AUGUST 2004 ·

COMl\1ISSION DECISIONS AND ORDERS
08-10-2004 Southwest Concrete & Paving, Inc.
08-10-2004 Southwest Concrete & Paving, Inc.
08-10-2004 RAG Cumberland Resources, LP
08-12-2004 Twentymile Coal Company
08-30-2004 Washington Rock Quarries, Inc.
08-30-2004 Highland Enterprises, Inc.

CENT 2004-49-M
CENT 2004-192-M
PENN 2000-181-R
WEST 2000-480-R
WEST 2004-345-M
WEST 2004-359-M

Pg. 631
Pg. 635
Pg.639
Pg.666
Pg.699
Pg. 703

CENT 2004-98-D

Pg. 707

WEVA 2004-187-R
WEST 2003-264-M
LAKE 2002-61

Pg. 708
Pg. 720
Pg. 729

WEST 2001-204-RM
SE
2003-160
WEVA 2004-36
WEVA 2004-19
KENT 2004-129

Pg. 731
Pg. 734
Pg. 739
Pg. 745
Pg. 747

ADMINISTRATIVE LAW .UJDGE DECISIONS
08-02-2004 Raymond George v. 2417 ·Service & Supply Inc.
Amendment to Decision issued July 28, 2004
08-12-2004 Speed Mining, Inc.
08-24-2004 Melgaard Construction Co.
08-31-2004 The Ohio Valley Coal Company
Settlement Order on Remand

ADMINISTRATIVE LAW ,UJDGE ORDERS
08-03-2004 Becon Construction, Inc.
08-17-2004 Jim Walter Resources, Inc.
08-18-2004 Baylor Mining, Inc.
08-24-2004 Baylor Mining, Inc.
08-30-2004 Sterling Materials

i

AUGUST 2004

No case was filed in which Review was granted during the month of August

No case was filed in which Review was denied during the month of August

A Petition for Reconsideration filed by the Secretary of Labor in Twentymile Coal Company, docket
No. WEST 2000-480-R in the Commission decision issued August 12, 2004, was denied.

ii

COMMISSION DEOSIONS AND ORDERS

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

August 10, 2004
SECRETARY OF LABOR,
:MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. CENT 2004-49-M
A.C. No. 29-00473-11213

v.
SOUTHWEST CONCRETE &
PAVINO, INC.

BEFORE: Duffy, Chairman; Beatty, Jordan, Suboleski, and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act"). On March 9, 2004, the Commission received from Southwest
Concrete & Paving, Inc. ("Southwest Concrete") a motion made by counsel to reopen a civil
penalty proceeding dismissed by the Chief Administrative Law Judge because the contested
penalty had been paid. The Commission construed Southwest Concrete's motion to be a timely
filed petition for discretionary review. On April 5, 2004, the Commission granted the petition
and stayed briefing in the case pending further order of the Commission.
On October 17, 2003, MSHA issued a proposed penalty assessment to Southwest
Concrete's Mimbres Pit in Luna, New Mexico. Southwest Concrete timely submitted a request
for hearing ("green card") to contest the proposed penalty assessment for Citation No. 6222831.
The Secretary of Labor filed a petition for assessment of penalty dated December 29, 2003. 1
Southwest Concrete's motion states that, as a result of "bookkeeping inadvertence," the company
paid the contested penalty. Mot. at 1. Chief Administrative Law Judge Robert J. Lesnick
dismissed Southwest Concrete's contest on the grounds that the penalty had been paid. Order of

1

Southwest Concrete answered the petition, but mistakenly used the wrong docket
number on its answer. It does not appear, however, that this oversight had any effect upon the
disposition of this case before the judge.
26 FMSHRC 631

Dismissal (Feb. 26, 2004) (ALJ) ("On January 23, 2004, the Commission was informed ... that
the penalty in this case has been paid."). In its motion, Southwest Concrete requests that the
Commission vacate the judge's dismissal order and reopen the proceeding. Mot. at 1. The
Secretary does not oppose Southwest Concrete's request to reopen the case.
Although Southwest Concrete paid the proposed penalty for Citation No. 6222831, it may
have intended to continue its challenge of the penalty and underlying violation. However, the
record does not contain sufficient information to permit us to determine whether the penalty
payment was a "genuine mistake." See Dacotah Cement, 23 FMSHRC 31, 32 (Jan. 2001).

26 FMSHRC 632

Having reviewed Southwest Concrete's submissions, in the interests of justice,. we
remand this matter to the Chief Administrative Law Judge to determine whether Southwest
Concrete's payment of the penalty constitutes a "genuine mistake" so as to support granting relief
from the dismissal order for Citation No. 6222831. 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.

~2
(~

Robert H. Beatty,

26 FMSHRC 633

J~oner

Distribution
Jeffrey A. Dahl, Esq.
Lamb, Metzgar, Lines & Dahl, P.A.
300 Central Avenue, S.W., Suite 3000
P.O. Box 987
Albuquerque, NM 87103
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

26 FMSHRC 634

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

August 10, 2004
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
AD:MINISTRATION (MSHA),
Docket No. CENT 2004-192-M
A.C. No. 29-00473-08804

v.
SOUTHWEST CONCRETE &
PAVINO, INC.

BEFORE: Duffy, Chairman; Beatty, Jordan, Suboleski, and Young, Commissioners

ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On July 12, 2004, the Commission received from Southwest
Concrete & Paving, Inc. ("Southwest Concrete") a motion made by counsel to reopen a penalty
assessment that had become final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
On September 18, 2003, MSHA issued a proposed penalty assessment to Southwest
Concrete's Mimbres Pit in Luna, New Mexico (Case Number 8804) for two citations (Citation
Nos. 6222829 and 6222832, issued November 13, 2002). Southwest Concrete did not contest the
proposed penalty. Southwest Concrete's motion states that, as a result of "bookkeeping
inadvertence," the company paid the penalty for these citations even though it had been the
company's intention to contest them. Mot. at 1. In its motion, Southwest Concrete requests that
the Commission reopen these penalties and consolidate this proceeding with Docket No. CENT
2004-49-M, which involves another citation issued to Southwest Concrete on November 13,
2002. Id. The Secretary states that she does not oppose Southwest Concrete's request for relief.

26 FMSHRC 635

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786~89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787.

26 FMSHRC 636

Having reviewed Southwest Concrete' s motion, in the interests of justice, we remand this
matter to the Chief Administrative Law Judge for a determination of whether good cause exists
for the company's failure to timely contest the penalty proposals 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.

26 FMSHRC 637

Distribution
Jeffrey A. Dahl, Esq.
Lamb, Metzgar, Lines & Dahl, P.A.
300 Central Avenue, S.W., Suite 3000
P.O. Box 987
Albuquerque, NM 87103
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22°d Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

26 FMSHRC 638

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

August 10, 2004
Docket Nos.

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

RAG CUMBERLAND RESOURCES LP

PENN 2000-181-R
PENN 2000-182-R
PENN 2000-183-R
PENN 2000-207-R
PENN 2000-208-R
PENN 2000-209-R
PENN 2000-210-R
PENN 2001-63-A

BEFORE: Duffy, Chairman; Beatty, Jordan, Suboleski, and Young, Commissioners

DECISION
BY: Duffy, Chairman; Suboleski and Young, Commissioners
In these consolidated contest and civil penalty proceedings arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) ("Mine Act" or "Act"), RAG
Cumberland Resources LP ("Cumberland") has petitioned for review of Administrative Law
Judge Jerold Feldman's detennination that Cumberland's bleeder system was not functioning as
required by 30 C.F.R. § 75.334(b)(l), 1 and that Cumberland took insufficient action with respect

1

30 C.F.R. § 75.334(b)(l) provides:
During pillar recovery a bleeder system shall be used to control the
air passing through the area and to continuously dilute and move
methane-air mixtures and other gases, dusts, and fumes from the
worked-out area away from active workings and into a return air
course or to the surface of the mine.

26 FMSHRC 639

to the bleeder condition in violation of 30 C.F.R. § 75.363(a).2 23 FMSHRC 1241, 1252-54,
1256-59 (Nov. 2001) (AU). As to its alleged violation of section 75.363(a), Cumberland further
challenges the judge's detennination that the violation resulted from its unwarrantable failure3 to
comply with the standard and the judge's assessment of a civil penalty. Id. at 1259-61. For the
reasons that follow, we affirm in part, reverse in part, and vacate and remand in part.
I.
Factual and Procedural Background
Cumberland operates the Cumberland Mine, an underground coal mine in Waynesburg,
Pennsylvania. Resp. to Mot. to Stay, Ex. A. The mine liberates approximately 12 million cubic
feet of methane per day and is subject to spot inspections pursuant to section 103(i) of the Mine
Act, 30 U.S.C. § 823(i). 23 FMSHRC at 1244.
A.

Bleeder System

Cumberland ventilates the subject area of its Cumberland mine with a bleeder system.
The bleeder system is designed to dilute methane coming from the gob,4 as well as from the
development entries between the mined-out panels, with fresher air coursing through bleeder

2

30 C.F.R. § 75.363(a) provides in pertinent part:
Any hazardous condition found by the mine foreman or equivalent
mine official ... shall be posted with a conspicuous danger sign
where anyone entering the areas would pass. A hazardous
condition shall be corrected immediately or the area shall remain
posted until the hazardous condition is corrected. If the condition
creates an imminent danger, everyone except those persons
referred to in section 104(c) of the Act shall be withdrawn from the
area affected to a safe area until the hazardous condition is
corrected.

3

The unwarrantable failure terminology is taken from section 104(d)( 1) of the Act, 30
U.S.C. § 814(d)(l), which establishes more severe sanctions for any violation that is caused by
"an unwarrantable failure of [an] operator to comply with ... mandatory health or safety
standards."
4

"Gob," in the context of this case, refers to the area from which coal has been extracted
from successive longwall panels. RAG Ex. 5 (detailed mine map).
26 FMSHRC 640

entries. 23 FMSHRC at 1244; Tr. 189-91. 5 Air containing higher levels of methane exits the
gob and enters the bleeder entries through a number of regulators, several of which were
designated as bleeder evaluation points, or "BEPs." 23 FMSHRC at 1245. The horizontal
bleeder entries carry the methane-air mixture to a vertical bleeder shaft, which in turn carries the
methane-air mixture to the surface. Tr. 189-91, 405.
The alleged violations occurred in connection with Cumberland's longwall mining
section 42 (also referred.to as the 90 butt longwall panel). 23 FMSHRC at 1245. Section 42 was
located at the northern end of the gob. Id. at 1244. The gob was bounded on the eastern side by
a set of bleeder entries and on the western side by a set of main entries, and on the southern side
by a set of bleeder entries referred to as the lB Right bleeders. Id.; RAG Ex. 5 (detailed mine
map). The No. 1 bleeder shaft was located in the southeastern comer of the bleeder system. 23
FMSHRC at 1244. Air from the IB Right bleeder entries met air from the eastern perimeter
bleeder entries and was transported out of the mine through the No. 1 bleeder shaft. Id. at 1258;
RAG Ex. 5. A second bleeder shaft, referred to as the No. 2 or 2A bleeder shaft, located in the
northeastern portion of the bleeder system, was placed "on-line" on June 6, when longwall
mining began on section 42. 23 FMSHRC at 1245; Tr. 1553.
Air entered the eastern bleeder entries from the northern end at the headgate of the 90 butt
panel through regulators referred to as the No. 1 and No. 2 sweeteners. 23 FMSHRC at 1245. In
addition, air entered the eastern bleeders from the tailgate (also referred to as the 82 butt entries)
through a regulator referred to as "Fred's Hole."6 Id. Air traveling through the Nos. 1 and 2
sweeteners and Fred's Hole moved in a southward direction until it reached a split at BEPs 18
and 18A. 23 FMSHRC at 1245. At the split, some of the air traveled north to the No. 2A
bleeder shaft, while the remainder traveled south to the No. 1 bleeder shaft. Id.
Before July 3, 2000, section 42 was ventilated by intake air coursing down the headgate
entries and across the longwall face. Id. Intake air also coursed through the tailgate (the No. 1
entry of 82 butt). Id. The air in the tailgate joined the air that had swept the face and traveled
into the eastern perimeter bleeders through Fred's Hole or outby through the No. 2 entry of the
82 butt. Id. Between June 6 and July 5, 2000, BEPs 6, 7, and 8 were adjusted to their most
closed positions. Id.
On July 3, 2000, Cumberland made an air change affecting the ventilation of the longwall
face. 23 FMSHRC at 1247. The velocities of the air ventilating the face had decreased due to

5

References to the transcript of the hearing (''Tr.") are to the "condensed" version of the
transcript because of errors in the "full-size" version.
6

The BEPs in the eastern bleeder entry were designated by numbers in descending order
from north to south, specifically, BEPs 21, 20, 18, 18A, 8, 7, 6, and 5A. 23 FMSHRC at 1245;
RAG Ex. 5. Generally, each BEP was located near a regulator which controlled the amount of
methane leaving the gob. Tr. 1686-87.
26 FMSHRC 641

increased resistance in the mine. Id. In order to increase the velocity of air ventilating the face,
Cumberland changed the air in the tailgate (the No. 1 entry of 82 butt) from intake air to return
air. Id. At the end of the face, the air split at a point referred to as a ''T-split." Id. at 1247; Tr.
1802. At the T-split, some of the air from the face traveled into the eastern bleeders through
Fred's Hole. 23 FMSHRC at 1246. The remaining air that had been directed across the face
traveled outby through the No. 2 entry of 82 butt to the main entries on the western perimeter.
Id.
B.

Events of July 5 and 6, 2000

During the day shift on July 5, 2000, an inspector with the Department of Labor's Mine
Safety and Health Administration ("MSHA"), Ronald Hixson, inspected the mine. 23 FMSHRC
at 1247. Hixson was accompanied by Mike Konosky, a Cumberland safety representative, and
Tom Sedinack, a United Mine Workers of America ("UMWA") miners' representative. Id.; Tr.
181. In his review of the weekly mine records, Hixson noticed that the methane levels recorded
at the No. 1 bleeder fan had been higher than normal during the preceding two weeks. 23
FMSHRC at 1247. For instance, while the No. 1 bleeder fan showed readings of 1.4% methane
on June 6, there were readings of 1.8% to 1.9% from June 14 to July 3. Id. In examining the fan
installations on the surface, methane readings were taken at the No. 1 bleeder fan. Id. Using a
methane detector (an "Exotector"), Konosky obtained methane readings at the No. 1 fan of 1.8%
to 2.2%.7 Id. ; Tr. 207-09. Hixson took bottle samples, the results of which, when subsequently
received on July 13, showed 3.6% methane. 23 FMSHRC at 1247.
In addition, on July 5, Fred Evans, the general mine foreman at the mine, convened a
meeting to discuss the increase in water gauge pressure at the No. 1 bleeder fan. 8 Id. at 1248; Tr.
1132-33. Sometime after June 29, the water gauge readings at the No. 1 fan began to increase.
Tr. 548, 550, 1032. Evans was concerned that the increase in pressure would cause too much
methane to be drawn out of the gob at too fast a rate, thus increasing the concentration of
methane in the bleeder. 23 FMSHRC at 1248. Evans dispatched Jason Hustus, a Cumberland
engineer, to obtain a methane reading at the No. 1 bleeder fan. Id. Hustus obtained a methane

7

Methane can be measured by using detectors that give an immediate reading, such as an
Exotector, which uses a pump and hose to draw an air sample, or by using a detector such as the
Explorer or ClVIX 270, which continuously monitors the atmosphere for three gases without
drawing a sample through the use of a pump and hose. Tr. 1212-13, 1221. In addition, methane
can be measured by taking a bottle sample, the results of which typically are not available until
one to two weeks later. Tr. 365, 1214-15. In order to get an immediate reading of methane from
the shaft, the operator used an Exotector to pump a sample from the fan housing. Tr. 207-09.
8

Each bleeder shaft was equipped with an exhaust fan on the surface. Tr. 500-01. The
bleeder shaft fans were monitored by water gauge pressure readings, which provided a measure
of the degree of resistance in the mine that had to be overcome to pull air through the mine. 23
FMSHRC at 1247; Tr. 379, 1570-71.
26 FMSHRC 642

reading of 3.6% u·s ing an Exotector. Id.; Tr. 1134-36. When Evans sent Hustus back to take
another reading with a recalibrated Exotector, Hustus returned with another reading of 3.6%. 23
FMSHRC at 1248.
Evans informed Gary DuBois, the manager of engineering, and Robert Bohach, the safety
manager at the mine, about the elevated methane readings. Id. At approximately 6:00 p.m.,
DuBois and Bohach went to the No. 1 bleeder shaft and obtained several methane readings of
3.6%. Id.; Tr. 1137-38, 1777-78. They then traveled to the 32-1 surface gob vent hole near the
No. 1 shaft and found that the vent hole was closed. 23 FMSHRC at 1248. As the pump
connected to the bore hole was not functioning, they immediately opened the gob vent and called
an electrician to repair the pump. Id.
During the afternoon shift of July 5, there were approximately 100 miners working
underground, 12 of whom worked on the longwall section. Id. Beginning at ·approximately
7:00 p.m., the longwall experienced intermittent power shut downs when the methane sensor at
the tailgate detected more than 1% methane and automatically de-energized the equipment. Id.
The miners there could not determine the source of the problem because the methane would
dissipate within minutes, allowing power to be restored. Id. at 1249. Timothy Hroblak, a
UMWA safety conunitteeman, went to the face and took methane and air velocity readings,
which were all within normal limits and described by him as "textbook." Id. at 1248-49;
Tr. 111-12.
DuBois and Bohach returned to the No. 1 shaft where they took more readings indicating
the presence of 3.6% methane. 23 FMSHRC at 1248. They decided to evaluate the No. 1
bleeder fan periodically for the remainder of the afternoon shift and then effect some ventilation
changes during the midnight shift. Tr. 1146-47. They also decided that if methane levels at the
No. 1 fan reached 4%, they would withdraw miners from the mine. 23 FMSHRC at 1249. At
approximately 7:30 p.m., Dubois took a reading at the No. 1 bleeder shaft that indicated the
presence of 3.6% methane and then left the mine. Tr. 1784. No further readings were taken at
the No. 1 bleeder shaft until DuBois returned to the mine and took a reading at approximately
10:30 p.m., which indicated the presence of 3.6% methane. Tr. 1784-85, 1827-28. At
approximately 8:00 p.m. on July 5, the miners on the longwall were informed that there would be
no "hot seat" changes because miners on the midnight shift were being held on the surface to
effectuate a ventilation change. 9 23 FMSHRC at 1249.
At midnight, at the end of the July 5 afternoon shift, DuBois and Bohach had a meeting
with the UMWA safety committee members who were leaving the mine or arriving for work. Id.
They informed the safety committee members that they had obtained readings of 3.6% methane
at the No. 1 bleeder fan. Id. After the meeting, Hroblak telephoned Inspector Hixson and
informed him about the conditions at the mine. Id.
9

A "hot seat" change requires a miner to remain at his position until he is relieved by a
miner on the following shift. 23 FMSHRC at 1249.
26 FMSHRC 643

The midnight shift was not permitted to enter the mine because of the ventilation changes
that were to be made. Id. On the surface, DuBois changed the. louvers on the No. 1 fan and
back-up fan to reduce the amount of pressure that the fan was pulling. Id. at 1250. He also
obtained another methane reading of 3.6%. Id. In addition, Robert Kimutis, Cumberland's
ventilation foreman, and Roger Peeler, a senior mining engineer for Cumberland, opened the
regulators at the Nos. 2 and 3 sweeteners, adjusted the regulator at Fred's Hole to a more closed
position, and adjusted the regulator near the No. 2A bleeder shaft to direct more air to the No. 1
shaft. Id.
At approximately 1:30 a.m., Inspector Hixson arrived at the mine while the ventilation
changes were being made. 23 FMSHRC at 1250. Bohach met Hixson at the surface and
informed him that the last reading at the No. 1 fan was 3.6%. Id. Methane readings were being
telephoned to Bohach every 15 to 20 minutes. Id. Shortly after Inspector Hixson arrived at the
mine, Bohach was informed that methane at the No. 1 fan had risen to 3.8%. Id. Bohach
subsequently received information that a reading at the fan taken at approximately 2:30 a.m.
revealed that methane had increased to 4.2%. Id.
Inspector Hixson telephoned his supervisor, Robert Newhouse, to inform him of the
conditions at the mine. Id. at 1251. Newhouse in tum telephoned Acting District Manager
Kevin Strickland. Id. In accordance with Newhouse's subsequent instructions, at approximately
3:10 a.m., Hixson verbally issued an imminent danger order regarding conditions existing on the
midnight shift that required Cumberland to cease the ventilation changes and withdraw all of the
miners from the mine. Id. After the imminent danger order was issued, readings at the fan
dropped from 4.2 to 3.8% methane. Id. The next methane reading at the No. 1 fan, which
occurred at about 6:00 a.m. on July 6, revealed that methane had fallen to 2.8%. Id. The last
miners exited the mine at approximately 6:30 a.m. Id.
Inspector Hixson issued the written imminent danger order at approximately 9:00 a.m. on
July 6. Id. At approximately 4:30 p.m. that day, Inspector Hixson issued Citation No. 3657290
alleging a significant and substantial ("S&S") 10 violation of section 75.323(e), which was
modified on July 7 to allege a violation of section 75.334(b)(l). Id. In addition, at 6:00 p.m. on
July 6, he issued Citation No. 3657291 alleging an S&S and unwarrantable violation of section
75.363(a). Id. On July 20, 2000, Inspector Hixson issued Order No. 3657297, pursuant to
section 104(b) of the Mine Act, alleging that the operator failed to abate Citation No. 3657290
because the bleeder system was not yet functioning properly. Tr. 338-47.
In order to abate the section 104(b) order, the operator submitted to MSHA a ventilation
plan which described a method for directing more bleeder air out of the gob directly to the No.
2A fan. Tr. 594-95. On July 29, overcasts in the gate entries of BEPs 18, 20, and 21 were

10

The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C.
§ 814(d)(l), which distinguishes as more serious any violation that "could significantly and
substantially contribute to the cause and effect of a . . . mine safety or health hazard."
26 FMSHRC 644

installed, which redistributed bleeder air between the Nos. 1and2A shafts. Tr. 1920-22, 1964.
On July 30, MSHA inspected the bleeder system, determined that methane levels had been
reduced, and tenninated the order. Tr. 595.
C.

Proceedings Before the Judg:e

The operator challenged in part Citation Nos. 3657290 and 3657291 and the imminent
danger order, and the matter proceeded to hearing before Judge Feldman. The hearing was
conducted in two sessions from April 3 through April 6, 2001, and from July 24 through July 25,
2001. 23 FMSHRC at 1242. After the hearing recess in April 2001, the parties settled various
matters, including section 104(b) failure to abate Order No. 3657297. Tr. 154547. In addition,
Cumberland stipulated that, if the judge concluded that it had violated the standards set forth in
Citation Nos. 3657290 and 3657291, it would concede that those violations were S&S. 23
FMSHRC at 1254, 1259.
The judge affirmed Citation Nos. 3657290 and 3657291, as well as the associated special
findings. 11 As to Citation No. 3657290, the judge determined that the operator had violated
section 75.334(b)(l) based on his findings that the bleeder system was not adequately diluting
and carrying away methane from working areas. Id. at 1254. The judge further concluded that
the violation was S&S and had resulted from a moderate degree of negligence. Id. at 1255-56.
Accordingly, the judge assessed a penalty of $5,000, rather than the penalty of $6,000 proposed
by the Secretary. Id. at 1256. As to Citation No. 3657291, the judge determined that
Cumberland violated section 75.363(a) because conditions existed in the bleeder system that
required Cumberland to remove all personnel except those necessary to evaluate and correct the
bleeder condition. Id. at 1257-59. The judge affirmed the S&S designation, and concluded that
the violation was also unwarrantable because the violation was obvious, dangerous, and was
allowed to exist for an extended period of time, and because the bleeder problem was not
disclosed to hourly employees. Id. at 1260. The judge subsequently assessed a civil penalty of
$10,000, rather than the penalty of $5,000 proposed by the Secretary. Id. at 1260-61.
D.

Proceedings on Review

Cumberland filed a petition for discretionary review which the Commission granted. In
addition, Cumberland filed a Motion for Order Taking Judicial Notice. The Secretary filed an
opposition to Cumberland's motion and a motion to strike. The Commission issued an order
denying Cumberland's motion to take judicial notice and granting the Secretary's motion to

11

The judge vacated the imminent danger order regarding conditions existing during the
midnight shift beginning on July 6. 23 FMSHRC at 1261-64. The Secretary did not challenge
that determination.
26 FMSHRC 645

strike. 12 The Coffimission also granted Cumberland's motion requesting oral argument, and oral
·
argument was heard on March 11, 2004.

IL
Disposition
A.

Citation.No. 3657290
1.

Interpretation of Section 75.334(b)(l)

Cumberland argues that the judge erred in finding a violation of section 75.334(b)(l)
because he misinterpreted the standard by reading it to require an "adequate" dilution of methane
· in a bleeder system and erroneously relied upon an incorrect interpretation of 30 C.F.R.
§ 75.323(e) to set a 2% limit for methane in the bleeder shaft. 13 RAG Br. at 11-18. Cumberland
submits that the plain language of section 75.334(b)(1) does not address the adequacy of the
bleeder system or dilution of methane, but simply requires that methane-air mixtures be
continuously diluted and moved away from active workings. Id. at 12-13; RAG Reply Br. at 3-4.
Cumberland argues that other standards address the functioning of bleeder systems. Id. The
Secretary responds that the plain meaning of the standard supports the judge's interpretation.
S. Br. at 13-14.
Section 75.334, entitled, "Worked-out areas and areas where pillars are being recovered,"
sets forth, in part, ventilation requirements for such areas, the circumstances under which such
areas must be sealed, and ventilation plan requirements. 30 C.F.R. § 75.334. Section
75.334(b)(l) requires that during pillar recovery, a bleeder system shall be used "to control the
air passing through the area and to continuously dilute and move methane-air mixtures ... from
the worked-out area away from active workings and into a return air course or to the surface of
the mine." 30 C.F.R. § 75.334(b)(l) (emphasis added).

12

We declined to grant judicial notice on the basis that Cumberland failed to establish
good cause for the Commission to consider evidence which the judge was not afforded an
opportunity to consider. Unpublished Order dated Feb. 20, 2004; see Twentymile Coal Co., 15
FMSHRC 941, 946 (June 1993); Union Oil Co., 11 FMSHRC 289, 301 (Mar. 1989) ("[I]t is the
obligation of the parties to prove their case before the judge, not on review by reference to
detailed material not presented to the judge and not subject to the rigors of cross-examination")
(emphasis in original).
13

30 C.F.R. § 75.323(e) provides in part that "[t]he concentration of methane in a bleeder
split of air immediately before the air in the split joins another split of air ... shall not exceed 2.0
percent."
26 FMSHRC 646

Section 75.334 is derived from section 303(z)(2) of the Mine Act, which in tum was
carried over unchanged from the Federal Coal Mine Health and· Safety Act of 1969 ("Coal Act").
Section 303(z)(2) of the Mine Act requires that all abandoned areas and areas from which pillars
have been extracted must be ventilated by bleeder systems or be sealed off from the rest of the
mine. 30 U.S.C. § 863(z)(2). It further provides that when ventilation of such areas is required,
"such ventilation shall be maintained so as continuously to dilute, render harmless, and carry
away methane ... within such areas and to protect the active workings of the mine from the
hazards of such methane . . .." Id. The legislative history of the Coal Act reveals Congress's
recognition that pillared and abandoned areas, which are not tested as frequently as working
places, "represent a great potential source of explosions, which can lead to widespread
underground destruction.with attendant loss of life." H.R. Rep. No. 91-563, at 21 (1969),
reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Part I Legislative History of
the Federal Coal Mine Health and Safety Act of 1969, at 1051 (1975) ("Legis. Hist."). The
House Report explains that this problem was addressed in part by standards, including the
predecessor to section 303(z), which require that "when bleeder entries or systems or equivalent
means are permitted instead of sealing, they shall be effective." Legis. Hist. at 1052. Thus, the
purpose of section 303(z)(2) is to require bleeder systems continuously to dilute, render harmless,
and carry away methane effectively within the bleeder system and to protect active workings
from the hazards of methane accumulations.
The Commission has repeatedly recognized that a regulation must be interpreted so as to
harmonize and not to conflict with the objective of the statute it implements. Lodestar Energy,
Inc., 24 FMSHRC 689, 692 (July 2002); Western Fuels-Utah, Inc., 19 FMSHRC 994, 997-99
(June 1997). Although section 75.334(b)(l) does not literally set forth a requirement that a
bleeder system shall function effectively, such a requirement is implicit in the standard's
language and underlying purpose. 14 See Western Fuels-Utah, 19 FMSHRC at 998-99 & n.6
(interpreting regulation to require functional equipment based on standard's plain meaning and
underlying purpose); Consolidation Coal Co., 20 FMSHRC 227, 238-52 (Mar. 1998)
(considering whether bleeder system adequately diluted and carried away methane). Thus,
consistent with its underlying statutory purpose, we read section 75.334(b)(l) to require a bleeder
system to control air passing through the area and continuously to dilute and move methane-air
mixtures away from active workings and into a return or to the surface in an effective manner.
That is, a bleeder system must effectively ventilate the area within the bleeder system and protect
active workings from the hazards of methane accumulations.

