The Mine Act mandates broad jurisdiction for
MSHA to regulate independent contractors. See Sec'y of Labor v. Twentymile Coal Co., 456 F.3d
151, 154 (D.C. Cir. 2006). Clarkson, however, is not an independent contractor at the Bonner
Springs quarry as that term is used in the Mine Act. Clarkson has no contract to perform services
for Bonner Springs quarry and does not perform any services for APAC. Considering Clarkson’s
actions beyond the underlying citations, its totality of work was not only de minimus, but, as the
parties stipulate, nonexistent.1 Under the stipulated facts, Clarkson Construction was not an
operator or independent contractor under the Mine Act and therefore MSHA could not cite
Clarkson for the alleged violations at issue in these cases.2
1

Clarkson controls a batch plant adjacent to the mine, but that plant is not under MSHA’s
jurisdiction. 44 Fed Reg 22827 at ¶ B.6.b. Clarkson’s operation of the batch plant is not a service
for APAC and does not provide a connection or presence at the mine upon which MSHA
jurisdiction can be based.
2

In N. Illinois Steel Supply Co., a company’s employees routinely drove vehicles onto a
mine property and helped unload those vehicles, but the Seventh Circuit found that the company
was not subject to Mine Act jurisdiction. 294 F.3d at 848-49. The case before me does not
include a regular, scheduled occurrence, but rather a single instance of employees utilizing a
tarping station located 200 feet from the entrance to mine property, which was not at the behest
of APAC and was not for APAC’s benefit. The entity in N. Illinois Supply Co. performed
services for a mine and entered that mine on a regular basis, but its actions were de minimus and
did not subject it to MSHA’s jurisdiction. Although it regularly uses roads appurtenant to the
quarry, Clarkson performed no services for APAC; N. Illinois Supply Co. suggests that Clarkson
is not subject to MSHA’s jurisdiction.

37 FMSHRC Page 453

The Secretary argues that the Clarkson employees cited in these violations entered mine
property and therefore fall under the jurisdiction of the Mine Act. Clarkson’s use of mine roads
alone does not confer MSHA jurisdiction over Clarkson. Sec’y of Labor v. Nat’l Cement Co. of
Cal., Inc., 573 F.3d 788, 795–97 (D.C. Cir. 2009). The Secretary cites numerous Commission
cases to support his assertion; these cases, however, do not hold that an entity such as Clarkson
falls under MSHA’s jurisdiction.3 The question before me is not whether MSHA has jurisdiction
over the tarping area, but whether MSHA has jurisdiction to issue citations to Clarkson. Even
assuming that MSHA has jurisdiction to issue citations for violations of safety standards that
occur at the tarping area, I find that MSHA does not have jurisdiction to cite Clarkson for that
conduct.4
The Secretary focuses upon MSHA’s broad jurisdiction and cites instances where courts
upheld that jurisdiction, but he does not provide precedent or convincing arguments that
Clarkson is an operator or independent contractor that is subject to that jurisdiction. The
Secretary stipulated that Clarkson performed no services at the mine; the Commission
determines jurisdiction of an entity based upon its services performed for the mine. Although
broad, MSHA’s jurisdiction is not universal and must be based upon specific facts.5 The
stipulations do not show that Clarkson regularly used the tarping station, but they do show that
any use that occurred was not in service of APAC and was not related to mining. Clarkson’s
3

The Secretary cites Calmat Company of Arizona, which focuses upon MSHA
jurisdiction of a dual use area that was used by a batch plant and a mine. 27 FMSHRC 617 (Sept.
2005). In the present case, however, Clarkson does not dispute that the cited area, or the road
appurtenant to the mine, are “at a mine.” At issue is Clarkson’s status as an independent
contractor or mine operator. The Commission did not address this issue in Calmat “[b]ecause the
alleged violations involve an independent contractor performing work on mining equipment
under the direction of a mine employee in a dual-use area[.]” Id at 624. Clarkson is not an
independent contractor and did not work at the direction of APAC or utilize mining equipment.
In Calmat, moreover, MSHA cited the mine operator and not its independent contractor. Id. The
Commission’s analysis in Calmat does not consider the independent contractor status of an
entity; it also does not suggest that MSHA has jurisdiction over Clarkson.
4