14

Cumberland did not argue that it failed to receive adequate notice that section
75.334(b)(l) applied in the subject circumstances, but merely submits that reading the standard to
require adequate dilution could "potentially deprive operators of due process notice." RAG
Reply Br. at 5 n.3. Because Cumberland did not effectively raise lack of notice as a defense, we
need not address the issue.
26 FMSHRC 647

Under Cumberland's literal reading, an operator would comply with section 75.334(b)(l)
if its bleeder system continuously diluted methane-air mixtures to any level of dilution, and
moved such mixtures away from active workings out of the mine. RAG Br. at 12. That reading
could lead to unwanted results in that a bleeder system could be in compliance with the standard
if it diluted methane from a higher level to a lower level, even as the methane becomes more
explosive. 15 Such a result would thwart the underlying purpose of the standard and must be
avoided. See Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993) (rejecting literal
interpretation of regulation that led to absurd result contrary to underlying statutory purpose).
Thus, we reject Cumberland's argument that the judge misinterpreted section 75.334(b)(l) by
reading the standard to require adequate dilution of methane in the bleeder system. 16
2.

Whether Substantial Evidence Supports Section 75.334(b)(l) Violation

The standard requires that a bleeder system control air passing through the area and
continuously dilute and move methane-air mixtures away from active workings and out of the
mine in an effective manner. We find that substantial evidence exists in the record to support the
conclusion that Cumberland' s bleeder system did not do so, thereby violating section
75.334(b)(l).
First, the judge's determination that Cumberland violated section 75.334(b)(l) is
supported by evidence that Cumberland's bleeder system failed to control air passing through the
affected area. MSHA Assistant District Manager Stricklin testified that John Demechei, the vice
president of operations for Cumberland, informed Stricklin that there were two separate
ventilation systems in the area: the No. 2A fan ventilated the active 42 longwall panel, and the
No. 1 fan ventilated the "mined-out" area. Tr. 730, 764. However, witnesses for both parties
agreed that, in fact, the two fans actually competed for air, which affected how the methane-air
mixtures moved through the bleeder system. 23 FMSHRC at 1245; Tr. 899, 971-72, 1973. For
example, before the No. 2A bleeder shaft fan went online on June 6, the volume of air circulating
past BEP SA was approximately 80,000 to 90,000 cubic feet per minute ("CFM"), and methane

15

Methane is explosive in the range of 5 to 15% depending upon the concomitant level
of oxygen. 23 FMSHRC at 1244.
16

We do not reach Cumberland's argument that the judge relied upon an incorrect
interpretation of section 75.323(e) in concluding that the operator violated section 75.334(b)(l).
RAG Br. at 14-18. Although the judge considered the effect of section 75.323(e) in relation to
Cumberland's alleged violation of section 75.334(b)(l), he did so in order to respond to the
argument advanced by Cumberland in its post-hearing brief that section 75.323(e) does not apply
to bleeder $hafts. 23 FMSHRC at 1252; RAG Post-Hr' g Br. at 23-27. The judge did not rely
upon his discussion of section 75.323(e) in concluding that Cumberland violated section
75.334(b)(l). 23 FMSHRC at 1253-54. In any event, we note that, regardless of the applicability
of section 75.323(e) to bleeder shafts, MSHA may impose a 2% limit on the amount of methane
in bleeder shafts through the mine ventilation plan approval process.
26 FMSHRC 648

levels at BEP SA were approximately LS% or 1.6%. Tr. 5Sl, SS3. After the No. 2A bleeder
shaft fan went online, the volume at BEP SA dropped to 35,000 to 4S,OOO CFM, and methane
levels increased to between 3% and 3.8%. Tr. SS1-S3. Witnesses for both parties explained that
there was a failure in proper distribution of methane-air mixtures between the No. 1 and 2A
bleeder fans, whereby the No. 1 bleeder shaft received a disproportionately greater share of
methane than the No. 2A fan. 17 Tr. 1376, 2027.
In addition, repeated readings at the No. 1 bleeder shaft showing elevated methane levels
indicated that the bleeder system was not controlling air passing through the area or continuously
diluting methane as required by the standard. MSHA InspectorNentilation Specialist Anthony
Guley testified that the purp.ose of taking methane readings at a bleeder shaft fan is to evaluate
how the bleeder system is operating. Tr. S38-39, 5S9-60. The Secretary's witnesses explained
that a bleeder system should be designed so that air exiting the bleeder system contains 2% or
less methane, and that the effectiveness of the bleeder system is questioned if more than 2%
methane is exhausting at the bleeder shaft. Tr. 406, 951. It is undisputed that during the
afternoon shift of July S, Cumberland repeatedly discovered 3.6% methane at the No. 1 bleeder
shaft. 23 FMSHRC at 1248-49. The methane levels at the No. 1 bleeder shaft climbed to 4.2%
at 2:40 a.m. on July 6, after Cumberland had effected some ventilation changes. 18 Tr. 240, 346.
The Secretary's witnesses testified that such levels of methane exiting a bleeder shaft are unheard
of except for after an explosion, or when a mine is reopened after being sealed. 23 FMSHRC at
1258; Tr. 713, 1009. Cumberland Safety Manager Bohach also conceded that the readings of
3.6% were atypical and that he would have expected a reading of 1.8% methane at the No. 1
bleeder shaft. Tr. 1328. Senior Mining Engineer Roger Peelor and Engineering Manager
DuBois testified that having 3.6% methane exiting from the No. 1 bleeder revealed a problem in
the bleeder system that needed to be addressed. 19 Tr. 1665, 1726-28, 1736, 1824.

17

The belief that improper distribution of methane between the two fans was the problem
with the bleeder system appears to be supported by the manner in which the operator abated the
situation. The installation of overcasts or tubes at BEPs 18, 20, and 21 resulted in air moving
directly from the gob toward the No. 2A fan. Tr. 594-9S, 1920-22. As soon as the tubes were
installed, methane levels at the No. 1 fan dropped. Tr. 1928-29, 1931. In addition, methane
levels at BEP SA dropped from between 3.5% and 3.8% to 1.2%. Tr. 1931-32.
18

We do not consider the reading of 4.2% taken on July 6 in our consideration of
Citation No. 36S7291, which pertains to conditions existing during the afternoon shift of July 5.
Gov't Ex. 5; see also RAG Br. at 26 n.S.
19

By considering such evidence, we do not suggest that a 2% methane limit applied to
the bleeder shaft. See n.16, supra. Rather, we view such evidence as supporting the conclusion
that, regardless of whether a methane limit applies to the bleeder shaft, all parties agreed that,
during the afternoon shift of July 5, the methane levels exhausting from the No. 1 bleeder shaft
were elevated.
26 FMSHRC 649

Substantial evidence supports the judge's conclusion that the bleeder's ventilation design
provided a reasonable basis for concluding that t~ere were higher levels of methane underground
in the travelable bleeder entry than were exhausting from the No. 1 bleeder fan. 23 FMSHRC at
1243; Tr. 497-505, 522-23, 718-19. In the mine, air that traveled in a southern direction down
the eastern bleeder entry was diluted by air in the lB right entry before it entered the No. 1
bleeder shaft. Tr. 407, 505. The air in the lB right entry contained less methane than air in the
eastern bleeder entry. Tr. 497-98. Once air entered the bleeder shaft, there was no other air to
dilute it. Tr. 407. Thus, air in the eastern bleeder entry likely had higher methane levels before it
was diluted by air in the lB right entry and exited from the mine through the No. 1 bleeder shaft.
Tr. 505, 522-23.
In addition, substantial evidence supports the judge's finding that comparison readings at
the No. 1 bleeder shaft and in the travelable bleeder entry indicated that there were higher levels
of methane underground than were exhausting from the No. 1 bleeder shaft. 23 FMSHRC at
1243. On June 14, Cumberland obtained an Exotector reading of 1.8% methane at the No. 1
bleeder shaft while it obtained readings of 3.5 % in the travelable bleeder at BEP 5A. Tr. 55859; Gov't Ex. 7 at 64. In addition, on June 30, Cumberland obtained an Exotector reading of
1.89% at the No. 1 bleeder fan and a reading of 3.5% at BEP 5A. Tr. 560-61, 1321-22; Gov't
Ex. 7 at 68, 70. On July 3, Cumberland took an Exotector reading at the No. 1 bleeder shaft of
1.8% or 1.9%, and a reading at BEP 5A of 3.8%. Tr. 1215, 1217-18, 1221; Gov't Ex. 7, at 71.
Given this history of methane level readings between the No. 1 bleeder shaft and BEP 5A, the
operator had reason to believe that, while there were readings of 3.6% at the No. 1 bleeder shaft,
there were likely to be higher methane levels in the travelable bleeder at BEP 5A.20 Tr. 140-42,
562-64, 718-19, 721, 2005-08. Such elevated methane readings and evidence of methane-air
mixture distribution problems demonstrate that the bleeder system failed to control air passing
through the area and failed to continuously dilute methane-air mixtures from the worked-out area
in violation of the requirements of section 75.334(b)(l).

°

2

Cumberland claims that, during the afternoon shift of July 5, there was a 1:1 ratio in
methane levels between the No. 1 bleeder fan and BEP 5A, and that, as a result, there was not an
explosive mixture of methane in the travelable bleeder. RAG Reply Br. at 9. The results relied
upon by Cumberland to support the purported 1:1 ratio in methane readings on July 3 were based
in part on bottle samples taken at the No. 1 bleeder shaft and an Exotector reading at BEP 5A.
Tr. 1213; RAG Ex. 7; Gov't Ex. 7. As noted above, a comparison of non-bottle sample readings
taken on July 3 shows 3.8% methane at BEP 5A and 1.8% or 1.9% methane at the No. 1 bleeder
shaft, revealing readings that were closer to a 2:1 ratio. Tr. 1215, 1217-18, 1221; Gov'tEx. 7, at
71. The results of the bottle samples taken at the No. 1 bleeder shaft were not made available to
the operator until July 13, and were not relied upon by the operator on July 5. RAG Ex. 7; Tr.
1314-16. We also reject Cumberland's comparison of the readings of 3.6% methane taken at the
No. 1 bleeder fan on July 5 and 6 with the reading taken at BEP 5A on July 3. RAG Reply Br. at
9. The readings of the two locations were taken on different days and are inappropriate for
comparison.
26 FMSHRC 650

Cumberland's violative conduct is compounded by evidence indicating that, although its
personnel had reason to believe that the bleeder_system was not functioning as it was designed to,
they failed to take methane readings that would have provided information regarding the amount
of methane that was present in the travelable bleeder entries and the extent to which methane was
being moved away from the active workings. It is undisputed that Cumberland did not take any
methane readings in the travelable bleeder entry during the afternoon shift of July 5. Tr. 530-31;
Oral Arg. Tr. 17-18. Notwithstanding its knowledge that methane readings underground were
likely to be higher than those at the No. 1 bleeder fan, the operator chose to monitor the methane
levels at the No. 1 bleeder fan, and decided to withdraw miners only if readings at the fan
reached 4%. Tr. 1146-47, 1152, 1351. Even under its plan to monitor conditions by taking
readings at the No. 1 bleeder shaft, the operator chose to leave the No. 1 bleeder fan unmonitored
for approximately three hours during the afternoon shift on July 5. Tr. 1784-85, 1828-29.
Accordingly, we affirm the judge's determination that the operator violated section
.
75.334(b)(l).21
B.

Citation No. 3657291
1.

Violation of Section 75.363(a)

Section 75.363(a) sets forth posting and correction requirements for a hazardous
condition, providing in part that "[a]ny hazardous condition . . . shall be posted with a
conspicuous danger sign where anyone entering the areas would pass. A hazardous condition
shall be corrected immediately or the area shall remain posted until the hazardous condition is
corrected." 30 C.F.R § 75.363(a). The standard also requires withdrawal of certain miners for an
imminent danger, providing in part that "[i]f the condition creates an imminent danger, everyone
except those persons referred to in section 104(c) . .. shall be withdrawn from the area affected
to a safe area until the hazardous condition is corrected." Id.
21

As Cumberland asserts (RAG Br. at 14-15), the judge erroneously concluded that the
air in the eastern perimeter bleeders and the air in the lB right bleeders constituted splits of air
and that the No. 1 bleeder shaft could be considered a return air course. 23 FMSHRC at 1252.
The Secretary's witnesses testified that those bleeder entries were not considered separate splits
of air but, rather were considered part of the same bleeder system. Tr. 374, 826-27. Moreover,
"return" is a term of art applicable to specific ventilation designs described in the regulations and
does not include the No. 1 bleeder shaft. See, e.g., 30 C.F.R. §§ 7S.323(c), 75.333. We also
conclude that the judge erred in finding that here the rise in water gauge pressure indicated an
increase in the water accumulation inby BEP SA or that the bleeder system was malfunctioning.
23 FMSHRC at 1246, 12S4. Consistent with Cumberland's assertions (RAG Br. at 20), there is
no evidence that there was a change in the accumulation of water inby BEP SA after June 29
when the water gauge at the No. 1 fan began to rise. Tr. 383, 638. Furthermore, a rise in water
gauge pressure indicates a change in resistance, and a change in resistance may or may not
indicate a problem with the bleeder system. Tr. 379-81, 1133-34. Nonetheless, we consider
these errors by the judge to be harmless.
26 FMSHRC 6S 1

In concluding that Cumberland violated section 75.363(a), the judge reasoned that it was
not feasible to use a danger-off sign because the hazardous bleeder conditions affected the entire
mine. 23 FMSHRC at 1257. Accordingly, he stated that the question was whether the bleeder
conditions during the afternoon shift of July 5 were a hazard that had to be corrected immediately
because they constituted an imminent danger. Id. The judge answered that query in the
affirmative. Id. at 1257-59.

The Secretary argues that Cumberland violated the posting, correction, and withdrawal
requirements of section 75.363(a). S. Br. at 28-35. She agrees with the judge's conclusion that
Cumberland violated the standard because there was an imminent danger during the afternoon
shift of July 5, and miners were not withdrawn from affected areas. Id. at 29, 33-35. The
Secretary also submits that, regardless of whether there was such an imminent danger, .
Cumberland violated section 75.363(a) because there was a hazardous condition that was not
posted or immediately corrected. Id. at 29-33. The Secretary disagrees with the judge's
reasoning that, because the entire mine was affected by the hazardous conditions and posting was
not feasible, the Secretary was required to prove that the hazard constituted an imminent danger.
Id. at 30 n.10. The Secretary asserts that the plain language of the standard provides that when
there is a hazardous condition, the operator is required to post the affected area of the mine or
immediately correct the condition, and that if posting is impractical, the operator is required to
correct the condition immediately. Id.
Cumberland disputes the judge's conclusion that constructive knowledge of an imminent
danger is sufficient to establish a violation. RAG Br. at 25-28. Cumberland further argues that
the judge failed to adequately define the extent of the area affected by any alleged imminent
danger. Id. at 28-29. Cumberland also asserts that the Secretary is impermissibly attempting to
advance before the Commission the alternate theory that Cumberland violated the posting and
correction requirements of section 75.363(a). RAG Reply Br. at 12-13.
Preliminarily, we disagree that the Secretary has advanced an argument outside of the
Commission's scope of review. The Commission has explained that an appellee
may urge in support of the judgment below any matter or issue
appearing in the record, even if it involves an objection to some
aspect of the judge's reasoning or some issue resolution, so long as
the appellee does not seek to attack the judgment itself or to
enlarge its rights thereunder, in which case it would be obliged to
file a cross-petition for discretionary review.
Sec'y of La.boron beftaljof Price v. Jim Walter Resources, Inc., 12 FMSHRC 1521, 1529 (Aug.
1990) (emphasis in original). Here, the Secretary does not seek to attack the judge's conclusion
that the citation should be affirmed or to enlarge her rights under that judgment. Although the
Secretary disagrees with the judge's reading of the standard (S. Br. at 30 n.10), it is settled that an
appellee may, without taking a cross-appeal, urge any matter appearing in the record even if the

26 FMSHRC 652

argument advanced "'involve[s] an attack upon the reasoning of the lower court or an insistence
upon matter overlooked or ignored by it."' 20 James Wm. Moore et al., Moore's Federal
Practice§ 304.11[3][b] at 304-29 (3d ed. 1997) ("Moore's") (quoting United States v. American
Ry. Express Co., 265 U.S. 425, 435 (1924)). 22
We agree with the Secretary that the record supports the conclusion that Cumberland
violated section 75.363(a). First, it is undisputed that, during the afternoon shift of July 5, the
bleeder conditions wen~ hazardous. Senior Mining Engineer Peelor acknowledged that the
operator could not allow a 3.6% methane concentration at the No. 1 bleeder shaft to continue
because of the potential of methane to rise to the explosive range if unchecked. Tr. 1725-28. He
agreed that the condition needed to be corrected as soon as possible. Tr. 1725-28, 1730-31. He
further explained that production was stopped on the midnight shift and ventilation changes were
made because "the problem was detected and it had to be addressed" immediately. Tr. 1736.
Safety Manager Bohach also acknowledged that, although Cumberland officials did not believe
they had an imminent danger, they believed they had "a situation that [they] had to address." Tr.
1343. The Secretary's witnesses uniformly testified that the level of methane exhausting from
the No. 1 bleeder reflected dangerous levels of methane at the mine. Tr. 127-28, 285, 562.
Second, we agree with the Secretary that the operator failed to correct the hazardous
bleeder conditions immediately, as required by section 75.363(a).23 Cumberland recognized that,
in conformance with the requirements of section 75.324, all miners except those making
ventilation changes had to be withdrawn from the mine before ventilation changes could be made
to address the elevated methane levels. 23 FMSHRC at 1249. At approximately 6:30 p.m. on
July 5, Safety Manager Bohach and Engineering Manager DuBois confirmed the methane
readings of 3.6% at the No. 1 bleeder fan. Tr. 1567. However, the operator decided that it would
wait until the midnight shift to make ventilation changes, and that it would evacuate miners
before then only if methane readings at the No. 1 bleeder shaft reached 4%. Tr. 1150-52. Miners
were not withdrawn so that ventilation changes could be made until after the end of the afternoon

22

The Secretary's argument that Cumberland violated the standard's posting and
correction requirements was sufficiently raised before and passed upon by the judge, so it is
reviewable by the Commission. See S. Post-Hr'g Br. at 34, 37-38; Tr. 303-04 (Secretary's
arguments that the standard requires that a hazardous condition be corrected immediately, that
the operator failed to correct the hazardous condition of high methane in the bleeder system
imm<:'.diately and that, even if the hazardous condition did not amount to an imminent danger,
miners should have been withdrawn so that the operator could have taken steps to correct the
condition immediately by making ventilation changes); 23 FMSHRC at 1257 (judge concluded
that the standard "requires hazardous conditions to be corrected immediately or to be dangeredoff," but that posting was not feasible).
23

The parties do not dispute that posting was impractical under the circumstances and
that, in any event, the operator did not post any area. S. Br. at 32 n.11; Oral Arg. Tr. 71; RAG
Reply Br. at 12.
26 FMSHRC 653

shift, at approximately midnight. Tr. 1511-12. Thus, the operator did not "immediately correct"
the bleeder conditions but, rather, delayed talcing some measures required to more fully correct
the violative conditions until the midnight shift.
We therefore disagree with Cumberland's assertion that its actions during the afternoon
shift were sufficient to bring it into compliance with section 75.363(a). RAG Reply Br. at 13-14.
After verifying the elevated methane levels at the No. 1 bleeder shaft, the operator opened the
32-1 borehole, and arranged for a electrician to fix the pump at that borehole. Tr. 1138-41.
While we credit Cumberland for finding the problem with the 32-1 borehole and solving it in a
timely fashion, even Cumberland concedes that it did not expect correction of the problem would
significantly affect the methane levels. Tr. 1818-20. DuBois clarified that a functioning pump at
the borehole might have reduced methane from 3.6% to 3.4%. Tr. 1814-lS. In fact, after
opening the borehole and allowing methane to flow freely from the borehole, methane readings
from the No. 1 shaft continued tO measure 3.6% throughout the remainder of the shift. Tr. 177879. The operator also decided to evaluate the No. 1 bleeder fan periodically for the remainder of
the afternoon shift and to withdraw miners if the methane level reached 4%. Tr. 1146, 11S2.
Nonetheless, there was a three-hour period between approximately 7:30 and 10:30 p.m. when the
No. 1 fan was not monitored. Tr. 1827-28.
Furthermore, as discussed above, given the past ratio of methane levels at the No. 1
bleeder fan and at BEP SA, the operator had information upon which to conclude that if 3.6%
methane was exhausting at the No. 1 bleeder fan, higher levels would be presumed to exist in the
travelable bleeder entries. Tr. 2005-08. MSHA considered 4.5% methane in a travelable bleeder
to constitute an imminent danger. 23 FMSHRC at 124S. Safety Manager Bohach agreed that
during active mining, MSHA's 4.S% limit was reasonable. Tr. 146S-67. He conceded that if the
operator had obtained a methane reading in the travelable bleeder at BEP SA in the explosive
range, the operator would have stopped production and evacuated the mine. Tr. 1400-02.
Given the information available to Cumberland at that time, it should have sent someone
on the afternoon shift of July 5 to the bleeder entry in question to determine if the imminent
danger level had been reached at BEP SA.24 Cumberland's counsel stated during oral argument
that it would have taken up to three hours for an individual from the surface to reach BEP SA and
obtain methane readings there. Oral Arg. Tr. 19-20. We do not find this argument persuasive.
The record suggests that miners underground might have been able to accomplish this more
rapidly. For example, Cumberland had a longwall foreman underground on the afternoon shift
(Tr. 161S-16) who could have reached the travelable bleeder entries in a much more reasonable

24

The operator apparently took a methane reading immediately upon reaching BEP SA
on the midnight shift, but after it had begun making ventilation changes on the midnight shift,
although documentary evidence of that reading was not introduced at the hearing or at any other
time in the proceedings. Tr. 1208-09, 134S-49, 1701-03, 1786-87, 184S-46. A methane reading
at BEP SA during the afternoon shift would seem necessary as baseline information to determine
whether the ventilation changes made during the midnight shift were effective.
26 FMSHRC 6S4

period of time to take methane readings. Cumberland's failure to utilize this person or some
other person already in the general underground area to take methane readings at BEP 5A has not
been satisfactorily explained and, in the absence of any justification, is not indicative of a prudent
operator who was taking the immediate corrective action required by the regulation.
Accordingly, we affirm, in result, the judge's conclusion that Cumberland violated section
75.363(a).25
2.

Unwarrantable Failure

The Commission has detennined that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence and encompasses conduct characterized as "reckless
disregard," "intentional misconduct," "indifference," or a "serious lack of reasonable care."
Emery Mining Corp., 9 FMSHRC 1997, 2001, 2003-04 (Dec. 1987); Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v. FMSHRC, 52
F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure test). The
Commission has recognized that whether conduct is "aggravated" in the context of
unwarrantable failure is determined by considering the facts and circumstances of each case to
determine if any aggravating or mitigating circumstances exist. See Consolidation Coal Co., 22
FMSHRC 340, 353 (Mar. 2000) ("Consol"). 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 are necessary for compliance, the operator's efforts in
abating the violative condition, whether the violation is obvious or poses a high degree of danger,
and the operator's knowledge of the existence of the violation. See Consol, 22 FMSHRC at 353.
Although the judge correctly set forth the Commission's standard for considering whether
violative conduct is caused by unwarrantable failure, he erred in its application. 23 FMSHRC at
1259-60. The judge concluded that Cumberland's violation of section 75.363(a) was
unwarrantable on the basis of four findings, which we conclude are not supported by substantial
evidence.
First, the judge concluded that the operator's failure to withdraw miners was aggravated
because general mine foreman Evans knew on the morning of July 5 that there were problems
with the bleeder system based on the increase in water gauge pressure at the No. 1 bleeder shaft
fan, but miners were allowed to continue production until the midnight shift. 23 FMSHRC at

25

The judge erroneously concluded that "[a]bnormally high concentrations of methane at
BEP 5A [were] an indication that methane from the gob [was] migrating back toward the
working face rather than being diluted and carried away to the surface." 23 FMSHRC at 1258.
An increase in methane in the bleeder entries is not necessarily an indication that methane is
migrating back towards the face. Rather, because the volume of air exiting the mine did not
significantly change (Tr. 1370), one would conclude that more methane was leaving the gob and
exiting the mine. Tr. 1363-64. Nonetheless, we consider the judge's finding as it relates to the
violation of section 75.363(a) to be harmless.
26 FMSHRC 655

1259. As noted earlier, the rise in pressure at the fan was not evidence of a methane problem, but
indicated a change in resistance in the mine. Tr. 203-04, 1133-34. It is undisputed that such a
change in resistance could occur as a result of normal mining practices. Tr. 379-82, 1913.
Second, the record controverts the judge's finding that the aggravated nature of the
operator's violation was demonstrated by evidence that the activation of the methane sensor at
the tailgate indicated that the bleeder system was not moving methane from the working face. 23
FMSHRC at 1259. UMW A Safety Committeeman Hroblak confirmed that on the afternoon shift
of July 5, ventilation of the longwall appeared "textbook." Tr. 104-06, 112; see also RAG Ex. 8
at 26-28. In addition, th~ Secretary's ventilation expert, John Urosek, testified that the methane
sensor on the longwall was located to measure methane in the airflow that crosses the longwall,
rather than the methane adjacent to the shields or coming from the gob. Tr. 2009. He stated that
there was sufficient air quantity at the longwall face to maintain methane levels at or below 1.5%
and that there was enough volume to dilute methane ·coming from the bleeder system or from the
gob directly behind the longwall. Tr. 2009. Urosek explained that, unless there were a massive
roof fall causing methane to be propelled from the gob to the longwall, gob methane would not
likely be picked up by the longwall sensors. Tr. 2015. MSHA Inspector Guley also testified that
he believed that the methane monitor problem at the face was not caused by problems with the
bleeder system. Tr. 630. Moreover, it appears that the methane monitor may have been activated
because the monitor's cable was "shorting-out." Tr. 1238, 1469-70. There also were no findings
of excessive methane at the face during the afternoon shift of July 5. Tr. 111-12, 1238; S. Br. at
8. We therefore hold that the judge's finding on this issue is unsupported by substantial
evidence.
Third, we conclude that substantial evidence does not support the judge's finding that
there was a significant possibility that rising methane levels inby BEP SA could accumulate in
the bleeder system and back up to the longwall face. 23 FMSHRC at 1260. The Secretary's
witnesses testified that they were unsure of the extent to which the methane had backed up and
characterized the problem with the bleeder system as presenting only a potential to cause a
methane back up at the face. Tr. 619-23, 661-62, 714, 719, 724. The judge himself concluded
that, contrary to the Secretary's assertion that the closure of BEPs 6, 7, and 8 had bottled up
methane in the gob and could eventually have resulted in methane backing up to the face, the
closure of BEPs 6 and 7 was not a significant cause of the bleeder malfunction.26 23 FMSHRC at
1246, 1256.
Fourth, we conclude that the judge erred in determining that other aggravating factors
existed, including that the violation was obvious, was allowed to exist for an extended period of
time, and was not disclosed to Cumberland's hourly employees. 23 FMSHRC at 1260. While
the operator obtained repeated readings of 3.6% methane, the cause of the elevated methane
readings was not obvious. Tr. 989-91, 1139-40, 1196-97, 1231, 1358-60, 1818-19. In fact, the
bleeder problem was not fully abated until July 30. Tr. 594-95, 1920-22. In addition,
26

The Secretary has not challenged that finding on review.
26 FMSHRC 656

Cumberland on its own initiative took repeated methane readings at the No. 1 bleeder shaft rather
than relying on MSHA's readings taken earlier that day showing methane within normal limits.
23 FMSHRC at 1247-48. As soon as it confirmed that its own readings indicated elevated levels
of methane, the operator formulated a plan for correction and began gathering the necessary
skilled manpower to carry out that plan. Tr. 1730-31, 1780-82. Moreover, although the operator
did not inform the hourly employees of the initial elevated readings, it informed miners at
8:00 p.m. that there would be a ventilation change during the midnight shift and informed safety
committee members at the end of the afternoon shift of the circumstances that had occurred.
23 FMSHRC at 1249; Tr. 110, 113-15, 122-23.
Although Cumberland's actions did not "immediately correct" the violative condition as
required by section 75.363(a), we must view the company's actions and their effects in the
context of the cited violation. As a preliminary matter, section 75.363(a) establishes alternative
means Of compliance. The operator shall either immediately correct the hazardous condition or
post the area. We note that, in addition to serving as mitigating factors that should have been
considered by the judge in his unwarrantable failure analysis, Cumberland's corrective actions
also must be considered as attempts to comply with section 75.363(a). First, Cumberland
identified the problem through proactive investigation. It then attempted to correct the problem.
Although those attempts were not effective in "correcting" the methane accumulation in the
bleeder shaft, the operator's belief that its course of action constituted an alternative means of
compliance does not rise to the level of unwarrantable failure. See Florence Mining Co., 11
FMSHRC 747, 753-54 (May 1989) (a unanimous Commission, relying on a review of the record
as a whole and all of the circumstances, reversed a judge's unwarrantable failure finding where
the operator relied upon an alternative means of evacuation). In this case, the Judge similarly did
not analyze all of the circumstances, nor did he consider that compliance with the regulatory
requirement was at least attempted through immediate, albeit ineffective, corrective action.
Moreover, the judge failed to give adequate weight to Cumberland's prior experience
with elevated methane readings at the No. 1 bleeder shaft as a mitigating factor. In 1996,
Cumberland had been cited for a non-significant and substantial violation of section 75.323(e)
because more than 2% methane was detected exhausting from the No. 1 bleeder shaft. Tr. 115154; RAG Ex. 6. From December 1996 to October 1997, methane readings were taken at the No.
1 bleeder shaft that exceeded 2.7% methane and ranged as high as 3.4%, yet MSHA allowed
Cumberland to operate. Tr. 232, 1157, 1490. Cumberland relied on this prior experience with
MSHA in concluding that it could continue operations during the afternoon shift of July 5 and
communicated that reliance to safety committee members at the end of the afternoon shift, and to
Inspector Hixson when he arrived at the mine during the midnight shift of July 6. Tr. 122, 23132; RAG Br. at 30. Thus, Cumberland relied upon MSHA's past actions as a basis for
continuing operations while it formulated and implemented a plan that allowed for the orderly
withdrawal of miners. Such circumstances preclude characterizing Cumberland's conduct as

26 FMSHRC 657

unwarrantable. 27 ·see Utah Power & Light Co., 12 FMSHRC 965, 972-73 (May 1990) (confusion
about agency policy founded on inconsistency of previous MSHA actions militates against
finding of aggravated conduct). Based on the foregoing, we reverse the judge's unwarrantable
failure determination.
3.

Civil Penalty

The judge asses_sed a civil penalty that was twice the amount proposed by the Secretary
for Cumberland's violation of section 75.363(a). 23 FMSHRC at 1260-61. Cumberland argues
that the judge erred in his assessment of the penalty. We agree.
The Commission's judges are accorded broad discretion in assessing civil penalties under
the Mine Act. Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986). Such discretion is
not unbounded, how·ever, and must reflect proper consideration of the penalty criteria set forth in
section llO(i) and the deterrent purposes of the Act. Id. (citing Sellersburg Stone Co., 5
FMSHRC 287, 290-94 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984)). The Commission has
further recognized that judges have discretion to assign differing weight to the various factors
according to the circumstances of the case. Lopke Quarries, Inc. 23 FMSHRC 705, 713 (July
2001) (citing Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). The Commission
has explained, however, "that a judge may not go beyond the criteria set forth in section 1lO(i)."
Jim Walter Res., Inc., 19 FMSHRC 498, 501 (Mar. 1997); Ambrosia Coal & Constr. Co., 18
FMSHRC 1552, 1565 (Sept. 1996) (concluding that the judge erred when he considered
deterrence as a separate factor warranting increase in penalty); see also Dolese Bros. Co., 16
FMSHRC 689, 695 (Apr. 1994) (concluding that the judge had considered a factor not applicable
under section llO(i) when he considered mental anguish in his assessment of penalty).
Assessments "lacking record support, infected by plain error, or otherwise constituting an abuse
of discretion are not immune from reversal." U.S. Steel Corp., 6 FMSHRC 1423, 1432 (June
1984).
Although the judge purportedly considered the operator's failure to disclose conditions as
part of his negligence and gravity criteria analyses, he further characterized this failure as a
breach of a fundamental Mine Act purpose: that miners and operators must work together to
identify and eliminate unsafe conditions. 23 FMSHRC at 1261. He concluded his discussion by
stating, "Cumberland's failure to disclose the bleeder conditions during the afternoon shift on
July 5, 2000, is an aggravating factor that warrants an increase in civil penalty." Id. Thus, the
judge impermissibly increased the penalty by relying on the operator's breach of a Mine Act
purpose, a factor outside of the section 11 O(i) penalty criteria. See Ambrosia, 18 FMSHRC at
1565; Dolese, 16 FMSHRC at 695 (concluding that judge erred by considering factors outside of

27

We further note that the operator made continuing efforts to adjust and monitor the
ventilation within its bleeder system by, for instance, adding the 2A bleeder shaft and fan,
making the air change on July 3, and monitoring water gauge pressure and methane readings. 23
FMSHRC at 1245-48.
26 FMSHRC 658

section llO(i) when assessing a penalty). Accordingly, we vacate the penalty and remand the
matter to the judge. The judge shall reassess the penalty without considering breach of a Mine
Act purpose as a separate factor bearing on the amount of the penalty. In addition, the judge
shall take into account our reversal of his unwarrantable failure finding.
III.
Conclusion

For the foregoing reasons, we affirm the judge's conclusion that Cumberland violated
section 75.334(b)(l). We affinn, in result, the judge's determination that Cumberland violated
section 75.363(a) and reverse the judge's determination that the violation was cause by
Cumberland's unwarrantable failure. We vacate the civil penalty associated with Citation No.
3657291 and remand for reassessment consistent with the instructions in this decision.

Micbae

26 FMSHRC 659

Commissioners Beatty and Jordan, concurring and dissenting:
We concur with the conclusion of our colleagues in the majority that Cumberland
violated the two regulations at issue. However, we disagree with their decision to reverse the
judge's ruling that the violation of 30 C.F.R. § 75.363(a) resulted from Cumberland's
unwarrantable failure to comply with that standard.
In addition to requiring operators to post and immediately correct a hazard, section
75.363(a) provides that if a hazardous condition creates an imminent danger, "everyone except
those persons referred to in section 104(c) of the Act shall be withdrawn from the area affected to
a safe area until the hazardous condition is corrected." 30 C.F.R. § 75.363(a). We believe the
record amply supports the judge's conclusion that methane readings obtained by Cumberland on
the afternoon of July 5 signaled an imminent danger, 23 FMSHRC 1241, 1259 (Nov. 2001)
(AU), and that Cumberland's failure to withdraw the miners amounted to aggravated conduct.
Id. at 1260.

Imminent danger is defined in section 3G) of the Mine Act as "the existence of any
condition or practice in a coal or other mine which could reasonably be expected to cause death
or serious physical harm before such condition or practice can be abated." 30 U.S.C.
§ 802(j) (emphasis added). Although the regulations do not specify an upper limit for methane
in the underground travelable bleeders, MSHA considers a 4 .5% level an imminent danger. 23
FMSHRC at 1257; Tr. 820-21; RAG Ex. 3. Cumberland does not disagree with this enforcement
policy. 23 FMSHRC at 1249. Indeed, Cumberland maintains that prudence requires the miners'
withdrawal when methane reaches 4.0% in the bleeder shaft. RAG Br. at 30-31; Tr. 1152, 1351.
Methane is explosive when it is in the 5 to 15 percent range. 23 FMSHRC at 1243.
The record indicates that during the two-week period leading up to July 5, Cumberland's
methane readings at the No.I bleeder shaft fan had been elevated. Tr. 183-85. Moreover, as the
judge found, during that same period, the higher readings underground at bleeder evaluation
point (BEP) 5A indicated that there was a two-to-one ratio of methane between the two locations.
23 FMSHRC at 1258. For example, on June 14, Cumberland obtained an Exotector reading of
1.8% methane at the No.1 bleeder fan, while measuring 3.5% methane at BEP 5A. Tr. 558-59,
1321-22; Gov't Ex. 7 at 64. On June 30, the Exotector detected only 1.89% methane at the No. 1
bleeder fan, but 3.5% at BEP 5A. Tr. 560-61, 1321-22; Gov't Ex. 7 at 68, 70. On July 3,
Cumberland took an Exotector reading at the No. 1 bleeder shaft of 1.8% or 1.9% methane. Tr.
1215. The reading at BEP 5A was 3.8%. Tr. 1217-18; Gov't Ex. 7 at 71.
On July 5, Cumberland personnel obtained methane readings of 3.6% at the No. 1 bleeder
fan. Tr. 1133-37, 1311- 12, 1326-27, 1563-64, 1890-92. According to MSHA, such high
readings were unheard of at a fan in an active mine. MSHA stated that levels such as those
detected by Cumberland were usually detected only after an emergency such as an explosion or
when a mine was reopened after having been sealed. Tr. 713. Indeed, Cumberland's general
mine foreman found it difficult to believe the reading at the fan was that high, and he sent the

26 FMSHRC 660

mine engineer back to take another measurement with a recalibrated Exotector. 23 FMSHRC at
1248, 1260. The engineer returned with another reading of 3.6%. Id. at 1248.
The judge determined that, given the conditions present on July 5, Cumberland was
obliged to err on the side of caution. Id. at 1259. We agree. In light of the record evidence
supporting the judge's finding of a recent 2:1 ratio between the underground methane levels at
BEP SA and the levels detected at the No. 1 bleeder fan, there was a substantial likelihood of
dangerously high levels of methane in the underground bleeder entries. Tr. 562-64; 718-19.
Nonetheless, as our colieagues note, it is undisputed that Cumberland failed to take any methane
readings in the travelable bleeder entry during the afternoon shift of July S. Slip op. at 11. Given
the information available to it at the time, Cumberland should have sent someone to BEP SA to
determine if the imminent danger level had been reached there. Id. at 16. Furthermore, the judge
determined that Cumberland's failure to withdraw miners on the shift was unreasonable and
constituted aggravated conduct, 23 FMSHRC at 1259-60, and substantial evidence supports that
conclusion. 1
Cumberland conceded that it would have withdrawn miners if methane levels had reached
4% at the No. 1 surface fan. Id. at 1257. The record indicates, however, that Cumberland did not
continuously monitor the methane readings from that No.I bleeder fan on July 5. In fact, the
record states that there was a three-hour time period on July 5 when the No. 1 bleeder fan was not
monitored at all. Tr. 1784, 1827-29. Thus, Cumberland would have no idea if readings during
those three hours reached 4 or 5 or 10 percent.
The Corrunission has also recognized that whether conduct is "aggravated" in the context
of unwarrantable failure is determined by looking at all the facts and circumstances of each case
to see if any aggravating factors exist. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar.
2000). These factors include the length of time the violation has existed, the extent of the
violative condition, whether the operator has been placed on notice that greater efforts are
necessary for compliance, the operator's efforts in abating the violative condition, whether the
violation is obvious or poses a high degree of danger, and the operator's knowledge of the
existence of the violation. Id. All of the relevant facts and circumstances of each case must be

1

The operator relies on tests showing that on July 3, there was a 1: 1 ratio of methane
between the No. 1 bleeder fan and the BEP SA. RAG Reply Br. at 9. However, Cumberland did
not have the bottle sample results which were the basis for the contention until July 13, several
days after the citation in this matter was issued. RAG Ex.7. In addition, Cumberland relies upon
evidence that there was 3.6% methane at the No. 1 bleeder fan on July 5 and 6 until ventilation
changes were made, and that the only methane reading taken at BEP SA revealed that there was
3.6% methane at that location also. RAG Reply Br. at 9 (citing Tr. 1582). However, the
methane reading relied upon by Cumberland depicting a methane reading of 3.6% at BEP 5A
was taken on July 3, not on July 5 or 6 (Tr. 1582), and it is therefore not appropriate to use it as a
basis for comparison.
26 FMSHRC 661

examined to determine if an actor's conduct is aggravated, or whether mitigating circumstances
exist. Id.
Substantial evidence supports the judge's determination that Cumberland's violation of
section 75.363(a) was of an aggravated duration. 23 FMSHRC at 1260. As previously
mentioned, over the two-week period prior to July 5, the water gauge pressure at the No. 1
bleeder fan had been increasing. Tr. 548. In fact, the mine foreman stated that on June 29, the
water gauge pressure ha~ a "substantial increase." Tr. 1970. The Secretary's ventilation expert,
Urosek, stated at that point, the operator should have taken any necessary steps to correct it. Tr.
1032.
However, it was not until July 5 that the mine foreman convened a meeting to discuss the
rise in water gauge readings and problems with the bleeder system. Tr. 1132-33, 1891. Even
then, when Cumberland became aware at approximately 4:00 p.m. that·day that there was
elevated methane exiting from the No. 1 bleeder shaft, it waited until the midnight shift to begin
significant ventilation changes underground. 23 FMSHRC at 1249-50; Tr. 1146-47, 1569,
1780-81.2
Substantial evidence also supports the judge's finding that the violation posed a high
degree of danger. 23 FMSHRC at 1260. As discussed above, there were concentrations of
methane in the bleeder system that were potentially in excess of 4%, given the 2: 1 ratio between
the No. 1 bleeder fan and BEP SA. As noted above, Cumberland had agreed that at 4%, the mine
would need to be evacuated.
Substantial evidence also supports the judge's determination that the condition was
obvious. Id. As the judge found, Cumberland employees took multiple readings that indicated
elevated methane was exhausting from the No. 1 bleeder fan. Tr. 1137-38, 1146, 1784-85. The
operator had actual knowledge of the increased water gauge readings and met to discuss their
effect on the bleeder system. Tr. 1132-33, 1891. 3
Our colleagues in the majority argue that the judge failed to consider mitigating
circumstances in making his unwarrantable failure determination. Slip op. at 19-20. This
argument is not persuasive. The majority agrees with Cumberland's assertion that its decision

2

Prior to that, Cumberland had made slight changes, such as opening the 32-1 surface
gob vent hole, without affecting the levels of methane found at the No. 1 fan. 23 FMSHRC at
1248.
3

Without supporting authority, the majority cites the fact that the cause of the elevated
readings was not obvious as a reason to reverse the judge's unwarrantable failure finding. Slip
op. at 18. If anything, this argues in favor of concluding that the failure to withdraw miners was
unwarrantable. Lack of knowledge as to what was causing the problem should have heightened
Cumberland's caution in this instance.
26 FMSHRC 662

not to withdraw the miners w~s reasonable because in the past MSHA permitted it to continue
operating when methane levels at the No. 1 fan reached 3.4%. -Id.; RAG Br. at 30. However, the
circumstances surrounding the earlier event were quite different, significantly lessening its
relevancy to the events in question here.

In the earlier situation at the No. 1 bleeder fan, MSHA issued a citation alleging a
violation of section 75.323(e) because more than 2% methane was detected in the No. 1 bleeder
shaft. Tr. 1153-54; RAG Ex. 6. From December 1996 to October 1997, methane readings were
taken at the No. 1 bleeder shaft fan that exceeded 2.7% and ranged as high as 3.4%, yet
Cumberland was allowed to operate. Tr. 232, 1157, 1490. At that time, however, unlike during
the afternoon shift of July 5, 2000, there was no evidence indicating that methane readings at a
BEP were twice the levels at the fan. In addition, in 1996 and 1997, even though MSHA had
allowed the operator to continue working, state officials and MSHA knew about the situation,
and MSHA had in place various guidelines and controls. Tr. 122, 232.

26 FMSHRC 663

We agree with the judge that on July 5 an imminent danger existed, and Cumberland was
obliged under the regulation to withdraw its miners before attempting to abate the hazardous
condition.4 For the foregoing reasons, we believe that its failure to do so constituted an
unwarrantable failure. 5

k

d 7< 7 I~
.

Robert H. Beatty, Jr.,

co=..n.r

4

Our colleagues' argument that the judge should have considered as a mitigating factor
that Cumberland "at least attempted" to comply with the regulation "through immediate, albeit
ineffective, corrective action," slip op. at 19, is misplaced. The existence of an imminent danger
required withdrawal of the miners before abatement efforts proceeded. Cumberland failed to
comply with this section of the regulation.
5

In addition to vacating and remanding the judge's penalty determination in light of the
majority's reversal of his unwarrantable failure finding, slip op. at 21, our colleagues vacate and
remand the penalty because the judge took one of the purposes of the Mine Act into account in
making his determination. Id. Commissioner Beatty joins the majority in vacating and
remanding the judge's penalty determination on this ground. Commissioner Jordan would
affirm the judge's penalty determination on this point. In his penalty discussion, 23 FMSHRC at
1261, the judge acknowledged language from section 2(e) of the Mine Act, in which Congress
declared that "the operators of ... mines with the assistance of the miners have the primary
responsibility to prevent the existence of [unsafe and unhealthful] ... conditions and practices in
such mines. 30 U.S.C. § 80l(e). Commissioner Jordan fails to see why a judge cannot keep this
global purpose in mind while applying the more specific penalty criteria set forth in section
llO(i). 30 U.S.C. § 820(i). Moreover, she believes that Cumberland's failure to disclose the
bleeder conditions to the miners during the afternoon of July 5 rightly falls under the negligence
criterion of section 11 O(i), as it relates to the operator's duty of care to avoid a violation. A.H.
Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). Commissioner Jordan believes that
Cumberland's failure to notify its miners of potentially dangerous conditions in the bleeder
system breached the duty of care inherent in section 75.363(a), providing for the posting of
violations and withdrawal of miners in the event there is an imminent danger.
26FMSHRC 664

Distribution
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22°d Floor West
Arlington, VA 22209-2247

R. Henry Moore, Esq.
Jackson Kelly, PllC
Three Gateway Center ·
401 Liberty Avenue, Suite 1340
Pittsburgh, PA 15222
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

26 FMSHRC 665

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

August 12, 2004
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. WEST 2000-480-R
WEST 2002-131

v.
TWENTYMILE COAL COMPANY

BEFORE: Duffy, Chairman; Beatty, Jordan, Suboleski, and Young, Commissioners
DECISION
BY: Beatty, Commissioner1
This case involves a consolidated contest and civil penalty proceeding under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C § 801 et seq. (2000) ("Mine Act" or "Act"). The
Department of Labor's Mine Safety and Health Administration ("MSHA") issued an order
pursuant to section 104(g) of the Act, 30 U.S.C. § 814(g), to Twentymile Coal Company
(''Twentymile") as a result of an alleged violation of a mandatory training standard set forth at 30
C.F.R. § 48.7(c) (2002). Administrative Law Judge David Barbour affirmed the order, concluding
that a violation had occurred and that it was significant and substantial ("S&S"). 25 FMSHRC
373, 384, 385 (July 2003) (AU). The judge also concluded that the proposed penalty assessment
was issued within a reasonable time and dismissed the operator's challenge. Id. at 388. The
Commission granted Twentymile' s petition for review. For the reasons that follow, we affirm in
part and reverse in part.

I.
Factual and Procedural Background
Twentymile operates the Foidel Creek Mine, a large underground coal mine in Routt
County, Colorado. 25 FMSHRC at 375. Twentymile employs approximately 300 miners and
utilizes two developing sections and one retreat longwall section to mine coal. Id.

1

A majority of the Commissioners joins in each section of Commissioner Beatty' s
opinion, and therefore it constitutes the Commission's decision in this case. A further
explanation of which Commissioners join in particular sections is provided on page 6, infra.
26 FMSHRC 666

Due to geological conditions in the mine, there are times· when rock is extracted along with
coal. Id. In order to avoid combining coal from other areas of the mine with the rock-coal
mixture, Twentymile separately transports the mixed material out of the mine. Id. Prior to the
events in this proceeding, Twentymile utilized a series of four conveyor belts to move the mixed
material. Id. In order to more efficiently transport the rock-coal mixture, Edwin Brady,
conveyance manager at the mine, designed a chute to assist in this process and supervised its
installation. Id.
The vertical chute that Brady designed is five feet square and is located in a vertical shaft,
the "Glory Hole," which fs approximately 12 feet in diameter. Id. at 376; Tr. 20. The chute,
which is about 45 to 50 feet in height, connects an upper level of the mine to a lower level. 25
FMSHRC at 375-76. At the upper level, the rock-coal mixture moves to the chute on a conveyor
belt that has a gate positioned over the chute. Id. at 376. When the gate is positioned to divert the ·
rock-coal mixture away from a bunker where coal is stored, material is dumped from the conveyor
belt into a hopper at the top of the chute and falls through the chute to the lower level. Id. Rocks
entering the chute range in size from one inch to eight inches in diameter. Id. at 379. At the
bottom, there is a "rock box," or slanted chute, which channels the material onto a conveyor belt
that moves it out of the mine. Id. at 375-76.
Brady's design includes baffles to slow the fall of the material and prevent damage to the
rock box or conveyor belt at the lower level. Id. at 376. A vertical ladder stands alongside the
chute with four landings that are accessible by the ladder. Id. At each landing, a door opens to
the interior of the chute for observation or maintenance. Id. The door is secured by a latch that is
held in place by an eye bolt that must be loosened before the door can open. Id. When the door to
the chute is opened, it swings outward. T. Ex. 3 and 4. In order to avoid material coming through
the doorway, a miner must stand back and behind the door. 25 FMSHRC at 376. At the top and
bottom of the chute are electronic signals that are triggered when the chute becomes clogged. Id.
The conveyor is designed to stop automatically if materials can no longer move through the chute.
Id.; Tr. 159-60.
On May 26, 2000, Twentymile placed the chute in service. 25 FMSHRC at 376. For
several days, the chute operated without problems. Id. On June 6, the chute became clogged, and
the conveyor on the upper level stopped feeding the chute. Id. Brady instructed electricians to
check the motor on the conveyor feeding the chute.· Id. They reported to him that the motor was
fine and that the chute was clogged. Id.
Brady then walked to the top of the chute, climbed onto the ladder, and got off on the
platform closest to the top of the chute. Id. He loosened the eye bolt on the latch, opened the
door accessing the chute, and observed that large rocks were blocking the door. Id.; Tr. 167-68.
He closed the door, secured the latch by tightening the eye bolt, and climbed down the ladder. 25
FMSHRC at 376. At each level, Brady opened the door and observed more rock until he reached
the bottom of the chute where he met beltmen Craig Bricker and Rick Fadely. Id. at 377. Brady
26 FMSHRC 667

instructed Fadely to go to the lowest landing, open the access door, and try loosening the material
with a steel bar. Id. Fadely was unable to free the material with the bar. Id. Brady then ordered
the miners to get the water hose and spray the material because he believed the material might
become unstuck if it became "soupy." Id.
Kevin Olson, the acting shift supervisor, learned that the chute was clogged and assigned
Matthew Winey, the production crew foreman, to go to the bottom of the chute and help in
unplugging it so that mining could begin again. Id. Winey, in turn, directed members of his crew
to go to the bottom of the rock chute. Id. When Winey reached the chute, Bricker and Fadely
were assisting Brady in connecting the hose. Id. When it was connected, Fadely and Winey
climbed to the lowest landing and Winey commenced spraying the stuck material in the chute
while Brady began to hit the bottom of the chute with a hammer. Id. After about five minutes of
spraying and hitting the chute, the material in the chute began to move. Id.
Kyle Webb was a member of Winey's crew with more than four years of mining
experience. Id. Members ofWiney's crew came to the chute at varying times, and Webb arrived
at the chute with several other miners. Id. Either before or after Winey and Fadely began
spraying the stuck material, Webb climbed the rock chute ladder above the lowest platform. Id.
Neither Fadely nor Winey instructed Webb to go up the ladder, nor did Winey ask Webb where he
was going. Id. at 377-78. According to Brady, there was no need for any miner to go up the
ladder because there was nothing to do above the access door where Fadely and Winey were
spraying the stuck material. Id. at 378.
As the material started to move in the chute, Webb fell and landed on the bottom platform.
Id. At about the same time that Webb fell, the rock-coal mixture began to spill out of the top
access door and down the outside of the chute.2 Id. The material hit Webb as he lay on the
platform. Id. Winey and Fadely took cover underneath the platform as the material fell. Id. An
electrician who was working at the top of the chute heard shouting below and climbed down the
ladder and closed the top access door. Id. When the material ceased falling, several miners went
to assist Webb. Id. Webb was airlifted to a local hospital where he was diagnosed with and
treated for serious, but non-fatal, head injuries. Id.
The mine' s safety manager, R. Lincoln Derick, was notified at his home regarding the
accident. Id. In turn, he immediately contacted MSHA Inspector Philip Gibson. Id. Derick and
Gibson both went to the mine. Id. Gibson went into the mine with several representatives of
Twentymile and an officer of the Routt County Sheriffs department. Id. at 378-79. Gibson
began his investigation at the top of the chute and proceeded to the bottom. Id. at 379. The
access door on the lowest level was open and material began to spill out of the chute, causing
2

It is not clear from the record how the upper access door was opened. Winey
speculated that Brady might not have adequately secured it after he opened it to examine the
stuck material or that the door might have opened due to a design flaw. It is also possible that
Webb himself could have opened the door prior to his fall. 25 FMSHRC at 378 & n.9.
26 FMSHRC 668

Gibson to move quickly out of the way when he slipped and slightly injured himself. Tr. 52.
Thereafter, Gibson issued an imminent danger order to TwentyrD.ile that required it to obtain
MSHA's approval before resuming mining operations.3 25 FMSHRC at 379.
From June 7 through June 14, Gibson returned to the mine where he continued his
investigation by interviewing witnesses, taking photographs, and reviewing training records. Id.
During this time, Twentymile completed the accident investigation report that it was required to
file under Part 50 of MSHA's regulations. Id.; Gov't Ex. 11.
On June 16, 2000, Gibson issued an order, pursuant to Section 104(g)(l), 30 U.S.C.
§ 814(g)(l),4 charging Twentymile with an S&S violation of 30 C.F.R. § 48.7(c)5 when it allowed
miners to unplug the rock-chute without first receiving task training. The order stated in pertinent
part:
Personnel such as mining crews, supervisors, and laborers, who had
reason to work from or travel on the ladders and landings of the
"Rock Chute" at the "Glory Hole" area had not received the
requisite safety training ... before they performed their work in this

3

That order is not at issue in this proceeding.

4

Section 104(g)(l) provides:

If, upon any inspection or investigation ... , the
Secretary ... shall find employed at a coal or other
mine a miner who has not received the requisite
safety training as determined under section 115 of
this Act, the Secretary ... shall issue an order ...
which declares such miner to be a hazard to himself
and to others, and requiring that such miner be
immediately withdrawn from the coal or other mine,
and be prohibited from entering such mine until an
authorized representative of the Secretary
determines that such miner has received the training
required by section 115 of this Act.
5

At the time the order was issued, section 48.7(c) stated, "Miners assigned a new task
not covered in paragraph (a) of this section shall be instructed in the safety and health aspects and
safe work procedures of the task, prior to performing such task." ''Task" is further defined at
section 48.2(f), 30 C.F.R. § 48.2(f): "Task means a work assignment that includes duties of a job
that occur on a regular basis and which requires physical abilities and job knowledge."
26 FMSHRC 669

area. The "Rock Chute" had become plugged with blasted roof
material on June 6, 2000. These persons entered the area to work at
unplugging the chute before they had received safety training.
Order 7618153. The order was abated when Twentymile adopted procedures for working around
the rock chute, including instructing miners in safe work practices. Tr. 44-45; Gov't Ex. 4.
Twentymile filed .a notice of contest. The judge assigned to the case stayed the contest
proceeding pending issuance of a penalty assessment. Order, dated Aug. 1, 2000. On January 4,
2001, MSHA issued its accident investigation report. Gov't Ex. 5. On November 9, 2001,
MSHA issued a proposed· penalty assessment, and the case proceeded to trial. 25 FMSHRC at
386.
The judge issued a decision6 in which he rejected Twentymile's challenge to the order on
the basis that it was impermissibly vague in identifying the miners needing task training and in
describing the task for which training was needed. Id. at 382. He concluded that the order, as
initially written, used a permissible "class description" in identifying those who worked or
traveled around the rock chute. Id. He further noted that the order was amended at trial to include
the names of the miners who were not given adequate task training. Id. With regard to the task
described, the judge concluded that there was no doubt as to the task for which training was
required. Id.
With regard to the merits of the violation of section 48.7(c), the judge found that none of
the miners who were assigned to unplug the chute received any task training regarding the
assignment beforehand. Id. at 383. Concluding that Twentymile should have anticipated that the
job of unplugging the chute would occur on a "regular'' basis, he affirmed the violation. Id. at
384. In addressing the S&S designation of the violation, the judge found that the lack of training
created conditions under which a miner could have fallen or been struck by escaping material and
that the resulting injury would have been serious. Id. at 385-86.
The judge rejected Twentymile's challenge to the penalty that was based on a 17-month
delay between the order and the issuance of the proposed penalty. Id. at 386-88. The judge
initially noted that the Act gave the Secretary "a reasonable time" within which to notify an
operator of a proposed civil penalty and that the Secretary met this requirement. Id. at 387. In
addition, the judge analyzed the reason for the delay and whether the operator was prejudiced. Id.
He concluded that the reasons MSHA gave for the delay - a shift in personnel in MSHA offices
and the failure of a new employee to understand his duties - were "understandable" and that the

6

The case proceeded to trial before Judge August Cetti. However, before he issued a
decision in the case, he retired and the matter was transferred to Judge Barbour. The parties
agreed that Judge Barbour could decide the case on the basis of the record that he received from
Judge Cetti without the need to take further evidence.