I do not reach the issue of whether MSHA has jurisdiction to cite APAC for actions of
Clarkson employees or for actions of any entity at the tarping facility; the issue before me is
whether MSHA has jurisdiction to cite Clarkson as an independent contractor.
5

The Secretary argues that his interpretation of the Act should be afforded deference and
MSHA should have jurisdiction over Clarkson; I do not afford that deference. The language of
the Act is clear; for MSHA to exercise jurisdiction, an entity must be an operator or independent
contractor. Clarkson performed no services at a mine and therefore cannot be an operator or
independent contractor. Even if the language were ambiguous, furthermore, the Secretary’s
interpretation could not be afforded deference because it is unreasonable. Bowles v. Seminole
Rock & Sand Co., 325 U.S. 410, 414 (1945); Auer v. Robbins, 519 U.S. 452, 461 (1997); Udall
v. Tallman, 380 U.S. 1, 18 (1965). The Secretary’s interpretation would give MSHA jurisdiction
over every person and entity who steps onto mine property, from children on field trips to
trespassers.

37 FMSHRC Page 454

status as a customer of the quarry,6 its operation of the adjacent batch plant, and its use of the
road leading to the mine to access that batch plant do not make it an independent contractor.
Clarkson did not perform services at a mine; therefore, Commission precedent and the
clear language of the Mine Act dictate that Clarkson was neither an operator nor independent
contractor. I find that as a matter of law, Clarkson is entitled to summary decision because
MSHA did not have jurisdiction over Clarkson when it issued the subject citation and orders.
IV.

ORDER

I hereby VACATE Citation No. 8760684 and Order Nos. 8760683, 8760685, and
8760686 because MSHA does not have jurisdiction over Clarkson Construction Company, Inc.
Consequently, the Notices of Contest are GRANTED and these cases are DISMISSED as moot.

/s/ Richard W. Manning
Richard W. Manning
Administrative Law Judge
Distribution:
Matthew R. Korn, Esq., Fisher & Phillips, LLP, P.O. Box 11612, Columbia, SC 29211 (certified
mail)
Susan J. Willer, Esq., Office of the Solicitor, U.S. Department of Labor, Two Pershing Square
Building, 2300 Main Street, Suite 1020, Kansas City, MO 64108 (certified mail)

6

The Secretary argues that customers of a mine are subject to MSHA jurisdiction. He
cites El Paso Rock Quarries, Inc., an ALJ decision that is not binding upon me. 1 FMSHRC
2046 (Dec. 1979). That decision, furthermore, does not support the Secretary’s argument. El
Paso Rock addresses citations issued by MSHA to a mine operator and not a customer or
contractor. 1 FMSHRC at 2048. The Secretary cites numerous decisions that do not support his
position. The Secretary ignores Clarkson’s status as an independent contractor.

37 FMSHRC Page 455

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

February 23, 2015
SCOTT MCGLOTHLIN,
Complainant,

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

v.
DOMINION COAL CORPORATION,
Respondent.

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

ORDER OF CONTINUANCE
AND
ORDER ESTABLISHING FILING SCHEDULE
This discrimination proceeding was previously scheduled for hearing on February 24,
2015, in Pikeville, Kentucky. During telephone conferences with the parties conducted on
February 10 and February 11, 2015, Scott McLothlin’s counsel represented that he intends to file
a motion for summary decision. As discussed below, a preliminary review of the facts reflects
that disposition through summary decision may be appropriate as it is not readily apparent that
there are disputed issues of material fact. Accordingly, the previously-scheduled hearing shall be
continued to permit consideration of McGlothlin’s motion for summary decision and any
opposition filed by Dominion Coal Corporation (“Dominion”).
I.

Procedural Background

Section 101 of the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. §
811 (2006) (“the Act”), authorizes the Secretary to promulgate, consistent with the provisions of
section 553 of the Administrative Procedure Act, 5 U.S.C. § 553, “mandatory health or safety
standards for the protection of life and prevention of injuries in coal or other mines.” Part 90 of
the Secretary’s regulations was “promulgated pursuant to section 101 of the Act.” 30 C.F.R. §
90.1. Under Part 90, a miner determined by the Secretary of Health and Human Services to have
evidence of the development of pneumoconiosis is given the opportunity to work without loss of
pay in an area of the mine where the average concentration of respirable dust in the mine
atmosphere during each shift to which that miner is exposed is continuously maintained at or
below 1.0 milligrams per cubic meter of air (“mg/m3”). 30 C.F.R. §§ 90.1, 90.3; see also Goff v.
Youghiogheny & Ohio Coal Co., 8 FMSHRC 1860 (Dec. 1986).

37 FMSHRC Page 456

The anti-discrimination provisions of section 105(c) of the Act provide, in relevant part,
that “[n]o person shall . . . in any manner discriminate . . . or cause discrimination against or
otherwise interfere with the exercise of the statutory rights of any miner . . . [who] is the subject
of medical evaluations and potential transfer under a standard published pursuant to section 101 .
. . .” 30 U.S.C. § 815(c)(1).
In February 2013, McGlothlin was an hourly employee at the Dominion No. 7 Mine who
was assigned to operate a continuous miner at a rate of pay ranging from approximately $33.00
to $35.00 per hour. Based on representations made by the parties during the February 10 and
February 11, 2015, telephone conferences, it appears that McGlothlin was granted Part 90 status
in June 2013 based on his medical condition. The parties further represented that McGlothlin’s
pay was reduced to approximately $25.00 per hour, also in June 2013, after he was transferred to
less dusty occupations, including scoop operator and other job duties performed in outby areas of
the mine.
Section 90.103 requires a mine operator to “compensate each [P]art 90 miner at not less
than the regular rate of pay received by that miner immediately before exercising the option
under § 90.3 (Part 90 option; notice of eligibility; exercise of option).” 30 C.F.R. § 90.103
(emphasis added). A fair reading of sections 101 and 105(c)(1) of the Act, as well as 90.103 of
the Secretary’s regulations, reflects that the issue in this proceeding is whether McGlothlin’s
reduction in pay is a violation of section 105(c) of the Act because it interfered with transfer
rights and pay protection accorded to McGlothlin under section 90.103—a regulation
promulgated pursuant to section 101 of the Act.
II.

Parameters for Summary Decision

Commission Rule 67 provides that a motion for summary decision shall be granted if:
“(1) 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). The issue in this proceeding is
whether McGlothlin’s reduction in pay violated section 90.103 of the Secretary’s regulations.
Given the “immediately before” provision in section 90.103, the material facts necessary for
resolving this matter through summary decision are whether there was, in fact, a
coincidence in time between McGlothlin’s exercise of Part 90 status and his reduction in
pay, and, if so, whether this coincidence in time precluded Dominion from reducing
McGlothlin’s hourly pay. The material dates of McGlothlin’s exercise of Part 90 protection,
and the effective date of the reduction in his hourly rate of pay, are readily ascertainable and
should not be in dispute.
McGlothlin’s motion for summary decision should be limited to the merits of his
discrimination complaint. McGlothlin will have the opportunity to submit a proposal for relief if
Dominion is deemed to be liable. In support of his motion for summary decision McGlothlin
should provide reports of relevant medical evaluations and diagnoses, as well as relevant reports
of objective clinical findings based on, but not limited to, radiographic, MRI, or pulmonary
function studies. McGlothlin should also provide evidence of the date of his exercise of Part 90

37 FMSHRC Page 457

status through relevant copies of his “exercise of option form,” filed pursuant to section 90.3. 30
C.F.R. § 90.3. To support his alleged pay reduction, McGlothlin should provide relevant pay
stubs reflecting the date and change of his hourly rate of pay.
Any dispute regarding the documentation provided in support of McGlothlin’s motion for
summary decision may be addressed in Dominion’s opposition. In addition, Dominion may
address whether the chronological evidence in this matter satisfies the “immediately before”
provision in section 90.103. Finally, Dominion should address whether the “immediately before”
provision imposes strict liability for any such reduction in pay, or whether McGlothlin must
demonstrate that the reduction was motivated by, or made in contemplation of, his exercise of
Part 90 status.
During the February 11, 2015, telephone conference, the following filing schedule was
established: A motion for summary decision on behalf of McGlothlin must be filed on or before
March 18, 2015; any opposition by Dominion must be filed on or before April 17, 2015;
thereafter, the parties may simultaneously file reply briefs on May 1, 2015.
ORDER
In view of the above, as the parties have been previously informed, IT IS ORDERED
that the February 24, 2015, hearing in this matter IS CONTINUED without date. IT IS
FURTHER ORDERED that the parties shall abide by the above filing schedule for the motion
for summary decision and the opposition, and replies, if any.

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

37 FMSHRC Page 458