26 FMSHRC 670

lapse in time was not prejudicial to Twentymile. Id. at 388. The judge, therefore, declined to
dismiss the penalty petition. Id. In weighing the penalty criteria, the judge concluded that the
Secretary's proposed penalty of $6,000 was excessive and reduced it to $1,500. Id. at 389.
II.
Disposition
Generally, Twentymile argues that the language of sections 48.7(c) and 48.2(f) is clear and
unambiguous and that task training was not required because unplugging the chute was not a
"task" t~at was performed on a regular basis. T. Br. at 9-11. Twentymile further argues that the
order was not sufficiently specific (id. at 16-21), and that the inclusion of the six miners in the
amended order is not supported by substantial evidence. Id. at 22-25. Twentymile contends that
the judge misapplied the Commission's test for determining whether a violation is S&S. Id. at 2528. Finally, it challenges the judge's' conclusion that MSHA's delay in issuing a penalty proposal
was not unreasonable. Id. at 28-33.
In support of the judge's decision, the Secretary argues that she should be given deference
in interpreting the regulation at issue. S. Br. at 12-14. The Secretary further argues that the order
gave Twentymile adequate notice of the allegations against it. Id. at 28-32. The Secretary asserts
that substantial evidence supports the judge's determination that the miners named in the amended
order needed task training. Id. at 21-24. She argues that the judge correctly found that the
violation of the training regulation was S&S. Id. at 24-28. Finally, the Secretary challenges the
assertion that the penalty assessment should be dismissed because she took too much time in
proposing it. Id. at 32-44.
The Commission unanimously finds that Twentymile violated the training standard and
that the violation was S&S, but Chairman Duffy and Commissioner Suboleski reach a finding of
violation on separate grounds. Chairman Duffy and Commissioners Beatty and Young conclude
that a section 104(a) citation should have issued instead of a section 104(g) order. All
Commissioners agree that the citation was sufficiently specific. The Commission, with
Commissioners Jordan and Young dissenting, concludes that the proposed penalty was not issued
within a reasonable time and, accordingly, vacates the civil penalty.
A.

Adequacy of the Order

The judge concluded that the order was not deficient in identifying those to whom it
applied and that, even if the order lacked sufficient specificity, it was amended at hearing to
include the names of those miners who had not been given the required task training. 25
FMSRHC at 382. He further held that the order made clear which task required training. Id.
Before the Commission, Twentymile argues that the order did not specifically identify the miners
to be trained or the task for which training was required. T. Br. at 16. The Secretary responds that
the order satisfied the requirements of an administrative pleading because it gave Twentymile fair
notice of the allegations against it. S. Br. at 28-29.

26 FMSHRC 671

l.

Issuance of a Section 104(g) Order

We conclude that the section 104(g) order issued to Twentyrnile in this case was void ab
initio for its failure to conform to the requirements of section 104(g), 30 U.S.C. § 814(g).
However, since the fact of violation survives the deficiencies of the order, we modify the order to
a section 104(a) citation, an action within our authority under section 105(d) of the Act, 30 U.S.C.
§ 815(d).
In the course of legislating the 1977 Mine Safety and Health Act, Congress recognized
with a significant degree of criticism that no mandatory safety and health standards addressing the
training of miners existed under either of the predecessor statutes, the 1966 Metal and
Nonmetallic Safety Act, 30 U.S.C. § 721 et seq. (1976), and the 1969 Coal Mine Health and
Safety Act, 30 U.S.C. § 801 et seq. (1976) ("1969 Coal Act"): "It is unacceptable that years after
enactment of these mine safety laws, miners can still go into the mines without even rudimentary
training in safety." S. Rep. No. 95-181, at 4 (1977), reprinted in Senate Subcomm. on Labor,
Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at
592 (1978) ("Legis. Hist.").

The Committee considers the presence of miners in a dangerous
mine environment who have not had even rudimentary training in
self-preservation and safety practices inexcusable; and in the fact
that regulations requiring said training have not yet been
promulgated is a serious failure in mine safety administration.
S. Rep. No. 95-181, at 49-50, reprinted in Legis. Hist. at 637-38. Accordingly, in section 115 of
the Act, Congress mandated new miner training for both surface and underground miners, annual
refresher training for all miners, and task training for "any miner who is reassigned to a ne\\'. task
in which he has had no previous work experience." 30 U.S.C. § 825(a).

To ensure compliance with the new training mandates, Congress also authorized use of the
withdrawal order set forth in section 104(g). Under that provision, if an authorized representative
of the Secretary
[f]ind[s] employed at any coal or other mine a miner who has not
received the requisite safety training as determined under section
115 of this Act, [he] 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 coal
or other mine, and be prohibited from entering such mine until an authorized representative ...
determines that such miner has received the training required by section 115 of this Act.
30 u.s.c. § 814(g)(l).

26 FMSHRC 672

The wording of section 104(g) could not be clearer: a section 104(g) withdrawal order is
an order aimed at a specific individual (one deemed a hazard to ·himself and to others), and it is to
be issued on the spot in real time.
Given that there were no statutory or regulatory requirements for safety and health training
in place prior to the passage of the Act, it is clear that the enforcement action authorized in section
104(g) was intended to ensure that miners without even "rudimentary training in self-protection
and safety practices" would not be allowed to work in mines once the Act took effect. Thus, the
withdrawal provision was, at the outset, intended to spur the Secretary to promulgate training
regulations and operators to implement training plans during the six-month period between
enactment of the new law and its effective date. In our view, Congress, in fashioning the section
104(g) order, chiefly had in mind those new miners who had not received their initial 40 or 24
hours training and those experienced miners who had not received their annual 8 hours of
refresher training since it would be logical to remove those miners from the mine and place them
in classrooms or in practical training environments until the requisite hours had been met.
Conversely, the inclusion of task training within the scope of a withdrawal order is
somewhat problematical. It is singularly counterintuitive to remove a miner from the area where a
particular task is to be performed in order to provide him with training in that task.7 Be that as it
may, as the statute reads, a section 104(g) order is authorized in a situation where an inspector
discovers that a miner has not been given necessary task training.8
Although the Secretary is generally authorized to issue a section 104(g) withdrawal order
upon finding that a miner has not received required task training, the plain meaning and intent of
section 104(g) mandates that such an order must meet at least two basic requirements. First, it
must specify the miner or miners being withdrawn and prohibited from re-entering the mine or
relevant area within the mine until the lack of training has been rectified. Second, the order must
be issued on the spot - during or immediately following an inspection - and provide for
immediate withdrawal of the miner(s) in question.
With regard to the requirement that the section 104(g) order specifically identify affected
miners, the statutory language clearly contemplates that the order be directed at a particular miner

7

We note that 30 C.F.R. § 48.7(a)(l) provides that task training for "work tasks,
equipment, and machinery ... shall be given in an on-the-job environment."
8

Withdrawal orders can be issued to encompass a part of a mine or even a particular
piece of equipment on the theory that the definition of "mine" in the Act encompasses areas or
equipment within the mine. Perhaps then, a section 104(g) withdrawal order, in practical terms
and effect, could mean that a miner requiring task training could be removed from the immediate
area within which the task is being performed, taught the appropriate procedures, and then
returned to the scene of the task to demonstrate proficiency and safety consciousness in carrying
out the task.

26 FMSHRC 673

who is a hazard to "himself and to others," not that it simply conclude that training violations
exist. Moreover, the statute provides that the miner affected by a withdrawal order shall "be
prohibited from entering such mine until ... the Secretary determines that such miner has
received [the necessary] training . ..." Thus, as a practical and fundamental matter, the miner or
miners subject to a section 104(g) order must be specifically identified so that the Secretary can
subsequently determine whether the necessary training has been received and the order has
thereby been properly abated.9 By contrast, a citation issued under section 104(a) need not
necessarily identify the miners involved in a training violation so long as the operator is provided
fair notice of the violation and the means of abatement and can adequately prepare for a hearing
on the matter. Seep. 10, infra. The second requirement - that the order be issued on the spot
during or immediately following an inspection and provide for immediate withdrawal of the
miners in question - also follows from the statutory language. Section 104(g) calls for the
"immediate withdrawal" of an affected miner to address an immediate hai:ard created by the
miner's lack of training, not an order issued much later seeking to address a situation that has
already been resolved, or is in the process of being resolved.

In this case, MSHA's issuance of the section 104(g) order failed to satisfy the
requirements above for such an order. The order did not name the miners affected, and therefore
MSHA could not properly determine later whether the miners in question had received the
requisite task training so that they could be allowed to re-enter the mine as provided in section
104(g). The order likewise clearly did not satisfy the on-the-spot, immediate withdrawal
requirement because it was issued ten days after the inspection in question - at a time when no
immediate withdrawal was necessary. The conclusion that the issuance of a withdrawal order was
inappropriate in this case is further demonstrated by the fact that MSHA agreed that Twentymile's
general plan to provide training prospectively to miners working in the rock chute (Gov't Ex. 4)
constituted proper abatement of the withdrawal order. As discussed above, the statute makes clear
that a properly issued section 104(g) order is to be abated by actually providing specific task
training to the affected miner so that he may re-enter the mine.
Finally, as to the argument that a section 104(g) order must be issued in all circumstances
involving training violations, that simply is not the case. The Commission recently issued a

9

For example, the task training received by the miner in question must be recorded and
certified in accordance with 30 C.F.R. § 48.9(a), which provides in relevant part:
Upon a miner's completion of each MSHA approved training program, the
operator shall record and certify on MSHA form 5000-23 that the miner
has received the specified training. A copy of the training certificate shall
be given to the miner at the completion of the training. The training
certificates for each miner shall be available at the minesite for inspection
by MSHA and examination by the miners, the miner's representative, and
State inspection agencies.
26 FMSHRC 674

decision in Dacotah Cement, 26 FMSHRC 461 (June 2004), wherein a section 104(a) citation, not
a section 104(g) order, was issued when an inspector cited the operator for failing to provide task
training.
For these reasons, we hereby modify the section 104(g) order to a section 104(a) citation
with S&S findings.
2.

Specificity of the Order10

Section 104(a) of the Mine Act requires that each "citation shall be in writing and shall
describe with particularity the nature of the violation, including a reference to the provision of the
Act, standard, rule, regulation, or order alleged to have been violated." 30 U.S.C. § 814(a). The
Commission has generally recognized that this requirement for specificity serves the dual
purposes of allowing the operator to discern what conditions require abatement and to adequately
prepare for a hearing on the matter. See Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 379
(Mar. 1993), and cases cited.
The citation generally referred to the miners who "entered the area to work at unplugging
the chute." 25 FMSHRC at 382. The judge concluded that this "class description" was
permissible in light of the operator's "presumed knowledge" of those working at the chute. Id.
Contrary to Twentymile's argument (T. Br. at 18), there is no language in section 104(a) requiring
that miners be identified by name. Moreover, as Twentymile acknowledges, the miners included
in the citation were identified by MSHA in two responses to interrogatories. Id. Significantly, the
Secretary amended the citation at trial to include the names of the miners who were not task
trained before working on the rock chute. 11 Tr. 71. In light of this identification of the miners
included in the citation, Twentymile cannot seriously contest its ability to respond to the violation
alleged at trial. Nor is it apparent that the lack of inclusion of named miners within the citation
impeded Twentymile's abatement of the violation. Twentymile abated the violation when it
implemented work practices embodied in "Glory Hole - Rock Chute and Coal Bunker Safe Work
Procedures," which included a requirement for task training for miners working in or around the
rock chute. Gov't Ex. 4. Because the assignment of miners to the task of unplugging the chute is
wholly within Twentymile' s control, for purposes of abatement, the class of miners requiring
training must necessarily be broadly defined to identify potential miners who may be assigned to
the same task in the future and, thus, also require task training.

10

Hereafter, we refer to the order as a "citation," consistent with our above modification.

11

Twentymile generally objects to the judge permitting the citation to be amended at
trial. T. Br. at 19. However, the Commission has long held that leave to amend citations and
orders should be freely granted, and a judge's determination in this regard is reviewable under an
abuse of discretion standard. See Cyprus Empire Corp., 12 FMSHRC 911, 916 (May 1990).
Twentymile has not made any showing that the judge abused his discretion in this proceeding in
granting the amendment to the citation.
26 FMSHRC 675

Finally, Twentymile objects to the description of the task for which training was required.
The citation generally described the miners' work assignment as involving the rock chute on the
day of the accident. In addition, the citation was specific in referring to the task as unplugging the
rock chute before safety training was given. Consistent with the description in the citation, the
accident report that Twentymile prepared following the accident described the task as "cleaning
plugged chute." Gov' t Ex. 11, at 1. Thus, the judge's conclusion, "[t]here was no doubt as to the
task for which training was required" (25 FMSHRC at 382), is well supported by the record.
In short, the citation was sufficiently specific to provide notice to Twentymile of the
conditions that existed at the mine that were the basis for the alleged violation.
B.

Violation of Section 48.7(c)

Although he did not explicitly say so, the judge appears to have based his reading of the
regulation on a plain meaning analysis. See 25 FMSHRC at 382-84. Before the Commission,
Twentymile argues that the meaning of the regulation is plain. T. Br. at 9-11. The Secretary
argues that the regulation is ambiguous and that she is entitled to deference in her interpretation.
S Br. at 12-13.
Section 48.7(c) provides that miners who are assigned to a "new task" "shall be instructed
in the safety and health aspects and safe work procedures of the task, prior to perfonning such
task." 12 30 C.F.R. § 48.7(c). 'vr'ask" is further defined in section 48.2(f) as a "work assignment
that includes duties of a job that occur on a regular basis and which requires physical abilities and
job knowledge." 30 C.F.R. § 48.2(f).
The "language of a regulation ... is the starting point for its interpretation." Dyer v.
United States, 832 F.2d 1062, 1066 (9th Cir. 1987) (citing Consumer Prod. Safety Comm'n v.
GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). 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 id.; Utah Power & Light Co., 11FMSHRC1926, 1930 (Oct. 1989); Consolidation
Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993).
The parties essentially do not disagree over the meaning of section 48.7(c). Nor was it
disputed by the parties that the miners who were sent to unplug the chute on June 6 were not

12

The regulation mirrors the language in section 115(a)(4) of the Mine Act, 30 U.S.C.
§ 825(a)(4), which states, "[A]ny miner who is reassigned to a new task in which he has no
previous work experience shall receive training in accordance with a training plan approved by
the Secretary ... in the safety and health aspects specific to that task." The regulation has been
revised since the violation that occurred in this proceeding. See 30 C.F.R. 48.7(c) (2003).
26 FMSHRC 676

trained in the job prior to the assignment. 13 25 FMSHRC at 383: Rather, they largely disagree
over whether Twentymile should have anticipated that the job of unplugging the chute would
occur on a "regular basis" so as to come within the regulatory definition of "task."
The judge concluded that the task of unclogging the chute was one that would occur on a
regular basis and that Twentymile violated section 48.7(c) when it assigned miners to work on the
chute without training them. 25 FMSHRC at 384. When reviewing an administrative law judge's
factual determinations, the Commission is bound by the terms of the Mine Act to apply the
substantial evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such
relevant evidence as a reasonable mind might accept as adequate to support [the judge's]
conclusion."' Rochester & Pittsburgh Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 14
Substantial evidence supports the judge's findings regarding the recurring nature of
unplugging the rock chute. The judge began his analysis of whether Twentymile should have
foreseen that the task would occur on a regular basis by examining the conditions and work
practices at the mine. 25 FMSHRC at 383. The judge noted that the rock chute was newly
installed and had only been in full operation for several days before it became clogged on June 6.
Id. at 384. He also noted that Twentymile had installed four doors on the chute. Id. These doors
allowed access to the chute for observation and maintenance from platforms that were adjacent to
the chute. Id. at 376. Twentymile also installed two internal monitoring devices, one at the
bottom of the chute and one at the top, to signal when material in the chute stopped flowing. Id.
at 384. In addition to the presence of the signals noted by the judge, the record also indicates that
the conveyor that fed the hopper to the chute was designed to automatically cut off if material
stopped flowing in the chute. Id. at 376.
The judge further noted that the problem of clogged or blocked chutes was not new to the
mine. Id. at 384. Other chutes became clogged when wet, "sticky" material went into the chutes.
Id. In conveyance manager Brady's words, it was a "recurring problem," happening about every
four, five, or six months. Tr. 190-91. In light of the fact that the rock chute carried similar
material with a known propensity to jam chutes, the judge inferred that a "reasonably prudent
person" would have anticipated that the material in the rock chute would clog at least as

13

The operator's training plan, which had not been updated since 1993, contained
nothing about task training in chute maintenance. Gov't Ex. 13; Tr. 127-28.
14

The Commission has further held that "the substantial evidence standard may be met
by reasonable inferences drawn from indirect evidence." Mid-Continent Res., Inc., 6 FMSHRC
1132, 1138 (May 1984). The Commission has emphasized that inferences drawn by the judge
are "permissible provided they are inherently reasonable and there is a logical and rational
connection between the evidentiary facts and the ultimate fact inferred." Id.

26 FMSHRC 677

frequently and that Twentymile therefore violated section 48.7(c) when it assigned the miners to
unplug the chute without training them. 25 FMSHRC at 384. ·
Twentymile argues that the judge engaged in speculation in determining that the newlyinstalled chute would clog, that the devices on the chute that the judge examined as evidence that
the operator anticipated clogging were there for other reasons, and that, even if the chute clogged
several times a year, unclogging it would not meet the dictionary definition of a "regular" task. T.
Br. at 13-15. Despite Twentymile's contentions, however, the installation of a new piece of
equipment requires an operator to consider whether tasks involving the equipment will occur on a
regular basis. Where a task cannot be scheduled, but is reasonably foreseeable as a recurring duty
with discrete health and s·afety concerns, an operator is expected to provide proper planning and
communication to ensure that workers performing the task receive appropriate training. To hold
otherwise would be to defer training necessary to guard against the hazards associated with the job
until an unfortunate experience ratifies the need for task training. ·
Jams, clogs, or other failures are, of course, not scheduled events. If they occurred on a
literally "regular" basis, an operator presumably would take some course of action to prevent their
"regular" occurrence. Imposing a literal definition of "regular," however, creates a situation in
which the health and safety aspects of events that are reasonably foreseen as recurring, but not at
scheduled or fixed intervals, would escape the mine' s training program. 15 This is contrary to the
general intent of the Mine Act and more specifically to the training provisions. S. Rep. No. 95181, at 49-50, reprinted in Legis. Hist. at 637-38 (1978) (recognizing "[t]he hazards involved with
... mining . . . and the need to provide for the health and safety of the nation's miners" and that
"health and safety training of miners is essential to achieving" safety under the Act). See also
Cannelton Industries, Inc., 26 FMSHRC 146, 151 (Mar. 2004), appeal docketed, No. 041126
(D.C. Cir., Apr. 12, 2004) (reading the plain words of a provision literally can carry a different
meaning than intended), citing Meredith v. FMSHRC, 177 F.3d 1042, 1053-54 (D.C. Cir. 1999).
While we do not know how ''regularly" the rock chute would become clogged in normal day-today mining operations, the record suggests it became clogged after several days of operation
before it was substantially modified. 25 FMSHRC at 376; Tr. 70, 169, 276-77. That, combined
with Twentymile's experience with periodic clogging of other chutes in the mine and design
features of this chute indicating that Twentymile was aware of the potential for clogging or
jamming, support the judge's conclusion that the rock chute would reasonably be anticipated to
clog or jam on a recurring basis. 16

15

As the Secretary states (S. Br. at 14 n.8), Twentymile's safety manager testified that
task training was given to miners prior to moving longwall mining equipment even though such
moves only occur about every eight months. Tr. 294-95. Moreover, at oral argument counsel for
Twentymile agreed that jobs performed at sporadic intervals would not necessarily be exempt
from task training requirements. Oral Arg. Tr. 12-13.
16

The fact that some of the devices noted by the judge, such as access doors, could be
used for a purpose other than unclogging the chute does not undercut his findings and inferences.
26 FMSHRC 678

Finally, Twentymile asks the Commission to overturn the judge's decision with respect to
the citation because he failed to analyze whether each of the six·miners named in the amended
citation needed task training. T. Br. at 22-25. The named miners included Ed Brady, Rick
Fadely, Kyle Webb, Eric Hough, Matt Winey, and Craig Bricker. Tr. 71. The judge concluded
that none of the miners assigned to unplug the chute had been trained in the health and safety
aspects of the task, implicitly rejecting Twentymile' s position. 25 FMSHRC at 383. The
Secretary responds that such an individual-miner analysis was unnecessary and that substantial
evidence supports the judge. S. Br. at 21.
Based on record testimony, the judge found that the shift supervisor assigned Winey as
foreman of the production crew, which included Webb and Hough, to go to the chute and assist in
unplugging it. 25 FMSHRC at 377. When Winey arrived at the chute, beltmen Bricker and
Fadely were already working on unplugging the chute. Id. Winey joined in working with Bricker
and Fadely in spraying the stuck material with a hose, while Brady hit the bottom of the chute
with a hammer. Id. Hough assisted in connecting the hose and shoveled at the bottom of the
chute. Tr. 220. Without being instructed to do so, Webb climbed up the ladder adjacent to the
chute. 17 25 FMSHRC at 377. Given these miners' active involvement with unplugging the chute
and the fact that it was undisputed that no miner had received any task training with regard to the
rock chute, the inclusion of these miners' names in the citation is well supported by the record. 18
While we certainly agree with our concurring colleagues' view that Twentymile could
have met the training requirements of the Act and the regulations by incorporating the training
into the duties of the beltmen, the facts of this case do not support limiting the violation to those
miners. Once an operator has made a decision to assign miners to a task requiring training, it

We review the judge's findings and conclusions in light of the whole record. See Arch of
Kentucky, 20 FMSHRC 1321, 1329 (Dec. 1998) (reviewing record as a whole to conclude that
substantial evidence supports judge's finding of a violation); Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951) (stating that an appellate tribunal must review the whole record and
consider anything that "fairly detracts" from the weight of the evidence that may be considered as
supporting a challenged finding). Taken as a whole, the evidence of the design features noted by
the judge supports his conclusion.
17

Twentymile argues that neither Webb nor Hough were "assigned" the task of
unplugging the chute as they received no direct orders to perform any job related to this work.
T. Br. at 24. This ignores the evidence that Winey was given general instructions to unplug the
chute and directed his crew to go to the chute. 25 FMSHRC at 377. Thus, while neither Webb
nor Hough received specific orders when they arrived at the chute, both acted in a manner
consistent with the general instruction given the crew.
18

While it is not apparent that Ed Brady, the designer of the chute, would have needed
task training given his familiarity with the rock chute and the hazards that accompanied work
around it, the judge's failure to explicitly exclude Brady does not require us to vacate the citation.
26 FMSHRC 679

must ensure that those miners are provided with the appropriate training. As conceded by the
Secretary at oral argument, task training need not be formal or elaborate and may be provided
readily to miners assigned on an ad hoc, temporary, or limited basis. Oral Arg. Tr. 34. The
central point, however, is that the miners were so assigned in this case and therefore fell squarely
within the training requirement of section 48.7.

C.

S&S

Twentymile argues that the judge misapplied the Commission's S&S analysis because of
his use of the word "could," which indicated he was not applying a "reasonable likely" standard
and because he did not evaluate the background and experience of the miners involved with
unplugging the chute. T. Br. at 26-28. The Secretary responds that substantial evidence supports
the judge's S&S determination and that Twentymile has taken out of context the judge's use of
the word "could" on several occasions. S. Br. at 25-27.
·
The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d),
and refers to more serious violations. A violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. See Cement Div., Nat'l Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1(Jan.1984), the
Commission further explained:

In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard - that is, a
measure of danger to safety - contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in an
injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.
Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir.
1995); Austin Power, Inc. v. Sec'y of Labor, 861F.2d99, 103 (5th Cir. 1988) (approving Mathies
criteria). An evaluation of the reasonable likelihood of injury should be made assuming continued
normal mining operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985).
Here, the parties' disagreement with the judge's analysis of the Mathies factors revolves
around the third and fourth criteria - whether there was a reasonable likelihood that the hazard
contributed to by the violation would result in an injury that would be of a reasonably serious
nature. The judge concluded that the violation was S&S. 25 FMSHRC at 385. Substantial
evidence supports the judge. As the judge noted, Twentymile assigned a group of miners to a job
without the training necessary to guard against hazards inherent to the task. Id. Thus, the miners
were assigned to unplug the rock chute without training in the appropriate procedures and
26 FMSHRC 680

techniques to protect themselves. Id. In this regard, the rock chute posed hazards involving
slipping and falling around the ladder and platforms and spillage of the rock-coal mixture from
the chute if the access doors to the chute were improperly handled. Injuries resulting from these
accidents would be serious because the ladder posed the hazard of a 40-50 foot vertical drop
should a miner slip. Id. at 376. Rocks falling from the chute were as large as eight inches in
diameter. Id. at 379. In fact, on June 6, Webb received the kind of injuries that the MSHA
inspector was concerned with when he designated the violation as S&S (Tr. 42). See Dynatec
Mining Corp., 23 FMSHRC 4, 14 (Jan. 2001).
Twentymile takes issue with the judge's analysis because he used the word "could."
However, the judge's use of "could" in weighing the likelihood of an injury of a reasonably
serious nature did not materially affect his analysis. Compare Zeigler Coal Co., 15 FMSHRC
949, 953-54 (June 1993) (".. . statements that such events could occur, standing alone, do not
support a finding that there was a reasonable likelihood of an ignition.") (emphasis added). The
judge's analysis of the Mathies factors relies on substantial evidence in the record to support his
conclusion that a potentially serious injury would be likely to occur and is therefore is not
speculative. Compare Union Oil Co., 3 FMSHRC 289, 299 (Mar. 1989). The judge recited the
Commission's Mathies test and noted that it was incumbent on the Secretary to establish a
reasonable likelihood that the hazard contributed to would result in an injury, which must be
evaluated assuming continued normal mining operations. 25 FMSHRC at 385. In these
circumstances, the judge's several uses of the word "could" in his analysis are not sufficient
grounds for reversing his S&S determination.
Finally, Twentymile cites no Commission case in support of the proposition that we must
look at the background and experience of individual miners to make an S&S determination once a
violation has been established. Therefore, we affirm the judge's S&S determination.
D.

Timeliness of the Penalty Proposal

Twentymile challenges the civil penalty in this case on the grounds that the 17-month
delay between the issuance of the underlying section 104(g) order and the ultimate issuance of the
proposed penalty contravenes the mandate of section 105(a) of the Act, 30 U.S.C. § 815(a). T. Br.
at 28-33. Section 105(a) requires the Secretary to issue a proposed penalty within a reasonable
time once a violation has been found. The Secretary concedes that the delay was caused by
MSHA's inattention to its responsibilities regarding the processing of the accident report and the
eventual penalty proposal but, nevertheless, contends that the delay should be deemed reasonable
and therefore in compliance with the statutory requirement for timeliness. S. Br. at 33-37; Oral
Arg. Tr. 48 (Secretary's counsel concedes that he "can't make excuses for anyone involved
here.").
Section 105(a) provides in pertinent part:

26 FMSHRC 681

If, after an inspection or investigation, the Secretary issues a citation
or order . .. , he shall, within a reasonable time after the termination
of such inspection or investigation, notify the operator by certified
mail of the civil penalty proposed to be assessed . . . for the
violation cited .... . [Emphasis added.]
The legislative history of the Mine Act states with regard to section 105(a) that "there may be
circumstances, although .rare, when prompt proposal of a penalty may not be possible, and the
[Senate] Committee does not expect that the failure to propose a penalty with promptness shall
vitiate any proposed penalty proceeding." S. Rep. No. 95-181, at 34, reprinted in Legis. Hist. at
622.
While delay on the Secretary's part may not vitiate the civil penalty proceeding and the
finding of a violation, an inordinate and unjustifiable delay might well vitiate the imposition of
the penalty itself. The issue ultimately turns on whether the delay is reasonable under the
circumstances of each case. See Salt Lczke County Rd. Dep't, 3 FMSHRC 1714, 1716-17 (July
1981) (Secretary must establish "adequate cause" for failing to file penalty within 45 days of
notice of contest). 19 The Commission has held that the requirement in section 105(a) that the
Secretary propose a penalty assessment "within a reasonable time" does not impose a
jurisdictional limitations period. See Steele Branch Mining, 18 FMSHRC 6, 13-14 (Jan. 1996).
Rather, in cases of delay in issuing proposed penalties, we have examined whether adequate cause
existed for the Secretary's delay in proposing a penalty. Apart from that consideration, we have
also considered whether the delay prejudiced the operator. See Medicine Bow Coal Co., 4
FMSHRC 882, 885 (May 1982). Accord Black Butte Coal Co., 25 FMSHRC 457, 459-61 (Aug.
2003). Either consideration may be a ground for dismissing the penalty petition. See Steele
Branch, 18 FMSHR.C at 13-14. Consequently, we reject the Secretary's request that the
Commission "revise its analysis in late penalty cases and consider whether the operator suffered
prejudice even if it finds that the Secretary has not established adequate cause." S. Br. at 43. Our
precedents do not hold that an operator should only merit relief under section 105(a) if it can show
that the delay in proposing a penalty is both unreasonable and that it has resulted in prejudice to
the operator.
The judge in this case determined that the lapse in time between the order and the penalty
proposal was not prejudicial to Twentymile, 25 FMSHRC at 388, and the operator does not

19

The Commission has generally applied the same test to penalty proposals, which are to
be issued within a "reasonable time" under section 105(a) of the Act (see Rule 25, 29 C.F.R.
§ 2700.25), and to petitions for assessments of penalties, which are used to provide notification
to the Commission "immediately" following a notice of contest under section 105(d) of the Act,
30 U.S.C. § 815(d) (see Rule 28, 29 C.F.R. § 2700.28, implementing section 105(d) with a 45day period for filing a petition for assessment of penalty with the Commission). See Steele
Branch, 18 FMSHRC at 13-14 (proposed penalty under section 105(a)); Salt Lczke, 3 FMSHRC
at 1715-16 (penalty assessment under section 105(d)).
26 FMSHRC 682

challenge that condusion on review. Thus, resolution of this issue turns on whether the Secretary
has established adequate cause for the delay so as to render it "reasonable."
Here, there was nearly a 17-month delay from the date of the section 104(g) order,20
June 16, 2000, until the issuance of the proposed penalty assessment for the alleged violation on
November 9, 2001. MSHA used approximately the first seven months of that period to finalize
the accident report (Gov't Ex. 5) on January 4, 2001. 25 FMSHRC at 388. The Secretary argues
that this period should b~ excluded from the time computation under section 105(a), thereby
shortening the period under examination to ten months. S. Br. at 33-35. The issuance of a penalty
assessment under section 105(a), however, is pegged to the completion of an investigation or
inspection and issuance of a citation (or, in this case, an order), not the completion of an accident
report. Accordingly, it would be inappropriate to exclude from our analysis of the delay in
assessing the penalty the time dedicated to completing an accident report. See Black Butte, 25
.
FMSHRC at461; Steele Branch, 18 FMSHRC at 14.
With respect to why it took seven months to finalize the accident report, Inspector Gibson,
the investigating officer, completed his work on the report one month after the accident, on July 6,
2000 (Tr. 74-75), and submitted it for review to William Denning, MSHA's district accident
investigation coordinator. 25 FMSHRC at 380. Denning did not begin working on the report for
three months, in October of 2000, and did not contact Twentymile for additional information until
mid-November. Id. at 387. He testified that Twentymile promptly provided the requested
information and that he forwarded the report in late November to the district manager for his
signature. In the absence of the district manager, the report was signed by the acting assistant
district manager and finally issued on January 4, 2001. Id. at 388.
However, seven additional months subsequently elapsed before the report was sent from
the district office to MSHA's Assessment Office, on July 31, 2001. Id. According to Denning,
there was a personnel change in the office, and the new employee, who was responsible for
completing the special assessment form that had to accompany the accident investigation, was not
aware of his responsibility to complete the form. 21 Id. After the report and form reached the
Assessment Office, it took that office an additional three and one-half months to issue the
proposed penalty. Id.

In examining the 17-month total delay, the judge separately analyzed the delay in
completing the accident investigation and the delay in completing the special assessment form.

20

The judge inadvertently referred to the order as the "section 103(k) order." 25
FMSHRC at 386. However, the order upon which the violation was based is a section 104(g)
order, now modified to a section 104(a) citation. Order 7618153.
21

The record contains no explanation regarding why MSHA apparently lacked a back-up
or "tickler" system that would have alerted officials that the special assessment form was long
overdue.
26 FMSHRC 683

The judge concluded that the delay involved with each was "understandable," noting in particular
that the second delay was caused by a shift in personnel and the failure of the person who should
have completed the form to understand his duties. Id. For the reasons that follow, we hold that,
as a matter of law, the judge erred in finding that the delay here was reasonable under the
circumstances. 22
Commission case law offers a basis of comparison with respect to delays in issuing section
105(a) penalty assessments. In Black Butte, there was a 13-month delay, but that was due in large
part to ongoing revisions to an accident report requested by the operator. 25 FMSHRC at 458,
460. In Steele Branch, the Secretary delayed issuing the proposed penalty assessment for 11
months and offered no reason for the delay, although the Commission took judicial notice of her
unusually high case load at that time. 18 FMSHRC at 13-14.

In contrast to the foregoing cases, here the bulk of the delay was due to· (1) unexplained
delays in the review and issuance of Inspector Gibson's accident report, which he had completed
within a month of the accident (Tr. 74-75), and (2) outright neglect in moving the report through
established agency channels ostensibly designed to arrive at an appropriate proposed penalty in a
timely manner. In determining whether a particular delay in proposing a penalty is "reasonable"
the Commission must look at the entire set of circumstances surrounding the delay. While we
could possibly excuse delay in either the preparation of the accident report or the processing of
the proposed penalty, the cumulative effect of the two significant delays that took place in this
case lies beyond the boundaries of what the Commission has previously allowed as reasonable
under the circumstances.
Moreover, the delays greatly exceed the Secretary's own goals for timely proposing
penalty assessments. MSHA's guidance document in effect at the time, Program Policy Letter
(PPL) No. P99-ID-5, at 6 (Aug. 16, 1999), stated that even cases involving "a serious accident,
fatality, or other special circumstance should be assessed within 180 days [six months] of the
accident."23 In addition, MSHA stated that, to meet that goal, "the Office of Assessments should
process citations and orders within ... 45 days for accident-related special assessments." Id. In
this case, we are dealing with a delay that exceeds the Secretary's own six-month benchmark by
almost three times. Even though there had been substantial delays before the special assessment

22

Contrary to the assertion of our dissenting colleagues (slip op. at 28), our opinion does
not establish that a 17-month delay (or any other time period) is "per se" unreasonable. Instead,
in each case the Commission must examine the particular circumstances and the justification
offered by the Secretary and determine whether, as a matter of law, the overall delay should be
deemed "reasonable."
23

The relevant portions of the August 16, 1999 PPL have been incorporated into MSHA's
Program Policy Manual. ill U.S. Dep' t of Labor, MSHA, Program Policy Manual, at 49, Part
100.6(f) (2001), available at http://www.msha.gov/REGS/COMPLIAN/PPMIPMVOL3D. (last
visited Aug. 4, 2004).
26 FMSHRC 684

report was sent to· the Office of Assessments, that office still took approximately 105 additional
days, rather than the benchmark of 45 days, to actually propose the penalty.24
While the PPL further stated that MSHA believed that "[f]or proposed assessment
purposes, 'reasonable time' is normally within 18 months of the issuance of a citation or order or,
in the case of a fatal accident, within 18 months of the issuance of the accident report" (id. at 5),
the Commission is certainly not bound in any way by that policy statement.25 As discussed
below, the Commission, not the Secretary, is ultimately responsible for determining whether a
proposed penalty assessment has been made "within a reasonable time."
In short, while we are reluctant to vacate any civil penalty for a violation that has been
upheld, we find the Secretary's handling of this penalty assessment and her rationale for the
excessive delay in issuing it to be wholly inadequate. Accordingly, we are compelled to invoke
the extraordinary remedy of vacating the civil penalty. We stress that our action vacates the
imposition of the penalty, but leaves intact the finding of a violation. Among other things, that
violation will become part of the operator's history of violations for future assessment purposes.
Thus, our decision is wholly consistent with the goals and purposes of the Act in that the operator
is held accountable for violating the regulation in question. 26

24

For this reason, the parties' stipulation that testimony would have indicated that "three
months is a routine amount of time for an accident case to spend in the assessment process"
(Stip. No. 25) is irrelevant. Because the case had already been subject to substantial delays, it
should not have been handled in a "routine" manner.
25

The Commission has held that MSHA's policy statements such as a PPL or MSHA's
Program Policy Manual are not binding on the Secretary or the Commission. See D.H. Blattner
& Sons, Inc., 18 FMSHRC 1580, 1586 (Sept. 1996), (quoting King Knob Coal Co., 3 FMSHRC
1417, 1420 (June 1981)). While the Secretary's policy statements may, in appropriate
circumstances, be entitled to deference (King Knob, 3 FMSHRC at 1420), she has not asked that
the Commission defer to the relevant PPL provision in this proceeding.
26

In this regard, our dissenting colleagues' reliance on certain language in Salt La.ke, 3
FMSHRC at 1716, dealing with "dismissal" of the Secretary's case and "nonsuiting" the
Secretary (slip op. at 30-31), is not on point. The Salt La.ke case involved the question of
whether a civil penalty proceeding should be dismissed because the Secretary's petition for
penalty assessment was filed beyond the 45-day period provided in Commission Rule 27. In this
case, the civil penalty proceeding has gone forward, a violation has been found, and the question
is whether the penalty should be vacated for unreasonable delay. Moreover, the Commission
stated in Salt La.ke that "situations will inevitably arise where strict compliance by the Secretary
does not prove possible." 3 FMSHRC at 1716. That was not the case here where key delays
resulted from inattention or neglect.
26 FMSHRC 685

The Secretary argues that delay in issuing a proposed penalty assessment can never be a
ground for vacating the penalty. S. Br. at 37-39. We reject this position as a significant
departure from Commission precedent discussed previously and contrary to the language of
section 105(a). In addition, adopting the position of the Secretary would contravene clear
Congressional intent.
When Congress amended the 1969 Coal Act by enacting the current statute, it found that
the prompt imposition of civil penalty sanctions for violation of mandatory safety and health
standards was vital to the success of a federal mine safety and health program. Establishing that
"the purpose of a civil penalty is to induce those officials responsible for the operation of a mine
to comply with the Act and its standards" (S. Rep. No. 95-181, at 41, reprinted in Legis. Hist. at
629), Congress expressly stated that, "[t]o promote fairness to operators and miners and
encourage improved mine safety and health generally, such penalty proposals must be forwarded
to the operator and miner representative promptly." Id. at 622.
Moreover, under the 1969 Act, operators had been entitled to de novo review of all
enforcement actions in U.S. District Courts, a process that led to significant delays between an
allegation of wrongdoing and its ultimate vindication through the civil penalty sanction:
This right to a de novo hearing before a jury in the District Court
has had the effect of encouraging operators to require enforcement
of civil penalties in the district courts, thus delaying still further the
actual payment of the penalties assessed. The resultant backlog of
penalty cases has flooded the district courts in the coal mining
areas of the country, and the delay engendered has seriously
hampered the collection of civil penalties.
Id. at 633. "Clearly, so long a delay in assessment and collection of civil penalties does not
encourage operator compliance with the Act and its standards." Id. at 632.

To further remedy situations where delays between enforcement actions and the
imposition of sanctions were undermining the effectiveness of the mine safety and health
program, Congress severely restricted the time within which an operator could contest the
imposition of a civil penalty:
The Committee believes that requiring that individuals who intend
to contest a proposed penalty assessment to do so promptly furthers
the objective of the Act. Penalty matters should be finally
determined as quickly as possible. The Committee notes that
contestants are required under this provision to notify the
Commission of their intention to contest penalty proposals within
fifteen days, and that the Commission would then subsequently
schedule such matters for hearing before an Administrative Law
26 FMSHRC 686

Judge. For this reason, the Committee does not believe that fifteen
days is an unreasonably short period of time to expect a contestant
to so notify the Commission.

Id. at 622. We do not believe that Congress would find parity in circumstances where the
Secretary has 17 months to arrive at a proposed sanction of several thousand dollars while the
operator, in jeopardy of forfeiting its rights under the Act, must respond to the demand for
payment within 15 days.27
Most significantly, under the Mine Act, this Commission is ultimately responsible for
ensuring that civil penalties are assessed in a fair and expeditious manner. Under section 1IO(i)
of the Act, "the Commission shall have authority to assess all civil penalties provided in this
Act." 30 C.F.R. § 820(i). Although the Secretary issues citations and orders under the Act and
proposes civil penalties, it is the Commission that is responsible for assessing civil penalties and
providing other appropriate relief. E.g., Sellersburg Stone Co., 5 FMSHRC 287, 290-91 (Mar.
1983), aff'd, 736 F.2d 1147 (7th Cir. 1984). Congress adopted the bifurcated enforcement
scheme under which the Secretary and the Commission now operate, wholly independent from
each other, in order that both justice and, if need be, a change in an operator's compliance habits
could be promptly achieved:
The objective in establishing this Commission is to separate the
administrative review functions from the enforcement functions,
which are retained as functions of the Secretary. This separation is
important in providing administrative adjudication which preserves
due process and instills confidence in the program. This separation
is also important because it obviates the need for de novo review of
matters in the courts, which has been a source of great delay.
Conf. Rep. on S. 717 (unnumbered), reprinted in Legis. Hist. at 1360.
The important role played by this Commission in the process by which hazardous
conditions in the Nation's mines are identified and corrected through civil sanctions necessarily
requires that we exercise our discretion to assure that the intention of Congress is carried out.
Accordingly, the question of whether a particular penalty has been proposed ''within a reasonable
time" is one to be ultimately answered by the Commission, not the Secretary. When it can be
shown that the overriding purposes of the Act are compromised by inordinate and unjustifiable
delays between an allegation of wrongdoing and its accompanying sanctions, we are bound to
take the steps necessary to uphold the integrity of the Mine Act and the bifurcated enforcement
scheme under which we operate.

27

We note that, in the enacted version of the 1977 legislation, the time operators were
given in which to contest proposed penalty assessments was extended from 15 to 30 days. 30
U.S.C. § 815(a).
26 FMSHRC 687

There is an· additional public policy argument that weighs heavily in favor of our decision
to nullify the penalty in this case: retaining the confidence of miners in the effectiveness of the
Mine Act. Section 109(a) of the Act requires operators to post all "orders, citations, notices and
decisions required by law or regulation" on a mine bulletin board accessible to miners. 30
U.S.C. § 819(a). The order in this case, issued on June 16, 2000, was presumably posted by the
operator. As the Bard wrote, "the rest is silence" until November 9, 2001, when, presumably
again, the notice of proposed penalty was posted at the mine. Surely this time lapse would leave
the average miner wond~ring whether the matter was even being pursued, let alone resolved,
during the 17 intervening months.
Accordingly, in order to vindicate the Congressional imperative that mine safety and
health violations be remedied through the prompt and fair imposition of appropriate sanctions,
we vacate the civil penalty proposed in this case.

m.

Conclusion

Based on the foregoing, the judge's decision is affirmed in part and reversed in part.

Robert H. Beatty, Jr..,_Commissione

26 FMSHRC 688

Commission Suboleski, concurring:
I join in part II. A., 28 C., and D. of the opinion of Commissioner Beatty.
While I agree with the majority that a violation of section 48.7(c) occurred, I cannot agree
with the reasoning in part II B. of the opinion and the opinion of the administrative law judge
whom they affirm. I am not persuaded that the evidence shows that the plugging of the rock
chute would occur on a regular basis, and I am not prepared to overlook the requirement for a
task to occur on a regular basis before task training is required.
Pursuant to section 48.7(c), miners who are "assigned a new task" must receive safety and
health training prior to performing that task. 30 C.F.R. § 48.7(c). ''Task" is defined in the
regulations as "a work assignment that includes duties of a job that occur on a regular basis . ..."
30 C.F.R. § 48.2(f) (emphasis added). The definition does not specify duties that could occur on
a regular basis. To say that task training is required for any event that foreseeably might occur
more than once is to redefine the word "regular." Further, while it may be reasonable to
characterize events which occur infrequently, but predictably (such as longwall moves), as
"regular" and to include events which would be expected to occur unpredictably, but frequently
(such as tire repairs) as "regular," it is another matter to similarly characterize events which are
expected neither frequently nor predictably.
The record indicates that the rock chute clogged only once, and the chute was then
modified to reduce the likelihood of any future clogging. Tr. 177-80; 276-77. The judge, by
imposing a "reasonable prudent person" test, concluded that Twentymile should have anticipated
at the time of its installation that the rock chute would clog more often, thus giving rise to the
obligation to task train miners who would be assigned to unplug the chute. I cannot agree with
this approach. It wrongly presumes that the operator would have tolerated a faulty design in the
chute whereby it would clog regularly. Further, for purposes of establishing a violation of the
task training regulation, the judge's approach essentially assumes that any miner in the vicinity of
the rock chute would have to be given task training on working on the chute. This, however,
ignores the structure of the job assignment system at the mine, which would have limited the
assignment of maintaining the rock chute on an everyday basis to beltmen. Gov't Ex. 10.
There is a further problem with tying the violation to all those present at the chute when
the accident occurred. The Secretary's training expert, Robert Breland, testified that workers
providing assistance during a task are not required to be trained on the entire task, only the
subtask in which they are engaged:

28

I find it unnecessary to reach the analysis in section II. A. of whether a section 104(a)
citation should have been issued as a result of the task training violation, instead of a section
104(g) order. Accordingly, I do not join in the majority's opinion on this issue.

26 FMSHRC 689

Q. Now with regard to the men that were working on clearing the plug, are you
saying that each of those men needed training in each of these particular
items ... ?
A. No. I wouldn't say that at all.
Q. What are you saying?
A. . . . I would expect that they had been trained in this part of that task they had
been assigned to do.

****

Q. So is it okay to do partial training?
A. To the extent of the exposure of the activity, the work activity the people are
going to do. That is normal in the industry.
Tr. 119-20. The mine's conveyance system manager, Edwin Brady, was responsible for
designing and installing the chute, and he was directing the work of unplugging the chute. Tr.
158-59. With the possible exception of Webb, whose actions are unknown and who was not
given a specific task involving the chute, none of the other workers engaged in any independent
action that involved the unique features of the chute before the accident occurred. Tr. 169, 1727 4, 213-17. That is, the hazards they faced either were encountered under the direction of Brady
or were general mining hazards, such as climbing a ladder, connecting a hose, or shoveling
spilled material. Thus, I cannot conclude that there was a violation of section 48.7(c) based on
the analysis set forth in the majority opinion.
Nonetheless, the rock chute does possess unique aspects of operation, particularly with
regard to the door design and the manner in which the rock is redirected as it is transferred (Tr.
159-65), and, at the time that the violation of section 48.7(c) was issued, there were workers in
the mine for whom working on and around the unique aspects of the chute occurred on a regular
basis. Maintaining the rock chute was a regularly occurring subtask within the general
assignments of a beltman that posed distinct dangers and hazards requiring task training. Tr. 8586. Treating the rock chute as an extension of the duties of a beltman that was sufficiently
different to require its own training was consistent with practice at the mine. Thus, Twentymile's
safety manager, Lincoln Derick, testified that task training was required when changes in
equipment would affect miner safety and health. Tr. 267, 281. He also testified that task training
would be required when a miner was moved from operating a front end loader above ground to
operating a scoop underground. Tr. 282. There are sufficient differences between above-ground
chutes and the rock chute (Tr. 130, 222) that would have led to task training of miners if the
operator were addressing the hazards posed by the rock chute in a similar manner.
Moreover, both the Secretary's and Twentymile's witnesses testified in support of a
general practice of task training that occurred as the responsibilities of a job assignment or
equipment changed. Tr. 120-21 (Breland), 281-82 (Derick). See 48 Fed. Reg. 47454, 47457
(Oct. 13, 1978) ("The intent is to provide task training for experienced miners who are
undertaking a new task assignment."). This analysis better reflects the realities of work
26 FMSHRC 690

assignments at the mine while adhering to the language of the regulation. Assignment to a new
element of an existing assignment- maintaining the rock chute that was part of the mine's
conveyance system maintenance - required task training of beltmen in that new element.

26 FMSHRC 691

Chairman Duffy, concuning:
I join in part II. A., C., and D. of the opinion of Commissioner Beatty.
I concur that a violation has been shown, and I agree with Commissioner Suboleski's
approach in determining whether a violation of 30 C.F.R. § 48.7(c) has been proven. I would
merely add that to the extent that beltmen Bricker and Fadely and foremen Winey performed
discrete tasks associated, with the clogged chute and to the extent that the chute in question
possessed unique aspects of operation significantly different from other smaller chutes these
miners may have worked on previously, Bricker, Fadely, and Winey should have been task
trained according to the requirements of section 48.7(c). Likewise, only to that extent has the
Secretary proven a violation of the training regulations.

26FMSHRC 692

Commissioner Jordan and Commissioner Young, concurring in part, and dissenting in part:
We agree with our colleagues that Twentymile violated the training standard, the
violation was S&S, and the order was sufficiently specific, and join in sections II.A.2., II.B. and
II.C. of Commissioner Beatty's opinion.29 However, we disagree with the majority's decision to
vacate the penalty assessment in this case and write separately on that subject.
When reviewing whether the Secretary assessed a proposed penalty "within a reasonable
time," 30 U.S.C. § 815(a), apart from considering the length of the delay, the Commission has
examined whether adequate cause existed for the Secretary's delay in proposing the penalty and
whether the delay prejudiced the operator. See Medicine Bow Coal Co., 4 FMSHRC 882, 885
(May 1982); Steele Branch Mining, 18 FMSHRC 6, 13-14 (Jan. 1996).30 Below, the judge
concluded that the Secretary's delay in issuing the proposed penalty did not prejudice the
operator, 25 FMSHRC 373, 388 (July 2003) (Al.J), a finding which the.operator does not
challenge. In considering the reason for the delay, the judge examined the time it took MSHA to
finish the accident report and the special assessment form, and concluded that the delays were
"understandable," noting that the lapse in time in completing the form was caused by a change in
personnel and the failure of the person responsible to understand his duties. Id.
Without citing authority, the majority holds that, "as a matter of law" the judge wrongly
determined "that the delay here was reasonable under the circumstances." Slip op. at 19.
Despite the majority's protestations, our colleagues appear to be stating that in effect the 17month delay would be "per se" unreasonable, while at the same time bolstering this conclusion
by relying on the specific "circumstances" of this case. Id. at 19 n.22. The majority cannot have
it both ways. Without articulating a clear legal test by which to measure the standard of
"reasonableness," our colleagues merely conclude the reasons for the delay here were inadequate,
substituting their judgment for that of the judge below.
We believe that the judge's determination is more appropriately reviewed using a
"substantial evidence" standard. This is consistent with long-established Commission case law
utilizing a "substantial evidence" test when reviewing a trial judge's conclusion applying a legal

29

Commissioner Young also agrees with the majority that the order should be modified
to a citation, and joins in section II.A. I. of Commissioner Beatty' s opinion. Commissioner
Jordan, like Commissioner Suboleski, slip op. at 24, n.28, finds it unnecessary to reach the issue
of whether the order should have been issued as a citation.

°

3

Commissioner Young agrees with the majority that under Commission precedent, our
analysis of delayed penalty proposals warrants vacating a penalty if the Secretary's delay is
unreasonable or if the delay results in prejudice to the operator, and would reject the Secretary's
contention that a penalty may never be vacated on timeliness grounds alone. Slip op. at 17.
Commissioner Jordan sees no need to address this issue here, as she finds there was no prejudice
to the operator and the judge properly found adequate cause for the delay.
26 FMSHRC 693

principle in the Mine Act to the facts of a particular case. See, e.g., Island Creek Coal Co., 15
FMSHRC 339, 348 (Mar. 1993) (finding that substantial evidence supported the judge' s
determination that MSHA failed to meet its burden of proving that it was reasonable for
inspectors to conclude that mine conditions constituted an imminent danger); Utah Power &
Light Co., 12 FMSHRC 965, 971(May1990) (finding that substantial evidence supported the
judge's finding that the violation was of a significant and substantial nature); Cougar Coal Co.,
25 FMSHRC 513, 520 (Sept. 2003) (holding that on the basis of substantial evidence in the
record, the judge's determination that the violation was not a result of unwarrantable failure
should be affirmed). In applying this test, we ask whether there is "'such relevant evidence as a
reasonable mind might accept as adequate to support [the judge's] conclusion."' Rochester &
Pittsburgh Coal Co., lfFMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)).
Based on substantia.J. evidence in the record, we would affirm the judge's conclusion that
the Secretary's delay in issuing a proposed penalty assessment was reasonable, particularly in
light of other Commission cases (discussed below) which offer a basis to compare delays in
issuing 105(a) penalty assessments. Moreover, we believe that our colleagues have failed to
recognize additional record evidence explaining the delay. For instance, the majority relies on
the "unexplained delays in the review and issuance of Inspector Gibson's accident report" (slip
op. at 19), ignoring testimony by William Denning, MSHA's district accident investigation
coordinator, that his delay in finalizing the report was due to conflicting work responsibilities.
Tr. 75. The majority also asserts that the accident report was virtually complete within a month
of the accident (before it was sent to Denning), failing to take into account the additional tasks he
had to perform in order to finish the report (e.g., editing, obtaining additional information from
the operator, etc.). Tr. 75-76, 78.
We note that of the 17-month period at issue here, slightly more than three months
consisted of the time it took the MSHA Assessment Office to propose a penalty. 25 FMSHRC at
388. According to the Office of Assessments, three months is a routine amount of time for an
accident case to spend in the assessment process. Stip. No. 25. While it would have been
preferable for the assessment office to treat this matter expeditiously rather than routinely, we are
mindful that between July 31, 2001 (when the report was sent to the assessment office) and
November 9, 2001 (when the assessment was issued), one of the four assessors in the office was
on extended leave, and another was in training during much the [sic] preceding year." Id.
The staffing issues asserted by the Secretary as reasons for the delay here are similar to
several of those asserted by the Secretary in Black Butte Coal Co., 25 FMSHRC 457 (Aug.
2003), a recent case in which the Commission upheld a judge's findings that the Secretary
provided adequate cause for a 13-month delay in assessing a penalty. The majority characterizes
the delay in Black Butte as "due in large part to ongoing revisions to an accident report requested
by the operator" (slip op. at 19), neglecting to discuss the other reasons we took into account in
concluding that the judge did not abuse his discretion in denying the operator's motion to dismiss
based on the delay. We noted in that case the Secretary's undisputed assertion that the delay was
26 FMSHRC 694

also due to an extremely high case load and less than normal staffing levels due to training and
leave absences. 25 FMSHRC at 460. In Black Butte we stated that, as here:
[t]he operator knew about the investigation and citation, and
clearly was able to gather evidence in support of its position. To
absolve [the operator] of liability due to a late issuance would
undermine the purpose of the Mine Act, especially here where the
operator has not demonstrated any prejudice from the delay.

Id. at 461. Vacating a penalty assessment is an extraordinary remedy, and, as in Black Butte, we
are reluctant to vacate a penalty where it is undisputed that Twentymile has suffered no prejudice
from the delay. 31
We also find troubling the majority's selective reliance on the Secretary's Program Policy
Letter ("PPL"). The majority cites to the PPL to spotlight the Secretary's delay in this case as
being incongruent with her 180-day goal within which to assess penalties for a serious accident,
but dismisses as non-binding authority the Secretary's assertion in the PPL that 18 months
normally constitutes a "reasonable time." Slip op. at 19-20. See Program Policy Letter No. P99ill-5, Part 100.6(f) at 5 (Aug. 16, 1999) ("'reasonable time' is nonnally defined as within 18
months of the issuance of a citation or order") (emphasis added). We note that the Secretary's
goal of assessing penalties for serious accidents within 6 months is laudable, but is no more
binding than the 18-months she has declared to be a "reasonable time in which to assess a
penalty."
The Senate Report comprising a section of the legislative history of the Mine Act
acknowledged that circumstances could prevent the Secretary from promptly issuing a proposed
penalty, but explicitly rejected the suggestion that such delay should necessarily result in
termination of penalty proceedings: "[T]he [Senate] Committee does not expect that the failure to
propose a penalty with promptness shall vitiate any proposed penalty proceeding." S. Rep. No.
95-181, at 34 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 622 (1978) ("Legis.
Hist.") (emphasis added). In Rhone-Poulenc of Wyoming Co., the Commission noted that the
cited language in the legislative history "bespeaks the overriding concern with enforcement." 15
FMSHRC 2089, 2092-93 & n.8 (Oct 1993), affd, 57 F.3d 982 (10th Cir. 1995) (rejecting the
operator's challenge to the Secretary's late-filed penalty petition) (citations omitted). Referring
to the same language, the Tenth Circuit, quoting Salt Lake County Road Department, 3
FMSHRC 1714, 1716 (July 1981), noted the need to "balance considerations of procedural

31

The other case the majority uses as a basis of comparison is Steele Branch, 18
FMSHRC 6 at 13-14, in which the Commission excused an 11-month delay in assessing a
penalty when the Secretary offered no reason whatsoever for the delay, but the Commission took
judicial notice of the Secretary's unusually heavy caseload. Slip op. at 19. This indicates the
Commission's extraordinary reluctance to vacate a penalty.
26 FMSHRC 695

fairness against the severe impact of dismissal" and stated that the "'drastic course of dismissing
a penalty proposal would short circuit the penalty process and, hence, a major aspect of the Mine
Act's enforcement scheme.,,, 57 F.3d at 984. Thus, contrary to our colleagues' position, we do
not see how vacating the penalty under the circumstances present in this case would serve the
deterrent purposes intended by the enforcement provisions of the Mine Act.
We also believe that our colleagues' reliance on other sections of the Mine Act's
legislative history inappropriately compares Congress' views on penalty assessment delays and
its views on the need for operators to promptly contest or pay penalties. For example, as the
majority notes, the legislative history of the Mine Act does indicate that the right to de novo
review of penalty proceedings was eliminated, in part, to reduce delays, and specifically noted
the need to require operators to promptly contest penalty proposals. Slip op. at 21. However,
these provisions relate to the delays that operators had used to avoid or defer payment of
penalties, and not to the Secretary's enforcement activity. S. Rep. No. 95-181, at 45, reprinted in
Legis. Hist. at 633 ("This right to a de novo hearing before a jury in the District Court has had the
effect of encouraging operators to require enforcement of civil penalties in the district courts,
thus delaying still further the actual payment of the penalties assessed.").
Moreover, our colleagues in the majority suggest that Congress would not have
sanctioned a 17-month delay in proposing a penalty when an operator has only 30 days to contest
it. Slip op. at 22. Such a comparison is misplaced, as the two involve dramatically different
procedures. An operator deciding to contest a penalty simply makes a strategic choice as to
whether it is better to pay the penalty or challenge it, and then notifies MSHA of its decision by
checking a box on a form and mailing it to MSHA. See 30 U.S.C. § 815; 29 C.F.R. § 2700.26;
Contest of Civil Penalty Proceedings, Nov. 9, 2001. On the other hand, to determine the amount
of a special assessment, the Secretary must confirm the facts asserted in the citation and then
weigh numerous factors. See 30 C.F.R. §§ 100.3(a), 100.4(b), and 100.5(b). In addition, in this
case, as the judge found, it was prudent for the Secretary to wait to propose a penalty until the
accident report and the special assessment form accompanying it were completed. 25 FMSHRC
at 388. As the judge explained, "findings regarding the validity of the alleged violation, its
gravity and Twentymile' s negligence could have been impacted by the report and the form." Id.
In short, there is simply no basis upon which to compare these two time frames, as the operator
and Secretary proceed along two different tracks. As the Commission has previously stated,
"[n]onsuiting the Secretary in such situations [when she has filed a late penalty proposal]
presents quite a different situation from defaulting the tardy private litigant." Salt Lake, 3
FMSHRC at 1716.
Finally, we also agree that delays in the imposition of a penalty could send a
disconcerting signal to the miners who depend on the Secretary to ensure their right to a safe and
healthy work environment. Slip op. at 23. To nullify that penalty entirely, however, sends an
even more ominous message by ending the "silence" of a delay with a decision that can only
erode a miner's confidence in the agency's ability to ensure that violations of mandatory health
and safety standards will be subject to an appropriate sanction. Whether the old saying that
26 FMSHRC 696

"justice delayed is justice denied" is true in a given case may be open to question; the effect of
justice denied outright is beyond question.
Accordingly, we would affirm the judge's conclusions, that, based on the facts of this
case, the Secretary's delay in issuing a proposed penalty was reasonable.

26 FMSHRC 697

Distribution
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22°d Floor West
Arlington, VA 22209-2247
R. Henry Moore, Esq.
Jackson Kelly, PILC
Three Gateway Center
401 Liberty Avenue, Suite 1340
Pittsburgh, PA 15222

Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

26 FMSHRC 698

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

August 30, 2004

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

Docket No. WEST 2004-345-M
A.C. No. 45-03455-20609
Docket No. WEST 2004-352-M
A.C. No. 45-03224-20531

V.

WASIDNGTON ROCK QUARRIES, INC.

BEFORE: Duffy, Chairman; Beatty.., Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act''). 1 On June 2, 2004, the Commission received from
Washington Rock Quarries, Inc. ("Washington Rock") a motion filed by counsel to reopen
penalty assessments that became final orders of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

In its motion, Washington Rock states that in January 2004, the Department of Labor's
Mine Safety and Health Administration ("MSHA") issued numerous citations for its Champion
and King Creek Pits, located in Pierce, Washington. Mot. at 1-2; Affidavit of John M. Payne

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEST 2004-345-M and WEST 2004-352-M, both captioned
Washington Rock Quarries, Inc. and both involving issues similar to those addressed in this
order. 29 C.F.R. § 2700. 12.
26 FMSHRC 699

("Payne Aff.") at 2; Ex. C. Washington Rock also states that it intended to contest the citations,
but that the company's owner, Harry Hart, did not understand the contest procedure. Mot. at 2;
Affidavit of Harry Hart ("Hart Aff. ") at 1. It further states that Hart told MSHA' s inspector that
he wanted to contest all citations, and was informed that there was no longer a "ten-day period"
and that he should wait until he received all the citations. Mot. at 2; Hart Aff. at 2. The operator
asserts that Hart then contacted MSHA's Western District Conference Litigation Supervisor
("CLS") and that in early March 2004, the CLS scheduled a conference for April 8, 2004. Mot.
at 2-3; Hart Aff. at 2. Washington Rock claims that on March 12, 2004, it received the subject
proposed assessments dated March 4, 2004 (A.C. Nos. 45-03455-20609 and 45-03224-20531)
and that it subsequently obtained counsel to assist in the conference, which had to be rescheduled
due to scheduling conflicts. Mot. at 3; Hart Aff. at 2; Payne Aff. at 2. The operator also alleges
that, at that time, the CLS informed its counsel that the deadline to contest several citations had
passed and agreed to confer on only those citations that had not already been assessed. Mot. at 3;
Payne Aff. at 2. Subsequently, the operator received two proposed assessments for the other
citations that were issued in January 2004, and submitted timely notices of contest for those
assessments. Mot. at 4; Payne Aff. at 2-3. Washington Rock requests the Commission reopen
the two proposed assessments (A.C. Nos. 45-03455-20609 and 45-03224-20531) so it may
proceed to a hearing on the merits. Mot. at 1, 9. The Secretary states that she does not oppose
Washington Rock's request for relief.
We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

26 FMSHRC 700

Having reviewed Washington Rock' s motion, in the interests of justice, we remand this
matter to the Chief Administrative Law Judge for a determination of whether good cause exists
for Washington Rock' s failure to timely contest the penalty proposal and whether relief from the
final order should be granted. If it is determined that such relief is appropriate, this case shall
proceed pursuant to the Mine Act and the Commission' s Procedural Rules, 29 C.F.R. Part 2700.

Robert H. Beatty, Jr., Commission

26 FMSHRC 70 I

Distribution
John M . Payne, Esq.
Jennifer L. Mora, Esq.
Davis, Grimm, Payne & Marra
701 Fifth Avenue, Suite 4040
Seattle, WA 98104
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., zznd Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

26 FMSHRC 702

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUrTE9500
WASHINGTON, DC 20001

August 30, 2004

SECRETARY OF LABOR,
MINE SAFETY AND.HEALTH
ADMJNISTRATION (MSHA)
Docket No. WEST 2004-359-M
A.C. No. 10-01911-20099

v.
HIGHLAND ENTERPRISES, INC.

BEFORE: Duffy, Chairman; Beatty, Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On June 10, 2004, the Commission received from Highland
Enterprises, Inc. ("Highland") a motion filed by counsel to reopen a penalty assessment that
became a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In its brief in support of its motion, Highland states that on January 15, 2004,
Administrative Law Judge Jerold Feldman stayed a consolidated penalty proceeding pursuant to
the Secretary's motion "'so that a civil penalty case and a related l lO(c) personal liability case
[could] be further consolidated so that all matters could be heard at once.,,, Br. at 2-3 (quoting
Unpublished Order dated Jan. 15, 2004). Highland further states that on or about March 9 and
11, 2004, it received two proposed penalty assessments relating to the same crusher which is the
subject of the stayed proceeding. Id. at 3; Declaration of Andy Hairston ("Hairston Declar.") at
2. The operator asserts that after it received the proposed assessments, its agent, Andy Hairston,
contacted its counsel, who instructed Hairston to complete the contest form and mail it to the
26 FMSHRC 703

Civil Penalty Compliance Office of the Department of Labor's Mine Safety and Health
Administration ("MSHA"). Br. at 3; Affidavit of Jonathan D. Hally ("Hally Aff.") at 2; Hairston
Declar. at 2. Highland contends that on March 16, 2004, Hairston timely mailed the notice of
contest. Br. at 3; Hairston Declar. at 2. The operator explains that on or about June 4, 2004,
after contacting the Secretary's counsel, the operator's counsel subsequently determined that
MSHA did not receive the notice of contest for A.C. No. 10-01911-20099, but did receive the
notice of contest for the other proposed assessment, which was mailed at the same time and is
now a part of Docket Np. WEST 2004-238-M, also pending before Judge Feldman. Br. at 4;
Hally Aff. at 2. Highland argues that the notice of contest either got lost in the mail or was
misfiled or misplaced by MSHA. Br. at 4. It requests that the Commission grant its request to
accept its notice of contest as timely filed. Id. at 2, 7; Mot. at 1. The Secretary states that she
does not oppose Highland's request for relief.
We have held that, in appropriate circum8tances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

26 FMSHRC 704

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

26 FMSHRC 705

Distribution
Jonathan D. Hally, Esq.
Clark & Feeney
1229 Main St.
P.O. Drawer 285
Lewiston, ID 83501
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Conunission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

26 FMSHRC 706

ADMINISTRATIVE LAW JUDGE DEQSIONS

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

RAYMOND GEORGE,
Complainant,

August 2, 2004
DISCRIMlNATION PROCEEDING
Docket No. CENT 2004-98-D
DENV CD 2003-17

V.

24/7 SERVICE AND SyPPLY, lNC.,
Respondent

Lee Ranch Coal Mine
Mine ID No. 29-01879

AMENDMENT TO DECISION
Appearances:

Raymond George, Gallup, New Mexico, pro se;
Kenneth Chaffin, Grants, New Mexico, on behalf of the Respondent.

Before:

Judge Melick

Pursuant to Commission Rule 69(c), 29 C.F.R. §2700.69(c), the decision issued in this
proceeding on July 30, 2004, is hereby amended by substituting corrected paragraph three on
page eight of said decision to read as follows:
Under the circumstances I give the greater weight to Mrs. Chaffin' s
description of the critical conversation on August 7. As best synthesized it
appears that Mr. George asked Mrs. Chaffin whether there was supposed to be air
in the dragline and she responded "Yes, there was." She then asked him ''Well,
did you feel like it was unsafe?" and he responded "No, that he did not feel it was
unsafe." Mr. George then said that "he didn't want to have a violation with
MSHA" and Chaffin responded "if the mine was doing something wrong, you
wouldn't have been violated for it, the mine would be" (Tr. 84). Finally Chaffin
explained that since George told her that he did not feel it was unsafe she did not
understand what he was even talking about. In this regard she testified "You
know, why bring it up if it wasn't unsafe" (Tr. 84).
I

MlJA~.J

1ctf
'
Gary
Adminis ative La Judge
Distribution: (Certified Mail)
Mr. Raymond George, 329 Y2 East Jefferson, Gallup, NM 87301
Kenneth Chaffin, 2417 Service & Supply, Inc., P.O. Box 183, Grants, NM 87020
26 FMSHRC 707

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue. N.W.• Suite 9500
Washington, DC 20001-2021

August 12, 2004
SPEED l\1INING, INC.,
Contestant

CONTEST PROCEEDINGS
Docket No. WEVA 2004-187-R
Citation No. 7232788; 07/19/2004

V.

Docket No. WEVA 2004-188-R
Order No. 7232789; 07/19/2004
SECRETARY OF LABOR,
iv1INE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. WEVA 2004-195-R
Citation No. 7220274;.07/22/2004

Respondent.

American Eagle Mine
Mine ID 46-05437
DECISION

Appearances: Timothy M. Biddle, Esq., Daniel W. Wolff, Esq., Crowell & Moring,
Washington, D.C., for the Contestant;
Mark Malecki, Esq., Timothy Williams, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, VA, for the Secretary.
Before:

Judge Weisberger

I.

Statement of the Cases

These contest proceedings, consolidated for a hearing, are before me based on two notices
of contest contesting the issuance of citations alleging violations of 30 C.F.R. § 75.17001, and
one notice of contest challenging an order issued under Section 104(b) of the Federal Mine
Safety and Health Act of 1977 (the Act). Contestant also filed, along with these contests, a
motion to expedite these cases.
After the notices of contest and the motions to expedite were filed on July
21, 2004, a conference telephone call was convened with counsel for both parties.
At that time, argument was presented on the motions to expedite, and the motions
were granted. It was agreed at the time that the trial dates would be July 27 and
July 28, 2004.
1

Initially Contestant's petition for Modification of Section 75.1700 was granted in July 2001. It
was amended in a Proposed Decision and Order, Docket No. 2002-082-C, May 23, 2003,
("Modification").

26 FMSHRC 708

ID.

Docket No. WEVA 2004-195-R

In essence, Citation No. 7220274, issued July 22, 2004, alleges, that
relating to well No. 242, the company did not comply with the terms of paragraph
l(a)(l) of the Modification, supra, order which provides, as relevant, that "[a]
diligent effort shall be made to clean the borehole to the original total depth." The
next sentence contains the following critical language. "If this depth cannot be
reached, the borehold shall be cleaned to a certain depth ...." (Emphasis added.)
In essence, the parties agreed that in cleaning the area in question a 6 Y2
inch diameter drill bit was used, and the diameter of that area had to be cleaned
out, initially was 12 114 inches. This particular area was drilled to the center and
filled with cement to a point 200 feet below the coal seam. The Secretary argues
that not all material had been removed out of the 6 Yz inch cement drill hole.
In essence, it is the argument of the operator that it did comply with this
section, as there is evidence that the well was cleaned out by the 6 1/4 diameter
drill, furnished with a water spray, that removed the loose material from the
borehole.
The evidence that the operator relies upon is the testimony of its expert
witness, Joseph Pasini. He opined, based on his experience, that in order to clean
a plugged well a vertical hole should be drilled with a six-inch bit, even if the hole
is 12 inches in diameter. Also, it should be drilled with water; the water would
clean material out of the hole.
The Secretary's witness Eric Sherer indicated, in contrast, that cleaning by
using an approximately six-inch diameter drill in a borehole 12 inches in diameter
could leave material. He further indicated that the use of water is not sufficient,
and it could leave material behind.
I place more weight on his opinion, because it appears to be supported by
the reasons that he proffered, which in the main have not been contradicted or
rebutted. In this regard, he testified that the water jets that are used along with the
drill, are directed at the bit to clean and cool it, and are directed downward.
Importantly, I note that after the well had been drilled to clean it, the well
shaft was inspected, by MSHA Inspector Gilbert Young on July 26, 2004, after
the longwall had intersected with the vertical shaft and opened it up.
He observed that material was taken from the area of the shaft that
formerly had cement in it. He stated that the material was other than cement. In
general, I find that the Secretary's position and argument in this case is consistent
26 FMSHRC710

with the clear language of the Modification, supra, which appears to require the
shaft be cleaned before it is cemented.
As explained by Sherer, and in the main not contradicted or impeached,
any unconsolidated material in the shaft should be dislodged before cement is
placed in it, because any unconsolidated material compromises the integrity of the
cement.
As a defense, the operator argues that Section l(a)(l), supra, which was
cited by the Secretary, is not applicable because it has not been contradicted that
well no. 242 was plugged for use as a degasification borehole, and that
accordingly Section l(d) of the Modification, supra, applies.
The first sentence of Section l(d), supra, states as follows: "Plugging oil
and gas wells for use as degasification boreholes". Section l(d), supra, in
subsections one through eight, lists various procedures that should be followed
and utilized when plugging oil or gas wells that are subsequently used as
declassification boreholes.
The operator points out that it complied with all of these terms, and the
Secretary has not challenged this claim. The Secretary has not alleged any
violation of any of the terms or that the company did not follow any of the terms
or that the company did not follow any of the requirements of Section 1(d), supra.
The operator further argues citing Sutherland on Statutory Construction
that Section l(d), supra, is to be read independently of the requirements of (l)(a),
supra. In other words, that if Section l(d), supra, is clear, then Section l(a), supra,
should not be applied.
The issue herein boils down to whether Section l(a), supra, has been
superseded by Section l(d), supra, or whether the requirements of Section l(a),
supra, must be followed in the case at bar.

In this connection, I find more persuasive the arguments set forth by the
Secretary, in the sense that in the main they refer to the language of the
Modification itself. I note a number of factors in that regard.
First of all, at the beginning of the Modification, supra, at 2, under the
heading ORDER, it is indicated that the petition is GRANTED allowing mining
in conditions that would not be approved under Section 75.1700, supra," ...
conditioned upon compliance with the following terms and conditions." A
number of conditions follow. The first refers to "[p]rocedures to be utilized when
plugging oil or gas wells." (Modification l, supra.) A number of subparagraphs

26 FMSHRC 711

follow including (a), supra, under which the operator was cited, and, (d), supra,
which the operator alleges covers the conditions preserited herein and supersedes
(a), supra.

The Secretary argues that Section l(a)(l), supra, is an antecedent to the
rest of the subparagraphs that follow, including (b), supra, and (d), supra. I find
the Secretary's argument persuasive. In this sense, Section l(a), supra, whose first
sentence refer to cleaning out and preparing oil and gas wells, contains the
following last sentence, which I find very important. "Prior to plugging an oil or
gas well, the following procedures shall be followed." (Emphasis added.) It then
lists various procedures. It thus seems to set forth a sequence that has to be
followed.
This interpretation is borne out by looking at Section l (d), supra, which
follows l(a), supra, and refers to plugging, which takes place after cleaning and
preparing.
The reading urged by the operator would appear to make Section l(a),
supra, somewhat superfluous, which would be contrary to legislative construction,
which reasoning by analogy, I apply to modifications.
I also find it significant that the Secretary's witness Sherer, who indicated
that he was the author of Section l(d), supra, indicated that he did not intend for
Section l(d), supra, to supplant Section l(a), supra. He indicated that Section
l(d), supr~ was written to give the option to an operator to de-gas, but that the
operator still needs to prepare a borehole pursuant to Section l(a)(l), supra.
For all these reasons I find the operator did violate Section l(a)(l), supra,
of the Modification.
IV.

Docket No. WEVA 2004-187-R

Citation No. 7232788, issued July 19, 2004, pertaining to well No. 384
alleges a violation predicated upon language set forth in Section l(a)(2), supra, of
the Modification. The operative language there is as follows: "If it is not possible
to remove all casing" - and this is the critical language - "the casing which
remains shall be perforated, or ripped, at intervals spaced close enough to permit
expanding cement slurry to infiltrate the annulus ...."
The operator argues that this requirement has been met because the two
annulae had been filled with expanding concrete. In this connection, the operator
argues that the requirement to rip or perforate is a means to an end, not an end in
26 FMSHRC 712

In asubsequent conference call at 11 :00 the next morning, it was agreed
by counsel that the only issue to be litigated was whether the violations have been
established. Contestant made a request to start on July the 28th to allow additional
time for preparation. There was not any objection, and the cases were rescheduled
for trial commencing July 28 and continuing through July 29.

In addition, a conference call was scheduled for 11:00 a.m. July 26 to
allow the parties to present oral argument regarding the Secretary's motion in
liminie. A conference call was subsequently held on July 26 at 11 :00 a.m., and
after listening to argument, the motion was granted2 •
The cases were heard in Charleston, West Virginia, on June 28, 2004. The parties waived
filing written briefs, and instead presented oral argument on June 29, 2004. The following bench
decision was issued, with minor corrections of non-substantial matters.
·

II.

Introduction

Contestant owns and operates an underground coal mine located in West
Virginia, known as the American Eagle Mine. The area at issue involved a
longwall operation.
The Eagle Coal Seam, in which the mine operates, intersects with the
Cabin Creek Oil Field. Numerous oil and gas wells are located within the mine
field. Most of these wells are inactive, and they range from a depth of
approximately 3,000 feet to 6,000 feet.
The coal seam is approximately 1,000 feet below the surface. The wells
initially contained outer and inner pipes or casings. Some of these have been
removed, and the open spaces surrounding the casings3 extend to the outer walls
of the borehole.
At the hearing, the Parties filed, Stipulations of the Parties, appended to
this decision as Appendix "A". The following paragraphs from the Stipulations
are incorporated herein by reference: 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18.

2

An oral order was issued precluding the Contestant from raising any defense that its methods of
sealing, plugging, and cleaning were the equivalent of the methods set forth in the Modification at issue,
and proffering testimony in support of such defense. Upon reconsideration, the initial order was revised
to allow the defense of equivalency regarding those wells that were that were cleaned and plugged after
the Modification was issued.
3

Each open space is known as an annulus.

26 FMSHRC 709

itself - the end here being to ensure that the expending cement goes into the
annulus, and, in the case at bar, that requirement had been met.
In resolving this issue, I focµs, first of all, on the language and sentence
structure of Section l(a)(2), supra. I find the Secretary's argument persuasive, just
focusing on the language of the Section. The sentence that I read earlier contains
a comma after the phrase "casing which remains shall be perforated, or ripped,"
and then goes on to state "at intervals spaced close enough to pennit expanding
cement slurry to infiltrate the annulus .... "

It is clear that the placement, in the sentence, of the comma signifies a
pause at that point, and that the plain meaning is to relate the spacing of the
intervals to the infiltration of the cement, i.e., that the intervals of the perforations
or rippings are to be close enough to pennit infiltration of the cement. The
emphasis being on the closeness of the intervals as relating to the infiltration. It is
clear, then, that the requirement to perforate or rip still remains. That phrase is
not qualified. In the case at bar, it has been stipulated that neither perforation or
rippings had been done.
The operator also argues that because well No. 384 was plugged to the
surface, the requirements of Section l(b), supra, apply rather than Section l(a),
supra. This argument is essentially the same as presented in regard to well No.
242, and my decision on this defense is the same for the reasons set forth above.
(I, Infra).
Therefore, for all the above reasons, I find that the operator did violate
Section l(a)(2) of the Modification . .

V.

Docket No. WEVA 2004-188-R

On July 19, 2004, the Secretary issued Order No. 7232789 under Section
104(b), supra, of the Act, alleging a failure to abate Citation No. 7232788. An
abatement time of 15 minutes was set starting from the time the citation was
issued. The Secretary argues that the time limit and failure to extend was
reasonable in order to prevent incursion by the operator's longwall operations into
a restricted barrier area.
In determining whether the time set in the order was reasonable or an
abuse of discretion, focus must be placed on the person who actually issued the
order and his reasons for doing so. The evidence on that point is rather scanty.

Jesse Cole an MSHA district manager, who set the abatement time,
indicated that he allowed only 15 minutes because there had been numerous
26 FMSHRC 713

conferences", and MSHA had written a letter to the company setting forth what it
had required.
However, I note there are a number of factors involved here. First of all,
there was a history of both parties' actions that has to be taken into account. The
longwall had intersected with various wells in addition to the two at issue. The
situation at issue in not new, as there were many wells facing problems similar to
the problems involved in the two wells at question. The Operator's allegation that
in the past it did not encounter any problems with MSHA with regard to its
method of preceding has not been contradicted
Further, the parties stipulated that, regarding well No. 384, the District
Manager had asked for various documentation. The company provided that
document, and a permit was issued on November 13, 2003, to mine through well
no. 384. Subsequent action was taken by another manager refusing permission,
and that led to the instant litigation.
In light of this history, and in light of the seemingly contradictory actions
by different district managers, I conclude it was not reasonable to set only 15
minutes for abatement. More time should have been set to allow this matter to be
resolved at some administrative level by a person in authority superior to a district
manager.
Further, the propriety of proposed action to abate the violative conditions
prepared herein, is an issue is well beyond the scope of this hearing. It also is
beyond the authority of a Commission judge to delve into this matter. However,
because of all the above history, I cannot find that the time set and refusal to
extend was reasonable. Hence, I am ordering the 104(b) order to be vacated.

ORDER
It is Ordered that the Notices of Contest regarding Citation Nos. 7220274 and 7232788
be Dismissed, and Docket Nos. WEVA 2004-187-R and 195-R be Dismissed. It is further
Ordered that the Notice of Contest, regarding Order No. 7322789 be Sustained, and Order No.
7322789 be Vacated.

Administrative Law Judge

26 FMSHRC 714

Distribution:
Timothy M. Biddle, Esq., Daniel W. Wolff, Esq., Crowell & Moring, llP, 1001 Pennsylvania
Ave., N.W., Washington, D.C. 20004
Mark Malecki, Esq., Timothy Williams, Esq., Office of the Solicitor, U.S. Department of Labor,
1100 Wilson Blvd., 22nd Fl. West, Arlington, VA 22209-2247
/sb

26 FMSHRC 715

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

SPEED MINING, INC .
Contestant

)

v.

CONTEST PROCEEDINGS
DOCKET NO. WEVA 2004-187-R
Citation No . 7232788
Issued 7/19/04

)
)
)
)
)
)

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

)

DOCKET NO . WEVA 2004-188-R
Order No . 7232789
Issued 7/19/04
American Eagle Mine
Mine ID No. 46-05437

STIPULATIONS OF THE PARTIES
The parties hereto stipulate to the following :
1.

Contestant Speed Mining, Inc .

("Contestant") owns and

operates the American Eagle Mine in Dry Branch, West Virginia .
The American Eagle Mine is an underground coal mine.

Coal is

mined at the mine by, inter alia, the longwall mining method.
2.

The mine is subject to the Federal Mine Safety and Health

Act of 1977, 30 U.S.C .
3.

§

801 et seq.

The mine is subject to regulation by the Mine Safety and

Health Administration, which regularly inspects the mine to
assess compliance with the Act and its implementing safety and
health standards.
4.

The Federal Mine Safety and Health Review Commission has

jurisdiction over the mine, the parties and the subject matter of
this proceeding.
5.

The citations and orders, and the amendments thereto, which

26 FMSHRC 716

are at issue in this case, were properly served by a duly
authorized representative of the Secretary of Labor ("Secretary")
upon an agent of Contestant on the date and place stated therein
and may be admitted into evidence .
6.

The Proposed Decision and Order granting Contestant's

petition for modification became effective in July of 2001.
was then amended.

It

The Proposed Decision and Order dated May 23,

2003 in Docket No . 2002-082-C consisting o.f 12 numbered pages and
an addendum labeled "Correction of Decision and Order" is now in
effect.

It is a binding modification of 30 C.F.R. § 75 . 1700 as

applied to the mine.

The terms and conditions in the Decision

and Order constitute the standard applicable to the mine .

L..

All the wells which Contestant has sought approval to mine through are inactive

weffs (No . 7 was deleted from the Stipulation)

Well 384
8.

On November 4, 2003, Speed sent a letter to the Acting

District Manager requesting a permit to mine through well #384.
The letter stated that "Well #384 has been plugged to lOlc
Petition standards . "

Accompanying the letter was a plugging

affidavit purporting to show that the well had been plugged on
August 15, 2003.
9.

Based upon the representations and documentation provided

by Contestant, MSHA issued a permit on November 13, 2003 to mine
through well #384.
10.

By letter of July 13, 2004, the district manager instructed

26 FMSHRC 717

Contestant not to mine within 150 feet of .well #384 until
Contestant provided him with proof that the well was plugged in
compliance with the modified standard.
11 .

By letter of July 16, 2004, Contestant explained its view

that it was entitled to mine within 150 feet but asked that a
citation be issued so that a ruling could be obtained from the
Federal Mine Safety and Health Commission .
12.

On July 19, 2004,

~ontestant

advised the district manage_r

that Contestant had mined within 150 feet of well #384 .
13 .

At that time, Speed did not have permission from the

district manager to mine within 150 feet of well #384.
14.

The two outer casings in well #384 had been neither removed

nor perforated at the time at which Contestant stated that it had
mined within 150 feet of the well .
Well 242
15.

In 1956, the casings were removed from well #242, and

cement and clay were placed in the well.

In 2003, Contestant

removed some but not all of that material, prior to plugging the
well with cement .
16 .

On November 4, 2003, Contestant sent a letter to the acting

district manager requesting a permit to mine through well #242.
The letter stated that "Well #242 has been plugged to 101c
Petition standards . "

Accompanying the letter was a plugging

affidavit purporting to show that the well had been plugged on
October 9, 2003.

26FMSHRC718

17 .

Based upon the representations and d9cumentation provided

by Contestant, MSHA issued a permit on November 13, 2003 to mine
through well #242.
18 .

Speed mined through well #242 on July 22, 2004.
Respectfully submitted,

TIMOTHY M. BIDDLE, Esq.
DANIEL W. WOLFF, Esq.
Crowell & Moring LLP
1001 Pennsylvania Avenue, N . W.
Washington, D . C . 20004

HOWARD M. RADZELY
Solicitor of Labor
EDWARD P. CLAIR
Associate Solicitor

Attorneys for Speed Mining
(202) 624-2585
MARK R. MALECKI
Counsel for Trial Litigation
TIMOTHY S. WILLIAMS
Trial Attorney
Attorneys for Mine Safety and
Health Administration
U.S . Department of Labor
Office of the Solicitor
1100 Wilson Boulevard
Room 2226
Arlington, Virginia 22209
(202) 693-9341

26 FMSHRC 719

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

August 24, 2004
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMlNISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 2003-264-M
A.C. No. 48-01605-05501

v.
:MELGAARD CONSTRUCTION CO.,
Respondent

Rock Crusher #2

DECISION
Appearances:

Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Department of Labor,
and Fred Fernandez and Ronald D. Pennington, Conference and Litigation
Representatives, Mine Safety and Health Administration, U.S. Department
of Labor, Denver, Colorado, for the Petitioner;
John E. Melgaard, President, Melgaard Construction Company,
Gillette, Wyoming, for the Respondent.

Before:

Judge Feldman

This proceeding concerns a petition for assessment of civil penalties filed pursuant to
section 1lO(a) of the Federal Mine Safety and Health Act of 1977 (the Mine Act), 30 U.S.C.
§ 820(a), by the Secretary of Labor (the Secretary), against the respondent, Melgaard
Construction Company. John E. Melgaard is the company president. 1 The petition seeks to
impose a total civil penalty of $365.00 for six alleged violations of mandatory safety standards
in 30 C.F.R. Part 56 of the Secretary's regulations governing surface mines.
Four of the cited violative conditions allege inadequate guarding in violation of the
mandatory standard in section 56.14107(a), 30 C.F.R. § 56.14107(a). This safety standard
requires moving machine parts, such as gears and pulleys, to be guarded to protect persons from
injury. Only one of the guarding violations is characterized as significant and substantial (S&S)
in nature. Generally speaking, a violation is S&S if it is reasonably likely that the hazard
contributed to by the violation will result in an accident causing serious injury. Cement Division,
National Gypsum, 3 FMSHRC 822, 825 (April 1981).

1

John E. Melgaard appeared on behalf of the company and he was its only witness.
Thus, all references to "Melgaard's" contentions refer either to Melgaard's testimony or his
assertions advanced on behalf of the company.
26 FMSHRC 720

The two remaining violations, both designated as non-S&S in nature, concern the
mandatory safety standard in section 56.14132(a), 30 C.F.R. § "56.14132(a), that requires
manually-operated backup audible warning devices to be maintained in functional condition.
This matter was heard on July 27, 2004, in Gillette, Wyoming. During the hearing, Melgaard
stipulated to the fact of the non-S&S backup alarm violations in Citation Nos. 7913794 and
7913795. Melgaard agreed to pay the $55.00 penalty proposed by the Secretary for each of these
citations. (Tr. 81-83). Accordingly, Citation Nos. 7913794 and 7913795 shall be affirmed.
At the beginning of the hearing, the parties were advised that I would defer my ruling
pending post-hearing briefs, or, issue a bench decision if the parties waived their right to file
post-hearing briefs. The parties opted to waive post-hearing briefs in favor of a bench decision.
(Tr. 83-84, 137-38). This decision summarizes and supplements the bench decision with respect
to the four remaining guarding violations.

I. Pertinent Penalty Criteria
The bench decision applied the statutory civil penalty criteria in section 1IO(i)
of the Act, 30 U.S.C. § 820(!), to determine the appropriate civil penalty to be assessed.
In determining the appropriate civil penalty to be assessed, Section 1IO(i) provides,
in pertinent part:
the Commission shall consider the operator's history of previous violations, the
appropriateness of such penalty to the size of the business of the operator charged,
whether the operator was negligent, the effect on the operator's ability to continue
in business, the gravity of the violation, and the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after notification of a
violation.
Melgaard Construction Company is a small mine operator that is subject to the
jurisdiction of the Mine Act. The company has no history of previous violations as it had
recently begun operations at its No. 2 Rock Crusher site. Melgaard Construction Company
abated the cited conditions in a timely manner. The cited conditions were not serious in gravity.
Finally, the civil penalty proposed by the Secretary will not impair the company's ability to
continue in business.

II. Background
On February 15, 2002, Donald B. Wagoner, Melgaard Construction Company's Safety
Representative, notified the Mine Safety and Health Administration's (MSHA's) field office in
Green River, Wyoming, of its intention to begin rock crushing operations at its No. 2 Crusher
facility as of February 20, 2002. The No. 2 Crusher facility is located in Gillette, Wyoming.
The Melgaard Construction Company is a small mine operator that employs approximately

26 FMSHRC 721

15 people its No."2 crusher facility. At the facility, rock material is removed from hilltops by
dozer. The material is transported from the hilltop to a feeder'by a front-end loader whereupon
the material drops onto a conveyor that carries the material to be sorted by screen. The sorted
material is conveyed to a rolls crusher or a jaws crusher where it is crushed into various grades of
gravel. The crushed gravel is conveyed to a pay belt that serves a stacker conveyor. The gravel
is sold to oil companies and ranchers who use the material for road construction.
On May 8, 2ooi, MSHA Inspector Joel Tankersley became aware of the Rock
Crusher #2 facility after he observed the surface mine from his vehicle while driving on
Interstate 90. Although Wagoner had advised MSHA of start-up operations, Tankersley was
unaware of the facility's operation. Tankersley drove to the mine site where he encountered
three workers. Tankersley initially met loader operator Ed Peyser. Peyser directed Tankersley to
Master Mechanic Kent Lucschow, who was the supervisor and crusher operator. A third
unidentified employee was operating a Caterpillar dozer. Lucschow accompanied Tankersley on
his inspection. Tankersley did not have a camera because his inspection was unplanned.
Although the Caterpillar and loader were moving material at the stockpile, the conveyor
system was not operating because it was being repaired. Consequently, the conveyor and
crushers were de-energized as the diesel generator that powers the system was shut off.
Lucschow did not provide Tankersley with any information concerning the maintenance status of
the conveyor system or when startup was contemplated. Both Tankersley and Melgaard
described Lucschow as a courteous, non-confrontati~nal gentleman. (Tr. 70, 136-37).
John Melgaard testified that the rolls crusher jammed on May 3, 2002, causing the belts
to spin off of the feeder. Melgaard further testified that a new belt was installed on the feeder on
May 8, 2002, and that significant welding repairs were subsequently made on the rolls crusher.
Melgaard stated the system was out of service for extensive repairs from May 3, 2002, until
crushing operations resumed on August l, 2002. Melgaard's testimony is consistent with
Tankersley' s testimony that the mine site was not staffed or operating on July 17, 2002, when
Tankersley returned to the site to terminate a previously issued citation. (Tr. 40, 86-87).

ID. Findings and Conclusions
A. Citation No. 7913790
Upon inspection of the feed drive motor, Tankersley observed the drive v-belt was not
guarded to protect the belt from contact. The v-belt is at the side of the drive motor. The drive
motor is located approximately three feet off of the ground. Tankersley was concerned that the
crusher operator could contact the exposed v-belt while checking on the operating condition of
the motor. In such an event, serious injuries to the fingers or the extremities would be sustained.
Consequently, Tankersley issued Citation No. 7913790 citing a violation of the mandatory

26 FMSHRC 722

guarding standard in section 56.14107(a).2 (Gov. Ex. 2). However, given the location of the
exposed belt drive, Tankersley believed that such an accident was unlikely. He therefore
characterized the cited violation as non-S&S.
The citation was terminated shortly after it was issued after the guard, which was lying on
the ground, was re-installed. Tankersley did not consider the conveyor system as "out of service"
because Lucschow did not assert the system was inoperable. (Tr. 62). However, Tankersley
conceded the equipment was de-energized and Lucschow was working on the rolls crusher
which is in line with the feed drive motor as well as the other components of the conveyor
system. (Tr. 64).
Melgaard testified that the rolls crusher "plugged-up" on May 3, 2002, causing extensive
damage to the entire conveyor system. Melgaard stated the belts had to be removed to enable
welding repair of the rolls crusher. On May 8, 2002, Melgaard asserts that the v-belt drive motor
guard had been removed to facilitate the repairs.
The bench decision noted that the Secretary has the burden of proving the alleged
violation of a mandatory safety standard by a preponderance of the evidence. Garden Creek
Pocahontas Company, 11FMSHRC2148, 2152 (Nov. 1989). Consistent with Tankersley's
testimony, Melgaard concedes that the v-belt guard on the drive motor had been removed and
that it was lying on the ground. Thus, the Secretary has presented a prima f acie case that the
guarding standard was violated.
However, Melgaard has rebutted the Secretary's showing by demonstrating that the
conveyor system was inoperable and that the guard had been removed to facilitate repairs.
In this regard, Tankersley candidly admitted that the diesel generator had been turned off,
that repair work was being performed, and, that the guard was in close proximity to the drive
motor and readily available to be re-installed. Melgaard stated that the lock-down handle on the
generator had been "tagged-out." Tankersley did not recall whether the generator had been
locked out, however, he did not dispute Melgaard's testimony. (Tr. 85-86). Obviously, guards
may be removed to perform repairs on de-energized equipment. Under such circumstances, a
violation of the guarding standard in section 56.14107(a) has not occurred. (Tr. 142-47).
Accordingly, Citation No. 7913790 shall be vacated.

2

Section 567.141079(a) provides:
(a) moving parts shall be guarded to protect persons from
contacting gears, sprockets, chains, drive, head, tail, and takeup
pulleys, flywheels, coupling, shafts, fan blades; and similar moving
parts that can cause injury.

26 FMSHRC 723

B. Citation No. 7913791
Upon inspection of the generator drive motor, Tankersley observed the power takeoff
(PTO). The PTO is approximately eight feet long and it transfers power from the generator drive
motor to the rolls crusher. The eight foot length of the PTO varies in height from eight feet off
the ground at the rolls crusher angling down to four feet off of the ground where it connects to
the generator motor. There is a knuckle or joint assembly in the middle of the PTO. The PTO's
moving parts were guarded on three sides - - the top and both sides. However, Tankersley noted
that the bottom of the PTO was unguarded exposing anyone walking underneath the PTO to the
hazard of a contact injury.
Tankersley believed that anyone traveling under the PTO to inspect the belts could be
exposed to injury. However, Tankersley believed an injury was unlikely because of the location
of the unguarded area. Consequently, Tankersley issued Citation No. 7913791 citing a non-S&S
violation of the mandatory safety standard in section 56.14107(a). (Gov. Ex. 3). The citation
was terminated shortly after it was issued after the guard was re-installed at the bottom
of the PTO.
Melgaard conceded that a bottom guard was required. However, Melgaard asserted the
guard had been removed temporarily to grease the knuckle joints. (Tr. 95). In fact, Melgaard
stated the guard was removed daily to grease the universal joint in the PTO. (Tr. 96-97).
Tankersley did not dispute that the guard was temporarily removed or that it was routinely
removed to service the universal joint. (Tr. 95-97, 98-99).
Similar to the decision in Citation No. 7913790, the bench decision in Citation
No. 7913791 noted that the evidence demonstrated that the lower PTO guard was temporarily
removed during the maintenance and repair process. As discussed above, it is undisputed that
the conveyor system was de-energized and repair work was being performed. As such, a
violation of the guarding standard in section 56.14107(a) has not been shown. (Tr. 142-47).
Consequently, Citation No. 7913791 shall be vacated.
C. Citation No. 7913792
Upon inspecting the return belt, Tankersley observed that the tail roller was guarded on
the top and both sides. However, the bottom of the tail roller was unguarded. (Tr. 110). The tail
roller was located at ground level adjacent to the PTO on the generator side of the rolls crusher.
There is a walkway area next to the tail roller that is approximately six feet wide. (Tr. 118).
The crusher operator traversed this area to examine the stacker belt and the rolls crusher.
Tankersley also noted that the return belt head roller did not have a guard that protected
the pinch point. The head roller was located on the other side of the rolls crusher approximately
seven feet above the ground. (Gov. Ex. 10, pp. 2-3). Tankersley believed that, given continued
mining operations, it was reasonably likely that an individual passing by the return belt will
26 FMSHRC 724

sustain serious injunes as a result of his hand, foot or clothing contacting exposed moving parts.
Specifically, with respect to the unguarded bottom of the tail roller, Tankersley was concerned
that someone could get his foot caught under the roller or catch his clothing on a pin or splice
area protruding from the belt. Consequently, Tankersley issued Citation No. 7913792 citing an
S&S violation of the guarding standard in section 56.14107(a). (Gov. Ex. 4). The citation was
terminated on May 8, 2002, after the cited missing guards were constructed and installed on the
return belt.
Melgaard did not dispute Tankersley' s testimony with respect to the unguarded portion of
the tail roller. Melgaard contended the head roller was seven feet above the ground. (Tr. 119).
Tankersley' s illustration·of the return belt notes that the head pulley is "about 7 feet" above the
ground. (Gov. Ex. 10, p.3). Section 56.14107(b) of the cited guarding standard provides that
"[g]uards shall not be required where the exposed moving parts are at least seven feet away from
·
walking or working surfaces."
The bench decision noted that Tankersley admitted the head roller was approximately
seven feet above ground. Melgaard testified the head roller is at least seven feet high.
Tankersley did not take an actual measurement. In the absence of actual measurement, the
Secretary has failed to demonstrate that the "seven feet high" exception to the guarding
requirements specified in Section 56.14107(b) does not apply. Therefore, the bench decision
vacated the portion of Citation No. 7913792 concerning the unguarded head roller. (Tr. 147-48).
With respect to the guarding standard as it applies to the tail roller, the bench decision
noted that it is instructive to examine the Commission's decision in Thomas Brothers Coal
Company, 6 FMSHRC 2094 (September 1984) that addressed the purpose of the Secretary's
guarding standard. The Commission stated:
We find the most logical construction of the standard is that it
imports the concepts of reasonable possibility of contact and
injury, including contact stemming from inadvertent stumbling or
falling, momentary inattention or ordinary carelessness. Applying
this test requires taking into consideration all relevant exposure
and injury variables. For example, accessibility of the machine
parts, work areas, ingress and egress, work duties, and as noted, the
vagaries of human conduct. Under this approach, citations for
inadequate guarding will be resolved on a case-by-case basis.
6 FMSHRC at 2097 (emphasis added).

26 FMSHRC 725

Thus, as a general proposition, stumbling and inadvertent contact are the concerns that the
guarding standard addresses. Consequently section 57.14107(b) exempts "moving parts [that]
are at least seven feet away from walking or working surfaces," although such areas may be
accessible by ladder. The standard is not intended to require moving parts to be guarded in order
to prevent contact by personnel who may climb up to inaccessible areas, or, intentionally crawl,
or reach, under inaccessible areas near ground level to perform maintenance. Under such
circumstances, section 56.14105, 30 C.F.R. § 56.14105, requires maintenance of equipment to be
performed only after the power is turned off and the equipment is blocked against motion.
Moreover, guarding such inaccessible areas may require removing the guard to accomplish
cleaning.
Unlike the previous two cited conditions where guards were temporarily removed during
maintenance and repairs, Melgaard concedes the bottom of the tail roller was unguarded.
Although the conveyor system was de-energized during Tankersley' s inspection, the cited
condition must be viewed in the context of renewed ongoing mining operations. Putting aside
the question of the likelihood of inadvertent contact, the exposed bottom of the tail roller creates
a potential hazard that someone may jam his foot or catch his clothing on a splice point.
Accordingly, Citation No. 7913792 shall be affirmed.
Turning to the issue of the likelihood of serious injury, a violation is properly designated
as S&S in nature if, based on the particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to by the violation will result in an injury or an
illness of a reasonably serious nature. National Gypsum, 3 FMSHRC at 825. The Commission
has explained further that to demonstrate that a violation is S&S the Secretary must establish a
reasonable likelihood that the hazard contributed to will result in an event in which there is an
injury. U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). The Commission
has emphasized that it is the contribution of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining Company Co., Inc. , 6 FMSHRC 1866,
1868 (August 1984). (Emphasis in original).

In the instant case, the nature and extent of the partially unguarded tail roller, given its
location in a six feet wide walkway, fails to demonstrate that it is reasonably likely that an
accident resulting in serious injury from contact with the bottom of the roller will occur. In other
words, although the partially unguarded tail roller can contribute to a serious accident, such an
accident is unlikely. Consequently, Citation No. 7913792 shall be modified to reflect the cited
violation was non-S&S in nature.
The Secretary proposes a $90.00 civil penalty for Citation No. 7913792. Given its
modification to a non-S&S citation, a civil penalty of $55.00 shall be imposed. (Tr. 147-52).

26 FMSHRC 726

D. Citation No. 7913793
Tankersley inspected the Caterpillar generator referred to as the Genset. 3 The Genset is
connected by electrical cables to the generator drive motor. (Gov. Ex. 10, p.2). The Genset
creates the electricity that powers the drive motor that transfers the energy through the PTO to
the crusher. The crusher operator station is located between the generator drive motor and the
Genset where a box is located housing punch buttons that operate various parts of the crusher.
The generator motor is at the rear of the Genset. The motor is powered by v-belts and alternator
belts. There is a radiator fan that draws air into the radiator to cool the motor. The moving belts
are approximately chest high. There is a cowling that guards the belts. A cowling is similar to
the guard that covers the· radiator fan on an automobile.
Tankersley noted that the factory installed cowling for the v-belts was not long enough
or wide enough to cover all of the pinch points. Tankersley testified the cowling was
approximately 12 inches too short on either side of the v-belts which protrude outside of the
motor. (Tr.127-28).
Tankersley was concerned that anyone examining the crusher could sustain serious
injuries by inadvertently contacting the exposed portion of the v-belt. However, Tankersley did
not believe such an accident was likely because it was in a low travel area. (Tr. 128-29).
Consequently, Tankersley issued Citation No. 7913793 citing a non-S&S violation of the
guarding standard in section 56.14107(a). (Gov. Ex. 5).
Melgaard testified that a factory installed guard protected the v-belt from contact.
Although Melgaard believed the cowling was adequate, to abate the citation Melgaard installed a
spacer at the cowling's mounting site to extend the guard over the v-belt. (Tr. 130).
The citation was terminated by Tankersley on July 17, 2002, when he returned to the
mine site and observed that the cowling had been extended to protect the pinch points from
contact. (Gov. Ex. 5). As previously discussed, there were no mining activities occurring at the
site at that time.
As previously discussed, the Secretary has the burden of proof. The bench decision noted
that the Secretary is at a disadvantage in this case because Tankersley did not photograph the
cited guarding violations. In this regard, the Secretary proffered drawings of the cited guarding
conditions that were drawn by Tankersley approximately one month before the July 2004 trial.
(Tr. 59). These drawings are based on Tankersley' s recollections of conditions he observed more
than two years before. As such, Tankersley' s drawings are of little evidentiary value.

3

Tankersley erroneously cited the generator as a Murphy generator based on information
provided to him by Lucschow. The generator was manufactured by Caterpillar. (Tr. 124).
26 FMSHRC 727

In guarding cases it is essential that the MSHA inspector photograph the cited conditions.
In addition, measurements should be taken to describe the location and quantify the area that
poses a contact injury hazard. In the instant case, Citation No. 7913793 alleges the cowling
covering the v-belts "was not long or wide enough to cover all pinch points." (Gov. Ex. 5).
In the absence of photographs or measurements quantifying the alleged inadequacy of the
factory installed guard, the evidence presented by the Secretary is insufficient to demonstrate a
violation of the cited guarding standard. Accordingly, Citation No. 7913793 shall be vacated.
(Tr. 152-54).

ORDER
Consistent with this Decision, IT IS ORDERED that Citation Nos. 7913790, 7913791
and 7913793 ARE VACATED.

IT IS FURTHER ORDERED that Citation Nos. 7913794 and 7913795 ARE
AFFIRMED and Citation No. 7913792 IS MODIFIED to delete the significant and substantial
designation.
IT IS FURTHER ORDERED that Melgaard Construction Company shall pay

a total civil penalty of $165.00 in satisfaction of Citation Nos. 7913792, 7913794 and 7913795.
Payment is to be made to the Mine Safety and Health Administration within 40 days of
the date of this Decision. Upon timely receipt of pavment, Docket No. WEST 2003-264-M
IS DISMISSED.

-

Administrative Law Judge
Distribution: (Certified Mail)
Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Department of Labor,
P.O. Box 46550, Denver, CO 80201
Fred Fernandez and Ronald D. Pennington, Conference and Litigation Representatives,
Mine Safety and Health Administration, U.S. Department of Labor, Rocky Mountain District
Office, P.O. Box 25367, Denver, CO 80225-0367
..
John E. Melgaard, President, Donald B. Wagoner, Safety Representative, Melgaard Construction
Company, P.O. Box 2408, Gi11ette, WY 82717

/hs

26 FMSHRC 728

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

August 31, 2004
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVJL PENALTY PROCEEDING
Docket No. LAKE 2002-61
A.C. No. 33-01159-04192

v.
THE OHIO VALLEY COAL COMPANY,
Respondent

Powhatan No. 6 Mine

DECISION APPROVING SETTLE1\1ENT ON REMAND
Before:

Judge Hodgdon

This case.is before me on remand from the Com.mission. Ohio Valley Coal Co., No.
LAKE 2002-61 (May 18, 2004). 1 The matter was remanded for a determination of whether the
violation was "significant and substantial"2 and for assessment of a civil penalty. Id. The
parties, by counsel, have filed a motion to approve a settlement agreement. The agreement
provides that the determination of "significant and substantial" will remain as issued, i.e. that the
violation was "significant and substantial" and for a reduction in penalty from $35,000.00 to
$10,000.00.
Having considered the representations and documentation submitted, I conclude that
the proffered settlement is appropriate under the criteria set forth in section llO(i) of the Act,
30 U.S.C. § 820(i). Accordingly, the motion for approval of settlement is GRANTED and the
Respondent is ORDERED TO PAY a penalty of $10,000.00 within 30 days of the date of this
order.

~~fp-

Administrative Law Judge

1

The matter was remanded to the Commission by the U.S. Court of Appeals for the
D.C. Circuit. Sec. v. Ohio Valley Coal Co., 359 F.3d 531 (D.C. Cir. 2004); 2004 WL 547606
(unpublished order granting Secretary's motion for clarification regarding remand to the
Commission).
2

The "significant and substantial" terminology is taken from section 104(d)(l) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 814(d)(l), which distinguishes as more
serious in nature any violation that "could significantly and substantially contribute to the cause
and effect of a . . . mine safety or health hazard."
26 FMSHRC 729

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor,
230 S. Dearborn St., gm Floor, Chicago, IL 60604
Melanie J. Kilpatrick, Esq.Wyatt, Tarrant & Combs, LLP
250 West Main Street, Suite 1600, Lexington, KY 40507

/hs

26 FMSHRC 730

ADl\fiNISTRATIVE LAW JUDGE ORDERS

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

August 3, 2004
BECON CONSTRUCTION, INC.,
Contestant

CONTEST PROCEEDING
Docket No. WEST 2001-204-RM
Citation No. 7994802; 01/02/2001

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

Lebec Cement Plant
Mine ID 04-00213 AF6

MORTON ENGINEERING AND
CONTRACTING, INC.,
Contestant

CONTEST PROCEEDING
Docket No. WEST 2001-226-RM
Citation No. 7994802; 01/02/2001

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

Lebec Cement Plant
Mine ID 04-00213 8FQ

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 2002-147-M
A.C. No. 04-00213-05502 AF6

v.
BECON CONSTRUCTION COMPANY,
Respondent

Lebec Cement Plant

SECRETARY OF LABOR,
:MINE SAFETY AND HEALTH,
ADMINISTRATION, MSHA

CIVIL PENALTY PROCEEDING
Docket No. WEST 2002-164-M
A.C. No. 04-00213-05504 8FQ

v.
MORTON ENGINEERING &
CONSTRUCTION, INC.,
Respondent

Lebec Cement Plant

26 FMSHRC 731

ORDER DENYING SUPPLEMENTAL MOTION TO COMPEL
Before me is a Supplemental Motion to Compel filed on July 12, 2004, by Becon
Construction Company, Inc. (''BECON") and the Secretary's July 29, 2004, Opposition. Becon's
Supplemental Motion follows a May 18, 2004, Order denying Becon's Motion to Compel the
Secretary's further responses to Becon's interrogatories. 26 FMSHRC 499.
With respect to written statements, the May 18, 2004, initial Order denied Becon's
motion to compel minet witness statements that are entitled to the miner informant and miner
witness privileges in Commission Rules 61and62, respectively. 29 C.F.R. 2700.61 and
2700.62. Id. at 450-51. However, leave was granted for Becon to request the Secretary to
provide non-miner witness statements, which, if necessary would have been viewed in camera.
Id. at 452. Despite the Order denying access to miner witness statements, in its Supplemental
Motion, Becon once again seeks the ~sclosure of all statements obtained during the course of the
Secretary's accident investigation. In view of Becon' s failure to limit its request to non-miner
statements, I conclude there are no non-miner witness statements that Becon seeks to compel.
Accordingly, Becon's supplemental motion to compel witness statements identified in the
Secretary's Second Amended Privilege Log as Exs. A, E, FF, L, M, N, 0, P, Q, R, S, T, U, V
and Y IS DENIED.
With respect to the remaining documents that Becon seeks disclosure of, the initial
Order noted that investigative field notes, case analysis, memorandum or summary of interviews
prepared by or for a party in anticipation of litigation are protected by the work product privilege.
Id. at 451 citing Consolidation Coal Company, 19 FMSHRC 1239 (July 1997). The Order also
noted that intra-agency memorandum or e-mail communications that are "consultative" in nature,
in that they contain advisory opinions, recommendations and deliberations, are protected by the
deliberative process privilege. Id.
Finally, the initial Order emphasized that BECON had not articulated why it objected to
the Secretary's assertion of privilege with respect to each document. Nor had Becon shown an
overriding need for any document. However, Becon was granted leave to supplement its Motion
to Compel if it provided specific assertions why a privilege should not apply to each document.
Alternatively, Becon was invited to overcome the Secretary's privilege claims by a showing of
substantial need and undue hardship with respect to each individual document.
Once again Becon failed to comply with the initial Order by generally denying the
Secretary's privilege claims. Becon's request for the disclosure of the Case Closure
Memorandum of District Manager Lee D. Ratcliff, identified as Ex. Fin the Secretary's
Privilege Log, is clearly entitled to the work product and/or deliberative process privileges.
Similarly, the Special Investigation Report, identified as Ex. H, is protected by the work product
privilege. Asarco, Inc., 12 FMSHRC 2548, 2559 (Dec. 1990). Finally, Health and Safety
Conference Notes prepared by Mine Safety and Health Administration personnel during a
meeting attended by the respondents, identified as Ex. J, are protected by the work product
privilege.

26 FMSHRC 732

In each of these instances Becon has failed to demonstrate a compelling need for these
documents. The facts surrounding the subject fatal trolley accident have been the focus of
extensive civil litigation during which time witnesses have been deposed and discovery has been
completed. Consequently, Becon has failed to demonstrate that it does not already possess the
information it seeks, or that the information is not available from other sources. Thus, Becon has
failed to demonstrate the requisite showing to warrant an in camera review. Consequently,
Becon's supplemental motion to compel Exs. F, Hand J IS DENIED. Accordingly, Becon's
Supplemental Motion to .compel IS DENIED.

Jerold Feldman
Administrative Law Judge
Distribution: (Certified Mail)
Kevin J. McNaughton, Esq., Schaffer & Lax McNaughton & Chen, 515 South Figueroa Street,
Suite 1400, Los Angeles, CA 90071 {Counsel for Becon)
John S. Lowenthal, Esq., Lewis, Brisbois, Bisgaard & Smith llP, 650 East Hospitality Lane,
Suite 600, San Bernardino, CA 92408 (Counsel for Morton)
Pamela W. McKee, Associate Regional Solicitor, Eva Luchini, Esq., U.S. Department of Labor,
World Trade Center, 350 South Figueroa Street, Suite 370, Los Angles, CA 90071-1202

lbs

26 FMSHRC 733

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

SECRETARY OF LABOR,
!v:1JNE SAFETY AND HEALTH
ADMJNISTRATION (MSHA),
Petitioner

August 17, 2004
CIVIL PENALTY PROCEEDINGS
Docket No. SE 2003-160
A.C. No. 01-01322-00004
Docket No. SE 2003-161
A.C. No. 01-01322-00005

V.

JIM WALTER RESOURCES, INC.,
Respondent
No. 5 Mine

ORDER DENYING MOTION FOR RECONSIDERATION
OR
CERTIFICATION
Jim Walter Resources, Inc. (JWR) moves for reconsideration of an order denying its
Motion for Summary Decision (Order, July 2, 2004). In the alternative, it moves that the matter
be certified to the Commission as a controlling question of law whose immediate review will
materially advance the final disposition of the proceedings. The Secretary opposes the motions.
For the following reasons, I conclude the motions should not be granted.

FACTUAL BACKGROUND
The facts are set forth in the Order (pages 1-3) and need not be repeated in toto. The
controversy arises out of a double explosion that occurred at JWR's No. 5 Mine on
September 23, 2001. Among the enforcement actions resulting from MSHA's subsequent
investigation of the accident were orders issued pursuant to Section 104(d) of the Act (30 U .S.C.
§ 814(d)). One of the orders, No. 7328082, alleges a violation of 30 C.F.R. § 75.1101-23(a).
The Secretary seeks a civil penalty assessment of $55,000 for the alleged violation (Docket No.
SE 2003-160). The alleged violation is one of eight that are at issue in docket. Seven are
proposed to be assessed at $55,000, and one is proposed to be assessed at $50,000. 1

1

In the consolidated case, Docket No. SE 2003-161, the Secretary petitions for the
assessment of ten additional alleged violations. The assessments proposed for these alleged
violations are significantly less than those proposed for the violations in Docket No.
SE 2003-160.
26 FMSHRC 734

At 't he time the order was issued section 75.1101-23(a) stated:
Each operator of an underground coal mine shall adopt a program for the
instruction of all miners in the location and use of fire fighting equipment,
location of escapeways, exits, routes of travel to the surface, and proper
evacuation procedure to be followed in the event of an emergency. Such program
shall be submitted for approval to the District Manager of the Coal Mine Health
and Safety District in which the mine is located no later than June 30, 1974.[2]

In pertinent part the order states:
[A] proper evacuation procedure was not followed after the first explosion on 4
Section. Miners were not evacuated from the mine after an explosion damaged
critical ventilation controls. These conditions were known by and communicated
to management personnel including the CO Room Supervisor. The section
foreman believed there was a possibility of an explosion and did not effectively
communicate this information to the other miners. Miners from other areas of the
mine responded to the emergency on 4 Section believing either an ignition or a
fire had occurred. These miners were unaware an explosion had occurred and a
second explosion was possible. Miners underground were not alerted to the
problem through the mine wide telephone paging system. Also management
directed 7 addition miners to join the 13 miners already in 4 Section.

In its motion JWR argued section 75.1101-23(a) was inapplicable to the conditions that
existed at the mine on September 23 and the order should be vacated. JWR raised a number of
grounds for finding the standard was improperly cited. Foremost, it contended the standard
expressly applied "only to emergencies involving underground fires" (Mot. at 10). Therefore, it
was wrong to cite the standard for "other emergencies that could occur in an underground mine,"
specifically for an emergency involving an explosion. JWR also argued if section 75. l 103-23(a)
"could somehow be construed to apply to events that were not fire emergencies," the company
was in compliance with the standard because its miners' actions were consistent with the Plan
ffil 20).
In ruling on the motion, I held that given the facts revealed by the record, it was not
improper for MSHA to cite the company for a violation of section 75.1101-23(a) (Order 4-5). I
stated I was not swayed by the company's argument the standard applied only to fire
emergencies. Applying a "reasonably prudent person test," I concluded the September 23
emergency was of the type referenced in section 75.l 101-23(a). In essence, I found a reasonably
prudent person familiar with the mining industry and the protective purposes of the standard
would have concluded the standard applied to both fire and explosion emergencies and that the
2

On the date the violation allegedly occurred, a plan (the "Plan") approved by MSHA
was in effect at the mine.

26 FMSHRC 735

company's attempt to differentiate between a fire and an explosion for purposes of the standard
was "a distinction without difference" (Order 5). Given that interpretation, I found the standard' s
placement in Subpart L of the regulations, a subpart headed "Fire Protection," logical, and I
rejected the company's suggestion that the location "of the standard and its regulatory context
restrict[ed] it to fires only and exclude[d] explosions"®.:. 6).
Having found it was not incorrect to cite section 75.1101-23(a), I held there were
insufficient facts in the record to determine whether JWR complied with the standard on
September 23. I noted the company and the Secretary did not agree whether the allegations set
forth in Order No. 7328082 violated the company's Plan and that at trial the burden would be on
the Secretary to establish that the allegations in the order actually contravened the Plan as it then
existed (Order 6).
Because I found that Section 75.1101-23(a) was correctly cited and that material facts
remained to be determined, I denied the motion (Order 6-7).
RECONSIDERATION
In moving for reconsideration; the company asserts, as it did in its motion, that MSHA's
revision of the regulation after the accident and the agency' s decision to put the standard under a
different subpart indicates that MSHA itself did not consider the standard to apply to explosionrelated emergencies (Mot. 1-2).[3] It also argues that the conclusion that a reasonably prudent
mine operator would have found the standard applicable to explosion emergencies is inconsistent
with the fact that the Secretary later revised the standard ilih 2-3).
With all due respect, I am not persuaded. If, as I believe, a reasonable, prudent mine
operator would have concluded the September 23 emergency was of the type referenced in
section 75.1101-23(a), the fact that the Secretary chose to revise and reposition the regulation at a
later date does not make the previously worded and positioned regulation inapplicable. The
Secretary has a duty to refine, revise and clarify her regulations based on her administrative
experience. Revising a regulation to more clearly state what previously was reasonable to infer
does not signal the inapplicability of the prior regulation. Nor is it inconsistent with concluding
the prior standard applied to then existing facts. Rather, such a revision is the type of honing and
3

In December 2002, the Secretary redesignated section 75.1101-23(23(a) as section
75.1502 and moved the regulation from Subpart L to Subpart P of Part 75. Subpart Pis titled
"Mine Emergencies" (67 FR 76665 (December 12, 2002); 67 FR 78044 (Dec. 20, 2002)).
As part of the revised regulation, the Secretary specified an evacuation program was required for
"[m]ine emergencies that endanger miners due to fire, explosion, or gas or water inundation" (30
C.F.R. §75.1502(a)(l)). JWR argued in its motion, "if the Secretary intended§ 75.11-01-23(a) to
apply to all potential mine emergencies, she would have said so and included it in Subpart P, as
she did when she revised the standard" (Mot. 11 ).

26 FMSHRC 736

refining of a regulation the Secretary is obligated to undertake.
I remained convinced that when all is said and done, the matter is a simple one - would a
reasonably prudent operator have concluded the standard applied only to fire emergencies and
excluded other emergencies, specifically those involving an explosion? For the reasons I have
stated, I continue to believe the answer is no.
Because I founc,l the standard applicable to the events of September 23 , I stated that at
trial the Secretary would "have to prove the alleged violations of the [evacuation] Plan ... either
through documentary evidence or testimony, or both" and that JWR can "rebut the Secretary's
case by showing the particular events ... the Secretary contends contravened the Plan either did
not occur or were not contrary to the provisions of the Plan" (Order 6). In urging
reconsideration, the company cites deposition testimony it obtained following issuance of the
order. JWR maintains the testimony establishes that the order was not issued for violating the ·
Plan but, rather, for violating the standard or the intent of the standard (Mot. For Reconsid. 4-5).
However, this assertion is disputed by the Secretary. She states that at trial she will prove
that JWR violated specific portions of its then existing Plan (See's Opp. To Resp. Mot. For
Reconsid. 3). Thus, issues remain to be tried.
For these reasons, I decline to reconsider my conclusion that the motion should be denied.

CERTIFICATION
Commission Rule 76(a)(l)(I) states that a judge may certify an interlocutory ruling when
it involves and "controlling question of law and .. . immediate review will materially advance
the final disposition of the proceeding." While the issue of whether or not section 75.1101-23(a)
applied to the events of September 21 is controlling regarding Order No. 7328082, its resolution
will not materially advance the final disposition of the proceeding. The order sets forth but one
of 18 alleged violations at issue in the consolidated proceedings. Of the 18, eight, including the
alleged violation of section 75.1101-23(a), are expected to be vigorously contested by the parties.
The hearing is scheduled to begin on November 4, 2004, and will extend well into December.
Removal of one of the alleged violations from those that will be tried will not significantly
shorten the length of the trial nor the time within which a decision will be rendered by the
undersigned.
Equally important, denial of certification will not deprive JWR of review of the issue. If I
ultimately conclude the standard was violated, the company may appeal to the Commission,
which will have the opportunity to review the matter in the context of a complete and, I hope,
enlightening record.

26 FMSHRC 737

ORDER
JWR's Motion for Reconsideration or Certification is DENIED.

JJfA/~Q.~~/.~L- -

Dav1d'F.i(~~
"--'
Administrative Law Judae
t:>
(202) 434-9980

Distribution: (Certified Mail)
Keith E. Bell, Esq., Edward H. Fitch, Esq., U.S. Department of Labor,
Office of the Solicitor, 1100 Wilson Blvd., 22oc1 Floor, Arlington, VA 22203
Thomas C. Means, Esq., Timothy M. Biddle, Esq., Bridget E. Littlefield, Esq.,
Crowell & Moring, lLP, 1001 Pennsylvania Avenue, NW., Washington, DC 20004-2595
David M. Smith, Esq., Maynard, Cooper & Gale, P.C.,
1901 Sixth Avenue N., 2400 AmSouth/Harbert Plaza, Birmingham, AL 35203-2618
Judith Rivlin, Associate Regional Counsel, UMW A Headquarters,
8315 Lee Highway, Fairfax, VA 22031-2215

26 FMSHRC 738

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

August 18, 2004
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
AD.MINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2004-36
A.C. No. 46~08593-11714

V.

BAYLOR MINING, INC.,
Respondent

Jim's Branch No. 3a

ORDER GRANTING, IN PART,
AND
DENYING, IN PART, MOTION TO COMPEL
This case is before me on a Petition for Assessment of Civil Penalty under section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The Respondent filed a
request for production of documents with the Secretary. Citing the "work product" privilege, the
"informant's" privilege and the "deliberative process" privilege, the Secretary declined to furnish
12 documents in response to the Respondent's request. 1 Consequently, the Respondent has filed
a Motion to Compel disclosure of the documents. Relying on the privileges previously asserted,
the Secretary opposes the motion. For the reasons set forth below, the motion is granted, in part,
and denied, in part.
The documents at issue are: (1) The inspector's September 10, 2003, notes; (2) An
August 6, 2003, Special Investigation Report; (3) A September 19, 2003 Memo from the special
investigator to the Acting Director of the Office of Assessments; (4) An April 14, 2003, signed
miner witness statement; (5) An April 10, 2003, unsigned miner witness statement; (6) A May
30, 2003, Memorandum of Interview of a miner witness; (7) and (8) Two June 9, 2003,
Memoranda of Interview of members of management; (9) A June 6, 2003, Memorandum of
Interview of a member of management; (10) A June 13, 2003, signed miner witness statement;
(11) A May 30, 2003 Memorandum of Interview of a "private" individual; and (11) A June 19,
2003, Memorandum of Interview of a miner witness.
With the exception of the inspector's notes, the Secretary's Conference and Litigation
Representative argues that the remaining 11 documents are covered by the "work product"

1

It is not clear whether the Secretary withheld 11 or 12 documents since, as will be seen
infra, the Secretary has already furnished the inspector's notes.
26 FMSHRC 739

privilege. The work product privilege has been codified in Rule 26(b)(3) of the Federal Rules of
Civil Procedure.2 The Commission has held that:
·
In order to be protected ... under Fed. R. Civ. P. 26(b)(3), the
material sought in discovery must be:
1. "documents and tangible things;"

2. "prepared in anticipation of litigation or for
trial;" and
3. "by or for another party or by or for that party's
representative."
Asarco, Inc., 12 FMSHRC 2548, 2558 (Dec. 1990) (Asarco I). The documents clearly meet (1)
and (3), so the question is whether they were prepared "in anticipation of litigation or for trial."
The investigation in this case was carried out in response to a section 103(g) complaint,
30 U.S.C. § 813(g). 3 As evidence that the investigation was in anticipation of litigation, the
Secretary has submitted the affidavits of the Supervisory Special Investigator and the
investigator. The supervisor's affidavit states:
I assigned Robert W. Simmons, Special Investigator, to
conduct an investigation of this complaint. Because of the
allegation of possible falsification of records, one of the purposes of
Mr. Simmons' investigation was to recommend whether civil
penalty assessments should be proposed and whether the matter

2

Commission Rule l(b), 29 C.F.R. § 2700.l(b), incorporates the Federal Rules of Civil
Procedure, so far as practicable, on any procedural question not regulated by the Act, the
Commission's procedural rules, or the Administrative Procedure Act.
3

Section 103(g)(l) provides, in pertinent part, that:
Whenever a representative of the miners or a miner in the
case of a coal or other mine where there is no such representation
has reasonable grounds to believe that a violation of this Act or a
mandatory health or safety standard exists, or an imminent danger
exists, such miner or representative shall have a right to obtain an
immediate inspection by giving notice to the Secretary or his
authorized representative of such violation or danger. . . . Upon
receipt of such notification, a special inspection shall be made as
soon as possible to determine if such violation or danger exists....
26 FMSHRC 740

Inacidition, it was known that Mr. Lucas had been killed in a
subsequent accident at the Jim's Branch No. 3a Mine and that there
was ongoing litigation concerning his death. As such, the work
performed by Investigator Simmons as part of this investigation was
performed in anticipation of possible litigation.
Special Investigations conducted pursuant to Section 103(g)
of the Aqt are not conducted in the ordinary and routine course of
MSHA's business. Normally, a 103(g) complaint is assigned to a
regular inspector to investigate. However, because this case
involved an allegation of falsification of records, it was assigned to
a Special Investigator and a special investigation was conducted.
This investigation was conducted with the understanding that
litigation was a possibility.
(Sec'y. Resp., Attach. B., Aff. of James G. Jones, Paras. 4 & 5.) The affidavit of Simmons
contains essentially identical language. (Sec' y. Resp., Attach. C., Aff. of Robert W. Simmons,
Paras. 4 & 8.)
The affidavits are relevant because the belief of the party preparing the document, that
litigation will result, if objectively reasonable, is the initial focus of whether a document was
prepared in anticipation of litigation. Martin v. Baily's Park Place Hotel & Casino, 983 F.2d
1252, 1260 (3rd Cir. 1993). Consequently, finding the affiants' beliefs to be objectively
reasonable, I find that the Secretary has met the first step in sustaining her claim of the privilege.
Next, the Secretary correctly argues that "it is well recognized that such special
investigations are conducted by MSHA in anticipation of litigation." (Sec'y. Resp. at 5.) Indeed,
in Asarco I , the Commission held that MSHA special investigations under sections 110(c) and
(d), 30 U.S.C. § 820(c) and (d), are undertaken in anticipation of litigation. Id. at 2559. Section
1 IO(d) deals with criminal penalties for operators who "willfully violate[] a mandatory health or
safety standard." Thus, it appears that the investigation, although initially triggered by a 103(g)
complaint, falls within the protection of the privilege by the possibility of criminal charges.
Further, it does not appear that MSHA arrived at this rationale in response to the instant
motion. The August 6 memorandum, written well before the citation was issued, states as its
subject: "Special Investigation Report Under Section 110 ...." This also supports the claims in
the affidavits that the investigation was undertaken with litigation a possibility.
Finally, even though there is no evidence that criminal charges resulted from the
investigation, the privilege would still apply in this case. As the Commission said in Asarco I,
"documents prepared for one case have the same protection in a second case, if the two cases are
closely related." Id. at 2558. The Commission went on to say:

26 FMSHRC 741

It is our understanding that no charges have been brought as
a result of Everett's special investigation. Nevertheless, this civil
penalty case, brought under section l lO(a), 30 U.S.C. § 820(a), is
closely related litigation and it further appears that it could fairly be
said that the document was prepared in anticipation of that
litigation.

Id. at 2559 (citations oll)itted). In this case, the civil penalty case for inadequate task training is
more than just closely related to the investigation; lack of task training was one of the allegations
in the 103(g) complaint. (Sec'y. Resp. Attach. A.)

In conclusion, I find that the Secretary has met her burden of establishing that the
documents in question were prepared in anticipation of litigation. Documents 2 and 3 are clearly
covered by the privilege as they are documents prepared in anticipation of litigation by the
Secretary's investigator. Documents 4, 5 and 10, the signed and unsigned miner witness
statements, taken by the investigator during the investigation also fall within the privilege. See
Brennan v. Engineered Products, Inc., 506 F.2d 299, 303 (8th Cir. 1974); Brock v. Frank V.
Panzarino, Inc. , 109 F.R.D. 157, 159 (E.D.N.Y. 1986). Finally, Documents 6, 7, 8, 9, 11and12,
the memoranda of interviews, are also covered by the privilege. Consolidation Coal Co., 19
FMSHRC 1239, 1243 (July 1997). Accordingly, I hold that the work product privilege applies to
all 11 documents.
Having found that all 11 of the documents are entitled to work product immunity, ~'they
are subject to discovery 'only upon a showing that the party seeking discovery has substantial
need of the materials in the preparation of the party's case and that the party is unable without
undue hardship to obtain the substantial equivalent of the materials by other means.' Fed. R.
Civ. P. 26(b)(3)." Asarco I, 12 FMSHRC at 2558. In this case, the Respondent argues that the
documents "presumably motivated the Secretary's enforcement action and contain information
needed by Baylor to prepare its defense over two and one-half years after the event." (Mot. at 9.)
This assertion may meet the substantial need part of the test, but it does not demonstrate
that Baylor is unable without undue hardship to obtain the substantial equivalent of the materials
by other means. This is not a case where the Secretary obtained the information back in 2001
when memories were fresh. The Secretary got the information a year ago. That is about the
same length of time that proceeds most cases before the Commission.
Baylor has access to the same individuals with knowledge of the alleged inadequate task
training as did the investigator and can question them in the same manner, under subpoena, if
necessary. Asarco, Inc. , 14 FMSHRC 1323, 1331 (Aug. 1992) (Asarco II). Other than a lapse in
time, which is essentially the same for both parties, the Respondent has made no showing that it
attempted to question witnesses and they could not remember what happened, that some
witnesses are no longer available, that it would have to go to unusual expense to obtain the
information contained in the documents or that some other actual reason prevents the operator
26 FMSHRC 742

from obtaining this information. Accordingly, I conclude that the Respondent has not met the
undue hardship test and that documents 2-12, with the exception of documents 7, 8 and 9 need
not be disclosed. 4
With respect to documents 7-9, which are memoranda of interviews of Baylor managerial
employees, Fed. R. Civ. P. 26(b)(3) provides that: "A party may obtain without the required
showing a statement concerning the action or its subject matter previously made by that party."
Since Baylor, the party, is a corporation, it follows that it may obtain the statements of its agents
without the required showing of substantial need and undue hardship. Inasmuch as the Secretary
has not asserted any other privilege with regard to these documents, they must be furnished to the
Respondent.
This disposes of all of the documents except the inspector's notes dated September 10,
· 2003. The Respondent requests "the inspector's notes redacted only, if applicable, of identifying
information regarding informant witnesses and the mental impressions, conclusions, opinions or
legal theories of any attorney or other representative party concerning the case." (Mot. at 14.) In
response, the Secretary's representative states:
With respect to the inspector's notes that the respondent
[sic] seeks produced, those notes were taken after the issuance of
the citation at issue and relate to a follow-up inspection to
determine whether the violation had been abated. The only
material that was redacted from those notes was the social security
and phone numbers of persons who were interviewed.
(Sec'y. Resp. at 8.) Thus, it appears that the Secretary has already produced the inspector's
notes.

Order
As discussed above, the Motion to Compel is GRANTED to the extent that the Secretary
is ORDERED to provide to the Respondent Documents 7, 8 and 9, the memoranda of interview

4

Having found that the work product privilege applies to these 11 documents, I do not
reach the Secretaries assertion of the "informant's" and "deliberative process" privileges.
26 FMSHRC 743

of management. hi all other respects, the Motion to Compel is DENIED and the Secretary need
not disclose the two memoranda from the investigator or the witness statements or other
memoranda of interviews.5

J.,....."71'JWA ;Oj~~
T. ToddHodg
Administrative Law Judge
(202) 434-9973
Distribution: (Certified Mail)
James F. Bowman, Conference & Litigation Representative
U.S. Department of Labor, MSHA, 100 Bluestone Road, Mt. Hope, WV 25880
Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209
David J. Hardy, Esq., Spillman, Thomas & Battle, Pl.LC
Spillman Center, 300 Kanawha Boulevard, East, P.O. Box 273, Charleston, WV 25321

lbs

5

The Respondent will be receiving the names of the Secretary's miner witnesses two
days before trial. At that time, counsel for the Respondent should also receive all statements
made by those miners who will be witnesses. Asarco II, 14 FMSHRC at 1331.
26 FMSHRC 744

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

August 24, 2004
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

crvn., PENALTY PROCEEDING
Docket No. WEVA 2004-19
A.C. No. 46-08829-11758
Docket No. WEVA 2004-90
A.C. No. 46-08829-17860

BAYLOR MINING INC.,
Respondent

Beckley Crystal Mine

ORDER DENYING SECRETARY'S
MOTION FOR SUMMARY DECISION
Docket No. WEVA 2004-19 was initially stayed pending the docketing and assignment of
Docket No. WEVA 2004-90 that concerns a 104(d)(l) citation arising out of the same incident.
The stay was continued on May 26, 2004, after WEVA 2004-90 was assigned due to scheduling
conflicts that prevented an immediate hearing. The Order Continuing Stay noted that the parties
agreed that discovery would continue during the pendency of the stay. The Order further noted
that if settlement was not reached by August 19, 2004, the parties were to file a motion to lift the
stay and to formally schedule these matters for hearing.
On July 8, 2004, Suzanne Brennan, the Secretary's counsel, wrote David Hardy, counsel
for the respondent, suggesting July 23, 2004, as the written discovery completion date and the
first or second week in August as the period for completing depositions. Brennan noted that this
schedule would enable the parties to comply with the August 19, 2004, deadline for moving to
lift the stay. On July 23, 2004, the Secretary forwarded her responses to Hardy's interrogatories
and request for documents. However, Hardy failed to respond to the Secretary's discovery
requests and he did not timely respond to Brennan's July 8, 2004, request to establish a
deposition schedule. Brennan avers that she left subsequent telephone messages with Hardy's
office that were not returned.
On August 17, 2004, the Secretary filed a Motion for Summary Decision. The Secretary
relies on Rule 36 of the Federal Rules of Civil Procedure. Rule 36 provides that matters in
requests for admissions are deemed admitted unless they are denied by the party to whom they
are served within 30 days after service of the request, or, within a longer period as the court may
allow or the parties may agree upon. Having failed to respond to the Secretary's request for
admissions, the Secretary argues that the matters therein should be deemed admitted thus
removing all genuine issues of fact.

26 FMSHRC 745

In opposition to the Secretary's motion, Hardy relies on an August 11, 2004, letter from
Brennan referencing their "conversation last week regarding scheduling of depositions."
In apparent recognition of the Secretary' s Motion for Summary Decision sent by Overnight
Express Mail on August 17, 2004, responses to the Secretary's written discovery were served by
the respondent by facsimile at 6:00 p.m. on August 19, 2004. During an August 23, 2004,
telephone conference, counsel for the respondent candidly conceded that he could have been
more diligent in responding to the Secretary' s July 8, 2004, proposal for completion of written
discovery by July 23, 2004.
Turning to the merits of the Secretary' s Motion, the rub in the Secretary's reliance on
Rule 36 is that the May 26, 2004, Order Continuing Stay, and the telephone conference that
preceded it, extended the discovery schedule with the acquiescence of Brennan and Hardy. The
Order did not explicitly establish deadlines for written and deposition discovery because the
parties represented that they would cooperate with each other.
During the August 23, 2004, telephone conference Brennan indicated that the Secretary
may seek additional responses to the respondent's August 19, 2004, answers to discovery.
As experience demonstrated the necessity for a formal discovery schedule, the telephone
conference established that any supplemental discovery requests must be served by facsimile on
or before August 27, 2004. Responses to supplemental discovery must be served by facsimile on
or before September 10, 2004. Finally, depositions must be completed by September 17, 2004.
Failure to strictly adhere to this schedule will subject the offending party to sanctions under
Commission Rule 59, 29 C.F.R. § 2700.59.
It is unfortunate that the parties did not seek to resolve this matter simply and
expeditiously in a telephone conference. In view of the above, the Secretary's Motion for
Summary decision IS DENIED.

Jerold Feldman
Administrative Law Judge
Distribution: (Certified Mail and Facsimile)
Suzanne Brennan Esq., Office of the Solicitor, U.S. Department of Labor,
1100 Wilson Blvd., 2200 Floor West, Arlington, VA 22209
David J. Hardy, Esq., Spillman, Thomas & Battle, PLLC, Spillman Center
300 Kanawha Boulevard, East, P.O. Box 273, Charleston, WV 25321

lbs
26 FMSHRC 746

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

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

August 30, 2004
CIVIL PENALTY PROCEEDING
Docket No. KENT 2004-129
A.C. No. 15-18068-19231

v.
STERLING MATERIALS,
Respondent

Sterling Materials

ORDER DENYING MOTION FOR SUMMARY DECISION
This case is before me under section 105 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815. Respondent has filed a Motion for Summary Decision seeking dismissal
of the case on the grounds that the Secretary failed to notify it of the proposed civil penalties
within a reasonable time, as required by section 105(a) of the Act, 30 U.S.C. § 815(a). The
Secretary has opposed the motion. For the reasons set forth below, the motion is denied.
The citations and order at issue in this case (two 104(a) citations and a 107(a) withdrawal
order) were issued on April 9, 2003, and terminated on the same day. Respondent points out that
the alleged violations were unremarkable in character, did not involve any injuries and, therefore,
did not require an accident or special investigation by the Mine Safety and Health Administration
("MSHA"). Respondent was notified of MSHA's proposed penalty assessments on March 3,
2004, almost 11 months after the citations and order were issued. Respondent timely contested
the citations and order on March 11, 2004. The Secretary filed her Petition for Assessment of
Civil Penalty with the Commission on May 10, 2004, in excess of the 45 days permitted by
Commission Rule 28(a), 29 C.F.R. § 2700.28(a). The Commission accepted the Petition,
concluding that adequate cause had been shown for untimely filing. Respondent notes in the
instant motion that it did not and does not object to the late filing of the proposed penalty
assessment with the Commission.
Section 105(a) provides that "If, after an inspection or investigation, the Secretary issues
a citation or order under section 104, he shall, within a reasonable time after the termination of
such inspection or investigation, notify the operator by certified mail of the civil penalty
proposed to be assessed under section 1 lO(a) for the violation cited ...." The Commission has
provided guidance in determining whether a civil penalty has been proposed within a reasonable
time:
Section 105(a) does not establish a limitations period
within which the Secretary must issue penalty proposals. See

26 FMSHRC 747

Rhone-Poulec of Wyoming Co., 15 FMSHRC 2089, 2092-93
(October 1993), aff d 57 F.3d 982 (10th Cir. 1995); Salt Lake
County Rd. Dept., 3 FMSHRC 1714 (July 1981); and Medicine
Bow Coal Co., 4 FMSHRC 882 (May 1982). In commenting on
the Secretary's statutory responsibility to act "within a reasonable
time," the key Senate Committee that drafted the bill enacted as the
Mine Act observed that "there may be circumstances, although
rare, when prompt proposal of a penalty may not be possible, and
the Committee does not expect that the failure to propose a penalty
with promptness shall vitiate any proposed penalty proceeding."
S. Rep. No. 181, 95th Cong.,lst Sess. 34 (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 622 (1978). Accordingly,' in
cases of delay in the Secretary's notification of proposed penalties,
we examine the same factors that we consider in the closely related
context of the Secretary's delay in filing his penalty proposal with
the Commission: the reason for the delay and whether the delay
prejudiced the operator.
Steele Branch Mining, 18 FMSHRC 6, 14 (January 1996). Either circumstance, i.e.,
unreasonable delay or prejudice to the operator, may be a basis for dismissal. Twentymile Coal
Co., 26 FMSHRC I, 17 (August 2004). The Commission has emphasized, however, that
vacating a civil penalty on the basis of the Secretary's delay in notifying the operator is an
extraordinary remedy. Id. at 20.
Resolution of the timeliness issue turns on whether the Secretary has established adequate
cause for the delay so as to render it reasonable. Id. The Secretary contends that MSHA's notice
to Respondent of its proposed assessments was not unreasonably delayed, and accounts for the
processing time as follows:
[T]he Office of Assessments implemented a new MSHA
Standardized Information System (MSIS) in June, 2003. The new
system was a completely new type of database, case management
and financial tracking system. Because of the nature of the
violations cited and the implementation of this system, MSHA
assessed these violations ten months after the violations occurred
.... Given the surrounding circumstances and the high case load
of the Mine Safety and Health Administration, the penalty was
issued within a reasonable time from the completion of the
inspection.
Sec. Resp. at 2. Respondent does not dispute the accuracy of the Secretary's explanation for the
26 FMSHRC 748

delay, but takes the position that MSHA could have made the assessments prior to the June 23,
2003, implementation of the Standardized Information System and further, that staff vacancies in
the Office of Assessments should have been filled promptly so that MSHA could meet its
statutory obligations. Resp. Mot. at 3-4.
Respondent offers no support for its opinions as to when MSHA could have assessed the
penalties or filled the vacancies. Therefore, these mere assertions amount to conjecture and,
therefore, are unpersuasive. Moreover, in light of Congressional intent to preserve proposed
penalty proceedings where penalty proposais have not been made promptly, and the
Commission's reluctance to vacate civil penalties where the reasonableness of notice is
challenged, I find that the Secretary has provided an adequate explanation for the delay and that,
under the circumstances, MSHA' s penalty proposal occurred within a reasonable time.
Respondent also argues that it has been prejudiced by the delay by asserting that former
employee, Dale Estis, has critical information concerning the facts underlying the citations and
order, that Estis took notes memorializing those facts, that Estis left Respondent's employ on
August 20, 2003, and that Estis' current whereabouts are unknown to Respondent and his notes
no longer exist. Respondent reasons that, prior to Estis' departure, it would have de-briefed
Estis, preserved his notes and stayed in touch with him, had it received prompt notice of what it
considers very excessive proposed penalty assessments. Resp. Mot. at 5. Respondent stands in
the same position as all other operators faced with the choice of paying proposed penalties or
contesting them in legal proceedings: timely preservation of evidence and preparation of the
defense is often critical to that election. To the extent that Respondent claims prejudice by Estis'
departure from the company and unavailability of his notes, it bears the responsibility for its own
failure to act. Notwithstanding Respondent's actions, the Secretary has researched pertinent
public records and provided Estis' current residential address in Lexington, Kentucky. Sec.
Resp. at 4. Therefore, without more, there is no reason to conclude that Estis is unavailable for
deposition or trial.
Accordingly, adequate cause having been established for the delay by the Secretary in
proposing civil penalties to Respondent, and Respondent having fai led to demonstrate actual
prejudice, the Motion for Summary Decision is DENIED.

(l/ n-2.~

~R.Bulluck

Administrative Law Judge
(202) 434-9987

26 FMSHRC 749

Distribution: (Certified Mail)
Mary Sue Taylor, Esq., U. S. Department of Labor, Office of the Solicitor, 2002 Richard Jones
Road, Suite B-201, Nashville, TN 37215
Marcus P. McGraw, Esq., Greenebaum, Doll & McDonald, Pl.LC, P. 0. Box 1808, Lexington,
KY 40507

ej

26 FMSHRC 750